Not paying your child maintenance could cost you your house

2018-04-11 06:03

ON March 1, the Constitutional Court dismissed an application for leave to appeal a judgement of the High Court Pretoria, on the grounds that a father failed to remedy his default with regards to the payment of maintenance towards his son.

The Constitutional Court emphasised that there is a heightened obligation to ensure compliance with Court Orders where they affect the interests of children. The protection of the interests of children is enshrined in section 28 (2) of the Constitution which provides that “a child’s best interests are of paramount importance in every matter concerning the child”.

‘Mr S’ was to pay for maintenance of their child on a monthly basis as per the divorce order between himself and the mother.

The father stopped paying the maintenance at the end of 2012 and the High Court in 2014 granted a warrant of execution against him in the amount R306550,18.

When the Sheriff discovered that the father had insufficient movable assets to satisfy the debt, the mother successfully applied to the High Court to have his immovable property executable.

An application to have the attachment of the house set aside was dismissed by the High Court and an application for leave to appeal in the Supreme Court of Appeal was also dismissed. ‘Mr S’ then referred the matter to the Constitutional Court and the matter was heard on August 29, 2017.

The Court ordered that the matter be postponed to November 8, 2017, in order to give the father an opportunity to satisfy his maintenance obligations before the Court hears the merits of his appeal. However, on November 8, 2017, the Court found that the father still did not comply with the August order, as he failed to honour the terms that he would make monthly payments and other expenses in accordance with the High Court Order.

Accordingly the Court found that the interests of justice will be undermined if the father is allowed to deal with the merits of his appeal while he has failed to comply with the August Court order, explaining that it will send ‘a chilling message to litigants that orders of court may well be ignored with no consequence’. The Court remarked that as wide as its powers are, no Court can direct a parent to love and recognise a child but what it can do, is to point out that the duty to provide rests primarily on the parents of the child. Accordingly, the warrant of execution against the house of the father which the High Court issued still remains valid for the purposes of satisfying the debt for maintenance of the child.

Written by: Njabulo Shandu (Candidate Attorney)

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