In a recent interesting  judgment handed down by FA Snyckers AJ in the Johannesburg High Court in the case of Ramdial v Naidoo, the mother brought an application to place the father in contempt of court of a previous court order to pay maintenance.

The facts of the case were as follows:

In 2017 the parents concluded a settlement agreement in terms of a divorce which was made an order of court. The settlement agreement provided that the mother would have primary residence of the two minor children and that the father would pay the following monthly amounts to the mother in terms of maintenance:

• R7500.00 per month per child (to be increased as per the CPI)

• 50% towards medical aid expenses, school fees, tuition fees, school uniforms, and extramural

The father stopped making any payments towards maintenance from February 2018, save for one payment made in August 2018. This was not in dispute by the father. By the time the order was granted in September 2020, the arrear amount was R742 000.00. The default on maintenance payments originally started in 2017 so the mother approached the maintenance court for a garnishee order. A garnishee order is where the court orders the father’s employer to pay a portion of his salary directly to the mother in fulfillment of the court order for maintenance. Unfortunately, after the garnishee order was granted, the mother was notified that the father was no longer employed at the auditing firm to which the garnishee order applied, and it could not executed.

The father’s argument was that he was unemployed for a period of time and had too many outstanding debts to be able to afford paying any maintenance to the mother. He alleged that he only had a surplus of R2600.00 per month. By the time the matter was heard in court, it was apparent that the father had found new employment and was earning a gross income of R147 000.00 per month. The father listed various loans and expenses that he had to pay off, but did not give enough detail as to why he had to take out the loans and expenses and why because of this he could not afford to pay maintenance.

During the course of the High Court application, the father brought a maintenance court application for a reduction in maintenance. Initially, he stated he could only afford R1000.00 per month per child. The father then formally changed his stance to say that he could actually afford R2500.00 per month per child and one third of school fees. His position seemed to change overnight.

What is important to note is that in terms of the father’s answering papers in the high court application,  his position was that he could not afford to pay any maintenance at all due to his debts and monthly expenses, However, in terms of the maintenance court application, in which he was the applicant, his stance was that he could afford to pay R2500.00 per month per child plus a third of school fees, which amounts to about an additional R6000.00 per month.

As a response to the application brought against the father for contempt of court, the father brought a counter application against the mother alleging that she did not comply with the court order in terms of the father’s contact to the children. The mother alleged and proved that the father had lost all interest in his children and chose not to see them.

The court took a very strong stance against the father calling his position “extraordinarily brazen” for the following reasons:

1. It is common cause the father earns about R150 000.00 per month;
2. He chooses to drive a BMW which costs him in excess of R11 000.00 per month;
3. He has his employer put away R10 000.00 per month for his retirement;
4. He spends R13 800.00 per month on online gambling and trading;
5. He prioritizes a list of debts of which the surrounding circumstances he chose not to disclose to court

Often, non-complying parents are under the impression that by merely proving an inability to pay maintenance due to an absence of means, for example, is a substantial defense to a contempt application. This is what the father tried to rely on.

S31 of the Maintenance Act 99 of 1998 deals with criminal prosecutions for failure to pay maintenance and states that:

• Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine.

• If the defense is raised in any prosecution for an offence under this section that any failure to pay maintenance in accordance with a maintenance order was due to lack of means on the part of the person charged, he or she shall not merely on the grounds of such defense, be entitled to an acquittal if it is proved that the failure was due to his or her unwillingness to work or misconduct.

Therefore, if it can be proven that a non-complying party cannot pay due to an absence of means or the inability to pay for whatever reason, but that failure to be able to pay is due to an unwillingness to work or misconduct on his part (such as gambling for example), then the defense no longer has merit.

The judge held that the father was in complete mala fide (in bad faith) contempt of the court order to pay maintenance, despite whatever his current ability to pay was, due to his lack of paying anything at all in terms of maintenance since February 2018. He did not even pay the R1000.00 per month per child, which he alleged he could pay on his own version in the maintenance court. The judge agreed with the mother’s counsel, who relied on the case JD v DD 2016 JDR in that, if the father were truly not mala fide, one would have expected him at the very least to have made reduced payments towards maintenance according to what he alleged he could afford.

The judge held that the mother’s prayer to have the father committed for twelve months imprisonment as a result of his contempt of court was a “most astonishing period of committal”. The mother also sought a grace period for purging the contempt of seven days, which the judge held to be unrealistic.

At the last minute, the mother requested a garnishee order be made for the attachment of a portion of the father’s salary. The judge stated that he was not sitting as a maintenance court in terms of S28 of the Maintenance Court Act and that although the High Court could order the employer to pay the amount into the mother’s account every month, the employer would have had to be joined as a party to the current proceedings as the relief being sought would be aimed at the employer, thus the employer would need an opportunity to oppose same.

In handing down the final order, the judge stressed that the order being handed down only related to the arrear amount owing. This is significant as the mother still has every right to make an application for a garnishee order against the father for the monthly maintenance, despite what that amount might be reduced to in terms of the variation application. Even if the father pays off the total arrear amount, he still must pay maintenance every month until the children reach 18 or are self-sufficient. Even if the maintenance court orders a major reduction in the ongoing proceedings, he still has to comply with the contempt court order for the arrear maintenance owing, which amounts to about R750 000.00.

The judge took a very harsh stance against the father’s counter application and observed that same was used  as a ‘tit-for-tat litigation strategy and a form of abuse” and as a result a punitive costs order was granted against the father.

The judge ordered the following:

1.  the father is placed in contempt of the divorce court order.
2. The father is to be committed to a 30-day imprisonment.
3. The imprisonment is suspended for one year on condition that the father pays the arrear amount off (the judge gave strict provisions for the payment of same, failing which, the father would be imprisoned).
4. The mother is given leave to approach the court on the same papers, duly supplemented, to serve a garnishee application on the father’s employer.
5. The father’s counter application is dismissed; and

The father is to pay the mother’s costs of the contempt application, as well as the counter application on the attorney client scale.