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MAINTENANCE LAW - FAQ's             Back to home page

 

There are millions of people, mostly children, who receive monthly maintenance payments, either due to their parents being divorced or not married. This has very important legal consequences for all parties concerned, not least the welfare of the children. If you are currently receiving maintenance or need to do so in the future you need to read up on all the issues on maintenance. This also applies if you are the person paying the maintenance or are requested to do so in the future. You will not receive assistance from the Legal Aid Board for a maintenance matter that can be decided by a maintenance officer, so be sure to consult with an attorney should you require assistance or further information.

 

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  1. Why is it necessary to enforce the duty of support by means of an Act?
  2. Who has the duty of support?
  3. When does the duty of support end?
  4. Where can I claim for maintenance?
  5. When can I claim for maintenance?
  6. How much may I claim?
  7. What type of expenses may I claim for?
  8. I am hesitant to file a complaint because I do not wish to publicize our family issues - should I file a complaint?
  9. I need to claim child support – what will be expected from me when I file a complaint?
  10. What court processes can I expect to be served on me after I file a complaint?
  11. What happens if my ex disregards the court process served on him and fails to attend the meeting on the set court date?
  12. Is it always necessary for both parties to attend a maintenance enquiry?
  13. Does the maintenance officer act on my behalf or do I need a lawyer?
  14. Who has the duty to investigate maintenance complaints?
  15. Who must testify at a maintenance enquiry?
  16. Can I claim for any fees if I testify at a maintenance enquiry?
  17. A support discussion between me and my ex always ends up in a fight – what happens should we misbehave at the enquiry?
  18. May I apply for an order that instructs the employer of my ex to pay the monthly child support into my bank account?
  19. I have been served with a court process, but I am not the father of the child – what should I do?
  20. Can I claim if the child’s father lives abroad?
  21. I am required to pay child support in terms of a maintenance order, but I am unemployed - what should I do?
  22. My ex often fails to make support payments – can I ask the court to arrest him?
  23. What remedies are available to me should I need to claim for maintenance arrears?
  24. Should I choose the criminal or the civil route when claiming for maintenance arrears, and how is interest on arrears calculated?
  25. Who can appeal against a maintenance court order?

 

1. Why is it necessary to enforce the duty of support by means of an act?

 

The Constitution (in Section 28), the Children’s Act of 2005 and various International Human Rights instruments encompass the need to protect the rights and needs of children.

Section 1 of the Maintenance Act stress the inadequacy of the existing maintenance tools and procedures available in South Africa and deems this Act an interim measure in a quest to re-address the current maintenance system as a whole.

It is clear that the wide-ranging negligence and abuse of children, in particular, and of their rights are of grave concern to the current Government.

The raison d'être of orders made in terms of the Maintenance Act is to enforce the common law duty of support. (Section 15(1))

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2. Who has the duty of support?

 

The duty of support is derived from the Roman Dutch Law which forms the basis of our common law. This duty is not codified and is an obligation we have on account of family relationships.

Biological Parents and their children have a duty to support each other. Persons that adopt children have a duty to support such children. Spouses have a duty to support each other.

A reciprocal duty to support exists between:

  • Brothers and sisters,
  • Half brothers and half sisters and
  • Grand parents and their grandchildren.

There exists no duty of support between:

  • Step - parents and step - children,
  • Step – brothers and step – sisters,
  • a Person and his or her parents in law or his or her brother or sister in law,
  • Uncle or aunt and their nephews or nieces,
  • A person and his or her more remote relatives.
  • People living together, except if they committed themselves to such a support duty contractually.

The Recognition of Customary Marriages Act 120 of 1998 states that such married parties have equal rights, also in regard to common law rights (Section 6) and thus it follows that their common law support duties should be same as parties married in terms of any other law.

In terms of the Civil Union Act 17 of 2006 the legal consequences of a union of same sex parties in terms of this Act are the same as that of a marriage in terms of any other law, including the common law. (Section 13)

The duty to support children exists even if their parents are divorced or were never married or are living apart from each other or from the children.

