Shaidat Aroyewun v Nurudeen Babatunde Aroyewun

The parties are married to each other and are in an acrimonious divorce which is still pending. On 13 July 2021, Gqamane J issued an order requiring the respondent to pay R22,000.00 monthly maintenance to the applicant on or before the 30th of each month. The respondent, a medical doctor who runs a private practice and is employed by the Department of Health at Livingstone Hospital in Gqeberha, defaulted on these payments. On 4 August 2022, the applicant brought an urgent application seeking to have the respondent found in contempt of court for failing to pay maintenance arrears, which had accumulated to R88,000.00 (later amended to R294,500.00). The applicant contended the respondent was able to pay as he had purchased a house for R3.2 million, married two additional wives under Muslim law, fathered three more children, and engaged multiple legal representatives. The respondent admitted being in arrears but denied willful or mala fide non-compliance, citing extreme financial predicament as the sole breadwinner responsible for three children's tertiary education. He demonstrated efforts to purge his contempt by selling two vehicles, attempting to access his pension fund, putting two properties on the market for sale, and seeking a new bond from Standard Bank.

• Whether the respondent was in contempt of the court order dated 13 July 2021
• Whether the requirements for civil contempt were established beyond reasonable doubt
• Whether the respondent's non-compliance with the maintenance order was willful and mala fide
• Whether the respondent discharged the evidential burden to prove his non-compliance was not willful and mala fide

1. The application to hold the respondent in contempt of the order of court dated 13 July 2021 is dismissed. 2. The respondent is ordered to pay an amount of R30,000.00 monthly, on or before the seventh (7) day of each month until the arrears amounting to R294,500.00 are paid. The issue of costs was held over until the end of the divorce proceedings.

In civil contempt proceedings for non-compliance with a maintenance order, once the applicant proves the existence of the order, service/notice, and non-compliance beyond reasonable doubt, the respondent bears an evidential burden to establish that the non-compliance was not willful and mala fide. A respondent can discharge this evidential burden by demonstrating concrete, reasonable steps taken to comply with the order, even if those steps have not yet resulted in full compliance. Non-compliance that is not deliberate and intentional, and is undertaken in good faith with genuine efforts to remedy the situation, does not constitute contempt of court. The test is whether the breach was committed deliberately and mala fide, with deliberate disregard alone being insufficient if the non-complier genuinely, albeit mistakenly, believes himself entitled to act in the manner claimed to constitute contempt.

The court observed that the matter took two years to be ripe for hearing, noting that "the issue of urgency has come and gone." The court also commented on the difficulty in determining the exact amount of arrears based on the papers and submissions, noting the amount varied from R88,000.00 to R294,500.00, and worked on the assumption that the latter amount was correct while noting that the trial court would be well placed to revisit this issue if incorrect. The court distinguished the findings of Lowe J in a previous Rule 43(6) application, noting that Lowe J did not decide whether the respondent had sufficient cash to pay maintenance, as that case dealt with different issues (contribution to litigation costs and an application to rescind an order).

This case illustrates the application of the principles for civil contempt of court in the context of maintenance orders in South African family law. It demonstrates that while non-compliance with a court order is admitted, a respondent can avoid a finding of contempt by discharging the evidential burden of proving that the non-compliance was not willful and mala fide. The case emphasizes that genuine efforts to comply with an order, even if unsuccessful, can demonstrate good faith and negate contempt. It also shows the court's willingness to fashion practical remedies (such as installment payment plans) to address maintenance arrears rather than immediately resorting to imprisonment, particularly where financial difficulties are demonstrated and reasonable steps to remedy the situation are taken.