Cape Town - Parents who default on their maintenance payments face a double whammy of not only seeing their salaries subjected to garnishee orders but now also run the risk of losing their possessions.
A judgment in the Western Cape High Court this week declared that even if the parent who was owed maintenance applied for a garnishee order in a magistrate’s court, there was nothing to stop them also going to the high court to obtain a writ of execution.
Women’s Legal Centre director Jennifer Williams said after Wednesday’s ruling by Acting Judge Kate Savage, that it “contributes to the discourse around the effectiveness of the implementation of maintenance orders, and ways in which the system can be reformed to make it more effective generally”.
The judgment is in terms of a maintenance defaulter (a man, who cannot be identified to protect the identities of his minor children), who is embroiled in “acrimonious” divorce proceedings.
On August 28, he was ordered to pay his wife interim maintenance of R11 000 a month, as well as additional monthly amounts. When he failed to do so, she obtained a writ of execution authorising the Sheriff of the Court to attach his possessions to the value of the arrears amount.
She also approached the magistrate’s court for a garnishee order, which was granted on September 30, and which ordered his employer to deduct R11 000 a month, as well as the arrears maintenance of R500 a month, from his salary.
The man turned to the high court, lodging an urgent application in which he argued that his wife could not do both, and asking for the writ of execution to be set aside.
In her judgment, Acting Judge Savage said the enforcement of court orders was “a critical component of the exercise of judicial authority”.
The fact that a party was permitted to ask the magistrate’s court to enforce a maintenance order granted in the high court did not necessarily imply that the high court was prevented from enforcing its own maintenance order, she said.
The Maintenance Act and the Superior Courts Act gave the party seeking to enforce a high court maintenance order the right to choose the court out of which the order should be enforced.
In addition, there were no provisions in the two acts that prevented a writ being obtained from the high court in respect of arrears maintenance, when a garnishee order had been obtained.
Acting Judge Savage said the law sought to promote an effective and accessible maintenance scheme where maintenance ordered was paid and received without undue delay.
“Accordingly, the fact that an emoluments attachment order has been obtained in respect of both future and arrears maintenance does not bar the (wife) from obtaining a writ of execution issued out of the high court against (her husband) in an attempt to secure a speedy settlement of the arrears outstanding,” she said, dismissing the application.
Williams said the court had interpreted relevant statutory provisions to provide wider relief for those executing maintenance orders. “Such people are predominantly women and children… worthy of protection as a vulnerable category.”
She said the conflicting decisions would ultimately need to be resolved by a higher court or the legislature, but that the court’s interpretation of the law “gave effect to the effective collection of maintenance”.
Weekend Argus