SAFLII Note: Certain personal/private det ails 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)
JUDGMENT
Not Reportable
Case No: 2026-190344
In the matter between:
V[...] P[...] Applicant
and
D[...] P[...] Respondent
Neutral citation: P[...] v P[...] (Case No 2026-190344) [202 6] ZAWCHC __
(10/09/2026)
Coram: DAVIS J
Heard: 14 August 2026; 4 September 2026
Delivered: 10 September 2026
Summary: Contempt of court – failure to comply with Rule 43 order for payment
of interim maintenance –respondent declining to give oral evidence in order to
discharge the evidentiary burden resting on him and electing to stand or fall by his
evidence on affidavit – respondent’s explanation for default so far-fetched and
untenable as to warrant rejection on the papers – respondent failing to discharge
evidentiary burden to show that his default was not wilful and mala fide –
contempt of court established on the papers – respondent held in contempt and
sanctioned to periodic imprisonment suspended on condition that he complies with
conditions aimed at enforcement of the Rule 43 order – attorney and own client
costs awarded against the respondent as a mark of Court’s severe condemnation of
his conduct and in order to grant the applicant the fullest possible indemnity.
ORDER
1. It is declared that the respondent is in contempt of the order of this Court
granted on 28 May 2026 under case number 2026-059919 by Ms Justice
Rararala (‘the Rule 43 order’).
2. The respondent is hereby committed to periodic imprisonment every
weekend from 18h00 on a Friday to 08h00 on a Monday for a period of six
months, commencing on the first Friday following the granting of this order,
subject to paragraph 3 below.
3. The order for the respondent’s committal in paragraph 2 above shall be
suspended until such time as a final decree of divorce is granted in the action
pending under case number 6941/2024, on condition that the respondent
complies with the provisions of paragraphs 3.1 and 3.2 below, failing which
the applicant may approach this Court on the same papers, duly amplified,
for an order directing the respondent’s committal in terms of paragraph 2
above:
3.1. The respondent shall, within fourteen (14) days of the granting of this
order, remedy his current default of the Rule 43 order by either:
3.1.1. paying the balance of the arrears and interest owing in respect
of the Standard Bank mortgage bond registered over the
applicant’s and the children’s home at [...] B[...] Avenue,
Newlands, Cape Town (‘the B[...] bond’) as at date hereof; or
3.1.2. entering into a written payment arrangement with Standard
Bank, to the satisfaction of Standard Bank, to settle the balance
of the arrears and/or interest currently owing in respect of the
B[...] bond,
and providing proof of such payment or written payment arrangement
to the applicant’s attorneys within the said 14-day period.
3.2. The respondent shall, for the duration of the Rule 43 order, refrain
from breaching any of the terms of the Rule 43 order, including, but
not limited to, failing to make full and timeous payment of the
monthly cash maintenance for the applicant and the minor children, as
well as the monthly mortgage bond instalments in respect of the B[...]
bond and any amounts due in terms of any payment arrangement
entered into with Standard Bank in respect thereof.
4. The respondent shall be liable for the costs of this application, including the
postponement application and hearing on 14 August 2026, which shall be
paid on the scale as between attorney and own client, such costs to include
the cost of employing senior counsel, and the costs of perusing and
analysing documentation referred to in the affidavits and required to collate
the annexures to the application.
JUDGMENT
DAVIS, J:
Introduction
[1] These are contempt of court proceedings. The applicant and the respondent
are in the throes of a divorce. On 28 May 2026 Justice Rararala granted an
order in favour of the applicant for payment of interim maintenance pending
the divorce in terms of Rule 43 of the Uniform Rules of Court (‘the Rule 43
order’).
