In the case of Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9 the Supreme Court of Appeal dealt with the interpretation of s 11(a)(ii) of the Prescription Act 68 of 1969, namely whether a maintenance order is a judgment debt, subject to 30 years’ prescription period, or any other debt, subject to three years’ prescription period the court held that maintenance orders are final, executable and appealable an a maintenance order is thus a judgment debt for the purposes of the Prescription Act, and subject to 30 years’ prescription period.
During 1993, the parties divorced. They signed a consent paper which compelled the husband to pay monthly maintenance to his wife until she died or remarried. He was also compelled to pay maintenance for their two minor children up until they became self-supporting. The consent paper was made a court order on divorce.
Regardless of the court order, the husband failed to pay any maintenance to his former wife. He also failed to pay maintenance for their two children. The children became self-supporting in 2002 and 2005.
Nevertheless, the wife did not take any actions to enforce the maintenance order. She only took steps to enforce the order in 2018, 25 years after her divorce.
In 2018, her attorney wrote a letter of demand to her former husband for payment of the arrear maintenance, amounting to R3.5 million. He consented to start paying her monthly maintenance, but declined to pay any arrears. He also commenced proceedings in the maintenance court for an order absolving him of his responsibility to any arrear maintenance to his former wife.
His former wife then obtained a writ of execution authorising the Sheriff to sell her former husband’s assets for the arrear maintenance he were supposed to pay her.
After she obtained the writ of execution, her former husband went to the Cape Town High Court for an order declaring that any arrear maintenance he owed had prescribed under the Prescription Act, because the claim was not enforced timeously.
The Cape High Court dismissed his application and found that an order for maintenance was not an “ordinary” debt in terms of the Prescription Act. Instead, an order for maintenance is a “judgment debt” which means that it will only lapse after 30 years. Although the judge was not convinced that there were reasonable prospects of success on appeal, he was of the view that ‘the issue relating to the prescriptive period applicable to debts created by maintenance orders is compelling enough to warrant the scrutiny of a higher court’ and granted leave for that reason.
The former husband then appealed to the Supreme Court of Appeal (SCA). On appeal, the former husband advanced two primary arguments. To begin with, that the maintenance order was not a “judgment debt” considering it was made in terms of an agreement and not in terms of a court order. Furthermore, that it would be unfair to permit his former wife to enforce the claim for arrear maintenance so long after their divorce.
The SCA refused these arguments.
The SCA concluded that it matters not that the the former husband’s obligations to pay maintenance arose from an agreement, which was made an order of court, as opposed to a maintenance order granted by a maintenance court in terms of the Maintenance Act 99 of 1998 (the Maintenance Act). This is so because the definition of ‘a maintenance order’ in the Maintenance Act includes a maintenance order made by a court in terms of the Divorce Act 70 of 1979 (the Divorce Act).
In Strime v Strime, [1983] 2 All SA 386 (C); 1983 (4) SA 850 (C) at 852C-E it was held that ‘[a] claim for arrear maintenance under a Court’s order is exigible without any averment or proof that the plaintiff had, in order to maintain herself, incurred debts during the period in question and notwithstanding the fact that she earned, or could have earned, an income from employment’.
And in Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 31, the Constitutional Court held that the effect of settlement agreements incorporated into court orders is that it changes ‘the status of the rights and obligations between the parties. Save for litigation that may be consequent upon the nature of the particular order, the order brings finality to the lis between the parties; the lis becomes res judicata (literally, “a matter judged”). It changes the terms of a settlement agreement to an enforceable court order’. Lastly, in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others, [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) para 44 the Constitutional Court pronounced:
‘The three-year period is meant for claims or disputes which are yet to be determined and in respect of which evidence and witnesses may be lost if there is a long delay.’
And that:
‘. . . a debt contemplated in the Prescription Act cannot be reviewed or appealed against, except if it is a judgment debt.
Maintenance orders are: (a) dispositive of the relief claimed and definitive of the rights of the parties, to the extent that they decide a just amount of maintenance payable based on the facts in existence at that time; (b) final and enforceable until varied or cancelled; (c) capable of execution without any further proof; and (d) appealable.
A maintenance order fixes the obligations between the parties until such time as it is discharged on application by either party. This can only happen if new circumstances arise upon which the original order can be reconsidered. That the maintenance order is subject to variation in this sense, does not detract from the fact that the court granting the maintenance order has done so on a consideration of the facts placed before it at the time. Its decision, either by way of a reasoned judgment or by agreement between the parties, disposed of the lis which was in existence between the parties at that point in time. An application for variation of that order thus introduces a new lis, the party applying for such an order contending that circumstances have changed to such an extent that they justify a reconsideration of the original decision. Thus, the matter is res judicata on the facts which were before the court that made the original maintenance order. Obligations arising out of maintenance orders are therefore not ‘claims or disputes which are yet to be determined’.
Section 8 of the Divorce Act 70 of 1979, which provides that a maintenance order ‘may at any time be rescinded or varied’, is thus an exception to the general rule that an order of court once pronounced is final and immutable. In the event, the court that made the maintenance order is not at liberty to reconsider its original decision on the same facts. It can only vary or discharge the order if new facts are presented, which justify a reconsideration of the order. An aggrieved party who wishes to challenge the soundness of the original decision without establishing changed circumstances can only do so by way of an appeal.
Section 24(1) of the Maintenance Act provides that a maintenance order shall have the effect of an order or direction of the court made in a civil action. This means that a maintenance order has the same legal consequences which flow from an order made in a civil action. In the SCA’s view, there could be no clearer declaration of the legislature’s intention to visit upon a maintenance order the legal characteristics of a civil judgment.
The court emphasized that what was extremely troubling was that the prejudice the appellant decried affected the maintenance creditors (who were predominantly, women and children) far more than maintenance debtors (who are generally men). The court stated:
“The submission was made by the appellant that to enforce the order and avoid prescription, a maintenance creditor had the option of approaching the court every three years. However, this will definitely cause hardship to the maintenance creditors, as they will be compelled to approach the courts every three years to enforce their claims to avoid prescription. In Bannatyne, the Constitutional Court recognised that the gendered nature of the maintenance system is undeniable. We can, therefore, not interpret the Prescription Act in a manner that will be at odds with the purpose of the Maintenance Act. To do so will be to the disadvantage of a maintenance creditor and will fly in the face of what the Maintenance Act was enacted to do, namely, to avoid the systemic failures to enforce maintenance orders and habitual evasion and defiance with relative impunity. It would also give protection to maintenance debtors more than was intended for. Consequently, the order of the high court ought to stand”.
The court a quo accordingly made the correct order and the appeal failed. The appeal was accordingly dismissed with costs.
Article by Bertus Preller, Family and Divorce Law Attorney, Maurice Phillips Wisenberg.