The applicant and respondent were divorced in 1999, with a High Court order (later substituted by a maintenance court order) requiring the respondent to pay maintenance for the applicant and their two minor children. Despite obtaining a reduction of the children’s maintenance in the maintenance court, the respondent persistently defaulted on payments, removed the children from his medical aid, and accumulated substantial arrears. The applicant made repeated attempts to enforce the maintenance order through statutory remedies under the Maintenance Act 99 of 1998, including writs of execution and approaches to the maintenance court, but these proved ineffective. Facing severe financial hardship and believing the respondent was deliberately frustrating enforcement, the applicant approached the High Court for an order committing the respondent for contempt of court, with imprisonment suspended on condition of compliance. The High Court granted the order. On appeal, the Supreme Court of Appeal set aside the contempt order, holding that the applicant had not shown sufficient grounds for invoking the High Court’s jurisdiction. The applicant then sought special leave to appeal to the Constitutional Court, arguing that the SCA failed to give proper weight to section 28(2) of the Constitution and the best interests of the children.
Special leave to appeal was granted; the appeal succeeded; the order of the Supreme Court of Appeal was set aside and replaced with an order upholding the High Court’s contempt order (with imprisonment suspended on conditions of payment).
This case is a leading Constitutional Court authority on the enforcement of maintenance orders. It affirms the High Court’s inherent jurisdiction to use contempt proceedings as process-in-aid to enforce maintenance orders where statutory mechanisms are ineffective. The judgment constitutionalises maintenance enforcement by centring the best interests of the child under section 28(2) and recognising the gendered impact of maintenance failures on women. It strengthened judicial accountability in ensuring effective remedies for children’s socio-economic rights.