National Association of Democratic Lawyers
Human Rights Research and Advocacy Project

SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE
MAINTENANCE BILL -

Prepared by: Shireen Motara
August 1998

Introduction
In terms of South African law, there is a common law and a constitutional duty (section 28(1)(b)and (c) of the Constitution) on both parents to support their children. However, this duty often falls squarely on the shoulders of mothers. Women continue to carry primary responsibility for child rearing and child care. The rise in female-headed households, combined with the high divorce rates, also increases women’s responsibility for child care. Women’s worsening socio-economic situation has compounded their reliance on maintenance as a supplementary source of income. In addition to this, women’s need for maintenance is exacerbated by their location in the labour market, where they still occupy the lowest rungs of the employment scale and are concentrated in unskilled positions. Women also form the majority of unemployed in the country. Accessing maintenance as a source of income to meet their children’s basic needs has proven to be an uphill battle for many women. It with this in mind that the NADEL Human Rights Research and Advocacy Project would like to commend the Department of Justice on the legislative steps it is taking to improve the maintenance system.

By way of introduction we would also like to suggest that the Department of Justice and other law-making bodies consider the idea of using plain language. Part of making Parliament and its processes accessible to the people means that people should be able to easily read and understand the laws that affect their lives. In the case of maintenance, the technical language used in this Bill has the potential of making it inaccessible to advice workers who are often the only source of assistance for maintenance court users.

Our Research on Maintenance
The NADEL Human Rights Research and Advocacy Project is currently conducting research on how to improve women’s access to justice. The aim of the research is to look at the problems experienced by women who use the maintenance system and to come up with solutions and recommendations on how to address these problems. It is common knowledge that a great deal of the difficulties experienced by women who use the maintenance court, relates to the inability or unwillingness of maintenance officers to carry out their duties. The research hopes to identify the reasons for this and offer some recommendations to make the maintenance system more accessible. Interviews are being conducted with maintenance officers, magistrates, court users, the Department of Justice, Justice College, the Family Advocates office and the Law Commission. It is our hope that the research recommendations will contribute to the transformation of the maintenance system. Some preliminary findings of the research will be mentioned in this submission.

The Maintenance Amendment Bill
1. Discretion afforded to maintenance officers

This bill still affords too much discretion to maintenance officers. The bill gives maintenance officers the discretion to:

• decide whether or not an enquiry should be instituted once a complaint has been lodged (section 6);
• decide whether or not to take statements from people who may be able to "give information of material importance", to "gather information concerning the identification or earnings" and to gather any other relevant information (section 7);
• decide whether or not to subpoena any witnesses "including any person legally liable to maintain any other person" to give evidence or produce any proof the maintenance officer "may in particular require" (section 9);
• decide whether or not to make an order in relation to "lying-in expenses incurred by the mother in connection with the birth of the child and of expenditure incurred by the mother from the date of the child’s birth to the date of the enquiry", and the same applies to medical expenses for the child (section 17);
• decide whether or not to forward the name of a person convicted of an offence to a credit bureau (section 27);
• decide whether or not to attach the property of a person convicted of an offence (section 28 (2)(b)).

Clearly, many of the above instances do not require the exercise of the discretion by a maintenance officer. If certain steps are not followed, the maintenance officer must take further steps to remedy the situation.

Research Findings
1.1 In interviews conducted with two maintenance officers at the Vereeniging Magistrate’s Court, I found that while one of them immediately sent a letter to the defaulter to appear before her, the other one gave the woman a letter to go to the defaulter’s place of work to find out what his salary and his clock number is. I was informed that this letter usually incites the defaulter to resign from his job. This cannot be tolerated as it undermines the Department of Justice’s commitment to improving the maintenance system. It also leaves the system vulnerable to the problems which the legislation is trying to address.

1.2 Questions on qualifications of maintenance officers have also produced some interesting results. One of the maintenance officers at the Vereeniging Magistrates Court started out as a clerk at the Unemployment Insurance Fund in Sebokeng in 1984. In 1987 he moved to Home Affairs until 1989 when he became a maintenance officer at the Sebokeng Magistrates Court. He was transferred to Vereeniging in 1993. He has received no training on maintenance matters, and when he started out as a maintenance officer, he was told to watch what his predecessor was doing.

