Africa-Press – South-Africa. A Mahikeng High Court judge invoked an African proverb when he sentenced a businessman to three months’ imprisonment for failing to comply with a divorce settlement he himself had drafted.
“It is indeed true and unfortunate that the minors became unwilling casualties as the African proverb correctly puts it ‘when elephants fight, the grass gets trampled’,” Acting Judge Mark Morgan said last Thursday.
This after the businessman failed to pay maintenance for his three children.
According to court papers, the couple – who cannot be named as minors are involved – was married in community of property from 1 December 2002 until 22 December 2014, when the divorce was granted.
The businessman, who is the sole director and shareholder in an accounting firm, initiated the divorce proceedings.
He drafted the deed of settlement and presented it to his former wife, who, in her version, “merely acceded to it in order to maintain peace, avoid an acrimonious divorce and have the divorce finalised speedily”.
The settlement was worth a combined R7 386 324.89 and included, among other things, maintenance, two homes for which he agreed to settle the loan repayments, a vehicle, and payment for vehicles he wished to keep.
However, he failed to comply with the settlement.
According to court papers, the former wife had to sell one of the homes to pay off the bond, municipal rates, and related expenses.
There is also a pending action for foreclosure on the other property, “which could result in the woman and her three children losing their home if not settled”.
Morgan said the man’s empty promises also led to the financial exclusion of one of the minors from their primary school because of the parents’ failure to pay school fees.
The woman was forced to go to court, and on 22 June 2018, the Sheriff of the Court was authorised to retrieve the money from the businessman’s assets.
The sheriff attached goods worth R9 657 617.69 and in retaliation, the businessman launched two unsuccessful applications to set the order aside.
According to a garnishee order against the man, his business was liable for 75% of all amounts due to the woman until the entire debt was settled.
The businessman is said to have then voluntarily placed his business under business rescue.
While it usually takes around three months to conclude, he kept his business in business rescue for eight years.
“It may even be argued that the [man’s] placement of the company under business rescue is a means to avoid the attachment of its assets,” Morgan said.
He added he believed the businessman when he stated he would not comply with the court orders.
“He declared unequivocally during the hearing that he would not comply with the court order, [saying that in doing so he would be] ‘giving into the applicant’s luxurious demands’ he would not provide for.
Morgan said the agreement was made before Covid-19, so it was farfetched for him to say he could not comply because of the pandemic.
In concluding the case, he added the failure to pay child maintenance was a criminal offence.
The man was found in contempt of court for failing to comply with the orders of the court and was sentenced to three months in prison.
He must also still comply with the settlement and was ordered to pay costs to his former wife.
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