Weekends in jail for failure to pay maintenance

Husband will spend 30 days in prison unless he pays arrears within 60 days

The court has found a husband in contempt of an interim maintenance order and committed him to imprisonment for 30 days, to be served as periodic imprisonment on weekends between 5pm on Fridays and 6am on Mondays.

However, the sentence of committal was suspended on condition that the man complies with the court order by paying the full arrear rental, maintenance, health, and educational needs within 60 days and continues to comply with the court order until the matter is finalised.

The couple was involved in a romantic relationship for nine years and three minor children were born from the relationship. The marital relationship broke down irretrievably during April 2022 and the husband, the respondent, vacated the matrimonial home. According to the wife (the applicant), the man is a wealthy businessman in the mining industry with various business interests whilst she is a homemaker.

In terms of interim maintenance order, the husband was ordered to maintain the minor children by paying an amount of R60,000 per month to the wife. This included the children’s medical aid and medical expenses, some of the children’s educational expenses and paying the rental due including the utilities account in respect of the former family home where the wife and the children still reside.

Contrary to the order and since March 1 , the husband has only been paying an amount of R22,500 per month, the children’s school fees and no other educational expenses, paying only the medical aid premium and no other medical expenses. He refused to pay the rent. 

The woman argued that the man's failure to pay rent puts her and the minor children at risk of being evicted from their home. She added that, the respondent’s failure to pay the aftercare fees for the children resulted in the children no longer attending aftercare.

He, however, raised various defences in opposing the contempt of court application at the Western Cape division of the high court . One central defence was that his financial circumstances had changed in February, making it impossible for him to comply with the order. Despite this allegation, the man had failed to bring an application to change the maintenance order.

In addressing his concerns on the appropriate sanction, the husband argued that imprisonment would have serious consequences for him and his business. He would be unable to work whilst seeking to rescue his business, minimise losses and try to turn the business around.

He said the imprisonment would destroy what is left and make it impossible to pay the applicant what he has tendered. The court accepted that a committal would be grave as he would also not be able to exercise contact and care to the children. This would clearly not be in their best interests.

Considering all the evidence, acting judge Parker found that 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 is 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.”

The respondent was found in contempt of the maintenance order and committed to imprisonment for a period of 30 days, to be served on weekends. However, the sentence of committal was suspended on condition that he complies with the court order by paying the full arrear rental, maintenance, health and educational needs within 60 days and continues to comply with the court order until the matter is finalised.

The respondent was further ordered to pay the applicant’s legal costs.