Possible alternative legislative provisions that might assist during the enforcement of maintenance orders

September 1st, 2023
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Section 26(1)(a) of the Maintenance Act 99 of 1998 provides that whenever any person against whom any maintenance order has been made has failed to make any particular payment in accordance with that maintenance order, the maintenance order can be enforced by execution against their property, by attachment of their emoluments or by attachment of debt. The provision is well formed, and it seemingly provides the platform for any applicant to enforce any maintenance order. It gives the applicant the assurance that when you have a maintenance order that has not been complied with, that the Maintenance Act provides the remedy to enforce payment of the arrear maintenance. The Constitutional Court (CC) in Bannatyne v Bannatyne and Another 2003 (2) BCLR 111 (CC) at para 25 held that: ‘The [Maintenance Act] is a comprehensive piece of legislation designed to provide speedy and effective remedies.’ This statement by the CC was put to the test in a recent Supreme Court of Appeal (SCA) case, S v SH (SCA) (unreported case no 771/21, 13-4-2023) (Nicholls JA (Molemela, Mothle and Meyer JJA and Olsen AJA concurring)). In order to understand the recent case in the SCA, one has to see how it developed.

The SCA case of S v SH

The appellant, the father of the children, in this case is an advocate in the Western Cape. The respondent, the mother of the children, is a judge in the Western Cape. The main question the court had to answer was whether the appellant should be committed to prison for contempt of court due to his failure to comply with a maintenance order. The respondent obtained a maintenance order against the appellant on 29 July 2013. The appellant did not appeal the July 2013 order. The appellant subsequently did not comply with the July 2013 order and the respondent applied to enforce the maintenance order. The respondent re-issued a writ of execution against the appellant. The sheriff approached the home of the appellant on 10 and 14 December 2020 and observed a Range Rover SUV parked at the home of the appellant and marked it for attachment. On 17 December 2020, the appellant informed the sheriff via an affidavit that he is no longer the owner of the Range Rover SUV. On 10 December 2020, the appellant unilaterally informed the children’s school that due to his ‘precarious financial position’, he is unable to pay the fees any longer and that the children will be attending another school. The respondent applied for the appellant to be committed to prison for his failure to comply with the order of 29 July 2013. On 4 December 2020, the High Court ordered the appellant to comply with the July 2013 order. At that time the appellant was in arrear in the amount of R 138 413,90. The December 2020 order was endorsed to the effect that, if the appellant failed to comply, the respondent could apply to have the appellant committed to prison. A warrant of arrest would be issued and a court would determine the period of imprisonment for his non-compliance based on the December 2020 High Court order. The application for the appellant’s committal was set down for 2 March 2021, giving the appellant an opportunity to address the court. On the day of the committal hearing the appellant informed the court that he had not secured a lawyer for that hearing. On the day of the committal hearing the appellant brought an application for postponement of the hearing and submitted that he should not be held in contempt of court. The application for postponement indicated the grounds on which the appellant relied. The appellant averred that his sister is terminally ill, and that the quantum of the arrears was not correct were advanced as some of the reasons. This matter was referred to the SCA in order for that court to determine if the High Court order, to commit the appellant to prison for non-compliance, was valid. The SCA found that the appellant was not given an opportunity to state his case and that he should be given an opportunity first before he could be committed to prison. The matter was referred back to the High Court in order to give the appellant an opportunity to state his case.

A little over seven years and four months went by before the respondent, mother of the children, finally came before the High Court for the court to issue yet another order in December 2020. The December 2020 High Court order was in essence a confirmation of the High court order obtained in 2013. The 2020 order was a confirmation of the fact that the appellant was in arrears and that he had the means to comply with the maintenance order obtained against him in 2013. The above difficulties existed from the moment the respondent obtained the maintenance order against the applicant. She on numerous occasions tried to enforce it, but with no success. The SCA case was to commit the appellant to prison for his non-compliance over many years of not abiding by the original maintenance order. This frustration and humiliation befalls many applicants, usually mothers, when they approach the maintenance courts with valid enforceable maintenance orders. These orders are at times not complied with for years. The ordinary applicant who approaches the maintenance court does not have the stomach to approach the High Court twice, the SCA and back to the High Court. An alternative remedy must be available to the ordinary person. An alternative provision that is effective and less time consuming.

Alternative provisions to aid an applicant during the enforcement of a maintenance order 

A closer look at the Domestic Violence Act 116 of 1998 (DVA) defines a complainant that can apply for a protection order under the DVA as a person who has been in a domestic relationship with the respondent. The DVA further defines a domestic relationship as a relationship between two people who are parents of a child or children. The DVA also acknowledges economic abuse as an act of domestic violence. Economic abuse is defined as ‘the deprivation of economic or financial resources to which a complainant is entitled under law’. Under any law includes the law applicable to the Maintenance Act 99 of 1998. The DVA allows an applicant to approach the court for a protection order against a respondent, not to unreasonably withhold payment of the maintenance. In terms of s 6(4) of the DVA a court must issue a protection order against the respondent if the court finds on a balance of probabilities that the respondent has or is committing an act of domestic violence. Section 7(7)(a) of the DVA prohibits the court to refuse a protection order to the applicant merely because other remedies are available or at the complainant’s disposal. The DVA specifically addresses the maintenance at s 7(7)(b) where it states that: ‘If the court is of the opinion that any provision of a protection order deals with a matter that should … be dealt with further in terms of any other relevant law, including the Maintenance Act, 1998, the court must order that such a provision must be in force for such limited period as the court determines, in order to afford the party concerned the opportunity to seek appropriate relief in terms of such law.’

Many of the enforcement applications brought in the maintenance court have their postponements and the parties do understand that the matter had to be postponed due to unforeseen circumstances. There is, however, the select few that have unreasonably tried to frustrate the process and cause postponements due to the fact that the respondent would rather deplete every legal avenue than to comply with the maintenance order. In such select cases the provisions of the DVA would greatly assist an applicant to obtain a protection order, interdicting the respondent from frustrating the payment of maintenance while the enforcement application is ongoing in the maintenance court. Section 8(1) of the DVA states that the court when issuing a protection order must issue a warrant of arrest which will be suspended, the suspension will only be valid while the protection order is not being breached. Section 17 of the DVA provides that if a person commits a breach of the provisions in the protection order a fine or a prison sentence, up to five years, can be imposed or both.

Conclusion

The SCA case above would have been a prime example of where the protection order process could have been employed. Many times, when applicants approach the maintenance court to enforce a maintenance order due to non-compliance, the respondent will still not pay. The failure continues even after they learned that an enforcement application had been brought against them. The protection order obtained in terms of the DVA will add that extra layer of protection while the enforcement application is not yet finalised. The provisions of the DVA contain an element of arrest and incarceration that would indicate to an unwilling respondent that the law is serious when the well-being of a child is at stake. In the rare event that a respondent’s action indicates an unwillingness to fairly participate in the maintenance process, the provisions of the DVA should be employed to protect the best interests of the minor child concerned. The DVA was not written in isolation or only for cases of physical abuse as it is currently being employed in the courts.

Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.

This article was first published in De Rebus in 2023 (Sep) DR 43.

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