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)
Reportable
Case No.: 2026-047264
In the matter between:
S[...] L[...] Applicant
and
A[...] C[...] First Respondent
CA CELLULAR HOLDINGS CC Second Respondent
Coram: Francis J
Heard: 4 August 2026
Delivered: 17 September 2026
ORDER
1. The rule nisi granted on 6 March 2026 is confirmed to the extent set out below.
2. The first respondent is declared to be in contempt of paragraph 1.4 of the order
granted by Allie J on 31 May 2021 under case number 5440/2021.
3. The first respondent is committed to imprisonment for a period of 30 (thirty)
days, which committal is suspended in its entirety for a period of two years from
the date of this order, on condition that during the period of suspension the first
respondent:
3.1 makes the Mercedes -Benz motor vehicle with registration number C[...]
available for the use of the applicant and the minor children, as paragraph 1.4 of
the said order of Allie J requires, for so long as that paragraph subsists; and
3.2 does not breach any provision of paragraph 4 below.
4. The first and second respondents are interdicted and restrained from:
4.1 taking any step to dispossess the applicant of the Mercedes -Benz motor vehicle
with registration number C[...] presently in her possession, except as authorised
by this Court;
4.2 contacting the applicant, save through her attorneys of record and save, in the
case of the first respondent, for communications reasonably necessary
concerning the minor children;
4.3 harassing, threatening or intimidating the applicant; and
4.4 enlisting or instructing any third party to engage in any of the conduct set out in
paragraphs 4.1 to 4.3 above.
5. Paragraph 4.1 above, and paragraph 4.4 above in so far as it relates to the
conduct described in paragraph 4.1, shall operate for so long as paragraph 1.4 of
the said order of Allie J subsists, and shall lapse upon that paragraph being
discharged, varied to relieve the first respondent of the obligation it imposes, or
otherwise ceasing to have effect. Paragraphs 4.2 and 4.3 above, and paragraph
4.4 above in so far as it relates to the conduct described in paragraphs 4.2 and
4.3, are not so limited.
6. The committal suspended in paragraph 3 above shall not be put into effect
otherwise than upon application to this Court, on notice to the first respondent,
and upon proof beyond reasonable doubt of a breach of a condition of
suspension.
7. The first and second respondents are to pay the costs of the application,
including the costs reserved on 6 March 2026 but excluding the costs of the
further notes delivered after the hearing, on the scale as between attorney and
client, jointly and severally, the one paying the other to be absolved.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
FRANCIS, J:
Introduction
[1] This case returns to the Court on the date set for the rule nisi granted on 6
March 2026 by Adhikari AJ. The rule required the respondents to explain why the
first respondent should not be found in contempt of this Court's order and
sentenced accordingly. It also required the respondents to explain why they should
not be interdicted from trying to dispossess the applicant of a motor vehicle, from
contacting or harassing her, or from getting others to do so. The applicant now
seeks confirmation of the rule.
[2] The first respondent submitted an affidavit that addressed only urgency and did
not respond to the merits, despite being ordered twice to do so. He did not attend
the hearing. Mr Parkar, the respondents ’ attorney, represented both respondents,
while Mr van Aswegen appeared for the applicant.
[3] The applicant and the first respondent are married and are currently engaged in
protracted divorce proceedings before this Division. The second respondent is a
close corporation, and the first respondent is its sole member. The vehicle central
to this application is registered in the name of the second respondent.
Background
[4] On 31 May 2021, in the divorce action under case number 5440/2021, Allie J
made an order pursuant to Uniform Rule 43. Paragraph 1.4 required the first
respondent, as part of his maintenance obligations, to support the applicant and the
two minor children while the action was pending by
"continuing to make available for their use, the Mercedes -Benz Coupe’ motor
vehicle currently driven by the applicant..."
[5] The Mercedes -Benz vehicle with registration number C[...] (‘the Mercedes -
Benz’) is registered in the name of the second respondent , which is owned and
controlled by the first respondent as its sole member.
[6] On 1 February 2026, the first respondent crashed the car he uses in Cape Town
while exercising contact with the children. The next day, his lawyers wrote to the
applicant's lawyers, s tating that since the applicant had bought her own car, the
reason for letting her use the Mercedes -Benz no longer applied, and he wanted it
back. They said a towing company would collect the car and keys at 16h30. The
applicant's lawyers acknowledged receipt of the letter the next day but said nothing
else. The car was never collected.
[7] The founding affidavit did not include that letter. It reached the Court through
the respondents’ affidavit on urgency.
[8] On 20 February 2026, a man named Yusuf Williams stopped the applicant as
she was leaving to fetch her children from school. He told her he had been sent to
collect the vehicle. He telephoned her attorney, described himself as an
independent tracer, said he was acting on instructions from the first respondent's
attorney, and said the vehicle had been repossessed. Later that day, at the
Kensington police station, he said the applicant was entitled to use the vehicle only
to transport the children but that it was being used by the applicant’s alleged
boyfriend.
[9] On 24 February, Williams returned with two other men. They parked across the
applicant's driveway, preventing her from leaving to fetch her children. They
demanded the Mercedes-Benz, refused to go, and swore at her and threatened her.
They said they would fetch a locksmith, take the vehicle, and wait until she gave
in. The applicant's attorneys sent Ms Wiehman, a candidate attorney, to collect the
children from school and take them to the applicant's sister who lived next door to
the applicant . Ms Wiehman confronted Williams. He showed her the vehicle's
registration papers, and she advised them of the Rule 43 order. The men left. They
returned the next morning and repeated the demand.
[10] The first respondent has not denied being involved. When his son asked him
on WhatsApp why he was trying to take the car, he answered that the car was his.
