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It has been well documented in every court that the respondent (in most instances the fathers) will approach the maintenance court when difficulty befalls them and approach the maintenance court for a substitution (reduction) or when he learns that his child is self-supporting, for a discharge of that maintenance order even if he is in arrears with his maintenance obligation. Is it as simple as that or how have the courts decided on the rules that are applicable to hearing and finally dealing with such an application?
In SS v VV-S 2018 (6) BCLR 671 (CC) the court, even though initially not asked to do so, pronounce on the contempt of court by the appellant (father) due to his non-compliance with his maintenance obligation. The parties were married to each other in 2007 but a year later they got divorced. An order was granted against the father for the payment of maintenance for their minor child. The dispute between the parties arose out of the alleged non-compliance by the father to adhere to the maintenance order. The Constitutional Court (CC) noted that: ‘The precise extent of his default was unclear from the record but some clarity, though not sufficient, emerged during the course of this court’s first hearing of the matter.’ The father admitted to being in arrears, he disputed the amount produced by the mother as the actual arrear amount.
The mother brought a successful application to have his immovable property executed, he unsuccessfully appealed that decision in the High Court and the Supreme Court of Appeal (SCA) also dismissed his application with costs. He then appealed to the CC to have that High Court decision set aside. At para 17 the CC noted that: ‘There was a live and open question whether it would undermine this court’s integrity to hear the dispute while the applicant remained in default with his admitted maintenance obligations.’ At times the arrears will not be admitted as in this instance, but the applicant can have sufficient proof of arrears against the father even if he denies being in arrears. The most perplexing thing the CC did was at para 18 where it held that: ‘While it is so that the proceedings in this court on 29 August 2017 were not contempt proceedings, the concession of non-payment of the basic maintenance obligations, which was never in dispute, cannot simply pass without consequence.’ The court basically said that, even though this matter is not before us for contempt proceedings, we cannot overlook you not paying maintenance. At para 21 the court held that ‘his conduct, if left unaddressed by this court, would undermine judicial integrity.’
The CC in SS v VV-S held that: ‘All court orders must be complied with diligently, both in form and spirit, to honour the judicial authority of courts.’ This statement by the court is especially true for maintenance orders, where the consequence of non-compliance has an instant effect on the recipients of the maintenance money. At para 32 the CC wanted to know whether the applicant has paid his arrears? Through his lawyer he admitted to paying only R 150 000 of the R 306 550,18 in arrears. This payment was only done on the advice of his lawyers while this matter was pending in the CC. The court had to ascertain whether the father was still in arrears or not. At para 34 the court held that ‘there is no evidence that the applicant had remedied his conduct.’ If the mother brings said documentation that indicates the arrears amount, the father must gainsay said documentation with documentation of his own, absent said gainsay-documentation by the father, the court has to find on a balance of probabilities that the arrear amount has been established.
The CC had to determine whether it would be in the interest of justice to hear the father’s application, given that he was still in arrears. At para 34 the court asked this question of ‘whether the interests of justice are served by allowing the applicant to ventilate his argument in respect of the merits of the appeal.’ Simply put, can the father be allowed to bring an application before court, while being in arrears with his maintenance obligation? At para 35 the CC answered this burning question where it held that: ‘Those interests will not be best served and will be undermined if the applicant is allowed to proceed and deal with the merits of the Appeal in the absence of him remedying his conduct.’ The reason for the court’s statement was given at para 35 where the court further held that: ‘It will dilute the potency of the judicial authority and it will send a chilling message to litigants that orders of court may well be ignored with no consequence. At the same time, it will signal to those who are the beneficiaries of such orders that their interests may be secondary and that the value and certainty that a court order brings counts for little.’ To add to that, especially maintenance orders, may not be ignored. The court at para 36 concluded that allowing the applicant (father) to continue with his appeal ‘would clearly run counter to the interests of justice’ and the reason for not accepting his application was ‘his continued failure to respect this court’s integrity by flouting the August Order.’
The question now beckons, can a respondent approach the maintenance office for an application for substitution (reduction) or discharge while being in arrears? The CC decision in SS v VV-S clearly answered that with a resounding no, he cannot bring such an application while being in arrears. In terms of s 6(2) of the Maintenance Act 99 of 1998, the maintenance officer is obliged by law to investigate every complaint, if the investigation reveals that an application for a substitution or discharge has been brought and it was found that the person is still in arrears, such application must be turned down and on the basis that it appears that he is still in arrears. The Maintenance Officer should allow him to produce proof that he is not in arrears. In the absence of such proof to gainsay the arrears, the Maintenance Officer must give him written reasons for rejecting his application for substitution or discharge based on the decision in SS v VV-S. If a maintenance court (magistrate’s court) or a High Court did grant such an order after the SS v VV-S decision, such an order is null and void since all courts are bound to the decisions of the CC. In practice there is, however, ways to ‘by-pass’ the system. The mother is requested to ‘agree’ to write-off the arrears by consent and allow the father to conclude a more favourable agreement based on changes to his current financial situation. This change can be because of –
This practice of writing-off the arrear maintenance is in some instances necessary but in most instances should be frowned on.
It would be beneficial to examine relevant case law to determine whether Maintenance Officers should resist the writing-off of maintenance arrears in certain instances. In SA v JHA 2022 (3) SA 149 (SCA) the SCA had to decide whether arrear maintenance falls under a ‘judgment debt’ or ‘other debt’ as contemplated by the Prescription Act 68 of 1969. A judgment debt falls away after 30 years and other debt only after three years. At para 25, lawyers for the father argued that a 30-year period ‘allows the potential for abuse where a maintenance creditor [the mother] seeks to exploit a subsequent windfall in the life of the maintenance debtor.’ They also submitted that it would be ‘unreasonable to expect them to preserve documents for up to 30 years to deal with such claims.’ The SCA dismissed these arguments. At para 26 the court held that ‘such prejudice can be avoided by the debtor [the father] doing what all responsible citizens are supposed to do, namely to comply with court orders.’ The High Court ruled that a maintenance claim is a judgment debt and has a lifespan of 30 years. The father was unhappy with this decision and appealed it. The SCA dismissed his appeal and confirmed the High Court’s decision. Based on the decision in SA v JHA the Maintenance Officer can advise the applicants that she should not be in a hurry to write off any arrears. The legal practitioners in SA v JHA made mention of it, the father might experience a ‘windfall’ later in life as a result of an inheritance, good fortune or a well-paying job, that is currently not foreseeable. The arrears will not grow indefinitely, the law is clear that the children must be self-supporting. The financial burden of providing for the children will rest solely on the mother due to the father’s inability at that time. As the person that had to shoulder the financial burden, the decision in SA v JHA will make some restitution possible later. The arrears can be calculated if the father receives a windfall later in life. She will still be able to make a valid claim for arrear maintenance, even if it is 29 years after the fact.
At para 21 the CC in SS v VV-S held that: ‘A court’s role is more than that of a mere umpire of technical rules, it is “an administrator of justice … [it] has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.’ Many applicants approach the maintenance office while they must accept that circumstances are such that they cannot receive maintenance as yet from the respondent due to the current economic climate. Situations might change and the law as it stands makes it possible for whoever has a valid claim to still enforce it even if it was years in the making. The cumulative effect of the CC decision in SS v VV-S and the SCA decision in SA v JHA shows that the two highest courts in the land do not only speak of justice but make justice possible.
Andrew Swarts LLB (Unisa) is a District Court Prosecutor at the National Prosecuting Authority in Sutherland, Fraserburg and Williston.
This article was first published in De Rebus in 2024 (Oct) DR 20.
