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Bannantyne v Bannantyne

Bannantyne v Bannantyne

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CASE: Bannantyne v Bannantyne

Amicus curiae – friend to the court

➢ Facts: The applicant was the ex-wife of the respondent and they had two children during

their marriage. As part of their divorce agreement the father had to pay maintenance of

R1750 for each child and a small portion for his wife, as well as having the children on his

medical aid. He did not pay maintenance regularly but even brought an application (in 1999)

to reduce the amount for each child, using s8 of the Divorce Act. This was granted and

lowered to R1500. He fell into arrears twice and after the applicant sought relief he paid

even less for his children (R1200) and removed them from his medical aid. The applicant

tried various things to get the outstanding maintenance but the respondent applied for a

further reduction, to R600 per child.

➢ The applicant was earning very little (less than her expenses) and had used up all her savings

and insurance policies to support her children, believing the respondent was maliciously

hiding his own assets and hindering maintenance court proceedings. She applied to the High

Court to declare him in contempt of court and he was to be imprisoned for 90 days. This was

granted. He appealed to the SCA which set aside the order and said the applicant should have

done more to procure the maintenance (stand in more queues or speak to more people). The

applicant went to the CC in terms of s28(2) “A child’s best interests are of paramount

importance in every matter concerning the child”.

➢ Mokgoro, J wrote for the unanimous Constitutional Court in light and s28 and s38, which

obliges courts to grant “appropriate relief” where rights are threatened and infringed.

➢ The Maintenance Act was not implemented in a way that was alleviating the burden of

women who required maintenance and this was not in line with s9 of the Constitution in

terms of gender equality and s28(2) (best interests of the child) because of the respondent’s

children that were dependant on his maintenance.

➢ The argument was also in terms of s22 of the Maintenance Act 99 of 1998 as well as Chap 5

(maintenance orders must be enforced by civil execution), Chapter 6 (the court may convict

a person for failing to pay maintenance) and s4 (deals with the recovery of arrear

maintenance) because although the Act provides for much, there is insufficient enforcement.

➢ For the first time, the Constitutional Court linked the problem of enforcing maintenance

orders to the constitution and the best interests of the child as stipulated in the Constitution

in s28(2): There is a “gendered nature” in the maintenance system; in most cases the women

will get custody of the child and the men must pay, but in this case the mother had a burden

of payment and physical care, also it was found many women have difficulty in finding work

and if they succeed they may be exploited. The court also held it needs to deal effectively

with “recalcitrant maintenance defaulters”.

➢ Problems with the Maintenance Act found by the CC are:

1. There is an abuse of the legal process by husbands who can afford legal

representation

2. There are logistical problems within the maintenance system such as shortage of

adequately trained staff, delays in serving orders, inadequate facilities and the

system of maintenance investigators provides their task to be designed to assist

women in claiming, rather than actually collecting the money

3. Failure of the courts to recognized the gravity of a problem, and apply the

maintenance act effectively

4. Most maintenance courts are overburdened and they are underpaid so there is

little attempt to assist people in need.

➢ Result: The order of contempt of court was upheld (thus the SCA ruling was set aside) and

the CC held courts should do anything in their power to ensure maintenance orders are

implemented

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CASE: Bannantyne v Bannantyne Amicus curiae – friend to the court ➢ Facts: The applicant was the ex-wife of the respondent and they had two children during their marriage. As part of their divorce agreement the father had to pay maintenance of R1750 for each child and a small portion for his wif ...
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