From Maintenance to Mayhem: When bitter divorce battles miss the mark.
"Contempt of Court is not a finding lightly made, nor is it any easier if twice displayed. Context is the thread, the core of this tale. The peculiar facts and Court orders required scrutiny for justice to prevail. Two hearts once united now clash in spite; hang not your linen for the crowd to pry in the courtroom's glare, where tempers ignite. Resolve your differences; let the discord die. Why drift along a torrent of strife, engulfed in bitterness as incisive as a knife? Settle the storm, escape the gloom, grab the chance to heal, and reclaim your purpose in this life. Judgment seeks not vengeance or ire but the truth alone, it does require."
In a recent ruling by the Western Cape High Court (Razia Alli v Iqbal Ealias Karbanee (19120/2020) [2025] ZAWCHC (19 March 2025)), Bhoopchand AJ showcased creativity while penning a rather serious judgment in the second application for contempt of court against the respondent for being in violation of a Rule 43 interim maintenance court order.
In the 43-page judgment, the Court goes to lengths to explain the long (and terribly expensive) history of litigation between two paediatricians married under Muslim rites on 3 November 2012 and a subsequent civil marriage on 31 August 2013.
The Applicant obtained a Rule 43 interim order for maintenance against the Respondent on 26 May 2021, in terms of which, the Respondent was ordered to pay the Applicant R25 000.00 p/m for accommodation, R13 000.00 p/m for his two minor daughter's expenses, which amounts would increase annually in line with the CPI. Additionally, the Respondent was to maintain his daughters on his medical aid and cover additional medical expenses not included in the medical aid, as well as pay 75% of their private school fees and all educational expenses. The list doesn't end there. The Respondent also had to contribute R5 000.00 per month towards the costs of an au pair for his minor daughters.
The Applicant successfully obtained the first contempt of court order against the respondent on 23 June 2023 for failing to comply with the Rule 43 order, under which the Respondent was sentenced to periodic imprisonment for one year, every alternate weekend, when he did not exercise contact with the children, suspended for three years provided he paid the arrears of R64 149.89 and deposited R557 807.00 into the applicant's attorney's trust account within ten days of the order.
The Court emphasised that in contempt proceedings, even the second time round, the applicant must prove the requisites of contempt, including order, service or notice, non-compliance, willfulness and mala fides and the Respondent bears the evidential burden concerning willfulness and mala fides and must establish a reasonable doubt as to whether the non-compliance was willful and mala fide.
Although non-compliance on the part of the Respondent was evident in the lengthy judgment detailing the Respondent's spending habits, the Court dismissed the contempt of court application after scrutinising the versions put to the Court by both the Applicant and Respondent.
The Court reasoned that the Respondent demonstrated that he could not afford his payment obligations, and as the standard was reasonable doubt, as opposed to on a balance of probabilities which is the case in civil proceedings, the Court held that the Applicant failed to discharge the onus of proving willfulness and mala fides beyond reasonable doubt, and therefore the Respondent could not be subjected to criminal sanctions for contempt.
The Court did not hesitate to criticise the litigants for "putting out their washing for the public to view" and urged the litigants to expend their efforts on finalising their divorce instead.
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