Factual Matrix: When Medical Incapacity Meets Maintenance Obligations
The parties in this matter, heard before Lekhuleni J, were married in Switzerland on 23 June 2000, with their marriage remaining subsisting at the time of the application. Two children were born from the marriage, both having reached the age of majority and residing with the respondent in Switzerland. The applicant instituted divorce proceedings in November 2020 under case number 16689/2020, with those proceedings remaining pending at pre-trial stage.
The crux of the dispute arose from a Rule 43 order granted by Loots AJ on 31 August 2022, following an opposed application by the applicant for interim maintenance. The order directed the respondent to pay maintenance pendente lite in the sum of R20,000 per month, together with various expenses including medical aid premiums, insurance costs, and utility accounts, culminating in a total monthly obligation of R31,773.70. Payments were to commence on 1 September 2022 via electronic transfer into the applicant’s bank account.
Initially, the respondent complied with the order, making payments from September 2022 through January 2023, totalling R158,868.50. However, the maintenance trajectory changed dramatically on 4 January 2023, when the respondent suffered a skiing accident in Grindelwald whilst on holiday with his family. The fall resulted in a head injury, and subsequent complications led to a coronary stroke on 8 January 2023, rendering the respondent unconscious for approximately three days.
The medical consequences proved severe, with doctors advising that the stroke had impaired the respondent’s ability to vocalise and articulate his thoughts completely. His capacity to handle complex administrative and financial matters was significantly compromised, necessitating external support for business decisions and contract execution. These circumstances prompted the respondent’s sister to report the accident to the Child and Adult Protection Authorities in Basel-Landschaft on 27 January 2023, ultimately resulting in the appointment of legal guardians to manage the respondent’s affairs under Swiss law.
The curatorship arrangement persisted until 31 March 2024, during which period the respondent’s estate, including income, assets, and legal proceedings, remained under curatorial management. Despite the termination of the curatorship, the respondent maintained that he remained unable to work and would likely never return to employment. His previous position as a project manager with a Swiss company, earning CHF 6,708.10 monthly (equivalent to approximately R148,260 in 2023), had been permanently lost.
By the time of the application, the respondent was receiving a monthly disability pension of CHF 7,133.35 from July 2025, representing 80 percent of his previous salary and reflecting a 100 percent incapacity rating for work purposes. The applicant calculated that, as at 1 May 2025, the respondent owed arrear maintenance totalling R277,066.48, after accounting for payments received and amounts recovered through attachment of joint estate assets.
The Enduring Nature of Spousal Maintenance: Rule 43 Orders and the Duty of Support
Lekhuleni J grounded the decision in well-established principles governing spousal maintenance obligations, emphasising that marriage creates enduring reciprocal duties between spouses regardless of property regime. The court referenced Jodaiken v Jodaiken 1978 (1) SA 784 (W) at 788H for the proposition that spouses owe each other a reciprocal duty of maintenance according to their means, with the scale of support determined by social position, financial means and chosen lifestyle.
The scope of this duty extends beyond mere subsistence, as confirmed in Cary v Cary [1999] 2 All SA 71 (C) 77, where it was established that maintenance obligations are determined by the couple’s standing in the community and standard of living, and are by no means confined to bare necessities. This principle underscores that maintenance must reflect the marital standard of living rather than basic survival needs.
When income proves insufficient to discharge maintenance obligations, the duty may require liquidation of assets. The court cited Dodo v Dodo 1990 (2) SA 77 (W) 93 in support of this principle, recognising that maintenance obligations transcend mere income considerations. The Jodaiken case further established that maintenance constitutes recurring expenditure typically funded from income, though asset liquidation becomes relevant where income proves inadequate or non-existent.
The foundational test for maintenance obligations, drawn from Oberholzer v Oberholzer 1947 (3) SA 294 (O) at 297, requires consideration of both the reasonable requirements of the claimant and the ability of the respondent to provide support. This dual assessment ensures that maintenance orders reflect both genuine need and realistic payment capacity.
Lekhuleni J applied these principles to emphasise that the respondent’s accident, whilst tragic, did not extinguish his fundamental obligation to support his spouse. The court noted that despite reduced circumstances, the respondent continued receiving substantial income through insurance payments and later disability pension, maintaining his capacity to discharge maintenance obligations even if at reduced levels.
