THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 4/2021

In the matter between:
SIMON ROY ARCUS
APPELLANT

and

JILL HENREE ARCUS
RESPONDENT

Neutral citation:  Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9
(21 January 2022)
Coram:
DAMBUZA, MOCUMIE and HUGHES JJA and KGOELE and
SMITH AJJA
Heard:
18 November 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand-down is deemed to be
10:00 am on 21 January 2022.

Summary: Interpretation of s 11(a)(ii) of the Prescription Act 68 of 1969 – whether
a maintenance order is a judgment debt, subject to 30 years’ prescription period, or
any other debt, subject to three years’ prescription period – held: maintenance orders
are final, executable and appealable – a maintenance order is thus a judgment debt
for the purposes of the Prescription Act, and subject to 30 years’ prescription period.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Francis
AJ, sitting as court of first instance):
The appeal is dismissed with costs.
__________________________________________________________________

JUDGMENT
__________________________________________________________________

Smith AJA (Dambuza and Hughes JJA concurring)

[1] The circumscribed issue for determination in this appeal is whether an
undertaking to pay maintenance in a divorce consent paper, which was made an
order of court, gives rise to a ‘judgment debt’ as contemplated in section 11(a)(ii) of
the Prescription Act 68 of 1969 (the Prescription Act or the Act), with a prescriptive
period of 30 years, or any ‘other debt’, as contemplated in section 11(d) of the Act,
with a prescriptive period of three years.

[2] The facts are common cause, but not really germane for the resolution of the
posed legal question. I therefore summarise them briefly and only to provide context.

[3] When the appellant and the respondent divorced each other on 27 July 1993,
they entered into a consent paper which, inter alia, provided that the appellant would
pay maintenance for the respondent until her death or remarriage, and for their two

minor daughters until they became self-supporting. The consent paper was made an
order of court.

[4] It is common cause that the appellant’s obligations to pay maintenance in
respect of the minor children terminated during 2002 and 2005, respectively, when
they became self-supporting.

[5] Despite the fact that the appellant failed to pay the maintenance stipulated in
the consent paper, the respondent did not take any steps to recover the arrear
maintenance until December 2018, when she instructed her attorneys to send a letter
of demand to the appellant. Notwithstanding demand, the appellant failed to pay the
arrear maintenance, but commenced paying the monthly maintenance due to the
respondent from January 2019.

[6] On 27 August 2019, the appellant lodged an application in the maintenance
court for the retrospective discharge of his maintenance obligations in terms of the
consent paper (the discharge application). That application is still pending.

[7] On 17 February 2020, the respondent caused a writ of execution to be issued
in respect of the arrear maintenance of some R3.5 million. That writ was served on
the appellant on 18 March 2020.

[8] Subsequently, on 19 June 2020, the appellant brought proceedings in the
Western Cape Division of the High Court, Cape Town (the court a quo) for an order,
inter alia, staying the writ of execution pending the determination of the discharge
application. He also applied for a declaration that all maintenance obligations under
the consent paper which accrued before 1 March 2017 (being the due date for

payment of maintenance three years prior to the date of service of the writ) have
been extinguished by prescription.

[9] In the court a quo, as is the case before us, only the abovementioned issue fell
for decision. The court a quo (Francis AJ) held that the maintenance obligations in
the consent paper arose from a ‘judgment debt’ as contemplated in section 11(a)(ii)
of the Prescription Act and are consequently subject to a 30-year prescription period.
The appellant appeals that judgment with the leave of the court a quo.

[10] It is perhaps necessary to mention that although the learned acting judge was
not convinced that there were reasonable prospects of success on appeal, he was of
the view that ‘the issue relating to the prescriptive period applicable to debts created
by maintenance orders is compelling enough to warrant the scrutiny of a higher
court’ and granted leave for that reason.

[11] Sections 11(a)(ii) and 11(d) of the Prescription Act read as follows:
‘The periods of prescription of debts shall be the following:
(a)
thirty years in respect of –
. . .
(ii) any judgment debt;
. . .
(d)
save where an Act of Parliament provides otherwise, three years in respect of any other
debt.’

[12] Although the appellant accepts that a maintenance order has characteristics of
a civil judgment, namely that it is executable without further proof and appealable,
he contends that:

(a)
Having regard to the objectives of the Act, a ‘judgment debt’ for the purposes
of s 11(a)(ii), is one which is final in the sense of it being appealable, capable of
execution and unalterable by the court which granted it.
(b)
Because maintenance orders are variable by the court which granted them and
are susceptible to ongoing disputes which may require evidence, they lack the
certainty to qualify as a judgment debt for purposes of the Prescription Act.
(c)
And since maintenance is intended for consumption and not accumulation, it
is appropriate that the debts arising from maintenance orders should prescribe within
three years, as they should be enforced promptly.

