SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 771/21
In the matter between:
A[…] J[…] S[…] APPELLANT
and
G[…] S[…]-H[…] RESPONDENT
Neutral citation: S[…] v S[…]-H[…] (Case no 771/21) [2023] ZASCA 49
(13 April 2023)
Coram: MOLEMELA, NICHOLLS, MOTHLE and MEYER JJA and
OLSEN AJA
Heard: 15 February 2023
Delivered: This judgment was handed down electronically by circulation
to the parties’ legal representative s by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for hand -
down is deemed to be at 11h00 on 13 April 2023.
Summary: Civil procedure - Contempt of court - whether appellant was
entitled to a postponement to allow him to present his case before high court
made the o rder committing him to prison - high court did not determine
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whether the appellant’s conduct was male fide and wilful beyond a
reasonable doubt - this must take place before there is an order for
committal.
ORDER
On appeal from: Western Cape Division of the High Court, Cape Town
(Kubushi J, sitting as court of first instance):
1 The appeal is upheld, with no order as to costs.
2 The order of the Western Cape Division of the High Court, Cape Town,
is set aside and substituted with the following order:
‘1 The application for postponement is granted.
2 The respondent is to pay the wasted costs occasioned by the
postponement on the unopposed scale.’
3 The appellant is to file his answering affidavit in the application for
committal within 15 days of the date of this order , and the respondent may
file a replying affidavit within 10 days of receipt of the answering affidavit.
JUDGMENT
Nicholls JA (Molemela, Mothle and Meyer JJA and Olsen AJA
concurring)
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[1] This appeal arises out of a maintenance order made in the Western
Cape Division of the High Court, Cape Town (the high court), pursuant to a
longstanding and acrimonious matrimonial dispute. The central question is
whether the appellant should be committed to prison for three months for
contempt of court, as a result of his failure to make payment i n terms of the
maintenance order. Aligned to this, is whether the appellant was entitled to a
postponement to present his case before the high court made the order that
he be committed to prison.
[2] The appellant, who was the respondent in the high cour t, is a
practising advocate in the We stern Cape. The responde nt, the applicant in
the high court , is a Judge in the same division. To avoid any suggestion of
impropriety, judges from other div isions presided over matters concerning
the parties.
[3] Pursuant to divorce proceedings, on 29 July 2013 Samela J granted an
order against the appellant, which inter alia, provided that he pay a
contribution towards the maintenance of the minor children in the sum of
R6000 per month per child; all amounts owing to the Springfield Convent
School (the school); and all educational costs, including the costs of extra -
mural activities and uniforms at the school. The appellant did not appeal this
order.
[4] The appellant failed to make the payments as ordered. After making
numerous attempts, over a period of many years, to enforce compliance with
Samela J’s order, the respondent finally brought an urgent application for
payment of the sum of R138 413.90 . This was a llegedly the outstanding
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maintenance amount in terms of Samela J’s or der. The urgent application
was successful and on 4 December 2020 the high court (per Mudau J)
ordered the appellant to comply with the order of Samela J and that R138
413.90 be paid to the respondent by no later than 17h00 on Friday 18
December 2020. Further, if the appellan t failed to comply, the respondent
was granted leave to set the matter down on 48 hours’ notice for an order
that the appellant be declared in contempt of court, a warrant be issued for
his arrest and he be committed to imprisonment for a period to be
determined by the court.
[5] The appellant failed to make payment of the sum of R138 413.90, or
any part thereof, before 18 December 2020 . As provided for in Mudau J’s
order, the respondent launched an application that the appellant be held in
contempt of Samela J’s order and that a period of imprisonment be imposed
as a result of his wilful disregard of the court order.
[6] The application for committal was heard by Kubushi J in the high
court, on 2 March 2021. The high court was satisfied that the respondent had
made out a case for the relief that she sought and ordered that the appellant
be declared in contempt of Samela J’s order of 29 July 2013 and be
committed to a period of three months ’ imprisonment. An application for a
postponement brought by the appellant on the day of the hearing was
dismissed.
[7] The appellant applied for leave to appeal against the decision of the
high court dismissing his application for a postponement and for finding him
in contempt of court. In respect of the latter , his grounds of appeal were that
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he only owed R20 000 as the unpaid school fees were due to the school and
not the respondent who, at best, had a claim o f unjustified enrichment
against him. He repeated his stance that the COVID -19 pandemic had
‘profoundly diminished’ his financial situation. Leave to appeal was
dismissed by the court a quo but granted by this Court.
[8] In this Court , the respondent has elec ted to abide by the Court’s
decision. The thrust of th e appellant’s argument is that the high court erred
in refusing him a postponement in order to provide him with an opportunity
to file a further affidavit in response to the respondent’s supplementary
affidavit. It is therefore the refusal of the postponement that is the focus of
this appeal.
