A Decade of Enforcement and a Friday Evening Hearing
The judgment in E.H v J.C.J.V.D (19849/2022) [2026] ZAWCHC 576 (2 October 2026), delivered by Greig AJ in the Western Cape Division, is the latest instalment in a maintenance dispute that has outlived the marriage by a decade. The parties divorced in 2016 and the consent paper, made an order of court on 28 November 2016, obliged the husband to maintain the wife until her death or remarriage by paying cash maintenance, medical aid and insurance premiums, mortgage bond instalments and vehicle costs. There were no children of the marriage. The husband stopped paying altogether after 1 April 2020, blaming the collapse of his international construction work during the Covid-19 pandemic. Two applications to the Bellville Maintenance Court for discharge or variation failed. The wife obtained a writ of execution which produced a nulla bona return, laid a criminal complaint, and in November 2022 launched contempt proceedings when the arrears stood at R1 166 542,02.
Two orders made in the first half of 2023 would come to shape everything that followed. On 14 February 2023 Allie J, in an unopposed review brought by the husband, set aside the maintenance officer’s refusal to refer his complaint to a section 10 enquiry under the Maintenance Act 99 of 1998 and directed that the complaint be referred to the maintenance court. Then on 24 May 2023 Wathen-Falken AJ granted the contempt order. The husband, whose attorneys had withdrawn three weeks earlier, emailed that morning from the Democratic Republic of the Congo to say he could not attend. He was declared in contempt, ordered to pay arrears of R1 375 288,66 and given a suspended sentence of twelve months’ periodical imprisonment. He never complied and never applied for rescission. His new attorneys wrote in October 2023 asking the wife to stay execution for six months pending the section 10 enquiry “as contemplated in the Review Order”, threatening an urgent application if she refused. She refused. No application followed and, on the husband’s own version, nothing was done to progress the enquiry. A warrant and later a writ of commitment issued, and sheriffs in three jurisdictions tried and failed to arrest him. The Laingsburg sheriff recorded that the husband spoke to him “through a small window saying ‘that he knows about the warrant for his arrest'”, then shut the gate.
Matters came to a head on Friday 17 April 2026. The husband arrived at the Bellville Magistrates’ Court for a mediation arranged by the prosecutor in the criminal maintenance matter. The sheriff and the police arrived too and told him that unless he produced an order suspending the writ by 17:00 he was to report to the Goodwood police station that evening to be held until Sunday. His attorneys prepared a two-part urgent application that afternoon. Part A sought the suspension of the contempt order and the writ; Part B seeks rescission of the contempt order. The notice of motion framed Part A as ex parte, but Mphego AJ refused to hear it without notice to the wife and stood the matter down to 18:00. At 17:02 the wife, who was out shopping, received a WhatsApp message attaching the papers. At 18:04 a Teams link was sent to her daughter, and the wife joined the virtual hearing from her daughter’s home without legal representation. The transcript records her telling the court “Sorry I haven’t read the documents because I worked today”, asking “What? Sorry, what do you mean by submission?”, and eventually saying “I want the Writ to remain”, to which the court responded “All right. I’ve heard you.” Mphego AJ granted Part A in terms of the husband’s draft order. The order contained no return day and no directions for the exchange of papers or the enrolment of Part B.
Nearly a month later, on Monday 11 May 2026, the wife launched the application that is the subject of this judgment, set down for the urgent roll on Wednesday 13 May 2026. She asked that the stay order be reconsidered and set aside under Rule 6(12)(c) of the Uniform Rules, alternatively rescinded under Rule 42(1)(a) or at common law. The husband opposed and gave notice of an application under Rule 6(15) to strike out passages of her founding affidavit. The matter was postponed by agreement and argued before Greig AJ on 10 June 2026.
Self-Created Urgency and the Price of a One-Day Set Down
The court dealt first with urgency, and the wife did not fare well. Her application was emailed to the husband’s attorneys at 14:21 on the Monday, required notice of opposition by 16:00 that afternoon and an answering affidavit by 09:00 the next morning, for a hearing the day after. The justification offered was that the husband was due to appear in the Bellville criminal court on 14 May 2026 and could be arrested there if the suspension were lifted beforehand. The delay from 17 April to 11 May was explained only in general terms as time needed “to obtain the recording of the MS Teams conference before Ms Acting Justice Mphego to establish what had in fact happened, and consult with [the applicant’s attorneys] regarding the implications of the order”.
