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[2023] ZAGPJHC 1235
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I.K.L v S.E.L and Others (11212 / 2013) [2023] ZAGPJHC 1235 (26 October 2023)

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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
CASE NO: 11212 / 2013
In the matter between:
L, I K
Applicant
And
L, S E
First
Respondent
DISCOVERY LIFE
INVESTMENT SERVICES (PTY) LTD
Second
Respondent
DISCOVERY
RETIREMENT ANNUITY FUND
Third
Respondent
DISCOVERY
LIFE LIMITED
Fourth
Respondent
Delivered:
Delivery:
This judgment was
handed down electronically by circulation to the parties' legal
representatives by email, and uploaded on caselines
electronic
platform. The date for hand-down is deemed to be 26 October 2023.
JUDGEMENT
CORAM: VAN NIEKERK AJ
1.
This is an application terms of which the
applicant seeks an order:
1.1
declaring the minor daughter of the
applicant and the first respondent, B E L (“
B
”),
born on 24 March 2009, to be entitled to share in the first
respondent’s withdrawal benefit and any other benefits
in:
1.1.1
the discovery retirement annuity fund with
policy number: [...] (“
the
retirement annuity
”); and/or
1.1.2
any other pension or retirement annuity of
the first respondent held or administered by the second, third or
fourth respondents.
1.2
that:
1.2.1
the registrar of this court issue a writ of
execution, in favour of the applicant, for the sum of R872,119.40 (by
the time of the
hearing of this application, this amount had
increased to an amount of R1,004,772.36), plus interest on this
amount
a tempore morae
,
at the maximum rate of interest permissible under the applicable
laws, per annum, calculated to date of final payment, the costs
of
this application, and the costs of the execution of an order granted
herein;
1.2.2
the sheriff be directed and authorised to
attach and execute against the retirement annuity and/or any other
pension or retirement
annuity of the first respondent held or
administered by the second, third or fourth respondent, in favour of
the applicant for
the sum of R872,119.40 (increased to an amount of
R1,004,772.36), plus interest on this amount
a
tempore morae
at the maximum rate of
interest permissible under the applicable laws, per annum, calculated
to date of final payment, the costs
of this application and the costs
of the execution of the order granted herein;
1.3
an order that the second and/or third
and/or fourth respondent:
1.3.1
be interdicted immediately upon the
granting of an order herein, from making any payments to the first
respondent from the funds
held by the second and/or third and/or
fourth respondent in the retirement annuity and/or any other pension
or retirement annuity
of the first respondent held or administered by
the second, third or fourth respondent, except with the leave of the
applicant,
alternatively, a competent court, until B becomes
self-supporting;
1.3.2
retain the first respondent’s
withdrawal benefit and any other benefits of the retirement annuity
and/or any other pension
or retirement annuity of the first
respondent held or administered by the second, third or fourth
respondent that remain after
the attachment in execution has been
affected in accordance with paragraph 1.2 above, and make periodical
payments of the following
on the first respondent’s behalf to
the applicant, into her bank account, from monies owing at present or
accruing in future
to the first respondent in terms of the retirement
annuity and/or any other pension or retirement annuity of the first
respondent
held or administered by the second, third or fourth
respondent:
1.3.2.1
payment of the sum of R9,475.31 per month
to the applicant, commencing on the first of the month following the
granting of an order
herein, until B becomes self-supporting, which
amount shall increase annually in accordance with the Consumer Price
Index (“
the CPI
”),
which increase shall commence on 24 May 2023 and thereafter on the
24
th
of May each year;
1.3.2.2
payment to the applicant of the amount of
the fees and costs of B’s educational expenses, including but
not limited to: primary
and secondary tuition fees at a private
school; uniform; stationery; books; sports equipment and uniforms and
extra curricular
activities, within 7 days of the presentation of a
valid invoice or proof of payment thereof to the second, third and/or
fourth
respondent, from the date of the granting of an order herein,
until B becomes self-supporting;
1.3.2.3
payment to the applicant of the amount of
the monthly premiums payable in respect of retaining B on a medical
aid scheme, within
seven days of presentation of a valid invoice or
proof of payment thereof to the second and/or the third and/or the
fourth respondent,
from the date of the granting of an order herein
until the minor child becomes self-supporting;
1.3.2.4
payment to the applicant of the amount of
any excess medical expenses incurred on B’s behalf which are
not covered by a medical
aid scheme, including all homeopathic,
medical, dental, orthodontic, prescribed pharmaceutical, hospital,
psychological, psychiatric,
optometric and ophthalmic costs
reasonably incurred on B’s behalf, within seven days of the
presentation of a valid invoice
or proof of payment to the second
and/or the third and/or the fourth respondent, from the date of the
granting of an order herein
until B becomes self-supporting; and
1.3.2.5
payment to the applicant of any other
amounts which may become due and payable to her by the first
respondent in respect of the
maintenance order, from the date of the
granting of an order herein until B becomes self-supporting.
