Constitutional Court reaffirms that the courts will guard the rights & interests of children in South Africa

Written By Harry Hadjiyannis

It may be the case that a maintenance obligated party, as per a court order, disputes the specific terms of such an order. This could relate to the amount of maintenance paid or the specific reason for the required maintenance. In such circumstances, there are legal avenues of relief available. This entails approaching maintenance court with an application to vary the terms of the maintenance order. It must be noted that this is subject to the court being satisfied that there has been a change in circumstances (such as financial limitations) of the party who is required to pay maintenance. One ought to be prepared with all relevant financial documents which will allow the court to make a determination on whether there has been such a change. Relevant documents include:

  • Recent bank statements (personal and business)
  • List of all assets
  • List of monthly expenses supplemented with tax receipts
  • Lease agreement


Although many individuals with maintenance obligations approach courts to apply for such a variation, such an application is often accompanied by a preceding failure to fulfill maintenance obligations on the part of the party applying for a variation. This failure to fulfill undisputed maintenance obligations is simultaneously a denial to abide by a court order. There are two interests that are diminished in such situations.

Firstly, the basis for maintenance stems from the Paramountcy Principle in the Constitution of the Republic of South Africa, 1996 which states that “A child’s best interests are of paramount importance in every matter concerning the child”. It follows that in every matter concerning the care, safety, physical and emotional health of a child, the benchmark that the best interests of a child are of paramount importance must be applied. The Children’s Act 38 of 2005 has been legislated to give effect to the protection and care of children across South Africa. A child requires physical care and resources from both individuals responsible for bringing a human being into this world and thus maintenance orders are granted to ensure that such responsibilities are fulfilled jointly according to the respective means of each parent. Our courts, particularly the superior courts, are tasked with ensuring that such orders are complied with. This brings us to the second interest affected by the failure to comply with court orders.

As stated by former North Gauteng High Court Judge and current Constitutional Court Justice Jody Kollapen when delivering a unanimous judgment in S S and V V-S, the “judicial authority vested in all courts, obliges courts to ensure that there is compliance with court orders to safeguard and enhance the integrity, efficiency, and effective functioning”. The abovementioned case involved an Appeal brought before the CC by the maintenance defaulting party to have a warrant of execution against his property (previously brought by the Respondent and granted in the High Court of South Africa, Pretoria) for the purposes of the satisfaction of maintenance arrears set aside.

Why should, in such a case, where a party completely neglects discharging his legal responsibilities have recourse to the courts of law for other matters? The simple answer lies in in the Bill of Rights, specifically Section 34 of the Constitution which provides for the Right of Access to courts for all persons.

In the above Judgment however, Kollapen AJ alluded to the fact that although the proceedings were not in respect of whether the applicant was in contempt of court or not, the proceedings were analogous to such. The justification for this stems from a foundational constitutional value often mentioned known as the Rule of Law. In broad terms the Rule of Law dictates that every person is equal before the law and thus the law applies equally to all. In the context of a discussion around the contempt of court, the consequence of such happening is that the dignity and authority of the courts is violated. Kollapen AJ ends his judgement with a thought-provoking reflection on the role of our courts in society.

The courts are not there only to see that procedure is done and that court orders are complied with, but are there to be the utmost guardians and proponents of justice and honour the judicial authority of the courts.  Seen within the context of the purpose maintenance orders serve which cannot occur without compliance by maintenance responsible parties thereof, this speaks to a moral obligation in our society too. Essentially this is the fundamental and rigid protection of the rights and interests of all children in order to pave the way for every child to grow in an environment in which self-actualisation is possible. These needs and interest, Kollapen AJ states, are best served when a child is able to enjoy the appreciation of its parents and the love and care that is characteristic of being a parent.