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[2015] ZAGPPHC 971
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V v S (50975/2008) [2015] ZAGPPHC 971 (19 August 2015)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 50975/2008
In
the matter between:
V
V
Applicant
and
S
S
Respondent
JUDGMENT
MAGARDIE
AJ:
1.
This is an application in terms of Rule 46(1)(a)(ii) for the issuing
of a writ of execution in respect of the respondent's immovable
property following upon the failure of the respondent to comply with
the terms of the divorce settlement agreement which was made
an order
of this court on 29 October 2010.
2.
The crux of the application is that the respondent failed to pay
maintenance for the minor child and has been in arrears since
the
date of the order. It is not in dispute that the respondent failed to
pay maintenance for a period of almost five (5) years
to date. The
minor child who is the beneficiary of the maintenance payment is
currently 6 years old.
3.
It appears from the papers before me that as at 17 February 2014, the
respondent was in arrears of R306 550.81 thereby prompting
the
applicant to obtain a warrant of execution against the respondent's
movable property. On 22 February 2014, on visiting the
respondent's
place of abode, it appears the respondent arranged with the sheriff
to issue a
nulla bona
return thereby confirming that the
respondent had no movable assets to satisfy the amount owed to the
applicant.
4.
The respondent signed a note, which he handed to the sheriff,
confirming that he neither had money nor movables to satisfy the
amount of the writ. Further, the said note stipulated that the
respondent only had immovable property.
5.
After the service of the warrant of execution the Respondent made an
application to this court to set aside the warrant of execution.
On
11 November 2014 the Respondent's application was dismissed with
costs. It appears that the respondent has not paid costs. As
at the
date of the current application, the respondent was in arrears in the
amount of approximately R450 000.00.
6.
The basis of the respondent's opposition of this matter is premised
on two grounds, namely, the Respondent alleges that there
was a
non-joinder of Standard Bank Ltd as the bond holder and that the
applicant failed to make out a cause of action.
7.
During argument, the respondent's counsel correctly conceded that
there was no requirement for the applicant to join a bond holder
in
the process of obtaining a writ of execution against immovable
property in terms of Rule 46(1)(a)(ii). It is correct that there
is
no obligation on an applicant to join the bond holder, in this case
Standard Bank Ltd, at this stage; what Rule 46(5) requires,
is that a
notice must be given to all preferent creditors, which will include
the bond holder, after a writ of execution is issued.
1
8.
Although a point of non-disclosure of the cause of action was raised,
the respondent's counsel did not address this point at
all. It must
be mentioned that the respondent did not dispute
the fact that he was in arrears as
asserted by
the applicant. For this reason, it is unfathomable
how the respondent could even begin
to dispute the existence of
the cause of action.
9.
Mention must be made of the fact that the respondent alleged that he
failed to pay maintenance because he did not have the applicant's
banking details for a period of two years when the latter was
stationed in the United States of America. The respondent's version
in this regard is tantamount to cocking a snoot on the applicant and
even proceed to the court in this regard. Nowhere in the answering
papers or oral submission was I told that the respondent attempted to
obtain the applicant's banking details. In addition, the
respondent
did not say what prevented him to pay the money into the original
account furnished to him at the time of the settlement
agreement. In
any event, logic has it that if the respondent was unable to find the
applicant's banking details, he could have
put the money in a
separate account on a monthly basis whilst attempting to find such
banking detail.
10.
I am satisfied that the respondent is in wilful breach of the
maintenance order and has not even attempted to present any facts
to
sway me that his failure was not due to any fault on his part.
11.
It is apposite to state that section 9 of the Children's Act
2
(the Act) provides that in all matters concerning the care,
protection and well-being of a child the standard that the child's
best interest is of paramount importance must be applied. Section 7
of the Act also provides for various factors to be taken into
account
in applying the best interest of the child standard.
12.
When called upon to exercise a balancing act between the two
competing constitutional rights, namely the children's rights in
section 28 and the right to housing in section 26 of the
Constitution,
3
section 28(2) of the Constitution stipulates that the child's best
interests are of paramount importance in every matter concerning
the
child.
13.
There can be no denying that maintenance of a child is an aspect that
goes into the best interest of a child. When ordered to
provide
maintenance for a child, a parent is required to prioritise the
interest of such child above all other financial obligations
he/she
may have. It does not avail a parent to say that he/she does not have
money to pay maintenance, whilst at the same time
the parent is able
to pay for holidays, cars and all else.