In a letter dated 1 March 2026, his attorneys said he had authorised someone to
collect the vehicle for the second respondent, and that “this is where the instruction
started and ended ”. Mr Parkar confirmed in court that his client gave the
instruction to collect the vehicle.
[11] This is not the first time the first respondent has disobeyed the rule 43 order.
Nuku J found him in contempt on 25 October 2024, and van Zyl AJ did so again
on 17 January 2025. Both findings are on appeal. Nuku J refused leave to appeal,
and so did the Supreme Court of Appeal. On 31 October 2025, the President of that
Court referred the application for leave to appeal for reconsideration and oral
argument. The appeal against van Zyl AJ's order is still pending. Both orders are
therefore suspended for the time being. 1 None of this affects the rule 43 order
itself, which remains in force.
[12] In the divorce action, Davis AJ struck out the first respondent's defence on 4
December 2025, finding that he had deliberately delayed matters and abused the
court process. That decision has not been appealed. The court has made numerous
cost orders against the first respondent in the applicant's favour, some of them
punitive. No decree of divorce had been granted when this application was argued,
so paragraph 1.4 of the rule 43 order is still in force.
The course of the application
[13] The applicant approached the Court on an urgent basis. The respondents
opposed the application. They submitted an affidavit deposed to by the first
respondent's attorney of record, which stated at the outset that it addressed only
urgency and reserved the first respondent's right to respond to the merits at a later
stage. Th e approach adopted is unusual , if not procedurally irregular . Firstly, an
attorney of record should not depose to an affidavit on contested facts in their own
1Section 18(1) of the Superior Courts Act 10 of 2013. On whether a referral for reconsideration under the
proviso to s 17(2)(f) falls within s 18(1), see Hi-Q Automotive (Pty) Ltd v Erga Investments (Pty) Ltd and Another
(935/2024) [2026] ZASCA 31; 2026 (3) SA 377 (SCA) para 98.
client's matter, as this deprives the Court of the litigant's direct account and may
create a conflict of interest. Secondly, the affidavit exceeded its stated scope by
attaching a letter dated 2 February 2026. The said letter provided an undertaking
that the vehicle would not be removed pending the outcome of this application ,
asserted that the applicant had purchased her own vehicle, and denied that the first
respondent was in contempt.
[14] Adhikari AJ heard argument, held the matter to be urgent, and granted the rule
nisi. The interdictory relief was to operate as an interim interdict pending the return
day, and costs stood over. In granting the rule, the learned judge gave the
respondents a chance to answer on the merits.
[15] They did not take it. The order required their answering affidavits by 20
March 2026 and a further order by Barendse AJ on 14 May 2026 required delivery
within five days. The respondents did not comply, and the applicant filed no
replying affidavit.
[16] At the end of argument, I asked the parties for brief further notes on a question
that arose during the hearing. It was this. Can contempt be established where a
litigant sets out to dispossess another of a thing held under a court order, but no
dispossession in fact takes place? Both parties obliged, and I am grateful for their
notes.
[17] The evidence on the merits consists of the applicant's account and parts of the
attorney's affidavit. The affidavit requires comment: the attorney did not witness
the events of 20 and 24 February and says his knowledge comes from files,
meetings, and correspondence. He also made it clear he would not address the
main issues and reserved his client's response. If a party chooses not to answer, the
Court cannot treat the attorney's second -hand statements as direct evidence.
Nonetheless, the attached correspondence is documentary in nature, and its
authenticity is not disputed . I must accept it as evidence of what it says. The
attorney's statements only carry the limited weight allowed by their source.
[18] The position changed at the hearing in one respect. Mr Parkar confirmed from
the bar the facts recorded as common cause in the respondents' further heads. They
are these. The first respondent's own vehicle was damaged in a collision while he
was in Cape Town exercising contact with the children, so he needed a vehicle
there. By then, the applicant had bought her own car. His attorneys wrote the letter
of 2 February 2026 and received no substantive reply. He then instructed a towing
company to collect the Mercedes -Benz. T he applicant asks me to hold the first
respondent to these admissions. Normally, statements made in court during
argument do not automatically bind a party. Whether they do depends on the
context and whether the statement clearly goes against the party's interest and is
meant to settle the fact. 2 Here, those conditions are met. Mr Parkar was confirming
facts his clients had already accepted, and each fact is against the first respondent. I
have listed these admissions because a court must be careful when relying on
statements made in court.3
2 Saayman v Road Accident Fund [2010] ZASCA 123; 2011 (1) SA 106 (SCA) paras 28 and 29, per Heher JA
(Leach JA and Majiedt AJA concurring) in a concurring judgment giving additional reasons. Compare para 12,
where Bosielo JA, for the Court, held that a concession made by counsel in the course of his address was not
an unequivocal admission and could be withdrawn without a formal application. See also Kevin and Lasia
Property Investment CC v Roos NO 2004 (4) SA 103 (SCA) para 12.
Property Investment CC v Roos NO 2004 (4) SA 103 (SCA) para 12.
3 Standard Bank of SA Ltd v Minister of Bantu Education 1966 (1) SA 229 (N) at 242H -243G, per Caney J,
adopted by Heher JA in Saayman above fn 2 (see fn 4 of that judgment): counsel’s remarks in opening or
closing should not be accorded decisive effect on proof of facts, and if they are to be used in coming to a
conclusion in a judgment they must be set out in it and used with considerable circumspection.
