Background to the E.W v V.T.H Contempt Application
The case of E.W v V.T.H (Leave to Appeal) (7333/2024) [2025] ZAWCHC 162 (11 April 2025) highlights the ongoing tension between maintenance obligations and alleged changes in financial circumstances. The matter originated from an order granted by Justice Steyn on 7 November 2022, which was slightly amended in December 2022. This order required the respondent (Mr H) to make monthly maintenance payments of R112,000, cover educational expenses, contribute to medical aid expenses, and pay the rental for the former family home.
Approximately two years after the initial order, in February 2024, Mr H informed the applicant (Ms W) through his attorney that there had been a change in his financial position that necessitated reduced maintenance payments. During this period, Mr H had only been paying R22,500 per month instead of the court-ordered R112,000, while covering only the children’s school fees but not their other educational expenses. He had also failed to contribute to medical expenses beyond the medical aid premium and had refused to pay the rental for the family home.
Following multiple exchanges between the parties’ legal representatives, Ms W warned that if payment was not made by 22 March 2024, she would bring an application for contempt. Mr H indicated that he would file a variation application by 19 April 2024, claiming he was awaiting his accountant’s report.
The situation became urgent as Ms W and the children faced possible eviction from their home due to Mr H’s failure to pay the rental as ordered. Additionally, the children were no longer attending aftercare because Mr H had stopped paying their crèche fees. This prompted Ms W to launch urgent contempt proceedings against Mr H.
The matter was heard by Parker AJ in the Western Cape High Court. What initially served before the court was both an application for contempt against Mr H and a counter-application by Mr H for variation of the maintenance order. In the judgment delivered on 14 October 2024, Mr H was declared to be in contempt of the court order granted by Justice Steyn. The court ordered that Mr H needed to first purge his contempt before his variation application could be considered.
The sanction imposed on Mr H was committal to imprisonment for 30 days, to be served as periodic imprisonment during weekends (from 17:00 on Friday to 06:00 on Monday). This sentence was suspended on condition that Mr H comply with the court order by paying the full arrears for rental, maintenance, health, and educational needs within 60 days, and continue to comply with the court order until the final determination of Part B of the application, or until it was varied.
The Variation Application and “Purging Contempt” Requirement
A central issue in the judgment was Parker AJ’s decision that Mr H needed to purge his contempt before his variation application could be heard. This determination was grounded in established legal principles regarding the varying of court orders.
The court relied on several key precedents, including South Cape Corporation (Pty) Limited v Engineering Management Services (Pty) Ltd 1977(3) SA 534 (A), Sandell and Others v Jacobs and Another 1970(4) SA 630 (SWA), and Technical Systems (Pty) Ltd and Another v RTS Industries and Others 2024 JDR 0046 (WCC). These authorities establish that the power to vary court orders should not be lightly exercised and should be approached with considerable caution.
Parker AJ emphasised that the power to vary interlocutory orders should be exercised with caution and typically only by the judge who initially granted the order or by another court exercising the same jurisdiction. The court determined it was not in a position to ascertain whether good cause existed to vary Justice Steyn’s order because it lacked the facts and allegations that were taken into account when the initial order was granted.
Drawing on the Constitutional Court judgment in Zondi v MEC, Traditional and Local Government Affairs 2006 (3) SA 1 (CC), Parker AJ concluded that varying the court order in this matter was not in the interests of justice. This formed the basis for requiring Mr H to first purge his contempt before the variation application could be considered.
Mr H argued strenuously against this requirement, claiming it was unfair and legally impermissible, particularly in respect of his constitutional rights, including his right of access to courts. He contended that the timing of the variation application was a proactive measure in response to his changed financial circumstances rather than a tactic to evade compliance with the order.
However, the court viewed the variation application with scepticism, noting its timing coincided with the threat of contempt proceedings. Parker AJ concluded that Mr H had not demonstrated a significant change in circumstances rendering him unable to comply with the court order, characterising the variation application as “contrived to avoid contempt.”
