THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 771/21

In the matter between:
ADRIAN JOHN SAMUELS

APPELLANT
and
GAYAAT SALIE-HLOPHE

RESPONDENT

Neutral citation: Samuels v Salie-Hlophe (Case no 771/21) [2023] ZASCA
49 (13 April 2023)
Coram:
MOLEMELA, NICHOLLS, MOTHLE and MEYER JJA and
OLSEN AJA
Heard:
15 February 2023
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be at 11h00 on 13 April 2023.
Summary: Civil procedure - Contempt of court - whether appellant was
entitled to a postponement to allow him to present his case before high court
made the order committing him to prison - high court did not determine

whether the appellant’s conduct was male fide and wilful beyond a reasonable
doubt - this must take place before there is an order for committal.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Kubushi J, sitting as court of first instance):
1 The appeal is upheld, with no order as to costs.
2 The order of the Western Cape Division of the High Court, Cape Town,
is set aside and substituted with the following order:
‘1
The application for postponement is granted.
The respondent is to pay the wasted costs occasioned by the
postponement on the unopposed scale.’
The appellant is to file his answering affidavit in the application for
committal within 15 days of the date of this order, and the respondent may file
a replying affidavit within 10 days of receipt of the answering affidavit.

JUDGMENT

Nicholls JA (Molemela, Mothle and Meyer JJA and Olsen AJA
concurring)

[1] This appeal arises out of a maintenance order made in the Western Cape
Division of the High Court, Cape Town (the high court), pursuant to a
longstanding and acrimonious matrimonial dispute. The central question is
whether the appellant should be committed to prison for three months for

contempt of court, as a result of his failure to make payment in terms of the
maintenance order. Aligned to this, is whether the appellant was entitled to a
postponement to present his case before the high court made the order that he
be committed to prison.

[2] The appellant, who was the respondent in the high court, is a practising
advocate in the Western Cape. The respondent, the applicant in the high court,
is a Judge in the same division. To avoid any suggestion of impropriety,
judges from other divisions presided over matters concerning the parties.

[3] Pursuant to divorce proceedings, on 29 July 2013 Samela J granted an
order against the appellant, which inter alia, provided that he pay a
contribution towards the maintenance of the minor children in the sum of
R6000 per month per child; all amounts owing to the Springfield Convent
School (the school); and all educational costs, including the costs of extra-
mural activities and uniforms at the school. The appellant did not appeal this
order.

[4] The appellant failed to make the payments as ordered. After making
numerous attempts, over a period of many years, to enforce compliance with
Samela J’s order, the respondent finally brought an urgent application for
payment of the sum of R138 413.90. This was allegedly the outstanding
maintenance amount in terms of Samela J’s order. The urgent  application was
successful and on 4 December 2020 the high court (per Mudau J) ordered the
appellant to comply with the order of Samela J and that R138 413.90 be paid
to the respondent by no later than 17h00 on Friday 18 December 2020.
Further, if the appellant failed to comply, the respondent was granted leave to

set the matter down on 48 hours’ notice for an order that the appellant be
declared in contempt of court, a warrant be issued for his arrest and he be
committed to imprisonment for a period to be determined by the court.

[5] The appellant failed to make payment of the sum of R138 413.90, or
any part thereof, before 18 December 2020. As provided for in Mudau J’s
order, the respondent launched an application that the appellant be held in
contempt of Samela J’s order and that a period of imprisonment be imposed
as a result of his wilful disregard of the court order.

[6] The application for committal was heard by Kubushi J in the high court,
on 2 March 2021. The high court was satisfied that the respondent had made
out a case for the relief that she sought and ordered that the appellant be
declared in contempt of Samela J’s order of 29 July 2013 and be committed
to a period of three months’ imprisonment. An application for a postponement
brought by the appellant on the day of the hearing was dismissed.

[7] The appellant applied for leave to appeal against the decision of the
high court dismissing his application for a postponement and for finding him
in contempt of court. In respect of the latter, his grounds of appeal were that
he only owed R20 000 as the unpaid school fees were due to the school and
not the respondent who, at best, had a claim of unjustified enrichment against
him. He repeated his stance that the COVID-19 pandemic had ‘profoundly
diminished’ his financial situation. Leave to appeal was dismissed by the court
a quo but granted by this Court.