[2] In terms of the Rule 43 order, the respondent was directed, inter alia, to pay
a cash maintenance amount of R 31,500.00 for the applicant and the minor
children on the 1 st day of each and every month, with effect from 1 January
2026; to reinstate and maintain medical aid cover for the applicant and the
children and to pay all their medical expenses not covered by the scheme, to
pay the children’s educational costs (including school fees and extra -mural
activities); to pay certain expenses in respect of the property in which the
applicant and the children reside (‘the children’s home’), including the
monthly mortgage bond instalment as well as any arrears and interest owing
to Standard Bank in respect of the children’s home.
[3] The respondent failed to comply with the Rule 43 order, prompting the
applicant to bring an urgent application for an order declaring the respondent
in contempt of court and sentencing him to imprisonment every weekend for
a period of 6 months, which sentence is to be suspended until the granting
of a final decree of divorce, on condition that the respondent complies with
all the provisions of the Rule 43 order.
[4] The respondent admits that the Rule 43 order was validly granted, that he
was aware of it, and that he failed fully and timeously to comply with a
number of its provisions. He disputes, however, that his default was wilful
and mala fide.
[5] In order to find that the respondent is in contempt of the Rule 43 order, I
must be satisfied, beyond a reasonable doubt, that his default was wilful and
mala fide . Because the respondent has admitted the Rule 43 order, notice
thereof and fail ure fully to comply therewith, the respondent bears an
evidentiary burden in relation to wilfulness and mala fides. It is incumbent
on him to adduce evidence which serves to establish a reasonable doubt as to
whether his non -compliance was wilful and mala fide. If he fails to do so,
contempt of court will have been established beyond a reasonable doubt.
(See Fakie NO v CCII Systems (Pty) Ltd (‘Fakie’) 2006 (4) SA 326 (SCA)
para 42 (d)
[6] The nature of the evidence required to discharge the respondent’s
evidentiary burden in contempt cases was dealt with in D W v J L K
(12604/2015) [2026] ZAWCHC 322, where it was stated that:
‘[24] Bearing in mind the evidential burden which rests on a respondent in contempt of
court proceedings, where the alleged contempt relates to a failure to pay in terms
of a maintenance order, it is vital that the respondent put up detailed reasons for
the default, which should include a full and frank disclosure of his or her financial
position, comprising a complete disclosure of all assets and liabilities as well as
all income and expenditure during the entire period of default. Vague, bald and
sketchy allegations will not suffice to persuade a court that non-compliance with a
court order was in fact impossible or was justified by necessity, or that the
respondent held a genuine belief that non -compliance was justified or proper in
the circumstances.
[25] The relevant facts with regard to wilfulness and mala fides will inevitably lie
within the unique knowledge of the respondent in contempt proceedings, and will
therefore be subject to close scrutiny. For that reason, too, it is imperative that a
respondent in contempt of court proceedings should in his or her answering
affidavit engage fully with the issues of wilfulness and mala fides and deal with
the relevant facts in a spirit of candour. If the respondent fails to do so, and
contents him or herself with vague allegations and a version and figures which do
not add up, the respondent will fail to discharge the evidential burden to which
rests on him or her to advance facts which raise a reasonable doubt as to whether
the non-compliance with the court order was wilful and mala fide.
[7] In short, a respondent in contempt proceedings who seeks to discharge the
evidentiary burden on the affidavits must take care to deal fully and frankly
with all relevant aspects, including his state of mind – what he believed at
the material time. A respondent who contents himself with bald and vague
averments, or who omits to disclose facts which are obviously relevant, runs
the risk that he will fail to discharge the evidentiary burden. And a
respondent who makes false statements, or puts up a version which is
obviously far -fetched and untenable, runs the risk that his version will be
rejected outright on the papers in accordance with the well -known
qualification to the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A) at 634 – 5.
[8] At the commencement of the hearing on 4 September 2026, I asked counsel
for the respondent whether his client wished to avail himself of the
opportunity to give oral evidence, and submit to cross -examination, with a
view to discharging the evidentiary burden resting on him. I likewise asked
counsel for the applicant whether the applicant wished to have an
opportunity to cross -examine the respondent. The matter stood down while
counsel took instruction, both parties being present at court.
