A Cape Town woman who demanded that her soon-to-be ex-husband be sent to jail for six months for contempt of court because he could not afford to pay private school fees for their two children has been described as ‘callous’ in a finding by the Western Cape High Court.

A News24 report says in dismissing the woman's application, Acting Judge Mushahida Adhikari said the woman had kept the children out of school since the start of the year because she refused to send them to the government school her estranged husband found for them.

The couple is in protracted divorce proceedings, and at issue is the woman's refusal to accept that her husband cannot afford to keep paying R270 000 a year to keep their children at a private school.

The woman is unemployed and relies on the maintenance and school fees a court ordered that he pay her in 2019, until their divorce is final.

Her husband found spaces for the children at a well-known government school and committed to paying the more affordable fees the school charges.

However, the wife rejected this and has kept the children out of school until he coughs up for private education, saying one of the children could not cope with the structure of lessons at the government school.

Adhikari noted that the couple's separation agreement did not stipulate that the husband must pay fees for private education.

The court heard that he earns around R40 000 net a month, from which he pays the maintenance and school fees. He took out loans totalling R600 000 to meet his maintenance obligations but has run out of money.

The News24 report adds the man provided statements on his finances.

Adhikari said that in October 2023 the woman obtained a writ of attachment of her ex's Old Mutual retirement annuity and was paid R277 654 to cover outstanding school fees for 2023 and to pay her legal costs. 

‘She did not disclose how much she paid in respect of legal fees, however, given that the arrear school fees at the time amounted to R79 764, it is reasonable to assume that the balance, being a sum of approximately R197 899, was paid in respect of her legal fees.’

The woman also attempted to claim R40 000 in ‘arrears’ for school fees, but this turned out to be the upfront fees payable to the children's private school at the beginning of 2024 and not arrears because the man's Old Mutual policy had already covered the arrears.

Adhikari was concerned that the children had not been to school in 2024 because of the dispute.

The judge called her behaviour ‘callous and entirely inappropriate’ and refused the woman's application to send her husband to jail for contempt of court.

Adhikari also ordered the couple to take up Judge Nathan Erasmus' offer to manage their divorce proceedings in court.

Each party was held responsible for their own legal costs.

Full News24 report

Judgment