MAINTENANCE DEFAULTERS

By Susan Abro

Before we can talk about maintenancedefaulters, obviously, we need to know why oneneeds maintenance.

Well, one needs maintenance because of theselittle bodies.

Maintenance in South Africa isgoverned by the Maintenance Act 99 of1998, as amended.

When one has regard to the definitions of theAct, the word maintenance is not described,various other words including the wordmaintenance are described, one of which is theword “Maintenance Order”.

MAINTENANCE ORDERS

“Maintenance Order” means “any order for thepayment, including the periodical payment, of sumsof money towards the maintenance of any personissued by any court in the republic, and includes,except for the purposes of Section 31, any sentencesuspended on condition that the convicted personmake payments of sums of money towards themaintenance of any other person;”

I do not propose to deal with what maintenance is,as most of you here are practitioners or academics,of one sort or another, and probably know, or shouldknow, what maintenance is and the reason for it.

I do, however, draw your attention to Circular No.7 of 2012 from the Head Office File 13 / 2 / 1 ofthe Department of Justice and ConstitutionalDevelopment and the heading of that is :-

Directives by the Maintenance Officer:Regulation 3(1)(a) and 3(2)(a) which, as aconsequence of the un-reported judgmentdelivered by Mr Justice Meyer at the SouthGauteng High Court on 2 December 2011 in aReview Application:

ROBERT J ISLEY VS LECHOBA, AB MAGISTRATE:CASE NO. 50748/2010, the Department ofJustice and Constitutional Development hasattempted to resolve a number of irregularpractices which are apparently being undertakenby maintenance officers concerning theapplication of the provisions of Sections 6, 9 and10 of the Maintenance Act (No. 99 of 1998) (“theMaintenance Act”) as well as Regulation 3relating to maintenance.

The gist of it is that:

1. Some maintenance officers do not investigatethe complaint, as required by the provisions ofSections 6(1) of the Act, and this, therefore,makes the issuing and service of a subpoenabefore the complaint is investigated by themaintenance officer, a serious irregularity,“must be avoided at all costs”.

2. “After investigating the complaint, themaintenance officer may institute an enquiryin the maintenance court…”.

3. The provisions of Regulation 3(1) prescribethat, in order to secure the attendance ofthe parties to the investigations, (previouslyreferred to as an informal enquiry), aDirective “may be given in a manner themaintenance officer deems fit”.

Accordingly, maintenance officers are nolonger permitted to use the subpoena(J130) in lieu of the Directive, wheneverthey call a person for investigationpurposes.

4. Section 9(1)(a) of the Maintenance Actauthorizes the maintenance officer to causewitnesses to be subpoenaed only when he /she has made a decision to institute anenquiry in terms of Section 10 of the Act.

This is the time when the subpoena (J130)must be issued.

So, the distinction is between appearingbefore a maintenance officer for aninvestigation, which needs a Directive, andappearing before the Maintenance Courtwhich requires the J130 subpoena, to giveevidence.

5. The Maintenance Act, therefore, does notprescribe a form or a particular manner inwhich the Directive may be given.

It is further stated in the Directive that casesare different, and therefore, ought to betreated differently (???).

6. The maintenance officer is also required tokeep a record of the manner in which theDirective was given.

So, it looks like the process will now becomeeven more “user-unfriendly”, and take muchlonger!

I now turn to the issue of maintenance default.

I do not intend to read these Sections out to you as youare all capable of reading yourselves, and my paper isavailable.

However, the issue which we are concerned with is Section31(1) which reads:

“Subject to the Provisions of sub-section (2), any personwho fails to make any particular payment in accordancewith a maintenance order shall be guilty of an offence andliable on conviction to a fine or to imprisonment for aperiod not exceeding one year or to such imprisonmentwithout the option of a fine.”

So, if you are found guilty of an offence in termsof Chapter 6, then the court may, on theapplication of the public prosecutor, and inaddition to, or in lieu of any penalty which thecourt may impose in respect of that offence,grant an order for the recovery from theconvicted person of any amount he or she hasfailed to pay in accordance with the maintenanceorder, together with any interest thereon,whereupon the order so granted shall have theeffect of a civil judgment of the court.

