This case concerns a former husband who, for the better part of seven years, paid his ex-wife’s court-ordered rehabilitative maintenance when and in the amount he chose, pleaded poverty and illness when called to account, and relied on a variation application brought in a maintenance court that had no jurisdiction to hear it. The Western Cape High Court declared him in contempt, imposed a wholly suspended sentence of ninety days’ imprisonment and ordered him to pay costs on the attorney and client scale.
Seven years of selective compliance
The parties were divorced by order of the Western Cape Division on 23 January 2019. The Consent Paper incorporated in the divorce order obliged the respondent to pay rehabilitative maintenance for nine and a half years, or until the applicant’s death, remarriage or cohabitation for six months, whichever came first. None of those terminating events occurred. The cash component was R16 000 per month from 1 December 2018, escalating annually from 1 December 2019, together with the applicant’s medical aid premiums for the duration of the rehabilitative period.
In about June 2020 the respondent unilaterally cut his payments from R16 592 to R10 000 per month. From November 2020 he paid late and from October 2021, apart from two payments of R8 000 and R10 000, he paid nothing. A first contempt application in July 2022 produced the arrears of R266 908 and the applicant’s legal costs shortly before his answering affidavit was due, whereupon that application was withdrawn. He then approached the Simonstown Maintenance Court for a reduction in October 2022, failed to serve the application on the applicant and failed to appear, and the matter was removed from the roll. Payments stopped again from March 2023 until a single payment of R5 000 on 29 November 2023, after which sporadic payments of R5 000 followed, purportedly under an order he obtained ex parte in the maintenance court on 5 December 2023. That order was set aside on 18 April 2024, but the sporadic payments simply continued as if it stood.
Only when the applicant obtained a writ for arrears of R614 056 in December 2025 did the respondent revive his maintenance court variation application. The writ yielded just R28 352.69 attached in his personal bank account at a cost of R6 911.50 in sheriff’s fees, and the respondent’s urgent application to stay the writ was struck from the roll on 20 February 2026 for lack of urgency with costs, which he also did not pay. The contempt application followed on 22 April 2026, claiming arrears of R686 850 plus mora interest. After argument on 26 August 2026 the matter stood down for settlement talks, which failed. On 25 September 2026 the respondent paid R682 585.52 into the applicant’s attorney’s trust account and on about 6 October 2026 a further R5 987.42, both accepted without concession by either side.
The jurisdictional point that collapsed the main defence
The respondent’s lead defence was that the contempt application was “premature and misconceived in circumstances where the issue of my affordability and the variation of the maintenance order is already before the competent Maintenance Court”. Cloete J disposed of it on a point of statutory jurisdiction. The applicant lives in the United Kingdom. Section 6(2) of the Maintenance Act 99 of 1998 confines a maintenance court’s jurisdiction to persons liable to be maintained who reside, carry on business or are employed within its designated area. The person liable to be maintained was the applicant, not the respondent, so the fact that the respondent lived within the Simonstown court’s area was irrelevant. Counsel for the respondent accepted at the hearing that the pending variation application would have to be withdrawn. The court held that the contention that the contempt application was premature was “itself misconceived and without substance”.
The court went further and tested the respondent’s claim that he had “actively pursued” variation against the chronology. For roughly two years after June 2020 no proceedings of any kind were pending while payments dwindled to nothing. The 2022 application was abandoned without being pursued. For eight months in 2023 nothing was paid, and after the ex parte order was set aside in April 2024 no further step was taken until the writ bit in January 2026. On the court’s calculation the respondent had failed to pursue variation for 4.6 of the 7 years since the divorce “while at the same time flouting the terms of a court order”. His assertion that he had acted on the advice of maintenance court officials was unsubstantiated, and he had been legally represented for much of the period.
The legal framework applied was the settled one. An applicant must show that the order was granted, that the respondent knew its terms and that he did not comply. Once those requirements are met the respondent bears an evidential burden to raise a reasonable doubt as to wilfulness and mala fides, failing which contempt is established, the court citing 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 (5) SA 327 (CC) at para 37. Court orders must be obeyed until set aside, and a party who finds an order burdensome must seek variation in the appropriate forum rather than resort to self-help, as held in MM v MF (2023-024319) [2025] ZAGPJHC 857 (4 September 2025) at para 38. Reliance on legal advice is not necessarily a defence, on the authority of HEG Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) SA 507 (CPD) at 522A-C. The jurisdictional requirements were common cause, so the case turned entirely on whether the respondent could discharge his evidential burden.
