Simon Roy Arcus vs. Jill Henree Arcus

South Africa

21.01.2022

Civil

A maintenance order had the same legal consequences which flowed from an order made in a civil action

The appeal stemmed from the judgment of the High Court, the court made a declaratory order to the effect that the maintenance obligations contained in the consent paper, pursuant to the divorce of the Appellant and Jill Henree Arcus (the Respondent), which was made an order of the court, was subject to a 30-year prescription period in terms of Section 11(a)(ii) of the Prescription Act 68 of 1969 (the Prescription Act).

The circumscribed issue for determination in present appeal was whether an undertaking to pay maintenance in a divorce consent paper, which was made an order of court, gave rise to a ‘judgment debt’ as contemplated in Section 11(a)(ii) of the Prescription Act, with a prescriptive period of 30 years, or any ‘other debt’, as contemplated in Section 11(d) of the Prescription Act, with a prescriptive period of three years.

Maintenance orders were: (a) dispositive of the relief claimed and definitive of the rights of the parties, to the extent that they decided 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 had the same legal consequences which flowed from an order made in a civil action. A maintenance order fixed the obligations of the judgment debtor until such time as it was discharged or varied upon the establishment of new facts, and was therefore not subject to a three-year prescription period.

One could not interpret the Prescription Act in a manner that would be at odds with the purpose of the Maintenance Act. To do so would be to the disadvantage of a maintenance creditor and would 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.

Tags : Maintenance order Prescription Act Applicability

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