[9] The respondent elected not to give oral evidence, and to stand or fall by the
contents of the affidavits. The applicant, while she would have welcomed an
opportunity to cross -examine the respondent, declined to have the matter
postponed for oral evidence on account of the additional costs involved.
[10] The matter therefore turns on whether or not the respondent’s explanation
for his failure to comply with the Rule 43 order is credible, and whether it
suffices to rebut the inference that his default was wilful and mala fide. With
that in mind, I turn to examine the respondent’s explanation for his failure to
comply with various provisions in the Rule 43 order.
The respondent allegedly misunderstood his obligations
[11] The respondent denies that his failures fully to comply with the Rule 43
were wilful or mala fide. He alleges that, ‘[m]y failures arose from my own
misguided understanding of my obligations, the advice and assistance which
I received at the time, and my failure properly to appreciate the effect of the
Order. I accept responsibility for those failures but deny that I consciously
elected to defy this Honourable Court.’
[12] The respondent would have this Court believe that he was under the
erroneous impression that the Rule 43 order did not apply if he could not
afford to comply with it , in other words, that his inability to afford a
particular obligation relieved him of the duty to comply with it.
[13] It is difficult to believe that the respondent could have received such advice
from an attorney. It is telling that the respondent has not disclosed the nature
of the advice which he allegedly received from his former attorney (who he
has seen fit to ‘ throw under the bus ’ in his answering affidavit, repeatedly
blaming the attorney, who is not before the court to defend himself, for his
own shortcomings.)
[14] Nor has the respondent explained why and how he could have failed
properly to appreciate the effect of the Rule 43 order, which is clear and
unambiguous in its terms . It must be born in mind that the respondent
opposed the Rule 43 application, claiming that he could not afford to pay
what the applicant was claiming. He was legally represented by an attorney
and counsel . He was made aware of the Rule 43 order, and of Justice
Rararala’s reasons for granting the order. The learned Judge found that the
respondent had deliberately exaggerated his expenses and that he did in fact
have financial capacity to afford the relief sought and ultimately ordered.
[15] The respondent could therefore have been under no illusion that Justice
Rararala had determined that he could in fact afford to pay the interim
maintenance which he was ordered to pay in terms of the Rule 43 order. In
the circumstances, he could not have held a genuine and honest belief that he
was excused from complying with the obligations in the Rule 43 order if he
could not afford to pay them, since the Court had determined that he could in
fact afford to pay them.
[16] Furthermore, the respondent could not have held an honest belief that he
could not afford to pay the obligations imposed in the Rule 43 order when
one considers that, while in default of the Rule 43 order, he saw fit to travel
to Greece for three weeks in July with his girlfriend and eldest son from a
previous marriage. The applicant estimated the cost of the trip at
approximately R 150,000.00. The respondent baldly denied that the trip cost
R 150,000.00, but he did not see fit to disclose what he did spend . In her
replying affidavit, the applicant demonstrates, with reference to the
applicant’s bank statements obtained under subpoena, that the respondent
spent at least R 60,000.00 in Greece on pool bars, restaurants and the like,
excluding accommodation and flights. The applicant’s estimate of
R 150,000.00 for the trip is probably not far off the mark. But whatever the
cost of the Greece trip, the point is that the respondent could not have
genuinely believed that he could not afford to pay in terms of the Rule 43
order at the same time that he was splashing out on an overseas holiday.
[17] In a similar vein, the applicant’s analysis of the respondent’s bank
statements shows that, at time when he was failing to pay the full cash
maintenance amount of R 31,500.00 due on the first day of the month, and
paying lesser amounts in dribs and drabs as and when he saw fit , the
respondent was at the same time spending money on restaurants and deli
foods. Such conduct speaks to a deliberate choice to prioritise his own
lifestyle over his court ordered maintenance obligations.