[13] In order to provide proper context to the appellant’s contentions, it is
necessary to state upfront that it matters not that the appellant’s obligations to pay
maintenance arose from an agreement, which was made an order of court, as opposed
to a maintenance order granted by a maintenance court in terms of the Maintenance
Act 99 of 1998 (the Maintenance Act). This is so because the definition of ‘a
maintenance order’ in the Maintenance Act includes a maintenance order made by a
court in terms of the Divorce Act 70 of 1979 (the Divorce Act).

[14] A resolution of this appeal will, to a great extent, depend on the determination
of the question of whether maintenance orders possess the essential nature and
characteristics of civil judgments. It would thus be instructive to survey authoritative
pronouncements made by our courts in this regard.

[15] A good starting point would be Zweni v Minister of Law and Order,1 where
this Court held that ‘[a] “judgment or order” is a decision which, as a general

1 Zweni v Minister of Law and Order [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A) at 532I-533A.

principle, has three attributes, first, the decision must be final in effect and not
susceptible of alteration by the court of first instance; second, it must be definitive
of the rights of the parties; and third, it must have the effect of disposing of at least
a substantial portion of the relief claimed in the main proceedings’. And in Kilroe-
Daley v Barclays National Bank Ltd,2 this Court held that a ‘judgment debt’ for the
purposes of section 11(a)(ii) of the Prescription Act ‘refers, in the case of money, to
the amount in respect of which execution can be levied by the judgment creditor;
that in the case of any other debt steps can be taken by the judgment creditor to exact
performance of the debt, ie delivery of the property, or performance of the
obligation. A further feature of a judgment debt is that the judgment is appealable’.
In Strime v Strime,3 it was held that ‘[a] claim for arrear maintenance under a Court’s
order is exigible without any averment or proof that the plaintiff had, in order to
maintain herself, incurred debts during the period in question and notwithstanding
the fact that she earned, or could have earned, an income from employment’. And in
Eke v Parsons,4 the Constitutional Court held that the effect of settlement agreements
incorporated into court orders is that it changes ‘the status of the rights and
obligations between the parties. Save for litigation that may be consequent upon the
nature of the particular order, the order brings finality to the lis between the parties;
the lis becomes res judicata (literally, “a matter judged”). It changes the terms of a
settlement agreement to an enforceable court order’. Lastly, in Myathaza v
Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others,5
the Constitutional Court, in a pronouncement that, in my view, is emphatically
dispositive of all the appellant’s arguments, held that:

2 Kilroe-Daley v Barclays National Bank Ltd [1984] ZASCA 90; [1984] 2 All SA 551 (A); 1984 (4) SA 609 (A) at
624D-F.
3 Strime v Strime [1983] 2 All SA 386 (C); 1983 (4) SA 850 (C) at 852C-E.
4 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 31.
5 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Other [2016] ZACC 49;
(2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) para 44.

‘The three-year period is meant for claims or disputes which are yet to be determined and in respect
of which evidence and witnesses may be lost if there is a long delay.’
And that:
‘. . . a debt contemplated in the Prescription Act cannot be reviewed or appealed against, except if
it is a judgment debt.’6

[16] A maintenance order possesses another important attribute of a final civil
judgment, namely that it is appealable. In terms of s 25 of the Maintenance Act, ‘any
person aggrieved by any order made by a maintenance court under this Act may,
within such period and in such manner as may be prescribed, appeal against such
order to the High Court having jurisdiction’. In addition, a person who is served with
a demand to pay in terms of a maintenance order is compelled to comply with that
order until he or she is able to demonstrate a change in circumstances justifying a
variation of the order.

[17] It is thus manifest that maintenance orders are: (a) dispositive of the relief
claimed and definitive of the rights of the parties, to the extent that they decide a just
amount of maintenance payable based on the facts in existence at that time; (b) final
and enforceable until varied or cancelled; (c) capable of execution without any
further proof; and (d) appealable.

[18] The appellant contended that, despite these attributes, a maintenance order,
nevertheless, cannot constitute a final judgment for the purposes of the Prescription
Act, since it can be varied by the court which granted it, for sufficient reason or good
cause. It is thus not unalterable by the court which made the original order, and in
this sense resembles an interlocutory order or ruling which is open to

6 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others (supra fn 5) para 55.

reconsideration, variation or rescission by the court which granted it, on good cause
shown or altered circumstances. In addition, maintenance orders are susceptible to
further disputes regarding the extent or existence of the liability. This means that the
debt arising from a maintenance order is not certain and is contingent in nature, in
as much as they can be varied or discharged with retrospective effect, so that arrears
sought to be enforced by way of a writ of execution may be reduced or even
extinguished through variation of the maintenance order. For these reasons debts
which arise from maintenance orders cannot be regarded as ‘judgment debts’ for the
purposes of the Prescription Act, or so the argument went.