1.4
an order declaring that once B is no longer
in need of maintenance, the first respondent or his estate, is
entitled to retain any
balance that remains from the sum retained and
attached in terms of the above paragraphs;
1.5
an order that the first and second
respondent, jointly and severally, the one paying the other to be
absolved, pays the costs of
a joinder application dated 4 October
2022, under the above case number, on the scale as between attorney
and client;
1.6
an order that the first respondent pay the
costs of this application on the scale as between attorney and
client;
1.7
an order that the third and fourth
respondents pay the costs of this application only in the event of
them opposing same; and
1.8
an order that all costs payable by the
first respondent in terms of an order granted herein, be paid from
the retirement annuity
and/or any other pension or retirement annuity
of the first respondent held, or administered by, the second, third
or fourth respondents.
2.
The relief sought by the applicant is
cumbersome to say the least, but the essence of what she seeks is an
order authorising the
issue of a writ of attachment, in order to
attach the first respondent’s pension fund benefit, in order to
pay arrear maintenance
and future maintenance due in respect of B, as
well as interest and costs.
3.
Prior to the hearing hereof, the applicant
gave notice that she did not intend to pursue her claim in respect of
the attachment
of the first respondent’s pension interest in
respect of future maintenance. Accordingly, this application only
concerns
the issuing of a writ of execution against the first
respondent’s pension fund in order to pay arrear maintenance.
4.
Between the institution of these
proceedings and the hearing thereof, the applicant delivered three
supplementary affidavits, in
terms of which her arrear maintenance
claim was updated, because the first respondent continued to fail in
his obligation to pay
maintenance. The last such supplementary
affidavit, dated 23 August 2023, states that an amount of
R1,004,772.36 was due to the
applicant in respect of arrear
maintenance as at 31 July 2023.
5.
Further in this supplementary affidavit of
23 August 2023, the applicant revealed that B had moved to the United
Kingdom, and that
she had been residing with the first respondent
from 6 August 2023. Consequently, the applicant no longer sought the
payment of
future maintenance from the first respondent.
6.
The first respondent has also delivered
three supplementary affidavits, the final such supplementary
affidavit having been delivered
on or about 3 October 2023.
7.
In his final supplementary affidavit, dated
3 October 2023, the first respondent purported to introduce a counter
application in
terms of which he sought an order:
7.1
dismissing the applicant’s
application restricting access to his “
RA
”
(being a reference to an interim interdict obtained by the applicant,
which I will refer to later on);
7.2
to “
determine
the way forward for arrear and future maintenance
”;
and
7.3
“
punitive costs on the scale as
between Attorney and Client against the applicant and/or legal
counsel for the applicant
”.
8.
As at the date of the hearing of the
application, the applicant had not answered to the first respondent’s
counter application,
as the
dies
for the delivery of such an answer had not yet expired. The counter
application cannot be dealt with until the applicant has answered

thereto. Therefore, the counter application will not feature any
further herein.
9.
The supplementary affidavits delivered on
behalf of both the applicant and the first respondent have been
received by the court,
in the interests of determining the matter on
the full facts.
10.
