Cape Town - A wealthy businessman in the mining sector has been handed a unique prison sentence if he doesn’t pay up the full arrears maintenance for his three children.
The Western Cape High Court ruled in favour of the applicant (mother), who had been in an intimate relationship with the father for about nine years and had three children during that time.
The court found the respondent (father) was in contempt of a court order granted in November 2022, in that he did not pay the full child maintenance as per the order.
According to the mother, the father is a wealthy businessman in the mining industry with various business interests, while she is a homemaker.
Following the breakdown of the relationship, the father unilaterally reduced the maintenance from R112000 to R 22500 per month.
Judge Rehana Parker sanctioned the father to serve jail time for 30 days, to be served as periodic imprisonment on weekends between 5pm on Friday and 6am on Monday.
The sentence can be suspended on condition that he complies with the court order by paying the full arrears rental, maintenance, health and educational needs within 60 days; and continues to comply with the order until the final determination of a Part B of the application, heard separately.
The father was also ordered to rectify his contempt before his counter application for a variation can be heard.
The father was also ordered to pay the mother’s costs incurred.
In the maintenance order, dated November 7, 2022, the father was ordered to maintain the minor children by paying cash maintenance in the amount of R60 000 per month to the mother; bearing the children’s medical aid and medical expenses; bearing some of the children’s educational expenses; and paying the rental due and the utilities account of the family home in Oubaai, George, where the mother and children continue to reside.
The mother claimed the father was responsible for the financial support of the children throughout the relationship and that she and the children were entirely reliant on him.
The father, however, disputed this, stating that the mother was employed and contributed to the domestic expenses and maintenance of the children.
The order said the father has only been paying cash maintenance of R22500 per month; paying only the children’s school fees and no other educational expenses; paying only the medical aid premium and no other medical expenses; and refusing to pay the rental of the family home.
The father’s central defence said a change in financial circumstances in February, made it impossible to comply with the order.
Judge Parker said the father has been dissatisfied with the order since it was granted on November 7, 2022, and made various attempts to “shirk” his obligations in terms of the order.
The father also made attempts to reduce his maintenance obligations to R7500 per month per child in an application to the Maintenance Court in March 2023, and the limitation of additional payments to school fees and the medical aid premium only.
“I agree with the applicant, the respondent’s reliance on ‘changed financial circumstances’ to justify his non-compliance with the order, is contrived and merely the latest tactic employed by the respondent to skirt his maintenance obligations in terms of the order and pay only what he considers to be reasonable maintenance. This is unacceptable,” Judge Parker’s order read.
The father said imprisonment would have serious consequences for him as he would be unable to work while he attempts to rescue the business, and “destroy what is left” and make it impossible to pay the mother.
“I accept a committal will be grave as he would also not be able to exercise contact and care to the children which would clearly not be in their best interests.
“Considering all the evidence it would not be appropriate to let the respondent off with minimal consequences.
“To do so would send a detrimental message to South African citizens, implying that disregard for court orders are tolerated.
“This would set a harmful precedent undermining the authority of court orders and potentially discouraging vulnerable groups including women and children from asserting their rights to maintenance, health and education.”
Charlene May, acting director of the Women’s Legal Centre said: “An individual cannot unilaterally decide to reduce a maintenance amount if a court order is in place. A new or varied court order is required when circumstances change. If you choose to alter or not comply with the order, you contravene the law, and the court must hold you accountable.”
Ilitha Labantu communications manager, Siyabulela Monakali, said the organisation welcomed the ruling, which reinforces the importance of enforcing maintenance obligations.
Monakali said the reduced payments threatened the financial stability of the household and the welfare of the children.
“We urge the legal system to continue prioritising the enforcement of maintenance orders to protect vulnerable families.”