SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
directly to the creditor to satisfy the debt. This is only possible for maintenance orders. Contempt of court order If a debtor is in breach of a financial order, the creditor may make application on notice for the debtor to be held in contempt of court. This is only applicable to orders for the payment of maintenance, and not to orders for payment of a capital amount. In order to be successful, the creditor must show that: • the debtor is aware of/has knowledge of the order; • the debtor is in breach of the order; • the debtor’s breach of the order is wilful; and • the debtor’s breach of the order is mala fide (in bad faith). If successful, a court will make an order of enforcement (ie, ordering the debtor to pay the debt), and this order will be coupled with an order for the debtor’s imprisonment. This period of imprisonment will be suspended if the debtor complies with the enforcement order by making payment and if the debtor is not again found to be in contempt of the court order within a specified period. If the debtor is again found to be in contempt of the order within this speci - fied period, they will be sentenced to a period of imprisonment. International Enforcement of a Financial Order In terms of divorce orders (which in South Afri - ca contain financial orders), Section 13 of the Divorce Act states that South African courts will recognise the validity of a divorce order granted in a foreign country if, on the date on which the order was granted, either party to the marriage was a national, domiciled or ordinarily resident in the country concerned. This, however, does
not mean that a South African court will enforce specific terms of such an order without prior steps being taken (albeit that the parties will be recognised to be divorced). If one requires enforcement of a foreign divorce order or other financial order, steps can be taken to obtain enforcement of the order by a South African court. A party may bring an application in a South African court for a “mirror order” of the foreign order to be made. Alternatively, in respect of maintenance orders only, a party may utilise the processes provided by the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 (REMO). In order to utilise this process, the foreign country where the main - tenance order was granted must have entered into a reciprocal agreement with South Africa. REMO is only available in respect of mainte - nance orders, whereas an application for a mir - ror order to be made can be in respect of any type of foreign court order. 2.8 Media Access and Transparency Media Reporting on Financial Cases In South Africa, representatives of the media have the right to attend court proceedings for the purposes of reporting on such proceedings, unless specifically provided otherwise by law. However, there are exceptions to this. Divorce cases may not be reported on in a manner that in any way identifies the parties, but the media may report on the facts of a case. Anonymising Proceedings Judgments in all divorce matters are now anonymised, using only the parties’ initials. 2.9 Alternative Dispute Resolution (ADR) ADR mechanisms are encouraged in South Afri - ca, and the South Africa Law Reform Commis -
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