Prescription Of A Judgement Debt ' How It Can Impact Both Your Family And Business

• Published date: 04 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Divorce
• Law Firm: Schoemanlaw Inc.
• Author: Ms Nicolene Schoeman-Louw

A recent judgement in Arcus v Arcus (1 of 2021) [2022] ZASCA 9 has become the talk of the town precisely because it involved a payment not enforced for over 25 years. Moreover, for arrear maintenance for children who have been long self- supporting.

The Supreme Court of Appeal has now clarified that an order of maintenance is a judgment. Therefore, it can be enforced for 30 years from the issue.

Thus, the legal issue for determination was whether an undertaking to pay maintenance in a divorce consent paper, which was made an order of the Court, gives rise to a 'judgment debt'. A "judgment debt" is contemplated in section 11(a)(ii) of the Prescription Act 68 of 1969, with a prescriptive period of 30 years. Or any 'other debt', as contemplated in section 11(d) of the Act, with a prescriptive period of three years.

This is likely to increase similar cases, which means that divorced couples should honour the obligations contained in these orders to avoid a similar fate.

Facts

In 1993 a maintenance consent paper was made an order of Court during the divorce proceedings for Mr Arcus and Mrs Arcus. Mr Arcus was, among other things, required to pay Ms Arcus and their two minor daughters maintenance until the daughters were self-supporting.

It is common cause that the appellant's obligations to pay maintenance regarding the minor children terminated during 2002 and 2005, respectively when they became self-supporting.

Even though Mr Arcus failed to pay the maintenance stipulated in the consent paper, Mrs Arcus did not take any steps to recover the arrear maintenance until December 2018. Then, she instructed her attorneys to send a letter of demand to Mr Arcus. However, notwithstanding demand, he failed to pay the arrear maintenance. Still, he commenced paying the monthly maintenance due to the respondent from January 2019.

On 27 August 2019, the appellant lodged an application in the maintenance court for the retrospective discharge of his maintenance obligations in the consent paper (the discharge application). That application is still pending.

On 17 February 2020, the respondent caused a writ of execution to be issued regarding the arrear maintenance of some R3.5 million. That writ was served on the appellant on 18 March 2020.

Subsequently, on 19 June 2020, the appellant brought proceedings in the Western Cape Division of the High Court to stay the writ of execution pending the determination of the discharge application. He also applied that all maintenance...