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  • Writer's pictureSpence Law


It is known that a normal debt typically prescribes after a period of three years, in terms of the Prescription Act 68 of 1969 (the “Act”). However, judgement debts have a prescription period of thirty years in terms of the Act. The recent Supreme Court of Appeal (SCA) judgment Arcus v Arcus (4/2021) [2022] ZASCA 9 illustrates a more stringent approach to the prescription of debt incurred in terms of a maintenance Court order.

The SCA was faced with interpreting Section 11(a)(ii) of the Act and whether a maintenance order is in fact a judgment debt, subject to a 30-year prescription period, or any other debt subject to a 3-year prescription period.

Smith AJA considered the following characteristics of a maintenance order to be congruent with a Court order for purposes of prescription: -

(a) dispositive of the relief claimed and definitive of the rights of the parties, to the extent that they decide a just amount of maintenance payable based on the facts in existence at that time;

(b) final and enforceable until varied or cancelled;

(c) capable of execution without any further proof; and

(d) appealable.

With regards to (b) as abovementioned, the SCA highlighted that a maintenance order may at any time be rescinded or varied in light of new facts and changed circumstances as justification. Importantly, a debtor in terms of a maintenance order is entitled to approach a Court for the variation or rescission of a maintenance order so as to avoid prejudicial and unfair situations in respect of the debtor. In this regard, the SCA weighed the potential prejudice that a 30-year prescription period would have for the maintenance debtor against the potential hardships suffered by vulnerable groups in our society including women and minor children.

It is therefore advisable for a maintenance debtor to take cognizance of the lengthy period during which a maintenance order is valid and enforceable. Should there be potential prejudice suffered in light of changed circumstances subsequent to a maintenance order being granted against a debtor; there is an opportunity to approach the Court for a cancellation or variation of the order.

Should you have any concerns relating to your rights and a maintenance order– please reach out to our team at Spence Attorneys at our Johannesburg or Cape Town branch. ( ; Spence Attorneys offers a wide range of services in family law, including mediation, dispute resolution, maintenance disputes, care and contact of children and more.

This article is for information purposes only and should not be relied upon for legal advice. Always seek professional advice before acting. Spence Attorneys will not be held liable for any person acting or failing to act on the contents of any aspect of our website.


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