SUBMISSION: MAINTENANCE LAW REFORM
BY K W KUHN: MAGISTRATE - PIETERMARITZBURG

Mister/Madam Chairperson, Members of the Committee, Honoured Guests, Ladies and Gentlemen: -
At the outset I wish to make it abundantly clear that I support the earliest possible amendment of the Maintenance Act, as it is at present wholly ineffectual and exceptionally limited in providing effective enforcement of maintenance orders. As a magistrate I have served in the Maintenance Court for several years, and I have seen the depths of despair and frustration that some complainants suffer at the inability of the courts to grant effective relief

The maintenance court is normally the first court where an innocent complainant will come into contact with tile justice system, and it is my personal opinion that the maintenance department has long enough been the "Cinderella department" of the Department of Justice. The Executive and the Department of Justice must take drastic steps to alleviate this problem, and to provide accessible and effective relief to complainants in maintenance matters.

It is in light of these views that I will deal in turn with the two initiatives regarding maintenance. I will firstly refer to "Maintenance Law Reform: The Way Ahead", a Discussion Paper published by the Department of Justice; and wish to comment on each proposal as follows: -

A. MAINTENANCE LAW REFORM: THE WAY AHEAD
PROPOSAL 1:
"Section 5(7) of the Act should be amended so as to allow a maintenance order to be made against the respondent in his (sic) absence, where:
(a) the order is made in accordance with his (sic) written consent produced at the enquiry by the maintenance officer;
(b) the court is satisfied that the respondent has been validly served with a notice of the enquiry; or
(c) the court is satisfied that, despite the absence of proof of such service, the complainant would suffer significant hardship if an order were not made immediately."

It is so that a respondent can delay the making of an order for a lengthy period of time by not amending the hearing. This is a common complaint of applicants who have applied for maintenance, and practice has taught me that this is in fact true. In this regard I therefor agree that drastic measures are needed to curb the control a respondent has over the proceedings. If sub-section (b) were added to Section 5(7) of the Maintenance Act 23 of 1963, (the Act), it would effectively prevent the respondent from delaying the hearing; provided he or she has been validly served with notice of the proceedings.

I however have grave reservations about the proposal in sub-section (c). Such a clause invites abuse, for example where an applicant deliberately supplies an incorrect address or other information about the respondent. Such abuse could however be prevented if certain safeguards are built in, such as a mandatory hearing at the earliest possible date after the respondent becomes aware of the order (if he or she so wishes). Without such a clause the proposal may not survive a Constitutional Court challenge anyway. Another suggestion is that the Court be authorised to grant a provisional order, which can then be challenged by the respondent, after proper notice has been given to the applicant.

PROPOSAL 2:
"Where the court makes or varies a maintenance order (including an order made by consent), it must at the same time make a deduction from wages order (i.e. an order requiring the respondent's employer to deduct the maintenance due from the respondent's wages) unless the respondent has no employer or an attachment of hearings is otherwise unsuitable."

Once a maintenance defaulter has been convicted of a contravention of Section 11 of the Act, the Court may grant a garnishee order forthwith. It has always been my contention that the Court should be empowered to do the same once a maintenance order has been authorised, as the inability to enforce maintenance orders has always been a major complaint with the system. Such a provision would be similar to the provisions in Section 65J(2) of the Magistrate's Court Act, Act 32 of 1944, which authorises the attachment of emoluments after a judgment has been granted.

My personal experience has shown that due to the problems that exist, scores of maintenance applicants have elected to issue summons out of the Magistrate's Court, rather than bringing an application in terms of the Maintenance Act. The former process of issuing a summons is in general speedier and more enforceable precisely for the reasons mentioned above.

In the premises the proposal is supported, and I would suggest that the provisions of the Magistrate's Court Act 32 of 1944 in relation to emoluments enactment orders be applied to this provision. Section 65J(2) of the Magistrate's Court Act 1944 (Act 32 of 1944), makes provision for all the proposals; including a 5% fee that the employer may deduct from the respondent's salary as administration costs.

