Are You at Risk If You Ignore a Court Order?
Can there be ramifications if you choose not to comply with a Court Order? The divorce matter of L.M.G v J.M.G (124145/2023) in the Pretoria High Court dealt with this question.
An interim Rule 43 Order was granted against the respondent to pay maintenance to the applicant (per month) R 6 000.00 per child; R300.00 for the applicant; R3 000.00 in respect of the solar system; repairs and maintenance of her motor vehicle and if the vehicle was not available, to provide an alternative vehicle; to arrange and accept a quotation for new tires for her vehicle within three days of the Order; and to make contribution to the applicant’s costs in the sum of R40 000.00.
The respondent chose not to comply – he continued to make payment of those items that he paid before the Order (that he was aware of – his attorneys wrote to the applicant’s attorneys to advise that he intends not to comply, that he did not have the means to do so and that he intended to seek a reconsideration of the Order).
The applicant brought an application to Court in order that the respondent be held in contempt of the Order, that he be sentence to three months imprisonment which is to be suspended for two years on condition that the purges his contempt within three days.
When a contempt of a Court Order is sought to be punished by the imposition of a sentence, it has a criminal element to it that requires a Court to find beyond a reasonable doubt that the elements of the crime of contempt have been established. Once it has been established that the respondent is aware of the Order, and that he has not comply with it, then one must consider whether he acted wilfully and with mala fides. His reason for not complying with the Order is that he was financially not able to do so. This is an objective question. Firstly, the documentation at hand showed that there was not such a shortfall or inability to pay. Secondly the Court found his explanation regarding his involvement with a number of companies highly suspicious and drew an inference that he orchestrated the change in status in order to distance himself from those companies.
The Court held that the respondent has not been open and transparent. The respondent’s bank statements shows that he had received the sum of a R106 000.00 into his Standard Bank account on 3 May 2024 with the reference “magtape credit”, but the source of the monies has not been disclosed. On 6 May 2024, he transferred the sum of rand R 106 563.61 to his attorneys. His bank statement also show that when the Order was granted he had access to funds, he was able to comply with the Order and if he truly was of the view that the Order was unreasonable, he could have brought the application after having complied with the Order, but chose not to comply. No variation application has been brought. By the time the matter was heard, more than a month had elapsed since the Order was granted.
The respondent has made much about the fact that the applicant earns an income, and he “challenged” the applicant to disclose what she does with her money. The suggestion is that the applicant does not need the cash portion of the maintenance, and the Rule 43 Order was incorrectly granted. Judge Swanepoel held that the respondent’s submission is irrelevant to the current application – the previous Judge in the Rule 43 proceedings had consider the parties’ income and had dealt with that issue and it is not for the respondent to decide whether or not to abide by the Order because of his belief that Judge Retief incorrectly granted the Order as she did. Judge Swanepoel recorded that “…..the belief that respondent holds strengthens my view that his failure to comply with the Order is not so much the result of an inability to comply, but, out of a sense of grievance that his views did not triumph in the Rule 43 application.”
The Court held that the respondent was wilfully and mala fide in contempt of the Order and this would justify a punitive costs order.
The Court further held that the respondent was in contempt of the Order, and sentenced him to imprisonment for 3 months, suspended on the condition that the respondent complies with the Order during the period of suspension and that he purges his contempt within 3 days of this Order.
In my view, whether one is facing a contempt of Court application any civil or any other civil proceedings, the consequences of not adhering to a Court Order can easily be viewed as wilful and mala fides, and may have a severe impact on you. As always my recommendations is to obtain the advice from an attorney, clarify your rights, duties and obligations and ensure that you adhere to a Court Order. Further, and only if that Order is varied by another Court and a further Order, should you vary your obligations accordingly. To do so out of your own opinion or view may lead to you spending time in jail.
The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.
Author:

Michéle Engela
Michéle Engela is a director at CK Attorneys.
Related News
What documents must be provided by a decision maker in terms of Rule 53 of the High Court Rules?
What must a decision-maker provide under Rule 53? Key requirements, legal insights, and a recent case explained.
The Power of an Antenuptial Contract (ANC): Protecting your Assets and Financial Future
An antenuptial contract (ANC) protects your assets, debts, and financial future in marriage. Learn how it works and why legal advice is essential.
Substituted Service as One of the Alternative Remedies for Service in Divorce Proceedings
Understand Rule 44(1) substituted service for SA divorces. Professional legal advice tailored to your needs.