SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2025-249149
In the matter between:
P[...] J[...] B[...] Applicant
and
J[...] M[...] B[...] Respondent
Coram: Gxashe AJ
Heard on: 22 June 2026
Delivered: 31 July 2026
Summary: decree of divorce granted - incorporating the consent paper - terms
and conditions meticulously stated- post divorce the parties made another
arrangement- children moved to another parties’ medical aid - failure to
comply with the final order-contempt of court-requisites for contempt.
ORDER
1. The respondent is held in contempt of the court order only in respect of clause
7.6 of the consent paper incorporated into the final decree of divorce dated 26
January 2024.
2. The Respondent to be imprisoned for a period of 3 months.
3. The sentence is suspended for a period of one year on condition that the
Respondent pays the total bond instalments in respect of the La Boheme
property in the sum of R291 305.50 within 30 days of the date of this order
4. Should the respondent fail to comply with this order directing his compliance,
then the applicant shall be entitled to approach this court on the same papers
duly supplemented if necessary for an order declaring the respondent to be in
contempt of court and to appear before this court to explain why he should not
be committed to prison in terms of the order in paragraph 3 above.
5. The respondent to bear the costs of the point in limine including counsel’s fees
on scale B.
6. Each party is to bear its own costs.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
GXASHE AJ
Introduction
[1] In this opposed application, the applicant seeks relief in the following terms:
(a) that the respondent (the applicant’s ex-husband) be held in contempt of court
for failure to comply with the order granted by Andrews AJ on 26 January 2024 ;
(b) that the respondent is ordered to comply within 20 days of the service of this
order with paragraphs 3.1 to 3.10 and 7.6 of the consent paper annexed to the
order; (c) in complying with paragraph 2 of this order, the respondent must within
20 days of th e granting of this order pay the arrear medical aid and gap cover
contributions for the parties’ children up to June 2025 in the sum of R49 710.00 as
well as all arrears and contributions thereafter, in terms of clause 3.2 of the consent
paper; (d) the respondent be ordered to p ay the bond instalments in respect of the
La Boheme property in the sum of R291 305.50; (e) the respondent be imprisoned
for 3 months; (f) t he sentence in paragraph 4 be suspended on condition that the
respondent complies with paragraph 2 and 3 above; (g) should the respondent fail
to comply, the South African Police Service must, within one week of the expiry of
the period stated in paragraph 2 above, take all steps that are necessary and
permissible in law to ensure that the respondent is delivered to a correctional centre
to commence serving the sentence imposed in paragraph 4 ; and (h) the respondent
be ordered to pay the costs of this application, including the costs of the point in
limine, with counsel fees to be taxed on scale B.
Background facts
[2] The parties in this matter were previously married and are blessed with
children in their marriage. Their marriage broke down irretrievably , and on 26
January 2024 , a final decree of divorce incorporating the parties’ consent paper
was granted. The consent paper provided for (i) parental rights and responsibilities
of the minor children; (ii) maintenance for the minor children ; and (iii) proprietary
consequences of their marriage. In addition, the consent paper outlines the parties’
obligations meticulously, with the pertinent clauses relevant in this application
specifically set out in paragraphs 3.1 to 10 and 7.6 as follows:
(a) ‘Clause 3.1: Plaintiff shall pay to the Defendant the amount of R8,220.00 per
month per child, payable on the 1 st day of each month, from the date of divorce, and
thereafter on the or before the 1 st day of each succeeding month by way of debit order,
into such banking amount as the defendant may nominate in writing from time to time,
free of deduction or set off;
(b) Clause 3.2: Plaintiff shall maintain the children on their current medical aid
scheme including GAP cover and shall be responsible for payment of the monthly
premiums and escalations thereon, directly to the institution, timeously;
(c) Clause 3.3: The 4J’s Trust (as resolved in terms of the attached resolution
marked JB2) will settle payment of any of the children’s reasonable medical expenses not
covered by the Children’s Medical Aid Scheme or gap cover, including but not limited to
