NOT PAYING MAINTENANCE COULD LAND YOU IN JAIL

 

 

NOT PAYING MAINTENANCE COULD LAND YOU IN JAIL

 

A Durban businessman was convicted and received a four and a half year prison sentence by the Krugersdorp Magistrates Court for failing to pay maintenance to his wife and children.

Maintenance is the financial assistance of someone else and is usually made an order of court. According to the Times Live, the father is a director of a big restaurant franchise and lived the high life while the mother and children were living in abject poverty.

The man and his ex-wife divorced and in terms of the divorce settlement the man had to pay R24 000 every month for five years to his ex-wife and R10 000 every month for child maintenance for their children.

The man defaulted in just three months after the High Court order and according to Times Live, the evidence before the court was that the man had been living the high life and concealed his assets.

Defaulting in maintenance payment means that the person is in contempt of a court order and can be criminally convicted, as was in this case. The consequences for non-payment can be:

  • a court order for civil execution
  • a warrant for execution in terms of section 27 of the Maintenance Act
  • a garnishee order in terms of section 28 of the Maintenance Act

After a three year legal battle, the ex-wife got a writ of execution and the man’s property was attached which allows the wife to sell them and recover more than a million rand.

The Krugersdorp Magistrate refused to grant the man leave to appeal the conviction and refused to hear an application for bail pending a petition to the Chief Justice for permission to appeal.

The judgment passed by the lower court is quite unusual for such an offence, however the general public has become weary of maintenance defaulters.

In light of there being so many maintenance defaulters and in trying to curb that, an amendment was made to the Maintenance Act to include parent’s maintenance obligation as part of their credit profile. So as from September 2015, people with arrear maintenance can get bad credit records and get blacklisted.

What actually happened that night

The family:

Cape Town was once home to a wealthy family who was headed by father and businessman Martin Van Breda who was married to Teresa Van Breda who was the mother to Henri, Rudi and Marli Van Breda.

How it all began:

On the 27th of January 2015 the van Breda family lay in their own pools of blood while they were axed and stabbed to death. Among the family father and husband Martin, mother and wife Teresa as well as son and brother Rudi died in their Stellenbosch home. Sister and daughter Marli Van Breda was brutally attacked and somehow against all odds survived where she was rushed to hospital to the intensive care unit where she underwent many surgeries and therapy.

Henri Van Breda however was only found drenched in the blood of his family members as well as having sustained minor lacerations.

Henri told police and emergency services that a black man wearing dark clothing, gloves and a mask had broken into the family home where he went from room to room slaying each of his family members as he sat in the bathroom.

Henri who miraculously survived such a brutal attack immediately went to call his girlfriend at 4 am to which there was no answer. Henri then searched the internet for emergency numbers but only called the police some three hours later.

The aftermath:

After investigation the police found no fingerprints, foreign DNA or forced entry on the crime scene.

Henri Van Breda was then told to hand himself over to police which he did as he faced charges of murder and attempted murder. Henri was later released on bail on the condition that he reported to police and did not leave the Western Cape pending his pre-trial which was subsequently adjourned for time to gather DNA evidence.

Henry and his girlfriend were later found and arrested in Table View for the possession of cannabis which he later was released on bail.

In April 2018 the trial finally got underway after nearly 4 years without any justice for the victims where Henri made a plea of not guilty which enraged the community after everything they heard in the court room.

Why was Henri granted bail?:

The community was outraged when the news came that Henri was granted bail, not only once but twice! Many however don’t realize that bail is a way in which the court ensures the accused be present at court.

Here are the questions that a judge or magistrate needs to look at when granting a criminal bail:

  1. The likelihood that the accused will try evade his trial;
  2. The likelihood that the accused will try to influence and/or intimidate the potential state witnesses or conceal/destroy evidence;
  3. The likelihood that the accused will undermine or jeopardise the objectives or the proper functioning of the criminal justice system including the bail system;
  4. The likelihood that the accused will endanger the safety of the public or any particular person or will commit a schedule 1 offence;
  5. The likelihood that in exceptional circumstances the release of the accused will disturb the public order or undermine the public peace or security.