14.
In this matter, apart from stating that he required time to get money
to pay maintenance, the respondent failed to take the
court into his
confidence by disclosing the nature and extent of his financial
hardships. It must be borne in mind that the maintenance
amount was
agreed between the parties at the time of their divorce; so, it was
not an amount forced down his throat. The very fact
that the
respondent failed to even make the first payment and that such
failure persisted for almost five years to date is certainly
disconcerting.
15.
The respondent offered a once off payment of R100 000.00 towards
reducing the arrear maintenance and sought a payment plan for
the
remainder. I consider the offer of the respondent to be demeaning to
the applicant and the minor child. It cannot be that the
applicant
and the minor child had to wait for almost five years to be promised
a once off payment of R100 000.00 and negotiating
the payment
of the balance owing on the arrears. The respondent's attitude in
this regard is in fact consistent with his
obstructive and
lackadaisical approach to his parental obligations. Such
conduct cannot be countenanced by this court. To
add salt to the
wound, the respondent has neither seen the minor child nor made any
attempts to do so for almost five years. Such
is consistent with his
attitude of failure to pay maintenance.
16.
When the respondent informed the sheriff that he only had his
immovable property to satisfy the payment of the arrear maintenance,
it was clear that by such conduct the respondent was offering his
property for attachment.
17.
The respondent also went on a tirade against the applicant accusing
her of various forms of shenanigans for example, he accused
her of
being in cahoots with the sheriff and bribing a pathologist.
18.
Having considered the facts before me and various submissions made by
the respective counsel, I am of the considered view that
the only
appropriate remedy is one of granting the relief as sought by the
applicant. I do so in full recognition of the respondent's
constitutional right to housing. My considered view is that the
respondent's constitutional right cannot take precedence of the
best
interests of the child. Nowhere in the papers before me or during
argument advanced by counsel for the respondent has it ever
been
suggested that the respondent disputes the right of the minor child
to maintenance, let alone his obligation to pay for such
maintenance.
19.
In
Bannatyne v Bannatyne
4
it
was
inter alia
held that:
"the
enforcement of maintenance payments therefore are not only to secure
the rights of children, it is also to uphold the
dignity of women and
promotes the foundational values of achieving equality and
non-sexism".
20.
The court stated further, in discussing the Maintenance Act, that:
“
As
reflected in the preamble
to the
Act,
our
country has committed itself to giving high priority
to the
constitutional rights of children. It has provided
the
legal
infrastructure
through
the Act
thereby
giving
effect
to
the
imperative contained
in
section
28
of
the
Constitution.
The Act
is
a
comprehensivepiece
of
legislation
designed
to
provide
speedy
and
effective
remedies
at
minimum costs for the enforcement
of
parents'
obligations
to
maintain their children.
”
5
21.
Having taken account of the respondent's revolting
attitude towards the applicant and the minor child as well
as his elaborate efforts aimed at frustrating compliance with
his maintenance obligations, it cannot be said that the applicant
should be disadvantaged insofar as costs are concerned. In fact, I
take a dim view that after the respondent arranged for a
nu/la
bona
return with the sheriff, it was again the respondent who
decided to approach the court to set aside the writ of execution. The
respondent's application in that regard was dismissed with costs. In
this court, the respondent fervently opposed the application
against
him, even going to an extent of disputing the existence of a cause of
action against him despite his admission that he
had failed to pay
maintenance. I also take into account the fact of the respondent's
failure to pay maintenance from the date the
divorce settlement
agreement was made an order of court. The respondent has not
even demonstrated any shame upon himself
for having even required the
applicant to submit the minor child for paternity test and same
having confirmed that he was indeed
the father, he persisted with his
attitude of depriving the minor child of care and maintenance.
22.
When all is considered, I am of the view that the applicant has made
out a proper case for the relief sought in the Notice of
Motion. In
the result, the application succeeds and I make an order in
accordance with prayers 1 and 2 of the Notice of Motion.
__________________
MAGARDIE
AJ
1
Neveling
v Reichmans (Pty) Ltd
&
Another 2014
JDR 1809
KZP.
2
Act
38 of 2005 as amended
3
Act
108 of 1996 as amended.
4
[2002] ZACC 31
;
2003
(2) SA 363
(CC).
5
At
pa ra 25.