See the reportable case of McWilliams v McWilliams and 2 others in which the court found that a cost contribution awarded in Rule 43 proceedings constitute maintenance. As a result thereof, the exception created by section 37D(1)(d)(iA) of the Pension Funds Act to allow for a deduction in terms of a maintenance order would also apply to cost contributions awarded in favour of a party in Rule 43 proceedings
A summary of the judgment handed down in McWilliams v McWilliams and 2 others
In a recent judgement passed down by the Eastern Cape Division of the High Court, clarity was brought to the narrow question of whether a costs contribution in terms of Rule 43(1)(b) would constitute maintenance.
In the matter between McWilliams v McWilliams and 2 others the Applicant approached the court for relief due to the First Respondent’s non-compliance of an order in terms of Rule 43, granted in the Applicant’s favour. The order was granted after agreement was reached between the parties and directed the First Respondent to make certain payments in respect of the living expenses incurred by the Applicant and the parties’ major dependent children, and further included a costs contribution order, in the amount of R 1 000 000.00 (ONE MILLION RAND). The order allowed the Applicant to compel compliance with the pendente lite maintenance order and to recover the arrears in respect thereof from the annuity funds of the First Respondent, as is specifically permitted by section 26(4) of the Maintenance Act 99 of 1998, read with section 1, read with section 37D(1)(d) of the Pensions Fund Act 24 of 1956.
The Applicant approached the court with an application to seek compliance with the Rule 43 order from annuity funds and member’s benefits held by the Old Mutual Wealth Retirement Annuity Fund and administered by the Old Mutual Investment Service (Pty) Ltd. The Applicant also sought satisfaction of the cost contribution order from the annuity funds.
The parties disagreed as to whether an order to contribute to legal costs in terms of Rule 43 constitutes maintenance and whether it could be satisfied from annuity funds.
The Applicant submitted that any order in terms of Rule 43 is an order for maintenance. This contention was supported referencing Thomson v Thomson where Eloff JP held that an order in terms of Rule 43 falls squarely within the definition of a maintenance order as defined by the Maintenance Act.
The Applicant’s argument was that all mechanisms of enforcement available in terms of the Maintenance Act applied to the enforcement of Rule 43 orders. Section 26(4) of the Maintenance Act permits the attachment of an annuity to satisfy a maintenance order and the Applicant therefore submitted that the cost contribution order made in terms of Rule 43 may be satisfied by attaching the annuity.
The Respondent contended that the Pension Funds Act regulates the circumstances under which pension fund benefits may be attached and it was argued that the exception created by section 37D(1)(d)(iA) of the Pension Funds Act to allow a deduction in terms of a maintenance order is limited to an order for payment of living expenses. The Respondent further submitted that the effect of finding that a costs contribution order may be satisfied from the pension funds could deplete the funds completely, which would be contrary to the protection of pension funds that the Pension Funds Act envisions.
The Respondent relied on the textual difference between “maintenance pendente lite” (Rule 43(1)(a)) and “a contribution towards costs of a pending matrimonial matter” (Rule 43(1)(b)) and argued that there would not have been a need to distinguish the different subrules if a costs contribution order were viewed as maintenance. The Respondent further relied on the allowances provided for in Rule 43(6), in terms whereof a variation in respect of maintenance, care and contact is allowed, however, an increase in a costs contribution order is only permitted when warranted. This fact, in the First Respondent’s view, confirmed that such an order is something other than one of maintenance.
Krüger AJ submitted that in order to determine whether a costs contribution order is an order for maintenance, it would be useful to consider its basis and origin.
Erasmus (Superior Court Practice (2020)) contends that a contribution towards costs in terms of Rule 43(1)(b) is based on the duty of support that spouses owe each other. This is further corroborated by Sinclair, in her monograph on the law of marriage, in which she states that the duty of support includes the cost of legal proceedings.
Krüger AJ held that the reciprocal duty of spouses to support or maintain one another underpins the orders granted in terms of Rule 43(1)(a) and (b) and an order in terms of either subrule is an order of one spouse to maintain the other. It was further held that the differences relied on by the Respondent does not change the nature and basis of a costs contribution order. The costs contribution order is made because the Applicant has demonstrated the need for the order and because of the existence of spouses to maintain one another. Krüger AJ held that to deny the Applicant the relief sought would deprive her of the maintenance granted.
Krüger AJ granted an order declaring that the costs contribution order made in favour of the Applicant constitutes maintenance and further that the Applicant is entitled to satisfaction of the maintenance order from the annuity funds. The Respondent was further directed to pay the Applicant’s costs.