The issues which I am called upon to
determine are:
10.1
has the applicant made out a case for the
issuing of a writ of execution against the first respondent’s
pension fund benefit
held by the third respondent, in order to effect
the payment of arrear maintenance; and
10.2
the appropriate costs order in the
circumstances.
11.
The acrimony and litigation between the
applicant and the first respondent goes back many years and is
reflected in the volume of
the papers delivered herein. A brief
history of the litigation follows.
12.
The applicant and the first respondent were
married in 2007, and B is the only child born of their marriage.
13.
Following upon the irretrievable breakdown
of their marital relationship, the applicant and the first respondent
were divorced on
24 May 2013. A decree of divorce, along with an
order making a settlement agreement (“
the
settlement agreement
”) an order
of court, was granted on 24 May 2013.
14.
Clause
6 of the settlement agreement constitutes a “
maintenance
order
”,
as contemplated by the Maintenance Act 99 of 1998 (“
the
maintenance act
”),
[1]
and provides that:
14.1
the first respondent would make monthly
payments, to the applicant, in the sum of R6,000.00 for B’s
maintenance, before the
30
th
day of each and every month;
14.2
the maintenance payable by the first
respondent would increase annually, commencing on the anniversary
date of the granting of a
decree of divorce, in accordance with the
CPI;
14.3
the first respondent would be liable for
the fees and costs of B’s educational expenses, including, but
not limited to: primary
and secondary tuition fees at a private
school (provided that the first respondent was in a position to do
so); uniforms; stationery;
books; sports equipment and uniforms; and
extracurricular activities, which will be paid directly to the
various service providers;
14.4
the first respondent would retain B as a
dependent on his medical aid scheme, which would, subject to his
financial position, remain
full cover; and
14.5
the first respondent would cover any excess
medical expenses incurred on B’s behalf, which were not covered
by his medical
aid scheme, and would fully reimburse the applicant
for all homeopathic, medical, dental orthodontic, prescribed
pharmaceutical,
hospital, psychological, psychiatric, optometric and
ophthalmic costs reasonably incurred on B’s behalf, within
seven days
of the presentation of a valid invoice or proof of
payment.
15.
The terms of the maintenance order are not
in dispute.
16.
In her founding affidavit, the applicant
alleges that a written addendum to the settlement agreement was
entered into between herself
and the first respondent on 30 December
2014, but that the content of this addendum is irrelevant for the
present purposes. The
first respondent does not seriously, or at all,
contend to the contrary.
17.
It is common cause between the parties that
the first respondent breached his obligations in terms of the
maintenance order, in
that he failed to make payment, to the
applicant, of all amounts due in this regard.
18.
The first respondent contends that he was
financially unable to comply with his obligations under the
maintenance order. The applicant
does not seriously, or at all,
challenge this contention, as she appeared to accept that the first
respondent was unemployed for
periods of time and unable to pay
maintenance, in terms of the maintenance order, by virtue of this
circumstance.
19.
As a consequence of the first respondent’s
breach of his maintenance obligations, and his contentions to the
effect that he
was unable to meet his maintenance obligations by
virtue of his employment status, various proceedings were launched in
the Magistrate’s
Court, Randburg, including an application
launched by the applicant to enforce the maintenance order and two
applications made
by the first respondent to reduce his maintenance
obligations.
20.
The first respondent’s applications
to reduce his maintenance obligations were unsuccessful, and the
maintenance order, in
the terms as set out above, remains in force.
This is not in dispute between the parties.
21.
Moreover, the applicant’s attempt to
enforce the maintenance order was also not successful.
22.
In her founding affidavit herein, as well
as in the three supplementary affidavits submitted after the
institution of these proceedings,
the applicant sets out how the
outstanding arrear maintenance has been calculated, together with
supporting vouchers in respect
of expenses which she had incurred.
23.
Calculation of the arrear amount due to the
applicant insofar as the first respondent failed to make payment of
the monthly amount
of R6,000.00 does not present a difficulty.
Similarly, the increase in this amount, in line with the CPI, poses
no difficulty in
calculation.
24.