[19] In my view, this argument is not sustainable. As mentioned, a maintenance
order fixes the obligations between the parties until such time as it is discharged on
application by either party. This can only happen if new circumstances arise upon
which the original order can be reconsidered. That the maintenance order is subject
to variation in this sense, does not detract from the fact that the court granting the
maintenance order has done so on a consideration of the facts placed before it at the
time. Its decision, either by way of a reasoned judgment or by agreement between
the parties, disposed of the lis which was in existence between the parties at that
point in time. An application for variation of that order thus introduces a new lis, the
party applying for such an order contending that circumstances have changed to such
an extent that they justify a reconsideration of the original decision. Thus, the matter
is res judicata on the facts which were before the court that made the original
maintenance order. Obligations arising out of maintenance orders are therefore not
‘claims or disputes which are yet to be determined’,7 and are therefore not subject to
a three-year prescription period.

7 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others (supra fn 5).

[20] Section 8 of the Divorce Act 70 of 1979, which provides that a maintenance
order ‘may at any time be rescinded or varied’, is thus an exception to the general
rule that an order of court once pronounced is final and immutable.8 In the event, the
court that made the maintenance order is not at liberty to reconsider its original
decision on the same facts. It can only vary or discharge the order if new facts are
presented, which justify a reconsideration of the order. An aggrieved party who
wishes to challenge the soundness of the original decision without establishing
changed circumstances can only do so by way of an appeal.

[21] The appellant’s argument had another string to its bow. He asserted, in
addition, that his submissions in this regard find support in the fact that the
Maintenance Act (in particular subsections 24(1) and (2)) draw a distinction between
maintenance orders and orders for a once off payment of a specified sum of money,
with only the latter being described as a civil judgment. Section 24(1) provides that
‘any order or direction made by a maintenance court under this Act shall have the
effect of an order or direction of the said court made in a civil action’. And in terms
of subsection (2), ‘any order made under sections 16(1)(a)(ii), 20 or 21(4) [which
are for payment of once off specified sums of money] shall have the effect of a civil
judgment of the maintenance court concerned and shall be executed as provided in
Chapter 5’ of the Maintenance Act.

[22] According to the appellant the distinction between the two categories is
important, since a civil judgment is a final judgment, whereas a maintenance order
is not, because it is variable following an enquiry in terms of Chapter 3 of the
Maintenance Act. He contended that it is significant that no provision is made for

8 Reid v Reid [1992] 3 All SA 354 (E); 1992 (1) SA 443 (E) at 447C.

the variation of orders for payment of a specified sum of money in terms of ss 16,
20 and 21 of the Maintenance Act. And, furthermore, it is only upon conviction for
an offence of failure to pay in accordance with a maintenance order under section
31, that the court can make an order for payment of the arrears in terms of section
40(1) that will have the effect of a civil judgment. On a proper construction of these
sections, the Maintenance Act clearly distinguishes between a maintenance order
and a civil judgment, which contemplates a final judgment for payment of a specified
sum of money. The latter is not subject to variation following an inquiry in terms of
section 16 of the Maintenance Act, or so the argument went.

[23] To my mind, this argument is also flawed. First, the attempt to draw a
distinction between an ‘order’ and a ‘judgment’ is contrived and does not find any
support in decided cases. In Zweni, this Court held that ‘the distinction between
“judgment” and “order” is formalistic and outdated; it performs no function and
ought to be discarded’. The court emphasised that ‘the distinction now is between
“judgments or orders” (which are appealable with leave) and decisions which are
not “judgments or orders”.9

[24] Second, section 24(1) of the Maintenance Act provides that a maintenance
order shall have the effect of an order or direction of the court made in a civil action.
This means that a maintenance order has the same legal consequences which flow
from an order made in a civil action. In my view, there can be no clearer declaration
of the legislature’s intention to visit upon a maintenance order the legal
characteristics of a civil judgment. Paradoxically then, and properly construed, the
sections relied upon by the appellant are destructive of his arguments.

9 Zweni v Minister of Law and Order (supra fn 1) at 532E-G.

[25] In the light of these findings, there is no room for the interpretation of s
11(a)(ii) to give effect to the policy considerations mentioned by the appellant. The
appellant contended that the following policy considerations militate against a
finding that maintenance orders are subject to a 30-year prescription period: (a)
maintenance orders are intended to provide for immediate living expenses and
sustenance and should therefore be promptly enforced; (b) permitting a maintenance
creditor to wait up to 30 years to enforce a maintenance order could cause hardship
to a maintenance debtor who, having been lulled into a false sense of security by the
inaction of the maintenance creditor, has not provided for the liability, only to be
surprised by a vast claim for arrear maintenance, plus accrued interest; (c) a 30-year
prescriptive period allows the potential for abuse where a maintenance creditor seeks
to exploit a subsequent windfall in the life of the maintenance debtor; and (d) it is
difficult for maintenance debtors to defend against stale maintenance claims, and
unreasonable to expect them to preserve documents for up to 30 years to deal with
such claims.