PROPOSAL 3:
"In every case, the court, in deciding how to specify the method of payment, must take account of the complainant's wishes on the issue. In addition, where a maintenance order is made or varied but no deduction from wages order is in force, the court must consider what alternative method of payment should be adopted and must specify one of the following methods of payment:
(a) where the respondent has a bank or building society (account), by standing order to the court or directly to the complainant's bank or building society account;
(b) directly to the complainant's bank or building society account;
(c) directly to the court;
(d) to such person, officer, organisation or institution as may be specified; or
(e) direct to the complainant herself."

This proposal is supported without any specific comment, except to say that it may be more effective to merely state that payment should be as requested by the complainant.

PROPOSAL 4:
"The Maintenance Act should be amended to give statutory guidance to the courts and maintenance officers in their determination of the level of maintenance. A checklist of factors should be introduced to which the court should have regard. In addition, some general principles should be introduced to ensure that child maintenance is seen as the first call on parental income, and not something which can be squeezed out of a parent's residual income. General principles should also clarify that the obligation to maintain one child is no greater or no less than the obligation to maintain any other child, and that, where practicable, the court should attempt to ensure that all of the non-custodial parent's have broadly similar standards of living."

In determining a suitable amount; it has always been my practice to consider the following factors:
(a) Those expenses that are unique to the children; such as clothing, entertainment, extra-mural activities and school fees (unless the divorce order states that school fees are a separate responsibility of the respondent);
(b) Those expenses that are common to the household; such as rent, electricity, food, transport. medical expenses, a servant, insurance and telephone costs; and
(c) The income or earning capacity of the parties.

The expenses mentioned in paragraph (a) are then added to the pro rata expenses of the children in paragraph (b). This latter amount is calculated by dividing the general household expenses between the custodial parent and the child(ren), with the proviso that a parent (depending on the age of the child(ren)) will be liable for a greater portion of these household expenses. The figure arrived at represents the total amount needed by the custodial parent in order to maintain the child(ren). This amount is then divided pro rata between the parents, based on their income or earning capacity and all other relevant factors, in order to establish the respondent's liability.

It has been my experience that the procedure detailed above is equitable and just and provides for all eventualities. Neither of the parents can object to such a calculation, as all relevant factors are considered, such as further marriages or relationships and further possible children.

Lastly, I fully agree with the suggestion that general principles be introduced to assist a Court, for example where the defence is raised by respondents that they are unable to maintain the child(ren) from the first marriage or relationship, due to a subsequent marriage or relationship and possible further children. I am however not convinced that the Act is the proper vehicle to provide such principles and suggest that such principles be published in a set of Regulations, which would enable speedy amendments to such principles if and when necessary.

PROPOSAL 5:
"Where a complaint is made that maintenance has not been paid, the proceedings shall (be) by way of inquiry (similar to proceedings for violation of a domestic violence interdict). This will mean that no prosecutor will be required for the hearing, which can then take place in the 'family court' and not the criminal court, in those centres where family proceedings are clustered together in one building or in one section. Alternatively, the proceedings could remain by way of criminal prosecution, but with all those persons who are maintenance officers being given special permission to prosecute the Section 11 offence."

It is my submission that an amendment to give effect to the main proposal would be a serious error, as it would effectively de-criminalise the non-payment of maintenance. I have no objection to the suggestion that so-called Family Courts deal with these offences, but I oppose the suggestion that criminal trials be done away with in favour of inquiries. This would further erode the faith the public has in the system, as such an amendment could create the perception that non-payment of maintenance is no longer a criminal offence.

Section 11 of the Act creates a specific offence, which can only be prosecuted by the State, represented by the Attorney-General and/or his/ her staff I have however no objection to the alternative suggestion, with the proviso that these maintenance officers be trained to conduct such prosecutions. This would however still have to remain a secondary function the officer, as the primary function must remain the investigation of claims and the representation of applicants at maintenance enquiries.

