By choosing to continue, you are consenting to the use and functioning of this site as is in accordance with our Privacy Policy.

find an article




SA court rules that maintenance orders will only prescribe after 30 years

Partners and children who struggle to enforce maintenance orders can take comfort from the fact that if a consent paper is signed and it is made an order of court, they will have 30 years to enforce the claim for maintenance.

In Simon Roy Arcus v Jill Henree Arcus, the Supreme Court of Appeal (“SCA”) heard an appeal against a Western Cape High Court judgment. In 1993, a maintenance consent paper was made an order of court during divorce proceedings between Simon Roy Arcus and Jill Henree Arcus. In terms of the consent paper, Mr Arcus was required to pay Ms Arcus and their two minor daughters maintenance until the daughters were self-supporting and Ms Arcus either remarried or died.

Mr Arcus failed to pay the maintenance and after eighteen years, Ms Arcus obtained a writ of execution for the arrear maintenance amounting to ZAR3.5-million.

Mr Arcus argued before the court that all maintenance obligations under the consent paper that accrued before 1 March 2017 (the due date for payment of maintenance three years prior to the date of service of the writ) had been extinguished due to prescription.

To determine whether the claim for the arrear maintenance had prescribed, the parties disputed the interpretation of section 11(a)(ii) of the Prescription Act, 1967.

The court found that the maintenance obligations in terms of the consent paper constituted a judgment debt as contemplated in section 11(a)(ii) of the Prescription Act, as opposed to an order of court. Therefore, the application for the discharge of the writ of execution was dismissed.

Mr Arcus appealed to the SCA. Section 11(a)(ii) of the Prescription Act provides that “the periods of prescription of debts shall be the following; (a) thirty years in respect of, (ii) any judgement debt”. Further subsection “(d)” provides that, “save where an Act of Parliament provides otherwise, three years in respect of any other debt” will apply.

Mr Arcus argued that the maintenance order does not qualify to be a judgment debt as outlined in the Prescription Act, due to maintenance orders being variable by the court that granted them. Hence, Mr Arcus contended that the applicable prescription period was three years.

The SCA stated that judgment debts had three attributes:

  1. the decision must be final and not susceptible to alteration by the court a quo;
  2. “it must be definitive of the rights of the parties”; and
  3. it must be able to dispose of a substantial portion of relief claimed in the main proceedings.

The court also noted that once an agreement between parties has been made an order of the court, then that agreement’s status changes to being an enforceable court order.

Lastly, the SCA referred to a Constitutional Court judgment, Myathaza v Joahnnesburg Metropolitan Bus Services Limited t/a , Metrobus and others, where it was held that the three-year period was meant for disputes or claims which had not been determined and that “a debt contemplated in the Prescription Act cannot be reviewed or appealed against, except if it is a judgement debt”.

The SCA was quick to point out that maintenance orders in terms of section 25 of the Maintenance Act, 1998 were appealable.

The SCA concluded that the three-year prescription period did not apply to maintenance orders as they were not orders, which were still in dispute.

The court also stated that the distinction that Mr Arcus sought to draw between an order and a judgment is not supported by any precedent.

Consequently, the appeal was dismissed and the SCA agreed with the order dismissing Mr Arcus’ application.

Aslam Moosajee

Executive | Dispute Resolution

Inathi Mpapa

Candidate Legal Practitioner | Dispute Resolution