In a recent case heard on 20 April 2022 in the GAUTENG LOCAL DIVISION, JOHANNESBURG the court allowed for the mother to attach and withdraw arrear maintenance from the father’s Discovery Retirement annuity, without notice to the father.
The settlement agreement, which was made an order of court on 25 November 2019 in the divorce proceedings, provided for payment by the father of maintenance in the sum of R 20 000.00 per child per month, plus medical and educational expenses. The father fell into arrears, allegedly due to COVID 19 pandemic. The father unilaterally reduced the maintenance payable and eventually brought an application in the Magistrates Court for a reduction of maintenance payable. The mother opposed the application for reduction of maintenance.
The mother applied to the Maintenance court under Section 27(1) and (2) for the issue of a warrant of execution (writ) for the attachment and payment of arrear maintenance from the father’s Discovery Retirement Annuity. Section 27 allows for the application to be made ex parte (without notice to the father) and allows for an order that the Fund pay the arrear maintenance without notifying the father. This is exactly the order the mother applied for, was granted and on 4 February 2022 Discovery paid her the sum of R 549 763.50 in respect of arrear maintenance without prior notice to the Father.
On 8 March 2022, the mother informed the father per WhatsApp that she intended to effect another withdrawal from his Discovery fund in respect of further arrear maintenance. The father approached the High Court on an urgent basis for an order as follows:
7.1. directing the first respondent (mother) to first furnish a notice to the applicant in the event that she intends at any time to make application to any Court on an ex parte basis for an order issuing a warrant of execution against the applicant in respect of maintenance due to the first respondent which is allegedly in arrears; and 7.2. such notice is to be furnished not later than 10 Court days before any such application for a warrant of execution is made.
Judgement
Siwendu J discusses the father’s claim that it is unfair that the Act allows for the application for withdrawal of the funds to be made without notice to him and without any opportunity granted to him to make representations to the court; and that he wishes to be afforded an opportunity to make representations to the Court and oppose the granting of such a warrant. He further raised his concern is that the premature withdrawal has substantially decreased the value of his investment and is highly prejudicial to him as there were early exit penalties payable by him as a result of the withdrawal.
The court found that the Father showed grounds of urgency and that there will be irreparable harm if the matter is not heard on an urgent basis.
The father relied on two cases that found the affidavit and writ must be served on the father to give him fair opportunity to consider the arrears claimed and approach the court for relief if he contests the amounts in arrears. The court disagreed with this contention.
The court found that the writ was issued by the Magistrate’s Maintenance Court and under the provisions of Section 27 of the Maintenance Act 99 of 1998. Where there is a pre-existing maintenance court order, there is no mechanism to resolve a dispute about the quantum owing before the issue of a writ nor a requirement for a notice before the issue of such a writ. The Legislature saw it fit not to afford the applicant a right to a notice before the issue of a writ of execution.
The application of the father was dismissed.
An article by Catherine Coetzee
Read the full case here.