Greig AJ restated the familiar standard. Relying on East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196 (23 September 2011) and Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W), the court held that an applicant must set out explicitly in the founding affidavit the circumstances rendering the matter urgent and why substantial redress cannot be obtained in due course, and quoted the well-known passage from Luna Meubel that “Mere lip service to the requirement of Rule 6(12)(b) will not do, and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm which is involved in the time and day for which the matter be set down.”
Measured against that standard the explanation was found inadequate. The answering affidavit revealed that the recording had been obtained from the registrar on 29 April 2026, a fact the wife did not deal with in reply, leaving twelve calendar days unexplained. The court accepted the husband’s submission that had the consultation and drafting each taken two or three days, he could have been given about a week to answer. Tellingly, the wife was prepared on 13 May to agree to a postponement of several weeks, and it emerged that the husband would in any event have had to attend the criminal court on later dates, so the 14 May date “was not critical”. The court also noted that the written reply which the wife undertook to deliver after the hearing on 10 June only arrived on 13 August 2026. The urgency, the court held, “has every appearance of having been self-created”.
The consequence was a targeted costs sanction rather than a striking from the roll. Because the parties had agreed to argue the matter on a later date and the need for finality between them was pressing, Greig AJ heard the application but ordered the wife to pay the husband’s wasted costs of the 13 May 2026 set down, including counsel’s costs on Scale B. The lesson for practitioners is plain. Where a month passes between the impugned order and the application, every step in that month must be accounted for in the founding affidavit, with dates and correspondence, and the respondent must be given the longest period to answer that the true deadline allows. A deadline that evaporates on enquiry invites exactly this kind of order.
When Is a Litigant “Absent”? Rule 6(12)(c) and Rule 42(1)(a) Reconsidered
The heart of the judgment is the question whether the stay order was granted in the wife’s “absence”, which is the jurisdictional foundation for reconsideration under Rule 6(12)(c) and, as the court held, for rescission under Rule 42(1)(a) as well. Rule 6(12)(c) provides that “A person against whom an order was granted in such person’s absence in an urgent application may by notice set down the matter for reconsideration of the order.” Citing ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) and South African Airways SOC Ltd v BDFM Publishers (Pty) Ltd and Others 2016 (2) SA 561 (GJ), the court accepted that absence is the “underlying pivot” of the sub-rule and that, once engaged, the court undertakes “a comprehensive revisit of the circumstances as they present at the time of the reconsideration”.
The wife’s argument was that physical presence is not determinative and that the real question is whether a party has been afforded the opportunity to place her version before the court by way of an answering affidavit. For this she relied on Madavanhu and Others v 1st Insurance Brokers (Pty) Ltd and Another (7134/2017) [2021] ZALMPPHC 56 (2 July 2021), in which Semenya ADJP held that respondents who sat in the gallery without filing affidavits were not “present”, relying in turn on Rainbow Farms (Pty) Ltd v Crockery Gladstone Farm (HCA15/2017) [2017] ZALMPPHC 35 (7 November 2017). In Rainbow Farms the full court had held that “the presence or absence of a party can only be determined by whether that party has submitted affidavits or not” and that “where opposing papers have not been filed there is a ‘default’ even if the Respondent in the matter or his legal representative is present in Court”, drawing on Morris v Autoquip (Pty) Ltd 1985 (4) SA 398 (W), First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (C) and Katritsis v De Macedo 1966 (1) SA 613 (A).
Greig AJ declined to follow this line of reasoning and explained why with some care. Rainbow Farms concerned rescission of a judgment and the meaning of “default”, not reconsideration under Rule 6(12)(c). Autoquip and Myburgh were summary judgment cases in which opposing affidavits had in fact been filed, and the question was whether a court could disregard them when the defendant did not appear; they are no authority for the proposition that a party who has filed nothing is thereby absent. “Default”, the court reasoned, is a context-dependent concept that may consist in a failure to file papers, a failure to appear or a failure to continue attending, and is “not necessarily congruent with absence”. The “absence” enquiry under Rule 6(12)(c) is narrower: “It is less concerned with whether a party’s case was fully or adequately put, than with whether the party was afforded the opportunity to be present and to be heard.”
