The Free State High Court has ordered the Government Employees’ Pension Fund (GEPF) to withhold R426 000 of a former prosecutor’s pension benefits while maintenance proceedings involving his children are finalised. The order follows years of unpaid maintenance and the failure to enforce earlier orders intended to provide financial support for the children.
In NCLK v MTK and Another, handed down on 23 October 2026, Judge JP Daffue found that the father had repeatedly failed to meet his maintenance obligations and had not explained why he could not pay maintenance and school fees without receiving his pension benefits.
The mother had asked the court to prevent the fund from paying him R607 400. The judge granted the application for a smaller amount and ordered the father to pay the costs. The order prevents payment to him; it does not direct the GEPF to transfer the money to the mother.
How the dispute began
The mother instituted divorce proceedings in January 2020, when both children were minors. In June that year, the High Court ordered the father, then employed as a prosecutor by the National Prosecuting Authority, to pay R1 500 a month for each child. He was also required to buy clothing for them twice a year, pay their school fees and extracurricular activity costs, and cover their medical expenses.
He did not comply with the order, even while employed. His employment ended in late 2022.
The divorce was finalised in October 2023, but maintenance for the children remained unresolved and was referred to the maintenance court.
In May 2023, the maintenance court issued a rule nisi preventing the GEPF from paying the father’s pension benefits to him. In February 2024, a further order required the fund to pay R160 000 to the mother for arrear maintenance. The restriction on the pension benefits was to be lifted once this payment had been made. The money was never paid.
On 29 May 2025, the maintenance court ordered the fund to pay the mother another R66 000, representing one year’s maintenance in advance. That payment was also not made.
On the same date, the court ordered the father to pay R2 500 a month for each child, with the first payments due on 30 June 2026. He was also required to buy clothing for the children twice a year and pay their school fees from July 2025.
The mother was informed in August 2025 that the maintenance court could not take the matter further, and the application was removed from the roll. She then approached the High Court to prevent the GEPF from paying R607 400 of the father’s pension benefits to him while the maintenance proceedings remained unresolved.
By the time the High Court delivered its judgment, the older daughter had recently turned 18 and the younger child was 14.
What the mother argued
The mother placed evidence before the court that the father had consistently failed to support the children financially. He had not paid the maintenance or the school fees required under the May 2025 order.
She argued that the children’s rights and best interests required the court to intervene before the pension benefits were paid to their father. Her concern was that the money might no longer be available to meet his maintenance obligations.
During argument, her attorney asked the court to direct that the money be paid into the Guardian’s Fund for the children’s benefit. The judge explained that this went beyond the relief requested in the application, which sought to prevent payment to the father rather than direct a payment to another recipient.
What the father argued
The father said the GEPF’s refusal to pay out his pension benefits had prevented him from paying maintenance and school fees. He did not provide details of his income and expenditure to explain why he could not meet those obligations without receiving the money.
He also argued that the mother could not claim further amounts because the divorce order had already awarded her 50% of his pension benefit, and the maintenance court had separately ordered the R160 000 and R66 000 payments.
The judge noted that the two maintenance amounts remained unpaid. The father’s legal representative conceded that the father could not object if the court ordered those amounts to be paid to the mother.
Judge Daffue declined to make that order because it had not been requested in the application and the GEPF had not been given an opportunity to address it. He said the maintenance court should urgently ensure that its own orders were enforced.
What the judge said
The judge considered how the law balances the general protection of pension benefits against the need to enforce maintenance obligations.
Section 37A(1) of the Pension Funds Act generally protects pension benefits from being attached to satisfy debts, subject to recognised exceptions. Section 26(4) of the Maintenance Act provides that pension benefits may be attached or subjected to execution to satisfy a maintenance order, notwithstanding anything to the contrary in other laws.
The judge referred to earlier judgments that recognised the possibility of protecting pension benefits to secure future maintenance as well as amounts already owed. These decisions support the use of an interdict to prevent a person from dealing with assets in a way that could undermine creditors’ rights. In maintenance disputes, children may have a legitimate interest in a future pension payout because it could be needed to meet their maintenance needs.
The judge also drew on Constitutional Court authority emphasising that courts must provide effective remedies when rights are threatened, and that they should be alert to parents who repeatedly fail to pay maintenance or use legal processes to delay their obligations.
Applying these principles, Judge Daffue found that the father had a long history of non-payment. His claim that the fund’s refusal to pay him had prevented him from meeting his obligations was not supported by any account of his financial position.
The judge was also critical of the fact that the maintenance court’s orders for R160 000 in arrear maintenance and R66 000 in advance maintenance had not been carried out. He said there was no reason why the fund should not pay those amounts to the mother under the existing orders, and urged the maintenance court to deal with the issue urgently.
The mother had sought to protect R607 400, but the judge said the amount had not been properly explained. He was not prepared to secure more than a year’s future maintenance through this application. Given that the older daughter had recently turned 18 and the younger child was 14, he considered R100 000 sufficient to provide for at least one additional year of future maintenance. He also said the amounts previously ordered for arrear and advance maintenance should be secured.
The court’s order
The High Court ordered the GEPF not to pay R426 000 of the father’s pension benefits to him pending the finalisation of the Bloemfontein maintenance court proceedings. The father was ordered to pay the mother’s legal costs.
The court did not order the GEPF to pay the outstanding R160 000 and R66 000 to the mother. That issue remains for the maintenance court to address. Judge Daffue said that if the maintenance court failed to ensure that its orders were enforced, the mother would be entitled to return to the High Court for relief.
The judgment shows that pension benefits may be protected by a court where a parent has persistently failed to meet maintenance obligations. Such an order is not automatic: the court must consider the evidence, the maintenance claims and the amount reasonably required to protect the children’s interests.
