The parties have two children, born in 2002 and 2004. At the time of the divorce, they were 12 and 10 years old, and they are now 21 and 19 years old, respectively.
It was agreed that he would pay R5,000 per child per month, until the children are self-supporting or no longer reside with their mother.
The R5,000 is to increase annually by the lesser of the consumer price index and his salary increase.
He was also liable for all educational expenses, including tertiary, and extra-mural activities, as well as the necessary equipment.He will also retain the children as dependants on his medical aid until they are self-supporting.
The clause also provides that either party may approach the maintenance court for a variation.
In 2022, the father approached the South Gauteng High Court in Johannesburg seeking a deletion of all the maintenance clauses.
He wanted to pay a flat amount of R5,000 per month per child until the child is self supporting or no longer lives with the mother.
The basis of the relief was that the mother had a better income than she did when the agreement was entered into, and he, on the other hand, had a reduction in income.
In addition, he said the ex-wife incurred additional expenses for the children without consulting him as required by the agreement, despite knowing of his reduced circumstances, and when he was unable to pay, she issued a warrant of execution.
He also sought relief from the warrant of execution.
In responses, the ex-wife said the ex-husband comes to court with “dirty hands” because he admits he has not been paying maintenance in accordance with the original court order.
She also submitted that the ex-husband’s failure to comply with the 2014 order was deliberate and in bad faith; she denied that it was due to a lack of funds.
After considering all the evidence, Judge Seena Yacoob said the father attached no proof of his income, or assets to his founding affidavit.
“There are no bank accounts. There is no original documentary evidence at all. The court is expected to simply accept his say so. As far as a reduction in income is concerned, all he attaches is a letter from his employer which states that all employees will be subject to a reduction of 40%,” said Judge Yacoob.
Judge Yacoob added that the discovery of insufficient funds from his Investec account after the issuing of execution of warrants, was not enough demonstration of his financial position.
“The applicant does not make any effort to prove that that Investec account is his only bank account. In the papers, there is reference to an FNB account which he shares with his current wife which he has declined to disclose details of to the maintenance officer. There is no indication of which account his salary is paid into,’’ she said.
Judge Yacoob said the ex-husband has been remarkably coy in what he has made available in his various attempts to have the maintenance order amended.
“He has decided for himself what is relevant. That is not his decision to make.
“In my view, the applicant simply has not established his financial position sufficiently clearly to allow the court to make any finding about whether the 2014 order should be amended,” she said.
Regarding the setting aside of the execution of warrants, Judge Yacoob said the ex-husband submits that he did not have to pay the amounts that the ex-wife executed on but does not provide sufficient proof of the allegation.
Yacoob dismissed the application with costs.
Source IOL