[9] In her supplementary founding affidavit to the application for
committal, the respondent set out details of the appellant ’s conduct after
Mudau J’s judgment and order on 4 December 2020. A few days later, on
8 December 2020 , the appellant’s attorneys wrote to the attorneys of the
respondent indicating that the appellant would not be in a position to pay
school fees given his ‘precarious financial circ umstances’. It was therefore
clear that he would not abide by the court order.
[10] This prompted the respondent to re-issue a writ of execution against
the appellant , in an attempt to attach a Range Rover SUV which was
registered in his name. The Sheriff atte nded the premises on 10 and 14
December 2020, and observed the said motor vehicle parked at the property.
However, the return of service included only a list of movables in the sum of
R19 000 which were the subject of an interpleader application. When the
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sheriff returned on 21 February 2021, there was a Mercedes Benz and a Mini
Cooper parked at the premises but the Range Rover was nowhere to be seen.
The appellant handed over an affidavi t stating that he had sold the Range
Rover and it had not been in his possession since 17 December 2020. He
refused to inform the sheriff to whom it had been sold or the whereabouts of
the vehicle. An eNatis inquiry , conducted on 22 February 2021 , revealed
that the appellant was still the registered owner.
[11] The respondent alleged that this was a patter n of behaviour that she
had previously borne the brunt of . After successfully obtaining an anti -
dissipation order against the appellant on 08 September 2015, the respondent
alleged that the appellant had sold an immoveable property which he held as
an investment , to a cousin , in an attempt to ensure that it would not be
placed in trust as ordered by the court.
[12] As regards the payment of school fees, o n 10 December 2020, the
appellant unilaterally g ave notice of termination to the children’s school
because of his precarious financial position which rendered him u nable to
pay school fees. He request ed the appellant to consider a more affordable
secondary school.
[13] The notice of set down for the committal of the appellant was served
on him on 24 February 2021 , to be heard on 2 March 2021. In his affidavit
requesting a postponement , the appellant stated that on 22 February 2021,
two days before receiving the notice of set down, he received a report from a
neurosurgeon at Kingsbury hospital that his sister had been diagnosed with
terminal 4 th stage lung and spinal cancer. This unexpected news of her
imminent death had a devastating effect on him.
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[14] Despite being an advocate practising mainly in criminal law, the
appellant stated that he was unable to secure the services of a legal team
before 1 March 2021. It is inexplicable why he was unable to secure the
services of a legal team before 1 March 2021. In any event , he had an
attorney throughout. It can safely be assumed that the appellant was not
oblivious to the consequences of failing to comply with a cour t order.
Requests to the respondent’s legal representatives for a postponement were
turned down, forcing the appellant to bring a substantive application for
postponement on the day of the hearing.
[15] Other than his sister’s illness, the appellant’s grounds for
postponement are as follows. Firstly, he states that a substantial portion of
the monies claimed are not due. As a result , the respondent has no locus
standi to bring this application which is an abuse of the legal process . The
appellant is only in arrears for a small amount and this was occasioned by
the adverse effects of COVID-19 on his practice. Thus, the quantum is in
dispute. Secondly, the application for his committal is based o n inadmissible
hearsay evidence and the appellant requires time to deal with what he refers
to as ‘spurious allegations ’. A further complaint is that the respondent’s
husband should have recused himself from the process rather than securing
judges from outside the province. Finally, the respondent seeks radical relief
which has been brought with indecent haste and has the effect of
trammelling his constitutional right to liberty.
[16] The high court criticised the appellant for bringing the application for
postponement on the day of the hearing , when he was aware as early as
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24 February 2021 that the respondent was going to oppose the application.
Moreover, he was aware that the proceedings could be b rought on 48 hours’
notice. The court did not engage with the reasons advanced for requesting
postponement but found that the appellant’s argument that the amount in
arrears was in dispute and much less than R138 413.90 did not assist him ,
especially as he was in arrears before the COVID-19 pandemic, which he
blamed for his inability to pay. As the full amount was not paid and the
appellant remained in contempt of court, the application for postponement
was dismissed on the basis that the grounds raised by the appellant did not
assist him in the main application.
[17] All South Africans have a duty to respect and abide by the law. As the
Constitutional Court stated in Secretary of the Judicial Commission of
Inquiry into Allegations of State Capture , Corruption and Fraud in the
Public Sector including Organs of State v Zuma and Others,1 courts ‘unlike
other arms of the State . . . rely solely on the trust and confidence of the
people to carry out their constitutionally mandated function ’2 which is to
uphold, protect and apply the law without fear or favour. 3 Disregard of court
orders is an attack on the very fabric of the rule of law.
