1. Introduction
The South African Human Rights Commission ("the Commission") welcomes the Maintenance Bill. It is noted that the South African Law Commission are investigating the entire system of private maintenance in the country, with a view to systemic amendments, and we await the provision of their report, and the debate around the possible introduction of a new system.
In the interim, the Bill introduces much needed amendments to the existing system, which will have enormous outcomes for those who rely on private maintenance payments. Most notably, the innovations relating to automatic garnishee orders and default judgements will go a long way to improving the collection of maintenance from non-custodial parents.
The preamble to the Bill locates the context of private maintenance in the arena of children and children’s rights and requirements. However, it is important to acknowledge that the issue also has strong gender implications, as the role and responsibility of child rearing falls disproportionately on women. Many women rely heavily on financial support from fathers or from the state. When these sources are insufficient, it is the women who carry the burden and difficulty. Further the labour, time and efforts of custodial parents, the majority of whom are women, is largely undervalued, and not taken into account when assessing the relative contributions of parents in a maintenance enquiry.
Accordingly, it is recommended that the role of women as primary care givers, and as those who suffer the financial hardship in cases of defaults in payment, should be expressly acknowledged in the preamble to the bill.
Finally, the Commission commends the inclusion of the new provisions in a comprehensive bill, as opposed to a series of amendments.
RECOMMENDATIONS
That the position of women as primary care givers, and as the those who suffer financial hardship when maintenance is not paid must be articulated in the preamble to the bill.
2. Current System
The administration of private maintenance requires urgent reform. Although the introduction of legislative amendments will offer important improvements, it is the implementation of the system which provides major hurdles to applicants. The process of obtaining an order is unnecessarily long and complicated, and the period of time between an application and order being made results in grave financial prejudice to the custodian parent and ultimately to the child in question.
Maintenance courts are significantly understaffed, and backlogs are enormous. Applicants are forced to take time off work to attend court, and often endure many postponements of investigations and enquiries. Maintenance officers struggle to keep up with the complaints, and are unable to provide prompt and effective service.
In addition, in a recent study conducted by Alison Tilley of the Black Sash in the greater Cape Town area, vast discrepancies in the understanding of the basic principles of the common law relating to maintenance was established amongst maintenance officers. This highlights the need for training for the personnel who are responsible for assisting applicants.
The introduction of maintenance investigators in section 4 of the bill is a practical innovation, which will significantly improve the process of obtaining an order. The maintenance system is designed to be negotiated without an attorney. Attorney’s fees are prohibitive, and Legal Aid is not available for maintenance applications. However, because of staff shortages, applicants are not provided with the assistance that they require. The Commission welcomes the addition of an investigator to work in conjunction with a maintenance officer.
The maintenance system is also characterised by a legacy of race discrimination in terms of the mechanisms for obtaining orders.
3. General Principles
3.1 Duty of parents
Section 16 appears to be a codification of the existing common law relating to the duty of support and maintenance, possibly for the purposes of clarity for both users and administrators of the Bill. However, the formulation of the common law position places emphasis on the obligation of parents at the expense of other common law duties of support. It may be useful to set out a clear exposition of the common law in this regard, as a reference point for officers and magistrates. However, it should clearly reflect the legal position, and all duties.
Further, any codification of common law duties support would be well advised to address a problematic aspect of the case law, namely that certain grandparents of an illegitimate child are not obliged to support the child. This is clearly discriminatory, and legislation needs to correct the notion.
RECOMMENDATIONS
That the common law position is set out thoroughly and accurately in the Bill, and further that discriminatory aspects of the common law are addressed and corrected.
3.2 Customary Unions
The section on customary unions, section 15, provides for a presumption of marriage for the purpose of the Bill, and obligations to maintain. However, this presumption would be more appropriately set out in the definition section, rather than in the body of the Bill.
RECOMMENDATIONS
That the provisions relating to customary unions be set out in the definitions section of the Bill.
3. Obtaining a maintenance order
3.3 Process
The process of obtaining a maintenance order consists of a three-step process: a complaint, an investigation and an enquiry. Having received a complaint, an officer must (with the assistance of the investigator) investigate the complaint, and thereafter has a discretion to refer the matter to court for an enquiry. The Bill sets out this procedure crisply. However, in practice, many maintenance officers see their role as mediators, and attempt to settle the matter. Although there is room for settlement at the investigation stage, a matter in which has merit, needs to forwarded to the enquiry stage forthwith.
Section 7 provides for the content of an investigation, which will enable an officer to assess whether a complaint has merit for the purposes of an enquiry. Until now, an officer has had to rely on a Respondent to arrive at court with sufficient proof of income, expenditure, assets and liabilities, and many postponements occur at this stage, because little or no documentation accompanies the parties to a inquiry in front of the officer, and no assessment can be made.