[18] It was contended on behalf of the respondent that, in evaluating the bona
fides of the respondent’s stated belief that he lacked the means to comply
with the Rule 43 order, I should bear in mind that he did not regard funds
emanating from his restaurant business, conducted in a close corporation, as
freely disposable income. He regarded them as ‘earmarked’ for the expenses
and obligations of the close corporation.
[19] There are two answers to this argument. The first is that the respondent
cannot get away from the fact that he chose to spend money on holiday
travel in July, including a three week trip to Greece, while simultaneously
failing in material respects to comply with the Rule 43 order. It is
inconceivable that he could genuinely have believed that he lacked the
means to comply with the Rule 43 order when he was lavishing himself with
luxury travel.
[20] The second answer is that the respondents, as the sole member of the close
corporation, had it within his power to determine how and when surplus
funds generated by the business were spent. The evidence shows that the
respondent, rightly or wrongly, did not separate his personal financial affairs
from th ose of the close corporation. He cannot now resort to a strict
separation when it suits him. In order for the respondent to show that he
could not afford to comply with the Rule 43 order, he would have had to
adduce evidence to show that all the surplus funds allegedly belonging to the
close corporation were immediately required to meet obligations or expenses
of the close corporation, and that there were in fact no funds available to
distribute to the respondent to meet his obligations under the Rule 43 order.
The respondent did not come close to putting up such evidence.
The children’s school fees
[21] The respondent was ordered in the Rule 43 order to pay all the children’s
educational costs. On 15 June 2022 the respondent’s former attorney
conveyed to the applicant’s attorney, no doubt on instructions from the
respondent, that the children’s school fees were up to date. This was not
correct, and the respondent could not have believed that this was the case, as
he had not made any payments in respect of school fees since January and
February 2026. The latest school statements of account annexed to the
applicant’s founding affidavit showed that the school fees were in arrears to
the tune of R 63,169.00 in respect of H[...] and R 26,920.00 in respect of
S[...].
[22] The respondent admits that the school fees were in arrears, owing to a
‘misunderstanding’. He alleges that, ‘I misunderstood the manner in which
the schools rendered their accounts and believed that the balance reflected
amounts which would become payable later rather than existing arrears.
That understanding was wrong. On 13 August 2026 I settled the outstanding
school fee in full.’
[23] I have had regard to the school accounts annexed to the applicant’s founding
affidavit. There is nothing remotely confusing about the statements. It is
abundantly clear that the balances represent arrears which are immediately
due and payable. It is beyond belief that the respondent, a seasoned
businessman who runs a successful restaurant, is unable to understand a
simple statement of account for school fees.
[24] In my view the respondent’s alleged misunderstanding of the school
accounts is patently untenable: his version in this regard is risible, and may
safely be rejected out of hand.
Failure to reinstate the applicant’s medical aid cover
[25] The respondent was ordered in the Rule 43 order to reinstate the applicant’s
medical aid cover, which he had terminated. He alleges in this regard that,
‘[i]n respect of the applicant’s medical aid, I acted on my understanding
based upon the advice I had received, that because we are married out of
community of property subject to the accrual system and the applicant
earned an independent income, I was not responsible for her medical
expenses. I now understand that whatever my view may have been, the Rule
43 order expressly obliged me to maintain cover. I have since arranged
through my broker … for a Discovery Health policy for the applicant and, as
far as I am aware, the application is being processed.’
[26] The respondent’s historic understanding is irrelevant: what is relevant is
what he thought when the Rule 43 order was granted, and this he does not
disclose. H e has also neglected to disclose that he in fact tendered in the
Rule 43 application to reinstate the applicant’s medical aid cover. He stated
as follows in this regard in his answering affidavit in the Rule 43
application:
‘81. I was not able to afford to pay the medical aid premium for the applicant and I
did advise the broker to change the debit order from my name to the applicant’s
name.