In Petersen versus Maintenance Officer Simons Town and Others 2004(2) SA 56(CPD)the court extended the common law duty of support to include paternal grandparents of extra marital children on grounds that exclusion of such a duty would be unconstitutional.

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3. When does the duty of support ends?

 

The duty of spousal support normally comes to an end at the death of a spouse or at divorce. This duty can also continue after such divorce if spousal maintenance is included in the divorce order.

Spousal support may also continue in certain circumstances after the death of a spouse. The estate of the deceased then has onus (duty) of such support - Hodges v Coubrough NO 1991(3) SA 58 (DCLD). The surviving party of a marriage initiated after the commencement of The Marriage Act Extension Act 50 of 1997 may claim reasonably required maintenance from his or her deceased spouse’s estate.

If a state maintenance grant is received on behalf of a child such parents still retain the primary duty of support towards such a child. The duty of support only comes to an end when the child becomes self supporting – Gold v Gold 1975 (4) 237 (DCLD)

The duty of support may continue after a child reaches major status –Brandt v Brandt A234/2000 (CPD). The major child has the onus to prove the existence of such a duty of support – Sikatele and Others v. Sikatele and Others 1996 2 All SA 95 (Transkei).

A maintenance order stipulating a fixed period for payment does not automatically cease ipso iure (by law) should the child becomes self supporting before such period has expired – Kemp v Kemp 1958 (3) 736(DCLD).

The estate of a deceased parent is liable to pay maintenance for minor children – In Re Estate Visser 1948 1129 (CPD.

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4. Where can I claim for maintenance?

 

The common law duty to support is exercised in our daily care of those to whom such duty extends.

Any person that requires support from a person legally liable to maintain him or her, or who is liable to maintain someone that is under his or her parental care, can approach a court to enforce such support. This is done by means of lodging a maintenance complaint.

Maintenance complaints concerning high court orders made, can be lodged either at the court that made the order or at a maintenance court.

Complaints in terms of regional divorce court orders and maintenance court orders must be made at a maintenance court that has jurisdiction to hear the matter. Every district court is also a maintenance court, within its jurisdiction (section 3).

A maintenance court has jurisdiction to receive maintenance complaints from persons residing in the district of that court. This means that you must lodge your complaint at the district court in the area in which you live and pursue the matter there.

Complaints regarding new or existing maintenance orders can be made at the maintenance clerk or the maintenance officer working at that maintenance court.

Nguza v Nguza 1995 (2) SA 954 (TLD) – circumstances influence jurisdiction. Grandmother physically cared and controlled child on the mother’s behalf and under the mother’s direction whilst the mother maintained the child. The court ruled that the maintenance court in the area where the mother stays had jurisdiction.

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5. When can I claim for maintenance?

 

You can make a complaint when:

  • You require a maintenance order against someone legally liable to support a child that is in your care / need assistance due to his or her failure to maintain (section 6(1)(a)), or
  • If good reason exist that an existing order should be changed or discharged (section6(1)(b))

Examples of complaints:

  • Father of child supports, but I need an order to ensure that he always pays on time.
  • Existing order but mother of child pays maintenance habitually late.
  • Existing order but father of child is in arrears with child support payments.
  • I receive no child support from the biological father of the child.
  • Existing order for spousal maintenance but my ex refuses to pay.

In Watson v Watson 1998 (3) 126 – an existing order was made four months earlier. The Court granted an increase because of the legitimate needs of the child and because the father was well able to afford it.

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6. How much may I claim?

 

The common law duty to support is extended to such support as what is reasonably required by the person to be supported (section 15 (2)).

The approach of our maintenance system is discretionary rather than formalistic as in some other countries. This means that every maintenance case is decided on its own merits.

The court will determine an amount that is considered to be fair in the particular circumstances of that specific case (section 15(3)(b)). Factors such as the respective means of the parties jointly obligated to support and the amount reasonably required by the person to be supported for his or her proper living and upbringing, are to be considered (section 15(2) and 15(3) (a)).Other factors relevant are the social standing of the parties and the lifestyle that such a person to be supported are accustomed to, and entitled to in the existing circumstances- Prophet v Prophet 1948 (4) SA 325 (OFS).

