Case CCT 247/16 
[2018] ZACC 05
Hearing Date : 08 November 2017
Judgement Date: 01 March 2018

Media Summary of Judgment

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 1 March 2018, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court granted an order authorising the issuance of a warrant of execution to attach and sell Mr S’s immovable property. The sale in execution was to satisfy a debt that Mr S owed Ms V-S in respect of maintenance for their only child. The exact amount owing is disputed.

Mr S and Ms V-S had been married, but were granted an order of divorce by the High Court on 29 October 2010. The divorce order incorporated the terms of a settlement agreement between them. That agreement governed the amount Mr S would pay, on a monthly basis, for the basic maintenance of their child. It also contained separate provisions relating to Mr S’s contributions toward school fees, medical expenses, costs for text books and other special costs.

In May 2010 Ms V-S relocated to the United States of America, where she remained for approximately four years. During this time, Ms V-S claims to have paid various amounts in respect of school fees, medical bills, and extra-mural activities for the child. Mr S paid maintenance for the child from October 2010 until close to the end of 2012, whereafter he ceased making payments. Upon her return to South Africa, Ms V-S applied successfully to the High Court for the issuance of a writ of execution in the amount of R 306 550.18. She alleged Mr S owed that amount for basic maintenance and the contribution to the child’s medical bills, school fees, and fees for extra-mural activities.

The Sheriff visited Mr S’s home to attach movable property pursuant to the warrant of execution and found that Mr S had insufficient movable assets to satisfy the debt. Ms V- S applied to the High Court in terms of rule 46(1)(a)(ii) of the Uniform Rules of Court to have Mr S’s home declared specially executable. Mr S opposed the application. In August 2015, the High Court ordered execution against Mr S’s immovable property. Mr S applied to the High Court to have the warrant of execution set aside, however this application was dismissed. Mr S made an application for leave to appeal to the Supreme Court of Appeal. That application was also dismissed.

The matter was first set down to be heard before the Constitutional Court on 29 August 2017. At the hearing, it became clear that Mr S was in substantial arrears with his basic maintenance obligations. He had not paid maintenance in the period between early 2014 and August 2017. The Court made an order to postpone the proceedings to 8 November 2017 to provide Mr S with time to remedy his default with regard to basic maintenance payments. Mr S was ordered to pay (i) Ms V-S’s costs of postponement, (ii) an amount of at least R150 000 on or before 30 September 2017 in respect of the arrears maintenance, and (iii) monthly amounts in respect of his maintenance obligations and other expenses in accordance with the settlement agreement. When the matter resumed on 8 November 2017, it was discovered through submissions made during the hearing that Mr S had not fully complied with the Court order made on 29 August 2017. In particular, he had failed to make monthly payments in respect of the basic maintenance obligations and other expenses of the child.

The Court acknowledged that the matter raises a constitutional issue, but held that it would not be in the interests of justice to grant the applicant leave to appeal. The Court ordered Mr S to pay Ms V-S’s costs on the basis of his conduct towards the child, and the need to safeguard the Court’s integrity. Further, the Court held that a punitive order of costs was justified in this matter as Mr S’s conduct was the kind of “extraordinary” conduct worthy of the Court’s rebuke. Mr S was ordered to pay Ms V-S’s costs relating to the proceedings of 8 November 2017 on an attorney and client scale.

The Full judgment here.