all medical, dental, surgical, hospital, orthodontic and ophthalmic treatment required by
the children including any sums payable to a physiotherapist, occupational therapist,
psychiatrist or psychologist, chiropractor, medical specialist, medicines on prescription
and the cost of over the counter medicine and the provision when necessary spectacles
and/or contact lenses. In the event either party incurs medical expenses on behalf of the
children not covered by the children’s medical aid or gap cover, the full amount of such
expense will be reimbursed to him/her within 5 days of presentation of the invoices to the
trustees of the 4J’s Trust;
(d) Clause 3.4: The 4J’s Trust (as resolved in terms of the attached resolution
marked “JB2”) shall make payment of all of the children’s reasonable school fees and
any cost related to the schooling, including inter alia, the cost of aftercare, traveling
costs, school outings, camps, the cost of extra -curricular school and sport activities, the
cost of extramural activities, to costs of extra tutorial lessons, in which the children
participate, including the cost of club fees and sport tours (including travel and
accommodation expenses relating thereto), as well as the costs of school books,
stationary, school uniforms equipment and attire (including computers) relating to the
children’s education and the sporting and/or extramural activities engaged in by them;
(e) Clause 3.5: The 4J’s Trust (as resolved in terms of the attached resolution
marked “JB2”) shall pay reasonable costs of clothing for the children;
(f) Clause 3.6: The Plaintiff shall pay the costs related to the children’s motor
sporting activities;
(g) Clause 3.7: The Plaintiff shall pay the costs of the children’s cellphone accounts;
(h) Clause 3.8: Should the children display an aptitude for higher education, then and
in that event, the 4J’s Trust (as resolved in terms of the attached resolution marked
“JB2”) will pay for the children’s reasonable and necessary tertiary education costs at a
“JB2”) will pay for the children’s reasonable and necessary tertiary education costs at a
South African Institution for higher learning for a first undergraduate qualification, such
costs to include, but not be limited to, all tertiary or any university fees and/or fees due to
an institution for higher learning attended by them, together with all costs relating to
residence, books, traveling costs and equipment in respect of the course in question
which obligation shall continue for as long as the children apply themselves with due
diligent and continue to make satisfactory progress;
(i) Clause 3.9: It’s recorded that the Defendant may continue to purchase cleaning
materials for the house and toiletries needed for her and the children on the business
account of Power Steering People (PTY) Ltd t/a Power Steering Solutions (Registration
number: 2014/202137/07);
(j) Clause 3.10: The maintenance provided for in clause 3.1 above shall increase
yearly on the anniversary date of the Divorce Order, by calculating the difference
between the headline CPI percentage and 10% (ten percent). Half of this difference is to
be added to the headline CPI as determined for that year (as notified by Statistics SA in
respect of the Republic of South Africa for the preceding 12 (twelve) months). This will
determine the total percentage by which the maintenance amount will increase by for that
year. Such percentage change shall, for purposes of convenience, be deemed to be equal
to the latest index available from Statistics SA on the anniversary date;
(k) Clause 4.5 is recorded under the heading ‘Maintenance for the children after 21
years of age’ and reads as follows: ‘In the event that the 4J’s Trust is sequestrated,
dissolved or for some reason is unable to, or does not meet the financial obligations it
has resolved to concerning the maintenance needs of the children as set out herein, . . .
then the Plaintiff will be liable for the 4J’s Trust undertaking towards the children’s
maintenance’; and
(l) Clause 7.6: The Plaintiff will continue to pay the monthly bond instalments of the
property until such time as it has been paid in full, but no later than the end of the bond
instalment period as held by Mercantile Bank and as set out in the mortgage loan
instalment period as held by Mercantile Bank and as set out in the mortgage loan
agreement, whereafter the Plaintiff’s undivided half share in the property will be
transferred and registered into the name of the defendant. The costs of the aforesaid
transfer will be for the defendant’s account.’