In order to arrive at a fair judgement the court must be fully informed in regard to the income and expenditure of all parties concerned and the cost of the person that requires support - Herfst v Herfst 1964 (4) 127 (WLD). The estimate of such reasonable needs is a question of intelligent judgement rather than that of meticulous calculation - Cullen v Haupt 1988 (4) SA 39.

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7. What type of expenses may I claim for?

 

You may claim for reasonable, adequate expenses relevant to your particular situation (section 15(3) (b)).

Examples of what may be claimed for, if relevant in a particular situation:

  • Provision of food, clothing, medical care and education (section 15(2)),
  • Holidays and university fees – Prophet v Prophet (supra),
  • Labour cost and maintenance expenses incurred since birth of the child until the time of the enquiry, with interest (section 16(1)(a)(ii)),
  • Maintenance arrears(section 40),
  • Extra mural activities and provision for other recurring expenses – Schmidt v Schmidt 1996 (4) SA 211 (WLD).

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8. I am hesitant to lay a complaint because I do not wish to publicise our family issues – should I file a complaint?

 

Yes, you should.

The Maintenance act specifically includes confidentiality provisions to protect the parties in maintenance matters.

A Maintenance enquiry is held in camera (Section 10(4)). This means that only personsthat are required to attend will be allowed in court during such an enquiry.

It is a criminal offence to disclose any information regarding a maintenance matter, except if required for purposes of performing any functions under this act, or when required to do so by any court (Section 37).

The name and address of a child who is or was involved in a maintenance enquiry or any information likely to reveal his or her identity may not be published. A fine or even imprisonment may be imposed for such an offence (Section 36(1)).

The Minister or the magistrate has a discretion to allow such information under certain circumstances should it be in the interest of such a child to do so (Section 36(3)).

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9. I need to claim child support –What will be expected from me when I file a complaint?

 

When you file a complaint in the prescribed manner you will also be required to supply:

  • Certified copies of Identification documents for yourself and any children relevant to such a complaint.
  • Banking details.
  • Proof of Income and expenses regarding yourself and, if claiming for child support, expenses incurred regarding such a child.
  • Proof of residency.
  • Information about the identification, whereabouts and financial situation of the person you claim support from.

This information will be utilized by the maintenance officer for investigation purposes.

After you filed a maintenance complaint in the prescribed manner, and supplied all required documents as requested by the maintenance officer to substantiate the claim, a maintenance file will be opened for this matter.

If a file already exists, all available documentation will be filed as perscribed.

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10. What court processes can I expect to be served on me after I file a complaint?

 

The maintenance officer may decide it necessary to schedule a meeting with all parties concerned, to be held in his office on a specific time and date.

The aim of such a meeting is for investigative purposes and to facilitate an opportunity for the parties to reach an agreement concerning the issues at hand.

To ensure attendance he or she will instruct the clerk of the maintenance court to issue directives to the parties, instructing them to attend such a meeting on the time and date as specified in the directives –Isley vs. Letchobo SA 2010 (S Gauteng)

If all parties attend as directed, the maintenance investigation will continue, but if absent after being properly served by an officer of the court, the maintenance matter can be struck from the roll.

The maintenance matter will be finalized at such a meeting if consensus is reached regarding all issues and a consent order is signed by both parties.

If pertinent issues still be at hand the meeting may be postponed until a later date for investigative purposes.

The maintenance officer may request more information and / or documentation to be produced at the next meeting.

The maintenance officer may also decide that he or she has sufficient information at this time to set down a date for a formal maintenance enquiry.

A verbal warning by the magistrate, or subpoenas, will be issued to the parties to ensure attendance at the formal maintenance enquiry (section 9(2)).

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11. What happens if my ex disregards the court process served on him and fails to attend the meeting on the set court date?

 

To ensure attendance of all parties at the investigative meeting scheduled to take place in the office of the maintenance officer, directives will be issued with instructions regarding the date, time and place of such a meeting.

If a directive was properly served on a party to attend and he or she fails to attend, the maintenance officer may either re-issue a directive, or he may decide to enforce the penalty as set out by regulation 3(3) of the maintenance act.