[19] What Mr Parkar could not do was put his client's account of the disputed
events before me. The further heads say that the first respondent was not present
when the vehicle was to be collected, that he has no first -hand knowledge of what
happened, and that he denies any involvement. A concession and a denial are not
the same thing. An admission made on instructions binds the litigant. 4 It relieves
the other side of the need to prove the admitted fact, because a party in civil
proceedings need not prove, nor is he competent to disprove, a fact admitted on the
record. A denial does neither. It is not a statement against the interest of the party
who makes it, and so it is not an admission at all. Nor is it evidence. In motion
proceedings, a party must make out his case in his affidavits and, on the merits, the
first respondent has filed none. 5 I therefore act on Mr Parkar's concessions and
disregard his denials.
The issues
[20] Four questions arise. Is the first respondent in contempt of the rule 43 order ?
Is it an answer to the contempt that the applicant was never in fact dispossessed? If
he is in contempt, what sanction should follow? And should the interim interdict be
confirmed? Costs also remain to be determined . Adhikari AJ determined the issue
of urgency when the rule was granted, and it does not fall to be revisited on the
return day.
4 Section 15 of the Civil Proceedings Evidence Act 25 of 1965, headed ‘Admissions on record’: ‘It shall not be
necessary for any party in any civil proceedings to prove nor shall it be competent for any such party to
disprove any fact admitted on the record of such proceedings.’
5 Minister of Land Affairs and Agriculture v D & F Wevell Trust [2007] ZASCA 153; 2008 (2) SA 184 (SCA) para
43. The passage is directed at arguing from annexures, but the principle it rests on is general.
The first respondent's absence
[21] The first respondent was not present in person. Mr Parkar represented him
throughout, argued the merits for both respondents, and addressed the Court on
sanction. Mr Parkar informed the Court that his client was aware of the hearing but
could not attend. I do not regard this absence as further defiance of the Court,
notwithstanding the applicant's argument that he habitually disregards its orders.
The first respondent was entitled to representation, and he exercised that right.
[22] Because the applicant seeks the first respondent's committal, I ensured that he
had proper notice of the hearing and of the relief sought. Attorneys and counsel
represented him throughout . His interests were protected by a representative
instructed to contest every aspect of the relief, and, as far as I can determine, to
advance every available argument. The rule nisi told him what conduct was
complained of and called on him to show cause why he should not be declared in
contempt and sentenced, and he had ample time to take advice, prepare an answer
and decide whether to go on oath. Those are the safeguards our law requires before
a court deals with a contempt committed outside its presence. 6 Still, I have
approached the matter with the caution required where a litigant's liberty is at
stake, and he is not personally before the Court.
Contempt: what must be proved, and to what standard
[23] The requirements of civil contempt are settled. In Fakie NO v CCII Systems
(Pty) Ltd , the Supreme Court of Appeal held that an applicant must prove the
6 R v Keyser 1951 (1) SA 512 (A) at 518E-H.
order, its service or notice thereof, and non-compliance. Once those are proved, the
respondent bears an evidential burden on wilfulness and mala fides. If he does not
put up evidence raising a reasonable doubt on those elements, contempt is
established beyond reasonable doubt.7
[24] The standard of proof depends on the remedy sought. Where committal or a
fine is sought, the requirements must be proved beyond reasonable doubt. Where
the relief is a declarator, a mandamus, a structural interdict or another civil remedy
that does not affect the liberty of a person , proof on a balance of probabilities is
enough.8 I am asked to commit the first respondent to prison. The criminal
standard therefore governs the contempt enquiry, and I apply it. It does not govern
the interdict, which is a civil remedy that I deal with separately and on the ordinary
civil standard.
[25] Two features of the offence bear on what must be proved. Disobedience of an
order is one form of a wider crime, the essence of which is the violation of the
dignity, repute or authority of the court.9 And the offence lies not in the bare fact of
disregarding an order, but in the contempt for the court's authority that the
disregard shows. It is that contempt which the law punishes. Disobedience is how
it manifests10 itself.
The order, and knowledge of it
7 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) paras 42.3 and 42.4.
8 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others; Mkhonto and Others v Compensation
Solutions (Pty) Ltd [2017] ZACC 35; 2018 (1) SA 1 (CC) para 67. See also Fakie para 42.5.
9 Fakie para 6.
10 Fakie para 10.
[26] Neither the order nor knowledge of it is in issue. The rule 43 order was
granted in the divorce action to which the first respondent is a party. He has twice
been called to account for defying it. His own attorneys' letter of 2 February 2026
argues about the meaning and purpose of paragraph 1.4. He knew exactly what it
required.
Non-compliance
[27] The remaining issue is non -compliance. Paragraph 1.4 not only prohibits the
first respondent from taking the vehicle but also obliges him to make it available
for the use of the applicant and the children. This duty is positive and ongoing and
must be observed for as long as the order remains in force.
[28] Before I come to the breach, I must deal with attribution. The men who came
to the applicant's home were not the first respondent, and it was said on his behalf
that he had nothing to do with what they did. He cannot be held in contempt on this
record unless the enterprise was his, and unless that is proved beyond reasonable
doubt.
[29] In my view it has been proved. The material before me establishes the
following. On 2 February 2026 , the first respondent's attorneys demanded the
vehicle and announced that a towing company had been engaged to collect it that
afternoon. Mr Parkar confirmed from the bar that his client gave that instruction.
On 20 February, Williams stopped the applicant. He told her he had been
instructed to collect the vehicle, and he told her attorney that his instructions came
from the first respondent's attorney. On 24 February, when Ms Wiehman
confronted him at the applicant's home, Williams produced the vehicle's
registration papers. Those papers belong to the second respondent. They were in
the second respondent's keeping, and the second respondent acts only through the
first respondent. Williams could not have got them anywhere else. On 1 March , the
first respondent's attorneys recorded in writing that he had authorised someone to
collect the vehicle on the second respondent's behalf. And when his son asked him
by WhatsApp why he was trying to take the car, he did not deny it. He said the car
was his.
