Recent Case: Prosecution and sentencing of maintenance defaulters

• Author: Carnelley, M.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a8
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 115
• Pages: 115-129

Prosecution and sentencing of

maintenance defaulters

MARITA CARNELLEY

North-West University

1 Maintenance defaulters in the criminal courts

The willfu l or negligent non-payment of maintenance in terms of

an existing court order not withstanding the mai ntenance defaulter’s

ability to do so is a scourge in South A frica and is pure economic

abuse of mainly women and children. In 2 012, the author reviewed

the crimina l prosecution and sentencing of maintenance defaulters

in the South Afr ican maintenance courts for thi s journal and found

that in crimi nal maintenance matters di rect imprisonment was never

imposed. It was concluded that the courts needed to re- evaluate their

sentencing strategies to be effective in serv ing the needs of those

involved – especially the children (M Carnelley ‘A review of the crimin al

prosecution and sentencing of maintenance defaulters in South A frica,

with commentary on sentencing st rategies’ (2012) 25 SACJ 3 43 –3 60).

This update builds on that res earch and considers a cohort of new

judgments that nally suggest t hat the courts are more prepared to

sentence recalcitrant maintenance defaulters to direc t imprisonment

without the option of a  ne, without suspendi ng the sentence, and

without changing the crim inal proceedings into a maintena nce inquiry

as had previously been the practice.

It should be reiterated that the imprisonment of maintena nce

defaulters is controversial, as it could kill the proverbial goose that

lays the golden eggs, and this would not be in the interests of any

of the parties. It should remain a measure of l ast resort and only be

exercised when a nancially able maintenance defaulter refuses to pay

and deliberately and continuously ignores court processes and orders.

The courts tend to strive to ensure t hat the rights of the defaulting-

accused are not infringed dur ing the process. One can only lament

that the same care is not always taken to ensure th at the rights of the

children are valued as being of paramou nt importance, as dictated by

s 28(2) of the Constitution of the Republic of South Africa, 1996. One

would have expected that access to life-supporting necessities would

not be so difcult to enforce.

The argument submitted i n this document can be sum marised

as follows (and each of the assertions here will be discuss ed and

substantiated hereunder in more detail): The m aintenance system

Recent cases 115

https://doi.org/10.47348/SACJ/v35/i1a8

115

(2022) 35 SACJ 115

© Juta and Company (Pty) Ltd