TINA HOKWANA | Why dad was ordered to pay over R2m in maintenance arrears

Tina Hokwana Legal Practitioner
A father was requested to pay R2m for child maintenance after he defaulted between 1995 and 2021.
A father was requested to pay R2m for child maintenance after he defaulted between 1995 and 2021.

A couple that married out of community of property got divorced in September 1995.

Their only child was 34 months old. The divorce decree incorporated a settlement agreement that made provision for the father to pay maintenance for the minor child.

He defaulted in making payments over the period and a warrant of execution was issued during February 2021 in order to recover arrear maintenance in the amount of R2,154,461,81.

The sheriff served the warrant of execution on April 26 2021 and no judgment assets could be pointed out by the father for payment of the amount mentioned in the warrant. The return of service of the warrant was nulla bona, meaning no assets could be pointed out by the father to satisfy the judgment amount.

Subsequently, the mother brought sequestration proceedings against the father’s estate on the grounds that he committed an act of insolvency in terms of the Insolvency Act. The father had also brought an application to set aside the warrant of execution and for a stay of the warrant – both applications were dismissed.

In defending the sequestration application, the father argued that he was not insolvent because the value of his assets exceed his liabilities. He did so by stating in his answering affidavit that the number of assets that he owns whose value he claims far exceeds his total liabilities.

He also argued that the current application should not be adjudicated upon because of the pending application to set aside the warrant – the latter argument was dismissed outright.

The court therefore had to determine whether the father is insolvent within the meaning of the Insolvency Act and whether the application should be considered because he disputed the mother’s claim of the amount mentioned in the warrant of execution.

The court was satisfied that the mother had established that an act of insolvency had been committed by the father as required by the Act – this was supported by the return of service from the sheriff.

The father had more than adequate time to either point out his assets to the sheriff to enable the sheriff to execute the judgment of the court but failed to do so. He further did not provide sufficient explanation on his failure to meet the payment required in the warrant.

The judgment had remained unsatisfied for an entire period of 29 years. It was evident from the papers that the existence of the court order made during the divorce proceedings is a judgment and this fact was not disputed by the father.

The father also did not dispute the fact that he has never paid any amount mentioned in the divorce decree. The court was therefore of the view that there was no factual or legal merit in the defences raised by the father and was satisfied that the mother had established that it will be to the advantage of the creditors that the estate of the father be sequestrated.

For these reasons, the father’s estate was put on final sequestration for failure to comply with the maintenance clause in the divorce decree. 

Brief lesson:

Involuntary insolvency occurs when any party with a vested interest in the estate of a debtor applies for the liquidation of the debtor. Over and above the requirement that the debtor is unable to pay their debts on time and/or that their liabilities exceed their assets, section 8 of the Insolvency Act provides added grounds which such other party may base their application on in order to have the debtor declared as insolvent. These are known as Acts of Insolvency.

  • In this first installment of our new regular feature, Tina Hokwana, legal practitioner unpacks court judgments to provide you with insights on how family law works.

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