On 10 November 2020, the Western Cape High Court handed down judgment to a long unanswered question. I am sure many of you have wondered if maintenance orders embodied in a consent paper i.e., a settlement agreement to a divorce order, ever prescribe.
Section 11 of the Prescription Act, 68 of 1969 (“Prescription Act”), provides, amongst others, that any judgement debt prescribes after 30 years and any other debt prescribes after 3 years save where an Act provides otherwise.
As maintenance obligations involve payment of a fixed amount of money, it is therefore described as a “debt” for purposes of the Prescription Act. The legal question to be determined by the court in the case of S A v J H A & Others (7531/2020)  ZAWCHC 155 was whether an undertaking to pay maintenance in a divorce consent paper which was made an order of the High Court gives rise to a “judgment debt” or “any debt” as contemplated in section 11 of the Prescription Act.
The Applicant in this matter argued that a maintenance order embodied in a divorce consent paper is an ordinary debt which prescribes after 3 years and substantiated his argument as follows:
1. A judgment debt is final and cannot be altered by the court. Maintenance orders are capable of being varied, substituted and discharged on good cause making it not final and therefore lacks the attributes of a final judgment;
2. The Maintenance Act, 99 of 1998 (“Maintenance Act”), draws a distinction between maintenance orders for payment of maintenance and orders for payment of a once-off specified amount of money, with only the latter order giving rise to a civil judgment; and
3. The words “any judgment debt” in the Prescription Act should not be interpreted to include a maintenance order.
The First Respondent argued, to the contrary, that:
1. When a consent paper is made an order of court, the status of the rights and obligations of the parties to this agreement changes into a judgment debt with the consequence that a 30-year prescription period applies to the agreement;
2. Whilst a maintenance order can be varied as one’s circumstances change, this does not mean that when the consent paper is made an order of court, the dispute between the parties is not definitively settled at that point in time; and
3. That the interpretation of the wording in the Prescription Act, are not applicable to maintenance orders.
The court found that section 7(1) and section 7(2) of the Divorce Act, 70 of 1979 (“Divorce Act”), gives a court the power to make a maintenance order in accordance with or without a written agreement between the parties. A maintenance order made at the time of divorce qualifies as a maintenance order for the purpose of the Maintenance Act.
The Divorce Act further gives the court the power to have the court order rescinded, varied, or suspended if the court finds that there is sufficient reason therefor and similarly a maintenance
court is granted the power to substitute or discharge an existing maintenance order. Maintenance orders can also be varied with retrospective effect.
The court ordered in the above case that a maintenance claim that forms part of a consent order as a judgment debt is encouraged by the provisions of the Maintenance Act, and has the effect of a civil judgment which, accordingly, attracts a 30-year prescription period.
Author: Delia Chamberlain