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Accused will conduct business and pay his dues

TINA HOKWANA | Court finds reasonable punishment after husband failed to pay spousal maintenance

Tina Hokwana Legal Practitioner
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The parties, who are married in community of property, are embroiled in what appears to be unnecessarily drawn-out divorce litigation which was instituted five years ago.

The wife, Renee Mounter, brought an application for interim maintenance pending the finalisation of the divorce (Rule 43 application).

On May 4 2021, the husband, Charles, was ordered to contribute towards Renee’s maintenance needs in the form of a monthly cash contribution and the payment of certain specified expenses directly to certain service providers.

He was also ordered to pay an initial contribution towards her legal costs (the Rule 43 order).

Charles subsequently failed to comply with the Rule 43 order and Renee launched a contempt of court application.

On June 19, Charles was convicted of contempt of the Rule 43 order and sentenced to 14 days imprisonment, which committal was suspended for the period pending the finalisation of the divorce on condition that he paid all outstanding arrear maintenance amounts.

Once again, Charles did not comply timeously or in full, with the conditions laid down in the contempt order of June 19.

He paid the arrears late and continued to short-pay the monthly cash amount.

Renee launched an urgent application for his committal.

It was only after he was served with this application, did he make payment of the arrear maintenance due.

In this application, the court had to determine whether it should order the implementation of the suspended sentence, and if so, whether the implementation should be subject to some or other amendment.

Based on the evidence led, the court was of the view Charles was able to fulfil some of the conditions of the suspended sentence, including the late payment of the arrear maintenance due, an amount equal to more than 14 months of cash maintenance payable.

Charles further argued that his business supports both him and Renee and should he be incarcerated, the business will fail.

In response, the court found that the reasonable alternative is therefore a sentence of periodic imprisonment over weekends to allow him to conduct his business, earn an income, and pay his dues to Renee.

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