The court may also order the issue of a Warrantof Execution against the movable or immovableproperty of the convicted person, andinterestingly enough, notwithstanding anythingto the contrary contained in any law, anypension, annuity, gratuity or compassionateallowance or other similar benefits shall be liableto be attached or subjected to execution underan order granted under this section.

The proceedings may also be converted from criminalproceedings into a maintenance enquiry, which is whatusually happens, as maintenance officers / prosecutors /magistrates are reluctant to sentence persons subjectconvicted of defaulting on a maintenance order, to jail,one of the reasons being that the person is thenincapable of earning an income, however, the solutionto that, is to sentence the person to periodicalimprisonment so that such a person, who does not feelthe need to pay maintenance, understands what it is like

to serve prison time.

You may have gathered from my paper thus far, I amnot sympathetic towards maintenance defaulters!

Another manner of securing the payment ofmaintenance by the defaulting party is to order thatparty is to make payment of the maintenanceamounts into court, on a monthly basis.

However, this does not inconvenience themaintenance defaulter, it inconveniences theperson to whom the maintenance is paid as he /she is then required to attend at court on amonthly basis, stand in queues in the cash hall,and uplift the payment.

A further method of securing payment ofmaintenance, which is usually only granted after aperson paying the maintenance defaults, despite thefact that it is the easiest manner for the personreceiving the maintenance to be paid, is anEmoluments Attachment Order, which is a processwhereby the monthly maintenance amount is paiddirectly by the employer from the maintenancedefaulter’s salary or wages, to the person receivingthe maintenance.

Courts are, again, reluctant to grant these unlessthere has been a pattern of default.

Another method of attaching the maintenancearrears which have not been paid, is to, if theperson receiving the maintenance is able toascertain such, attach a garnishee, that is, a debtowed by a third party to the maintenancedefaulter.

Obviously, both of these procedures requireseparate applications to court, which usuallyrequires legal representation, the costs of which,in toto, are not recoverable, again prejudicing theperson receiving the maintenance.

The name of the maintenance defaulter may alsobe notified to the relevant credit bureaus, and,even if the maintenance defaulter isunemployed, he/she is still legally obliged to paymaintenance, although the amount is changedaccording to the person’s means.

If a person proves that he/she has no means topay maintenance, and that it is not due tounwillingness to work or wrong-doing onhis/her behalf, then the court will notenforce a maintenance order.

Where a maintenance defaulter has moved toanother jurisdiction / country after amaintenance order has been issued in SouthAfrica, if the maintenance defaulter lives in a“proclaimed country”, a list of which is attachedto the Act, then one is able to proceed in termsof the Reciprocal Enforcement of ForeignMaintenance Orders Act, Act No. 80 of 1963.

This is a long and arduous procedure and usuallytakes months, if not years, to enforce.

A maintenance order that has been issued in aforeign country can be enforced in South Africa ifit is from one of the proclaimed countries and itmust first be registered by a Maintenance Courtin South Africa.

There are some interesting cases in theMaintenance Court arena, inter alia:

Nadena Bannatyne v Laurie Noël Bannatyne, as Respondent, Commissioner for Gender Equalityas amicus curiae

heard by the Constitutional Court of South Africa on 7 November 2002 and decided on 20 December 2002

under case number CCT18/02.

The judgment is by Mokgoro J and concerns the responsibility of the judiciary to ensure that maintenance orders are observed.

The High Court had made an order at the instance of the

Applicant, committing the Respondent, Mr Laurie Noël

Bannatyne, to prison for Contempt of a Maintenance

Court Order. On appeal to the Supreme Court of

Appeal, that Contempt Order was set aside.

The Applicant applied for Special Leave to Appeal to the

Constitutional Court on the basis that, in its finding

regarding when a High Court is competent to make an

Order for Contempt, the Supreme Court of Appeal failed

to take into consideration and give due weight to

Section 28(2) of the Constitution, which requires that

the best interests of the child be given paramountcy in

all matters affecting children.