[8] In this Court, the respondent has elected to abide by the Court’s
decision. The thrust of the appellant’s argument is that the high court erred in
refusing him a postponement in order to provide him with an opportunity to
file a further affidavit in response to the respondent’s supplementary affidavit.
It is therefore the refusal of the postponement that is the focus of this appeal.

[9] In her supplementary founding affidavit to the application for
committal, the respondent set out details of the appellant’s conduct after
Mudau J’s judgment and order on 4 December 2020. A few days later, on
8 December 2020, the appellant’s attorneys wrote to the attorneys of the
respondent indicating that the appellant would not be in a position to pay
school fees given his ‘precarious financial circumstances’. It was therefore
clear that he would not abide by the court order.

[10] This prompted the respondent to re-issue a writ of execution against the
appellant, in an attempt to attach a Range Rover SUV which was registered in
his name. The Sheriff attended the premises on 10 and 14 December 2020,
and observed the said motor vehicle parked at the property. However, the
return of service included only a list of movables in the sum of R19 000 which
were the subject of an interpleader application. When the sheriff returned on
21 February 2021, there was a Mercedes Benz and a Mini Cooper parked at
the premises but the Range Rover was nowhere to be seen. The appellant
handed over an affidavit stating that he had sold the Range Rover and it had
not been in his possession since 17 December 2020. He refused to inform the
sheriff to whom it had been sold or the whereabouts of the vehicle. An eNatis
inquiry, conducted on 22 February 2021, revealed that the appellant was still
the registered owner.

[11] The respondent alleged that this was a pattern of behaviour that she had
previously borne the brunt of. After successfully obtaining an anti-dissipation
order against the appellant on 08 September 2015, the respondent alleged that
the appellant had sold an immoveable property which he held as an
investment, to a cousin, in an attempt to ensure that it would not be placed in
trust as ordered by the court.

[12] As regards the payment of school fees, on 10 December 2020, the
appellant unilaterally gave notice of termination to the children’s school
because of his precarious financial position which rendered him unable to pay
school fees. He requested the appellant to consider a more affordable
secondary school.

[13] The notice of set down for the committal of the appellant was served
on him on 24 February 2021, to be heard on 2 March 2021. In his affidavit
requesting a postponement, the appellant stated that on 22 February 2021, two
days before receiving the notice of set down, he received a report from a
neurosurgeon at Kingsbury hospital that his sister had been diagnosed with
terminal 4th stage lung and spinal cancer. This unexpected news of her
imminent death had a devastating effect on him.

[14] Despite being an advocate practising mainly in criminal law, the
appellant stated that he was unable to secure the services of a legal team before
1 March 2021. It is inexplicable why he was unable to secure the services of
a legal team before 1 March 2021. In any event, he had an attorney throughout.
It can safely be assumed that the appellant was not oblivious to the
consequences of failing to comply with a court order. Requests to the

respondent’s legal representatives for a postponement were turned down,
forcing the appellant to bring a substantive application for postponement on
the day of the hearing.

[15] Other than his sister’s illness, the appellant’s grounds for postponement
are as follows. Firstly, he states that a substantial portion of the monies
claimed are not due. As a result, the respondent has no locus standi to bring
this application which is an abuse of the legal process. The appellant is only
in arrears for a small amount and this was occasioned by the adverse effects
of COVID-19 on his practice. Thus, the quantum is in dispute. Secondly, the
application for his committal is based on inadmissible hearsay evidence and
the appellant requires time to deal with what he refers to as ‘spurious
allegations’. A further complaint is that the respondent’s husband should have
recused himself from the process rather than securing judges from outside the
province. Finally, the respondent seeks radical relief which has been brought
with indecent haste and has the effect of trammelling his constitutional right
to liberty.

