When Lawyers Drop the Ball: The Tale of Divorce, Defiance, and a Suspended Sentence.

S.F.S. v A.J.S (11676/2018) [2023] ZAGPJHC 1142 (11 October 2023)

The Facts

The Applicant, who was in the midst of a contentious divorce, urgently approached the court, accusing the Respondent of contempt for failing to comply with previous court orders related to the payment of maintenance. The couple was married in community of property. The Applicant was financially dependent on the Respondent and had severe health issues, including auto-immune diseases and recent surgeries. One of their children was at risk of not graduating university due to unpaid fees, which the Respondent refused to cover.

The Applicant claimed that the Respondent owed a total of R264,639.00 in arrears for various expenses, from cash maintenance to medical costs. Despite being notified of the arrears, the Respondent’s attorney failed to act, citing travel and other commitments. The court found the matter to be urgent and the Respondent’s failure to pay to be both wilful and mala fide.

Key Issues

1. Arrears in Maintenance: The Applicant claimed that the Respondent owed a total of R264,639.00 in arrears, covering various expenses from cash maintenance to medical costs.
2. Financial Strain and Health Issues: The Applicant was financially dependent on the Respondent and was dealing with severe health issues, including auto-immune diseases and a recent knee replacement surgery.
3. Unpaid University Fees: One of the children, now an adult, was at risk of not graduating due to unpaid university fees, which the Respondent refused to cover.
4. Legal Inaction: In the case, the Respondent’s attorney, was cited for failing to act upon receiving notifications about the arrears owed by the Respondent. Despite acknowledging receipt of communication from the Applicant detailing the arrears, the attorney did not take any action. He offered the explanation that he either was traveling abroad or was busy with other matters. This inaction contributed to the court’s finding of the Respondent’s willful and mala fide failure to comply with the maintenance orders, leading to the contempt of court ruling against the Respondent.

Urgency and Contempt

The court found the matter to be urgent, dismissing the Respondent’s argument that the Applicant should have sought alternative remedies. The Judge was unequivocal in her assessment of the Respondent’s conduct, describing it as both “wilful and mala fide.” The court found that the Respondent had deliberately frustrated the enforcement of the Rule 43 Order, leading to a significant accumulation of arrears, including monies payable for medical care. Despite being a hardworking businessman with assets, the Respondent was labeled a “repeated contemnor” who showed blatant disdain for the court’s orders. His failure to provide comprehensive financial information to the court further solidified the judge’s view that his default was intentional. The judge emphasized that the Respondent’s conduct undermined the rule of law and the constitutional promise of human dignity and equality, particularly for those most dependent on legal entitlements like maintenance.

Court’s Conclusion and Order

In a decisive ruling, Judge Nkutha-Nkontwana found the Respondent to be in contempt of court, failing to show that his default in maintenance payments was neither wilful nor mala fide. Given the Respondent’s history of contempt, the court saw no reason to spare him from imprisonment. The court’s order was as follows:

1. The application was heard urgently, and the usual court rules relating to time periods were set aside.
2. The Respondent was declared in contempt of previous court orders related to maintenance.
3. A six-month imprisonment sentence was imposed on the Respondent, suspended for one year on the condition that he pays the outstanding arrear maintenance and related expenses totaling R274,639 within three days. He must also comply with his obligations as per the previous court orders.
4. The Respondent was ordered to pay the costs of this application on an attorney and client scale.

This judgement serves as a robust affirmation of the court’s unwavering commitment to upholding the rule of law, particularly in matters as sensitive and crucial as family maintenance obligations. It sends a resounding message that contemptuous behaviour will not be tolerated, even when the contemnor is represented by legal counsel who themselves show a lack of urgency or due diligence. The case stands as a cautionary tale, not just for individuals who might contemplate evading their court-ordered responsibilities, but also for legal practitioners who might underestimate the gravity of maintenance orders. It emphasises that the justice system is fully prepared to exercise its punitive powers to ensure compliance, thereby safeguarding the dignity and well-being of the most vulnerable parties involved. In an era where court orders can sometimes be perceived as mere suggestions rather than binding mandates, this case reiterates that the courts are the ultimate arbiters of justice, willing and able to impose severe penalties for non-compliance. The ruling thus serves as a critical reminder of the sanctity of court orders and the severe repercussions awaiting those who dare to defy them.

Summary by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.

READ THE CASE HERE