Financial incapacity and illness measured against the respondent’s own documents
The respondent asserted “genuine and material financial incapacity, changed financial circumstances” and illness. Rather than make full and frank disclosure, he referred the court to affidavits in other proceedings and took the stance that his evidence would serve before the maintenance court, which Cloete J described as “the wrong approach”. The unaudited financial statements of his business, Airconditioning & Allied Services CC, annexed to his own answering affidavit, told against him. He held an 87% members’ interest until 2021 and 75% from 2022, and the members’ salaries ran at R980 000 in 2017, R987 994 in 2018, R1 045 991 in 2019, either R2 025 479 or R1 017 480 in 2020 (the figures differed), R890 993 in 2021, R891 898 in 2022, R897 575 in 2023 and R900 000 in 2024. The court observed that this “is hardly the picture of a business in decline, or an individual whose income had been drastically reduced”, and no up to date statements were produced. On the court’s own conservative calculation the CC also paid personal expenses for his benefit averaging around R33 800 per month in vehicle instalments, home loan repayments, personal insurance and medical gap cover, and he admitted a SARS refund of R72 155.33 received on 22 July 2025.
The former common home in Lakeside was the most telling item. Under the Consent Paper the respondent retained it on condition that he would not further encumber it for as long as he remained liable to maintain the applicant, the rationale being that on any sale during that period the applicant would receive an actuarially calculated capital sum settling the maintenance obligation in full. The property thus served as security for the maintenance. The applicant’s supplementary affidavit put its current value at R3.96 million with the bond reduced from about R1 million at divorce to R259 763.57, some R750 000 of capital repaid since the divorce. The respondent’s answer was that the property “is not cash or monthly income”, that the valuation was unproved, and that he had drawn against the bond during Covid-19 to fund the CC, with the bond now securing the business overdraft. That answer, described by the court as “both evasive and concerning”, amounted to an admission that he had breached the non-encumbrance clause without the applicant’s knowledge. The members’ loan accounts in the CC, hovering between R1 145 187 and R1 363 423 from 2021 to 2024, showed “hardly any movement” and contradicted the story of funds advanced to rescue the business. The court found “numerous other examples of the respondent’s economy with the truth” and concluded that he “did not even leave the starting blocks in attempting to discharge his evidentiary burden”.
The illness defence met the same fate. The respondent had been diagnosed with a malignant neoplasm of the base of the tongue in May 2025, more than six years after the divorce, and described an ongoing condition affecting his physical capacity and stamina. The applicant’s supplementary affidavit showed that a trust apparently under his control had funded a road trip to the Free State between January and May 2026, which the respondent explained as expenditure authorised “after I received a provisional all-clear following cancer treatment”. The court held it “safe to accept that the respondent did not play open cards with the court about the severity and duration of his illness either”.
Late payment does not purge contempt, and the costs of a pattern of untruths
Between the hearing and judgment the respondent paid R688 572.94 in two tranches. The court held that compliance after a wilful and mala fide default does not assist a respondent, quoting LAN v OR Tambo Airport Department of Home Affairs 2011 (3) SA 641 (GNP) at paras 71 and 72, where it was held that once the requirements of the offence existed for a period and no valid defence was raised, “a positive finding should follow”, because contempt proceedings protect “the integrity of the court system” and “non-compliance at a specific period in time cannot therefore simply be ignored because compliance did in fact occur at a later stage”. Contempt was accordingly established beyond a reasonable doubt.
The notice of motion had sought a suspended sentence conditional only on payment of the arrears then outstanding, which had by judgment been paid. Cloete J relied on the prayer for further or alternative relief and on the principle, drawn from SS v VVS 2018 (6) BCLR 671 (CC) at para 26, that the respondent’s contempt concerned not only the applicant but the imprimatur of the courts that orders are to be obeyed. The history showed that the respondent “needs to be made to understand that there are serious consequences to flouting court orders”. The sentence of ninety days’ direct imprisonment was therefore suspended on the broader condition that he comply with clause 2 of the Consent Paper going forward, not merely that he settle the arrears. An undertaking furnished after argument did not bind the court, which remarked that if it was given in good faith “the respondent has nothing to fear”. The applicant was authorised to retain the post-hearing payments towards arrears.
On costs it was undisputed that the applicant is 70 years old, has numerous serious health issues, has no income and had to leave South Africa to be supported by her children in the United Kingdom because of the respondent’s default, while the respondent had “demonstrated a pattern of what can only be deliberate untruths” to avoid an obligation he had agreed to. Costs of the main application and the interlocutory application for leave to file the supplementary affidavit (which the respondent had abandoned his opposition to at the hearing) were awarded on the attorney and client scale, including reserved costs and the costs of counsel.