The court found decisive support in the Constitutional Court’s judgment in 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 (CCT 52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021), which held in the context of Rule 42(1)(a) that the words “granted in the absence of any party affected thereby” “exist to protect litigants whose presence was precluded, not those whose absence was elected”, and that “the issue of presence or absence has little to do with actual, or physical, presence and everything to do with ensuring that proper procedure is followed so that a party can be present”. Zuma concerned a litigant who chose to stay away, the converse of this case, but Greig AJ held that “the principle applies both ways. If absence does not turn necessarily on physical presence, neither does presence.” The question is whether the party was precluded from participating by procedural irregularity. Short notice in an urgent application is not such an irregularity, because Rule 6(12)(a) expressly permits the court to dispense with the forms and service in the rules: “Notice abridged by the court in the exercise of that power is the procedure which the rules contemplate for urgent matters; it is not an irregularity which precludes participation.”
Having held that Rainbow Farms and Madavanhu, to the extent they support a test of “meaningful participation” or the filing of affidavits, did not bind the court and would not be followed, Greig AJ added that the relevant passage in Madavanhu was in any event obiter, the interim order having lapsed long before judgment, and that the Supreme Court of Appeal in Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd (592/18) [2019] ZASCA 61 (20 May 2019) had not dealt with the meaning of “absence” in Rule 6(12)(c). The court was fortified by the principle of finality in Ex parte Nel 1957 (1) SA 216 (N) and Firestone South Africa Ltd v Genticuro AG 1977 (4) SA 298 (A), and warned of the practical consequences of the wider test: urgent orders are almost by definition granted on abridged notice and sometimes without opposing affidavits, and “if the brevity of the notice were enough to render a party absent, the requirement of absence would be deprived of meaning. The profusion of reconsideration applications which would follow may well be imagined.” The court distinguished Morudi and Others v NC Housing Services and Development Co Ltd and Others [2018] ZACC 32; 2019 (2) BCLR 261 (CC), where the High Court had refused audience to parties who wished to be heard; Mphego AJ “did the opposite: she declined to proceed without the applicant”. The court also recorded that it had not approached the matter on the footing that “simple interlocutory orders” may be varied under Bell v Bell 1908 TS 887 and Sayprint Textiles (Pvt) Ltd and Another v Girdlestone 1984 (2) SA 572 (ZH), since the relief sought was “radical” and the application had not been brought on that basis.
On the facts, the wife was notified at the court’s insistence, attended by video link, was asked whether she wished to oppose and what she wished to say, and said that the husband had known of the writ for two years and that she wanted it to remain. “Limited as it was, that was an opportunity to address the Court.” The jurisdictional foundation for Rule 6(12)(c) was not established. The same requirement of absence defeated the Rule 42(1)(a) claim, since under Zuma an applicant must show both absence and that the order was erroneously sought or granted, and “Both grounds must be shown to exist.”
Non-Disclosure, Fraud, Mediation and the Court’s Management of Part B
The wife’s alternative case rested on non-disclosure. She contended that the husband, having approached the court ex parte, was bound to disclose every material fact under Schlesinger v Schlesinger 1979 (4) SA 342 (W), and relied also on A.M v M.A.M (024353/2024) [2025] ZAGPPHC 1231 (14 November 2025). The non-disclosures pleaded in her founding affidavit were three “impressions” said to have been conveyed to Mphego AJ: that the husband was unaware of the contempt application before the morning of the hearing, that he had no opportunity to oppose it, and that he had no opportunity to place his version before the court. The court was unpersuaded that any of these would have altered the outcome. The founding affidavit in the stay application did not say the husband was unaware of the hearing date; it said he was out of the country and could not attend, which was true. Nor was it apparent why the fact that he had opposed on the papers but then failed to appear would have counted against a temporary suspension of his imprisonment pending a rescission application.
The more serious complaint was the non-disclosure of the review order of 14 February 2023, but this was raised for the first time in reply. The court held that this was fatal to its use as a ground of rescission. The wife had not mentioned the review order in her founding affidavit at all; it surfaced only when the husband complained in his answering affidavit that she had failed to disclose it before Wathen-Falken AJ, to which she responded that her counsel had handed up a photograph of it and submitted that no proceedings were pending under it. “A ground of rescission first raised in reply, and then only in answer to a complaint by the respondent, cannot properly found the relief sought.” In any event the court accepted that the review order would have strengthened rather than weakened the husband’s case before Mphego AJ, since a High Court judge had found on review that his complaint warranted an enquiry into whether good cause existed to vary his maintenance obligations. On the strict Schlesinger duty, the court held that although the stay application began as ex parte it was not heard as one, and “The rationale for the strict duty of disclosure applies with little, if any, force where the party affected has been given notice and heard, however limited the notice which the urgency allowed.”
