The ruling is now precedent-setting for lower courts dealing with issues of maintenance defaulters and will serve as a guideline going forward.
The errant father, Andrei Potgieter, is a wealthy, successful businessman who owned several RJ’s franchises, a business he built up with his now ex-wife Louise Nell.
But their relationship soured.
The acrimonious divorce took three years to finalise and, according to the settlement, Potgieter agreed to pay Nell R24 000 (£1,175) a month for five years, being R1.4 million (£68,500) in total, and money to support the child. He defaulted after three months.
Nell laid criminal charges against him under the Maintenance Act, claiming she was owed about R1.2 million (£58,700).
During the hearing at the local Magistrate’s Court Nell said there were days when there was no food. They had lived for nine months without electricity, sitting around a fire “pretending to be camping”.
“We would boil the swimming pool water and we would take turns showering in a bucket.”
She said at the age of 60, she had “nothing”.
Potgieter, however, claimed he could not afford to pay her . He had sold his business to his new fiance for R6 million (£294,000) and she was paying him a mere R25 000 (£1,200) a month salary.
Magistrate Abdul Khan did not believe his story.
He said he doubted an astute businessman would give up his entire salary and live off what he was given by his fiance.
He said the sale of the business was a “smokescreen” for him to live a luxurious life while forcing his family into poverty.
In an unprecedented move in 2018, the magistrate sentenced Potgieter to six years in jail, the maximum possible penalty on two counts of contraventions of the Act, but he suspended 18 months, resulting in an effective sentence of four-and-a-half years.
Potgieter spent two months in jail before he was granted leave to appeal his sentence by the Johannesburg High Court and was released on bail.
Now the appeal judges, Judges Edwin Molehelhi and Leonie Windel, have confirmed the sentence and directed that he hand himself over to prison authorities.
They noted that an appeal court’s powers to interfere with the sentence were limited: that it must be shown that the sentence was shocking, startling or disturbingly inappropriate.
“The trial court found that he had failed to pay maintenance of more than R1.2 million over a period of four years. The stopping of payments was wilful and well-orchestrated.
“It also took into account that the failure to pay maintenance affects the most vulnerable members of the community, namely women and children,” the judges said.
“He made no attempt to pay anything whilst living a luxury lifestyle,” the judges said.
Based on this, the only appropriate sentence was direct imprisonment, they said, and Potgieter had not made out a case that the sentence was so inappropriate and shocking to justify them interfering.
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