Section 28 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that a child has the right to parental care, basic nutrition and health services. The Constitution further provides that a child's best interests are of paramount importance in every matter concerning a child.

It is therefore of great importance that each parent fulfils their duty to financially maintain a child, and in an instance where there is an existing maintenance order, that the order be complied with. The Children's Act 38 of 2005 (“Children's Act”) provides that a child's parents, have a duty to financially maintain and support their children.

However, our courts are faced with many cases where maintenance orders are not complied with. This raises the question of what legal remedies are then available to enforce such an order. Can a maintenance defaulter's pension fund be attached to satisfy a maintenance order, be that maintenance in arrears or future maintenance?

Sections 26 - 30 of the Maintenance Act 99 of 1998 (“Maintenance Act”) deal with the enforcement of maintenance orders and the civil execution thereof. The Maintenance Act makes provision for remedies such as:

  • the attachment of the defaulter's movable/immovable property; or
  • the attachment of the defaulter's salary; or
  • the attachment of any debt due to the defaulter and/ or criminal proceedings against the defaulter; or
  • the attachment of any pension, annuity, gratuity or compassionate allowance.

Regarding the attachment of a maintenance defaulter's pension benefit, generally, section 37A of the Pensions Fund Act 165 of 196 (“PFA”) prohibits the reduction, hypothecation, cession, transfer and attachment of retirement benefits, unless it is specifically permitted by the PFA, Income Tax Act 58 of 1962 and the Maintenance Act. However, section 37A of the PFA is subject to exception being section 37D of the PFA and section 26(4) of the Maintenance Act.

In terms of section 37D of the PFA, a fund may deduct from a member's or deferred pensioner's benefit, member's interest or minimum individual reserve, or the capital value of a pensioner's pension after retirement, any amount payable in terms of a maintenance order as defined in section 1 of the Maintenance Act. Section 26(4) of the Maintenance Act goes on to further provide that despite anything to the contrary contained in any law, any pension fund may be attached to satisfy a maintenance order.

The above legislation clearly speaks to maintenance orders which have not been complied with which places the defaulter in arrears. It is therefore a well-established fact in our law that the attachment of a member's pension fund may be attached to pay off monies in arrears. However, our courts have been applying the rule of interpretation to ensure that future maintenance of a child can also be covered through the attachment of a pension fund. 

In Magewu v Zozo and Others 2004 (4) SA 578 (C) the application before the court was for the retention of pension benefits and the payment of future maintenance claims out of a pension fund benefit due and legitimately owned by the First Respondent. The court had to decide whether:

  • the Second and Third Respondents (Telkom Retirement Fund and Old Mutual Employee Benefits) retain the First Respondent's pension/withdrawal benefit for so long as the First Respondent's minor child requires support and maintenance, and
  • secondly, that the Second and Third Respondents pay the sum of R1 800 per month to the Applicant, so long as the child is in need of support and maintenance in respect of the First Respondent's future maintenance obligations towards the child.

The First Respondent in this matter was not in arrears when the application was brought, however the court stated that the Applicant's case does not fall flat due to the First Respondent not being in arrears at the time of the application.

The court concluded in paragraph 24 that:

‘The attachment of pension fund benefits in respect of future maintenance claims in casu is a direct and effective means of ensuring that the rights of the child and the dignity of women are upheld. There is no reason why, in this instance, the pension fund should not be directed to withhold the withdrawal benefit in order to secure the future maintenance claims of the minor child'.

In Soller v Maintenance Magistrate, Wynberg and Others [2006] 1 BPLR 53 (C) the applicant and third respondent divorced in 1994 and the third respondent was ordered to pay maintenance for their minor child. When the third respondent repeatedly defaulted on payments, the applicant approached the Maintenance Court and requested the first respondent (the Maintenance Magistrate) to make the following orders:

  • to direct the fourth respondent, Sanlam Personal Portfolio Life Annuity (the annuity), to deduct the monthly maintenance amount from the third respondent's annuity and to pay it directly to the applicant and;
  • to prohibit the fourth respondent from making large sums of money to the third respondent out of fear that the funds in the annuity would soon be depleted and that her right to future maintenance would be prejudiced. She further sought the maintenance amount to be paid annually instead of monthly.

The first respondent dismissed the latter-mentioned application on the basis that the Maintenance Court does not have the power to grant a prohibitory interdict of this nature and that it might be exceeding its monetary jurisdiction. However, the Hight Court held that the court making a maintenance order ‘must necessarily be, fully empowered to make orders relating to the periodic payment of future maintenance from pension funds, annuities or the like'.

In order to enforce a maintenance order, for either future or arrear maintenance, the following steps may be taken:

  • an Application for the Enforcement of Maintenance or other Order in terms of Section 26 of the Maintenance Act form (“the application form”) needs to be completed;
  • the Applicant can apply for a warrant of execution, an order for the attachment of emoluments or an order for the attachment of debt. The latter option is applicable in this instance;
  • once the form has been completed, same has to be lodged at the Maintenance Court and the maintenance clerk will consider the documents and give a rule nisi, whereafter, the rule nisi will be served on both the Respondent and the relevant pension/provident fund (second Respondent);
  • on the return date, the Respondent and/or the second Respondent can give evidence or reasons as to why a final order in that specific matter should not be made.
  • once the court has considered the latter, an order is made final for either arrear and/or future maintenance, the pension fund will then be ordered to pay the lump sum amount directly to the Applicant.

In conclusion, a member's pension benefit can therefore be attached or withheld in order to ensure that either future or arrear maintenance orders are satisfied. However, it is important that in each matter, all the other remedies and civil executions provided in sections 26 – 30 of the Maintenance Act are considered and that the attachment of a member's pension benefit be considered as the last resort.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.