A father who fails to pay child support in South Africa can be arrested under a warrant of arrest, imprisoned for up to one year under section 31 of the Maintenance Act 99 of 1998, and have his wages attached, his bank account garnisheed, or his property seized to recover arrears. The criminal and civil consequences run in parallel, and the father does not have to be found guilty before the maintenance court starts the recovery process.
This page explains what happens if a father does not pay child support, the difference between being unable to pay and refusing to pay, the practical steps the mother can take, and the urgent options available to the father who is in trouble. If you are already facing a warrant, our Sandton-based Family Law team can help. Book an appointment to start the conversation.
What the law says about a father who does not pay
Section 31(1) of the Maintenance Act 99 of 1998 makes any failure to make a payment in accordance with a maintenance order a criminal offence. The prosecution needs to prove that the payment was due and that it was not made. It does not need to prove intent.
Section 31(2) closes the obvious defence. The father cannot escape liability by saying he simply lacked the means. The defence of “lack of means” only succeeds if the father can show that the failure was not due to his own negligence or that he was unable to pay.
The civil consequences first
The civil side is usually the first to bite. The mother can apply to the maintenance court to enforce the order, and the court has a wide range of tools available.
- Attachment of wages, which forces the employer to pay part of the father’s salary directly to the mother.
- Garnishee order on the father’s bank account, which can clean out the account on the next pay day.
- Attachment of the father’s pension interest, in some cases.
- Seizure and sale of movable property, in serious cases.
- A default order made in the father’s absence if he fails to appear at the enquiry.
The criminal consequences that follow
Once the civil enforcement has run, the criminal side usually opens. The mother lays a criminal charge under section 31 of the Maintenance Act, and the matter is enrolled on the criminal roll at the magistrate’s court. The father is summoned to appear, and if he fails to do so, a warrant of arrest is issued.
On conviction, the magistrate can impose a fine, a suspended sentence, or direct imprisonment. The maximum sentence for a section 31 offence is one year, although the sentence is usually calibrated to the conduct and the arrears.
Unable to pay versus refusing to pay
The court draws a sharp line between a father who is unable to pay and a father who is refusing to pay. The line shows up in the sentence, and often in the enforcement tools.
| Situation | How the court treats it | What tends to happen |
|---|---|---|
| Lost job and looking for work | Treated as a change in circumstances, not wilful default | Order varied down, arrears restructured, no prison |
| Working cash-in-hand to avoid attachment | Treated as wilful default | Criminal conviction, possible direct imprisonment |
| Voluntarily resigned to avoid the order | Treated as wilful default | The court imputes income, arrears continue to grow |
| Employed but refusing to pay | Wilful default | Warrant of arrest, criminal conviction, possible prison |
| Disabled or unable to work | Treated as a change in circumstances | Order varied down, often to a small symbolic amount |
What the mother can do
The mother has a clear set of steps to escalate, and the order in which she takes them matters. The list below is the route most matters follow, from least to most confrontational.
- Send a written demand through an attorney, stating the arrears and giving 7 days to pay.
- Apply to the maintenance court for an order attaching the father’s wages or bank account.
- Apply for a warrant of arrest where the father has evaded service or refuses to pay.
- Open a criminal case under section 31 of the Maintenance Act.
- Apply for a recovery order against the father’s pension interest or property.
What the father should do if he is in trouble
The worst thing a father who is in arrears can do is stay away from the court. The magistrate will draw the inference that the failure is wilful, and the criminal sentence gets longer. The better path is to engage with the court, show the change in circumstances, and apply for a variation. The list below is the practical sequence.
- File an application to vary the order, supported by affidavits and payslips or proof of unemployment.
- Make a partial payment towards the arrears, even if the variation is pending. The court reads the effort.
- Appear in person at every court date, even if represented. The magistrate sees the face and hears the voice.
- Keep a written record of every payment, including cash and short transfers.
- Where the warrant has been issued, instruct an attorney to appear and apply for the father’s release on warning.
Common Mistakes to Avoid
These are the patterns that push a father from a manageable arrears problem into a prison sentence. None of them are technical, but each one makes the court worse.
- Quitting your job to avoid the garnishee order. The court treats voluntary unemployment as a factor against you, and the arrears keep growing.
- Paying in cash without a written record. The mother cannot prove the payment, and the court treats it as unpaid.
- Going to the maintenance court without a payment proposal. The magistrate will assume you are not taking the matter seriously.
- Communicating with the mother directly after the matter has started. Threats and pressure in those messages can be used as further evidence against you.
- Ignoring the warrant of arrest. The longer the matter is left, the harder it is to argue for release on warning.
Frequently Asked Questions
What happens if a father doesn’t pay child support in South Africa?
The mother can apply for attachment of wages, a garnishee order on his bank account, a recovery order against his pension interest, or the seizure of his property. The mother can also open a criminal case under section 31 of the Maintenance Act, which can lead to a fine or imprisonment for up to one year.
Can a father go to jail for not paying child support in South Africa?
Yes. Section 31(1) of the Maintenance Act makes any failure to pay in terms of a maintenance order a criminal offence. On conviction, the magistrate can impose a fine, a suspended sentence, or direct imprisonment of up to one year.
Can a father be arrested for not paying child support?
Yes. Where the father has been served and fails to appear at the maintenance enquiry, or where he evades service, the court can issue a warrant of arrest. The warrant is then executed by the police.
What if the father genuinely cannot pay child support?
The father can apply to the maintenance court to vary the order, supported by proof of his change in circumstances. The court will recalculate the order based on what he can afford, and will restructure the arrears to be paid off over time.
How much child support can a father be ordered to pay in South Africa?
There is no fixed percentage. The court looks at the needs of the child, the income of the father, and the income of the mother. The order usually covers the child’s food, clothing, school fees, medical aid, and reasonable additional expenses.
Does child maintenance end when the father is in prison?
No. The maintenance obligation does not stop when the father is imprisoned. The court will usually recalculate the order, but the obligation continues until the child is self-supporting, or beyond in some cases.
Can a father be ordered to pay for school fees and medical aid?
Yes. The maintenance order can include school fees, school uniforms, extramural activities, medical aid contributions, and any other reasonable expense that is necessary for the child’s best interests.
Get urgent help on a maintenance matter
If a father is in arrears or facing a warrant of arrest, the matter is time-sensitive. Otrebski Attorneys’ Family Law team in Sandton handles section 31 criminal defence, variation applications, and urgent rescissions of default orders. As a 100% women-led firm with a 5-star Google rating, we focus on practical legal solutions for real families.
Call 060 500 3098 during office hours, or book an appointment online.
Disclaimer. This article provides general information about the consequences of a father not paying child support in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.