When can a writ of execution be issued for arrear maintenance?

A writ is an order issued by a court requiring that something be done or giving authority to do a specified act. On the other hand, maintenance is the legal obligation to provide another person, for example, a minor child, with housing, food, clothing, education, and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty is called “the duty to maintain” or “the duty to support”. This duty usually falls upon the minor child’s parents or guardian. The Maintenance Amendment Act 9 of 2015 (“the Act”) established remedies to deal with individuals who fail to comply with such duties and one of these remedies is a writ of execution.

If a parent or guardian against whom a maintenance order is sought (“the Respondent”) fails to comply with the terms of the maintenance order, the Act, provides that it is now lawful to hand over the Respondent’s personal details to a credit bureau, which will result in the Respondent being blacklisted. In addition to this, if the defaulting party is intentionally and wrongfully failing to pay maintenance, it is possible to lay a criminal charge. The defaulting party may then be prosecuted and convicted of a criminal offence. Possible sentences include a fine or imprisonment of up to one year, or both.

The Maintenance Court may, on application, authorize the issuing of a writ of execution. A writ of execution is, as mentioned above, a method of enforcing judgments and empowers a court sheriff to attend at a judgment debtor’s address i.e., to attach and sell movables. If the movable property is insufficient, only then will it be issued against his/her immovable property. If the Respondent fails to pay maintenance, the Complainant can approach the Court to enforce the order. The law does not provide for a set amount of maintenance that a child is entitled to. The amount of maintenance that should be paid for a child is dependent on the needs of a child and the financial means of the parents of the child.

To recover the arrear maintenance, it is possible to have a writ of execution issued whereby the defaulting party’s movable assets are attached and sold in execution. Most assets can be attached, including any debt which is owing to the defaulting party. It is also possible, under certain circumstances, to apply for an emolument attachment order which means the defaulting party’s employer is ordered to pay the monthly maintenance to the applicant by deducting it from the defaulting party’s salary. Lastly, it is now also possible to have the defaulting party reported to the credit bureau and blacklisted as mentioned above.

In the Butchart v Butchart 1997 (4) SA 108 (W) matter, the High Court confirmed that a writ of execution may be validly issued based on an 'expenses clause' contained in a maintenance order, provided the amount is easily ascertainable.

In a recent High Court judgement VDB v VDB and Others (20 April 2022),the court stated that since the writ was issued by the Magistrate’s Maintenance Court, the rights of parties are regulated under the Maintenance Act 99 of 1998. Given the social importance of the issue pertaining to maintenance, where the writ of execution was levelled pursuant to the provisions of the Maintenance Act, the provisions of the Act apply. The procedure for obtaining and serving a writ in the Maintenance Court is prescribed in Section 27(1) and (2) of the Maintenance Act.

Under section 27(2)(b), the first respondent as a person in whose favour the maintenance was issued, is generally assisted by the maintenance investigator or, in the absence of a maintenance investigator, by the maintenance officer in taking the prescribed steps to facilitate the execution of the writ. In circumstances where there is a dispute about the amount owing under a pre-existing Maintenance Order, it seems the only remedy for an aggrieved party lies in Section 27(3) which provides that: "a maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section, set aside the warrant of execution (writ) if the maintenance court is satisfied that he or she has complied with the maintenance or other order in question."

Conclusively, the provisions of the Maintenance Act do not confer the right claimed by the applicant in casu to the applicant. 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.