Abstract

Notwithstanding the court order incorporating the deed of settlement underlying the parties’ divorce in 1993, the debtor neglected to perform for more than 25 years. In all those years the claimant never approached the maintenance court to compel the defaulter to pay the maintenance due. Only after more than 27 years of silence did she claim maintenance and simultaneously lay claim to the sum of all the unpaid maintenance (R3,5 million). The respondent’s defence of extinctive prescription was unsuccessful. The debt is a judgment debt as defined in section 11(a) of the Prescription Act 68 of 1969 and the period of prescription in this respect is 30 years. In the judgment the question whether the underlying principles governing the exceptional claim for maintenance of an erstwhile spouse after their divorce were continuously met during the past more than 25 years was not touched on. For all those years the claimant managed to maintain herself and the children from the marriage without the allotted maintenance from the debtor. She never felt the compelling need to approach the maintenance court for the statutory help contained in the act to compel the defaulter to provide the alleged much-needed maintenance. It is submitted that the first requirement for a maintenance claim is objective need of the claimant, who alleged that she would not be able to maintain herself and be self-sufficient. She consequently needed the maintenance claimed. If she happened to be self-sufficient for more than 25 years, this primary requirement may not be met. In that case it would not even be necessary for the respondent to plead and prove that he was not in a position to provide the claimed maintenance – the second requirement for a maintenance claim. The claim is unfounded whenever either one of the two fundamental requirements is not met. The respondent may plead that the reasonable person in his position would also have been misled by the continuous conduct of the claimant, leaving the impression that the allotted maintenance was not really needed and the claim practically waived. Estoppel as defence is founded on a representation contained in either a commissio or an omissio of the claimant. Where a person (the representor) by his/ her words or conduct makes a representation to another person (the representee) and the latter, believing in the truth of the representation, acts thereon and would suffer prejudice if the representor were permitted to deny the truth of the representation made by him/her, the representor may be estopped – that is, precluded – from denying the truth of his representation. Blind reliance on estoppel as the equitable panacea for all unfair consequences of the estoppel assertor’s own naivety, without any regard for the requirements of this defence, is ill-advised. In the case at hand it is submitted that the debtor acted to his detriment, because relying on the representation, he was lured into the belief that it was not necessary to approach the maintenance court for a review of the original maintenance order, although the apparent self-sufficiency of the claimant points to the fact that the first requirement for a maintenance claim may not be met. In comparable Continental jurisdictions, it is accepted that it would be unfair to compel the debtor in these circumstances to perform and pay the sum of the maintenance of R3,5 million as a lump sum. Not only will it most probably drive the debtor into insolvency, but also, maintenance payable for an erstwhile spouse is by definition not meant to enhance the recipient’s savings or estate but to lighten the periodic maintenance needs of the claimant. If the claimant, for example, misappropriated any amount paid towards maintenance and utilised it as down payment on a luxury vehicle, she should not succeed in court with another maintenance claim.