[30] Save for the letter of 2 February 2026, which reached me through the
respondents' own affidavit, and Mr Parkar's concession from the bar, each of those
facts is set out in the founding affidavit. Not one of them is denied on affidavit.
That is decisive, because the respondents chose to answer nothing on the merits
even though they were twice ordered to do so. Nor was it suggested in argument
that Williams acted otherwise than on the first respondent's instructions. What was
said on the first respondent’s behalf was narrower and deserves attention. It was
that he was not present when the vehicle was to be collected, that he has no first -
hand knowledge of what happened, and that he denies any involvement. His
absence is not in issue. He was not there. The question is whether the men were
there because he sent them. The registration papers put that beyond argument. A
man does not hand the registration documents of his corporation's vehicle to a
stranger who then goes out to fetch it . No explanation of how Williams came by
them has ever been offered. Nothing in this turns on Mr Parkar's concession. Leave
it out of account, and the registration papers, the letter of 1 March 2026 and the
first respondent's answer to his son establish the point on their own. I find beyond
reasonable doubt that Williams and the men with him were at the applicant's home
on the first respondent's instructions, and that they were there to carry out the
demand made on his behalf on 2 February.
[31] I should record what I do not find. The first respondent instructed them to
collect the vehicle. There is no evidence that he told anyone to block the applicant's
driveway, to swear at her, or to threaten to break into her home, and I make no
such finding. He answers for the enterprise he set in motion and for what could
reasonably be expected in carrying it out. On this record , he does not answer for
every word his agents used, and I do not sanction him for their language.
[32] The enterprise itself suffices. The blockade was not an independent act by the
men involved; it was the method they selected to accomplish the task for which
they had been sent, namely, to take a vehicle from an individual unwilling to
surrender it.
[33] The breach is obvious. Paragraph 1.4 says the first respondent must let the
applicant and the children use the car. Sending people to retrieve it without
following the legal process breaks this rule. The first respondent did not just ignore
his duty but tried to undo the court's order when the men showed up at the
applicant's home on 2 February to carry out his demand.
[34] What that meant in practice is shown by what happened on 24 February. The
applicant could not leave her home. She could not use the Mercedes -Benz to fetch
her children from school, and her attorneys had to send Ms Wiehman to do it for
her. During that period, the vehicle was unavailable to her for the very use that
paragraph 1.4 secures. Nor did the conduct end that afternoon. It went on after the
order had been produced to the men and its terms shown to them. They withdrew
and came back the next morning to renew the demand. None of this is an attempt at
a breach. It is the breach.
[35] An explanation has been offered. It is that the first respondent's own vehicle
had been damaged in a collision, that the applicant had by then bought a car of her
own, that paragraph 1.4 was aimed at the transport of the applicant and the children
and had stopped serving that purpose, and that he gave written notice of what he
intended before he did it. On the admissions made from the bar, each of those facts
is established.
[36] If the explanation is to help the first respondent , it must do so by raising
questions about his good faith, not about the fact of the breach. Deliberate
disregard of an order is not by itself contempt. The non -complier may honestly,
though wrongly, believe he is entitled to act as he did, and in such a case good faith
avoids the offence. Even a refusal to comply that is objectively unreasonable may
be bona fide, though unreasonableness may be evidence of a want of good faith.
An honest belief that non -compliance is justified is inconsistent with the intent the
offence requires. 11 The question, in Fakie's terms, is whether the first respondent
has put up evidence raising a reasonable doubt about whether his non -compliance
was wilful and mala fide. In my view, he has not.
[37] First, his was not a belief about what paragraph 1.4 means. It was a view
about whether paragraph 1.4 ought still to apply. He understood its terms perfectly
well. The letter of 2 February argues about the paragraph's purpose, and its
11 Fakie paras 9 and 10. See also fn 58 of that judgment, citing Botha v Dreyer (1880) 1 EDC 74 for the
proposition that a misunderstanding of the true meaning of an order negatives an inference of wilfulness.
continuing effect, and only a man who knows what the paragraph says can make
that argument. That is not a misunderstanding of an order. It is a disagreement with
it.
[38] Second, a party who thinks events have overtaken a rule 43 order has a
remedy. Uniform Rule 43(6) allows the court, on the same procedure, to vary its
decision where there is a material change in the circumstances of either party or a
child.12 The first respondent made no such application. He formed his own view of
what paragraph 1.4 was for, decided that it no longer served that purpose, and gave
effect to that view by engaging Williams. A court order binds until it is varied or
set aside, regardless of what a litigant may later think of its usefulness.
[39] Third, he has twice before been declared in contempt of th e rule 43 order .
Whatever becomes of those findings on appeal, and I come to them below, they
show that the meaning and binding force of this order have been litigated between
these parties twice already. He was not a man feeling his way.
[40] Fourth, the way in which the vehicle was pursued does not fit the good faith
now claimed. A litigant who honestly believes an order has ceased to bind him
applies to be released from it. He does not send men to take the thing by self -help.
And having sent them, he does not let them persist once the y were advised of the
order on 24 February. They left and were back the next morning, and nothing
passed between the attorneys in the meantime to suggest that the first respondent
had changed his mind.
12 Uniform rule 43(6): "The court may, on the same procedure, vary its decision in the event of a material
change occurring in the circumstances of either party or a child, or the contribution towards costs proving
inadequate."
[41] I must address the material submitted by the first respondent, as the evidential
burden rests upon him. He has provided no affidavit. His explanation was
conveyed through his attorney's affidavit on urgency, which expressly disavowed
the merits, and through admissions made from the bar. I have considered this
material at its highest and have treated the attached correspondence as evidence of
its contents, as previously indicated at [17]. Even taken at its highest, it establishes
only the facts set out at [35] and does not address the four issues discussed above.
