Discovery ordered to pay child maintenance from father’s pension fund after he fell into arrears

Discovery offices in Cape Town. Picture: Armand Hough/Independent Newspapers

Discovery offices in Cape Town. Picture: Armand Hough/Independent Newspapers

Published Feb 7, 2024


The Western Cape High Court has ordered Discovery Limited to dip into a client’s retirement funds and settle his child maintenance after defaulting on payments to the tune of about R30,000 for at least two months.

This comes after the mother approached the court after the father failed to pay maintenance for their three children as ordered by the court.

The wife instituted divorce against the husband in September 2022, their divorce is still pending.

In October 2023, the man was ordered to pay R18,000 towards maintenance and the first payment was to be effected on November 1, 2023.

However, he failed to make the payment.

Two weeks later, the wife went back to court and filed a contempt application against the husband for non-payment.

On November 28, the former couple ultimately settled the contempt application, and reached an agreement that he will pay R3,000 in respect of the arrears, he will pay R25,000 for rent including arrears, and he will also pay R3,250 in respect of occupational therapy fees for one of their child.

The payments were never made, instead, he launched an application in December seeking a reduction on the amount.

In his application, he stated that he could not afford the payments as the company he works for has been placed under liquidation.

Before his application could be heard, the wife filed an urgent application seeking an order which will compel his insurer, Discovery Limited, to dip into his retirement fund.

Judge Noluthando Nziweni said by law, it was only fair to hear the wife’s application as the payment of maintenance remained unsatisfied for more than 10 days since it was first issued.

Judge Nziweni said the husband might not be in a position to financially to meet his maintenance obligations. However, his wife argued that there are other means to satisfy the payment by taking a portion from his retirement fund.

The judge said it can’t be ignored that the husband was a defaulter.

“At the time of this hearing the first respondent’s (husband) arrear maintenance was in excess of two months. There is no evidence that the first respondent ever actually or attempted to pay his maintenance obligation,” she said.

Moreover, the judge held that the wife and children had a right to do everything to make sure they receive what they are rightly due.

As a result, the judge ordered Discovery to transfer R29,500 to the wife’s account. The amount is to be paid with interest calculated from the day the husband defaulted.

This will be a once off payment as the husband still has a pending application regarding the reduction of maintenance.

The husband was ordered to pay costs of the application.