How to Apply for a Maintenance Order Discharge in South Africa: Legal Process & Requirements

Section 6(1)(b) of the Maintenance Act 99 of 1998 (as amended) states the following:

“Whenever a complaint to the effect – 

(b)        that good cause exists for the substitution or discharge of a maintenance order. 

has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act.” 

This section affords parties a right to be able to approach the Maintenance Court at which a Maintenance Order was granted for a complete discharge of their obligations for maintenance against them. 

These are, amongst others, instances under which one may apply for a complete discharge of an existing maintenance order: 

• they have fully complied with their obligations under the maintenance order;
• the person to be maintained has attained majority and self-supporting;
• the person to be maintained has voluntarily dropped out of school.

In order for one to successfully apply for a discharge they must show that good cause exists for such an order to be discharged. 

What constitutes good cause? Professor JL van Zyl in Joubert (ed) The Law of South Africa vol 6 (first reissue) at 21a describes ‘good cause’ as follows:

“As far as the meaning of “good cause” (or sufficient reason”) is concerned, it is the view of the courts that a precise definition of the term is neither possible nor desirable, but that the particular circumstances of each case must be considered”.

The process is accordingly triggered and set out under Section 6 of the Act which provides for the institution of complaints for substitution or discharge on good cause shown. Once such complaint is lodged, a maintenance officer must investigate it in the manner prescribed in Sections 7, 8 and 9 of the Act. 

These sections set out a wide range of fact-finding powers, including the power to do what is necessary to trace any person against whom a complaint is made, or to call for information concerning the financial position of any person affected by the legal duty to pay maintenance. It is only once such an investigation is complete that the maintenance officer may institute a maintenance inquiry before a Magistrate. 

Therefore, in order to assist the maintenance officer and the Magistrate in assessing an application for a discharge of a Maintenance Order, it is important that the terms of the maintenance order as well as full financial disclosure be brought to the attention of the court. 

In the matter of L.D.B v J.S.B (A3079/2021) [2023] ZAGPJHC 786 the Appeal court considered an appeal of a Magistrate’s judgment where it discharged completely the respondent’s maintenance obligations. The parties during their divorce had concluded a settlement agreement which contained provision for spousal maintenance as well as under what circumstances that agreement may be varied. 

The court aquo erroneously granted the discharge order on the basis that the respondent’s financial circumstances had changed, completely disregarding the terms of the settlement agreement. The Appeal court therefore overturned the Court aquo’s judgement on the basis that good cause was not established. Further that the parties had already agreed by way of settlement under which conditions the settlement agreement may be varied, and it did not even deal with the terms in order to identify whether there was indeed good cause to depart from the terms. It remarked that at the very least the court could have suspended the respondent’s obligations until his finances have improved, instead of discharging the obligation completely. 

This case therefore reflects the importance of ensuring that settlement agreements that contain maintenance provisions should clearly set out the circumstances under which same will be deemed to have been complied with in full as well as when same may be discharged on good cause.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.