The court correctly found that that Respondent’s plea of poverty as a defence against his wilful and bad faith non-compliance with his maintenance obligations was unacceptable. The Respondent agreed during divorce proceedings to, amongst other specified contributions, pay R4000.00 per child per month towards his two minor children’s maintenance. The amount paid by the Respondent was eventually unilaterally reduced to R4000.00 per month for both children and then to R3000.00 which over time accumulated to him being in arrears of over R200 000.00 to the Applicant for maintenance. The Respondent’s explanation for the above was a material deterioration of his financial position since the initial order by the divorce court.
The Respondent is currently the only beneficiary and a co–trustee of a Trust which owns numerous farms and livestock and the Trust holds all the members interest of a close corporation. The Respondent contended that his personal finances are tied up to the business of the Trust and due to economic hardship suffered by the Trust and its business, his income generated therefrom significantly decreased over time and that his living expenses increased. He maintained this despite the financial documents of the Trust indicating that he has loan accounts owed to him in excess of 1 million rand which he may call upon at any time. The Respondent further contended that he has no assets which can be sold to pay additional maintenance, save for a few movable items.
The Court in conclusion found that the loan accounts were an asset in the estate of the Respondent and that he did not offer any explanation as to why the loans were not called upon to settle his maintenance obligations. The Respondent’s non-compliance was therefore found to be wilful and inexcusable. The court took a punitive approach in ordering that he must pay a hefty fine of R50 0000-00 to court within a period of 90 days of the date of the order and that the Respondent must purge his contempt by paying the arrear maintenance to the Applicant within 60 days of the date of judgment, a failure of which will result in the sentence handed down to be enforced. The Respondent was also ordered to pay the Applicant’s costs on an attorney and client scale.
The judgment highlights the importance of parties adhering to court orders in respect of the payment of maintenance and that non-compliance therewith carries great risk of severe consequences for the non-compliant party.
