In the recent case of H v B ZAGPJHC-2022-823, the Judge (Spilg J) gave a pretty blistering judgment against a husband who was a former practicing advocate stating – “The defendant has deliberately tested the tolerance of the court believing that he can abuse the system. There is a limit to the court’s tolerance for the antics of any litigant…… The defendant’s conduct in this litigation is deliberate and sufficiently egregious to warrant a special order for costs. “ The Honourable Judge required the husband to file full financial disclosure documents within tight time limits and made provision for him to serve time in jail if he didn’t do so and make payment of the maintenance obligations he was already in breach of – over R300 000 at that stage.
The High Courts have recently handed down a number of judgments in which a party not paying maintenance have been found to be in Contempt of Court. Each of these cases involved women who had tried to enforce their maintenance orders and had been unsuccessful – because the ex had run rings around the enforcement procedures and avoided payment on various pretexts. The High Court was happy to make orders requiring compliance, with the backup that jail time would follow if payment was not made by a specified date.
Of course the Maintenance court is the place to start enforcing your maintenance Order. Section 26 of the Maintenance Act, read together with sections 27 and 28 provides that the maintenance court will issue out an Order against a debtor’s salary (emoluments); a Warrant of execution to allow attachment and removal of assets or an Order attaching a debtor’s pension.
The order against pension (Section 28) is still a bit under used by SA women because few of us know about it – it’s the most useful order however because a debtor cannot usually cash himself out of his pension easily (usually he has to resign employment and sometimes that is not even enough). Also, this is easily the best way of quickly getting substantial cash. It can take a long time to attach and sell assets, whereas pension funds usually pay the money within a month of getting service of the proper court order. There is a form to be completed and of course one must prove the arrears by showing your banking accounts and the court orders. Your FICA documents are always needed by the courts and the Registrar always wants a birth certificate for each child.
It is usually only when your attempts in the maintenance courts go awry and you don’t get any satisfaction, that one should approach the High Court for contempt proceedings. In the Divorce courts there is a place for Contempt of court applications when a litigant simply abuses the procedures and tries to avoid bringing matters to finality.