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Arrest after failure to pay maintenance

Clients often ask me what the legal consequences are of failure to pay maintenance. If you fail to pay in terms of a court order, the reality of the matter is that a complainant may open up a criminal case and have you arrested.

Some clients are of the view that they do not have to stick precisely to the court order. For example the court order may stipulate that you must pay R2000 cash per month for the minor child. Some people believe for example that if they pay other expenses such as medical expenses or school fees to that amount, the R2000 cash stipulation would be set off against this. This is not how the law works however, and you can in fact be locked up for this.

A recent matter which has received much publicity is that of the grandson of former President Nelson Mandela.   An arrest warrant was allegedly issued recently after he failed to appear in court for not paying maintenance to his first wife.

According to the press Mandla Mandela, an ANC member of Parliament, had refused to accept a summons given to him. He had already missed three payments to his wife. Mandla Mandela is allegedly going through a divorce from his wife, Tando Mabunu-Mandela. Often in the middle of divorce proceedings there is a court order for maintenance allowed either through a Rule 43 court application to the High Court or through the usual local maintenance court.

What seems to be particularly interesting about this matter is how the rules of tribal law have here come into play in a maintenance matter. Mandla Mandela has allegedly married two other women apart from her in recent years. Polygamy is legal under tribal law. However a man cannot have different wives under both tribal law and under civil law. Mabunu-Mandela has allegedly successfully appealed to the court to rule against the other marriages.

Mandla Mandela has also allegedly been accused of expropriating village land to build a luxury hotel and sports stadium, and a court had to order him to release journalists he held hostage when they investigated the allegations.

Very often a court order gets hastily drafted by attorneys and signed by the parties in an attempt to settle a divorce or maintenance matter quickly. Sometimes a maintenance order is even drafted by a maintenance official at the court, and the parties sign without even having carefully perused it. My advice to clients is to read the agreement carefully and maybe even take two or three days to carefully peruse it before signing it.

If a maintenance order is not properly drafted, one party may be of the view that he or she is correctly paying in terms of the order while he or she is not in fact doing so. “Ignorance of the law” is however never an excuse, and the unfortunate reality is that the courts may authorize a warrant for your arrest and you could be arrested.

In order for a court order to be varied, you have to formally apply for a reduction at the court. You cannot unilaterally suddenly start paying less maintenance because you are no longer in a financial position to pay in terms of the existing order. A court order is a court order and can only formally be varied by order of the court.

In one of my cases a defaulting man was locked up for not paying over R100 000 maintenance. He was of the view that he had complied with the court order. The end result was that he had to raise the funds before being released. So one has to be very cautious when you have a court order against you.

The courts see the rights of a child to maintenance being a constitutional right and of the utmost importance.  They won’t hesitate to authorize a warrant of arrest against a party who is in default. There is no other real way of controlling situations of failure to pay maintenance.

Appeal to set aside a warrant of execution for arrear maintenance

The High Court matter of MFI (applicant) and NI (respondent) was heard in the High Court (Western Cape Division, Cape Town) on 8 June 2018 ,and was an appeal against the order of the Wynberg maintenance court dismissing the applicant’s application to set aside a warrant of execution for arrear maintenance of R160 000 in respect of his former wife, the respondent, in terms of their decree of divorce granted by the High Court on 9 November 2015.The magistrate found that the maintenance court lacked jurisdiction to set aside the High Court order.

In terms of the High Court order the appellant was liable to pay personal maintenance to the respondent of R10 000 per month until her death or remarriage whichever occurs first. The appellant did not defend the divorce matter. The appellant was not in court on the day of the hearing. The judge requested the respondent’s attorney to telephone the appellant from the court prior to the order being granted to explain to him what order he would be moving for and whether he was in agreement with the terms thereof. There was now, after the order was granted, a dispute as to what was agreed upon during the conversation.

After the divorce order was granted, the appellant said that he objected to the respondent becoming entitled to personal maintenance of R10 000 per month. He said that during the telephonic discussion with the respondent’s attorney,the respondent’s attorney had agreed that the respondent’s personal maintenance claim be deleted from the prayers sought. The respondent’s attorney however denied this.

The appellant did not pay personal maintenance in terms of the divorce order and a warrant of execution was granted by the Wynberg maintenance court in the respondent’s favour. In coming to its decision, the court looked at two previous decions: that of Turton v Turton 2012(2) SA 623 (WCC) and MvM and Another 2014(2) SA 403(WCC).Turton concluded that a High Court warrant of execution could not be obtained to enforce a maintenance order granted by the High Court,given the provisions of chapter 5 of the Act. MvM and Another concluded that it could.

The court found in the present case that if it had indeed been the appellant’s intention only to rekly on s27(3), the allegations in the founding affidavit would have been directed solely at whether or not he had complied with the High Court maintenance order. He went further than that about his inability to pay and the respondent’s financial position which he maintained was more favourable than his. He must thus have invisaged some sort of enquiry by the magistrate for the purpose of revisiting the High Court maintenance order.

In her judgment the magistrate stated that the appellant’s legal representative informed her that the ‘respondent is not entitled to spousal maintenance, quoting section 27(4) of the Maintenance Act and the case of Turton and Turton’; and that the appellant’s attorney ‘has argued that the word “enquire” in subsection 27(4) should be read together with the enquiry referred to in Section 16’.

The court on this basis dismissed the appeal with costs.

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