Swemmer & Levin

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Many of us are still recovering from the harsh effects of the Covid-19 pandemic. Some of us are faced with the issue of not being able to meet our financial obligations. One such obligation could be a maintenance order. South African law, imposes harsh sanctions on maintenance debtors who fail to adhere to their maintenance obligations. Therefore, If you ever find yourself in a position where you are no longer able to meet your maintenance obligations, it is imperative to use the avenues available to you in terms of the law.

It so often occurs that the financial circumstances of the party responsible for paying maintenance may change and resultantly the party may no longer be able to meet his or her maintenance obligations in terms of the maintenance order. Section 31 of the Maintenance Act renders any failure to comply with a maintenance order a criminal offence punishable by up to 3 years of imprisonment. It is, therefore, imperative for a person who is no longer able to afford to pay maintenance to use the avenues available to him or her in terms of the law.

Substitution or Discharge of a Maintenance Order

The Maintenance Act confers on Maintenance Courts the power to vary or discharge maintenance orders including maintenance orders made by the High Court.

Spousal Maintenance

In terms of section 8 of the Divorce Act, a maintenance order may be rescinded, varied or suspended if there exists  ‘sufficient reason’ to do so. This could also be read together with section 6 of the Maintenance Act which provides that a maintenance order can be substituted or discharged if ‘good cause’ is shown. South African courts have accepted the view that it is not possible to give a precise definition to the term ‘sufficient reason’ (good cause) and that the circumstances of each case must be considered.

In the case of Havenga v Havenga Harms J held that, in general, in the absence of a real change in circumstances there would not be sufficient reason for the variation or rescission of a maintenance order. However, a change in circumstances is not a statutory requirement and there might be any other sufficient reason for a maintenance order to be varied.

In light of the above-mentioned, it stands to reason that a change in one’s financial circumstances can be a factor to consider whether sufficient reason (good cause) exists for one to obtain a reduction in spousal maintenance.

Child Maintenance

It is important to distinguish the variation of maintenance orders in respect of child maintenance from the variation of maintenance orders in respect of spousal maintenance. The duty to maintain a child derives from common law and not from the statute. In addition to good cause, the court will also consider whether it will be detrimental to the child’s best interest if the court grants an order for the reduction of maintenance. In Hossack v Hossack the court held that the needs of the minor children and the ability of the maintenance debtor to pay constitute ‘good cause’ for a variation.  Furthermore, in Vedovato v Vedevato the court emphasised that once ‘good cause’ is shown, the factors that then primarily need to be considered are the needs of the children.

In light of the above, it is evident that our law does provide for an avenue that a  maintenance debtor who can no longer afford to pay maintenance could pursue. In respect of spousal maintenance, the maintenance debtor will have to prove that sufficient reason (good cause) exists to be successful with a variation of maintenance order. In respect of child maintenance, the maintenance debtor, will in addition to proving sufficient reason (good cause), also have to prove that it will not be detrimental to the child’s best interests if a reduction in maintenance is granted.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.