It does not raise a reasonable doubt. The opportunity to respond on oath was
offered twice and declined. While a respondent is entitled to remain silent, that
choice carries consequences.13 I am satisfied beyond reasonable doubt that his non -
compliance with paragraph 1.4 was deliberate and in bad faith, and that he is in
contempt of the rule 43 order.
Whether an intention to dispossess, without dispossession, can found contempt
[42] I come to the question on which I asked for further argument. It was submitted
on behalf of the respondents that an attempted breach, without actual non -
compliance, is not contempt of court and cannot be punished as such. On the other
hand, Mr van Aswegen submitted that our law recognises an offence of attempted
contempt, and that s 256 of the Criminal Procedure Act 51 of 1977 allows me to
convict the first respondent of it under the prayer for alternative relief.
13 Fakie para 22. The observation is made there of an accused in a public prosecution for contempt. It
applies with equal force to the evidential burden borne by a respondent in an application of this kind.
[43] On the findings I have made, the question does not arise. The breach was
complete. The first respondent sent men to take from the applicant a vehicle he was
obliged to make available to her, and the demand was persisted with at her home
over two days. Whether Williams left with the car goes to the consequences of the
contempt, not to its existence.
[44] The respondents' argument rests on a premise I should not leave unanswered,
because it will come up again. It treats contempt as no more than the frustration of
the applicant's private interest, so that if she suffers no loss the Court suffers no
affront. This kind of application is a mixture of the two. A litigant seeking
enforcement has an obvious private interest in compliance. Still, the court enforces
its orders also because of the public interest in obedience, since, as Cameron JA
put it, disregard ”sullies the authority of the courts and detracts from the rule of
law”.14 Contempt of court is not a matter between the parties alone. 15 The position
was preserved here, but by the applicant's attorneys, not by the first respondent's
compliance.
[45] Because I requested argument, I will say briefly why I would not have taken
Mr van Aswegen's route had I needed to. Section 256 is a competent -verdict
provision. It operates where the evidence in criminal proceedings does not prove
the offence charged. These are not criminal proceedings, and no offence is
charged. There is no charge sheet, no plea , and no verdict. A respondent in an
application of this kind is not an accused person, though he is entitled to
14 Fakie para 8.
15 Fakie para 38, quoting Kirk-Cohen J in Federation of Governing Bodies of South African Schools (Gauteng) v
MEC for Education, Gauteng 2002 (1) SA 660 (T) at 673D-E.
protections like those an accused enjoys, adapted to motion proceedings. 16 In
Fakie, the court was invited to decide whether a finding of civil contempt counts as
a previous conviction for the purposes of s 271 of the same Act. It declined,
recording that the debate had been inconclusive and that the question was not
before it. 17 That is a warning against importing the machinery of the Criminal
Procedure Act into motion proceedings by construction. Nor does the authority
relied on by Mr van Aswegen take the applicant as far as she needs to go. S v
Benatar is a decision of the Supreme Court of Zimbabwe and is persuasive only.
The illustration Mr van Aswegen relies on was offered in the course of that court’s
reasoning, and it declined to convict. 18 Mr van Aswegen fairly conceded that he
could find no case in which a conviction for attempted contempt has been
recorded.
[46] I decide nothing about attempted contempt. Had the first respondent written
the letter of 2 February and gone no further, a different question would have arisen.
He went a good deal further, though.
The letter of 2 February 2026
[47] I return to the applicant's failure to disclose th e letter of 2 February 2026 . Her
founding affidavit describes attempts made over the preceding week. It says
nothing about the notice given three weeks earlier, or about the car she had bought.
Mr Parkar complains of this, and the complaint has force. A litigant who asks a
16 Fakie paras 25 and 42.2.
17 Fakie paras 27 and 28.
18 S v Benatar 1984 (3) SA 588 (ZS).
court to hold another in contempt should put before it the correspondence bearing
on the conduct complained of, whether it helps her or not.
[48] The criticism must, however, be tempered. This was not an ex parte
application. It was served, it was opposed, and counsel for the respondents was
heard before the rule was granted. The strict duty of utmost good faith that attends
ex parte relief does not apply. And the letter, now that it is before me, tells against
the first respondent rather than for him . The omission does not affect the outcome,
but I take it into account on costs.
Sanction
[49] Committal for contempt serves two inseparable objectives; to secure
compliance with the order and to vindicate the authority of the Court. In this
matter, the immediate need for compliance has diminished . The applicant retains
possession of the vehicle, no further attempts have been made to remove it since 25
February 2026, and the respondents' affidavit on urgency included an undertaking
that no such attempt would occur pending the outcome of this application. The
applicant now seeks, in essence, the vindication of the Court's authority against a
litigant who has defied it. This is a legitimate objective, though it must be pursued
with restraint when the respondent is not personally before the Court.
[50] Two submissions made on the first respondent's behalf stand in the way of a
sanction. Neither was advanced on affidavit. Both were argued from the bar and I
discuss each in turn.
[51] The first is that a court may not impose a sanction for contempt without giving
the contemnor a chance to be heard in mitigation, and that neither the notice of
motion nor the rule nisi made provision for one. The submission relies on
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 ,
where the Constitutional Court held that being given the chance to say something
on an appropriate sentence is a right, not a privilege extended on request. 19 The
principle is sound, and I accept it without qualification. It has been observed in this
matter. In Zuma, the contemnor refused to take part at all, and the Court issued
directions inviting an affidavit because there was no other way to hear him.20 When
he later applied to have the sentence rescinded on the ground that he had been
sentenced without a chance to advance mitigation, the Court dismissed the
application.21 Here the rule nisi called on the first respondent to show cause why he
should not be sentenced. He was twice ordered to answer and did not. He has been
represented throughout. At the hearing Mr Parkar addressed me on sanction, as did
Mr van Aswegen, and I have had full argument from both sides on what should be
imposed and why. The first respondent has been heard, having exercised his choice
to be heard through his representative rather than on oath.
