High court beefs up maintenance court powers

Source: Published on the web byCape Times on October 28, 2005. © Cape Times 2005. All rights reserved.

By Fatima Schroeder

The Cape High Court has given single parents seeking maintenance from their former partners a major breakthrough by ruling that maintenance courts can grant any order to ensure that maintenance orders are satisfied.

This includes interdicting institutions from making payments to maintenance defaulters so that the money can be made to complainants instead.

Previously, these complainants had to consult advocates and approach the high court – a step which has proved too costly for many.

The ruling, by Justice Deon van Zyl was made on Tuesday when a woman took the maintenance magistrate and maintenance officer of Wynberg to court after battling for 10 years to obtain monthly maintenance for her son.

The maintenance court was unable to assist her, saying that its powers were limited.

But the high court’s judgment changes her situation.

The woman, who cannot be identified in order to protect the identity of her minor child, was divorced in 1994 and the maintenance court ordered that her former husband pay monthly maintenance as well as school fees and medical aid, but he defaulted.

According to the maintenance magistrate who dealt with the matter, the Maintenance Act only gave the court limited powers to ensure that the maintenance order granted was not breached.

But the woman’s counsel, Muhammad Abduroaf, argued that that the act should be interpreted in such a way that maintenance courts have extensive jurisdiction to make “any” order necessary to execute a maintenance order.

This would be in line with the constitution, which states that a child’s best interests are of paramount importance in every matter concerning the child, he argued.

The alleged defaulter is a former attorney who had been struck from the roll of attorneys for allegedly advising a client to withhold maintenance and taking the client’s money as fees which he put into safekeeping.

In addition, he had placed his own maintenance money in a pension fund which stands to realise R1 million.

While the court can grant a garnishee order over a salary, the money was protected in a pension fund. Frustrated, his ex-wife lodged an application in the Wynberg Maintenance Court in December last year for an order to assist her.

But the magistrate dismissed the application, saying she did not believe she had the authority to grant such an order.

The woman then turned to the Cape High Court for relief.

In court on Tuesday, Judge Van Zyl granted an order confirming that the Maintenance Act provided the maintenance court with extensive jurisdiction to make any order to enforce a maintenance order which had not been satisfied.