It often happens that a divorce order is granted, and one party is ordered to pay the other party’s legal fees, or ordered to pay maintenance for example, and simply does not comply with the court order. The client then consults his/her attorney and asks what can be done.
The remedy for the client in this case would be to bring a Notice of Motion to court requesting that the previous order be complied with. It would be common in such an application to request that the other party be convicted of contempt of court as a result of his/her non-compliance with the court order.
In the application you would normally ask that the other party comply with the court order by no later than say 7 days from the date when the application was heard in court, failing which your client is granted leave to apply to the court on the same papers, duly supplemented as may be necessary for an order:
1.Committing the Respondent to prison for a period of 10 days;
2.Striking out the Respondent’s defence to the Applicant’s action in the Honourable court and dismissing the Respondent’s claim in reconvention in that action;
3.Granting the Applicant the relief for which he/she prays in that action.
In your application you would also ask for such relief as the honourable court may deem meet and directing the Respondent to effect payment of the costs of the application.
Annexed to the Notice of Motion would also be an affidavit stating the Applicant’s age and address and job description, and that the facts contained are within the Applicant’s own personal knowledge.
Prior to such a Notice of Motion being brought, normally as a matter of courtesy the one attorney would send a letter to the other attorney asking that the court order be complied with. The attorney would state in that letter that the other party has failed to comply with the court order and that him and his client are now launching an application committing the other attorney’s client for contempt and striking out his defence.
Very often in the High Court particularly, the legal costs are exorbitant. They may even run up to R100 000 or more. For some or other reason the party who in terms of the court order has to pay these costs simply refuses to do so. The attorney may have to pay an advocate a huge bill sometimes of over R50 000 out of his/her own pocket. The Advocate would have a claim against the attorney for that money, and not against the client. The attorney would in such a situation have no alternative but to bring an application to court to ensure that the court order is complied with.
I have in my practise dealt with quite a few of these applications, both when we have launched the application, and when we have defended such an application. A divorce isn’t always over once the parties get divorced in court. Very often the biggest battle arises after the divorce when trying to ensure that the terms of the court order are complied with.