[26] Apart from the fact that these are considerations that the legislature may
contemplate if it desires to enact amendments to the maintenance laws, I am not
convinced that these factors support the case for a shorter period of prescription. As
was pointed out by the respondent’s counsel, there can be little doubt that a longer
period of prescription is in the best interests of those vulnerable individuals who are
usually the beneficiaries of maintenance orders, namely divorced women and minor
children. Moreover, in my view, the potential prejudice that a 30-year prescription
period would have for the maintenance debtor, is also exaggerated. Apart from the
fact that any such prejudice can be avoided by the debtor doing what all responsible
citizens are supposed to do, namely to comply with court orders, it is inconceivable
that any such prejudice can arise when, in appropriate circumstances, the debtor

would be able to apply for either prospective or retrospective variation of the order.
In the event, the Constitutional Court’s pronouncement in Myathaza, to the effect
that the three-year prescription period is meant for claims which are still to be
determined, is dispositive of this argument. As mentioned earlier, a maintenance
order fixes the obligations of the judgment debtor until such time as it is discharged
or varied upon the establishment of new facts.

[27] I am also of the view that the appellant’s extensive references to maintenance
dispensations in foreign jurisdictions are misplaced. The fact that other countries
have elected to enact statutory provisions to provide for specific periods of
prescription in respect of maintenance orders cannot assist in the interpretation of
the Prescription Act as enacted and implemented in South Africa.

[28] The court a quo accordingly made the correct order and the appeal must fail.
The appeal is accordingly dismissed with costs.

__________________________
J E SMITH
ACTING JUDGE OF APPEAL

Mocumie JA and Kgoele AJA

[29] We have read the main judgment by our colleague Smith AJA, with whom
our other colleagues agree. We agree with most of what is said in it, including the
order it proposes. We write separately, as our approach differs from the main
judgment. Our approach endorses the approach adopted by the court of first instance
(Francis AJ) and emphasises that the construction and interpretation as contended
for by the appellant would perpetuate the hardships suffered by the most vulnerable
groups in our society: women and children. This is so because, at the core, the issues
in this appeal involve the proper interpretation and application of the Maintenance
Act, which was mainly enacted to provide for a fair recovery of maintenance money,
and to avoid the systemic failures to enforce maintenance orders and habitual
evasion and defiance with relative impunity.10

[30] The words of the Constitutional Court in Bannatyne v Bannatyne and Another
(Bannatyne),11 almost two decades now, still ring hollow for many women, because
of maintenance debtors who take advantage of the weaknesses of the maintenance
system to escape their responsibility by using every loophole in the law. This appeal
highlights the disadvantages which the rightful court ordered-maintenance
beneficiaries continue to suffer at the hands of maintenance defaulters. The appeal
stems from the judgment of the Western Cape Division of the High Court, wherein
Francis AJ (the high court) made a declaratory order that the maintenance
obligations contained in the consent paper, which was made an order of the court, is

10 Bannatyne v Bannatyne and Another 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) para 27; see also S S v V V- S
[2018] ZACC 5; 2018 (6) BCLR 671 (CC).
11 Bannatyne v Bannatyne and Another 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) (Bannatyne).

subject to a 30-year prescription period in terms of s 11(a)(ii) of the Prescription
Act 68 of 1969 (the Prescription Act). The appeal is with leave of the high court.

[31] Mr Simon Roy Arcus (the appellant) and Mrs Jill Henree Arcus (the
respondent), who was cited as the first respondent in the proceedings before the high
court, were married some 19 years and two children were born out of their marriage.
Although the children did not take part in this appeal, they were cited as the second
and third respondents before the high court. The marriage was dissolved in terms of
a consent agreement entered into between the parties, which was incorporated into
the divorce order granted by the former Cape of Good Hope Provincial Division on
27 July 1993. The appellant failed to pay the cash maintenance portion agreed upon,
namely the R2 000 per month in respect of the respondent and R750 per month in
respect of each child from the date of the divorce (27 July 1993) until January 2019.
The respondent did not demand payment of the arrear maintenance until December
2018. For that reason, the respondent caused a writ of execution to be issued against
the appellant, dating back to July 1993, as the law allows her to, in the amount of
R 3 223 190.70 (as amended). The writ of execution was stayed pending the outcome
of the proceedings before the high court, which led to this appeal. The appellant also
applied for retrospective discharge of his maintenance obligations under the divorce
order, which application is pending before the magistrate court in terms of the
Maintenance Act of 99 of 1989 (the Maintenance Act).

[32] The appellant's case before the high court is summarised aptly by Francis AJ in
para 9 as follows:
‘The applicant contends that a court order for the payment of maintenance pursuant to a consent
paper gives rise to an ordinary “debt”, which prescribes in 3 years, and not a “judgment debt”, which

only prescribes after 30 years. The applicant advanced the following arguments in support of this
contention:
A judgment debt is final and conclusive in nature and cannot be altered by the court which
pronounced it, i.e. one the effect whereof is res judicata. Because maintenance orders are capable
of being varied, substituted, discharged on good cause, or even varied with retrospective effect, a
maintenance order is not final and conclusive and lacks the attributes of a final judgment and is,
therefore, not a judgment debt.
Various provisions of the Maintenance Act draw a distinction between maintenance orders for the
payment of maintenance and orders for the payment of a once-off specified amount of money,
with only the latter order giving rise to a civil judgment; and
The policy imperatives underlying the Prescription Act are not served by interpreting the words
“any judgment debt” in section 11(a)(ii) as including a maintenance order, regardless of the fact
that such an order may emanate from a judgment of the High Court: a creditor is responsible for
enforcing his or her rights timeously and must suffer the consequences of failing in this regard
and, conversely, a debtor must be protected against a stale claim which has existed for such a long
time that it is difficult to defend against it.’

