A Cape high court battle over maintenance obligations and contempt of court recently ended in a decisive ruling when judge Mas-udah Pangarker dismissed a woman’s appeal seeking to jail her ex-husband and declare him in contempt over unpaid support for their dependent adult children.
The Western Cape High Court appeal court rejected the woman’s attempt to overturn earlier rulings that refused her dramatic sanctions, including imprisonment, against her former spouse.
The woman, a mother whose marriage to her husband ended in civil divorce after 30 years, had asked the court to declare her ex-husband in contempt for failing to comply with a maintenance order. The earlier order, made by the high court in the underlying divorce proceedings, obligated the ex-husband to contribute financially towards their adult children who were dependent on parental support.
In her appeal, she asked for enforcement of the maintenance order in contempt of court, additional maintenance for the two dependents of their four adult children and arrears of maintenance in her own favour.
The case, it was argued, was to determine whether a parent has legal standing to enforce a maintenance order for adult children, and if failure to comply could attract sanctions including imprisonment.
The ex-wife argued the father’s non-compliance warranted a finding that he was in contempt of court and should face a six-month jail term.
Pangarker, writing for the appeal court, found her appeal to be poorly grounded and she had failed to demonstrate a sufficient and direct legal interest in enforcing the maintenance order on behalf of the adult children. In doing so, the judge took a narrower view of the legalities that can be enforced when the children involved are adults.
The father’s lawyers had argued that though the maintenance order was drawn in the context of the divorce, the mother did not have direct legal standing to enforce it on behalf of the adult children themselves. This was because the order did not expressly make her the beneficiary of the maintenance.
Pangarker agreed the issue was not merely procedural but substantive. It concerned whether the mother had a sufficiently direct interest in the order, separate from the children who were the true beneficiaries.
The court noted where a maintenance order is made in favour of adult dependent children, only the children themselves may have the direct right to pursue contempt enforcement unless the order expressly provides otherwise.
The focus on legal standing rather than the underlying merits of the maintenance claim proved fatal to the mother’s claims, the judge held.
She had urged the court to find her ex-husband in contempt of court and to jail him for six months. If granted, the court held, this would mark one of the more dramatic uses of contempt powers in South African family law.
In her appeal, the woman asked for maintenance for two of the children in their 20s. The mother increased the amount originally asked for in the divorce agreement, claiming their daughter Y needed R25,966 per month.
The father argued this was not fair, reasonable or necessary as she had completed two tertiary certificates he had paid for, and she had, without consulting him, decided to enrol in a third, very expensive course, and her claimed maintenance needs were excessive.
The mother claimed a further R10,173 per month for their son R, who is studying medicine at Stellenbosch and an additional R535,600 compensation for herself for arrear maintenance which she had covered due to the maintenance paid being too little to cover all the expenses of Y and R.
While the father did not deny owing maintenance to his adult dependents under the divorce order, he objected to the new, higher claim, describing it as unreasonable and unnecessary.
He told the court he had paid R857, 046 toward his daughter’s expenses between 2018 and 2021, including her rent, car, laptops, phone, course costs, insurance and cash payments.
He said he had paid all the son’s expenses, but questioned why he had not applied for a bursary or student loan, given the extremely high costs of medical studies.
The son, he argued, could get a part-time job and fund some of his own expenses.
Pangarker agreed with the father, finding the ordinary mechanisms for enforcing maintenance orders remained available to the adult children themselves should they choose to pursue them. He said the district court or maintenance court was the proper forum for this. He dismissed the appeal completely, ordering the mother to pay the costs.
TimesLIVE
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