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Child maintenance and penalties for failure to comply

In a recent court case the issue of maintenance and the failure to comply with a court order for payment of such maintenance was at the forefront again.

In short, the Plaintiff had been attempting to enforce the provisions of multiple court orders against the Defendant to comply with his court ordered duty of maintenance towards the Plaintiff and their minor children. The Defendant arrogantly defied the court orders and on multiple occasions promised the Plaintiff he would pay but continued to refuse to do so. This had the adverse effect of the Plaintiff and the minor children losing their primary residence, not having medical aid, and being removed from the school due to lack of payment.

Although it is unfathomable how a parent could simply disregard the supportive needs of their children when divorcing their spouse, this is unfortunately a case we often see.

There are many mechanisms by which maintenance orders can be enforced and the government has recently introduced legislation allowing maintenance defaulters to be traced via their phones, but too often these defaulters get away with not paying their child maintenance because the primary parent simply cannot afford going to court for years on end.

The primary legislation governing child maintenance in South Africa is the Maintenance Act 99 of 1998. This act aims to ensure that parents fulfill their legal duty to maintain their children according to their means and needs.

Maintenance orders generally form part of any divorce proceeding instituted, but not being married does not disbar you from obtaining a maintenance order. The mere fact that a child has been conceived and the identity of the parents are known will constitute grounds for obtaining a maintenance order.

When attending to court to get a maintenance order (whether via your divorce proceedings or simply approaching a maintenance court directly) the following factors, among others, are considered by the court in making an order for the amount payable:

  1. The financial needs of the child (education, medical expenses, clothing, housing, etc.).
  2. The financial means of both parents, such as their income, expenses, assets, and liabilities.
  3. The standard of living and financial circumstances of the child before the separation or divorce.
  4. The child’s age and any special needs.
  5. The ability of the parents to earn an income.
  6. Any other relevant factors.

Once the amount has been determined, the court will make an order which then becomes binding on all parties involved.

So what happens if the party ordered to make maintenance payments fails to comply?


Contempt of court refers to the deliberate, willful, disobedience of an order granted by a court of competent jurisdiction.

The requirements for contempt of court are:

  1. There must be a valid court order in force;
  2. The person must have knowledge of the court order;
  3. The person must have failed to comply with the court order; and
  4. The failure to comply must have been willful and intentional. (this is presumed once the previous 3 elements are satisfied)

Section 31 of the Maintenance Act 99 of 1998 sets out the various offences and penalties relating to the failure to comply with a maintenance order. If a person is found to be in contempt of court, they can face various penalties, including fines, imprisonment, or suspended imprisonment. The exact punishment depends on the severity of the contempt and the discretion of the presiding judge. In South Africa, imprisonment for contempt of court is not a criminal sentence, but a civil one.

It is important to know that if the reason for failure to comply with a maintenance order is due to the party’s inability to pay, such inability cannot be due to that party’s unwillingness to work. If the defaulting party simply refuses to obtain employment or through deliberate misconduct cannot remain employed, such person will still be in contempt of court.

Khampepe ADCJ correctly stated that all members of South African society have a duty to respect and abide by the law, and court orders issued in terms of it, because unlike other arms of State, courts rely solely on the trust and confidence of the people to carry out their constitutionally mandated function.  

The rule of law is a foundational value of our Constitution and it requires that we act with dignity and under the courts authority. The Constitution demands that orders and decisions issued by a court be binding on all persons to whom it applies including organs of State. No person or organ of State may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering the courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Contempt of court proceedings exist to protect the rule of law and the authority of the judiciary. The authority of courts and obedience of their orders, the very foundation of a constitutional order founded on the rule of law, depends on public trust and respect for our courts. Courts do not command the army, the police, or the public purse so must rely on moral authority and trust, founded on the legitimacy of their court orders.

Generally, the courts won’t immediately order a fine or imprisonment of the defaulting party but will allow a certain period of time by when such person must comply with the court order. Should the person still refuse to comply, or if the court is of the opinion that coercive order will not be appropriate in the specific case, the court will then consider making an order for a fine or imprisonment not exceeding one year.

It must be borne in mind that the principal purpose of a contempt of court proceedings when an order has been disobeyed, has been the imposition of a penalty to vindicate the Court’s honour consequent upon the disregard of its order and to compel the performance thereof.

In summary – court orders are not suggestions but of a binding effect. Where a maintenance order was made, the parties are obligated to adhere to the content of such order. If either party is unsatisfied with such order, the necessary appeal process must be followed. But an aggravated party cannot simply choose to ignore it.

If you are faced with a parent who is refusing to comply with a maintenance order, you have the right to pursue contempt of court proceedings against such party. It is vital to act on behalf of your minor children or yourself to enforce all court orders granted, especially if such an order relates to maintenance. Remember, a person only needs to fail to adhere once to a court order for it to constitute contempt of court. It is not necessary to show repeated failures before approaching a court.

Contact our office today for your first 1-hour free consultation and let us assist you with your maintenance problems.

*This article was written with the help of the well-reasoned judgment granted by the honourable Morgan AJ in ENM v LTM and another (DIV88/11& UM107/18)[2023] ZANWHC



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