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)  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
With regards to (b) as abovementioned, the SCA highlighted that a maintenance order may at any time be rescinded or varied in light of new facts and changed circumstances as justification.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. (firstname.lastname@example.org ; email@example.com). Spence Attorneys offers a wide range of services in family law, including mediation, dispute resolution, maintenance disputes, care and contact of children and more.
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