Olwethu Dolly Macingwane v Zukisani Gqwede

The parties were previously married and divorced on 7 June 2022. A deed of settlement, made an order of court, regulated their respective maintenance obligations towards their three minor children, including the respondent’s obligation to pay the children’s school fees and related educational expenses. The respondent, a practising attorney, failed to comply with this order and allowed school fees to accrue to over R71,000, with his last payment made in May 2024. Despite repeated requests and formal correspondence from the applicant and her attorneys warning that the children risked being excluded from school, the respondent failed to respond or make payment. The applicant accordingly launched an urgent application seeking a declaration of contempt of court and payment of the arrear school fees. On the hearing date, after service of the papers, the respondent settled the outstanding fees, and the application was withdrawn by consent. The only issue remaining was costs.

The application was withdrawn by consent, and the respondent was ordered to pay the applicant’s costs of the application on Scale B.

The case underscores the High Court’s firm approach to enforcing compliance with court orders arising from divorce settlements, particularly where the rights and welfare of minor children are implicated. It affirms that settling obligations after litigation has commenced does not shield a defaulting party from adverse costs orders. The judgment also provides practical guidance on the application of the new costs regime under rules 67A and 69 of the Uniform Rules of Court and illustrates that punitive or enhanced costs may be awarded based on litigant conduct rather than complexity alone.