The judgment clarified that the requirement to purge contempt before being heard on a variation application is a matter of public policy. Citing Kotze v Kotze 1953 (2) SA 184 (C), Parker AJ noted that obedience to court orders and the principle that people should not be allowed to take the law into their own hands are matters of public policy. As such, there was no need for the applicant to specifically ask the court to order the respondent to purge his contempt before he could be heard on his variation application.
The judgment also referenced Pheko and Others v Ekurhuleni City (No 2) 2015 (5) SA 600 (CC); 2015(6) BCLR 771 (CC); [2015] ZACC10, which established that the basis for civil contempt is to impose a penalty that will vindicate and uphold the integrity and honour of the court. This authority supported the court’s discretionary power to require purging of contempt as a precondition to hearing the variation application.
The Leave to Appeal Arguments
Mr H subsequently applied for leave to appeal to the full bench of the Western Cape High Court, alternatively to the Supreme Court of Appeal, in terms of Section 17(1)(a)(i) of the Superior Courts Act No. 10 of 2013. This provision requires that an appeal would have reasonable prospects of success for leave to be granted.
The judgment for leave to appeal was requested on 14 February 2025, following a breakdown in settlement negotiations between the parties. In his application, Mr H presented several grounds of appeal, arguing that the court had erred in multiple aspects of its judgment.
A primary contention was that Parker AJ had improperly considered Justice Gamble’s order of 22 August 2024 in reaching a decision. Mr H argued this order was irrelevant to the merits of the applications before the court and should not have influenced the judgment. While Parker AJ mentioned Justice Gamble’s finding of contempt in the original judgment, the court clarified in the leave to appeal judgment that this reference merely illustrated a pattern of conduct and was not the basis for the current contempt ruling.
Mr H also disputed the court’s interpretation of his conduct, particularly the characterisation that he was “seeking to portray” his non-compliance as being due to a withdrawal of the matter. He contended that this argument was presented on legal advice, that he had in fact complied with the order at the time, and that the argument was not persisted with at the hearing.
A significant ground of appeal concerned the finding that Mr H was willful and mala fide in his non-compliance with the order beyond a reasonable doubt. He argued that the court erred in stating he sought to shirk his obligations and did not bring a variation application timeously. Mr H maintained that his attorneys had informed Ms W’s attorneys that he was preparing such an application when she launched the contempt proceedings. He further contended that it was his indication of an upcoming variation application that prompted Ms W to launch contempt proceedings, not the other way around.
Mr H challenged the court’s rejection of his changed financial circumstances as unreliable and contrived. He argued there was insufficient evidence to support such a serious finding, particularly when applying the standards for determining disputed facts in application proceedings. He maintained that his financial position had been set out in great detail, contradicting the court’s finding that he had failed to adequately explain his “role, shareholding and involvement in the web of businesses and trusts.”
Regarding the requirement to purge his contempt before the variation application could be heard, Mr H argued this was unfair and legally impermissible, particularly concerning his constitutional rights, including his right of access to courts. This argument revealed a fundamental disagreement with the court’s approach to the intersection of contempt proceedings and variation applications.
Mr H also raised concerns about the impact of a contempt declaration on his employability, particularly his ability to pursue work on tender. He characterised the contempt application as an abuse aimed at coercing payment rather than achieving compliance with the order. In this context, he also argued that the court should have considered appointing a curator to represent the children’s interests, citing Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (120) BCLR 1006; 2003 (2) SA 198 (CC). He contended that if he were criminally convicted, he would lose income, which would ultimately harm the children.
Parker AJ dismissed this final argument, noting that the appointment of a curator was not canvassed in Mr H’s opposing affidavit but merely raised during argument in the leave to appeal application. The court also found that the periodic weekend imprisonment order would allow Mr H five days a week to attend to his financial and care responsibilities, making the necessity for a curator unclear.