[16] The high court criticised the appellant for bringing the application for
postponement on the day of the hearing, when he was aware as early as
24 February 2021 that the respondent was going to oppose the application.
Moreover, he was aware that the proceedings could be brought on 48 hours’
notice. The court did not engage with the reasons advanced for requesting
postponement but found that the appellant’s argument that the amount in
arrears was in dispute and much less than R138 413.90 did not assist him,
especially as he was in arrears before the COVID-19 pandemic, which he
blamed for his inability to pay. As the full amount was not paid and the

appellant remained in contempt of court, the application for postponement
was dismissed on the basis that the grounds raised by the appellant did not
assist him in the main application.

[17] All South Africans have a duty to respect and abide by the law. As the
Constitutional Court stated in Secretary of the Judicial Commission of Inquiry
into Allegations of State Capture, Corruption and Fraud in the Public Sector
including Organs of State v Zuma and Others,1 courts ‘unlike other arms of
the State . . . rely solely on the trust and confidence of the people to carry out
their constitutionally mandated function’2 which is to uphold, protect and
apply the law without fear or favour.3 Disregard of court orders is an attack
on the very fabric of the rule of law.

[18] The attempt to evade payment of maintenance orders is particularly
egregious as it also undermines the best interest of the child principle.4 If court
orders in respect of maintenance are habitually evaded with relative impunity,
not only is the justice system discredited but also the interests of the child are
not adequately protected. Courts are enjoined to be alive to recalcitrant
maintenance defaulters who use legal processes to side-step their obligations
towards their children.5

1 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18; 2021 (9) BCLR 992
(CC); 2021 (5) SA 327 (CC).
2 Ibid para 1.
3 See also S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) para 17.
4 Section 28(2) of the Constitution provides that ‘[a] child’s best interests are of paramount importance in
every matter concerning the child.’
5 Bannatyne v Bannatyne and Another [2002] ZACC 31; 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) para
32.

[19] The requirements for contempt of court are now trite. They are the
existence of a court order; the contemnor must have knowledge of the court
order; there must be non-compliance with the court order; and, the non-
compliance must have been wilful or male fides. Once the first three elements
have been shown, wilfulness and male fides will be presumed and the
evidentiary burden switches to the contemnor.6

[20] It has been recognised by our courts that where a committal is ordered,
the standard of proof in civil contempt matters has to be the criminal standard.7
In those circumstances, wilfulness and male fides have to be shown beyond
reasonable doubt.8 Put differently, the contemnor has an evidential burden to
create a reasonable doubt as to whether his conduct was wilful and male fide.
There is a different standard of proof where no criminal sanction is sought;
then, the standard of proof is that of a balance of probabilities. While all wilful
disobedience of a court order made in civil proceedings is a criminal offence,
civil mechanisms that are designed to induce compliance without resorting to
committal, are competent when proved on a balance of probabilities.9 The
hybrid nature of contempt proceedings which results in committal, combine
civil and criminal elements. But this does not mean that contemnors are not

6 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA); Pheko and Others v
Ekurhuleni Metropolitan Municipality [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC);
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in
the Public Sector including Organs of State v Zuma and Other [2021] ZACC 18; 2021 (9) BCLR 992 (CC);
2021 (5) SA 327 (CC).
7 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC)
para 61.
8 Ibid para 62.
9 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 17; Matjhabeng Local
Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty)
Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) paras 64-67.

afforded the substantive and procedural protections which apply to any
individual facing the loss of his freedom.

[21] It is in the light of the above that the refusal of the postponement must
be considered. Whether or not the request for postponement was merely a
delaying tactic, once there is the potential of an individual’s loss of liberty, it
was incumbent on the court to ensure that the appellant’s conduct was
male fide and wilful beyond a reasonable doubt. Whether the failure to meet
his financial obligations to the respondent was intentional, or as a result of the
deterioration of his financial circumstances, was not an issue that was
considered by the high court, despite the appellant having raised it in his
application for postponement. Nor was this aspect considered by Mudau J,
who left that question open and merely stated ‘[w]hether or not that
explanation is truthful is irrelevant to the first part of this application,
paragraphs 1 and 2 of the relief sought by the applicant remains uncontested’.
Paragraph 1 referred to the urgency of the matter, while in paragraph 2, the
respondent sought an order that the appellant comply with Samela J’s order
of 29 July 2013, by making payment of the sum of R138 413.90, into the trust
account of the respondent’s attorneys by no later than 17h00 on 18 December
2020. This means that whether the conduct of the appellant was wilful and
male fides beyond reasonable doubt has not been determined. Such an
exercise must take place before there is an order for his committal.