The parties were directed to deal with thefollowing issues :-

“(a) Whether the issue concerning the HighCourt’s jurisdiction to make an ordercommitting the respondent for contemptof court on the grounds of his failure tocomply with a maintenance ordermade by the Magistrate’s Court is withinthe jurisdiction of the ConstitutionalCourt; and if it is,

(b) Whether, in the light of the provisions ofsection 28(2) of the Constitution, or any otherprovision of the Constitution, the questionwhether the High Court should or should nothave made an Order in the circumstances ofthe present case, raises a constitutionalmatter, or an issue connected with a decisionon a constitutional matter; and if so

(c) Whether, in the circumstances of the presentcase, such an order ought to have been madeby the High Court; and if so,

(d) Whether the Supreme Court of Appeal erredin setting aside the Order that had been made.”

The Commission for Gender Equality wasadmitted as amicus curiae and lodged empiricaldata on the state of the maintenance system inSouth Africa and its effects on the rights ofwomen and children in seeking effective reliefpursuant to the Maintenance Act.

The Court goes on to discuss the various relevantlegal provisions, the factual background, thehearing in the High Court, and the hearing in theSupreme Court of Appeal.

It then considered the above issues anddiscussed the High Court’s inherent jurisdictionand whether or not it should exercise suchinherent jurisdiction.

And the conclusion by the Constitutional Courtwas:

1. The Application for Special Leave to Appealis granted.

2. The Appeal is upheld.

3. The Order made by the Supreme Court ofAppeal is set aside.

4. In place of paragraphs 2.2 and 2.3 of the Ordermade by Roux J in, the following order wasmade :-

“All matters pertaining to the payment ofmaintenance subsequent to February 2001 andto any arrear maintenance that may be dueand payable, and all matters related to thedispute between the Applicant and theRespondent concerning the payment ofmaintenance are referred to the maintenancecourt having jurisdiction for its determination.”

5. The Respondent was Ordered to pay thecosts of the Supreme Court of Appeal andConstitutional Court matter.

6. A copy of the judgment was referred to theattention of the maintenance officerdealing with the dispute between theparties.

The impact of this judgment was:

1. The High Court may successfully beapproached to enforce a MaintenanceOrder issued in the Maintenance Courtwhen there are difficulties in enforcing theOrder effectively in the Court that issued it;

2. The Constitutional Court acknowledges that,due to logistical problems which arecompounded by the gendered nature of themaintenance system, the system is currentlyineffective in enforcing Maintenance Orders;

3. A Court will be guided by the best interests of the child in enforcing maintenance responsibilities.

Very nice, on paper!

How many applicants can afford that kind of legal representation?

Other interesting judgments include :-

Mngadi v Beacon Sweets and ChocolatesProvident Fund and Others

2004 (5) SA 388 (D); [2003] All SA 279 (D).

In this matter, the Durban High Court upheld anapplication to Order a former employer of afather who had previously defaulted onmaintenance payments, to retain his providentfund withdrawal benefits as a provision forpayment of future maintenance.

The Court further held that the extension of legalprinciples relating to safe-guarding the duty ofsupport was in accordance with theconstitutional protection of the rights of womenand children.

The Court granted a Declaratory Order requiringthe provident fund to retain a lump sum tosecure future payments of the member’smaintenance obligations.

This procedure is only available through the HighCourt at present and, therefore, the Magistrate’sCourt cannot offer the same relief.

Obviously, an important judgment nonetheless.

The same issues / concerns apply with regard tothe applicant being able to afford adequate legalrepresentation.

The next matter is :-

Winston David Emmerson, Applicant, and Cheryl

Louise Emmerson, Respondent,

held in the Eastern Cape High Court under case

number 001/2004,

Where the issue of estoppel was discussed in a

failure to pay maintenance case.

This was an Application for Leave to Appeal,heard before Plasket J, against a judgment inwhich he dismissed the urgent application of theApplicant for an Order staying a Writ of Executionand directing that a vehicle attached pursuant tothe Writ be returned to the Applicant.

The central issue was whether the Applicant wasentitled to cease paying maintenance when theminor child attained the age of majority.

