V v S (50975/2008) [2015] ZAGPPHC 971 (19 August 2015)

V v S (50975/2008) [2015] ZAGPPHC 971 (19 August 2015)

The respondent is in wilful breach of the maintenance order and has failed to present any credible justification for non-payment. The respondent's constitutional right to housing cannot override the best interests of the child, which are paramount in all matters concerning the child. The respondent's conduct, including arranging for a nulla bona return and failing to disclose financial hardship, demonstrates a deliberate attempt to frustrate compliance with his maintenance obligations. The offer of a once-off payment and a payment plan is inadequate given the prolonged period of non-payment. The applicant has made out a proper case for the relief sought, and the requirements for execution...

Citation
[2015] ZAGPPHC 971
Parties
Applicant: V V; Respondent: S S
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2015
Case Number
50975/2008
Procedural Posture
Urgent Application / Application for Writ of Execution Against Immovable Property Following Failure to Pay Maintenance as Per Divorce Settlement Order.
Outcome
Application granted; writ of execution against respondent's immovable property issued as per prayers 1 and 2 of the Notice of Motion.
Judges
Magardie AJ
Legal Topics
Maintenance Enforcement, Best Interests of Child, Writ of Execution, Constitutional Rights Balance
Family and Children Civil Procedure Maintenance Enforcement Best Interests of Child Writ of Execution Constitutional Rights Balance

Case Brief

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Parties

V V

Applicant

S S

Respondent

Procedural Posture

Urgent Application / Application for Writ of Execution Against Immovable Property Following Failure to Pay Maintenance as Per Divorce Settlement Order.

Legal Issues

  1. 1 Whether the respondent's immovable property may be attached and sold in execution for arrear maintenance under Rule 46(1)(a)(ii).
  2. 2 Whether non-joinder of the bond holder (Standard Bank Ltd) precludes the granting of the writ.
  3. 3 Whether the applicant has made out a proper cause of action for the relief sought.

Ratio Decidendi

The respondent is in wilful breach of the maintenance order and has failed to present any credible justification for non-payment. The respondent's constitutional right to housing cannot override the best interests of the child, which are paramount in all matters concerning the child. The respondent's conduct, including arranging for a nulla bona return and failing to disclose financial hardship, demonstrates a deliberate attempt to frustrate compliance with his maintenance obligations. The offer of a once-off payment and a payment plan is inadequate given the prolonged period of non-payment. The applicant has made out a proper case for the relief sought, and the requirements for execution...

Court Disposition

Application granted; writ of execution against respondent's immovable property issued as per prayers 1 and 2 of the Notice of Motion.

Orders

  • The writ of execution against the respondent's immovable property is granted.
  • The respondent is ordered to pay the costs of the application.