The maintenance officer at Stellenbosh Magistrates Court started out as a clerk in the Criminal Court in 1981. She was transferred to the maintenance court in 1994 because the other clerks wanted to exchange positions and according to her:
"Die personeel het gese ek is die regte persoon om heeldag na klagtes van mense te luister."
(The staff said that I am the appropriate person to listen to people’s complaints all day.)

The only training she received was a 5 day course on "maintenance skills" in May 1997.

In addition to indicating a lack of proper training for maintenance officers, this research has also highlighted the lack of promotional opportunities for maintenance officers. This could partly explain why they often lack commitment and motivation in carrying out their duties.

Recommendations
1.1 There must be one procedure which is uniformly followed by all maintenance officers.
1.2 Maintenance officers should be granted very little discretion, if any.
1.3 There is a dire need for training for maintenance officers. Such training should include training on maintenance related matters, gender sensitivity and human rights.
1.4 There should be an investigation into the need for opportunities of advancement and promotion for maintenance officers.

3. Jurisdiction
According to the Bill (section 6), an enquiry may only be instituted "within the area of jurisdiction of which the person to be maintained, or the person in whose care the said person is, resides". This becomes problematic where, for example, the child lives with a grandparent in a rural area and the mother lives and works in the city.

Recommendation
3.1 The complainant should be allowed to lodge a complaint in the area where she lives or works or where the respondent lives or works, depending on which court is most accessible to her.

Lack of penalties for failure to co-operate

Section 8(4) states that a person who refuses or fails to furnish information regarding the identification, place of residence or employment, or earnings of the person (allegedly) liable to pay maintenance, will not be sentenced to imprisonment unless the magistrate "is of the opinion" that it is necessary for the administration of justice.

Once again, this undermines the efficacy of this Bill. Although we do not believe that a prison sentence is appropriate for a person who fails or refuses to co-operate, it is our belief that some kind of penalty should be given to people who refuse to give information which is essential for the proper administration of justice. The current difficulty of getting (in most cases) fathers to co-operate, bears testimony to this. The gravity of the information required cannot be ignored. Women need this money to feed and clothe their children, and where information is withheld deliberately, there must be a penalty for this.

Recommendation
4.1 Any person who withholds information deliberately should be charged with contempt of court, and bear the penalties associated with it.

Legal Representation

Section 10(3) grants a person "against whom a maintenance order may be made", the right to legal representation. Does this mean legal representation at his own cost or at the state’s cost? The Legal Aid Guide of 1998 clearly states that a claim for maintenance "may be determined without the assistance of a legal practitioner". Clearly, this has implications for the women who use the maintenance system and who are unable to afford legal representation.

The issue of legal representation in maintenance cases has major implications for the substantive equality of women in South African society. Women’s weaker economic position means that they are more in need of legal aid than men. The Legal Aid system in South Africa focusses on making legal representation accessible in criminal matters where majority of the accused are men. Civil matters, like maintenance and family violence, which mostly affect women, are largely not considered. Allowing one party to have access to legal representation, while the other does not, also has consequences for the fairness of the proceedings.

The Department of Justice has appointed a Task Team to make recommendations on the restructuring of the legal aid system. While the Task Team may be focussing on specific issues, it is still uncertain as to whether legal aid will be made available for matters such as maintenance and family violence.

Recommendation
5.1 Legal aid should be made available in maintenance cases.

Payment of Allowances and Travel Expenses

The Bill makes provision for witnesses and the "person against whom a maintenance order may be made" to receive an allowance as if they were attending criminal proceedings as a witness for the state (sections 11(1) and 11(2)(b)). It also makes provision for the "person against whom a maintenance order may be made" to be "paid the necessary expenses to travel to and from the court" and for his stay at the court (section 11(2)(b)).

This is outrageous. We find it highly objectionable that this provision, which is presently in the Maintenance Act, has been retained. Women who lay maintenance complaints are often the ones who have to miss numerous days of work, with the resultant loss of income, because the respondent has not appeared in court or because the matter may have been postponed for some or other reason. Yet it is the respondent who is the one being "rewarded" for appearing in court. This is grossly unfair. If the Department of Justice is going to go to such lengths to accommodate defaulters, the same should apply for complainants. They are, in reality, the people who deserve this "benefit".

Recommendation
6.1 Women should be entitled to a stipend for their travel expenses.