It is interesting to note the reference to the domestic violence inquiry, in the sense that the South African Law Commission's Project Committee on Domestic Violence (of which I am a member) has been strenuously opposed to the decriminalisation of that inquiry. The proposed Domestic Violence Bill goes so far as to specifically state that the contravention of a protection order is to be a criminal offence, which is to be prosecuted in the criminal court. As the proposed 'family courts' will have criminal jurisdiction, this inquiry will also be dealt with in such courts.

PROPOSAL 6:
"Where a complaint is made of non-payment of maintenance, the court shall:
(a) identify the amount which is due under the maintenance order and has not been paid (sic), and certify this to be the amount of arrears;
(b) consider the existing and prospective means of the respondent, and the reason for the future to pay maintenance;
(c) consider whether the maintenance order should continue at the existing rate or should be increased or decreased owing to a change in circumstances or some other sufficient reason;
(d) consider whether the existing method of payment of maintenance remains appropriate, changing the method of payment where necessary;
(e) consider whether the amount of arrears should be enforced or should be remitted in whole or in part;
(f) if the amount of arrears is to be enforced, specify the method of enforcement, which shall be one of the following:
(i) converting the amount of arrears to a civil judgment debt and issuing a warrant of execution against the respondent's movable or immovable property, suspended on condition that the amount is paid within a specified time;
(ii) ordering the respondent to pay off the amount of arrears by installments over time as well as continuing to pay the maintenance due by. e.g. increasing the deduction from wages order; and
(g) consider whether to impose a sentence of imprisonment, either immediate, suspended or periodic in addition to any of the above."

In general I support these suggestions. although I harbour some misgivings about paragraph (v). Once a Court has found that the respondent is in arrears only the applicant should be allowed to remit such arrears in whole or in part, and I feel that a Court should not have the discretion to excuse a respondent from paying what is in essence a civil debt that has accrued in favour of the applicant. I would go so far as to say that any arrear maintenance (once the court has established the amount) should automatically be registered with the Clerk of the Civil Court as a judgement, as is provided for arrear payments of VAT in terms of the Value Added Tax Act.

It is my opinion that the inability to pay maintenance should be monitored for stricter, as the perception exists at present that the mere allegation of such inability is a defence to a charge of non-payment of maintenance. The Courts should be empowered to investigate such an allegation in depth, as one of the biggest problems in our society today is the amount of single-parent families who do not receive support from the non-custodial parent. This factor places a heavy financial burden on the custodial parent, and more often than not it is the children who suffer the most.

If necessary, the Courts should be allowed to employ tracing agents (at the respondent's expense), in order to establish whether the respondent is in fact unable to contribute to the maintenance of the children. This might seem to be a radical suggestion, but it is in my opinion no different to provisions in the Magistrates' Courts Act, which provide for the employment of tracing agents to trace judgment debtors and their assets.

PROPOSAL 7:
"Where the court makes (or varies) a maintenance order, it must consider the appropriate commencement date of the order, and must provide that the order is to run from:
(a) the date of the order:
(b) the date of the complaint: or
(c) a date which is a maximum of one year earlier than the date of the complaint.
In addition, where the starting date for the payment of maintenance is earlier than the date of the order, the court shall go on to identify the initial arrears that will have accrued by back-dating the order, and specify how these arrears are to be paid."

I support this suggestion wholeheartedly, firstly because it would act as a deterrent to those respondents who delay the granting of orders unnecessarily, and secondly because it would enable a Court to adequately compensate a custodial parent for past expenses where the applicant has been unable to obtain the respondent's address. Such an order would be especially effective where a respondent has deliberately frustrated the attempts of the applicant in obtaining service of the subpoena or the subsequent granting of an order.