[52] The second submission is that the relief sought gives no way for the contempt
to be purged, and that a contempt order must always provide one. The passage
relied on comes from Fakie, where Heher JA identified as a mark of a coercive
19 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 (5) SA 327 (CC) para 64,
per Khampepe ADCJ (majority).
20 Zuma above fn 19, paras 63 and 71.
per Khampepe ADCJ (majority).
20 Zuma above fn 19, paras 63 and 71.
21 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State and Others [2021] ZACC 28; 2021 (11) BCLR 1263 (CC)
para 75.
order that the sentence may be avoided after it is imposed by compliance. That
avoidance may require purging a default, an apology, or an undertaking to desist. 22
However, Heher JA differed from the majority on the central question in that
appeal, and on his own analysis what marks a punitive order is precisely that the
sentence cannot be avoided by anything the respondent does after it is imposed. 23
The majority went further and held that committals for contempt cannot be sorted
into the coercive and the punitive at all, because in each the objective and the
means are the same. 24 I say nothing about Heher JA's further view that a judicial
officer who thinks a punitive sentence is warranted should refer the matter to the
Director of Public Prosecutions, because, on the majority's approach, the question
does not arise.25
[53] I now address the appropriate sentence. Imprisonment should not be imposed
on the papers except in a clear case, and the first respondent has previously
complained on appeal that he was sentenced for contempt without being heard on
sanction. Conversely, a fine would not address the gravity of this contempt. The
contempt is not a mere oversight to be marked by a monetary penalty. It is a
deliberate resort to self -help against an order of this Court, pressed at the
applicant's home over two days, and renewed the morning after the men who came
were advised of the order. A fine would leave the applicant no better protected
against a repetition, and it would in any event fall indirectly on her, since it is her
claims in the divorce that his conduct seeks to undermine. The appropriate
response is a sentence of imprisonment suspended on condition of future
compliance. This approach underscores the seriousness of the contempt and
22 Fakie para 74.1, per Heher JA.
23 Fakie para 75.1.
24 Fakie paras 39 and 40.
25 Fakie para 82, per Heher JA.
vindicates the order, while reserving the sanction should further non -compliance
occur. It is also the ordinary course. A court is slow to restrict an individual's
liberty in matters of this kind, and where imprisonment is imposed for contempt, it
is usually or often suspended.26
[54] I have not treated the earlier findings of Nuku J and van Zyl AJ as previous
convictions in fixing the sanction. Whether a finding of civil contempt counts as a
previous conviction is a question our law has not settled, and those findings are in
any event on appeal and may yet be set aside. 27 It would not be right to punish the
first respondent today on the strength of them. The sentence I impose rests on the
events of February 2026 alone. The earlier findings have a narrower relevance.
They show that he has been on notice for a long time of what paragraph 1.4
requires of him.
[55] I am aware that a court may commit a contemnor who refuses to participate in
proceedings against him, as the Constitutional Court did in Zuma.28 That was the
apex court vindicating its own authority in circumstances it described as
exceptional, against a litigant who had defied it publicly and refused to appear at
all. Th at is not the situation in this matter . The first respondent has opposed the
application through his representatives from the start; the applicant still has the
vehicle, and no attempt has been made to take it since 25 February 2026. The right
course is suspension. Should he breach paragraph 1.4 of the rule 43 order or the
26 Protea Holdings Ltd v Wriwt 1978 (3) SA 865 (W) at 872B-C, quoted with approval in Zuma above fn 19, para
55, where Khampepe ADCJ recorded that, to that extent, the minority judgment was ‘not wrong’.
27 Fakie paras 27 and 28.
28 Zuma above fn 19, paras 46 and 102. The Court described the circumstances as exceptional at paras 87
and 103.
interdict during the period of suspension, the sentence may be put into effect on
application to this Court, on notice to him and on proof of the breach beyond
reasonable doubt. I have provided for that in paragraph 6 of the order, so that
nothing in it is self-executing.
The interdict
[56] On confirmation, the interim interdict becomes final. The relief is a civil
remedy. It does not take away the first respondent's liberty, and the criminal
standard does not govern it. Before I come to the requisites, I should explain how
the two standards align with each other , because I have just decided the contempt
on the criminal standard and much of the same material s upports the interdict.
Which standard applies turns on the consequence of the remedy sought, not on the
facts in issue. 29 A fact proved beyond reasonable doubt is necessarily proved on a
balance of probabilities, so my findings at [29] to [34] stand as findings for this
part of the case as well. The civil standard is not idle on that account. It does work
where the criminal standard could not. I declined at [31] to find beyond reasonable
doubt that the first respondent directed the abuse and the threats, and I have not
sanctioned him for them. That does not prevent me from finding, on a balance of
probabilities and for the purpose of restraining a repetition, that he is answerable
for the conduct of the men he sent. An interdict looks forward. It guards against
what may happen next, and I decide whether it may on the civil standard. The
applicant must therefore establish her entitlement on a balance of probabilities and
must satisfy the requirements for a final interdict. They are a clear right, an injury
29 Matjhabeng above fn 8, para 67.
actually committed or reasonably apprehended, and the absence of any other
satisfactory remedy.30
[57] The applicant has a clear right, against the first respondent, to have the vehicle
made available for her use and the children's use for as long as the rule 43 order
stands. She has a second right, which is good against the world and not only
against him. It is the right not to be deprived of her possession of the vehicle
except by process of law. No one may take the law into his own hands, and no one
may dispossess another wrongfully and without consent of the possession of
property, whether movable or immovable.31 For this purpose, the fact of possession
matters, not its basis. 32 She has a third right, not to be harassed, threatened or
intimidated, and that right needs no order to establish it. On the facts of this case, it
carries with it a further right not to be approached by the first respondent, or by
anyone acting for him, other than through her attorneys. The harassment was
committed by approaches of exactly that kind. They were made at her home and
again the morning after the men who made them were alerted to the order. A
restraint that left open the means by which the wrong was done would be no
restraint at all. Communications reasonably necessary about the children fall
outside this, and I have provided for them in the order.