[33] For the respondent, it was contended that, whilst it is possible for a
maintenance order to be varied as the circumstances change (in terms of s 8(1) of
the Divorce Act 70 of 1979 (the Divorce Act)), this does not mean that when a
consent paper is made an order of court, as in this case, the dispute between the
parties is not definitively settled at that point in time. It was submitted on behalf of
the appellant that although it is correct that once a court has made a consent order, it
is functus officio, however, in relation to matrimonial disputes, that does not apply in
all circumstances. The principle of res judicata only applies to those terms of the
order which deal with the proprietary rights of the parties and the payment of
maintenance to one of the spouses where there is a non-variation clause. In PL v

YL,12 it was held that:
‘A further exception to the general rule that an order of court, once pronounced, is final and
immutable, is created by section 8(1) of the Divorce Act. As stated, in the absence of non-variation
clause in the settlement agreement, it permits the court to rescind, vary or suspend a maintenance
order granted earlier. Further, there exists in principle no reason why the parties may not
subsequently seek an amendment thereof by mutual consent, or in circumstances where the order
through error or oversight does not correctly reflect their agreement. Not only is the mandate of
the court to exercise its discretion in terms of section 7(1) of the Divorce Act derived from the
settlement agreement, but the consent order itself is based on the terms of that agreement. The
legal nature of a consent order was considered by the appeal court in Swadif (Pty) Ltd v Dyke NO.
It was held that where the purpose of the granting of the consent judgment is to enable the parties
to the agreement to enforce the terms thereof through the process of the court, should the need
therefor arise, the effect of the order is to replace the right of action on the agreement by a right to
execute on the judgment: “[i]t seems realistic, and in accordance with the views of the Roman- Dutch
writers, to regard the judgment not as novating the obligation under the bond, but rather as
strengthening or reinforcing it. The right of action, as Fannin J puts it, is replaced by the right to
execute, but the enforceable right remains the same.” The consent order accordingly does not have
the effect of eliminating the contractual basis thereof. Rather, through operation of the res judicata
principle, the judgment constitutes a bar to any action or proceedings on the underlying settlement
agreement. The provisions of the agreement are instead to be enforced by the remedies available to
a judgment creditor on a judgment. It is of course always open to the parties to abandon the
judgment in whole or in part and to enter into a new agreement. Save for the aforegoing, the effect
of the consent order is otherwise that it renders the issues between the parties in relation to their
proprietary rights and the payment of maintenance to a former spouse, where the agreement
includes a non-variation clause, res judicata, and thus effectively achieves a “clean break” as
envisaged by the scheme of the Divorce Act.’

12 PL v YL [2013] 4 All SA 41 (ECG); 2013 (6) SA 28 (ECG) para 46; see also Swadiff (Pty) Ltd v Dyke N O 1978 (1)
SA 928 (A) at 939E.

[34] Having considered the submissions of both parties and the applicable legal
principles, the high court concluded on the basis of ss 24, 26 and 40 of the
Maintenance Act that because the maintenance order which the court granted upon
the divorce of the parties was a civil judgment, the failure by the appellant to pay
maintenance for all those years was a judgment debt which triggered the application
of s 11(a)(ii) of the Prescription Act and therefore, the prescription period of 30
years.

[35] The high court subsequently granted an order that the maintenance obligations
contained in the consent paper that was made an order of court on 27 July 1993 under
case number 7177/1993, is subject to a 30-year period as prescribed in s 11(a)(ii) of
the Prescription Act. It is this order that the appellant challenges with leave of the
high court.

[36] The sole issue for determination before this Court, as was in the high court, is
whether an undertaking to pay maintenance in a divorce consent paper which was
made an order of court gave rise to a ‘judgment debt’ as contemplated in s 11(a)(ii)
with a prescriptive period of 30 years, or ‘any other debt’ as contemplated in s 11(d)
of the Prescription Act, with a prescription period of three years.

[37] This Court, must therefore consider whether the high court interpreted the
word ‘judgment debt’ as contemplated in s 11(a)(ii) of the Prescription Act, with a
prescriptive period of 30 years, and ‘any other debt’ as contemplated in s 11(d) of
the Act, with a prescription period of three years, correctly. For this purpose, the
proper approach to adopt in the interpretation of the statutes implicated, namely, the
Prescription Act read with the Maintenance Act as well as the Divorce Act, is as was

recently restated in C:SARS v United Manganese of Kalahari (Pty) Ltd13 to take into
consideration ‘. . . the language used in the light of the ordinary rules of grammar
and syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production .
. . The inevitable point of departure [being] the language used in the provision under
consideration’.