Questions and Answers
What must an applicant prove to establish contempt of a maintenance order contained in a divorce order?
The applicant must show that the order was granted, that the respondent was aware of its terms and that the respondent failed to comply with it. In D.O v M.E these three requirements were common cause, following Secretary of the Judicial Commission of Inquiry v Zuma at para 37.
Once those requirements are met, who bears the burden and what is its nature?
The respondent bears an evidential burden to advance cogent evidence establishing a reasonable doubt as to whether the non-compliance was wilful and mala fide. If he fails to do so, contempt is established beyond a reasonable doubt. The court found the respondent in this matter “did not even leave the starting blocks” in attempting to discharge it.
Can a maintenance debtor unilaterally reduce payments he considers unaffordable?
No. Court orders must be obeyed until set aside, and a party who finds an order burdensome must approach the appropriate forum for variation rather than engage in self-help, as held in MM v MF at para 38 and applied by Cloete J.
Is a pending variation application in the maintenance court a defence to contempt?
Not in itself, and certainly not where the maintenance court lacks jurisdiction. The court also examined whether the variation had in fact been actively pursued and found that it had not been for 4.6 of the 7 years since the divorce.
Which maintenance court has jurisdiction to vary a High Court maintenance order?
Section 6(2) of the Maintenance Act confines jurisdiction to the court in whose area the person liable to be maintained resides, carries on business or is employed. The maintenance debtor’s own residence is irrelevant. Because the applicant lived in the United Kingdom, the Simonstown Maintenance Court had no jurisdiction.
Does reliance on legal advice, or on advice from maintenance court officials, excuse non-compliance?
Reliance on legal advice may not necessarily be a defence in contempt proceedings, on the authority of HEG Consulting. The respondent’s claim that maintenance court officials had advised him was unsubstantiated and he had been legally represented for much of the period, so it carried no weight.
If the arrears are paid before judgment, does that cure the contempt?
No. Following LAN v OR Tambo Airport, once the elements of contempt existed for a period and no valid defence is raised, a positive finding should follow. Contempt proceedings protect the integrity of the court system, so later compliance does not erase earlier non-compliance.
How did the court treat the respondent’s post-hearing payments of R682 585.52 and R5 987.42?
The applicant was authorised to retain them towards arrear maintenance. The payments did not alter the finding of contempt or the sentence.
What evidence is expected from a respondent who pleads financial incapacity?
Full and frank disclosure to the court hearing the contempt application. Referring the court to affidavits in other proceedings, or saying the evidence will be placed before the maintenance court, is “the wrong approach”.
How did the respondent’s own financial statements undermine his defence?
The CC’s statements showed members’ salaries consistently around R900 000 to R1 million a year from 2017 to 2024, loan accounts that barely moved, and personal expenses of about R33 800 a month paid by the business, contradicting the claim of a drastic decline in income.
What was the significance of the non-encumbrance clause in the Consent Paper?
The former common home was retained by the respondent on condition that he not further encumber it while liable for maintenance, because on sale the applicant would receive an actuarially calculated capital sum. The property was security for the maintenance obligation, and the respondent breached the clause without the applicant’s knowledge by drawing on the bond.
Can equity in immovable property be taken into account when assessing ability to pay maintenance?
Yes. The court held that the respondent had an asset with more than sufficient equity to fund his maintenance payments, rejecting his answer that a home “is not cash or monthly income”.
Why did the illness defence fail?
The respondent disclosed little about the condition, and the applicant showed that a trust under his apparent control had funded a road trip after he received a provisional all-clear. The court concluded that he had not played open cards about the severity and duration of his illness.
Why was the sentence suspended on condition of future compliance rather than payment of arrears only?
Although the notice of motion sought suspension conditional on paying the arrears, the applicant also sought further or alternative relief, and contempt concerns the authority of the courts, not only the private interests of the applicant, as recognised in SS v VVS at para 26. The history of the matter required a condition that secures compliance with clause 2 of the Consent Paper going forward.
When will attorney and client costs be ordered in maintenance contempt proceedings?
Where, as here, the respondent has displayed a pattern of deliberate untruths to avoid an agreed obligation and has forced a vulnerable applicant to incur substantial legal costs, the court will order costs on the attorney and client scale, including reserved costs and the costs of counsel.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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