Is ignorance really bliss? Based on a recent decision by the Supreme Court of Appeals (‘’SCA’’), in the matter of Arcus v Arcus, errant ex-spouses who ignore and neglect to pay arrear maintenance, are cautioned, as the liability does not prescribe in 3 years, as displayed in dramatic irony in the Arcus matter.

On 21 January 2022, a decision was handed down by the SCA on the question raised by the Appellant, Mr Arcus, as to whether a maintenance order that was made an Order of court in 1993, had prescribed, as the maintenance aspect had not been enforced within the three year period set out in Section 11(d) of the Prescription Act 68 of 1969.

The majority decision by AJA Smith looked at the facts of the Arcus divorce Order, which came about when both Mr and Mrs Arcus agreed to divorce in July 1993. The parties agreed on the issue of maintenance, in that Mr Arcus would be responsible of payment of monthly spousal maintenance to Mrs Arcus until her death or remarriage. In addition, Mr Arcus, agreed to also pay monthly maintenance for each of the Arcus’ two children until the children became self-supporting.

This maintenance agreement was consented to and made an Order of Court of the High Court of the Western Cape, the result of which, solidified the Respondent’s rights of maintenance against her ex-husband.

Following this court Order of 1993, Mr Arcus failed to pay any maintenance to his former spouse and children. The Respondent did not immediately enforce her maintenance rights, however, in December 2018, the Respondent demanded from the Appellant, payment of the amount of approximately R3,500,000.00 for arrear spousal maintenance and child maintenance since 1993.

Mr Arcus however disputed that he was responsible for payment of any arrear maintenance on the basis that the same had prescribed as his ex-wife failed to enforce her rights to maintenance within the three year time period. He therefore argued that his ex-wife was not entitled to claim the same from him. Mr Arcus only began paying spousal maintenance from January 2019.

During August 2019, Mr Arcus applied to obtain a discharge Order from a maintenance court for the arrear maintenance owing since 1993 until December 2018. By March 2020, the discharge application had failed to progress a writ of execution was accordingly served on Mr Arcus for approximately R3,500,000.00. Due to the service of the warrant, Mr Arcus then filed his application to the Western Cape High Court to decide the issue of prescription on arrear maintenance.

During both the High Court and SCA decision, Mr Arcus argued that maintenance payments pertain to the consumption of an individual in that specific period of time. The needs of an individual and/or child changes, therefore the need for maintenance must also change as an individual or minor child ages. In light of the fact that the maintenance consumption existed in the past and had been ‘’consumed’’ by the time the Respondent claimed her arrear maintenance, the arrears had prescribed as the consumption need has also prescribed. Therefore, Mr Arcus was of the view that a party who has a maintenance Order, must enforce the same within 3 years as set out in Section 11(d) of the Prescription Act.

Both the Court a quo and SCA held that the maintenance Order was a judgment debt (the agreement was made an Order or Court) as the lis (the issue) between the parties has already been decided upon and neither Court needed to make a ruling on this issue. In this case, the lis was already decided and made an Order of court, namely that Mr Arcus was responsible for payment of spousal and child maintenance since 1993.

Even though a maintenance Order is capable of being varied or discharged, this does not change the final nature of a maintenance Order which is still valid and enforceable until such time, the same is varied or cancelled. A maintenance Order is therefore a judgment debt, as defined by the Prescription Act.

A judgement debt in accordance with Section 11(a)(ii) of the Prescription Act reads as follows:

’11. The periods of prescription of debts shall be the following:

(a) thirty years in respect of –

. . .

(ii) any judgment debt;

Thus the maintenance aspect of the agreed order from 1993 was still an enforceable judgment debt as at December 2018 for which Mr Arcus remained liable.

While the judgment by AJA Smith, with JA Dambuza and JA Hughes concurring, is both well thought out and delivered, one gets the sense that this was done so with the aim of justice at the forefront of this decision. Mr Arcus agreed to pay maintenance in 1993 for his former spouse and his two minor children. For whatever reason, he failed to pay this monthly maintenance.

Mrs Arcus had to pay for the cost of raising two children until they became self-supporting, while also finding means to support herself. It is unknown why she chose not to enforce her maintenance rights prior to December 2018, however regardless, the fact remains that she had to foot the bill for expenses that her ex-husband was liable for. Both the Court a quo and SCA simply ordered that a reimbursement be effected to Mrs Arcus, together with a cost award for the dismissal of the appeal application.

The full SCA judgment can be found here: https://lawlibrary.org.za/za/judgment/supreme-court-appeal-south-africa/2022/9