Macingwane v Gqwede

The applicant and respondent were divorced on 7 June 2022 with a Deed of Settlement made an order of court. They had three minor children. The settlement agreement provided that the respondent (a legal practitioner practicing in Johannesburg) would be responsible for the children's educational expenses, including school fees, books, clothing, and other school-related costs. The respondent failed to pay school fees which accumulated to over R71,000.00, with the last payment made in May 2024. The applicant attempted to communicate with the respondent about the arrears via email in January 2025, but received unsatisfactory responses. The school's attorneys threatened legal action. The applicant's attorneys sent a demand letter on 11 January 2025 giving the respondent until 13 January 2025 to settle the account or make arrangements, failing which an urgent application would be launched. The respondent did not respond, and an urgent application was brought on 21 January 2025 seeking an order that the respondent be found in contempt of court and pay the arrears within 7 days.

• Whether the respondent was in contempt of the court order of 7 June 2022 by failing to pay school fees as stipulated in the settlement agreement
• What costs order should be made where an urgent application is withdrawn by consent after the respondent settles the debt on the day of the hearing
• What is the appropriate scale of costs (A, B, or C) under Rule 67A and Rule 69 of the Uniform Rules of Court in circumstances involving breach of maintenance obligations affecting children's rights

1. By consent the Applicant is granted leave to withdraw the application. 2. It is further ordered that the respondent should pay the costs of the application on Scale B.

A court may award costs on Scale B under Rules 67A and 69 of the Uniform Rules of Court where: (1) a party has been in contempt of a court order at the time an application is brought, even if the application is subsequently withdrawn by consent; (2) the conduct involves breach of maintenance obligations affecting children's constitutional rights; (3) the party in breach is a legal practitioner who should have known their obligations to comply with court orders; and (4) the importance of the relief sought (protecting children's rights and interests) justifies a higher scale of costs, notwithstanding that the matter itself is not complex. The award of costs remains in the judicial discretion of the court and must be exercised on grounds upon which a reasonable person could arrive at the same conclusion.

The court observed that court orders must be obeyed even if they are wrong until set aside by a competent court. The court noted that the withdrawal of the application 'saved the skin or the integrity/character of the Respondent', suggesting that had the matter proceeded, a formal finding of contempt would have been made. The court emphasized that Scale A should be the default position for run-of-the-mill cases, with higher scales (B or C) justified only where careful reference is made to clearly identified features marking the case as unusual, complex, important or valuable. The court also noted that it is unnecessary and impossible to formulate comprehensive rules regarding costs in constitutional litigation at this stage, and such rules should be developed on a case-by-case basis, citing Ferreira v Levin. The judgment reinforces the constitutional principle under section 166(5) that court orders bind all persons and organs of state to whom they apply.

This case is significant for establishing principles regarding costs awards in family law matters involving breach of maintenance obligations and children's rights. It demonstrates the court's willingness to award costs on a higher scale (Scale B rather than Scale A) under the new Rules 67A and 69 (effective April 2024) where a party's conduct involves contempt of court orders affecting children's constitutional rights to education, even where the substantive application is withdrawn by consent. The judgment reinforces that legal practitioners are held to a particularly high standard of compliance with court orders, and that the importance of protecting children's rights can justify a punitive costs order. It also clarifies that withdrawal of an application does not necessarily absolve a party from adverse costs consequences where contempt existed at the time the application was brought.