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Dad gets 10 days in jail for defaulting on child maintenance while making 'indulgent' purchases

22 March 2022 - 13:48
The Johannesburg high court has sentenced a father to 10 days' imprisonment for not paying child maintenance over two years. Stock photo.
The Johannesburg high court has sentenced a father to 10 days' imprisonment for not paying child maintenance over two years. Stock photo.
Image: 123RF/zimmytws

Periodic imprisonment for parents who fail to pay maintenance should be used as a deterrent, but not to prevent a parent earning an income to support their children.

This is the view of divorce lawyer Shando Theron, who was reacting to a Johannesburg high court judgment that directed a father, who defaulted on paying maintenance for his two children for more than two years, be sent to jail for 10 days.

The man, who claimed to be living off food parcels while his bank account reflected the opposite, was also given 31 days to pay arrear maintenance of R86,736. TimesLIVE is not disclosing the identity of the man to protect the children.

The couple divorced in 2019 and agreed the children would live with their mother while the father paid his 50% contribution towards their maintenance.

According to court papers, the man diligently paid maintenance for 11 months after the divorce was finalised.

The woman’s lawyer argued that he was able to pay as his bank statements reflected income on various months in 2020 and 2021 — of up to R50,000 — yet he had failed to pay any maintenance since early 2020.

The lawyer also referred the court to several purchases the father made over two years which could be considered “unnecessary” and “indulgent”. This included computer equipment, monthly spend on gym fees, internet, home movies and food delivery services.

The man asked the court to dismiss the application as he had applied for a variation order seeking to have the maintenance amount reduced.

His counsel informed the court that since the coronavirus pandemic, his earnings had declined significantly and he had become destitute. He claimed to not possess any other skills or means to earn an income.

Had this application not been launched and if it were without merit, as he alleged, he may have continued to ignore the applicant
Court ruling

“The respondent proffered that he relied on food parcels and the support of friends and family to survive,” court papers read.

The man also claimed to have been injured and was unable to work and earn an income.

The court found that the man had not suffered any prejudice in the divorce settlement agreement.

“He understood the order and in fact paid monies following the order. He understood its purpose and complied with the order,” the court ruled.

The court found that the woman had acted within her legal right to demand payment and  follow legal processes afforded her in making the application to ensure maintenance was paid.

“It is clear to me that had this application not been launched and if it were without merit, as he alleged, he may have continued to ignore the applicant,” said the court.

While the court took into account the impact of imprisonment on the man and his reputation in future job prospects, it could not overlook his total disregard for the order of a court of law.

“The court’s dignity and respect are integral to the success of any legal system. Accordingly, I considered 31 days to be a fair period for the respondent to pay over the debt and 10 days a fair period for the term in imprisonment, as the respondent does need to maintain contact with his children,” the judgment reads.

Theron said the ruling would act as a deterrent.

“I’m all for periodic imprisonment, where you send someone to prison from Friday to Monday morning. He can still carry on with his business. It’s a good deterrent but the punishment should fit the crime.”

Referring to another case in Krugersdorp, where a father was jailed for four years for not paying maintenance, Theron said that was an unfair form of punishment as it denied the parent an opportunity to earn an income.

He said courts should not only send men to jail but women too, as there were some who defaulted in paying maintenance for their children.

“It would be good if the court was even-handed. I’ve never seen it [periodic imprisonment] being used where a woman has defaulted,” said Theron.

TimesLIVE


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