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The Law Desk - Dealing With Non-Compliance Of A Court Order

The Law Desk - Dealing With Non-Compliance Of A Court Order

Author: Fawzia Khan
Date: 2023-06-29

Contemptof court proceedings are brought when a person fails to abide a court order.The consequences of such failure are dire as it could mean imprisonment.

Inorder to be successful in contempt of court proceedings, you would need tosatisfy the court that (a) there is an existing court order; and (b) that thecourt order was properly served on the respondent; and (c) there has beennon-compliance of the court order. If on the other hand, the respondent canprovide evidence which would raises reasonable doubt that as to whether hisnon-compliance was wilful and mala fide, he would not be found to be incontempt of court.

Acase was heard in the Western Cape where a woman who was going through adivorce, obtained a court order under the Rule 43 provision, [where her husbandwas ordered pay her interim maintenance of R20 000 per month], pending thefinalisation of her divorce. In this case the parties were married both interms of civil law and in terms of Muslim law.

TheirIslamic divorce was finalised in April 2019 and only the civil marriage neededto be dissolved. In August 2021 the husband asked the court to vary the initialcourt order on the basis that the court order which was granted against him wasclearly above his earnings He said that after payment of the R20 000 asmaintenance, he was left with no funds at the end of the month and claimed thathis discretionary funds are depleted.

Theman fell into arrears with his payments. The wife brought a contempt of courtapplication against the husband for his failure to abide by the court order. Hecited economic hardships saying that he was the sole breadwinner and wasmaintaining two households.

Heargued that was forced to live beyond his means. The wife on the other handargued that she was the sole primary caregiver of the parties' children andsaid her financial situation was dire as she had limited resources. She saidshe battled cancer and had exhausted her credit card and was forced to borrowmoney from her family for her household needs. She insisted that her husbandwas able to pay but that he chose not to.

Thecourt found that the man was not in wilful default of the court order and dismissed the contempt of court proceedings.The court was also critical of the conduct of the woman whom it viewed asdelaying the finalisation of the divorce. It cautioned litigants not to use thecourts to financially exhaust the other litigant or as a weapon to settle thedivorce scores. The court reduced the man's maintenance toR15 000,00 per month, until the main divorce action was finalised.

Knowyour rights! The Law Desk of Fawzia Khan & Associates. Giving YOU the Powerof Attorney. Email fawzia@thelawdesk.co.za or call 0315025670 for legalassistance at competitive rates.