Each day there are people heading to family court to lodge personal maintenance claims against partners and/or on behalf of their children. All maintenance claims are governed by the Maintenance Act No.99 of 1998, as amended. The Act correlates with all other legislation with laws that speaks to maintenance. The Prescription Act is one of the examples of legislation where the Supreme Court of Appeal in Arcus v Arcus determined that an undertaking to pay maintenance in a divorce order constitutes a ‘judgment debt’ and not just any debt. Therefore, in terms of section 11(a)(ii) the maintenance claim prescribes after 30years has lapsed. In a case of just any debt, debts are subject to 3years prescription period.
Arcus v Arcus (1 of 2021)  ZASCA 9 (21 January 2022)
In Arcus v Arcus the appellant and respondent divorced in 1993 and at the time of their divorce they entered into an agreement that the appellant will pay maintenance to the respondent until her death or re-marriage and pay for her 2 minor children until they are financially capable to support themselves.
The appellant defaulted on the maintenance payments which were agreed upon. The Respondent did not take any steps to recover the arrear amount, until the year 2018 where she instructed her attorneys to proceed with the recovery. A letter of demand was issued by her attorneys which the appellant did not comply with. However, the appellant made payments due as from January 2019.
On 27 August 2019, the appellant lodged an application in the maintenance court for a discharge of his maintenance obligations in terms of the agreement. That application is still pending. On 17 February 2020, the respondent caused a writ of execution to be issued in respect of the arrear maintenance of some R3.5 million.
Subsequently, in June 2020, the appellant brought proceedings in the Western Cape Division of the High Court, Cape Town (hereinafter referred to as the court a quo) for an order, inter alia, staying the writ of execution pending the determination of the discharge application. He also applied for a declaration that all maintenance obligations under the agreement which accrued before 1 March 2017 have been extinguished by prescription. The appellant believed that the claim is that of any debt and not a judgment debt and had prescribed.
The coram of appellant judges arrived at the same conclusion as the court aquo but the approach was different. The judgment is also divided into 2 parts. For purposes of this article, it is paramount that we briefly abstract what what the appellant judges considered in making the final determination.
The court a quo held that the maintenance obligations in the agreement arose from a ‘judgment debt’ as contemplated in section 11(a)(ii) of the Prescription Act and are consequently subject to a 30-year prescription period. Sections 11(a)(ii) and 11(d) of the Prescription Act read as follows: ‘The periods of prescription of debts shall be the following: (a) thirty years in respect of – . . . (ii) any judgment debt; . . . (d) save where an Act of Parliament provides otherwise, three years in respect of any other debt.
The appellant decided to appeal the decision of which leave was granted. Smith AJA expressed that although the judge in the court aquo 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.
Smith AJA further expressed that it is necessary to state upfront that it matters not that the appellant’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.
Judgement and Order
The argument by the appellant which was discouraged by the appellant judge Smith AJA was that, a civil judgment is a final judgment, whereas a maintenance order is not, because it is variable following an enquiry in terms of Chapter 3 of the Maintenance Act. The judge found this argument to be flawed.
Subsequently, the appellant court found the need to clarify to the appellant what constitute a judgment and order. Smith AJA made reference to Zweni v Minister of Law and Order where this Court held that ‘[a] “judgment or order” is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definitive of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings’. The court further held that ‘the distinction between “judgment” and “order” is formalistic and outdated; it performs no function and ought to be discarded’. The court emphasised that ‘the distinction now is between “judgments or orders” (which are appealable with leave) and decisions which are not “judgments or orders”
Interpretation of Maintenance Act
Mocumie JA and Kgoele AJA focused on the interpretation of the sections in question contained in Maintenance Act. The judges were of the view that the appellant court must interpret all implicated statutes in the matter namely, the Prescription Act read with the Maintenance Act as well as the Divorce Act by making references to the cases mentioned herein. The judges referred to C:SARS v United Manganese of Kalahari (Pty) Ltd d  ZASCA 16; 2020 (4) SA 428 (SCA) where it was mentioned that when interpreting statutes one needs to consider “. . . the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production . . . The inevitable point of departure [being] the language used in the provision under consideration”.
Their highlight was the Constitutional Court decision in Eke v Parsons (Eke)  ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) which held: “The effect of a settlement agreement order is to change 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 to 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 order...”
Prescription Act was addressed by making reference to Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others  ZACC 49; 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) para 44 where the Constitutional Court held that the three year prescription is meant for claims and disputes ‘. . . which are yet to be determined and in respect of which evidence and witnesses may be lost if there is a long delay’. In Reid v Reid d  3 All SA 354 (E); 1992 (1) SA 443 (E) at 447B the court stated, ‘. . . [w]hen the consent paper is then made an order of Court, res judicata is established on the just amount payable as maintenance . . .’.
It is important to note that the Prescription Act does not define the word ‘judgment debt’ and so too the word ‘any other judgment’. However, the court held that “in its plain meaning ‘a judgment debt’ means an amount of money in a judgment awarded to the successful party which is owed to them by the unsuccessful one. Any other judgment in the context of maintenance means any order granted by a court, either the magistrates' court or the high court.” Out of the definitions given and the interpretations, all maintenance orders are considered judgment debts and prescribe after 30years.
Written by Sisanda Makunga, Senior Associate at Mota Africa