Implications for Maintenance Orders and Enforcement in South Africa
The E.W v V.T.H case establishes several important principles regarding the enforcement of maintenance orders and the interplay between contempt proceedings and variation applications in South African family law. These principles have significant implications for both maintenance obligors seeking variations and beneficiaries attempting to enforce existing orders.
At the heart of this judgment lies the fundamental principle that court orders must be obeyed until they are varied or set aside by a competent court. Parker AJ’s ruling reinforces that parties cannot unilaterally decide to reduce or modify their obligations based on self-assessed changes in circumstances. This position protects the integrity of the judicial process and prevents maintenance obligors from effectively nullifying court orders through non-compliance while awaiting variation applications.
The case gives substantial guidance on the procedure for addressing changed financial circumstances when maintenance obligations become onerous. It establishes that the appropriate course of action is to approach the court that issued the original order, or another court of the same jurisdiction, for a variation before reducing payments. The judgment makes clear that the sequence of actions matters significantly – one must first comply with existing orders while simultaneously seeking their variation, rather than reducing compliance and retrospectively seeking court approval.
Parker AJ’s ruling on the “purge contempt first” requirement creates an important procedural safeguard for maintenance beneficiaries. By requiring defaulting parties to remedy their contempt before being heard on variation applications, the court prevents a situation where ongoing litigation could be used as a shield against compliance. This approach prioritises the immediate needs of maintenance beneficiaries, particularly children, over the procedural concerns of defaulting parties.
The judgment recognises the unique vulnerability of maintenance beneficiaries, especially children, and the immediate impact that non-compliance has on their wellbeing. Parker AJ specifically noted the risk of eviction faced by Ms W and her children and the cessation of educational and therapeutic services due to non-payment. This recognition underscores that maintenance enforcement is not merely about financial obligations but about protecting dependent family members from harm.
The suspended periodic imprisonment order crafted by Parker AJ demonstrates a balanced approach to enforcement that aims to secure compliance while minimising harm to all parties involved. By limiting incarceration to weekends, the court created a mechanism that allowed Mr H to continue working and earning income during the week while imposing a meaningful sanction for non-compliance. This creative sentencing approach provides a useful template for courts dealing with similar contempt cases.
The threshold for obtaining leave to appeal against contempt findings was clarified in this case through Parker AJ’s application of the Caratco (Pty) Limited v Independent Advisory (Pty) Limited 2020(5) SA 35 (SCA) standard. Under this stringent test, an applicant must demonstrate not just that there are arguable points of law, but that there are reasonable prospects that an appeal court would come to a different conclusion or that there are other compelling reasons why the appeal should be heard, such as important questions of law or issues of public importance that will affect future disputes.
The rejection of Mr H’s argument regarding the need for a curator ad litem establishes that courts will not entertain belated procedural arguments raised only at the leave to appeal stage when they could have been properly ventilated during the main application. This underscores the importance of raising all potential defenses and procedural requirements at the earliest opportunity.
Parker AJ’s judgment reinforces that the enforcement of maintenance orders is a matter of public policy, and courts have broad discretion in crafting appropriate remedies to ensure compliance. This includes the power to require purging of contempt before hearing variation applications, even when such relief was not specifically sought by the applicant.
Conclusion: The Balance Between Maintenance Obligations and Changed Circumstances
The E.W v V.T.H case illustrates the delicate balancing act courts must perform when navigating the tension between enforcing existing maintenance obligations and acknowledging potential changes in financial circumstances. Parker AJ’s judgment demonstrates that South African courts prioritise the stability and welfare of maintenance beneficiaries, particularly children, while still providing mechanisms for genuine financial hardship to be addressed.
The judgment makes a clear distinction between legitimate variation applications based on provable changed circumstances and those that appear tactical or designed to evade compliance. This distinction is crucial for maintaining the integrity of the maintenance system while allowing for necessary adjustments when circumstances genuinely change. The court’s skeptical view of Mr H’s variation application, which coincided with threatened contempt proceedings, serves as a caution to maintenance obligors who might consider similar approaches.
