Durban - A financially struggling mom, owed R175 000 in unpaid interim maintenance from her estranged husband, was forced to go to the high court to get an order compelling the sheriff to obey a court instruction to attach money in his bank account.
The office of the sheriff had refused for months to act on an order issued out of the regional magistrate’s court on June 1 this year.
The Mercury understands this is not an isolated incident and further, public interest litigation could be looming.
When the matter came before Durban High Court Judge Pieter Bezuidenhout last week, he said the sheriff was wrong and legislation authorised attachment of money on instruction from the regional court.
In her affidavit the mother - who cannot be named to protect the identity of her 10-year-old child - said she had instituted divorce proceedings in the regional court - cheaper than doing so in the high court - and had applied for interim maintenance.
While her estranged husband opposed this, the application was argued before a magistrate in July last year and he was ordered to pay maintenance of R12 000 a month, educational and medical costs of the child, a contribution to legal fees and the bond repayments on the former matrimonial home.
She said he did not abide by the order and in August last year she obtained a warrant of execution to attach his property to the value of R28 000. Items were attached, but not removed, and no further steps were taken by her former attorneys to sell the goods.
Again he failed to pay and another warrant of execution was issued in June this year, which authorised the attachment of money - almost R100 000 at that time - in his bank account.
But the sheriff refused to execute the warrant, saying it needed to be issued out of the high court. The mother’s new attorney contacted the sheriff and was told “it has now become the practice, as a result of discussions at a conference, not to execute against bank accounts in terms of either magistrates' or regional court orders”.
Further investigations disclosed that the South African Board of Sheriffs had received many similar complaints, but officials refused to budge and finally her attorney was told “our office considers the subject closed and will not entertain this query any longer, the writer spent a lot of her time assisting you...”
The mother said there was no legal basis for this attitude. “It seems to me to be entirely iniquitous that because I instituted proceedings in the regional court, I am not entitled to attach the money.
“The Regional Family Court was established specifically to allow indigent people of South Africa access to justice and to obtain divorce orders and other family court orders without having to incur costs associated with high court proceedings. It seems, if the sheriff is correct, that the law only provides for wealthier people than the impoverished majority of our country.”
She said the father of her child now owed R174 000. This was not a “commercial debt” but critical for her and her child’s survival.
“Not that it is necessary, but I point out that he is a successful businessman and earns a considerable income. This is most certainly not a case that he cannot afford to pay.”
The office of the sheriff did not file opposing papers and agreed to abide by the decision of the court.
The Mercury