A summons will then be issued against such a defaulting party to appear before the court and give reasons for his or her failure to attend as specified in the directive.

In terms of regulation 3(3) it is an offence to disregard a directive issued for maintenance purposes, and if found guilty the offender may be sentenced to a fine or to imprisonment -Isley vs. Letchobo S.A.2010 (S Gauteng)

It is suggested that regulation 3(3) only be enforced as a last resort.

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12. Is it always necessary for both parties to attend maintenance meetings?

 

A written statement made by a witness in the prescribed manner is admissible as evidence in a maintenance enquiry and will have the same effect and value as his or her verbal evidence would have had.(section 12(1))

All the exhibits that such a witness would have tendered to the court in person can be tended by means of such a statement and will be accepted and treated as if it had been personally handed in as exhibits and properly identified by the person that made the statement.

A copy of the statement together with a copy of every document to be handed in by means of such a statement must be served on the person against whom the maintenance claim is made.

He may object to the statement being submitted as evidence and if he objects such a statement will not be allowed by the court (Section 12).

A maintenance court may also make an order for maintenance against a person that is not present at the enquiry if he consented in writing to such an order being made and if such consent is handed in by the maintenance officer at such an enquiry (Section 17(1)).

A copy of the order shall be delivered or tended to him by an officer of the court to ensure that he or she is aware of the terms of the order requested (Section 17).

The court may, if the person against whom the maintenance claim is made fails to appear at a maintenance enquiry after being subpoenaed, on application of the maintenance officer, consider the evidence given by the person who filed the maintenance complaint and make an order by default against such person liable to support, in his absence (Section 18).

A copy of the order by default shall be delivered or tended to the person against whom the maintenance claim was made to ensure that he or she is aware of the terms of the order in question.

The person against whom the maintenance claim was made may, within a period of twenty days after he became aware of the order by default, apply to the maintenance court for the variation or setting aside of the order.

The court may then call on either or both parties concerned to give further evidence and either confirm such an order, vary it, or set it aside.

The maintenance officer may also ask the court to change the payment provisions of an existing order in the absence of the parties. All parties will then be notified in the prescribed manner regarding such a change (Section19).

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13. Does the maintenance officer act on my behalf or do I need a lawyer?

 

The maintenance officer is firstly an officer of the court. His role is primarily to ensure that maintenance matters are thoroughly investigated to enable the magistrate to arrive at a fair decision.

During the meeting in his office with the parties involved in a maintenance dispute, his role will be that of chairperson, facilitator, investigator and administrator to ensure that issues and disputes in the maintenance matter at hand are clarified, administrative processes are followed and all required documentation are submitted.

He will have an informative role explaining procedures, possible solutions to issues and the rights and obligations of the parties present. He will also try to assist them in reaching a workable solution regarding the issues at hand without being prescriptive.

The outcome of such a meeting will depend on various factors. Examples are the particular facts of the matter, issues at hand, the ability of the parties to deal with conflict and make sound decisions, their general understanding in regard to legal processes, of their rights and duties and their willingness to compromise.

The parties involved in a maintenance matter have the right to legal counsel (Section 10). If a party wishes to have legal representation and is unable to afford employing an attorney at law, he or she can apply for legal aid.

A legal representative will then be employed by the state to assist the party concerned, should the party qualify for such assistance.

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14. Who has the duty to investigate maintenance complaints?

 

Section 6 specifically orders the maintenance officer to investigate complaints filed in the prescribed manner.

The maintenance officer may obtain statements from anybody that has relevant information to the matter at hand and may gather evidence regarding any aspect necessary. The maintenance officer may request maintenance officers of other districts and maintenance investigators to assist him with such investigations (section 7).

The maintenance officer may also request that a person believed to have information be required to appear before a magistrate for questioning. The maintenance officer may cross examine this person to ensure that all knowledge regarding such information is made available (section 8).

The magistrate presiding a particular maintenance matter share the responsibility of placing evidence before the court – Mgumane v Setemane (Appeal) .The magistrate may examine any person present at the maintenance enquiry and may recall and re-examine any person already examined (section 10(1)).

