After a man refused to obey a court order to pay maintenance, including medical fees to his ailing ex-wife, the high court sentenced him to six months’ imprisonment.
The Johannesburg high court on Wednesday ruled that if he does not pay, a warrant could be issued for his arrest.
Background
During acrimonious divorce proceedings in 2018, a man referred to as “AJS” was ordered by the Johannesburg high court to pay maintenance to his divorcing wife and his two children, who live with her. He was to pay a general monthly allowance of R30,000, general home expenses, house maintenance and other expenses.
When people do not follow a court order, they are said to be “in contempt” of court. This is treated as a criminal offence and offenders face imprisonment, as famously happened to former president Jacob Zuma, after he ignored the orders of the Constitutional Court.
AJS stopped paying in 2022. In total, he owed more than R270,000, for medical expenses and household maintenance. Through the months of nonpayment, his divorcing wife wrote to his attorneys to resolve this, but his attorneys admitted these messages were not passed on to AJS.
She thus urgently applied to court earlier in October.
Judge Portia Nkutha-Nkontwana ruled that indeed AJS was in contempt and should face six months imprisonment, unless he pays what is owed.
Nkutha-Nkontwana noted that his wife suffers from severe health issues, which she cannot pay for, particularly as a result of his nonpayment. Her current bank account balance, said Nkutha-Nkontwana, is R106.74. His wife is “totally dependent” on AJS for maintenance.
AJS also contended he did not have to pay for his one child’s university fees. That child’s “fees are outstanding by sum of R60,951,20 and, if not paid, she will not graduate this year,” Nkutha-Nkontwana said.
Nkutha-Nkontwana slammed AJS for his taking issue with his wife bringing this new contempt urgently.
AJS’s “contention is founded in oblivion as it is negated by the history of the litigation between the parties and concession that their relationship is obviously defined by rancour”. She noted that demanding his wife engage in a round-table discussion was negated by his own conduct. His lawyer “conceded that [AJS] has never looked at these schedules even after receiving the applicant’s founding papers in this application”.
Nkutha-Nkontwana also noted AJS is not a man without means. He “is not a man of straw but hardworking business man with many assets, including some which are abroad…. Yet, he is a repeated contemnor who has deliberately frustrated the ordinary enforcement of the [maintenance order]. As a result, there is an accumulation of significant arrears, which include monies payable for medical care.”
She also noted AJS wanted the court to take his “mere say so” that he was financially struggling, showing nothing to the court to corroborate this. AJS also “seems to hold a fallacious view that he can litigate at his leisure, be in court as and when he has money or at the convenience of his attorney”.
All court orders, Nkutha-Nkontwana pointed out, must be followed. If they are not, offenders will find themselves in prison. She cited the Constitutional Court, which explained: If court orders are habitually evaded and defied with relative impunity, the justice system is discredited and the constitutional promise of human dignity and equality is seriously compromised for those most dependent on the law.”
She therefore sentenced him to six months imprisonment but suspended the imprisonment for a year, in which time he had to pay the missing arrear of about R270,000.
“Our courts have been clear,” says Tina Hokwana, attorney and law lecturer from Nelson Mandela University, “that contempt of court is not an issue between the parties, but rather an issue between the court and the party who has not complied with a court order.”
Hokwana warned that ignoring court orders is not the way to go, because you face imprisonment. Alternative legal avenues exist, such as applying to “vary” the amounts in a maintenance order if you cannot pay.
Simply ignoring it, however, will land you in prison.
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