Pretoria - A father of two squandered a pension payout at a casino and now the state must make up for maintenance he failed to pay for his two children.
The minister of justice and the National Prosecuting Authority (NPA) will have to pay R24 500 in maintenance arrears to the children’s mother because maintenance officers failed to attach the pension payout received by the father.
The man was in arrears with maintenance payments, and time and again the woman had asked prosecutors and a magistrate in Siyabuswa to attach his payout after he had resigned from a teaching job.
He had owed her money for three years, but while he was working as a teacher, there was a garnishee order against his salary which ensured payment. Problems started when he resigned and stopped payment altogether.
The woman from Mpumalanga turned to the maintenance court to report the non-payment. She told the court the father expected a pension payout and that they had to hurry (to attach it) before it was paid out.
A subsequent maintenance inquiry hearing was postponed several times. A prosecutor then decided to abandon the civil proceedings and to institute criminal proceedings against the father.
He was convicted, but, as he had paid some of the arrears to her, he received a suspended sentence. The magistrate concerned subsequently ruled that the R24 500 - which was still in arrears - be written off.
But the mother was having none of it and turned to the North Gauteng High Court for help.
The court found on Tuesday that the justice minister, as the political head responsible for the Department of Justice, was liable, along with the NPA as the employer of the prosecutors working at the maintenance court.
When asked by the court why the prosecutor acted the way he did, he said he had been a relief prosecutor at the time and had followed instructions from the other maintenance officers.
He admitted he did not familiarise himself fully with the contents of the woman’s case file and said that was the case with the other officers. He also admitted he was not familiar with the entire Maintenance Act.
When the father faced criminal proceedings, he paid a portion of the arrears, but soon fell behind again.
His bank statements revealed that he squandered his pension payout at a local casino.
Judge J Hiemstra referred to various portions of the Maintenance Act, which clearly states that a person failing to pay can have his pension attached by the court.
The judge said these remedies in the act had simply been disregarded by the officials. “As a result the plaintiff (mother) cannot recover the maintenance arrears and is left with only dubious spes of future maintenance payments.”
The judge added that this was simply because the maintenance officers failed her.
He also frowned upon the magistrate’s writing off the rest of the arrears, and said there was no provision for this in the act.
He said the employees of the officials were thus vicariously liable for their unlawful omissions.
Karabo Ngidi, of the Centre for Child Law, welcomed the judgment and said the high court made it clear that judicial officers had to adhere to the rule of law.
She said the woman was at the mercy of the prosecutors, who failed her by not interpreting the law correctly.
“The best interest of the child is always of paramount importance and in this case it is ultimately the children who would lose out. When the interests of children are at stake, officers of the court must always be vigilant, although they are sometimes burdened by a lot of work,” she added.