The parties in a maintenance matter, the maintenance officer and the magistrate share the responsibility to gather evidence, even when the parties are represented - Buch v Buch 1967 (3) SA 83 (TPD)

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15. Who must testify at a maintenance enquiry?

 

The maintenance officer has broad subpoena rights and may request any person with relevant information to testify at a maintenance enquiry (Section 7 and 9).

The maintenance officer also may require books, documents and or statements relevant to the matter to be handed in at an enquiry and or that testimony in regard to such are given (section 7).

The magistrate may request any person present at an enquiry, subpoenaed or not, to give testimony at such an enquiry (Section 10) 

A party in a maintenance matter, in rebutting a claim for support, may also request witnesses to testify on his or her behalf.

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16. Can I claim for any fees if I testify at a maintenance enquiry?

 

In terms of section 11 of the maintenance act, a witness testifying in a maintenance matter is entitled to an allowance as if he or she were attending criminal proceedings as a witness for the state.

A witness may be paid an allowance for substance and for travel to and from the court.

The person against whom a maintenance order may be made can, on the request of the maintenance officer and direction of the court, be paid the same allowance payable to a witness for the accused in criminal proceedings. This includes allowances for substance and for travel to and from the court (Section 10).

Regulation 5 states that such a person will be entitled to allowances regarding:

  • His or her reasonable actual expenses for accommodation.
  • A travel allowance to and from the court.

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17. Support discussions between me and my ex always end up in a fight – what happens should we misbehave at the enquiry?

 

In terms of Section 20, the magistrate presiding in a maintenance matter may make any order the court considers just in regard to the cost of the service of process, having regard to the conduct of the persons involved in the enquiry.

A person against whom a warrant of execution has been issues in terms of section 27 may apply for the setting aside of such a warrant. The court will take certain factors into consideration when deciding on such a matter including the conduct of the person against whom the warrant has been issued.

Any person who wilfully interrupts the proceedings at a maintenance inquiry or hinders, or obstructs the maintenance court in the performance of the court’s functions at the enquiry, shall be guilty of an offence, and on conviction will be liable to a fine or imprisonment (Section 35). See also –Sparks vs. Sparks 1998(4) S.A. 714 (WLD).

Parties in maintenance matters should thus conduct themselves in an orderly manner at all times.

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18. May I apply for an order that instructs the employer of my ex to pay the monthly child support into my bank account?

 

In terms of Section 16, the court shall, on application of the person in whose favour a maintenance order may be made, grant an order directing the employer of the person against whom the maintenance order in question has been or is made, to make on his behalf such periodical payments, owing or accruing to the person in whose favour such order is made. This type of order will only be made if it is practical in the particular circumstances.

In terms of Section 16 ((1) (a) (I)) the court may order that maintenance payments be paid into the bank account of the person in whose favour the order was made, by means of a stop order or by any other suitable means.

The maintenance officer may request the magistrate to change the banking details of an existing order suitably in absentia (in the absence) of any of the parties (Section 19).

The maintenance officer shall inform all parties absent regarding such changes made.

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19. I have been served with a court process, but I am not the father of the child – What should I do?

 

If the party against whom a maintenance complaint is filed believes that he is not legally responsible for maintenance support due to the fact that he is not the father, he may dispute paternity at the preliminary meeting.

If all parties are prepared to submit themselves, and the child in question, to blood tests to ascertain paternity, the maintenance officer will arrange for such tests to be done.

If any of the parties lack the financial means to pay for such blood tests, the maintenance officer may request the magistrate to conduct a summary enquiry to ascertain who should pay for the tests. The magistrate may at this time make a preliminary finding in this regard or may order that the State pay for the tests (Section 21).

Should the person against whom the claim for maintenance was filed agree to pay for such blood tests, and subsequently fail to do so and fails to attend a future court date, the court may, on request of the maintenance officer, grand a maintenance order by default against such a person in terms of Section 18.

It is presumed that the husband is the biological father of the wife’s children. This presumption can be rebutted at any stage by the husband.