[3] Following the granting of the final divorce order, the parties made new
arrangements on the advice of their financial advisor who recommended that it is
preferable for the minor children to be covered under the applicant’s medical aid
scheme because they primarily reside with her. Instead of approaching a competent
court for the variation of the initial order , they implemented the recommendations
and proceeded to register their children on the applicant’s medical aid. According
to the applicant , this change was effected on the basis that the respondent shall
remain liable for medical aid costs and would reimburse her for the costs incurred
monthly.
[4] The fundamental cause for this application originates from this arrangement,
the terms of which the respondent breached by failing to reimburse the applicant
for medical costs paid to the fund . It is the applicant’s case that the arrangement
did not relieve the respondent of his obligations in terms of the order, despite that,
he failed to comply and is therefore in contempt.
[5] In addition, it is evident from the court order that the respondent was further
ordered to continue paying the monthly bond instalments of the property until such
time as it has been paid in full, but no later than the end of the bond instalment
period as held by Mercantile Bank and as set out in the mortgage loan agreement.
[6] The applicant alleges that to this end , the respondent did not fulfil his
obligations and circumstances forced her to take over the bond repayments until it
was paid in full . That, according to her , does not cure the contemptuous nature of
the respondent’s conduct , because t he financial obligation to pay the bond
installments until such time that it was paid in full remained with him.
[7] It is important to note at this stage that f ollowing the narrowing of issues at
the hearing, the court is required to determine the relief sought in prayers 1, 3 to 6
of this application , which is to: (a) hold the respondent in contempt of the court
order granted on 26 January 2024 ; (b) pay the arrear medical aid and gap cover
contributions for the parties’ children up to June 2025 in the sum of R49 710.00 as
well as all arrears and contributions thereafter within 20 days of the granting of this
order, in terms of clause 3.2 of the consent paper; (c) pay the bond instalments in
respect of the La Boheme property in the sum of R291 305.50; and for (d) the
respondent to be imprisoned for 3 months ; (e) the sentence be suspended on
condition that the respondent complies with paragraph (b) and (c) above; and (e)
the respondent to pay the costs of this application, including the costs of the point
in limine, with counsel fees to be taxed on scale B.
Arguments
[8] At the hearing, Counsel for the applicant , Mr. Angela, asserted that the crux
of the applicant’s case is based on the respondent ’s failure to comply with his
obligations in terms of clauses 3.2 and 7.6 of the final order. He contended that
these clauses place obligations upon the respondent personally , and h e failed to
comply with them willfully. According to counsel clause 3.2 obliges the
respondent to maintain the children on his medical aid and pay the relevant
premiums, including GAP cover.
[9] Nonetheless, counsel acknowledged that the parties concluded an
arrangement post-divorce and moved their children from the respondent’s medical
aid to the applicant’s medical aid fund. However, he asserted that the arrangements
did not relieve the respondent of his obligations and he remained personally and
financially liable for the children’s medical aid costs as set out in the consent
paper. Accordingly, he argued tha t t he children were moved to the applicant’s
medical aid on the basis that the respondent would remain liable for costs in
respect thereof and would reimburse the applicant monthly.
[10] To this end , counsel is of the view that the arrangement concerned the
monthly medical aid membership or the administrative control of the medical aid.
That according to him does not, without more, address the separate obligation to
pay or reimburse medical expenses not covered by the medical aid . Mr Angela
further argued that e ven if the court were to accept that the parties agreed that the
respondent would no longer make monthly medical aid payments personally, that
finding would take the matter no further than that specific obligation. It would not
excuse non -payment of shortfalls, co -payments, medication and other medical
expenses not covered by the GAP cover.
[11] As far as clause 7.6 is concerned Mr Angela asserted that the respondent is
obligated to continue paying the monthly bond instalments of the La Boheme
property until such time it is paid in full whereafter the respondent’s undivided
share will be transferred to the applicant.