It was therefore found that 1-5 above could not be applied to Henri as he was not found to be guilty as well as the fact that he was in the care of family members at the time. The conditions of Henri’s bail are that he was not to leave the Cape area and he was to report in to local police officers on a regular basis.

Many people believe that it was unjust to have Henri released on bail after such a heinous crime. However, one should understand that the courts need to treat everyone innocent until proven guilty, and although Henri seemed to be the best suspect, there was no proof of such that the court could convict him on beyond a reasonable doubt.

  Pathology report:

Pathologist Dr Daphne Anthony who assessed the deceased and Marli made the following conclusions:

Marli Van Breda: her injuries were similar to those found on the other family members but she had multiple defense wounds that would suggest that she fought off her attacker stronger in force then the rest of her family.

Rudi Van Breda: he has said to have had the most horrific attack out of all the family as he was lying on his back when he was attacked throwing his hands up to defend himself before he was bludgeoned to death. Rudi was still alive for several hours after the attack as blood was found in his lungs and stomach as per his autopsy suggesting that he was still breathing and swallowing.

Martin Van Breda: he was said to have blood also found in his stomach stating that he was still alive after the attack, however, he did not see the attack coming.

Teresa Van Breda: she faced her attacker and tried to defend herself but died fairly instantly.

Motives of the attacker:

As Henri Van Breda’s story of the attack was found to be false he was left as the last suspect. Many speculated that Henri was cut off by his father as he was tired of his drug habits. These habits were confirmed by Henri’s drug dealer who testified against him stating that Henri was a regular customer of his. Henri however has not made any formal statements regarding his motives for killing his family as he still pleads not guilty.

Marli Van Breda:

Due to the severity of Marli’s injuries and after spending many months in surgery after surgery and physio therapy she has officially been diagnosed with retrograde amnesia which means that she has no recollection of the attack and therefore could not testify against her brother.

Marli has been kept away from Henri where she now stays with relatives. She has returned to school and is continuing her life as best she can.

Outcome of the case:

Judge Siraj Desai found Henri Van Breda to be guilty on three counts of murder and one count of attempted murder as well as obstructing the course of justice.

Van Breda was sentenced on the 7th June 2018 to life imprisonment for each of the three murders, 15 years for the attempted murder and one additional year for the obstructing the course of justice.

Henri Van Breda who was temporarily residing in the Pollsmoor Prison in the hospital wing for treatment of epilepsy and depression will now be moved to Paarl Correctional Facility to serve his sentences concurrently.

The Van Breda legal team plan to lodge an application for leave to appeal which will be heard on the 27 June 2018.

They say that the battle line between good and evil lies thin in the heart of every man. Was this tragedy then just another drug induced mistake or is Henri Van Breda an evil murderer who sought to break up his family forever?

 

How Litigation Works in South Africa

Wondering how to proceed with litigation in South Africa? This useful guide gives you all the answers you need on surviving litigation in South Africa.

A List of South African Courts

The primary South African courts include the following:

  • The Constitutional Court: This court hears matters regarding the interpretation, protection and enforcement of the Constitution.  This court will also hear matters as first instance if the court feels that the matter is in the interest of justice, affects the community or has a strong point in law.

 

  • The Supreme Court of Appeal: Based in Bloemfontein, this is the second highest court in South Africa and it only deals with cases sent from the High Court. The SCA is purely an appeal court, which means it deals only with appeals and related appeal issues.

 

  • The High Court: Each High Court division has general jurisdiction over the area in which it is based. This court deals with all matters, but generally only hears civil matters involving R400, 000 and above along with serious criminal cases, divorces, money owed etc.

 

  • The Regional Magistrates Court: Deals with matters from R200,000 to R400, 000, this court deals with anything that changes ones status or more serious criminal cases.

 

  • The District Magistrates Court: There are roughly 350 magisterial courts. These courts hear all criminal cases, except treason, murder and rape, and can impose a sentence of under three years imprisonment and a fine of no more than R120,000. Civil cases of R200,000 can also be heard in this court.

 

  • The Small Claims Court: This court deals with minor civil claims of R15,000 or less. Attorneys are not required, but they can assist those seeking advice on minor civil issues.

