Turton v Turton and Another (6566/06) [2012] ZAWCHC 2; 2012 (2) SA 623 (WCC) (2 February 2012)

Turton v Turton and Another (6566/06) [2012] ZAWCHC 2; 2012 (2) SA 623 (WCC) (2 February 2012)

The court held that the substitution of a high court maintenance order by a maintenance court order under section 16(1)(b) of the Maintenance Act does not retrospectively extinguish the right to enforce payment of arrear maintenance accrued prior to the substitution unless the new order expressly provides for such effect. The statutory language indicates that the original order ceases to be of force and effect only from the moment of substitution, not ab initio. The enforcement of arrears must be pursued under the procedures set out in chapter 5 of the Maintenance Act, which now applies to high court maintenance orders following the 2003 amendment. The applicant failed to establish the...

Citation
[2012] ZAWCHC 2
Parties
Applicant: Peter John Turton; Respondent: Lorraine Janet Turton; Respondent: Sheriff of the High Court, Strand
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 February 2012
Case Number
6566/06
Procedural Posture
Civil Application / Application to Set Aside Writ of Execution Following Maintenance Court Substitution Order
Outcome
The application to set aside the writ of execution is granted. The applicant's claim of compromise is rejected. Each party is to bear their own costs.
Judges
Binns-Ward
Legal Topics
Maintenance Orders, Enforcement of Judgments, Maintenance Act 1998, Writ of Execution, Compromise Agreement
Family and Children Civil Procedure Maintenance Orders Enforcement of Judgments Maintenance Act 1998 Writ of Execution Compromise Agreement

Case Brief

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Parties

Peter John Turton

Applicant

Lorraine Janet Turton

Respondent

Sheriff of the High Court, Strand

Respondent

Procedural Posture

Civil Application / Application to Set Aside Writ of Execution Following Maintenance Court Substitution Order

Legal Issues

  1. 1 Does a maintenance court order substituting a high court maintenance order extinguish the right to enforce arrear maintenance accrued under the original order prior to substitution?
  2. 2 Is the writ of execution issued by the registrar of the high court competent following the maintenance court's substitution order?
  3. 3 Did the parties reach a compromise agreement extinguishing the applicant's liability for arrear maintenance?

Ratio Decidendi

The court held that the substitution of a high court maintenance order by a maintenance court order under section 16(1)(b) of the Maintenance Act does not retrospectively extinguish the right to enforce payment of arrear maintenance accrued prior to the substitution unless the new order expressly provides for such effect. The statutory language indicates that the original order ceases to be of force and effect only from the moment of substitution, not ab initio. The enforcement of arrears must be pursued under the procedures set out in chapter 5 of the Maintenance Act, which now applies to high court maintenance orders following the 2003 amendment. The applicant failed to establish the...

Court Disposition

The application to set aside the writ of execution is granted. The applicant's claim of compromise is rejected. Each party is to bear their own costs.

Orders

  • The warrant of execution dated 15 September 2010, issued by the Registrar on 22 January 2011 in case no. 6566/2006, is set aside.
  • It is declared that the first respondent may, if so advised, apply to the maintenance court in terms of section 26(2) of the Maintenance Act, 1998, for authorisation of a writ of execution referred to in section 27(1) of the said Act in respect of the arrears owed in terms of the High Court maintenance order in case...