The remainder of the arrear amounts due to
the applicant relate to so-called “
expense
clauses
”, in terms of which the
applicant would make payment of expenses relating to B’s
medical and schooling needs, and then
claim such payment from the
first respondent by presenting him with a valid invoice or proof of
payment relating to the expense.
25.
In
Butchart
v
Butchart
,
[2]
a Full Bench of this court held that:
“
I
consequently come to the conclusion that a writ may be validly issued
based on an 'expenses clause' contained in a maintenance
order on
condition that the amount is easily ascertainable and is ascertained
in an affidavit filed on behalf of the judgment creditor.
”
26.
Before dealing with the prevailing law and
the application of the law to the facts herein, mention must be made
of the participation
of the second, third and fourth respondents in
these proceedings.
27.
In short, the second, third and fourth
respondents have all been cited as parties herein, as the applicant
was unsure as to which
one of the three of them was the “
fund
”
which was holding, or administering, the first respondent’s
pension benefits, which the applicant sought to attach
in order to
secure the payment of arrear maintenance.
28.
It can now be accepted that the third
respondent, the Discovery Retirement Annuity Fund, is the party
holding the first respondent’s
pension benefit, and against
whom a writ of execution should be issued.
29.
For the reasons which appear hereunder, I
do not propose dealing any further with any controversy surrounding
the entity against
which a writ of execution should be issued in
respect of the attachment of the first respondent’s pension
benefits.
30.
Turning now to the prevailing law.
31.
The applicant’s
claim for the payment of arrear maintenance falls within the ambit of
the m
aintenance
act,
which came into operation in 1999.
32.
The
preamble to the maintenance act accepts the need to introduce strong
measures to ensure that
maintenance
required
for children is paid by those persons obliged to do so. In this
instance, the first respondent’s obligation
to pay maintenance,
and his failure to do so are not in dispute.
33.
As
observed by Savage AJ (as she was then) in
JM
v
LM
and
Another
:
[3]
“
The
enforcement of court orders is a critical component of the exercise
of judicial authority. The unlawful and intentional disobedience of

a court order not only violates the dignity, repute or authority of
the court (S v Beyers
1968
(3) SA 70 (A)
per Steyn CJ) but also undermines the effect
of the order. Orders are enforced primarily, although not
exclusively, through
the issuance of a writ of execution in the high
court (a warrant in the magistrates' court) or by way of contempt
proceedings.
”
[4]
34.
Maintenance
orders
may
be
enforced
against
defaulters, in terms of section 26 of the maintenance act, by
execution against their property, by the attachment
of emoluments or
by the attachment of any debt. Section 26(4) provides that
“
notwithstanding
anything to the contrary contained in any law, any pension, annuity,
gratuity or compassionate allowance or other
similar benefit shall be
liable to be attached or subjected to execution under any
warrant of execution or any
order
issued
or made under this Chapter in
order
to
satisfy a
maintenance
order
.”
This application the applicant asks for a writ to be issued in order
that she may attach funds standing to the credit of
the first
respondent’s retirement annuity. This writ will then be used as
an instrument to attach the first respondent’s
retirement
annuity.
35.
Section 26 of the maintenance act must be
read together with
section
37A(1) of the Pension Funds Act 24 of 1956 (“
the
pension funds act
”),
which provides that:
“
Save
to the extent permitted by this Act, the Income Tax Act, 1962 (Act 58
of 1962), and the
Maintenance
Act,
1998
, no benefit provided for in the rules of a registered fund
(including an annuity purchased or to be purchased by the said fund
from an insurer for a member), or right to such benefit, or right in
respect of contributions made by or on behalf of a member,
shall,
notwithstanding anything to the contrary contained in the rules of
such a fund, be capable of being reduced, transferred
or
otherwise ceded, or of being pledged or hypothecated, or be liable to
be attached or subjected to any form of execution under
a judgment
or
order
of
a court of law. . . . Provided that the fund may pay any such benefit
or any benefit in pursuance of such contributions,
or part thereof,
to any one or more of the dependants of the member or beneficiary or
to a guardian or trustee for the benefit
of such dependant or
dependants during such period as it may determine.
”
36.
