Published date: 2013-05-23
Author: Judy Wilkins

Issuing a warrant of execution against a pension fund for arrear maintenance payments of a debtor has been possible. However, until 2006 to try and secure future maintenance payments has not been allowed.

There are four cases that deserve mentioning

Mngadi v Beacon Sweets and chocolates provident 2004 5 SA 388D

Magewu V Zozo 2004 (3) SA 235

Soller v Maintenance magistrate Wynberg 2006 2 SA 66

Burger v Burger 2006 JDR 0305 D

In these cases there was a history of non-payment of maintenance. The Courts came to the conclusion that it would be in the best interests of the children to secure funds for their future rights as opposed to undermining their future rights.

The Court in Mngadi made an order declaring that the minor children were entitled to a share in the withdrawal benefit from a pension fund by means of monthly payments towards their maintenance. The fund was ordered to retain the debtor member’s withdrawal benefit so as to make equitable and proper provision for the support and maintenance of the children, for so long as they are in need of such support and maintenance.

Similarly, the Court in the Magewu matter made an order for the attachment of the maintenance debtor’s pension fund to secure future maintenance for the child as he had a history of non-payment , even though he was not in arrears at the time of the order.

These approaches found favour with the Court in Soller where the Court also

secured payment of future maintenance from a parents annuity , by interdicting

the holder of the maintenance debtor’s annuity from making payment to the debtor until the minor becomes self-supporting except with the leave of the other parent or the maintenance Court.

It is also worth noting that the Court ordered that the payments be made on an annual rather than a monthly basis.

In Burger, the Court ordered the retention from the proceeds of the sale of immovable property, to secure future maintenance payments.

With all the cases thus far it has been necessary for the non-member to prove that the member is likely to dissipate his funds and avoid his / her maintenance obligations. As a result it is necessary to prove a history of erratic payments or non-payment of maintenance.