 

  • The Labour Court: This court hears labour law cases only, ranging from trade union issues to strikes and lockouts, unfair dismissal, discrimination, various other unfair labour practices and work related offences such as theft, misconduct and sexual harassment.

 

  • The Children’s Court: Every Magistrate’s Court in South Africa is a Children’s Court. This court deals with cases relating to the welfare of abused, neglected and abandoned children along with various other cases relating to child welfare. The purpose of this court is to give effect to section 28 of the Constitution which holds the best interests of children to be of upmost importance.

 

  • The Maintenance Court: Every magistrate’s court in South Africa is also a maintenance court, dealing specifically with maintenance issues.

 

  • The Family Court: Dealing with issues such as guardianship and custody of children. This court also helps prevent children from having to appear in court and limit any related trauma.

 

  • The Domestic Violence Court: This court deals with the protection of victims of violence not only within the household unit. It deals with protection orders, damage to property or person where harm is committed either physically, sexually and emotionally to name a few.

 

  • The CCMA Commission: This Commission deals with work related issues usually before they are taken to the Labour Courts. These work related issues are dealt with by conciliation, mediation and arbitration which helps negotiate a solution between parties in conflict or for employees whom are begrudged.

 

Choosing a Court in South Africa

Courts can hear cases only if they have jurisdiction within the given area. That means that you cannot choose the court. Instead, courts are determined by the following factors:

The value of the claim.

Anything  between R15,000 and below  is heard in the Small Claims Court.
Anything between R200,000 and below  is heard in a District Magistrates Court.
Anything above R200,000 but under R400,000 is heard in a Regional Magistrates Court.
Anything over R400,000 is heard in the High Court.

The nature of the claim.

The nature of the claim will also determine the court. For example, a child-related issue will be heard in the Children’s Court or High Court, a maintenance issue will be heard in the Maintenance Court, a labour issue will be heard in the Labour Court, a criminal case will be heard in the High Court or Magistrate Court or a Regional Court, a constitutional case will be heard in the Constitutional Court and an appeal on a current conviction  from High Court will be heard in the Supreme Court of Appeals.

The geographical area.

Finally, another factor that determines the court is the area. Courts typically have authority within certain jurisdictions. If you are based in Durban, you will likely be heard in a Durban court rather than a Cape Town court. This does not apply in the case of the Supreme Court of Appeals or Constitutional Court, however, as these have jurisdiction on a broader country-wide level.

Proceeding With Litigation in South Africa

If you have a good lawyer, you will be taken through the process step by step. To give you an idea of how courts work once matters proceed to trial, here’s what to expect when proceeding with litigation in South Africa:

  • South Africa follows an adversarial trial system that allows both plaintiff and defendant to argue their versions in front of a judge. No jury is present – instead, you will be taking your case to a judge that oversees the entire trial. It is important to note that a judge is an unbiased third party whom will make decisions based on evidence presented from both parties.

 

  • The Plaintiff’s attorney’s on record or advocate  will outline their case before the court, presenting evidence to show that their client’s case is reasonably true. The plaintiff will then close their case once they have given their evidence.

 

  • If there are witnesses for the Paintiff’s case, the attorney or advocate will question them, allowing the other side to cross- examine the witness where lastly the Plaintiff’s attorn ey or advocate will re-examine and close their case.

 

  • The Defendant’s attorney’s on record or advocate then needs to outline their client’s case, showing that there is sufficient evidence to disprove the plaintiff’s case. Once they have finalised their case, they will close.

 

  • If witnesses are required to give evidence, they will be examined in turn by the Defendant’s attorney on record or advocate, then the opposing party may cross-examine the witness where the Defendant will then re-examine the witness and close their case.

 

  • Once both parties have finalised their cases, they will each present their final closing arguments before the judge. No new evidence is permitted during these closing arguments.

 

  • The judge will then make the final ruling decision, after evaluating evidence and arguments from both parties.

Do You Need a Lawyer for Litigation in South Africa?

Every person deserves the right to a fair speedy trial. While you have the choice whether or not to hire a lawyer, having legal assistance is the best way to ensure a positive outcome in your case. A lawyer that works with you each step of the way can also give you peace of mind.

To find out more about seeking professional help with litigation in South Africa, contact our team of legal specialists today.