JM v LM and Another

• Jurisdiction: South Africa
• Citation: 2014 (2) SA 403 (WCC)

JM v LM and Another
2014 (2) SA 403 (WCC)

2014 (2) SA p403

Citation	2014 (2) SA 403 (WCC)
Case No	9179/2013
Court	Western Cape Division, Cape Town
Judge	Savage AJ
Heard	November 13, 2013
Judgment	November 20, 2013
Counsel	T Pratt for the applicant.; A de Wet for the first respondent.

Flynote : Sleutelwoorde D

Marriage — Divorce — Maintenance — Maintenance order — Civil enforcement E — Of high court maintenance order — Maintenance system through Maintenance Act not limiting right of high court to enforce its own maintenance orders — High court accordingly entitled to issue warrant of execution to enforce its own maintenance order — Maintenance Act 99 of 1998, ss 26 – 30 and Superior Courts Act 10 of 2013, s 42.

Marriage — Divorce — Maintenance — Maintenance order — Civil enforcement F — Of high court maintenance order by high court and magistrates' court simultaneously — No statutory provisions preventing same — Enforcement mechanisms available until full amount of maintenance debt extinguished — Party therefore entitled to high court writ for arrear maintenance, even where emoluments attachment order obtained for future and arrear maintenance through maintenance court — Maintenance Act 99 of 1998, G ss 26 – 30 and Superior Courts Act 10 of 2013, s 42.

Headnote : Kopnota

First respondent had enforced an interim high court maintenance order made in her favour — pending finalisation of divorce proceedings between her and the applicant — by obtaining a writ of execution from the high court in H respect of the arrear maintenance outstanding. In addition, in the same month, she also obtained an emoluments attachment order from the magistrates' court against the applicants employer iro the monthly maintenance payments ordered, as well as the arrear mainenance outstanding.

In this matter, his urgent application to have the writ set aside or suspended, the I applicant advanced the following grounds: that civil enforcement of maintenance orders was the exclusive preserve of maintenance courts (as was held in PT v LT and Another 2012 (2) SA 623 (WCC)); and that LM, by having obtained an emoluments attachment order out of the magistrates' court against the applicant's employer, had exercised an election to enforce the maintenance order by way of the maintenance court and, therefore, could not also have obtained a writ from the high court. J

2014 (2) SA p404

A The court identified the issue for determination as whether a high court writ of execution may be obtained to enforce a maintenance order granted by the high court when ch 5 of the Maintenance Act 99 of 1998 (as amended) provided for the enforcement of maintenance orders (including high court maintenance orders) by the maintenance court,

Held: The conclusion reached in PT, that the maintenance court provided the B only mechanism for the enforcement of maintenance orders, was wrong. Had the legislature intended that the maintenance system through the Maintenance Act 99 of 1998 should limit the right of the high court to enforce its own orders, as much would have been apparent from the relevant statutes, which was not the case. Rather, the statutes entitled an C election on the part of a party seeking to enforce a high court maintenance order as to the court out of which to enforce such order. (Paragraphs [24] and [27] – [28] at 409F and 410E – G.)

There were no provisions in either the Maintenance Act or Superior Courts Act to prevent a writ being obtained from the high court in respect of arrear maintenance, even in circumstances in which an emoluments attachment D order had been obtained in respect of future and arrear maintenance through the maintenance court. The first respondent was permitted to make use of the enforcement mechanisms available to her until the full amount of the maintenance debt was extinguished. Accordingly, the fact that an emoluments attachment order had been obtained in respect of both future and arrear maintenance did not bar the first respondent from E obtaining a writ of execution issued out of the high court against the applicant in an attempt to secure a speedy settlement of the arrear amount outstanding. (Paragraphs [32] – [34] at 411B – G.)

Cases Considered

Annotations

Case law F

Duncan v Duncan 1984 (2) SA 310 (C): compared

Els v Weideman and Others 2011 (2) SA 126 (SCA): dictum in para [38] compared

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA): dictum in para [8] applied

Martin v Martin 1997 (1) SA 491 (N): compared G

Ntuli v Benoni Town Council and Another 1957 (3) SA 597 (W): dictum at 601G – H and 602B – C applied

PT v LT and Another 2012 (2) SA 623 (WCC): criticised and not followed

Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A): dictum at 22E – G applied

S v Beyers 1968 (3) SA 70 (A): referred to H

Thomson v Thomson 2010 (3) SA 211 (W): dictum at 218C – D applied.

Statutes Considered

Statutes

I Maintenance Act 99 of 1998, s 26: see Juta's Statutes of South Africa 2012/13 vol 7 at 4-223.

Superior Courts Act 10 of 2013, s 42.

Case Information

T Pratt for the applicant.

A de Wet for the first respondent.

J An application to set aside a writ of execution. The order is at para [35].

2014 (2) SA p405

Judgment

Savage AJ: A

Introduction

[1] This is an opposed urgent application instituted by the applicant, JM, in terms of which a writ of execution issued out of this court at the instance of the first respondent, LM, is sought to be set aside, alternatively suspended with costs to stand over for later determination. B

[2] The issue to be determined is whether a high court writ of execution may be obtained to enforce a maintenance order granted by the high court when ch 5 of the Maintenance Act 99 of 1998 (as amended) provides for the enforcement of a maintenance order, which includes a maintenance order made by the high court, by the maintenance court. C

[3] At the outset of proceedings, counsel for the first respondent disputed that the application was urgent but accepted, given the importance of the issue raised, that the matter should nevertheless be determined.

Background D

[4] The background to the matter is as follows. The parties, who have three young daughters, are currently embroiled in acrimonious divorce proceedings. On 28 August 2013, following an opposed rule 43 application, the applicant was ordered by this court to pay maintenance E pendente lite in the amount of R11 000 per month to the first respondent in respect of the children and further monthly payments detailed in the order. In spite of the order granted, the following month the applicant failed to pay the maintenance amount and the first respondent obtained a writ of execution issued by the registrar of the high court in F respect of the arrear maintenance outstanding. In addition, the first respondent approached the magistrates' court for an emoluments attachment order, which was granted on 30 September 2013, and in terms of which the applicant's employer was ordered to deduct R11 000 per month, plus the arrear maintenance at a rate of R500 per month, from the applicant's salary. G

[5] At the time that this application was argued, the applicant's trailer valued at approximately R10 000 had been attached...