PT v LT and Another

• Jurisdiction: South Africa
• Citation: 2012 (2) SA 623 (WCC)

PT v LT and Another
2012 (2) SA 623 (WCC)

2012 (2) SA p623

Citation	2012 (2) SA 623 (WCC)
Case No	6566/06
Court	Western Cape High Court, Cape Town
Judge	Binns-Ward J
Heard	November 15, 2011
Judgment	November 20, 2009
Counsel	FJ Gordon-Turner for the applicant.; S van Embden for the first respondent.

Flynote : Sleutelwoorde F

Husband and wife — Divorce — Maintenance — Maintenance order — Substitution — High Court order substituted by maintenance court order — Effect of maintenance court order on rights accrued under High Court order — Whether such rights extinguished — Substitute order operating prospectively and not expunging such accrued rights — Maintenance Act 99 of 1998, ss 16(1)(b) and 22. G

Husband and wife — Divorce — Maintenance — Maintenance order — Civil enforcement — Act alone governing civil enforcement of High Court maintenance orders — Maintenance Act 99 of 1998, ss 26 – 30.

Headnote : Kopnota

Mr and Mrs T were divorced by a High Court and in its order the court provided H for Mr T to pay Mrs T a monthly amount of maintenance. Some time later Mr T fell into arrears with his payments and he applied to a maintenance court for it to reduce the amounts he had to pay. The maintenance court using s 16(1)(b) of the Maintenance Act 99 of 1998 made a maintenance order in substitution of the High Court's order, the new order providing for I smaller payments. The arrears under the High Court's order remained unpaid and Mrs T approached the registrar for, and was granted, a writ of execution in respect of them. This was used to attach debentures owned by Mr T. He in response applied to the High Court to set aside the writ. In issue was the effect of the maintenance court's substituting order on the High Court's order: whether it extinguished rights to payment that had accrued to Mrs T under that order. In this regard s 22 provides: J

2012 (2) SA p624

A 'Whenever a maintenance court —

(a)

makes an order under section 16(1)(b) in substitution of a maintenance order; or

(b)

discharges a maintenance order under section 16(1)(b),

the maintenance order shall cease to be of force and effect, and the maintenance officer shall forthwith give notice of the decision to B the registrar or clerk of the court in the Republic where the maintenance order was issued or where the sentence concerned was imposed, as the case may be, who shall deal with the relevant records or registers in the prescribed manner.'

The court held that s 22's statement, that when a maintenance court made an C order in substitution for an existing order the latter 'shall cease to be of force and effect', did not denote that the existing order would be deemed never to have existed. The language bore the plain meaning that the existing order would cease to be of force or effect from the moment it was substituted, in other words ex nunc. The substitution effected by the maintenance court order occurred when the order was made, and according to its tenor. Thus, D unless, and only to the extent that the substituting order was expressed to have retrospective effect, it operated prospectively and did not derogate from the fact of the existence of the prior order, nor from any of the rights of the beneficiary of the pre-existing order which had already fully accrued. (Paragraphs [8] – [10] at 627F – 628G.)

In issue secondly was the effect of a 2003 amendment to s 26(1) of the Act on the E registrar's competence to issue a writ of execution. The amendment removed the words that are in square brackets:

'(1) Whenever any person —

(a)

against whom any maintenance order has been made [under F this Act] has failed to make any particular payment in accordance with that maintenance order; or

(b)

against whom any order for the payment of a specified sum of money has been made under section 16(1)(a)(ii), 20 or 21(4) has failed to make such a payment,

such order shall be enforceable in respect of any amount which that person has so failed to pay, together with any interest G thereon —

(i)

by execution against property as contemplated in section 27;

(ii)

by the attachment of emoluments as contemplated in section 28; or

(iii)

by the attachment of any debt as contemplated in section 30.'

H The effect of the amendment was to make High Court maintenance orders susceptible to the system of civil enforcement in Ch 5 of the Act. This raised the question of whether the legislature intended by this that there be two systems of civil enforcement of High Court maintenance orders — that which existed prior to the amendment, and that in Ch 5; or, only one system of civil enforcement, that in Ch 5. The court concluded that Ch 5 was I intended to comprehensively regulate the civil enforcement of maintenance orders made by any court in the Republic. Accordingly the court set aside the registrar's writ and declared that Mrs T might apply to the maintenance court in terms of Ch 5 for a writ of execution provided in the chapter, in respect of the arrears owed under the High Court order. (Paragraphs [13], [17], [19] – [20], [22], [24] and [order] at 629D – 630B, 631F – 632B, 632E – 633D, 633I – 634D, 635C – D and 636F – G/H.) J

