The Supreme Court of Appeal, not surprisingly, found that a maintenance order made by a court is subject to a 30 year prescription period because it is a “judgment debt” for the purposes of section 11(a)(ii) of the Prescription Act of 1969.

The appellant husband had an unpaid maintenance debt of over R3.5 million as a result of a divorce order (and a consent paper made an order of court) on 27 July 1993.  His former wife sought to execute on that amount on 18 March 2020.

There is no difference between a ‘judgment’ or ‘order’.  A judgment or order has three attributes.  First it must be final in effect and not susceptible of alteration by the court granting it.  Second it must be definitive of the rights of the parties.  Third it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.  A maintenance order fulfils these requirements.  Although a maintenance order can be varied by a court subsequently, this can only be done if new circumstances are placed before the court.  The original decision can only be altered by an appeal at the time.  A maintenance order has the same legal consequences which flow from an order in any civil action.  In addition, the longer prescription period is in the best interests of those vulnerable individuals who are usually the beneficiaries of maintenance orders, namely divorced women and minor children.  Therefore the claim had not prescribed.

Arcus v Arcus [2022] ZASCA 9 (21 January 2022)