[38] The section at the heart of this appeal, s 11 of the Prescription Act provides:
‘The periods of prescription of debts
The periods of prescription of debts shall be the following:
(a)
thirty years in respect of–
(i) any debt secured by a mortgage bond;
(ii) any judgment debt;
(iii) any debt owed to the State. . . in respect of the right to mine minerals or other substances;
. . .
(d)
Save where an Act of Parliament provides otherwise, three years in respect of any other
debt.’

[39] As a starting point the law on consent papers incorporated into agreements
including divorce orders, commonly known as settlement agreements or deeds of
settlement, has been settled by the Constitutional Court in Eke v Parsons (Eke)14 as
follows:
‘The effect of a settlement agreement order is to change the status of the rights and obligations
between the parties. Save for litigation that may be consequent upon the nature of the particular
order, the order brings to finality to the lis between the parties; the lis becomes res judicata
(literally “a matter judged”). It changes the terms of a settlement agreement to an enforceable

13 C: SARS v United Manganese of Kalahari (Pty) Ltd [2020] ZASCA 16; 2020 (4) SA 428 (SCA).
14 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 31 citing with approval
the judgment of the full court in PL v YL 2013 [2013] 4 All SA 41 (ECG); 2013 (6) SA 28 (ECG).

order. . . .’

[40] On the issue of the applicable period of prescription, in Myathaza v
Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others,15
the Constitutional Court held that the three year prescription is meant for claims and
disputes ‘. . . which are yet to be determined and in respect of which evidence and
witnesses may be lost if there is a long delay’. In Reid v Reid,16 the court stated,
‘. . . [w]hen the consent paper is then made an order of Court, res judicata is
established  on the just amount payable as maintenance . . .’.

[41] Following the above precedents, it suffices to state the obvious, which was
common cause between the parties, that the consent paper between the appellant and
the respondent which was incorporated into their divorce order created a lis between
them and the issue which was in dispute became res judicata. Such order became
enforceable inter partes upon default or non-compliance by any of the parties. The
parties only differed on whether it had all the attributes of a final order or not, and
thus ‘a judgment debt’ or ‘any other [ordinary] debt’, which if breached became
enforceable, and upon a warrant of execution to satisfy it being issued, it remained
unsatisfied if it prescribed within three years or 30 years in terms of the Prescription
Act.

[42] The word ‘judgment debt’ is not defined in the Prescription Act and so too the
word ‘any other judgment’. In its plain meaning ‘a judgment debt’ means an amount
of money in a judgment awarded to the successful party which is owed to them by

15 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others [2016] ZACC 49;
2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) para 44.
16 Reid v Reid [1992] 3 All SA 354 (E); 1992 (1) SA 443 (E) at 447B.

the unsuccessful one. Any other judgment in the context of maintenance means any
order granted by a court, either the magistrates' court or the high court. The context
in which the meaning of these words must be established is the maintenance dispute
which was finally settled between the parties by a consent paper. To interpret the
Prescription Act and whether three years or 30 years is applicable to the arrears
which the appellant owed over 19 years, this Court must look at the Prescription Act
in the context of the Maintenance Act with specific reference to three sections,
namely, ss 24, 26 and 40.

[43] Under the Maintenance Act, when a court orders a maintenance debtor to
make payment of a sum of money in terms of s 24,17 that order has the effect of a
civil judgment and it shall be executed as provided. On the language used, ‘a civil
judgment’; this attracts a prescription period of 30 years. Section 2618 read in
conjunction with ss 7(1)19 and 8(1)20 of the Divorce Act provides that the same

17 Section 24 provides:
‘Effect of orders of maintenance court
(1) Save as is otherwise provided in this Act, any order or direction made by a maintenance court under this Act shall
have the effect of an order or direction of the said court made in a civil action.
(2) Any order made under section 16(1)(a)(ii), 20 or 21 (4) shall have the effect of a civil judgment of the maintenance
court concerned and shall be executed as provided.’
18 Section 26 provides:
‘Enforcement of maintenance or other orders
(1) Whenever any person –
(a) against whom any maintenance order has been made under this Act has failed to make any particular payment in
accordance with that maintenance order; or
(b) against whom any order for the payment of a specified sum of money has been made under section 16(1)(a)(ii),
20 or 21(4) has failed to make such a payment, such order shall be enforceable in respect of any amount which that
person has so failed to pay, together with any interest thereon–
(i)
by execution against property as contemplated in section 27;
(ii) by the attachment of emoluments as contemplated in section 28; or
(iii) by the attachment of any debt as contemplated in section 30.’
19 Section 7(1) provides that:
‘A court granting a decree 'of divorce may in accordance with a written agreement between the parties make an order
with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.’
20 Section 8(1) provides that:
‘A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of
this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access
to a child, be suspended by a court if the court finds that there is sufficient reason therefor . . . .’

enforcement mechanisms may be applied for the recovery of any monies that may
be owing pursuant to a maintenance order or an order for a specified sum of money
made by a maintenance court upon an inquiry (at an initial stage) and thereafter, any
time for a rescission, variation or suspension if the court finds that there are sufficient
reason therefor and even be substituted or discharged on good cause shown by a
maintenance court. This section makes reference to the recovery of monies pursuant
to a maintenance order. This means that it is a civil judgment debt.

