A Durban woman who wanted her estranged husband to be held in contempt of court for failing to pay spousal maintenance had her application dismissed.

The couple, who married in community of property in March 2014, found themselves in a lengthy and contentious divorce process that began in January 2019. With no children from the marriage, the wife sought monthly support from her husband, initially demanding R30,000 through the Rule 43 application.

In October 2019, the court ordered the husband to pay her R7,500 every month and retain her in his medical aid. He was also ordered to finance monthly instalments for her car.

She approached the KwaZulu-Natal High Court in Durban for relief after her husband defaulted on payments. She stated that as of September 2022, his arrears exceeded R240,000 when she filed her affidavit.

She wanted her husband to be held in prison for 30 days.

In response, the husband said the wife knew that he lost his job in May 2021 after he was dismissed by Transnet following disciplinary proceedings. Since his termination, he has relied on various odd jobs to support himself.

He further stated that the divorce proceedings have been unusually protracted, spanning six years. During this time, both his and his wife’s personal circumstances have drastically altered: she has become financially independent, while his own financial situation has steadily deteriorated.

Judge Robin George Mossop presided over the case and expressed concern over the significant delay in the wife’s actions. He highlighted that after the husband’s last payment in November 2020; she took two years to file the contempt application and a further three years to present it for adjudication. 

“Why did she wait two years before bringing the contempt application? Why did she wait another three years before setting her application down for adjudication? Nearly five years have now run their course since the respondent’s (husband) last payment and his consequent breach of the order,” said judge Mossop.

Moreover, the judge pointed out the need for finality in the divorce proceedings, which had dragged on for nearly six years. He stressed that the continued legal entanglement only added to the couple’s mutual distress.

“High Court litigation can be frustratingly slow. But I can discern no particular reason why this action should have dragged as it has. In my view, any potential sympathy for the applicant’s (wife) position has dissipated through her own inaction and has been replaced by the incipient realisation that the bringing of this application now may be the consequence of the furtherance of an undisclosed strategy pursued by her.

“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?” asked the judge.

The judge said the husband explained why he had not made the payments, and this was not disputed by the wife that he had lost his job at Transnet.

“In the circumstances, I am not persuaded that the respondent (husband) was in wilful contempt of the order, and I decline to grant the relief sought by the applicant (wife),” said the judge.

The application was dismissed.

sinenhlanhla.masilela@iol.co.za

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