The case also highlights the serious consequences of non-compliance with maintenance orders. Beyond the suspended periodic imprisonment imposed on Mr H, the court ordered costs against him in both the main application and the leave to appeal application. This financial burden, combined with the obligation to pay arrears within 60 days, creates significant incentives for compliance with court orders.
Parker AJ’s rejection of the leave to appeal application under the stringent test in Section 17(1) of the Superior Courts Act demonstrates that contempt findings in maintenance matters will not be easily overturned. This reinforces the authority of maintenance orders and promotes compliance by signalling that appeals against contempt findings face high hurdles.
The judgment ultimately serves as a reminder that maintenance obligations are not merely financial arrangements but critical supports for vulnerable family members. The court’s emphasis on the risk of eviction and the cessation of educational services underscores that non-compliance with maintenance orders has real and immediate impacts on children’s lives. This human dimension of maintenance enforcement permeates the judgment and justifies the court’s firm stance on compliance.
For legal practitioners, the case provides valuable guidance on how to approach variation applications when clients experience financial difficulties. It suggests that the appropriate course is to continue compliance with existing orders while simultaneously and expeditiously seeking variation, rather than reducing payments unilaterally. It also cautions against tactical applications that might be perceived as attempts to delay or evade compliance.
For maintenance beneficiaries, the judgment reinforces the availability of contempt proceedings as an effective enforcement mechanism when other approaches fail. The suspended imprisonment order with conditional purging of contempt demonstrates that courts have both the willingness and the tools to secure compliance with maintenance orders.
The E.W v V.T.H case ultimately stands as an important precedent in South African maintenance law, balancing the competing interests of obligors and beneficiaries while ensuring that the best interests of children remain paramount throughout legal proceedings.
Parker AJ:
Dismissed Mr H’s application for leave to appeal to the full bench of the Western Cape High Court or, alternatively, to the Supreme Court of Appeal.
Ordered Mr H to pay Ms W’s costs incurred on a party and party scale A.
The court determined that Mr H had not met the threshold requirements under Section 17(1) of the Superior Courts Act to be granted leave to appeal, as there were no reasonable prospects of success on appeal.
Questions and Answers
What was the original order that led to the contempt proceedings in the E.W v V.T.H case? The original order was granted by Justice Steyn on 7 November 2022 (and slightly amended in December 2022). It required Mr H to make monthly maintenance payments of R112,000, cover educational expenses, contribute to medical aid expenses, and pay the rental for the former family home.
How much was Mr H actually paying in maintenance compared to what was ordered by the court? Mr H was only paying R22,500 per month instead of the court-ordered R112,000. He was also only covering the children’s school fees but not their other educational expenses, failed to contribute to medical expenses beyond the medical aid premium, and refused to pay the rental for the family home.
What legal test must be satisfied to find someone in contempt of court in South African law? For a finding of contempt, the applicant must prove beyond reasonable doubt that: (1) there was a court order, (2) the respondent was aware of the order, (3) the respondent failed to comply with the order, and (4) the non-compliance was willful and mala fide (in bad faith).
Which legal precedents did Parker AJ rely on regarding the variation of court orders? Parker AJ relied on South Cape Corporation (Pty) Limited v Engineering Management Services (Pty) Ltd 1977(3) SA 534 (A), Sandell and Others v Jacobs and Another 1970(4) SA 630 (SWA), and Technical Systems (Pty) Ltd and Another v RTS Industries and Others 2024 JDR 0046 (WCC). These cases establish that the power to vary court orders should be exercised with caution.
Why did Parker AJ refuse to hear the variation application before the contempt was purged? Parker AJ determined that the court was not in a position to ascertain whether good cause existed to vary Justice Steyn’s order because it lacked the facts and allegations considered when the initial order was granted. Drawing on Zondi v MEC, Traditional and Local Government Affairs 2006 (3) SA 1 (CC), Parker AJ concluded that varying the court order was not in the interests of justice until the contempt was purged.