Contempt of Court and Enforcement: Wilfulness vs Inability to Pay
The central issue before Lekhuleni J concerned whether the respondent’s non-compliance with the Rule 43 order constituted wilful contempt of court. The respondent’s defence rested on his assertion that the stroke and subsequent curatorship rendered him unable to comply with the maintenance order, thereby negating any element of wilfulness in his default.
The court’s analysis revealed the critical distinction between genuine inability to pay and deliberate non-compliance masked by convenient excuses. Despite the respondent’s medical circumstances, Lekhuleni J found that he continued receiving substantial income throughout the relevant period. Initially, this comprised monthly stipends from his former employer with reimbursement from Swiss accident insurance, amounting to 80 percent of his previous salary until June 2025.
Most significantly, the court identified that the respondent had disclosed access to R20,295,128.87 held in trust, for which he was both an income and capital beneficiary. This revelation fundamentally undermined his claims of impecuniosity and demonstrated clear capacity to discharge his maintenance obligations. Lekhuleni J observed that the respondent was “fully capable of accessing his portion of these funds to pay maintenance to the applicant as per the court order.”
The court was particularly critical of the respondent’s failure to instruct his curators to prioritise maintenance payments. Lekhuleni J noted that despite the curatorship arrangement, the respondent would have provided clear instructions regarding which expenses to pay, making his omission of spousal maintenance a conscious choice rather than an oversight.
Furthermore, the respondent’s expenditure priorities attracted judicial censure. The court expressed concern that he allocated resources to travel from Switzerland to Germany to transport his partner to work whilst neglecting his spousal maintenance obligations. Lekhuleni J emphasised that the respondent remained married to the applicant and owed her a duty of support, contrasting this with his non-existent legal obligation toward his partner.
The respondent’s failure to pursue variation of the order under **Rule 43(6) compounded his position. Rather than seeking formal relief from his maintenance obligations through proper legal channels, he simply ceased payments without court sanction. Lekhuleni J characterised this “failure and nonchalant attitude” as constituting contempt of court, emphasising that proper legal remedies existed for parties genuinely unable to comply with maintenance orders.
Practice Points: Curatorship, Variation Applications and Strategic Considerations
This decision offers valuable practical guidance for practitioners navigating the intersection of foreign curatorship arrangements and South African maintenance obligations. Lekhuleni J‘s judgment demonstrates that foreign legal incapacity mechanisms do not automatically suspend domestic court orders, requiring proactive legal intervention rather than passive non-compliance.
The respondent’s strategic error lay in failing to pursue a Rule 43(6) variation application when his circumstances materially changed. This procedural avenue provides the appropriate mechanism for respondents genuinely unable to meet existing maintenance obligations due to changed circumstances. Practitioners should advise clients to seek immediate variation rather than unilaterally ceasing payments, as the latter approach invites contempt proceedings regardless of underlying justification.
The court’s treatment of foreign currency considerations provides important guidance for international family law matters. Lekhuleni J noted that Swiss francs constitute “one of the strongest currencies in the world” and that the respondent “could have easily made payments to the applicant in rands, which is weaker than the Swiss franc.” This analysis suggests courts will scrutinise currency exchange advantages when assessing payment capacity in cross-border maintenance disputes.
From an evidentiary perspective, the judgment highlights the importance of comprehensive financial disclosure. The respondent’s failure to provide proof of financial inability significantly weakened his position, whilst his disclosure of substantial trust assets proved fatal to his defence. Practitioners should ensure clients provide complete financial pictures, including beneficial interests in trusts and foreign pension arrangements.
The enforcement mechanisms employed by the applicant demonstrate effective collection strategies. Her approach of attaching joint estate assets through warrants of execution whilst pursuing contempt proceedings created multiple pressure points for recovery. The court’s willingness to grant leave for future contempt applications provides a powerful enforcement tool for persistent defaulters.
Cost considerations proved significant, with Lekhuleni J awarding costs on a party-and-party scale including counsel fees on scale B. This outcome reinforces that unsuccessful respondents in maintenance enforcement applications face substantial cost exposure beyond the underlying arrears, creating additional incentives for compliance.
