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The obligation to pay maintenance is an important legal duty placed on all individuals who have dependants, such as former spouses and children. This obligation is enforced via the Maintenance Act 99 of 1998 and provides for the implementation and enforcement of maintenance orders through various means, including, in extreme circumstances, contempt of court applications.

Contempt of court

Contempt of court applications refer to proceedings brought against a person for disobeying an order of court, but for such proceedings to be successful, three requirements need to be met. There must firstly be a court order in place, secondly, that the person has knowledge of, and lastly, that the person is disobeying, either wilfully and/or in bad faith. There is a criminal sanction of a fine or imprisonment, or both, attached to a successful contempt of court application, and as a result, an applicant launching such an application would need to prove their case beyond a reasonable doubt. This means that the evidence must be strong enough that there is no reasonable explanation for the default.

When a party to legal proceedings disobeys a court order, it undermines the authority and integrity of the justice system. This may lead to a loss of public trust and confidence in the legal system. By holding individuals accountable for their actions, contempt of court applications help ensure that the courts can function effectively and impartially.

S v S H – background

The matter in question involves a practising advocate who, after divorcing his wife, now a judge in the same high court division, had been ordered by means of a court application to pay outstanding maintenance for the children of the marriage. After non-payment of the amount in question, contempt of court proceedings commenced.

The High Court proceedings

This matter began in the high court after a series of unsuccessful warrants of execution to recover the outstanding maintenance. However, unlike most other enforcement of maintenance claims, it ended on the question of whether the circumstances were met for the non-paying party to be imprisoned as a result of disobeying the court order to pay such outstanding maintenance. The relief sought and order granted stated that, should payment not be made by the specified date, leave is automatically granted for contempt of court proceedings.

After non-compliance with such an order, contempt of court proceedings began. On the day of the hearing, the Adv S had, in court, requested a postponement despite not having brought a proper application before the court hearing. This was on the basis that, amongst other things, he had allegedly not had the opportunity to appoint legal representatives given certain personal circumstances (even though he was an advocate and had attorneys on record throughout the legal process), and, according to him, the vast majority of the outstanding amount was school fees and therefore owed to the school rather than his now ex-wife, and that she, at most, may sue him for unjustified enrichment. His request for postponement was dismissed, and an order of three months’ imprisonment was granted against him.

Supreme Court of Appeal

Adv S appealed the high court’s decision to the SCA. The SCA’s role in the case of S v S H was pivotal in reevaluating the outcome of the contempt of court proceedings. The central focus of the appeal was the refusal of the high court to grant the advocate’s postponement request and the subsequent finding of contempt.

The SCA acknowledged the seriousness of non-payment of child maintenance and its potential negative impact on the well-being of the children involved. However, the court emphasised the importance of ensuring that the requirements for contempt of court were met beyond a reasonable doubt before imposing severe consequences like imprisonment.

The SCA decided to grant the postponement due to the requirements for contempt of court not having been proven beyond a reasonable doubt and, as a result, not justifying Adv S’s potential loss of liberty.

The court had to decide whether the request for postponement was merely a delaying tactic, given the potential for Adv S’s loss of liberty. The appeal court looked at whether the failure to meet his financial obligations was intentional or a result of the deterioration of his financial circumstances. This issue was not considered by the high court. The SCA was of the view that the high court did not consider whether the conduct of Adv S was wilful and in bad faith beyond reasonable doubt and that such an exercise must first take place before an order for his committal is granted.

In this judgment, the court reiterated that evasion of child maintenance payments undermines the principle of the best interests of the child and that this evasion is carried out with a sort of impunity, thereby discrediting the justice system while disregarding the child’s rights.


It is important to note that while imprisonment for contempt of court may seem like a limitation of one’s rights, the limitation is necessary in order to preserve the functioning of the courts and the rule of law.

The SCA’s decision serves as a reminder of the delicate balance between the rights of the parties involved and the need to uphold the rule of law and protect children’s welfare. Courts should carefully assess each case individually, considering the unique circumstances of the parties, in order to ensure that contempt of court orders are proportionate and justified.

In conclusion, the S v S H case highlights the gravity of child maintenance obligations and the significance of adhering to court orders. While contempt of court applications are necessary to ensure compliance, the courts must exercise caution and due diligence to protect the rights of all parties involved. The goal is to maintain the efficacy of the legal system while promoting the best interests of the child and ensuring a just and fair resolution for everyone. In this case, the high court did not determine whether the maintenance defaulter’s conduct was male fide and wilful beyond a reasonable doubt, and it is imperative that this exercise take place before an order for committal can be granted.

As always, seeking legal advice in maintenance or parenting disputes remains essential to navigate these complex matters effectively.