What sanction did the court impose for the contempt finding? The court ordered committal to imprisonment for 30 days, to be served as periodic imprisonment during weekends (from 17:00 on Friday to 06:00 on Monday). This sentence was suspended on condition that Mr H comply with the court order by paying the full arrears within 60 days and continue to comply until the final determination of Part B of the application or until it was varied.
What is the legal principle behind requiring a party to purge their contempt before being heard on a variation application? As established in Kotze v Kotze 1953 (2) SA 184 (C), obedience to court orders and preventing people from taking the law into their own hands are matters of public policy. The requirement to purge contempt upholds the integrity and honour of the court, as affirmed in Pheko and Others v Ekurhuleni City (No 2) 2015 (5) SA 600 (CC).
What test did Parker AJ apply when considering the application for leave to appeal? Parker AJ applied the stringent test from Section 17(1) of the Superior Courts Act No. 10 of 2013 and the case of Caratco (Pty) Limited v Independent Advisory (Pty) Limited 2020(5) SA 35 (SCA). This test requires showing reasonable prospects of success on appeal or other compelling reasons why the appeal should be heard, such as important questions of law or issues of public importance that will affect future disputes.
How did the court address Mr H’s argument that a curator should have been appointed for the children? Parker AJ rejected this argument because the appointment of a curator was not canvassed in Mr H’s opposing affidavit but was only raised during argument in the leave to appeal application. The court also found that the periodic weekend imprisonment order would allow Mr H five days a week to attend to his responsibilities, making a curator unnecessary.
What impact did the potential eviction of Ms W and the children have on the court’s decision? The potential eviction significantly influenced the court’s decision. Parker AJ specifically noted that Ms W and the minor children were at risk of being evicted from their home, which was not in the best interests of the children. This urgent situation contributed to the court’s decision not to hear the variation application before the contempt was addressed.
Can a party unilaterally reduce maintenance payments if they experience changed financial circumstances? No, the judgment makes clear that parties cannot unilaterally decide to reduce or modify their obligations based on self-assessed changes in circumstances. The appropriate course of action is to approach the court that issued the original order for a variation while continuing to comply with the existing order.
Did the reference to Justice Gamble’s previous contempt finding influence Parker AJ’s judgment? While Parker AJ mentioned Justice Gamble’s finding of contempt in the original judgment, the court clarified in the leave to appeal judgment that this reference merely illustrated a pattern of conduct and was not the basis for the current contempt ruling. The court applied its independent mind to the evidence before it.
What did the court determine regarding the timing of Mr H’s variation application? The court viewed the variation application with skepticism, noting its timing coincided with the threat of contempt proceedings. Parker AJ concluded that Mr H had not demonstrated a significant change in circumstances rendering him unable to comply with the court order, characterizing the variation application as “contrived to avoid contempt.”
What did the court say about the impact of a contempt declaration on Mr H’s employability? Mr H argued that a contempt declaration would severely impact his employability, particularly his ability to pursue work on tender. The court did not find this argument persuasive enough to outweigh the need to enforce the maintenance order, particularly given the suspended and periodic nature of the imprisonment sanction that would allow him to continue working during weekdays.
How did the court balance the competing interests in crafting the sanction for contempt? The court created a balanced sanction by ordering periodic imprisonment limited to weekends, which allowed Mr H to continue working and earning income during the week while still imposing a meaningful consequence for non-compliance. The sentence was also suspended conditional upon compliance, giving Mr H the opportunity to avoid imprisonment entirely by meeting his obligations.
Appearances:
Counsel for the Applicant: Adv Deneys van Reenen
Instructed by: BDP Attorneys
Counsel for the Respondent: Adv Adri Thiart
Instructed by: Maurice Phillips Wisenberg
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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