[12] He contended that the respondent admitted having stopped paying the
monthly bond instalments despite the court order , and his excuse is that such
obligation became the responsibility of K2017. In this regard c ounsel lambasted
this argument and asserted that the respondent stopped making payments because
he unilaterally withdr ew R400.000 from the bond into K2017’s account when he
was the director of the company. According to him the respondent cannot seriously
believe that the af orementioned conduct constitutes a bona fide excuse for not
complying with clause 7.6 of the order. He contended further that the applicant
took over the bond repayments out of necessity, and that does not cure the
respondent’s contemptuous conduct because there remains a financial obligation
which he needs to comply with. Importantly counsel noted that the respondent
does not deny noncompliance, instead, his defence is that he has been excused
from complying with the order notwithstanding that such noncompliance is willful,
unreasonable and mala fide. In conclusion , he was of the view that the
respondent’s remedy in the circumstances was to approach a competent court for
variation. He then requested the court to grant the order as prayed for.
[13] Conversely, counsel for the respondent , Mr. Du Toit , submitted that the
respondent does not dispute the existence of a valid order and the knowledge of the
terms thereof. However, he denies noncompliance and asserts that noncompliance,
if any , was not willful and mala fide. According to counsel, clauses 3.2 and 7.6
impose personal obligations on the res pondent to comply with the court order.
However, since their financial advisor ’s recommendation was deemed highly
practical, the children were registered on the applicant’s medical aid schem e, and
their medical aid and gap cover were never interrupted.
[14] Counsel asserted further that the respondent was held liable to settle the
outstanding bond on the La Boheme property . Notably, the outstanding bond
mortgage was R86 445.17 as at 18 January 2023. However, K2017, the applicant’s
business, borrowed R400.000 from La Boheme Capitec Access bond on 20
January 2023. According to him, the respondent was held liable to settle not only
the outstanding debt on the La Boheme property but inadvertently also held liable
for K2017 ’s R400.000 loan , which was not the intention of the order. In
consequence, the respondent paid La Boheme bond instalments until the amount of
R86 445.17 was paid in full . Thereafter, he instructed the bank to change the debit
order to K2017’s bank account to recover the R400 .000 loan. Unfortunately, the
bank struggled to change the debit order, so after repeated requests he resolved to
continue paying the bond in his personal capacity and recovered the costs of these
instalments from the business account of K2017. This continued until October
2024 when the debit order of the La Boheme bond payment was moved to K2017’s
business bank account. According to him , the respondent ’s reimbursement from
K2017 is irrelevant , particularly because the applicant is not praying for the court
to find the respondent guilty of fraud. Nonetheless, he is of the view that the
respondent complied with the order substantively.
Applicable legal principles
[15] ‘The rule of law, a foundational value of the Constitution , requires that the
dignity and authority of the courts be upheld . This is crucial, as the capacity of the
courts to carry out their functions depends upon it. As the Constitution commands,
orders and decisions issued by a court bind all persons to whom and organs of state
to which they apply, and no person or organ of state may interfere , in any manner,
with the functioning of the courts. It follows from this that disobedience towards
court orders or decisions risks rendering our courts impotent and judicial authority
a mere mockery. The effectiveness of court orders or decisions is substantially
determined by the assurance that they will be enforced. Courts have the power to
ensure that their decisions or orders are complied with by all and sundry, including
organs of state. In doing so, courts are not only giving effect to the rights of the
successful litigant but also and more importantly, by acting as guardians of the
Constitution, asserting their authority in the public interest.’1
[16] ‘Contempt of court is understood as the commission of any act or statement
that displays disrespect for the authority of the court or its officers acting in a n
official capacity. This includes acts of contumacy in both senses: willful
disobedience and resistance to lawful court orders … Willful disobedience of an
order made in civil proceedings is both contemptuous and a criminal offence. The
object of contempt proceedings is to impose a p enalty that will vindicate the
court’s honour, consequent upon the disregard of its previous order, as well as to
compel performance in accordance with the previous order.’2
[17] ‘This type of contempt of court is part of a broader offence, which can take
many forms, but the essence of which lies in violating the dignity, repute or
authority of the court. The offence has in general terms received constitutional
‘stamp of approval ’, since the rule of law - a founding value of the constitution
1 Pheko and others v Ekurhuleni Metropolitan Minicipality (Pheko) [2015] ZACC 10; 2015 (5) SA 600 (CC) paras
1-2. See also Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others
(Zuma) [2021] ZACC 18; 2021 (5) SA 327 (CC) para 1.