86. As can be seen from my tender below, it seems that I have no choice but to
reinstate the applicant as a dependant on my medical aid.’
[27] One gathers from these passages that the respondent was advised to tender to
reinstate the applicant’s medical aid cover. I was informed by Ms Buikman
that the provision in the Rule 43 order obliging the respondent to reinstate
the applicant’s medical aid cover was based on the respondent’s tender.
[28] In all the circumstances the inference is ineluctable that, at the time the Rule
43 order was granted, the respondent was well aware that he was obliged to
reinstate the applicant’s medical aid cover, and that he simply failed to do
so. He only bestirred himself once this application was launched, and he was
faced with the threat of sanction for contempt of court.
The mortgage bond arrears in respect of the children’s home
[29] The respondent was ordered in the Rule 43 order to pay all arrears and
interest owing to Standard Bank in respect of the mortgage bond over the
children’s home.
[30] The bank statements annexed to the applicant’s founding affidavit
demonstrate that, after the granting of the Rule 43 order, the respondent
made no payment whatsoever into the bond over the children’s home until
he was ordered to pay R 100,00.00 by me on 14 August 2026. During the
same period, however, he paid R 71,800.00 into the bond over the Sea Point
property in which the respondent resides. Indeed, the respondent admits that
he made payments into the Sea Point bond in excess of what was required,
while failing to make any payments in respect of the bond over the
children’s home.
[31] The respondent’s explanation in this regard is as follows:
‘27. I also admit that the B[...] bond is in arrears and that I ceased making payments
towards it while continuing to service the bond over the Sea Point property where
I reside. The B[...] bond had fallen into arrears in about September 2023. Around
that time the applicant withdrew approximately R 880 000.00 from the access
bond, with the result that the minimum monthly instalment increased by
approximately R 20 000.00 to approximately R 51 000.00.
28. My understanding at the time was that because I resided at the Sea Point property
and the applicant resided at the B[...], and because she had caused the B[...]
instalment to increase materially, she was responsible for that property while I
was responsible for the property in which I resided. I now appreciate that this
understanding did not affect either my liability as co -owner or, more importantly,
my obligations under the Rule 43 Order.’
[32] Again, the respondent’s historic understanding of the position prior to the
granting of the Rule 43 order is irrelevant. What is important is what his
mindset was, and what he did, after the granting of the Rule 43 order, which
directed him to pay all arrears and interest owing in respect of the B[...]
bond. This was an obligation clearly and unambiguously imposed in the
Rule 43 order, and he could have been under no misapprehension in this
regard. It is inconceivable that the respondent could still have genuinely
believed, after the Rule 43 order was granted, that the applicant was
responsible for the B[...] property. The inference is inescapable that he was
well aware of his obligation, but that he chose not to comply because he felt
aggrieved that the applicant had caused the arrears. And his failure to pay
any amount into the B[...] bond while paying excess amounts into the Sea
Point bond speaks to wilful defiance of the Rule 43 order.
Conclusion regarding contempt
[33] In my view the respondent has failed to put up credible evidence for his
failure to comply with the Rule 43 order which serves to rebut the
presumption of wilfulness and mala fides. His version is so far -fetched and
untenable that it falls to be rejected out of hand. He has signally failed to
discharge the evidentiary burden resting on him. In the circumstances,
contempt of court has been established beyond a reasonable doubt.
An appropriate sanction
[34] In order to curtail these proceedings, it was agreed when the application was
postponed on 14 August 2026, that the respondent would deal in his
answering affidavits both with the merits and a possible sanction for
contempt.
[35] I take into account the fact that the respondent has taken steps to remedy his
default since this application was instituted. He has paid arrear cash
maintenance, children’s arrear school fees and arrear rates and taxes on the
B[...] property; he has taken steps to arrange medical aid cover for the
applicant; he has settled the applicant’s tax liability to SARS, and he has
paid R 100,000.00 towards the arrears owing on the B[...] bond.
