A woman sought orders from the High Court in Cape Town for her husband to be imprisoned and fined, claiming he was in contempt of court because he would not pay for their two children to attend a private school.
The parties have been embroiled in what Acting Judge Mushahida Adhikari described as “acrimonious and protracted divorce proceedings” for five years.
Much of the litigation has centred on the husband’s alleged non-compliance with an interim maintenance order (Rule 43 order) granted in 2019, Adhikari AJ said when giving reasons for a decision handed down in January.
The wife brought an urgent application for an order that her husband – alternatively, his parents – pay the children’s “arrear” school fees within 48 hours of the order being granted. Failing this, a warrant for his arrest should be issued, and he should be sentenced to six months’ imprisonment, or an alternative period determined by the court.
She also sought a contempt-of-court order against her husband for his alleged failure to adhere to the Rule 43 order. This part of her Notice of Motion called on the court to sentence him to 12 months’ imprisonment, suspended for two years on condition that either he or his parents paid the school fees within 48 hours of the order being granted. His alleged contempt of court should also result in the imposition of a fine.
In addition, she sought a costs order on the attorney and client scale.
Private school only
Until the end of 2023, the children attended a private school in Constantia where the fees exceeded R270 000 a year.
The husband said he could not afford the fees for the private school. He arranged for the children to attend a public school in Wynberg, where they had been accepted. He could afford to pay the public school’s fees of R43 525 a year.
But the wife refused to consent to the children’s moving to any other school, contending this would not be in their best interests and that the children did not want to move to another school.
She submitted that the older child had been enrolled at the public school in Wynberg in 2015 but had to return to the private school later that year because she could not “adjust to the curriculum structure” and “risked having to repeat the grade”.
But Acting Judge Adhikari said no evidence had been placed before the court to substantiate the contention that some eight years later, the older child would still face the same difficulties if she were to attend the public school, nor was there any evidence that the younger child would experience the same or similar difficulties if she attended the school.
The judge said the wife’s refusal to consent to the enrolment of the children in a school other than the private school has resulted in the children not attending school at all this year.
“Her conduct in this regard is unreasonable and manifestly not in the interests of the minor children.”
Not arrear fees
The husband’s answering affidavit stated he had taken out loan of R600 000, secured by a bond over his property, to meet his Rule 43 obligations. These funds have been depleted.
He provided the court with documents showing that his net monthly salary was R40 779.69, while his expenses came to R41 438.61, before paying the school fees and maintenance. He told the court he paid the school fees and maintenance from loans taken out with various financial institutions.
The wife disputed her husband’s submissions about his finances.
But Adhikari AJ said she made no attempt to show that her husband earned an income more than that which he had disclosed, and she made no attempt to dispute the nature and extent of his disclosed monthly expenses, or the nature and extent of his indebtedness.
In October 2023, the wife obtained payment of R277 653.62 from Old Mutual pursuant to a warrant to attach her husband’s retirement annuity (RA) fund. She used part of this money to settle the arrear school fees for 2023, and the balance to settle her outstanding legal fees.
In her application, she sought an order directing that her husband pay R40 414.60, which she characterised as “arrear” school fees owing to the private school in Constantia.
But Adhikari AJ said it was not accurate to characterise this amount as “arrear” school fees. It was in fact what the private school required for the children to commence schooling in 2024.
The school fees for 2023 had been fully paid, and the wife sought payment of the R40 414.60 only because she insisted that the children attend the private school and no other, the judge said.
Not basis to use RA funds for legal fees
Adhikari AJ said the wife did not disclose how much she paid in respect of legal fees. But given that the 2023 arrear school fees were R79 764.32, it was reasonable to assume that the balance, about R197 899, went to legal fees.
The judge said the Rule 43 order required the husband to pay an initial contribution of R25 000 to his wife’s legal costs. There was no allegation that this amount was not paid. It was therefore unclear on what basis she was entitled to use the money received from her husband’s RA to settle her legal fees, as opposed to paying the children’s 2024 school fees.
The judgment noted that the Rule 43 order states the husband must pay “the children’s comprehensive educational costs”, not the fees of a specific school.
There was no basis on which to find that the husband’s failure to pay the R40 414.60 constituted contempt of the Rule 43 order, or that his conduct was male fide and wilful beyond a reasonable doubt, Adhikari AJ said.
Furthermore, there was no basis on which the wife could hold the children’s grandparents liable, in contempt proceedings, for her husband’s Rule 43 obligations, even if she had been able to demonstrate that her husband had failed to comply with that order.
Punitive costs order dodged
Adhikari AJ said she would have awarded costs on a punitive scale against the wife were it not that she was unemployed and dependent on the maintenance from her husband.
Furthermore, considering that she has previously used the maintenance to defray her legal costs, if costs were awarded against her, there was no doubt that she would seek to recover her costs from her husband in further proceedings in terms of the Rule 43 order. Therefore, the judge directed each party to pay its own costs.
‘Unwilling or incapable of bringing any sort of sense’
Adhikari AJ had some harsh words for the wife and her legal representatives.
The applicant’s affidavits failed to refer to the fact that the divorce proceedings were subject to case management before Judge Nathan Erasmus.
“There was no explanation proffered for this failure, or for why these proceedings were brought in the urgent court without any reference to Erasmus J as the case management judge. These unexplained failures are concerning,” the judge said.
She said the litigation in respect of the interim maintenance will continue unabated until the divorce is settled or finally determined by a court. Judge Erasmus reached the same conclusion, which was why he took on the role of case management judge in respect of the divorce.
Adhikari AJ said the wife’s legal representatives appeared to be “either unwilling or incapable of bringing any sort of sense to bear on the process. It is in the interests of the minor children and in the interests of the proper administration of justice that the divorce is finalised as soon as possible.”
She therefore directed that the parties immediately approach Judge Erasmus’s registrar to manage the conduct of the divorce action.