2 Pheko para 28.
requires that the dignity and authority of the courts, as well as their capacity to
carry out their functions, should always be maintained.’3
[18] ‘The test for when disobedience of a civil order constitutes contempt has to
be stated as whether the breach was committed ‘deliberately and mala fide ’. A
deliberate disregard is not enough, since the non -complier may genuinely, albeit
mistakenly, believe him or herself entitled to act in the way claimed to constitute
contempt. In such a case good faith avoids the infraction. Even a refusal to comply
that is objectively unreasonable may bona fide (though unreasonableness could
evidence lack of good faith) . These requirements – that the refusal to obey should
be both wilful and mala fide, and that unreasonable non -compliance, provided it is
bona fide, does not constitute contempt accord with the broader definition of the
crime, of which non - compliance with civil orders is a manifestation. They show
that the offence is committed not by mere disregard of a court order, but by the
deliberate and intentional violation of the court’s dignity, repute or authority that
this evinces . Honest belief that non -compliance was justified or proper is
incompatible with that intent.’4
Discussion
[19] It is trite that an applicant who alleges contempt of court must establish that:
(a) an order was granted against the alleged contemnor;
(b) the alleged contemnor was served with the order or had knowledge of
it; and
3 Fakie NO v CCII Systems (Pty) Ltd (Fakie) [2006] SCA 52; 2006 (4) SA 326 (SCA) para 6.
4 Fakie paras 9-10.
(c) the alleged contemnor failed to comply with it.
[20] A presumption exists that when the three elements of the test for contempt
have been established, mala fides and willfulness are presumed, and the contemnor
bears the burden to lead evidence sufficient to create reasonable doubt as to their
existence. Should the contemnor prove unsuccessful in discharging the evidential
burden, contempt will be established.5
[21] In casu, both parties have correctly alluded to the requirements to be met
with regard to contempt of court proceedings. Needless to say, the applicant has
proven the existence of the order, that it was brought to the knowledge of the
respondent, and that the respondent has not complied with the order. Accordingly,
the evidentiary burden shifts to the respondent to show that there was no wilful
disobedience of the order or that he did not act in bad faith.
[22] It is instructive to note that a court order remains binding until varied,
rescinded or set aside by a competent court. There can be no doubt that clause 3.2
explicitly directs the respondent to maintain the children on their medical aid
scheme including the gap cover and held him responsible for payment of the
monthly premiums and escalations thereon, directly to the institution, timeously .
Notwithstanding this , the parties amicably resolved to move the children to the
applicant’s medical aid scheme for practicality purposes subsequent to the granting
of the final order . It needs to be stressed that t his arrangement has no bearing on
the court order because it was never brought before a competent court for
variation; therefore, the original order is still in existence. However, the parties’
5 Zuma para 37.
arrangement post-divorce hindered the respondent’s compliance as ordered by the
court because the children were moved to another medical aid to which he had no
control over. It must be noted at this stage that the respondent is required to be the
principal member of the medical aid fund to maintain the children’s coverage and
pay monthly premiums directly to the fun d. As a consequence of the arranged
amendment, he could not maintain them to his medical aid fund because children
cannot be registered as dependents on both parents’ medical aid schemes. This
does not detract from the fact that the respondent did not comply with the court
order. However, even if he could have complied , doing so would have been
impossible, as the children were placed on the applicant’s medical aid by mutual
agreement.