In regard to children born out of wedlock, it is presumed, in the absence of any contrary evidence which raise doubt, that the person against whom a claim for maintenance was made is the biological father of the child, should he had sexual intercourse with such a woman at any stage during the period in which that child could have been conceived - Section 26 of Act 38 of 2005.

Refusal by any party to submit him or herself, or the child in question, to blood tests, will negatively influence that party’s credibility - Section 37 of the children’s Act 38 of 2005.

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20. Can I claim support if the child’s father lives abroad?

 

The Reciprocal Enforcement of Maintenance Order (countries in Africa) Act 6 of 1989 and Act 80 of 1963 regulates procedures where a party to a maintenance enquiry resides outside the borders of the country.

If a complaint for maintenance is filed and the person against whom such a claim is made lives outside our borders, the local magistrate court may institute an enquiry in the absence of the latter person and make a provisional order in regard to the maintenance matter at hand -Section 5, Act 6 of 1989.

If a provisional order is made by the local court, a certified copy of the maintenance order and all relevant documentation will be forwarded, through diplomatic channels, to the maintenance court with jurisdiction over such a person against whom the order was made, for confirmation purposes of such an order - Section 4, Act 6 of 1989.

On receipt of a provisional order made in a country outside our borders, an enquiry will be held by the magistrate court that received such provisional order, locally, with the view to confirm such an order. The maintenance officer will also investigate the maintenance matter in terms of Section 7 of Act 99 of 1089 - see Section 6, Act 6 of 1989.

Confirmed orders in terms of Section 4 and Section 6 Supra, are deemed to have been made in terms of section 16 of the Maintenance Act – see Section 7, Act 6 of 1989.

Emolument orders received from other countries will be registered locally in the district where the person against whom such an order was made works, or in the district of the head office of his employer. Such orders will be deemed to have been made in terms of Section16(2) of the Maintenance Act – see Section 9, Act 6 of 1989.

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21. I am required to pay child support in terms of a maintenance order, but I am unemployed - What should I do?

 

If an existing order exists, but the person against whom such an order was made becomes unemployed, he or she should immediately notify the maintenance officer in the district where such an order was made.

He or she can then apply for the suspension of such an order. The party concerned will be obliged to produce proof in regard to the reasons for unemployment and that he or she is currently looking for employment.

If the party’s unemployment caused him or her to be in arrears with maintenance payments, a defence that such party does not have the means, will not entitle him or her to an acquittal if it is proved that such failure was due to the unwillingness to work, or misconduct of such a party (Section 31(2)).

The unwillingness to work will only relate to the person’s efforts and ability to find employment given his particular qualifications – S vs. Leonards 1979(1) SACR 307 (CPD).

A court order that is suspended due to such unemployment will continue once he or she becomes re-employed in the future.

A person can apply for a substitution order should his or her income be less than what it was before such person became unemployed (Section 6)

The party that seeks a variation has the onus of proofto satisfy the court, that sound reason for the variation exists – Whitely vs. Whitely 1959 (2) 148 (ECD)

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22. My ex often fails to make support payments - can I ask the court to arrest him?

 

When such a failure occurs, the person in whose favour the maintenance order was granted can file a complaint to that effect.

At the request of the maintenance officer, the magistrate may issue a bench warrant for the arrest of the failing party.

A person that fails to make payments in accordance with a maintenance order is guilty of an offence and on conviction may be liable to pay a fine or to imprisonment (Section 31).

The maintenance officer may also supply the details of a person convicted of such an offence to credit institutions.

The court may also order that such imprisonment and/or fine may be suspended on condition that the accused pays the maintenance arrears at times and intervals as the court deems fit (Section 40)

In S vs. Visser 2002(1) SARC 50 (CPD), the ex husband was R44500 into arrears, but had the means to make such payments. The court sentenced him to 1440 hours of periodical imprisonment, to be served over weekends and such hours to be reduced by 15 hours for every R500 that he pays off towards the arrears. This sentence was upheld on appeal.

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23.What remedies are available to me should I need to claim for maintenance arrears?

