Owed child maintenance? A court just froze a dad's R426,000 pension

The Free State High Court in Bloemfontein has stopped the Government Employees Pension Fund (GEPF) from paying R426,000 of a father's pension to him until a maintenance case over his two children is finished (Sowetan, The Citizen).

Judge Johannes Daffue said the Maintenance Act and the Pension Funds Act "are now working together in tandem" to give relief against parents who refuse to pay (The Citizen). The ruling is a reminder that a pension payout is not out of reach when maintenance goes unpaid.

What did the court order?

The mother asked the court to hold back R607,400. The judge found that figure was not properly justified and froze R426,000 instead (Sowetan).

Sources: Sowetan, The Citizen.

The order stands until the Bloemfontein maintenance court finalises the case. The judge also said there was "no reason" the fund should not pay the R160,000 and R66,000 to the mother straight away, and asked the maintenance court to speed up its process (The Citizen).

Why did it get this far?

The parents are not named in reports. The father worked as a prosecutor at the National Prosecuting Authority until his contract ended in 2022 (The Citizen). A 2020 order set maintenance at R1,500 per child a month plus school fees, clothing and medical costs, and the court accepted uncontested evidence that he did not pay (The Citizen).

Two later maintenance court orders directed the GEPF to pay the mother R160,000 and then R66,000. Neither was paid (The Citizen). The father argued he could not pay because the fund had held back his pension during the litigation, and that the mother already got half his pension in the divorce. The judge rejected both arguments, saying he had not set out his income and expenses and that the two maintenance amounts were separate and still unpaid (The Citizen, Sowetan).

Can a pension really be used to pay maintenance?

Yes. Pension benefits are normally protected from creditors under section 37A of the Pension Funds Act, but that protection does not apply to deductions the Maintenance Act allows (Fasken). Section 37D also lets a fund deduct amounts owed under a maintenance order (Fasken).

Section 26(4) of the Maintenance Act says any pension, annuity, gratuity or similar benefit can be attached to satisfy a maintenance order, despite any other law (Maintenance Act, section 26). Courts have also allowed pension money to be held back to secure future maintenance, not only arrears, where a parent has a history of not paying (Fasken).

What can you do if maintenance is not being paid?

The Maintenance Act sets out these options once a payment is missed (Maintenance Act, section 26):

• If an amount has gone unpaid for 10 days, the person the order favours can apply to the maintenance court where they live.
• The court can authorise a warrant to attach property, an order to deduct money from the defaulter's salary, or an order to attach money owed to them, which can include a pension benefit.
• The application needs a copy of the maintenance order and a sworn statement of how much is owed.
• Once granted, the defaulter's details can be sent to credit bureaus (Maintenance Act, section 26).

Start at the maintenance office at your local magistrate's court. The Department of Justice's maintenance page lists who can apply and the documents you need.