[23] In addition , counsel for the applicant submitted that the so-called
arrangement did not relieve the respondent of his obligations as set out in the court
order, because t he court specifically ordered him to pay all monthly premiums
directly to the fund . Notwithstanding this , the applicant seeks to substitute the
terms of the existing court order with the parties’ arrangement, which was never
made a court order . In the main, the question whether the respondent failed to
comply with the final order remains wanting, because the alleged breach stems
from his failure to reimburse the monthly premiums paid by the applicant to her
medical aid fund . Unfortunately, that is not a court order. Therefore, it is
inconceivable for the applicant to allege that the respondent is in contempt in this
regard, as the existing court order was never varied by their subsequent
arrangement. The original terms of the final order in the circumstances remain in
full effect.
[24] Parties are strictly enjoined to approach the courts for the formal variation of
any term incorporated into a court order. The imperative of compliance remains
absolute and preserves the dignity and authority of the courts. Consequently, any
extra-judicial or amicable variation by the parties cannot be condoned. Permitting
such informal deviations from court directives impairs the administration of justice
by rendering it difficult, if not impossible, for the courts to effectively address and
punish recalcitrant conduct. It c omplicates enforcement against non -compliant
litigants and undermines the rule of law.
[25] Clause 7.6 also places obligations on the respondent personally to pay
monthly bond instalments of the La Boheme proper ty until the bond is paid in full.
I pause to mention that at the time this clause was agreed to , both parties were
aware that the applicant’s company K2017 was indebted to the bond in the sum of
R400.000. Regardless, the parties agreed to this condition and included K2017’s
indebtedness to the outstanding bond amount. In the premises, it is reasonable to
conclude that the parties intended the respondent to settle the outstanding balance
in full , including the amount due by K20 17. Had the par ties intended otherwise ,
they would have explicitly recorded this exclusion in the agreement.
[26] It is essential to remind ourselves that a court’s power to vary a consent
paper incorporated into the final divorce order is limited. In Georghiades v Janse
van Rensburg,6 Griesel J noted that for a court to interfere in that arrangement (of a
settlement agreement) by varying one component of the agreement, while leaving
the balance of the agreement intact, flies in the face of the time hallowed principle
that the court cannot make new contracts for the parties; it must hold them to
6 Georghiades v Janse van Rensburg [2006] ZAWCHC 29; 2007 (3) SA 18 (C).
bargains into which they have deliberately entered. Thus, the court a quo erred in
varying a contractual ter m in a consent paper dealing with the patrimonial
consequences of marriage between the parties.7 This was echoed in Mafisa v Road
Accident Fund and Another, [2024] ZACC 4 para 54, where the court held that ‘in
light of the above , the High Court exceeded its jurisdiction when it unilaterally
amended the settlement agreement. Its unilateral alterations to the agreement were
improper’.8
[27] However, section 8 of the Divorce Act 70 of 1979 creates an exception and
provides that ‘a maintenance order or an order in regard to the custody or
guardianship of, or access to, a child, made in terms of the Act, may at any time be
rescinded or varied or, in the case of a maintenance order with regard to access to a
child, be suspended by a court if the court finds that there is sufficient reason
therefor…’.
[28] Keeping t he above in mind , the duty to approach a competent court for
variation is entrusted to both parties because the agreements in respect of the
patrimonial consequences of the marriage can only be altered by mutual consent of
the parties involved.
