“Prescription” is a legal concept that governs the period within which one can sue another for an outstanding debt. Whilst there are some exceptions, the ordinary prescription period for debt, other than those specifically listed in the Prescription Act No. 68 of 1969, is 3 years. What this translates to is that a debt owing would “expire” after a period of 3 years, rendering it “unclaimable” by the other party.
The Supreme Court of Appeal during January 2022, in the matter of Arcus v Arcus (4/2021) ZASCA, was tasked with determining whether maintenance payable in terms of a maintenance order, constituted a judgment debt in terms of Section 11(a)(ii), alternatively whether it fell under “other debt” in terms of Section 11(d).
Section 11(a)(ii) provides that a debt arising out of a judgment would prescribe after 30 years, whilst Section 11(d) provides that all other debt would be prescribed after 3 years.
The appellant was one Mr. Arcus, who entered into a settlement agreement with the respondent, Mrs. Arcus, wherein the parties agreed on the maintenance payable by the appellant in respect of their minor children. The settlement agreement was made an order of the court in 1993. In terms of the settlement agreement, the appellant would contribute towards the maintenance of the minor children until they reached the age of majority, being in the years 2002 and 2005, respectively. He further agreed to pay spousal maintenance towards the respondent, until her death or re-marriage.
The appellant failed to pay maintenance in respect of the court order. Years had elapsed since the appellant’s default, and only during December 2018, did the respondent take active steps to claim the arrear maintenance amount from the appellant.
The matter initially appeared in the Western Cape High Court where the appellant had launched an application to stay a writ of execution that was issued by the respondent in respect of arrear maintenance. The appellant further requested from the court a declaration that all arrear maintenance owing by the appellant, should be extinguished as it had prescribed 3 years after becoming due. The High Court subsequently dismissed the application, which was thereafter taken on appeal by the appellant.
The appellant raised a point of dispute that the respondent had not actively pursued a claim for the arrear maintenance for many years prior. He further argued that a maintenance order cannot be considered the same as a civil judgment because it is variable by the same court that granted the order and is subject to ongoing disputes which require the further leading of evidence, thus could not constitute a civil judgment.
The Supreme Court of Appeal disagreed with the submissions of the appellant. The court found that, despite being variable, a maintenance order is still an order which has been granted by a court after consideration of facts placed before it, and which finalizes that particular dispute between the parties. The court further found that an application to vary the order would create a new dispute between the parties, which would need to be determined by the court.
After consideration of various judicial precedents, the court further found that a maintenance order holds the same attributes as a civil judgment, namely that maintenance orders (a) are dipositive of the relief claimed and definitive of a person’s rights and obligations; (b) they are final and enforceable until such time as they are varied or canceled; (c) they are capable of execution without further proof, and (d) they are appealable.
The appellant attempted to raise a number of policy considerations against a finding that a maintenance order should only prescribe after 30 years, namely:-
That maintenance orders are intended for immediate living expenses and should be promptly enforced;
That allowing a 30 year prescription period in respect of maintenance would cause hardship to the maintenance debtors as they would receive a false sense of security by inactivity in the matter;
That a 30 year prescription period would allow potential abuse for a maintenance creditor; and
Lastly that it would be unreasonable to expect maintenance debtors to keep documentation for a period of 30 years in order to dispute any potential claims by maintenance creditors.
The court, in response to the aforesaid contentions made by the appellant, found that:
A longer period of prescription would be in the best interests of the beneficiaries of maintenance orders, who are most often minor children and women;
The potential prejudice, if any, suffered by the maintenance debtor could be avoided should the debtor comply with the court order; and
That a potential prejudice to the maintenance debtor is inconceivable when there are remedies available to the debtor to approach court for a variation of the order.
In closing, the court held that the court a quo was correct in their decision, and the appeal was accordingly dismissed with costs.