A dissatisfied ex-wife’s request to jail her ex-partner for breaching a court order was denied by the judge, who stated that the law bans debtors from being imprisoned for non-payment of civil debt.
The former couple married and divorced approximately seventeen years ago.
In their settlement agreement, the ex-husband agreed to provide spousal and child maintenance.
Furthermore, it was decided that the wife would receive their old matrimonial house, and that the husband would continue to make monthly payments on the bond until it was settled, at which point the property would be transferred to her name.
If he fails to make payments, the wife has the right to retrieve the loan’s remaining balance from the husband.
However, the husband did not follow the conditions of the agreed-upon settlement, so the wife petitioned the Western Cape High Court to hold her ex-husband in contempt of court.
In his defense, he stated that his business failed and he fell behind on his bond requirements, prompting him to sell the home. The court documents did not specify how the sale was completed or how much he received.
After a while, the ex-wife filed another application seeking a declarator to determine the amount due to her from the sale of the house, an order directing payment of the sum into her account, and an order holding the husband in contempt of court if he fails to make the payment due to her.
The husband attempted to fight the application, but was unsuccessful and was forced to pay his ex-wife the money owed to her.
When the court sheriff attempted to execute a writ of possession on the husband’s movable and immovable property, he was unsuccessful. His lawyers said he was insolvent and lacked adequate assets to pay his debts.
Following that, the husband moved to Saudi Arabia, where he found work. He has returned to South Africa only on rare occasions since then. It was unclear which year he left the country.
In another attempt, the ex-wife petitioned the high court for an order placing her ex-husband in contempt of court and ordering his incarceration.
She requested that an arrest warrant be issued, ordering him to surrender himself to the police. Finally, she sought punitive fees from him.
Judge Derek Wille heard her application and ruled that the spouse had left the country and his imprisonment was illegal.
Judge Wille stated that, while the ex-wife claims that the court has jurisdiction to handle the situation since it has handled previous cases, he was not convinced that the court has the authority to compel the ex-husband to be arrested in a foreign nation.
“Still, even if I am wrong on the jurisdiction point, the ACIA prohibits the imprisonment of debtors for the non-payment of a civil debt…the applicant (ex-wife) cannot compel payment of a civil debt using imprisonment as her method of execution.
“It was not demonstrated that the respondent (ex-husband) intended in any manner to disobey the court order, thereby holding the judiciary and the judicial system in disrepute,” said the judge.
In addition, judge Wille said he was doubtful that the ex-wife could satisfy the civil debt in the foreseeable future.
“The respondent’s (ex-husband) incarceration would serve no purpose other than perhaps to fulfil the applicant’s (ex-wife) need for what she perceives as poetic justice in this case’s unfortunate and peculiar circumstances,” said the judge.