'Contemptuous' dad sent to jail for refusing to pay child support

A father of three has been sent to jail for three months for failing to pay maintenance.

While courts, in such circumstances, usually impose “coercive” suspended sentences, Mahikeng acting judge Mark Morgan said in this matter it would serve no purpose because the father had made it clear he would not comply with any court order.

The mother of his children made an application for the man — identified only as Mr M — to be held in contempt of court for refusing to comply with the maintenance order, which was granted as part of their divorce in 2014.

The settlement agreement had been drafted by Mr M and his estranged wife had simply signed it in order not to drag out the divorce and to “keep the peace”.

But since then, he persistently refused to abide by it. Morgan said he had gone so far as to “forum shop” approaching different courts to avoid his obligations.

When his ex-wife attempted to attach assets in his accountancy practice, he had placed it in voluntary business rescue, a situation which existed until today, eight years later.

Morgan, in his ruling handed down on Thursday, said the mother had had to sell one of her properties to make ends meet, and the bank was threatening to foreclose on her home.

At one stage, one of the children was expelled from school because of non-payment of fees.

The children were also not covered by medical aid.

By 2018, her ex-husband owed her more than R7m and there were several legal skirmishes. But Mr M did not comply with any of the orders granted.

Morgan said the crux of contempt lay in violating the dignity, repute, or authority of a court. 

“No one is above the law. The law, including court orders, should be obeyed.

“It has been proven beyond reasonable doubt that an order for maintenance was granted as incorporated into the settlement agreement that was made an order of court. He has intentionally, deliberately and wilfully disobeyed this order.

“He declared unequivocally during the hearing that he will not comply with the court order ... that he would not give in to her luxurious demands.”

Morgan said this contention was “mind boggling” — given that he had drafted the settlement agreement and must have understood his obligations.

He had also not complained that he was experiencing any financial hardship.

“His conduct is contemptuous, and offends the constitution and the rule of law.”

Turning to what sanction should be imposed, Morgan said failure to pay child maintenance was a criminal offence.

“He has indicated, quite brazenly, that he would not abide by the court order. I have no reason to second-guess his own words. He has offered no contrition or apology. A coercive order would be futile in this case ... the only sanction that would be appropriate is direct, unsuspended imprisonment.”

Morgan said apart from undermining the authority of the court, the man's actions impacted on the rights of his children.

“It is a constitutional imperative that the interests of children remain paramount. 

“One may potentially argue that sending the children’s father to prison would not be in their best interests as he would not be able to support them. Unfortunately, he has indicated [that] he will not support them and has not done so.”

He said another court had granted an order allowing the mom to attach 75% of the dividends in her ex-husband's accountancy practice.

In response to this, he had placed the company under voluntary business rescue.

Morgan said the purpose of business rescue was to allow a financially distressed company to trade its way out of trouble and legislatively, business rescue proceedings were intended to end within three months.

Noting that it had been eight years since that took place, the judge said: “He clearly did this as an attempt to stop the applicant attaching his assets.

“Parents should always act in the best interests of their children. Here the opposite has happened.”

He noted that Mr M had not appealed any of the orders granted in the North West division, but had litigated in other courts — spending copious amounts on legal fees. 

“The applicant has been going from pillar to post trying her level best to get him to comply with this court’s orders ... she even called a family meeting in an attempt to mediate. He promised to comply but the promise was empty.”

Morgan declared Mr M to be guilty of contempt of court and sentenced him to three months' direct imprisonment.

He ordered that Mr M hand himself over to the authorities within 24 hours, failing which he authorised the police to take “all steps necessary to ensure he is delivered to a correctional centre to begin serving his sentence”.

He said this did not mean Mr M was absolved from complying with his maintenance obligations as set out in the previous court orders.

He also ordered that Mr M pay the costs of the application on a punitive scale.

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