[29] That being said, it is undisputed that the respondent initially paid monthly
instalments towards the bond account as per the court order. However, when the
actual outstanding amount excluding the debt owed by K20 17 was paid in full , he
continued fulfilling his obligations , but in return he reimbursed himself by
7 M.D v N.D (A176/2023) [2023] ZAWCHC 304 (29 November 2023).
8 Mafisa v Road Accident Fund and Another [2024] ZACC 4; 2024 (4) SA 426 (CC) para 54.
withdrawing a sum equivalent to t he amount paid to the bond from K20 17’s
account. Even though this was not part of the court order, the respondent continued
this conduct until the bond was linked to K20 17’s account. Subsequently, he
stopped paying the bond and instead diverted his liability to K2017.
[30] Needless to say, the respondent was indeed in contempt of the court order
because the court explicitly ordered him to pay the bond in full and not K20 17. I
say this because in his opposing affidavit the respondent asserted that he was held
liable to settle not only the outstanding debt on the La Boheme property but
inadvertently also held liable for K2017’s R400.000 loan , which was not the
intention of the order. In my mind, that part of his evidence is misconst rued
because he was a party to the agreement when it was concluded. In fact, if it was a
mistake, as he wants the court to believe , he would have approached the court for
rectification proceedings to ensure that the agreement reflects the true intention of
the parties. He did not do that, instead, he instructed the bank to change the debit
order to K2017’s bank account to recover the loan, a clear indication that he never
intended to comply with the court order.
[31] There are very limited grounds on which a party can rely on a mistake to
resile from a contract. A settlement agreement can be set aside if it was
fraudulently obtained. It can be set aside on the ground of Justus error, provided
that such error vitiated true consent and did not merely relate to the merits of the
dispute, which was the very purpose of the parties to reach a settlement.9
9 Gollach and Gomperts (1967) (Pty) Ltd v Universal Mills and Produce Company (Pty) Ltd 1978 (1) SA 914 (A) at
922.
[32] In the circumstances, the respondent cannot rely on a mistake to justify his
noncompliance because he was party to the agreement and did not do anything to
remedy the terms of the contract but decided not to comply with the order
unilaterally. Evidently, the applicant was compromised because the respondent
continued to recover the monthly repayments he made to the bond account from
K2017 and cannot be faulted for consenting to link the bond repayments to her
company’s bank account. I agree with the applicant’s counsel that s he did that out
of necessity . Consequently, the respondent failed to make any bond repayments
until the debt was paid in full. Therefore, I am satisfied that the applicant has
shown that the respondent is in wilful default and maliciously he failed to comply
with the order . In the result, I can only conclude that his conduct indicates an
intentional and deliberate noncompliance with the court order.
Costs
[33] The applicant seeks a costs order including the costs of the point in limine. It
bears to mention at this stage that the point in limine was argued separately
following an application by the respondent to consider the applicant’s replying
affidavit. Judgment on the point in limine was granted in favour of the applicant
and costs were reserved for later determination. Accordingly, costs should follow
the cause. In respect of the application b oth parties are partially successful, and the
court deems it fit to grant the order that each party pays its own costs.
Order
[34] The following order is made:
1. The respondent is held in contempt of court only in respect of clause 7.6 of
the consent paper incorporated into the final decree of divorce dated 26
January 2024.
2. The respondent is to be imprisoned for a period of three months.
3. The sentence is suspended for a period of one year on condition that the
respondent pays the total bond instalments in respect of the La Boheme
property in the sum of R291 305.50 within 30 days of the date of this order.
4. Should the respondent fail to comply with this order directing his
compliance, then the applicant shall be entitled to approach this Court on the
same papers duly supplemented if necessary for an order declaring the
respondents to be in contempt of court and to appear before this Court to
explain why he should not be committed to prison in terms of the order in
paragraph 3 above.
5. The respondent to bear the costs of the point in limine including counsels
fees to be taxed on scale B.
6. Each party to pay its own costs.
______________________________________
N. GXASHE
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Appellant: Advocate RB Engela
Instructed by: Morne Binedell Attorney and Conveyancer
Counsel for the Respondent: Advocate R. Du Toit
Instructed by: Cavanagh and Richards Attorneys