2012 (2) SA p625

Cases Considered

Annotations: A

Reported cases

Butchart v Butchart 1996 (2) SA 581 (W): referred to

Butchart v Butchart 1997 (4) SA 108 (W): referred to

Crest Enterprises (Pty) Ltd v Rycklof Beleggings (Edms) Bpk 1972 (2) SA 863 (A): dictum at 870G – H applied B

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461): referred to

De Witt v De Witt 1995 (3) SA 700 (T): doubted

Du Preez v Du Preez 1977 (2) SA 400 (C): referred to

Els v Weideman and Others 2011 (2) SA 126 (SCA): considered

Gouws v Theologo and Another 1980 (2) SA 304 (W): referred to C

Land- en Landboubank van SA v Cogmanskloof Besproeiingsraad 1992 (1) SA 217 (A): referred to

Lenz Township Co (Pty) Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A): distinguished

Mhlongo v MacDonald 1940 AD 299: dictum at 310 applied

Millman NO v Twiggs and Another 1995 (3) SA 674 (A): referred to D

Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A): distinguished

Pienaar v Pienaar en Andere 2000 (1) SA 231 (O): referred to

Purnell v Purnell 1993 (2) SA 662 (A): distinguished

Road Accident Fund v Rampukar; Road Accident Fund v Gumede 2008 (2) SA 534 (SCA): referred to E

Thompson v Thompson 1998 (4) SA 463 (T): doubted

Thomson v Thomson 2010 (3) SA 211 (W): criticised

Van der Merwe v Uys 1957 (4) SA 574 (T): referred to

Veto v Ibhayi City Council 1990 (4) SA 93 (SE): doubted.

Statutes Considered

Statutes F

The Maintenance Act 99 of 1998, ss 16(1)(b), 22 and 26 – 30: see Juta's Statutes of South Africa 2010/11 vol 7 at 4-213 – 4-216.

Case Information

Application for the setting aside of a writ of execution.

FJ Gordon-Turner for the applicant.

S van Embden for the first respondent. G

Cur adv vult.

Postea (February 2).

Judgment

Binns-Ward J: H

[1] The marriage between the applicant and the first respondent was dissolved in terms of an order made by this court on 20 August 2008. The order incorporated the provisions of a 'consent paper' entered into between the parties. In terms of clause 3 of the consent paper the I applicant was bound to pay R12 000 per month to the respondent in respect of personal maintenance from 1 September 2008. The consent paper provided for the annual escalation of this maintenance obligation to accommodate the eroding effect of monetary inflation. It also provided that in the event of the first respondent being paid the sum of at least R3,5 million out of the proceeds of a fixed property registered in the J

2012 (2) SA p626

Binns-Ward J

A name of the applicant, which was to be put into the market, the applicant's aforementioned maintenance obligation would thereupon fall away. These provisions constituted a 'maintenance order', as defined in s 1 of the Maintenance Act 99 of 1998. [1]

B [2] The applicant fell into arrears with the payment of the maintenance. He then applied to the maintenance court for a reduction in the amount of his monthly maintenance obligation. The proceedings in the maintenance court culminated in an order being taken by agreement between the parties on 23 April 2010. According to its tenor, that order directed the applicant to pay personal maintenance to the first respondent with C effect from 1 May 2010 in the amount of R8000 per month, with an additional amount of R2000 per month to be paid in respect of the months of May and June 2010.

[3] The arrears which had built up in respect of the applicant's obligation in terms of the High Court order remained unpaid. The first respondent obtained the issuance by the registrar of the court of a writ of execution D in respect of the unpaid arrears. The execution of the writ resulted in the attachment of some debentures owned by the applicant. The effect of the writ was subsequently suspended pending the determination E of the current application.

[4] The order made by the maintenance court was made in terms of s 16(1)(b) of the Maintenance Act, which provides:

'(1) After consideration of the evidence adduced at the enquiry, the maintenance court may —

F . . .

(b)

in the case where a maintenance order is in force —

(i)

make a maintenance order contemplated in paragraph (a)(i) in substitution of such maintenance order; or

(ii)

discharge such maintenance order; or

(c)

G . . . .'

Section 16(1)(b) falls to be read with s 22 of the Act, which provides:

'Whenever a maintenance court —

(a)

makes an order under section 16(1)(b) in substitution of a maintenance order; or

(b)

H discharges a maintenance order...