The judgment also illustrates the court’s approach to partial compliance claims. Despite the respondent’s argument regarding unclear quantification in the founding affidavit, Lekhuleni J accepted the applicant’s calculation methodology, noting that the claimed amount was “far less than the total arrears that the respondent owes.” This suggests courts will adopt pragmatic approaches to quantum issues where the underlying obligation remains undisputed.
Questions and Answers
What is the legal basis for spousal maintenance obligations in South African law?
Spousal maintenance obligations arise from the legal consequences of marriage, creating reciprocal duties of support between spouses according to their means, regardless of whether the marriage is in or out of community of property. The scope extends beyond bare necessities to reflect the couple’s social position and standard of living.
When can a court order maintenance pendente lite under Rule 43?
Rule 43 empowers courts to grant interim maintenance during pending divorce proceedings to ensure the financially dependent spouse receives support whilst litigation is ongoing. The maintenance continues until the divorce is finalised or the order is varied or set aside.
What constitutes wilful contempt of a maintenance order?
Wilful contempt requires deliberate disobedience of a court order with knowledge of its terms. The respondent must have the ability to comply but chooses not to do so. Genuine inability to pay, properly established, may negate wilfulness, but the burden lies on the respondent to prove such inability.
How does foreign curatorship affect South African court orders?
Foreign curatorship arrangements do not automatically suspend or excuse non-compliance with South African court orders. The respondent remains obligated to ensure compliance, potentially by instructing curators to prioritise maintenance payments or seeking formal variation of the order.
What remedies are available when maintenance circumstances change materially?
Rule 43(6) provides the proper mechanism for varying maintenance orders when circumstances change materially. Respondents should pursue formal variation rather than unilaterally ceasing payments, as the latter approach may constitute contempt regardless of changed circumstances.
How do courts assess a respondent’s ability to pay maintenance?
Courts examine both income and assets when determining payment capacity. The Oberholzer test requires consideration of the claimant’s reasonable requirements and the respondent’s ability to provide support. Asset liquidation may be necessary where income proves insufficient.
What enforcement mechanisms are available for maintenance arrears?
Applicants may pursue attachment of assets through warrants of execution, contempt of court proceedings, or both simultaneously. Courts may grant leave for future contempt applications if immediate payment is not made, creating ongoing enforcement pressure.
How do currency fluctuations affect international maintenance obligations?
Courts consider the relative strength of currencies when assessing payment capacity in cross-border matters. Respondents paying from stronger currencies to weaker ones may find courts less sympathetic to claims of financial hardship, as demonstrated with Swiss francs versus South African rands.
What disclosure obligations exist in maintenance proceedings?
Respondents must provide comprehensive financial disclosure, including all income sources, assets, and beneficial interests in trusts or other entities. Incomplete disclosure weakens the respondent’s position and may lead to adverse inferences regarding payment capacity.
Can medical incapacity excuse non-payment of maintenance?
Medical incapacity alone does not automatically excuse maintenance obligations. Courts examine whether the incapacity genuinely prevents compliance and whether alternative arrangements could ensure payment. Continued income receipt during incapacity may undermine claims of inability to pay.
What priority must maintenance payments receive among a respondent’s expenses?
Spousal maintenance ranks as a priority obligation arising from marriage. Courts will scrutinise expenditure on non-essential items or support for third parties when maintenance remains unpaid, as demonstrated by criticism of the respondent’s travel expenses for his partner.
How do courts approach partial payment claims in contempt proceedings?
Courts may accept pragmatic approaches to quantum calculations where the underlying obligation is undisputed. Partial compliance does not necessarily excuse contempt, particularly where substantial arrears remain and no formal variation was sought.
What cost consequences follow unsuccessful defence of maintenance enforcement applications?
Unsuccessful respondents face substantial cost exposure including legal costs on a party-and-party scale and counsel fees. These costs are additional to the underlying maintenance arrears, creating further financial pressure for compliance.
Can respondents rely on third-party decision-making to excuse non-compliance?
Delegation of financial decision-making to curators or other third parties does not absolve respondents of responsibility for ensuring court order compliance. Respondents must take active steps to instruct third parties regarding priority obligations including maintenance.
What factors determine the appropriate sanction for maintenance contempt?
Courts consider the extent of wilful disobedience, the respondent’s financial capacity, the period of non-compliance, and any attempts to rectify the breach. The availability of assets or income influences whether immediate payment orders or progressive sanctions are appropriate.
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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