[36] As commendable as it is that the respondent has taken these steps, one can
be under no illusion that it is the threat of this application which has
prompted the respondent to comply. But for this application, all indications
are that he would have continued with what strikes me as a clear pattern of
deliberate default and resort to any and every excuse to justify non -payment
of his court-ordered obligations.
[37] The respondent urged me not to impose a sentence of imprisonment, even if
suspended on condition that he complies with the Rule 43 order. Mr Barlow
argued that, if there were to be some or other misunderstanding or if the
respondent were to slip up as it were, he would be liable to be imprisoned.
The short answer is that the respondent’s obligations under the Rule 43 order
are clear and unambiguous, and he must take care not to ‘slip up’. He has it
within his control to avoid breaching the Rule 43 order. And if there were to
be a genuine problem which prevented compliance, that could be raised with
the Court before the suspension is revoked and the sanction is put into effect.
[38] It was urged on me that a sentence of imprisonment should not be imposed
on the respondent, even if suspended, as, if he were to be sent to prison, it
would be detrimental for the minor children and for their relationship with
their father. Again, the short answer is that the respondent has it within his
power to make sure that the sentence of imprisonment is not put into effect:
all he has to do is use his best endeavours in good faith to comply fully with
the Rule 43 order.
[39] Finally, it was contended on behalf of the respondent that sending him to
prison on weekends would be detrimental for his restaurant business. But the
fact of the matter is that the respondent saw fit to take a vacation from his
business for a whole month in July, when he went on holiday, first to
Umhlanga, then to Greece. The respondent clearly has employees who work
in the restaurant. His manifest insouciance regarding his absence from the
business in July gives the lie to any suggestion that the business would not
be able to function if he were absent for weekends for six months.
[40] All things considered, and having regard to the flagrant nature of the
respondent’s contempt, which is aggravated by the mendacious version
which he has put up in order to try and excuse his conduct, I am inclined to
impose a sanction of periodic imprisonment on weekends for a period of six
months, to be suspended pending the granting of a final decree of divorce on
condition that the respondent complies with certain provisions aimed at
securing compliance with the Rule 43 order.
[41] I consider it fair and just to impose such a sanction, both to vindicate the
dignity and authority of this Court which has been trampled on by the
respondent, and also to ensure compliance with the Rule 43 order for the
sake of the applicant and the minor children . The roof over their heads has
been put at risk by the respondent, who stands idly by while the bank is
suing to foreclose on the B[...] property. The applicant has had to terminate
her daughter’s music and horse -riding extra-mural activities, as well as her
occupational therapy, because the respondent refused to pay these expenses
as he was obliged to do in terms of the Rule 43 order . This while the
respondent spends money on overseas travel and a luxurious motor vehicle
which, on his own, admission, was more expensive than necessary. If the
respondent cannot summon the moral conviction to do the right thing by his
minor children, the Court must step in and force him to do the right thing in
order to protect and promote the best interest of the minor children.
Costs
[42] Ms Buikman sought a costs order in favour of the applicant on the scale of
attorney and own client, which she submitted was warranted in the particular
circumstances of this case.
[43] In Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) the Appellate Division
upheld such a costs order by the court a quo. Eksteen JA explained that an
order for payment of attorney and own client costs must be seen as an
attempt by the court to go further than the usual order of attorney and client
costs, in order to ensure that the successful party is indemnified against all
reasonable costs of the litigation. Taxation will then proceed on a more
liberal scale, without sanctioning excessive or unreasonable costs. This is an
exceptional costs order, which should not be made without sound reasons.
Each case will depend on the particular circumstances, and the court had a
discretion in this regard, which must be exercised judicially ( Sentrachem
(supra) at 22 B – D). The court a quo had awarded costs on the attorney and
own client scale against the losing party as a mark of disapproval at the
manner in which the latter had conducted its case, which included threats
and intimidation and a cynical persistence with defences which it knew were
without foundation. The appeal court saw no reason to interfere with the
costs order on appeal.