The issues were:-

Firstly, the issue of the duty of support owed to a childwho attained the age of majority, where the learnedjudge held that the duty of support owed by theApplicant to the minor child did not end when the minorchild attained the age of majority, but persisted until theminor child was self-sufficient.

Secondly, it was averred that the Applicant’s acquittal bya magistrate on a charge of failing to pay maintenance,had the effect of rendering the obligation to paymaintenance as provided for in the deed of settlementbetween the parties, a nullity.

The first issue was dismissed out of hand and theCourt referred to Bursey v Bursey.

The second ground was considered by theLearned Judge, and he held that the criminalproceedings were not, did not purport to be, andcould not have been, an enquiry as contemplatedby Section 16(1) of the Maintenance Act.

The proceedings took place in a Magistrate’sCourt, and not in a Maintenance Court, asdefined in Section 3 of the Maintenance Act.

The criminal proceedings were not convertedinto an enquiry in terms of Section 10 of theMaintenance Act.

Accordingly, the Learned Judge held that itcannot even be said that the acquittal had thede facto effect of an Order in terms of Section16(1)(b)(ii), because the acquittal was not by theOrder of a Court with jurisdiction to amend orvary a maintenance order, namely, aMaintenance Court.

The Learned Judge referred to additionalgrounds, and stated that the estoppel argumentwas also flawed because not all of the necessaryrequirements for its applicability were present.

Accordingly, the Application for Leave to Appealwas dismissed with costs.

The next one is :-

Peterson v Maintenance Office, Simon’s Town’s

Maintenance Court, and Others

2004 (2) SA 56 (C).

In this matter, the Cape High Court developed the

common law relating to the duty of support, resulting in

an Order declaring that paternal grandparents owe a duty

of support to their extra-marital grandchildren, and are

accordingly liable for maintenance in instances where the

father is unable to fulfil his duty to support or maintain his

children.

The Court held that the common-law rule, whichdifferentiates between children born in wedlockand extra-marital children, limiting the duty ofsupport for paternal grandparents to the former,not only denies extra-marital children an equalright to be maintained by their paternalgrandparents, but conveys the notion that extra-marital children do not have the same inherentworth and dignity as children who are born inwedlock.

The Court further held that the said common-law rule

constitutes unfair discrimination in violation of Section 9

of the Constitution and also violates the right to dignity

as enshrined in Section 10 and as enshrined in children’s

rights in Section 28(2) of the Constitution.

This case was a major break-through at the time,

particularly for young women, as they tended to be

impregnated by young men who, themselves, were still

under parental support.

Obviously, this has been over-taken by legislation.

There are numerous other cases, however, theyare all available on the internet and can be readthere.

So, we have this lovely maintenance courtprocedure.

A perfect list of Orders which may be granted.

Criminal relief in addition to civil relief, if theperson Ordered to pay maintenance, defaults.

As far as I am concerned, an Application forMaintenance, and worse than that, anApplication for the payment of ArrearsMaintenance, both criminally and civilly,constitutes secondary abuse, usually of women.

So, of course, the State, being the protective andreasonable organ that it is, decides to take actionagainst maintenance defaulters.

And even Mandela’s grandson can’t escape thelong arm of the law.

Unfortunately, this does not mean that thesystem is, in any way, perfect.

However, in this matter, after it came to theattention of the Cape Premier, Helen Zille, sheactually made sure something was done about it.

I have also attached to my paper another casestudy, which was included in the True Lovemagazine, together with some hints and tips onhow to prepare for a maintenance enquiry.

I would like to share with you an actual casestudy which I am dealing with at present.

The names have been changed to protectthe innocent (“and the not-so-innocent”)involved!