[44] Over and above, s 4021 of the Maintenance Act provides that an order of a
court that grants an order for the recovery of arrear maintenance shall have the effect
of a civil judgment of the court. The section categorically states that that order is a
civil judgment. As the high court correctly found, this section (s 40) buttresses the
reasoning that a maintenance order has the effect of a civil judgment, because ‘if an
order for arrear maintenance payments is to be regarded as a civil judgment, why
should the principal amount payable in terms of the original maintenance order be
considered to be something other than a civil judgment?’.

[45] Furthermore, based on the acceptance of Eke that once a settlement agreement
has been made an order of court, it is an order like any other order and changes the
terms of the settlement agreement to an enforceable court order, a maintenance order
is a civil judgment subject to s 11(a)(ii) of the Prescription Act. In our view and for
the purposes of the conclusion we reach on the issue of the applicable period of

21 Section 40(1) provides that:
‘Recovery of arrear maintenance
A court with civil jurisdiction convicting any person of an offence under section 31(1) may, on the application of the
public prosecutor and in addition to or in lieu of any penalty which the court may impose in respect of that offence,
grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with
the maintenance order, together with any interest thereon, whereupon the order so granted shall have the effect of a
civil judgment of the court and shall subject to subsection (2), be executed in the prescribed manner.’

prescription, whether the order is incorporated in a deed of settlement or not in this
matter, makes no difference. This we say because, throughout all the relevant
sections under Chapter 5, the Maintenance Act makes reference to ‘judgment’ and
‘order’. The terms cannot be interpreted other than with reference to a civil judgment
and order. Some of the provisions, such as s 24(1) in particular, even make direct
reference to ‘civil judgment’. The same applies to s 24(2). There is therefore, no
justifiable distinction that can be drawn between ss 24(1) and (2) if one applies the
trite approach on the interpretation of legislation, although differently couched.22
The distinction sought to be made by the appellant between an order and a judgment
that the legislature intended for 3 years’ prescription to apply to an order and 30 years
to a judgment is superficial and does not exist in law.

[46] In conclusion, it is indisputable that the consent paper which contained the
agreement concluded between the appellant and the respondent was incorporated
into their divorce order and became a court order; that the maintenance question
(dispute) was determined; and that from that moment (in 1993) it was beyond any
doubt that the maintenance dispute between them was finally disposed of. Thus, it
could hardly be revisited, except if it was to be varied on the basis of the original
order and only when the circumstances which were applicable at the time of the
original order have changed; which the appellant did not do. Besides, a claim of
maintenance under a court order is exigible without any averment or proof that the
respondent had, in order to maintain herself, incurred debts during the period in
question.23 That the respondent did not claim the arrears over such a long period is
irrelevant for the purposes of the issue in dispute; that of which period of prescription
is applicable. The high court was thus correct to hold that ‘the maintenance

22 See footnote 15 above.
23 Strime v Strime [1983] 2 All SA 386 (C); 1983 (4) SA 850 (C) at 852D.

obligations contained in the consent paper that was made an order of this court on
27 July 1993 under case number 7177/93, [was a civil judgment] and is subject to a
30-year period as prescribed in section 11(a)(ii) of the Prescription Act’.

[47] For the sake of completeness, the appellant’s attempt to make a case based on
public policy is simply unfounded. The submission was made that the policy
imperatives underlying the Prescription Act are not served by interpreting the words
‘any judgment debt’ in s 11(1)(a)(ii) of the Prescription Act as including a
maintenance order, regardless of which court granted the order. Furthermore, that
because a maintenance order is intended to provide for immediate living expenses
and substance, it should, therefore, be promptly enforced. To enforce it much later
would result in great financial hardship for a maintenance debtor who has been lulled
into a false sense of security by the inaction of the maintenance creditor and who has
not provided for the liability. It would also be unreasonable and burdensome to expect
a maintenance debtor to keep records for up to 30 years to deal with possible maintenance
claims, so the submission was concluded.

[48] What is extremely troubling is that the prejudice the appellant decries affects
the maintenance creditors (who are predominantly, as this case demonstrates, women
and children) far more than maintenance debtors (who are generally men). The
submission was made by the appellant that to enforce the order and avoid
prescription, a maintenance creditor had the option of approaching the court every
three years. However, this will definitely cause hardship to the maintenance creditors,
as they will be compelled to approach the courts every three years to enforce their
claims to avoid prescription. In Bannatyne, the Constitutional Court recognised that
the gendered nature of the maintenance system is undeniable. We can, therefore, not
interpret the Prescription Act in a manner that will be at odds with the purpose of the

Maintenance Act. To do so will be to the disadvantage of a maintenance creditor and
will  fly in the face of what the Maintenance Act was enacted to do, namely, to avoid
the systemic failures to enforce maintenance orders and habitual evasion and
defiance with relative impunity.24 It would also give protection to maintenance
debtors more than was intended for. Consequently, the order of the high court ought
to stand.

