Judge wants advocate ex-husband jailed for not paying maintenance

The Supreme Court of Appeal (SCA) has given a Cape Town advocate, who was married to a prominent judge, one last chance to explain why he should not go to jail for contempt of two court rulings that he pay R138,419 for arrears in child maintenance.

The parties cannot be named because the matter involves minor children.

The judge, who recently divorced her second husband, also a judge in the division, says her first husband owes her the money and he has done everything possible to avoid paying her.

This includes allegations he had sold a vehicle when the sheriff went to attach it though it was later found to still be registered in his name, and purportedly selling a property to a relative so it could not be attached.

He also unilaterally gave notice to the children's school that they would no longer be attending, and suggested to his ex-wife they be placed in a more affordable school because he could not afford the fees after falling on hard times because of the pandemic.

The couple apparently divorced in July 2013. There was an order that he pay a contribution of maintenance of R6,000 a month per child, and their school fees.

In the SCA, judge Caroline Nicholls, writing for the court, said the judge had gone back to court and secured an order directing her ex-husband pay arrears of R138,419 by December 18 2020. 

He did not pay and the judge again approached the court in March 2021, judge Elizabeth Kubushi declaring him to be in “wilful” contempt of both court orders, and sentencing him to serve three months behind bars.

He was denied leave to appeal, but approached the SCA for special leave which was granted.

Nicholls said the advocate said he only owed his ex-wife R20,000 in unpaid school fees, which were “due to the school, not her”, and that his committal to prison was “radical”, had been brought with indecent haste and trampled on his constitutional right to liberty.

He also complained he had asked for a postponement of the hearing before Kubushi because at the time he had just learnt that his sister was terminally ill. The postponement was refused.

Nicholls noted that attempts to attach a Range Rover SUV had come to nought and the sheriff had noted that when he went to the advocate’s house in December 2020, there was only a Mercedes-Benz and Mini Cooper at the premises.

“The Range Rover was nowhere to be seen. He refused to tell the sheriff to whom it had been sold or the whereabouts of the vehicle. An eNatis search conducted in March 2021 revealed it was still registered in his name.

“The respondent [the judge] alleged that this was a pattern of behaviour ... and he had sold an immovable property to a cousin in an attempt to ensure that it would not be placed in trust as ordered by the court.”

Regarding his application for a postponement of the contempt of court hearing, Nicholls said Kubushi had criticised the advocate for launching the application on the day of the hearing.

Kubushi had also noted that his arguments — that he did not owe what was being claimed and his practice had suffered because of the pandemic — held no water because he was in contempt of the previous court orders.

“All South Africans have a duty to respect and abide by the law ... and the attempt to evade payment of maintenance orders is particularly egregious,” Nicholls said.

However, she said, wilfulness and male fides had to be proved beyond reasonable doubt when committing people to prison for contempt and the postponement requested by the advocate should have been granted.

Nicholls granted the postponement and ordered the matter return to the high court, giving the advocate 15 days to file papers.

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