Covid-19: No “Payment Holiday” for Maintenance Payers

The end of “lockdown” in South Africa is uncertain.  The devastating effect on the economy and households will be a reality for a time to come.  Unfortunately the most vulnerable members of society are the hardest hit.

While both men and women are the victims of gender-based violence and domestic violence, the statistics show that women and children remain the primary targets. Deputy Minister in the Presidency for Women, Youth and People with Disabilities, Professor Hlengiwe Mkhize, has expressed anger and disappointment towards the toxic patriarchal mindset at play, particularly in these volatile pandemic times.

For most of the “lockdown” thus far the effects of economical abuse against woman and children have been ignored, despite the vocal media creating awareness regarding physical abuse. Economic abuse of the precarious or dependant financial position of a person is as much a problem as physical violence and is documented in pre-existing South African legislation. Economic intimidation and neglect is as fearful and problematic as other forms of abuse.  It is fair to thus classify it as a form of “domestic violence”. Domestic violence, including gender-based violence, comes in all shapes and forms. In terms of Chapter 1 of the Domestic Violence Act 116 of 1998 “domestic violence” specifically includes “economic abuse” in its definition.

The stark reality of economic abuse has, disappointingly, been given a further “excuse” in the current state of affairs.  It would seem that recalcitrant compliers of maintenance payments are now most conveniently using the word “COVID-19” as a blanket excuse to avoid paying maintenance. The outcome of which leaves dependent woman and children without the means to access basic necessities. The vulnerable become resultantly even more vulnerable.

On 19 May 2020 Shani van Niekerk (Senior Associate and Family Law Specialist at Adams & Adams Attorneys) together with Advocate Sybrandt Stadler (Advocate of the Pretoria Bar) approached the Pretoria High Court with an urgent Contempt of Court application to compel payment of maintenance, regardless of the National State of Disaster. The respondent indicated, at extremely short notice, that as a result of “lockdown” his maintenance payments could not be made and would need to stand over until post “lockdown”.

In the aforementioned matter, heard in the Pretoria High Court, despite a valid court order in terms of the Divorce Decree, the respondent ceased making any maintenance payments due to his ex-wife (the applicant). The applicant, who is unemployable due to ill-health, was granted a lifelong maintenance order in 2013 during the divorce proceedings. The applicant is wholely dependent on said maintenance.  As a result of the respondent’s failiure to pay the applicant, the applicant has been left destitute; with no means for even the most basic of needs.

The respondent argued he had no alternative but to cease maintenance payments as he was no longer in a position to afford such. He was, however, unable to provide any clear and convincing proof of his financial decline.  He had also failed to take any steps to decrease his own monthly expenses, despite most banks offering payment holidays and the Government making funds available to business owners. In fact, the only conclusion drawn from his papers before Court was that he was moving money between his own accounts to create an impression his financial position more dire than what is actual.

It was argued for the applicant that the position of those already vulnerable in  society should neither be exploited nor worsened as a result of the declared State of Disaster.  To the contrary, it was argued those vulnerable should receive more protection in times where it becomes increasingly difficult to fend for themselves. It was acknowledged that compliance with one’s obligations could be difficult in such unprecedented times but this in no way should result in those dependent on this support bearing the brunt of the situation.  Such behaviour is defined as “abuse” in current legislation.  It cannot be justified in the constitutional dispensation of South Africa which has at its heart the protection of those who cannot do it themselves.

The Court found in favour of the applicant and ordered the respondent to immediately recommence maintenance payments to the applicant.  It was also also confirmed that the national State of Disaster does not amend the respondent’s maintenance responsibilities as per the existing court order.

Although each matter should be approached on merit, parties should be very careful to not opportunistically abuse the current State of Disaster to circumvent their maintenance responsibilities.  Although it was not argued in this particular matter this will be substantially more applicable in the case of minor children.

Adams & Adams has a team specialising in Family Law that is available to assist with any queries and resolve any uncertainty that you may have.

Shani van Niekerk
Senior Associate | Attorney
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