Letters to the editor – April 2023

April 1st, 2023
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PO Box 36626, Menlo Park 0102
Docex 82, Pretoria
E-mail: derebus@derebus.org.za
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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.
Whether maintenance for minor children could be awarded retrospectively or retroactively in a proper case?

The Maintenance Act 99 of 1998 does not provide for retrospective or retroactive maintenance orders.

However, s 18(2)(b) of the Maintenance Act provides for ‘[making] such other order as the maintenance court may consider appropriate in the circumstances of the case’.

The wording of s 18(2)(b) is open for interpretation as to whether ‘[making] such other order as the maintenance court may consider appropriate’ includes orders retrospectively or retroactively.

In the case of Harwood v Harwood 1976 (4) SA 586 (C) at 588E the court held that retrospective or retroactive orders were possible in matters relating to maintenance in terms of the common law and that such orders are not ousted by the silence in this regard in the provisions of r 43 of the Uniform Rules of Court. This issue was decisively pronounced on in the decision of Herfst v Herfst 1964 (4) SA 127 (W) at 127-128A-B.

In the case of S v Frieslaar 1990 (4) SA 437 (C) the court held that if an existing maintenance order is replaced, the order may have a retroactive effect, provided that this is stated in the order.

The alternative to the common law position is s 8(1) of the Divorce Act 70 of 1979, which provides for: ‘A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason therefor’.

In the case of Reid v Reid 1992 (1) SA 443 (E) at 447B-C the court held that: ‘When the consent paper is then made an order of court, res judicata is established on the just amount payable as maintenance.’ ‘Thus, any rescission, variation, or a suspension of the maintenance order granted earlier becomes a new dispute between the parties where the original order granted may form the basis of any new contemplated action’ (Celeste Frank and Jordan Dias ‘Case summary: SA v JHA and Others 2021 (1) SA 541 (WCC)’ (www.schindlers.co.za, accessed 1-3-2023)).

In the case of Georghiades v Janse van Rensburg 2007 (3) SA 18 (C) at 22D the court held that ‘[s 8 of the Divorce Act] was introduced so as to authorise the court to amend maintenance orders on good cause shown, so as to enable spouses to come to court “to redress injustices occasioned by a maintenance order which no longer fits the changed circumstances”’. ‘Having considered the applicable legal principles, the court was of the view that once a maintenance order, which formed part of a consent paper, was made an order of the court, it was a judgment like any other. By virtue of the fact that it imposes a monetary obligation, it is, accordingly, a “judgment debt” for the purpose of section 11(a)(ii) of the Prescription Act [68 of 1969] … which, accordingly, attracts a 30-year prescription period’ (Frank and Dias (op cit)).

Concluding remarks

The problems with the maintenance system in South Africa are well documented, namely with the wide and unpredictable discretion of the court in making maintenance awards.

I submit that the time has come for the South African Law Reform Commission and the Department of Justice and Constitutional Development to research the problems experienced in the maintenance system comprehensively and to look afresh at reforming and developing the law as a whole.

Kobus Brits LLB (cum laude) (Unisa) is the office manager at Theron Inc
in Johannesburg. Mr Brits writes inhis personal capacity.

This article was first published in De Rebus in 2023 (April) DR 4.

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