M.O v R.O and Another

The applicant and the first respondent are married out of community of property with inclusion of accrual, with three minor children. The applicant instituted divorce proceedings in September 2022. On 6 October 2023, Cloete J granted a Rule 43 order requiring the first respondent to pay maintenance of R18,000 per month, with the first payment due on 1 November 2023. The first respondent failed to make any payments. On 16 November 2023, the applicant filed a contempt application. On 28 November 2023, the parties settled by agreement, with the first respondent undertaking to pay arrear amounts (R3,000 arrear maintenance, R24,000 arrear rental, R1,000 rental penalty, and R3,250 arrear occupational therapy fees) by 17h00 on 28 November 2023. The order also granted the applicant leave to approach the court if there was non-compliance. The first respondent failed to pay and subsequently launched a Rule 43(6) application on 8 December 2023 seeking a reduction in maintenance, citing the liquidation of his company, Orsom Africa Distributors (Pty) Ltd. The applicant sought attachment of the first respondent's retirement annuity funds with Discovery Limited to satisfy arrear maintenance in terms of section 26(4) of the Maintenance Act.

• Whether the application under section 26(4) of the Maintenance Act was prematurely filed given the ten-day waiting period requirement
• What event triggers the commencement of the ten-day period under section 26(2)(a) of the Maintenance Act
• Whether the liquidation of the first respondent's company and a pending Rule 43(6) variation application constitute defences to the attachment of retirement benefits for arrear maintenance
• Whether the relief sought under section 26(4) is a drastic measure reserved only for recalcitrant defaulters
• Whether the first respondent qualified as a recalcitrant defaulter

The court granted the application. The second respondent (Discovery Limited) was directed to deduct R29,500.00 plus interest from the first respondent's retirement annuity and/or retirement optimiser funds and transfer the amount to the applicant's attorneys' trust account. The court made further orders for ongoing deductions in the event of future non-compliance with maintenance obligations, with a notification mechanism. The second respondent was entitled to effect payment of any tax liabilities arising from the deductions. The first respondent was ordered to pay costs on a party-and-party scale. The request for attorney-and-client costs was refused.

The ten-day waiting period under section 26 of the Maintenance Act commences from the date the maintenance amount becomes payable as agreed between the parties, not from the date the court order is formally issued. The existence of retirement annuity funds demonstrates an ability to pay arrear maintenance, and a pending application to vary a maintenance order does not suspend the enforcement of arrear maintenance that has already accrued. A complete failure to make any maintenance payments since the issuance of a maintenance order, without any attempts or sporadic payments, constitutes recalcitrant behaviour warranting relief under section 26(4) of the Act.

The court observed that even a maintenance defaulter is entitled to due process and has the right to demonstrate an inability to pay maintenance. However, a mere inability to pay or lack of income does not translate into a lack of assets from which to satisfy court-ordered maintenance or arrear maintenance. The court also noted that section 26 is in no way meant to be onerous or cause hardship for the person who is supposed to pay maintenance; it serves to enforce an obligation that should have been fulfilled already.

This case clarifies the interpretation of the ten-day waiting period under section 26 of the Maintenance Act, confirming that the trigger event is the date on which payment becomes payable (as agreed by parties or ordered) rather than the date of formal issuance of the court order. It also affirms that retirement annuity funds can be attached to satisfy arrear maintenance under section 26(4), that a pending variation application does not suspend enforcement of existing arrear obligations, and that complete non-payment without any attempt constitutes recalcitrant default. The judgment reinforces the purpose of section 26 as a procedural mechanism to vindicate the rights of maintenance recipients.