According to the Maintenance Act of South Africa, both parents have a duty to support their children.
Spouses may also, under certain circumstances, have a duty to support one another. This responsibility, through our law, has been deemed to be so vital that parents who fail in this duty can be convicted and sentenced to a prison term.
This is borne out by a recent legal judgment handed down in Krugersdorp by Magistrate Abdul Khan where a father was sentenced to a four and a half year prison term for failure to adhere to his duty to pay spousal and child maintenance.
There are many cases where spouses are turning to courts and/or alternative dispute resolution processes in order to ensure they receive the spousal and child maintenance they are entitled to.
These disputes are having the effect of loading an already burdened judicial system. This recent case is a sure sign that the courts are no longer taking maintenance defaulters lightly and therefore it is our view that their sanctions will become evermore punitive.
In this particular case, the father, who was a successful businessman, harassed his ex-wife using underhand tactics to ensure the mother and son never received the maintenance they were entitled to.
The magistrate went so far as to state he was “shocked” to discover the mother was threatened with arrest, disappearance and civil suits to withdraw her case.
The mother testified as to the horrific circumstances her and her children had to endure in this three-year legal struggle, living a life in abject poverty.
In his judgement, Khan emphasised the rights of women and children in reaching his decision.
Even though this judgment was handed down in a lower court and does not set a legal precedent, we are of the opinion that this case will most definitely be referenced in future maintenance hearings and is possibly the start of the Judiciary taking a far stricter view in these types of matters.
To conclude I leave you with the words of Khan:
“You have been convicted of an offence against the most vulnerable members of society, a woman and a child. This is not any woman, and it is not any child, this is the mother of your two sons and the child is your own son.”
Article compiled by Lauren Thomaz, candidate attorney Malherbe Rigg & Ranwell Attorneys (MRR).
Should you require any assistance relating to a maintenance claim you are welcome to contact MRR on info@mrr.co.za or 011 918 4116.
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