MAINTENANCE DEFAULTERS: AIDING THE PROCESS AND PROCESS-IN-AID Bannatyne v Bannatyne 2003 2 BCLR 111 (CC)

Abstract

In theory the process of regulating the payment of maintenance in South Africa is commendable. The duty to administer the process and eventually enforce maintenance orders lies with the State, specifically the maintenance officers. Without setting out the requirements of the Maintenance Act in detail, it is sufficient to note that it provides both civil and criminal remedies against maintenance defaulters. Civil remedies include execution against property, attachment of emoluments and the attachment of debts. Once there is a failure to comply with a court order, the criminal remedies become relevant, as nonadherence to the order is also a criminal offence for which the defaulter can be sentenced to a fine or imprisonment. Provision is also made for the recovery of arrear maintenance on both a civil and criminal level. The choice of remedy falls within the realm of the party seeking to recover arrear maintenance and she can choose the remedy which she considers to be the more efficacious.