Order
[49] It is for these additional reasons that we support the order of the main
judgment dismissing the appeal with costs.

______________________
B C MOCUMIE
JUDGE OF APPEAL

______________________
A M KGOELE
ACTING JUDGE OF APPEAL

24 Bannatyne para 27.

APPEARANCES

For appellant:

D M Davis SC (with T Smit)
Instructed by:

Myburgh Attorneys Incorporated, Bellville

Webbers Attorneys, Bloemfontein

For respondent:

A Kantor SC
Instructed by:

Salvatore Puglia Attorneys, Cape Town

Du Toit Lambrechts Incorporated, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
21 January 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9 (21 January 2022)
The Supreme Court of Appeal (SCA) today dismissed, with costs, an appeal brought by Simon
Roy Arcus (the appellant).

The appeal stemmed from the judgment of the Western Cape Division of the High Court,
wherein Francis AJ (the court a quo) made a declaratory order to the effect that the maintenance
obligations contained in the consent paper, pursuant to the divorce of the appellant and Jill
Henree Arcus (the respondent), which was made an order of the court, was subject to a 30-year
prescription period in terms of s 11(a)(ii) of the Prescription Act 68 of 1969 (the Prescription
Act).

The circumscribed issue for determination in this appeal was whether an undertaking to pay
maintenance in a divorce consent paper, which was made an order of court, gave rise to a
‘judgment debt’ as contemplated in section 11(a)(ii) of the Prescription Act, with a prescriptive
period of 30 years, or any ‘other debt’, as contemplated in section 11(d) of the Prescription
Act, with a prescriptive period of three years.

Smith AJA (Dambuza and Hughes JJA concurring) (the majority judgment) found that a
resolution of this appeal, to a great extent, depended on the determination of the question of
whether maintenance orders possessed the essential nature and characteristics of civil
judgments. Pursuant to a survey of authoritative pronouncements made by our courts in this
regard, the majority judgment found that it was manifest that maintenance orders were: (a)
dispositive of the relief claimed and definitive of the rights of the parties, to the extent that they
decided a just amount of maintenance payable based on the facts in existence at that time; (b)
final and enforceable until varied or cancelled; (c) capable of execution without any further
proof; and (d) appealable. The majority judgment found that a maintenance order had the same
legal consequences which flowed from an order made in a civil action. A maintenance order
fixed the obligations of the judgment debtor until such time as it was discharged or varied upon
the establishment of new facts, and was therefore not subject to a three-year prescription period.

Thus, the majority judgment held that the court a quo made the correct order and the appeal
accordingly failed.

Mocumie JA and Kgoele AJA wrote a separate concurring judgment, as, although largely in
agreement with the main judgment, the approach taken was different. The concurring
judgment’s approach endorsed the approach adopted by the court of first instance (Francis AJ)
and emphasised that the construction and interpretation as contended for by the appellant would
perpetuate the hardships suffered by the most vulnerable groups in our society: women and
children. This was so because, at the core, the issues in this appeal involved the proper
interpretation and application of the Maintenance Act, which was mainly enacted to provide
for a fair recovery of maintenance money, and to avoid the systemic failures to enforce
maintenance orders and habitual evasion and defiance with relative impunity.

The concurring judgment found that the distinction sought to be made by the appellant between
an order and a judgment that the legislature intended for 3 years’ prescription to apply to an
order and 30 years to a judgment was superficial and did not exist in law. It found further that:
it was indisputable that the consent paper which contained the agreement concluded between
the appellant and the respondent was incorporated into their divorce order and became a court
order; that the maintenance question (dispute) was determined; and that from that moment (in
1993) it was beyond any doubt that the maintenance dispute between them was finally disposed
of. Thus, it could hardly be revisited, except if it was to be varied on the basis of the original
order and only when the circumstances which were applicable at the time of the original order
had changed, which the appellant did not do. Besides, a claim of maintenance under a court
order was exigible without any averment or proof that the respondent had, in order to maintain
herself, incurred debts during the period in question. That the respondent did not claim the
arrears over such a long period was irrelevant for the purposes of the issue in dispute; that of
which period of prescription is applicable. The high court was thus correct.

Furthermore, Mocumie JA and Kgoele AJA found that one could not interpret the Prescription
Act in a manner that would be at odds with the purpose of the Maintenance Act. To do so would
be to the disadvantage of a maintenance creditor and would fly in the face of what the
Maintenance Act was enacted to do, namely, to avoid the systemic failures to enforce
maintenance orders and habitual evasion and defiance with relative impunity. It would also
give protection to maintenance debtors more than was intended for. Consequently, the order of
the high court ought to stand.
~~~~ends~~~~