PVL 2601 Assingment 1 EXPLAINED WITH EXAMPLES SOLUTIONS {SEMESTER 2 :YEAR 2022}

PVL 2601 Assingment 1 EXPLAINED WITH
EXAMPLES SOLUTIONS {SEMESTER 2 :YEAR
2022} 90 % +




PVL 2601

ASSINGMENT 1

SEMESTER 2

2020




Question 1

a. The two civil sanctions that are available to Mrs Tau to enforce the maintenance
order in her and the boys’ favour in the specific circumstances of this case are;


I. A warrant (writ) of execution against the maintenance debtor’s property.
II. An order for the attachment of emoluments due to the maintenance debtor.
b. It is unclear whether the maintenance creditor may elect to approach the High
Court for a writ of execution instead of using the procedure provided for by the
Maintenance Act. Two single judges in the Western Cape Division of the High
Court, Cape Town have delivered conflicting judgments in this regard. In PT v LT,
Binns-Ward J held that civil enforcement of a maintenance order made by any
court in South Africa must occur in terms of the Maintenance Act. He further held
tha.t since the section of the A.ct which governs civil enforcement of ma.intena.nce
orders no longer specifies tha.t it a.pplies only to orders ma.de under the
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, Ma.intena.nce A.ct, the intention of the legisla.ture must ha.ve been tha.t the
provision should a.pply to a.ll ma.intena.nce orders rega.rdless of the court from
which they origina.te. Therefore, Binns-Wa.rd J concluded tha.t the Registra.r of
the High Court ma.y no longer issue writs of execution in respect of enforcement
of ma.intena.nce orders.


However, in JM v LM, Sa.va.ge A.J disa.greed with the finding in PT v LT. Sa.va.ge
A.J held tha.t the fa.ct tha.t a. pa.rty ma.y a.pproa.ch the Ma.intena.nce Court to enforce
a. ma.intena.nce order ma.de by the High Court does not necessa.rily imply tha.t
the High Court ma.y not a.lso enforce its own ma.intena.nce orders. A.s there is
no clea.r inconsistency between the provisions of the Superior Courts A.ct 10 of
2013 a.nd the Ma.intena.nce A.ct a.s to enforcement, a. pa.rty who wa.nts to
enforce a. ma.intena.nce order ma.de by the High Court ma.y choose whether to
proceed in the High Court or the Ma.intena.nce Court. The finding in JM v LM is in
keeping with the ea.rlier decision of Va.n Oosten J in Thomson v Thomson where
it wa.s held tha.t the Ma.intena.nce A.ct does not preclude a. pa.rty from issuing a.
writ of execution out of the High Court for fa.ilure to pa.y ma.intena.nce a.nd tha.t
a. pa.rty ma.y a.pproa.ch the High Court for enforcement of its ma.intena.nce
order. It is submitted tha.t Thomson a.nd JM v LM a.re prefera.ble to PT v LT. A.s
neither the Ma.intena.nce A.ct nor the Superior Courts A.ct excludes the High
Court’s power to issue writs of execution for fa.ilure to comply with its
ma.intena.nce orders, there is no rea.son to restrict its power in this wa.y, nor is
there a.ny rea.son to restrict pa.rties’ options in enforcing ma.intena.nce orders
ma.de by the High Court.


c. Yes, a.s fa.r a.s ma.intena.nce for children is concerned, our courts ha.ve held tha.t
they ha.ve a. duty in terms of section 28(2) of the Constitution to protect the best
interests of children of ma.intena.nce debtors who a.re likely to shirk their future
ma.intena.nce responsibilities a.nd tha.t the High Court is therefore empowered to
order enforcement by wa.y of remedies tha.t fa.ll outside the a.mbit of the
Ma.intena.nce A.ct. The courts ha.ve specifica.lly cited the Constitutiona.l Court’s
decisions in Ba.nna.tyne v Ba.nna.tyne a.nd Fose v Minister of Sa.fety a.nd
Security in support of extension of the enforcement of a. ma.intena.nce debtor’s
obliga.tions towa.rds his or her children. In Fose the Constitutiona.l Court
empha.sized the courts’ duty to ensure tha.t effective relief is gra.nted for the