The High Court in Cape Town has ordered Discovery to deduct R29 500 from a client’s retirement funds and pay the amount to his wife, to settle his arrear maintenance.
The client’s wife instituted divorce proceedings against him in September 2022. The couple were married out of community of property with accrual.
In October 2023, the High Court ordered the husband, the first respondent in this case, to pay, among other expenses, maintenance of R18 000 a month for his wife and their three minor children.
The first payment was due on 1 November 2023, but he did not pay, and his wife launched a contempt of court application.
The parties settled the contempt application later that month and obtained a court order by mutual agreement. The order required the respondent to pay the amounts in that were arrears in terms of the October 2023 order, namely: R3 000 in respect of arrear maintenance; R24 000 in respect of arrear rental; R1 000 in respect of the rental penalty; and R3 250 in respect of arrear occupational therapy for one of the children.
Payment of the arrear amounts was due by 28 November 2023, but no payments were made.
On 8 December, the respondent launched an application seeking to reduce the maintenance.
Before his application could be heard, his wife launched an urgent application for an order in terms of section 26(4) of the Maintenance Act, read with section 37D(1)(d)(iA) of the Pension Funds Act. She sought to attach her husband’s benefit in his Discovery Classic Retirement Annuity and/or from his Discovery Retirement Optimiser.
The man opposed his wife’s application. Among other things, he said he could not afford to comply with the court order because his company had been placed in final liquidation. He also asserted that section 26 of the Maintenance Act is meant for a recalcitrant default, which, he submitted, he was not.
‘A recalcitrant view of an obligation’
The High Court held that the first respondent’s pending application for the variation of the order and the fact that his company had been liquidated had “nothing to do” with the application for the attachment of the retirement benefits.
“What is of significance and relevance in this application is the fact that the first respondent has failed to satisfy the Rule 43 order for a period of 10 days, and that the first respondent has retirement annuity funds. Given the fact the first respondent is in arrears with his maintenance obligations, and he does not offer other means to satisfy the order, the applicant is left with no other option but to seek the relief sought in terms of section 26. Thus, the existence of the retirement annuity funds demonstrates an ability on the part of the first respondent to pay the arrear maintenance,” Judge Constance Nziweni said.
The judge said although there is no settled set of criteria for determining whether a maintenance defaulter is a recalcitrant defaulter, the plethora of authorities provide guidelines and guidance. From the myriad of cases, a recalcitrant defaulter is someone who callously, persistently, and wilfully fails to pay his maintenance obligation.
By the date of the hearing, the maintenance was more than two months in arrears. “There is no evidence that the first respondent ever actually or attempted to pay his maintenance obligation since the issuance of the Rule 43 order,” Judge Nziweni said.
“In my mind, this clearly demonstrates a recalcitrant view of an obligation.”
The Court ordered Discovery, the second respondent, to deduct R29 500, plus interest at the prescribed rate calculated from 1 December 2023 to the date of final payment from the first respondent’s benefit in his Classic Retirement Annuity and/or Retirement Optimiser and transfer the amount into his attorney’s trust account.
In addition, the wife was ordered to inform Discovery if her husband failed to comply with this maintenance obligations in terms of the October 2023 order (or any amendment thereof), providing the amount due and the supporting documentation. Within five days of such notification, Discovery must make payments from her husband’s retirement policies into a nominated bank account.
Good to see the court granted relief for the wife and children from the x-husband’s RA, but what about the huge amount of costs incurred to get to that point. My client also seek help for a maintenance order that was not paid for several months, but the costs involved were more than R70,000 – money she certainly does not have. Still no maintenance from the father