The common law claim failed on the burden of proving fraud. Citing Bankorp Ltd v Ridl 1993 (4) SA 276 (D) and Cape Town Council v Pinn (1906) 23 SC 213, the court held that it must be shown that the successful party was party to a fraud which misled the court into giving a judgment it would not otherwise have given, and that fraudulent intent must be affirmatively proved. The wife’s affidavits were “replete with the words ‘fraud’, ‘fraudulent’ and ‘deliberate misrepresentation'”, but no fact was identified from which an intention to mislead could be inferred “as opposed to an incomplete, and hurriedly prepared, account of a long litigation history”. Since final relief was sought, the husband’s version had to be accepted unless untenable. The husband’s own strike-out application was dismissed, the court finding the impugned characterisations necessary to plead a fraud-based rescission and not unduly prejudicial, though it observed that some allegations “do sail close to the wind” and made the costs of that application costs in the cause in Part B.
The court’s remarks on mediation and its directions for Part B are where the judgment’s even-handedness is most evident. The wife had indicated in her Rule 41A notice that she was unwilling to mediate and contended that the prosecutor could not mediate arrears “crystallised” by the contempt order. The husband professed willingness to mediate but sought a “once off” solution. Greig AJ declined to label the husband’s stance insincere merely because he sought an overall settlement, but accepted that “the respondent’s continued failure to pay any maintenance at all, and his evident failure to progress the section 10 enquiry after the review order was granted in his favour on 14 February 2023, are matters of grave concern, and raise similar questions about his own bona fides.” Without deciding the crystallisation point, the court remarked that “it is by no means self-evident to me that the law precludes mediation of all disputes between the parties” and that a matter which “has its origins in a divorce and has since spawned a decade of litigation, seems to me an ideal candidate for mediation”. The parties cannot be compelled to mediate, but the reasons for any failure may be taken into account on costs in Part B.
Finally, invoking the court’s inherent power under section 173 of the Constitution as recognised in Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC), and noting counsel’s concession that the draft order Mphego AJ was asked to make “left something to be desired” in its regulation of Part B, the court imposed a timetable: the wife’s answering affidavit within 15 court days, the husband’s reply within 10 court days thereafter, and a hearing date to be agreed within 15 court days failing which either party may approach the Registrar for the semi-urgent roll. The parties must take into account the likely duration of the maintenance enquiry in Bellville, which the court learned had by then been converted from the criminal proceedings, so that the enquiry may be finalised before Part B is heard, with provision for a postponement application if it has not concluded 30 court days before the hearing.
The remaining costs were reserved as costs in the cause in Part B, the court observing that the application “was to a large degree an attempt to pre-empt Part B” and that the wife’s complaint of an indefinite suspension “is a point of substance, though it did not found the relief she sought”. The court closed by stressing that nothing in the judgment should be read “as endorsing the manner in which the stay application was framed and served, or the respondent’s failure, over nearly three years, to do anything about a contempt order of which he was fully aware”. Neither party emerged with much to celebrate: the wife lost her application and must pay wasted costs; the husband keeps his stay for now but carries his derelictions, and the court’s pointed observations about them, into Part B.
Questions and Answers
What is the jurisdictional requirement for a reconsideration application under Rule 6(12)(c)?
The order must have been granted in the absence of the person seeking reconsideration. Greig AJ, following ISDN Solutions, described absence as the “underlying pivot” of the sub-rule. Only once absence is established may the court undertake the comprehensive revisit of the circumstances contemplated in South African Airways.
Does physical presence at the hearing conclusively establish that a party was “present”?
Not on its own, but the enquiry does not turn on physical presence either. Drawing on Zuma, the court held that the question is whether the party was precluded from participating by procedural irregularity. A party who attends by video link at the court’s direction and is invited to address the court is present for the purposes of Rule 6(12)(c).