In
MV
v CV
[5]
,
the court held that
the
“
authorisation
of the issue of a warrant of execution is a very important step
in the issue of a warrant of execution. In these
days when many
parties in need of maintenance are left destitute, all methods of
execution at their disposal, unless expressly
excluded, should be
available to exact satisfaction of outstanding claims to maintenance.
The only jurisdictional prerequisites
are that:
1.
there
must be a valid maintenance order (even if subject to appeal);
2.
against
the respondent against whom the warrant is sought;
3.
which
creates obligations which have remained unsatisfied for a period of
ten days.
”
37.
Although this aspect is not directly
addressed in the papers, it is not disputed that these three
jurisdictional prerequisites have
been met.
38.
The procedure for obtaining and serving a writ in the
maintenance court is prescribed in
sections 27(1)
and (2) of the
maintenance act.
39.
Section 27(1)
of the maintenance act provides that
the maintenance court may, on the
application of a person referred to in
section 26(2)
(a)
,
authorise the issue of a warrant of execution against the movable
property of the person against whom the maintenance or

other order in question was made and, if the movable property is
insufficient to satisfy such order, then against the immovable

property of the latter person to the amount necessary to cover the
amount which the latter person has failed to pay, together with
any
interest thereon, as well as the costs of the execution.
40.
Section 27(2)
provides that a warrant of
execution authorised under
section 27
of the maintenance act shall
be:
40.1.1
prepared in the prescribed manner by the
person in whose favour the maintenance or other order in
question was made;
40.1.2
issued in the prescribed manner by the
clerk of the maintenance court; and
40.1.3
executed in the prescribed manner by the
sheriff or maintenance investigator.
41.
Section 27(2)(b)
provides that
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
warrant.
42.
Section 27(1)
of the maintenance act does not expressly refer
to the High Court’s power to issue a warrant of execution.
Reference is made
to “
the maintenance court
”
.
43.
Section 1
of the maintenance act defines a
“
maintenance court
”
to mean
“
a maintenance court
as contemplated in
section 3
”
of
the maintenance act.
44.
Section
3
of the maintenance act provides that “
every
magistrate's court for a district, established in terms of
section
2 (1) (e)
of the Magistrates' Courts Act, 1944 (
Act
32 of 1944
), is within its area of jurisdiction
a
maintenance
court
for the purposes of this Act
”.
A High Court is not a “
maintenance
court
”
as contemplated by the maintenance act.
45.
However,
in
Greenhill
v Discovery Preservation Pension Fund administered by: Discovery Life
Investments Services Ltd
,
,
[6]
Manoim J held that a warrant of execution may be issued by the High
Court and that section 26(4) of the maintenance act must be
given
this interpretation.
[7]
46.
Therefore, the applicant was entitled to
approach the High Court to issue a warrant of execution as
contemplated by the maintenance
act and the first respondent’s
insistence that she ought to have approached a maintenance court in
order to enforce the payment
of arrear maintenance is misplaced.
47.
Neither
section 27 of the maintenance act, nor the form prescribed for such
an application, makes provision for the application
for the
authorisation of the issue of a warrant of execution to be on notice
to the party against whom the maintenance order had
been made. It
appears competent for such an application to be made
ex
parte
.
[8]
48.
In this instance, the applicant did not
proceed on an
ex parte
basis, but rather brought a substantive application to have a warrant
of execution issued by this court.
49.
The question which then arises is whether a
dispute of fact exists on the papers, which precludes me from
granting the applicant
the relief which she seeks.
50.
The first respondent seems to contend that
disputes of fact exist regarding, in particular, the following
material aspects:
50.1.1
the quantum of the applicant’s claim
for arrear maintenance; and
50.1.2
an alleged variation of the maintenance
order, in terms of which the first respondent’s maintenance
obligation was reduced
by R2,000 per month.
51.
When dealing with the quantum of the
applicant’s claim for arrear maintenance, in his answering
affidavit, the first respondent
contented himself with a bald and
unsubstantiated denial, coupled with an equally bald allegation to
the effect that “
the annexures
”
(being a reference to the applicant’s quantification of the
arrear maintenance claim together with supporting vouchers)
referred
to in the applicant’s founding affidavit are not an accurate
reflection of “
the present alleged
indebtedness
”. Allegations of
this sort do not create a genuine dispute of fact.