CASE STUDY2010

June 2010 Angel (the Applicant) asked for an increase in maintenance for child, was told no by Devil (the Respondent)

July 2010 Devil appoints Ms Ice, who deals with Angel via email;

then Devil terminates her mandate, and agrees to represent himself in a "conciliation" meeting with Shining Star (Applicant’s attorney)

September 2010 Devil fails to appear at such meeting; tells Angel to sue him for maintenance

November 2010 Mr Toddle places himself on record as Devil’s attorney

2011

06 January 2011 Angel goes to court to obtain a date for a maintenance enquiry, and fills out all forms and supplies all documents as required by court

Enquiry set down for 17th Feb – Superman (Angel’s advocate) and Angel attend

CASE STUDY17 February 2011

Mr Toddle says needs adjournment – no documents prepared and Devil has cocaine addiction, (which Mr Toddle later confirms in writing to Shining Star) so Devil can’t appear for enquiry

Matter adjourned for 9 May 2011

Matter set down for 9 May, Shining Star requests documents from Devil and in courtparties agree to exchange by 23 April

No request ever sent by Devil to Angel for documents as they were already at court

22 February 2011

Shining Star sends letter requesting documents by 23 April, as agreed at court, and provides detailed list of requirements

03 March 2011 Mr Toddle sends letter admitting in writing to Devil’s cocaine and sleeping pill addiction, for which Devil is receiving “therapy”

04 May 2011 Shining Star reminds Mr Toddle that documents are overdue

06 May 2011 Mr Toddle notifies Superman that Devil not ready with documents and asks for adjournment

09 May 2011 Parties go to court and agree to adjourn to 28 June to exchange documentation, still no request for documents by Devil from Angel’s side

CASE STUDY24 June 2011 Mr Disgruntled sends letter, placing himself on record as attorney for

Devil, and states that Devil cannot make enquiry on 28 June

28 June 2011 Superman and Angel attend court, Mr Disgruntled present, Devil is not, Warrant of Arrest issued and stayed till 29 August when matter set down for enquiry, still no documents from Devil

01 August 2011 Shining Star obtains, via subpoena, documents from Devil's accountants

03 August 2011 Mr Disgruntled sends letter averring that neither party has exchanged documents by 12 July as per court instruction made on 28 June, despite the fact that still no request has been made to Angel for further documentation other than on file at court, which has been there since the commencement of the matter

16 August 2011 Shining Star tells Mr Disgruntled that neither Devil, nor Ms Ice, norMr Toddle, has ever requested any specific documents, and all Angel’s documents are on file at court anyway

CASE STUDY26 August 2011 Mr Disgruntled says he still does not have documents from

Angel, and Shining Star replies again that all are on court file, and that Angel had to obtain Devil’s information via subpoena, and will not agree to further adjournment

26 August 2011 Parties at court – Mr Disgruntled applies for adjournment. Angel agrees only on basis that increased Interim Order is made, which Magistrate agreed to, after argument heard, namely, R8k per month plus balance of original Order of 50% of all educational costs, extra-murals, and medical costs – matter adjourned to and set down for formal enquiry on 21 November

31 August 2011 Mr Disgruntled sends letter to Shining Star, detailing documents required from Angel, and they are provided to Shining Star’s office by Angel on 30 September as agreed

22 September 2011 Mr Disgruntled gives notice that Devil has terminated his mandate

29 September 2011 Shining Star informs Devil that Angel’s documents are ready and waiting for collection by him, and requests further documents from him by 31 October – receive nothing

CASE STUDY24 October 2011 Separate application launched to Magistrate’s Court by Angel for

Garnishee Order against rental being paid to Devil for immovable property owned by him from tenant, Mr Big-Bucks – Court grants Garnishee Order – one of reasons being that Devil has NOT paid one cent to Angel since Interim Order of 29 August, arrears currently of R37 odd k

29 September 2011 Shining Star informs Devil that Angel’s documents are ready and waiting for collection by him, and requests further documents from him by 31 October – receive nothing

28 October 2011 The Invisible Man advises Shining Star that he will be placing himself onrecord on behalf of the Devil, and threatens all sorts of retribution against Angel – never happens

01 November 2011 Payment from Mr Big-Bucks of R42k received by Angel in terms of Garnishee Order

CASE STUDY19 October – 11 November 2011

Various emails, Devil giving notice that he will represent himself, threatening Mr Big-Bucks, Shining Star, Angel, etc. and breaches Protection Order (a whole other set of criminal proceedings commence)

21 November 2011 Formal Maintenance Enquiry finally commences! – Devil representing himself, and day ends at cross-examination of Devil, who is sweating profusely, and Superman has him exactly where we want him to be – lying and panicked!

