MAGISTRATE'S OFFICE
MAPUMULO
DEPARTMENT OF JUSTICE
COMMENTS ON MAINTENANCE LAW REFORM: THE WAY FORWARD
1. DEFAULT JUDGMENT
It is proposed that the court should enter default judgment order where the respondent has been served. Any law would and should not be contrary to the import of the Constitution as a starting point. It appears that to make any default judgment order would be to implicate the issue of maintenance. It will serve no purpose to make such an order not based on proof of the respondent's state of income and expenditure. It has been noticed that the applicant in most cases suggest or apply for high amount. Only to find that the respondent earns very less.
The solution would be to authorise a warrant of his/her arrest. The problem is that police are unwilling to execute maintenance documents. Having said hat, the co-operation of the police is required in any criminal justice.
2. DEDUCTION FROM THE SALARY WAGES
It is recommended that a garnishee order be made even in cases where the respondent himself asks for it before any conviction is secured. The bottom line should be the presence of a lawful court order to secure a deduction notice to any employer.
The other area of a problem is the employer not willing to be a party to such deductions. Especially to people in temporary employment.
3. OTHER METHODS OF PAYMENT
Payment directly to the recipient makes it difficult to control contributions. When parties have reconciled, they have no problem in paying direct to the other party; but as soon as the quarrel ensue, the applicant may deny having received any contribution. It is recommended to be made at Government institution although this is an expense on the side of the Department. It is apparent that the Department of Justice cannot be put aside or divorced at this point until an alternative has been set. The issue of control of contribution is important to determine the method and manner of payment.
4. PRINCIPLES AND GUIDELINES IN DECIDING MAINTENANCE AWARD
In deciding the amount of contribution, the present one is recommended. That is, to determine the income and expenditure of each party parent. If the income and the expenditure is not the same, especially the income, the extent of a contribution is not expected to be the same. The common sense would tell that the respondent has to contribute as according to his/her ability. Any party in
custody of the child or person to be maintained.
5. WHETHER CRIMINAL PROSECUTION OR CIVIL ENFORCEMENT IS PREFERRED
The provision of section 11 (3 Maintenance Act 23 of 1 63 are good enough to be put in the proposed legislation as a net against the respondent. Further to run away from a autro convict plea, it is necessary that the relevant office be empowered to issue a garnishee order, stop order or any order for the deduction of arrear amount from the salary wages of respondent.
It would be in the interest of justice and the person so maintained that both criminal and civil enforcement be open to the applicant and or criminal justice.
6. BACK-DATING OF ORDERS
This would seem to be open to a civil claim where the applicant will be able to state his her claim civilly. To aver that, for example, from this period she thinks the respondent should have contributed so much. From this period to this, so much. This needs a lot of time to arrive at reasonable estimation. Like in any civil matter where a person claims that his money would have made a certain percentage of profit had she he had been paid back timeously or as promised. I don't think that the Criminal Court should have such powers. Clearly such powers are civil powers.
7. DEDICATED TRACERS
This is an area of problems as to how to get hold of the respondent. The organ we rely on, that is, the police is most of the time reluctant to serve maintenance documents. One of the reasons is that male police who normally effect service are victims of maintenance. This organ was cheap because the applicant has not to pay to effect service like in civil matters. If each magistrate court has to employ its dedicated tracer, it would appear that the budget of each magistrate's office will be affected. The magistrate for different services depend on budget