[58] The apprehension of harm needs closer attention than it otherwise would,
because the first respondent's attorneys have tendered an undertaking that the
vehicle will not be removed. An interdict targets present or future infringement
rather than a past invasion of rights. Where the wrongful act has already occurred,
30 Setlogelo v Setlogelo 1914 AD 221 at 227.
31 Nino Bonino v De Lange 1906 TS 120 at 122.
32 Yeko v Qana 1973 (4) SA 735 (A) at 739D-G.
it must be of a continuing nature, or there must be a reasonable apprehension that it
will be repeated.33 In National Council of Societies for the Prevention of Cruelty to
Animals v Openshaw the majority held, as an alternative to its conclusion that the
appellant had forfeited interim relief by delay, that a respondent's unequivocal
expression of his future intention, though not an express undertaking, was enough
to dispel the apprehension of harm. 34 That case concerned interim relief . But the
proposition for which I cite it is not confined to interim relief, and I accept it.
[59] The features that persuaded the Court in Openshaw are absent here. There the
contravention was isolated and a year old, and the respondent stated his intention
on oath in his answering affidavit, where it was not put in issue. 35 Here the first
respondent has not stated anything under oath . The undertaking is his attorney's,
given on instructions and offered expressly on the footing that it concedes nothing.
It was tendered pending the outcome of this application, which is now before me.
It covers the vehicle and nothing else. It says nothing about contact with the
applicant, harassment, or the enlisting of third parties, and that is the conduct that
brought her to Court. It follows two visits to her home within five days, and a third
the morning after the second, all preceded by written notice of an intention to act
against the order. An undertaking is relevant, but it is not decisive, and each case
turns on its own facts. 36 An apprehension that the conduct will be repeated is well
founded.
33 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008
(5) SA 339 (SCA) para 20.
34 Openshaw above fn.33, para 26.
35 Openshaw para 25.
36 Easigas (Pty) Ltd v Penguin Gas (Pty) Ltd and Another (9415/2021) [2022] ZAWCHC 97 paras 48 to 54, and
the authorities collected there.
[60] I turn to the alternative remedy. In correspondence, it was suggested that the
applicant should have gone to the domestic violence court. As to the vehicle, the
suggestion answers itself. That court cannot enforce the rule 43 order, and the
enforcement of paragraph 1.4 lies at the centre of this application. So far as the
harassment is concerned, the point deserves more attention because the Domestic
Violence Act 116 of 1998 provides a remedy precisely for that complaint, and the
parties are no strangers to that forum. Two things persuade me that it is not a
satisfactory remedy here. The harassment is not free -standing. It was the means by
which the first respondent pursued his defiance of an order of this Court, and it was
carried out by agents he engaged for that purpose. Second, a remedy does not
become an alternative merely because it exists. It must give the applicant
substantially the same protection. Relief under that Act would not apply to the
second respondent, would not be framed by reference to the order being defied,
and would leave the applicant to litigate one course of conduct in two forums. An
order of this Court, directed at the first respondent and at the entity through which
he acts, and tied to the order he has flouted, is the only relief that meets the case as
a whole.
[61] One matter in the papers should not be misunderstood. The respondents ’
affidavit states that a final protection order was granted in the first respondent's
favour at Randburg on 27 February 2026 against the applicant. That order protects
him from her. It does not affect her right to be protected from him.
[62] The applicant seeks an interdict against both respondents. The second
respondent was not a party to the rule 43 order and is not bound by it. That does
not put it beyond the reach of an interdict. The right the applicant asserts against
the second respondent is not a right under paragraph 1.4. It is the right not to be
deprived of her possession except by process of law, and that right avails her
against the owner of the vehicle as much as against anyone else. On the
respondents' own version, the men who came to the applicant's home were there to
collect the vehicle on the second respondent's behalf. The second respondent has
invaded that right and threatens to invade it again. An interdict lies against it. The
restraints in paragraphs 4.2 and 4.3 of my order stand on the same footing. The
second respondent has no dealings with the applicant. It acts, and can act, only
through the first respondent, and the men came to the applicant’s home in its name
and with its registration documents. An order binding the first respondent but
leaving the close corporation free to send others in its own name would be of little
value.
[63] I have framed the restraint on dispossession in the terms of the rule nisi, which
permits steps taken as this Court may authorise . That preserves any legitimate
future variation of the rule 43 regime. One further limit is needed, and the
respondents’ own draft order identified it. The applicant's right to hold this vehicle
as against the first respondent exists because paragraph 1.4 of the rule 43 order
says so, and it will end when that paragraph ends, whether on the granting of a
final decree of divorce or on a variation under rule 43(6). No decree had been
granted when the matter was argued, but one may be granted at any time, and my
order must provide for that. A final interdict protecting a right that exists only
pendente lite cannot outlast the right itself. Paragraph 4.1 of my order is ,
accordingly, limited to the life of paragraph 1.4.
