Maintenance arrears are notoriously difficult to collect, and in these hard times many dodgers will plead poverty. But particularly when children are involved our courts will not hesitate to threaten serial defaulters with jail for contempt of court – a wakeup call which has no doubt resulted in many a dodger changing tune with considerable alacrity from “I’m too poor to pay” to “Hang on, I have money after all”.
Two recent High Court cases illustrate. The first involved two children, over half a million in arrears, and a father claiming inability to pay but earning well and spending freely on a BMW and on an online gambling habit. The second case featured two dogs, a wife’s household expenses, and a company battered by the pandemic lockdown…
“Compliance with court orders is always important. There is a particular scourge in this country of spouses, particularly husbands, failing to pay judicially ordered maintenance” (extract from second judgment below)
Getting money out of serial maintenance defaulters is a notoriously difficult exercise, but even the most recalcitrant and cunning dodger will baulk at the prospect of being locked up for contempt of court.
And our courts, mindful of their position as “upper guardian” to all children, have shown again and again that they will have no hesitation in acting firmly against the sort of bad-faith defaulters we are talking about.
What must you prove?
You must prove not only a deliberate breach of the court order, but also that the breach was “wilful” and in bad faith. Although normally in non-criminal matters the standard of proof required is “on a balance of probabilities”, in contempt proceedings you have to prove bad faith on the much higher standard required for criminal convictions i.e. “beyond reasonable doubt”.
As the Court in the second case below put it: “If, on a conspectus of all the evidence, it is a reasonable possibility that the husband’s non-compliance was not wilful and mala fide, he cannot be subjected to criminal sanctions for contempt.”
Of course, genuine inability to pay, which is no doubt more common now than it was before the COVID-19 lockdown, is a different matter altogether. We are talking here about dodgers who are able to pay but refuse to do so. A defaulter who simply cannot pay should apply for a variation of the court order. If the order stands, payment must be made – end of story.
Two recent High Court decisions illustrate –
First case: A “brazen” defaulter’s choice – pay or go to jail
Second case: Sorry, dogs, it’s not quite the same for you
Although our courts naturally take a dim view of anyone disregarding any form of court order, jail time is not the only possible sanction. Thus, in another recent High Court case a fine (R20,000 conditionally suspended for three years) was imposed rather than a prison sentence.
As to why the defaulter in this case avoided a prison sentence (as requested by his wife) the Court concluded that “imprisonment is not called for. I am dealing with a first infraction, which is considerably narrower than what the wife alleged.” One wonders whether another factor in that outcome might have been the fact that no children were involved, just a wife seemingly “unattractively intent on extracting more than her ‘pound of flesh’” and two pampered pooches. Certainly, the wife’s failures led the Court to award the wife only 75% of her costs, and on the ordinary cost scale rather than on a punitive scale.
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