E.V.A v J.V.A

The applicant and respondent were divorced on 2 December 2019, with a Deed of Settlement incorporated into the court order. The respondent was obliged to pay R16,500 monthly maintenance to the applicant for three years, escalating annually per CPI, with provisions for the parties to agree or approach the Maintenance Court after three years. The existing order would remain in force until varied or set aside. The respondent failed to make full payments from December 2020, paying only R5,000 per month at times. The respondent initiated proceedings in the Strand Maintenance Court to vary the order, but the matter was adjourned sine die for settlement and subsequently closed. A warrant of execution for R60,038.83 was issued and executed in September 2023. The applicant sought an order declaring the respondent in contempt for failure to comply with the maintenance order.

• Whether the applicant was precluded from approaching the High Court given the Maintenance Court proceedings
• Whether the respondent's non-compliance with the maintenance order was wilful and mala fide
• Whether the respondent had discharged the evidentiary burden to rebut the presumption of wilfulness and mala fides
• What constitutes an appropriate sanction for contempt of a maintenance order

1. The respondent is found to be in contempt of the order of 2 December 2019. 2. The matter is referred to the Maintenance Court to quantify arrears, assess the respondent's ability to pay, and issue an order on monthly maintenance. 3. Should the respondent fail to initiate maintenance proceedings within 30 days, the applicant may approach the court to impose an appropriate sanction with leave to supplement papers. 4. The existing maintenance order remains in place until amended, varied, or set aside. 5. The respondent is directed to pay the applicant's costs on a party-and-party scale at Scale A.

Once the first three elements of civil contempt (existence of an order, service/notice, and non-compliance) are established, wilfulness and mala fides are presumed. The respondent bears an evidentiary burden to rebut this presumption by leading evidence sufficient to create reasonable doubt. A respondent alleging inability to pay maintenance must make full and proper financial disclosure; bare assertions of unaffordability without supporting documentary evidence are insufficient to discharge this burden. A court order remains binding and must be obeyed until it is set aside or varied by a court of competent jurisdiction, and a party cannot unilaterally alter the terms of a maintenance order by paying only what they deem affordable.

The court observed that had the respondent taken the court fully into his confidence with proper financial disclosure, the court might have considered the matter differently, similar to F.S v Z.B. The court emphasised that courts jealously guard their orders and ensure compliance 'by all and sundry', asserting their authority in the public interest as guardians of the Constitution.

This case reaffirms the constitutional imperative that court orders must be obeyed and applies the established Fakie/Pheko test for civil contempt in the specific context of maintenance orders. It underscores the stringent disclosure obligations on respondents who allege unaffordability as a defence to contempt, citing the 'scourge' of spouses failing to pay maintenance. It confirms that maintenance orders fall into a special category where contempt proceedings are competent for enforcement. The judgment also provides guidance on the forum for enforcement where parallel Maintenance Court proceedings have stalled or been closed.