- Judge finds husband not in wilful contempt, delays and inaction weakened wife’s case.
- Six-year-old interim order under Rule 43 deemed untenable after husband lost his job.
- Court sets aside maintenance obligations, each party to bear their own costs.
The couple married in 2014 in community of property and have no children. Divorce proceedings began in 2019, when the wife sought a decree of divorce, lifelong rehabilitative maintenance of R30 000 per month, and the appointment of a liquidator to divide the joint estate. In response, the husband conceded that the marriage had irretrievably broken down and sought forfeiture of the marital benefits.
Pending the divorce, the wife obtained a Rule 43 order in October 2019 compelling her husband to pay her R7 500 per month, medical aid costs, and motor vehicle expenses. She later alleged that he defaulted almost immediately and owed nearly R250 000 in arrears by September 2022.
However, the husband argued that he had lost his job at Transnet in 2021 following disciplinary proceedings, forcing him to survive on odd jobs. He said he simply could not afford the payments.
Court’s criticism of delays
Judge Robin George Mossop noted that contempt proceedings are inherently urgent and must be brought promptly. Yet the wife had waited nearly two years after the last payment before filing her contempt application, and another three years before it was heard.
"Why should the court now be interested in considering an issue of alleged non-compliance with an order, or devote scarce judicial resources to considering that issue, when the applicant herself was not desirous of immediately enforcing the court order when the default first occurred?" the judge asked.
He also criticised both parties for allowing their divorce to "inch forward at glacial speed," leaving a supposedly temporary maintenance order in force for more than six years. Rule 43 orders, Judge Mossop stressed, are designed to provide short-term relief during pending divorce proceedings, not to operate indefinitely.
Changed circumstances
The court accepted that the husband’s non-payment stemmed from inability rather than wilful disobedience. His job loss was proved by certification from Transnet, while the wife admitted she had since become financially self-supporting. With no continuing need on her part and no means on his, the judge found the basis for interim maintenance had collapsed.
In the end, Judge Mossop dismissed the contempt application, granted the husband’s counter application to set aside the 2019 maintenance order, and directed that each party pay their own costs.
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