[22] The maintenance orders are for the benefit of the appellant’s minor
children, not his ex-wife, the respondent. While I am mindful of the fact that
the appellant was forced to approach this Court, thereby incurring costs, I am
equally mindful that the respondent did not oppose the appeal and undertook

to abide. I am therefore of the view that the circumstances are such that there
should be no costs order in this appeal.

[23] In the result I make the following order:
The appeal is upheld, with no order as to costs.
The order of the Western Cape Division of the High Court, Cape Town,
is set aside and substituted with the following order:
‘1 The application for postponement is granted.
2 The respondent is to pay the wasted costs occasioned by the
postponement on the unopposed scale.’
The appellant is to file his answering affidavit in the application for
committal within 15 days of the date of this order, and the respondent may file
a replying affidavit within 10 days of receipt of the answering affidavit.

________________________
C H NICHOLLS
JUDGE OF APPEAL

Appearances

For appellant:
J van der Schyff
Instructed by:
NSW Attorneys, Cape Town
Phatshoane Henney Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

13 April 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Samuels v Salie-Hlophe (Case no 771/21) [2023] ZASCA 49 (13 April 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with no order as to costs,
an appeal against the decision of the Western Cape Division of the High Court, Cape Town (the high
court).
The core issue before the SCA was whether the appellant should be committed to prison for three
months for contempt of court, as a result of failing to make payment in terms of a maintenance order.
Aligned to this, was whether the appellant was entitled to a postponement to allow him to present his
case before the high court made the order committing him to prison.
Pursuant to divorce proceedings, a maintenance order was granted against the appellant, which inter
alia, provided that he must make a contribution towards the maintenance of the minor children in the
sum of R6000 per month per child; all amounts owing to the school that the children attend, including
the cost of extra-mural activities and school uniforms. The appellant failed to make payments as
ordered. After numerous attempts, over a period of many years, the respondent approached the high
court and launched an urgent application, to enforce compliance with the maintenance order. The
urgent application was successful and resulted in the respondent being ordered to comply with the
maintenance order and that the arrear maintenance must be paid to the respondent by no later than
17h00 on Friday 18 December 2020. Failing which, the respondent could set the matter down on 48
hours’ notice for an order that the appellant be declared in contempt of court, a warrant be issued for
his arrest and he be committed to prison for a period to be determined by the court. The appellant failed
to comply with this order and the respondent accordingly launched the said application.
The high court was satisfied that the respondent had made out a case for the relief that she sought. As
a result, the high court declared the appellant to be in contempt of the maintenance order and ordered
that he be committed to prison for a period of three months. The appellant’s application for a
postponement, made on the day that the application for committal was heard, was dismissed. The
appellant applied for leave to appeal this decision. His grounds of appeal were that the amount of arrear
maintenance claimed by the respondent was incorrect and that the COVID-19 pandemic had
significantly diminished his financial situation. Leave to appeal was dismissed by the high court but
granted by the SCA.
The SCA held that where a committal is ordered, the standard of proof in civil contempt matters has to
be the criminal standard, ie wilfulness and male fides have to be shown beyond reasonable doubt. The
hybrid nature of contempt proceedings which results in committal, combine civil and criminal elements.
But this does not mean that contemnors are not afforded the substantive and procedural protections
which apply to any individual facing the loss of his freedom. The SCA found that the high court did not

determine that the appellant’s conduct was mala fide and wilful beyond a reasonable doubt. As a result,
the SCA upheld the appellant’s appeal and made an order that the appellant’s application for
postponement in the high court succeeds. No order was made as to costs.

~~~~ends~~~~