[64] That limit has consequences for paragraph 4.4, which forbids respondents
from engaging third parties to do the things prohibited by paragraphs 4.1 to 4.3.
Paragraph 4.4 is not free -standing. It takes its content from the paragraphs it refers
to, and a prohibition on procuring another to do an act cannot survive the
prohibition on doing the act oneself. If paragraph 4.4 were left unqualified, the first
respondent would be free, once paragraph 1.4 had lapsed, to take steps to recover
the vehicle himself but not to instruct anyone else to do so. That is absurd. It is
neither what the applicant asks for nor what I intend. Paragraph 4.4 is therefore
limited to the life of paragraph 1.4 so far as it relates to the conduct described in
paragraph 4.1. It is not so limited so far as it relates to the conduct described in
paragraphs 4.2 and 4.3.
[65] The remaining restraints stand on a different footing. The rights they protect,
which I identified at [58], owe nothing to the rule 43 order and are not limited by
its duration. Nor is the restraint on procuring others to invade them. So confined,
the interdict is competent, and I confirm it.
Costs
[66] The applicant seeks costs on the attorney -client scale. Such an order may be
made where a litigant's conduct is vexatious or otherwise deserving of the Court's
displeasure. Conduct is vexatious in this sense where it has caused the other side
unnecessary trouble and expense which it ought not to bear. 37 This is such a case.
The first respondent compelled the applicant to come to Court by conduct he has
never justified on oath. Given the chance to answer, he defied two orders to do so.
He has resisted every part of the relief while putting no version of his own before
37 In re Alluvial Creek Ltd 1929 CPD 532 at 535, as explained in Johannesburg City Council v Television and
Electrical Distributors (Pty) Ltd and Another 1997 (1) SA 157 (A) at 177D. See also Zuma above fn 19, para 131,
where punitive costs are described as reserved for conduct that is clearly vexatious and reprehensible.
me, and he has put the applicant to the expense of meeting a case he was unwilling
to make on affidavit.
[67] It was said on his behalf that the undertaking should have ended the matter
and that the applicant was unreasonable in pressing on. I accept neither
proposition. The undertaking answered prayer 4.1 and nothing else. It left
untouched the declaration of contempt, the sanction and the rest of the interdictory
relief, and it was tendered on terms the applicant had not sought. The applicant was
not obliged to abandon relief to which she is entitled because one part of it had
been met on terms of the respondent's choosing.
[68] I have taken into account the applicant's failure to disclose the letter of 2
February 2026. She deserves criticism for it. But it did not lengthen these
proceedings, and the document, once produced, tells against the first respondent
who complains of its omission. It does not displace the order the first respondent's
conduct otherwise attracts. The applicant should not be out of pocket for
vindicating an order she was entitled to have obeyed. A punitive costs order is
warranted against the first respondent, and it will carry the costs reserved on 6
March 2026. It is warranted against the second respondent too. It opposed every
part of the relief alongside him and put up no version of its own. The conduct
complained of was carried out in its name, using its vehicle and registration
documents, by men who said they had com e on its behalf. It is a close corporation
of which the first respondent is the sole member, and it has not acted independently
in this matter but him. The two are jointly and severally liable.
[69] The further notes were delivered at my request, on a question I have found it
unnecessary to decide. It would not be right to burden the respondents with the se
costs, and I exclude them.
Order
I make the following order:
1. The rule nisi granted on 6 March 2026 is confirmed to the extent set out below.
2. The first respondent is declared to be in contempt of paragraph 1.4 of the order
granted by Allie J on 31 May 2021 under case number 5440/2021.
3. The first respondent is committed to imprisonment for a period of 30 (thirty)
days, which committal is suspended in its entirety for a period of two years from
the date of this order, on condition that during the period of suspension the first
respondent:
3.1 makes the Mercedes -Benz motor vehicle with registration number C[...]
available for the use of the applicant and the minor children, as paragraph 1.4 of
the said order of Allie J requires, for so long as that paragraph subsists; and
3.2 does not breach any provision of paragraph 4 below.
4. The first and second respondents are interdicted and restrained from:
4.1 taking any step to dispossess the applicant of the Mercedes -Benz motor vehicle
with registration number C[...] presently in her possession, except as authorised by
this Court;
4.2 contacting the applicant, save through her attorneys of record and save, in the
case of the first respondent, for communications reasonably necessary concerning
the minor children;
4.3 harassing, threatening or intimidating the applicant; and
4.4 enlisting or instructing any third party to engage in any of the conduct set out in
paragraphs 4.1 to 4.3 above.
5. Paragraph 4.1 above, and paragraph 4.4 above in so far as it relates to the
conduct described in paragraph 4.1, shall operate for so long as paragraph 1.4 of
the said order of Allie J subsists, and shall lapse upon that paragraph being
discharged, varied to relieve the first respondent of the obligation it imposes, or
otherwise ceasing to have effect. Paragraphs 4.2 and 4.3 above, and paragraph 4.4
above in so far as it relates to the conduct described in paragraphs 4.2 and 4.3, are
not so limited.
6. The committal suspended in paragraph 3 above shall not be put into effect
otherwise than upon application to this Court, on notice to the first respondent, and
upon proof beyond reasonable doubt of a breach of a condition of suspension.
7. The first and second respondents are to pay the costs of the application,
including the costs reserved on 6 March 2026 but excluding the costs of the further
notes delivered after the hearing, on the scale as between attorney and client,
jointly and severally, the one paying the other to be absolved. Counsel’s costs shall
be taxed on scale ‘A’.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Applicant: Adv A J van Aswegen
Instructed by: Herold Gie Attorneys
For First Respondent: Mr Nazeer Parkar
Instructed by: Parkar Attorneys