 

If any maintenance order made under this act has remained unsatisfied for a period of ten days from the day which the relevant amount became payable, or any such order was made, the person in whose favour the order was made may apply for:

  • A warrant of execution in terms of Section 27 (1) to be issued against the movable and / or immovable property of the person liable to pay such maintenance, or
  • An order for the attachment of emoluments in terms of Section 28, being an order instructing his employer to pay the arrears on behalf of the person against whom such order was granted, or
  • An attachment of debt in terms of Section 30, ordering any person, who has incurred the obligation to pay a debt to the person against whom the order was made, to makes such payment to the person in whose favour the maintenance order was granted.

Any order in regard to above remedies may include the payment of interest and the cost of the attachment or execution.

The person in whose favour the maintenance order was granted has the option to claim maintenance arrears by means of criminal prosecution.

In choosing the criminal route, the court may also grant an order for the recovery of arrear maintenance payments, together with any interest thereon.

Such an order can be made together with any other penalty which the court may impose in respect to the accused failure in terms of Section 31.

Such an order, in terms of Section 40, shall have the effect of a civil judgement.

When granting an order in terms of Section 40 for the recovery of arrear maintenance, the court may attach any pension, annuity or similar benefit that is due to the offending party (Section 40(4)).

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24. Should I choose the criminal or the civil route when claiming for maintenance arrears, and how is interest on arrears calculated?

 

When exercising the choice between civil and criminal remedies for recovering arrears, the party in whose favour the maintenance order was granted should take note of the following:

  • Criminal prosecution may result in the offending party to be imprisoned which will jeopardise his or her ability to support during such period of imprisonment.
  • The offending party might be acquitted if the case against him or her is not proved beyond reasonable doubt.
  • It is not uncommon for the defaulter to fail to appear in court - which might delay proceedings.
  • The case might be postponed for various reasons.
  • The criminal case might be referred to the civil court for a financial enquiry which could result in a reduction of the maintenance order.

It is clear that the criminal route can be very slow. The civil enforcement route does not involve a hearing. A criminal matter must first be finalized before arrears could be recovered from the defaulting party.

Orders in terms of the civil enforcement route (by means of a warrant of execution, emoluments order, or attachment of debt) have the effect of a civil judgement and this expedites the recovery of any arrears.

In addition to arrear payments, interest can also be claimed.

Interest can be claimed when using both civil and criminal enforcement remedies. The maximum rate of interest is prescribed by statute and regulation.

There is a distinction between simple interest and compound interest. Court interest is simple interest in absence of an agreement stating otherwise.

In the case of compound interest, the interest is added to the capital. Such interest can then accrue more interest. This is not the position in the case of simple interest.

The choice between civil or criminal remedies for claiming arrears exists; regardless any supposed advantage another remedy may have for the opposing party - Martin v Martin 1997(1) SA491 (NPD).

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25. Who can appeal against a maintenance court order?

 

Any person aggrieved by a maintenance order made, may appeal against such an order (Section 25(1)). The appeal must be noted within twenty days from the date of such an order (Section 25).

A cross appeal must be noted within seven days from the date of the noting of the first mentioned appeal.

An appeal is noted by means of a notice, stating the grounds for such an appeal.

The magistrate who made the order shall, within a period of fourteen days of noting the appeal, give his reasons in writing to the clerk of the maintenance court.

The clerk of the maintenance court shall forward the record of the proceedings and all other relevant documentation to the registrar of the High court concerned, where such an appeal will then be heard (Regulation 15).

The High court or Supreme Court of Appeal, as the case may be, can make such an order as it deems appropriate (Section 25(2)).

The payment of maintenance in accordance with the order in question will not be suspended by filing such an appeal, unless such an appeal is noted against a finding that the appellant is legally liable to maintain the person in whose favour the order was made (Section 25)

In child support matters It is contentious whether to employ an attorney with the understanding that his payment will be a percentage of a possible future court judgment.

Child support belongs to the child. The parent that claims on his behalf may not deprive such a child of the maintenance that he or she is entitled to - Watson v Watson 1978 (3) 126.

A child’s legal entitlement to proper maintenance is not circumscribed by orders made by the court. Such orders only operates between the parties and is not binding on the child - Herfst v Herfst 1964 (4) 127 (WLD).

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