[44] In Vermaak v MEC for Local Government and Traditional Affairs,
Northwest Province and Others [2017] ZALAC 2 (10 January 2017) , the
Labour Appeal Court observed that:
‘[13] …The scale of attorney and own client is the highest scale possible that a litigant
can be ordered to pay. It is an extraordinary one which should be reserved for
cases where there is clearly and indubitably vexatious and reprehensible conduct
on the part of a litigant. The nature and reach of such an order has been described
as “exceptional, very punitive and as indicative of extreme opprobrium.” The
learned authors of Erasmus Superior Court Practice list various circumstances in
which the courts have, over the years, awarded costs on an attorney and own
client scale. One of the instances is where a party’s conduct has been found to be
‘unconscionable, appalling and disgraceful’. See also Sentrachem v Prinsloo
where it was reiterated that an award of attorney and own client costs had to be
seen as an attempt by the Court to go one step further than an ordinary order of
costs between attorney and client so as to ensure that the successful party was
indemnified with regard to all reasonable costs of litigation, and that it was an
extraordinary order which could not be made without good reason.’
[45] In Van der Walt v Murray NO and Another (2554/2019) [2019] ZAFSHC
169 (10 September 2019), Naidoo J ordered an attorney to pay costs de
bonis propriis on the attorney and own client scale in circumstances where
the conduct of the attorney had been negligent, unreasonable and lacking in
diligence, falling short of the standard expected of an attorney.
[46] In Lion v Ram NO and Others (2025/240674) [2026] ZALCJHB 127 (24
April 2026), Kroon AJ granted costs on the attorney and own client scale
against the losing party in circumstances where the conduct of the litigation
amounted to an abuse of court process which followed an earlier abuse of
process which had attracted a costs order on the lesser attorney and client
scale.
[47] In my view, a punitive costs order on the attorney and own client scale is
indeed warranted in the particular circumstances of this case. I say that for
the following reasons.
[48] Firstly, the respondent has flagrantly defied the Rule 43 order. He sought
reasons for the order, clearly intending to challenge it, but did not persist
---
with any challenge to the order. Instead, he simply ignored it because he
disagreed with the order.
[49] Secondly, to compound matters, the respondent has lied to this court in an
attempt to avoid responsibility for his defiance of the Rule 43 order. His
risible version that he ‘misunderstood’ his obligations is an insult to the
intelligence of this court.
[50] Thirdly, not only did the respondent lie to the court in his answering
affidavit in this application, but he has demonstrated a pattern of
concealment and mendacity in his conduct of the divorce litigation. It was
manifest in his failure to discovery properly and in his treatment of his
finances in the Rule 43 application . The patently false version which he put
up in these contempt proceedings is simply more of the same . It is
disturbing that the respondent sought to blame his former attorney for his
failure to discover certain bank accounts, alleging that he relied on the
attorney to advise him what to disclose . The attempt to hide behind the
former attorney is cowardly: it shows that the respondent is not willing and
able to take responsibility for his own actions. It also does not avail the
respondent, for he signed the discovery affidavits omitting details of certain
bank accounts, and he also signed an affidavit confirming the applicant’s
description of his assets and liabilities, which he knew very well did not
include the funds in the bank accounts which he had failed to disclose.
[51] For all these reasons, I consider that the respondent’s conduct has been
unconscionable, appalling and disgraceful , and that a punitive order on the
attorney and own client scale is called for to mark the Court’s opprobrium.
[52] Finally, I consider that such an order is necessary and appropriate in order to
afford the applicant the fullest indemnity possible in respect of the costs of
this application. In Bannatyne v Bannatyne and Another 2003 (2) SA 363
(CC) the Constitutional Court stated (at paragraph 27) that, ‘[t]he judiciary
must endeavour to secure for vulnerable children and disempowered women
their small but life -sustaining legal entitlements. If court orders are
habitually evaded and defied with relative impunity, the justice system is
discredited and the constitutional promise of human dignity and equality is
seriously compromised for those most dependent on the law.’