Matter is now part-heard and adjourned to 22 December to finalise

22 December 2011 Mr Crusader of Vermin appears at Court – Devil does not – with Doctor’s note stating that Devil is too stressed out (PTSD from being in Westville Prison) – manages to adjourn matter again, case now to be finalised on 7 March 2012

In the meantime, Mr Big-Bucks terminates lease after numerous threats from Devil, so Angel’s Garnishee Order comes to an end

CASE STUDY

2012

January 2012 Devil collects Angel’s file of papers from Shining Star's office, which they have been waiting for him to do since September 2011

07 March 2012 All parties present at Court for part-heard form enquiry on adjourned date – with Devil represented by Mr Crusader of Vermin and so what is the next obvious event – the Magistrate is sick, so the part-heard matter is now adjourned till 2 May

In the meantime, Devil currently in arrears of over R10k, still has not paid ONE CENT since Interim Order in September 2011

By the way, this only relates to the maintenanceclaims in this matter.

We also, for the same client, applied for aProtection Order in terms of the DomesticViolence Act No. 116 of 1998.

The ex-husband / father / maintenance defaulteropposed this application and was alsorepresented by an attorney at that hearing.

The Protection Order was eventually granted.

The client has since issued affidavits in two separatepolice stations after the Respondent breached theProtection Order.

In the one police station, the Applicant was treatedlike a criminal and the matter subsequently landedup in the Durban Magistrate’s Court, where it hasrecently (29 February 2012) been provisionallywithdrawn, after proceedings were instituted inOctober 2011, due to the fact that the investigatingofficer had not investigated the matter at all, and ifthe prosecutor had proceeded, the charges wouldhave been dismissed.

Not only that, but the accused / maintenance

defaulter's attorney, Mr Crusader for Vermin,

same one as the current Maintenance Court

appearance, took the liberty in his opposition to

an adjournment, to defame not only the Victim /

maintenance claimant / Protection Order

complainant, in open court in the most vicious

manner, but also misled the court by innuendo,

and defamed the Victim’s legal representatives.

I’m not telling you this to garner your sympathy,

merely to re-enforce my attitude that the legal

system, which is there (supposedly) for the

protection of the maintenance claimant / victim

of domestic violence / children, constitutes

secondary abuse of the weakest members of

society, and unless and until the entire system

and Society, adopts a ZERO TOLERANCE attitude,

towards maintenance defaulters and abusers, it

will continue to do so!

As a matter of interest, in the second ProtectionOrder Application, which was lodged after thefirst one, the accused / maintenance defaulterwas arrested, imprisoned, appeared beforecourt, was refused bail, and when the mattercame before the Magistrate, the accused /maintenance defaulter pleaded guilty to thecharges and was given a fairly strong suspendedsentence.

The difference between the two?

Different police stations and differentprosecutors taking protection of the public –usually women – seriously.

PROPOSED RESOLUTION

So, in conclusion, I would like to propose to thisconference, that it is now time for the maintenancesystem in South Africa to be completely over-hauled.

In other countries, there is a formula for thepayment of maintenance for children, which issimply calculated as a percentage of the non-custodian parent’s income.

This is enforced by various State / Governmentdepartments including the Receiver of Revenue, andis deducted directly from the maintenance payer’sincome.

This makes for a simple, non-confrontational,non-abusive system.

If the person paying maintenance feels that he /she is paying too much, then the onus would beon them to prove it.

I would accordingly propose that the delegates ofthis conference, as one of its recommendations, takea resolution that the family lawyers in South Africa,at all levels, whether representative or adjudicative,and acting on behalf of all institutions, prepare someform of document to present to the Department ofJustice and Constitutional Development, for anamendment to the system and a manner in whichmaintenance is calculated and paid, and the mannerin which maintenance claimant’s and children arerepresented.

I thank you for your attention and patience.