Customary Unions

The Bill only recognises customary union as defined in the Black Administration Act. This discriminates against other cultures and may be open to constitutional challenge for creating a "hierarchy" of cultures.

Recommendation
7.1 All customary unions, irrespective of the religion or culture, should be recognised.

Garnishee Orders

While the Bill makes provision for garnishee orders once a maintenance order is made, it states that the court can only make this order if it is not "impracticable or inappropriate" (section 17(2)(b)). The delays in payment of maintenance place women in an insecure position every month. We are concerned that this provision may once again used as an excuse by the court and the employers not to make use of garnishee orders.

Research Findings
7.1 The maintenance officer at Vereeniging informed me that garnishee orders are "very scarce" and that they have to be approved by the court. On the other hand, the maintenance officer at Stellenbosch believes garnishee orders are the best method to ensure payment and that they issue them on a weekly basis.

Recommendations
7.1 Where the respondent is employed, a garnishee order should automatically be issued.
7.2 The words "impracticable" and "inappropriate" should be eliminated from the Bill.

Offences and Penalties

Section 27(1) states that a person who fails to make payment in accordance with a maintenance order shall be guilty of an offence or to imprisonment without the option of a fine. In its issue paper on the review of the maintenance system, the Law Commission has highlighted the problems associated with the imposition of a prison sentence for non-payment of maintenance. Note the following statement by the Commission:

"... the defaulters realise that the chances of them receiving anything else than a suspended sentence are very slim. This causes the criminal sanctions to lose their deterrent effect. As a result the threat of criminal sanction has become a hollow one which undermines the potency of provisions to enforce maintenance orders".

Research Findings
9.1 In an interview with a maintenance magistrate in Mitchells Plain, I was pleasantly surprised to find that there was at least one judicial officer, who while applying the law, tried to do so creatively. Mr Claasen informed me that he sentenced convicted defaulters to correctional supervision until they had paid the outstanding maintenance arrears. Correctional supervision includes house arrest, community service and the attendance of programs. Such programs include methods of dealing with alcohol and drug abuse, as well s financial management. According to Mr Claasen this has proved to be more successful than the imposition of a suspended sentence. He works with a correctional supervisor who assesses whether or not a defaulter is suitable for correctional supervision, and defaulters are monitored by the Correctional Services office.

9.2 In California, the Child Support Enforcement Program have a wanted list of non-paying parents. Photographs are posted on the Internet, with a personal profile of the offender and details of who to contact about such person’s whereabouts. (An example of this is attached to the submission). This may be an option for South Africa to consider. The negative publicity associated with such a step may act as a deterrent for some defaulters. This program also has several ways in which it collects maintenance which is still outstanding. These include:

• intercepting income tax refunds, part of unemployment insurance funds, disability insurance and worker’s compensation;
• denying licences to drivers, businesses and professionals who owe outstanding maintenance.

In addition to this, the Program runs a "responsible fatherhood campaign" where they use prominent sportsmen to get all fathers to accept "the duty and honour of responsible fatherhood". In South Africa, the 5 in 6 Project and the Agisanang Domestic Violence Prevention and Training Centre are fulfilling a similar role. The 5 in 6 Project "aims to get men to see that they can do something positive and encourages them to challenge the idea that men must be seen only as the perpetrators of ... crimes". It "identifies ways in which men can assume responsibility for problems within the community, help find creative solutions and be involved in the implementation of these solutions". (Agenda, 1998). We believe that one of the reasons why gender issues are not taken seriously in South Africa is because we do not have sufficient public education and awareness raising about it.

Recommendations
8.1 Penalties should have a punitive as well as a deterring effect.
8.2 Correctional supervision, as it is employed in the above case, should be used to ensure a commitment to pay maintenance on the part of defaulters.

Conclusion
It is essential to bear in mind that legislation is not the salve to heal all wounds. It is only the beginning of a process. Our maintenance system suffers from a number of deficiencies, the legislative aspect which is but one. It is hoped that the process currently being undertaken by the Law Commission and the technological steps being taken by the Department of Justice to alleviate administrative problems, will provide a holistic solution to this problem. The government has a responsibility in terms of the Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to ensure that women are treated with equality and dignity. Taking the issue of maintenance seriously, is part of fulfilling that responsibility.