[53] The respondent’s defiance of the Rule 43 order has forced the applicant to
incur legal costs in bringing this application, which would have been
unnecessary if the respondent had complied with the Rule 43 order as he
ought to have done. It is inevitable that, if the applicant is saddled with legal
bills, that will take away from financial resources which would otherwise be
available to the applicant and the minor children for their quality of life. The
very purpose of a maintenance order is undermined if the beneficiary has to
incur legal costs in enforcing the order. I therefore consider it important that
the financial position of the applicant and the minor children should not be
compromised as a result of legal costs which the applicant had been driven
to incur by virtue of the respondent’s delinquent conduct. In order to secure
the life-sustaining legal entitlements of the applicant and the minor children,
as courts are enjoined to do in Bannatyne, it is necessary to ensure as far as
possible that the applicant is not out of pocket in regard to all reasonable
legal costs necessarily incurred to enforce the respondent’s maintenance
obligations under the Rule 43 order. For that reason, too, costs on the
attorney and own client scale are warranted in my view.
[54] For the benefit of the Taxing Master , I record that, in my view , the
applicant’s employment of Senior Counsel was warranted, and , had I
awarded party and party costs, I would have awarded the cost of counsel on
Scale C.
Conclusion
[55] For all the reasons set out above, I make an order in the following terms:
1. It is declared that the respondent is in contempt of the order of this
Court granted on 28 May 2026 under case number 2026-059919 by
Ms Justice Rararala (‘the Rule 43 order’).
2. The respondent is hereby committed to periodic imprisonment every
weekend from 18h00 on a Friday to 08h00 on a Monday for a period
of six months, commencing on the first Friday following the granting
of this order, subject to paragraph 3 below.
3. The order for the respondent’s committal in paragraph 2 above shall
be suspended until such time as a final decree of divorce is granted in
the action pending under case number 6941/2024, on condition that
the respondent complies with the provisions of paragraphs 3.1 and 3.2
below, failing which the applicant may approach this Court on the
same papers, duly amplified, for an order directing the respondent’s
committal in terms of paragraph 2 above:
3.1. The respondent shall, within fourteen (14) days of the granting
of this order, remedy his current default of the Rule 43 order by
either:
3.1.1. paying the balance of the arrears and interest owing in
respect of the Standard Bank mortgage bond registered
over the applicant’s and the children’s home at [...] B[...]
Avenue, Newlands, Cape Town (‘the B[...] bond’) as at
date hereof; or
3.1.2. entering into a written payment arrangement with
Standard Bank, to the satisfaction of Standard Bank, to
settle the balance of the arrears and/or interest currently
owing in respect of the B[...] bond,
and providing proof of such payment or written payment
arrangement to the applicant’s attorneys within the said 14 -day
period.
3.2. The respondent shall, for the duration of the Rule 43 order,
refrain from breaching any of the terms of the Rule 43 order,
including, but not limited to, failing to make full and timeous
payment of the monthly cash maintenance for the applicant and
the minor children, as well as the monthly mortgage bond
instalments in respect of the B[...] bond and any amounts due in
terms of any payment arrangement entered into with Standard
Bank in respect thereof.
4. The respondent shall be liable for the costs of this application,
including the postponement application and hearing on 14 August
2026, which shall be paid on the scale as between attorney and own
client, such costs to include the cost of employing senior counsel, and
the costs of perusing and analysing documentation referred to in the
affidavits and required to collate the annexures to the application.
_____________________________
DIANE DAVIS
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Adv L Buikman SC
Instructed by Catto Neethling Wiid Attorneys
For the respondent: Adv J E Barlow
Instructed by Kassen & Associates