A father received a temporary lifeline during an urgent application when the court stopped his R300,000 car from being auctioned off over R21,000 outstanding maintenance debt.

The man told the Limpopo High Court, sitting in Thohoyandou, that he is disputing that the child for which he has to pay maintenance, is in fact his. He reasoned that if his car is auctioned off to foot the bill for the outstanding maintenance towards a child which is not even his, he will suffer irreparable harm.

The man and his wife are embroiled in divorce proceedings and the husband was ordered by a court to pay interim maintenance. As the husband is disputing his paternity to the child he stopped paying the interim maintenance as per the court order.

He claimed that the maintenance order had been obtained fraudulently as his wife maintained that he is the father. He said there is a court application pending, where the issue of paternity will be addressed. He said a grave injustice will be done if the car is sold before the pending application.

Following his non-payment, the Sheriff removed the vehicle of the First Respondent upon the instruction of his wife’s attorney for purposes of selling it on a public auction. The husband submitted that he would suffer irreparable harm if the application was not heard on an urgent basis and the Sheriff were to proceed with the selling of his vehicle on a public auction, seeing that the amount to be repaid in terms of the warrant of execution is R21,000,00 whereas the value of the motor vehicle is approximately R300,000,00.

The wife, on the other hand, said she and the applicant entered into a valid customary marriage and that he has accepted the child to be his. She argued that there is a maintenance order in place and he should thus pay-up. She said the court is the upper guardian of all children and therefore should protect the rights of the child.

The court said everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. It noted the fact that the amount owing being a mere R21,000,00 and the value of his vehicle being about R300,000,00 and said should it be sold on a public auction his loss would be inordinate in relation to the amount owing.

He would never be able to recover the loss if it is found that he is not the father and does not need to pay maintenance, the court said in granting him the interdict. It also noted that the child has the right to know who her biological father is. The interdict will thus remain in place until the finalisation of the maintenance and paternity battle. The Sheriff was in the meantime ordered to hand the vehicle back to the man.

zelda.venter@inl.co.za

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