52.
A
real dispute of fact does not arise in this instance where the first
respondent has lead no evidence himself to dispute the truth
of the
applicant’s statements, but merely relies on bare denials.
53.
As
held by the Supreme Court of Appeal in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
:
[9]
“
A
real, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports
to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course
be instances where
a bare denial meets the requirement because there is no other way
open to the disputing
party
and nothing more can therefore be expected of him. But even that may
not be sufficient if the fact averred lies purely within
the
knowledge of the averring party and no basis is laid for disputing
the veracity or accuracy of the averment.
”
54.
Insofar as the first respondent’s
contentions regarding the amendment of the maintenance order is
concerned, clause 16 of
the settlement agreement provides that same
is the entire agreement between the party and that no variational
cancellation would
be of any force or effect unless reduced to
writing and signed by the applicant and the first respondent.
55.
No variation of the settlement agreement,
as required by clause 16 thereof, is contended for, or relied upon,
by the first respondent.
56.
It
is settled law that any attempt to agree informally on a topic
covered by a non-variation clause, or to vary informally a contract

containing a non-variation clause must fail.
[10]
57.
In the circumstances, the first
respondent’s reliance upon an alleged variation of the
settlement agreement and the maintenance
order contemplated therein
must also fail.
58.
In
VDB v VDB,
[11]
Siwendu J held that:
[24]
Under s 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 warrant. 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 s 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 if the maintenance court
is
satisfied
that he or she has complied with the maintenance or other order in
question.'
[25]
The provisions of the
Maintenance Act do
not confer the right,
claimed by the applicant in casu, on 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. The
only redress I can discern afforded to the applicant is in
s 27(3)
as
aforesaid.
”
59.
In the circumstances, I make an order in
the following terms:
a.)
the registrar of this court is directed to
issue a writ of execution, in favour of the applicant, for the sum of
R1,004,772.36,
plus interest on this amount
a
tempore morae
, at the maximum rate of
interest permissible under the applicable laws, per annum, calculated
to date of final payment;
b.)
the first respondent is directed to pay the
cost of this application, the urgent application dated 12 May 2022
and the joinder application
dated 4 October 2022;
c.)
the sheriff is directed and authorised to
attach and execute against the retirement annuity and/or any other
pension or retirement
annuity of the first respondent held or
administered by the third respondent, in favour of the applicant for
the sum of R1,004,772.36,
plus interest on this amount
a
tempore morae
at the maximum rate of
interest permissible under the applicable laws, per annum, calculated
to date of final payment, the costs
of this application and the costs
of the execution of the order granted herein; and
d.)
insofar as the proceedings between the
applicant and the second, third and fourth respondents are concerned,
each party shall be
responsible for their own costs.
D Van Niekerk AJ
REPRESENTATIVES:
For the applicant:
Adv. C Gordon
Attorneys for the
applicant:
Holing Attorneys
For the respondent:
S Lg
Hearing date: 11
October 2023
Delivered: 26 October
2023
[1]
see, for example, Greenhill v Discovery Preservation Pension Fund
administered by: Discovery Life Investments Services Ltd
[2021] JOL
51735
(GJ)at [22]
[2]
1997
(4) SA 108 (W)
[3]
2014
(2) SA 403 (WCC)
[4]
at [14]
[5]
2014 (3) SA 1
(KZP) at [32]
[6]
[2021] JOL 51735 (GJ)
[7]
at [66]
[8]
MV v CV
supra
at [21]
[9]
2008 (3) SA 371
(SCA)
at [13]
[10]
See SA Sentrale Ko-op Graan mpy Bpk v Shifren 1964 (4) SA760 (A);
Brisley v Drotsky 2002 (4) SA1 (SCA) and Christie: The Law
of
Contract in South Africa 5
th
Edition at page 448.
[11]
2022
(5) SA 633
(GJ)