Is a party who has not filed an answering affidavit “absent” for purposes of Rule 6(12)(c)?
No. The court expressly declined to follow Rainbow Farms and Madavanhu to the extent they suggest that absence is established merely because opposing papers were not filed. Urgent orders are frequently granted without opposing affidavits, and the filing of papers is not the test.
Does short notice of an urgent hearing render the respondent “absent”?
No. Rule 6(12)(a) permits the court to dispense with the forms and service in the rules. Notice abridged under that power is the procedure the rules contemplate for urgent matters and is not an irregularity which precludes participation. The court warned that if brevity of notice sufficed, the absence requirement would be deprived of meaning.
Why did the court hold that Rainbow Farms and Madavanhu were not binding?
Rainbow Farms was a full court decision of the Limpopo Division on the meaning of “default” in a rescission application, not on Rule 6(12)(c). The summary judgment cases it relied on, Autoquip and Myburgh, involved opposing affidavits that had been filed and did not support the wider proposition. The passage in Madavanhu was in any event obiter because the interim order had lapsed before judgment, and the SCA in Crockery Gladstone Farm did not address the point.
How does the “absence” requirement apply to rescission under Rule 42(1)(a)?
In the same way. The sub-rule permits rescission of an order “erroneously sought or erroneously granted in the absence of any party affected thereby”. Under Zuma both absence and error must be shown, and the sub-rule protects litigants whose presence was precluded, not those who attended and were heard.
What must an applicant show to obtain rescission at common law on the ground of fraud?
That the successful party was party to a fraud which misled the court into pronouncing a judgment it would not otherwise have given. Following Bankorp and Cape Town Council v Pinn, fraudulent intent must be affirmatively proved; mere non-disclosure of material facts does not establish wilful concealment.
Does the strict Schlesinger duty of disclosure apply where an ex parte application is converted into one on notice?
Only with little, if any, force. The court held that the rationale for the strict duty applies where the affected party has had no opportunity to be heard. Where the judge insists on notice and the party attends and is invited to make submissions, the court will not approach the matter on the hypothetical basis that it was heard ex parte.
Can a ground of rescission be raised for the first time in a replying affidavit?
No. An applicant must make out her case in the founding affidavit. The non-disclosure of the review order, raised only in reply and only in answer to a complaint by the respondent, could not found the relief sought.
What are the requirements for establishing urgency under Rule 6(12)(b)?
The founding affidavit must set out explicitly the circumstances which render the matter urgent and why substantial redress cannot be obtained in due course, as held in East Rock Trading. Per Luna Meubel, the applicant must justify the particular extent of the departure from the norm involved in the time and day chosen for the hearing.
What was the consequence of the inadequately motivated urgency in this case?
The court did not strike the matter from the roll, because the parties had agreed to a later hearing and finality was pressing, but ordered the applicant to pay the respondent’s wasted costs of the initial set down on 13 May 2026, including counsel’s costs on Scale B.
Did the court treat the stay order as a “simple interlocutory order” capable of variation?
No. The court noted that under Bell v Bell and Sayprint Textiles courts remain reluctant to vary even simple interlocutory orders, doing so only for purely procedural or incidental changes, fresh facts or where the object has fallen away. The relief sought here was “radical” and the application had not been brought on that basis.
What is the significance of the principle of finality in this judgment?
The court relied on Ex parte Nel and Firestone for the principle that a judgment once pronounced is final save in exceptional circumstances, of which Rule 6(12)(c) and rescission are examples. This fortified the narrower reading of “absence”, since a wide test of “meaningful participation” would undermine finality and produce a profusion of reconsideration applications.
What power did the court invoke to set a timetable for Part B?
The inherent power to protect and regulate its own process under section 173 of the Constitution, as recognised in Eke v Parsons. The court used it to fix dates for affidavits and heads, require the parties to agree a hearing date, and provide for postponement if the maintenance enquiry has not concluded.
What did the court say about mediation in a long-running maintenance enforcement dispute?
That the parties cannot be compelled to mediate, but that a matter originating in a divorce and spawning a decade of litigation is an ideal candidate for it. The court doubted that the law precludes mediation of all the disputes between the parties, including arrears said to be crystallised by a contempt order, and indicated that the reasons for any failure to mediate may be taken into account on costs in Part B under Rule 41A.
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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