The Judical Officer - Dec 07 - Joasa.org.za

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46 Termination of maintenance orders in respect of minors Jaco van Niekerk Magistrate, Tembisa A question that is often raised in maintenance matters is: When does the maintenance order cease to operate? There appears to be dissent on this topic, both in academic circles and amongst some cases from the law reports. No doubt, if an order specifies until what age of a child the maintenance is payable, the order ceases to operate at that stage. Nothing prevents the variation of such an order, provided there is good reason to do so. The difficulty that is dealt with herein is where the order does not specify the duration of the order.
47 In the oft quoted case of Richter v Richter 1947 (2) 86 (W) at 90 of the report, it was declared that: “...the payment of maintenance is to cease when any child reaches the age of majority, or earlier if he or she begins to earn his or her own living.” The reason given by Price J for this, was that in relation to a parent’s guardianship over a child: “The money is ordered to be paid to the mother for the children; therefore, it follows that it is to be paid until the children pass out of her natural guardianship at the latest. It is true that there is a reciprocal obligation in certain circumstances for sons and daughters to support their parents, and vice versa, but this is under quite a different rule of law…and if such a claim were preferred against a father by a destitute major daughter it would have to be preferred by the daughter herself and not by the mother as her natural guardian…” In this case, the order to pay maintenance did not stipulate until when the payments are to be made. Of note are the remarks by Flemming J in Smit v Smit 1980 (3) SA 1010 (O) at 1017- 8 about the Richter case: “The duty which in Richter v Richter 1947 (3) SA 86 (W) was held to have terminated because the child had turned 21, was the obligation created by the order of Court and the conclusion was reached as a matter of interpretation of the order.” Flemming J disagreed with the argument that, as a matter of law, a duty to maintain terminates upon a child becoming a major. As regard to the coming to an end of a duty to maintain if a child earns an own living, it appears from the facts of the Richter case that the fact of being self-supportive at a specific date was not in dispute.
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The Judical Officer - Dec 07 - Joasa.org.za

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