The second initiative on the table is an interim report on Maintenance, drafted by the South African Law Commission and published during April 1998. I wish to comment as follows on the problem areas the report discloses and the proposals of reform contained in the report:

SOUTH AFRICAN LAW COMMISSION INTERIM REPORT:

APPOINTMENT OF MAINTENANCE INVESTIGATORS:
The suggestion is that the Act provides specifically for 'maintenance investigators', and this proposal is supported wholeheartedly as stated earlier in my reference to tracing agents. A report by such a person on the exact whereabouts of the respondent, and the respondent's financial circumstances will be of enormous value to the court when an appropriate order is considered.

Such persons will also be of enormous importance considering that an already overworked Police Force at present serves maintenance summonses and warrants. A force dedicated to the service of maintenance summonses and the investigation of maintenance claims will go far to alleviate the problems complainants' experience when attempting to obtain a maintenance order.

ORDERS IN THE ABSENCE OF THE RESPONDENT:
This proposal is very similar to the one discussed in proposal 1 above, and is also similar to proceedings in the magistrate's court when obtaining default judgment. As I have stated earlier, the lack of co-operation by the respondent can cause long delays in the finalisation of hearings, and any tool that can be utilised to curb this ability of the respondent must be welcomed.

Proper service of die summons should however be a prerequisite as is required in terms of the Magistrate's Court Act, unless a procedure similar to ex parte interdicts is followed where a rule nisi is granted with a specified return date; on which date the respondent must then show cause as to why the interim order should not be made final.

AUTOMATIC MAINTENANCE PAYMENTS FROM INCOME:
This proposal is similar to proposal 2 discussed above, and I support it wholeheartedly.

ENFORCING MAINTENANCE ORDERS:
The enforcement of maintenance orders is without doubt the area in maintenance laws which creates the greatest distress amongst complainants. Orders are made, but when it comes to enforcing them, the system appears to be totally ineffectual and without any teeth except where a respondent is convicted of a contravention of section 11 of the Act. The question that remains is why a complainant has to wait for a conviction before the Act enables her/him to effectively recover maintenance? Surely a complainant should be able to recover maintenance once the order has been made? It is for this very reason that complainants issue Summonses out of the Civil Court, as the latter procedure is far speedier and more effective.

If the Act were to be amended to provide for immediate warrants of execution once it has been established that the respondent is in arrears, it will be an effective tool to enforce orders. It is however my respectful opinion that rather than including copious provisions in the Act for the process in execution, the Act should merely provide that once the court has established the amount of the arrears, this should be recorded as a civil judgment against the respondent. Such procedures are provided for in the Value Added Tax Act mid the Income Tax Act, and the complainant will then be in a position to proceed in terms of the provisions of the Magistrate's Court Act and issue a warrant of execution.

MISCELLANEOUS:
It is practice in the High Court that orders for the payment of non-recurring expenses, such as medical expenses and school fees, are separated from orders for the payment of maintenance. As the Act is specific in this regard, the magistrate's court cannot vary such orders, except to include payment of non-recurring expenses in the order for maintenance & an averaged expense.

Were the definition of "maintenance order" be amended to include non-recurring expenses, it would also alleviate the problems custodial parents experience, where the non-custodial parent, who is liable for e.g. school fees, does not comply with the order. It is a common occurrence that schools look to the custodial parent for payment of fees, even though the non-custodial parent is liable for such fees, as the schools do not wish to be placed in the position of the complainant, and to be dragged into protracted litigation. In the premises such a provision is supported wholeheartedly.

In conclusion I wish to reiterate that the time is ripe for the Maintenance act to be amended in order to provide effective relief to complainants that have been fighting for years to obtain reasonable orders, and that the amendments must be such that the Act grants relief that is accessible to all.

I thank you for the opportunity to express my views on what I feel is an issue of the utmost importance.

K W KUHN
MAGISTRATE
PIETERMARITZBURG