[18] The attempt to evade payment of maintenance orders is particularly
egregious as it also undermines the b est interest of the child principle .4 If
court orders in respect of maintenance are habitually evaded with relative
1 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18; 2021 (9) BCLR 992
(CC); 2021 (5) SA 327 (CC).
2 Ibid para 1.
3 See also S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) para 17.
4 Section 28(2) of the Constitution provides that ‘[a] child’s best interests are of paramount importance in
every matter concerning the child.’
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impunity, not only is the justice system discredited but also the interests of
the child are not adequately protected. Courts are enjoined to be alive to
recalcitrant maintenance defaulters who use legal processes to side -step their
obligations towards their children.5
[19] The requirements for contempt of court are now trite. They are the
existence of a court order; the contemnor must have knowledge of the court
order; there must be non -compliance with the court order; and, the non -
compliance must have been wilful or male fi des. Once the first three
elements have been shown, wilfulness and male fides will be presumed and
the evidentiary burden switches to the contemnor.6
[20] It has been recognised by our courts that where a committal is
ordered, the standard of proof in civil c ontempt matters has to be the
criminal standard.7 In those circumstances, wilfulness and male fides have to
be shown beyond reasonable doubt. 8 Put differently , the contemnor has an
evidential burden to create a reasonable doubt as to whether his conduct was
wilful and male fide. There is a different standard of proof where no criminal
sanction is sought ; then , the standard of proof is that of a b alance of
probabilities. While all wilful disobedience of a court order made in civil
proceedings is a criminal offence, civil mechanisms that are designed to
5 Bannatyne v Bannatyne and Anot her [2002] ZACC 31; 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) para
32.
6 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA); Pheko and Others v
Ekurhuleni Metropolitan Municipality [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC);
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in
the Public Sector including Organs of State v Zuma and Other [2021] ZACC 18; 2021 (9) BCLR 992 (CC);
2021 (5) SA 327 (CC).
7 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC)
para 61.
8 Ibid para 62.
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induce compliance without resorting to committal , are competent when
proved on a balance of proba bilities.9 The hybrid nature of contempt
proceedings which result s in committal , combine civil and criminal
elements. But this does not mean that contemnors are not afforded the
substantive and procedural protections which apply to any individual facing
the loss of his freedom.
[21] It is in the light of the above that the refusal of the postponement must
be considered. Whether or not the request for postponement was merely a
delaying tactic, once there is the potential of an individual’s loss of liberty, it
was incumbent on the court to ensure that the appellant’s condu ct wa s
male fide and wilful beyond a reasonable doubt. Whether the failure to meet
his financial obligation s to the respondent was intentional, or as a result of
the deterioration of his financial circumstances, was not an issue that was
considered by the high court , despite the appellant having raised it in his
application for postponement . Nor was this aspect considered by Mudau J,
who left that question open and merely stated ‘[w]hether or not that
explanation is truthful is irrelevant to the first part of this application,
paragraphs 1 and 2 of the relief sought by the applicant remains
uncontested’. Paragraph 1 referred to the urgency of the matter , while in
paragraph 2, the respondent sought an order that the appellant comply with
Samela J ’s order of 29 July 2013 , by making payment of the sum of
R138 413.90, into the trust account of the respondent’s attorneys by no later
than 17h00 on 18 December 2 020. This means that whether the conduct of
the appellant was wilful and male fides beyond reasonable doubt has not
9 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 17; Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions
(Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) paras 64-67.
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been determined. Such an exercise must take place before there is an order
for his committal.
[22] The maintenance orders are for the benefit of the appellant’s minor
children, not his ex-wife, the respondent. While I am mindful of the fact that
the appellant was forced to approach this Court, thereby incurring costs, I
am equally mindful that the respondent did not oppose the appeal and
undertook to abide. I am therefore of the view that the circumstances are
such that there should be no costs order in this appeal.
[23] In the result I make the following order:
1 The appeal is upheld, with no order as to costs.
2 The order of the Western Cape Division of the High Court, Cape
Town,
is set aside and substituted with the following order:
‘1 The application for postponement is granted.
2 The respondent is to pay the wasted costs occasioned by the
postponement on the unopposed scale.’
3 The appellant is to file his answering affidavit in the application for
committal within 15 days of the date of this order, and the respondent may
file a replying affidavit within 10 days of receipt of the answering affidavit.
________________________
C H NICHOLLS
JUDGE OF APPEAL
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Appearances
For appellant: J van der Schyff
Instructed by: NSW Attorneys, Cape Town
Phatshoane Henney Attorneys, Bloemfontein