It may be advisable to reword section 7 to provide a straightforward process which is to be followed in every matter. To short-circuit any delays, both parties should immediately after the complaint is laid, be subpoenaed to the investigative hearing, with an indication that documentary proof of assets, liabilities, income and expenditure is required, (a subpoena ducus tecum). The use of an automatic subpoena at this stage will encourage full disclosure at an early stage, and allow the officer to make an informed assessment of the matter. In addition, disclosure at this juncture may encourage more matters to be settled, as the parties will be in a position to make their own assessments. Non-compliance will open a party up to the usual offences for non-compliance with a subpoena.
RECOMMENDATIONS
That the Committee give consideration to the introduction of clear procedures for the investigatory hearing envisaged in section7, with emphasis on the automatic issuing of subpoenas ducus tecum to both parties.
3.4 Officer’s discretion
The reference to "may" in section 6 establishes an important discretion on the part of a maintenance officer – to refer the matter to court for adjudication, or to refuse to refer it. It may be advisable to contextualise the discretion, by including a reference to an objectively determined standard, such as "…having established a prima facie case…" or "… on good cause show…". This will not only provide a clearer indication to a maintenance office of hat his or her role is at this stage, but will allow the improper exercise of the discretion to be more readily challengable.
RECOMMENDATIONS
That an objective qualifier circumscribes the discretion of the maintenance officer.
3.5 Educational expenses
The eventual order of a maintenance court can encompass a specific order relating to medical expenses, in addition to an order for ordinary day to day maintenance. It has often been suggested that a specific provision be included into the Act to cover specific educational expenses, such as school fees, or school supplies.
RECOMMENDATIONS
That the Committee consider the inclusion of a specific order for educational expenses.
4. Changing a maintenance order
4.1 Good cause
In addition to new applications, an officer must assess applications for the reduction, substitution or discharge of a maintenance order, often by the non-custodian parent. For this category of applications, the founding complaint must show good cause. Existing case law has requirement that these applications must be linked to a change in circumstances.
It would be advisable to flesh out this notion of good cause, or to define it expressly, so as to empower maintenance officers to deal with such complaints. This could be effective either through the section itself, or alternatively in the definition section.
RECOMMENDATIONS
That "good cause" be defined in the Bill, for the purposes of a substitution or discharge of an existing order.
4.2 Annual escalation
Given the long and cumbersome process of obtaining a maintenance order, together with the rising cost of living and inflation, mean that an applicant is forced to approach to court for repeated requests for increases, as expenses escalate. It may be possible to make provision for an automatic escalation to an order on an annual basis, so as to prevent standard applications for increase. A respondent will have the protection of the possibility of an application to show an inability to afford the automatic increase. The benefit of placing the onus on the Respondent in this regard, is that the custodian parent and child will not suffer the financial hardship of lower payments, and time off in court.
RECOMMENDATIONS
That consideration be given to the inclusion of an automatic annual escalation clause.
4.3 Divorce order
Divorce orders and Consent Papers often make references to maintenance payments, which are addition to payment of a portion of specific expenses such as medical or educational expenses. Applicants are often unaware that a maintenance court order is composite, with only medical expenses capable of forming a separate category.
This should be made clear either in the wording in the bill, or more appropriately in the wording of the form which is filled in by a complainant.
RECOMMENDATIONS
That consideration is given to introducing new provisions to provide clarity on replacement of High Court maintenance orders.
5. Enforcing a maintenance order
5.1 Payment by employer
The introduction of the ability to make an order against the employer of a Respondent to make payment of the amount from the salary of the Respondent will provide security to many applicants, and decrease the level of defaulting. In the current legislation, this kind of order could only be made, once a Respondent had been found guilty of defaulting on a maintenance order.
The Committee is asked to consider the provision in section 17(2)(b), whereby the court must be satisfied that it is "appropriate" to grant an order against a Respondent’s employer. This notion is too wide and ill defined, and allows an escape route on too fluid a basis.
Applicants who have already obtained maintenance orders under the current act should also be given an opportunity to approach a court to obtain an order against the Respondent’s employer, so as to extend the benefit of this provision.
RECOMMENDATIONS
That the use of "appropriate" is relation to the imposition of an order against an employer be critically considered.
5.2 Default judgements
The provision for default judgements is indicative a significant shift of the legislation towards the protection of applicants, rather than the protection of Respondents. The Bill provides for judgements to be made against an absent Respondent, such as takes place in any other civil proceedings. Further, the provisions permitting a Respondent to rescind the order is in line with Rescission applications in terms of the Magistrate’s Court Act.
If a provision is included into the bill setting out that a Respondent must be advise in the original subpoena that an order can be competently made against his or her employer for payment of maintenance, even in the absence of the Respondent from court at the date of the hearing, then the section should be augmented to provide for garnishee orders as part of garnishee orders. Obviously, additional provisions to satisfy he court regarding the employment and income of the Respondent will be required. Further, the Respondent must have the protection of the possible rescission of such an order.
Clarity is needed on the status of a default judgement for the purposes of execution. It may be advisable to simply state that such a judgement has the effect of a civil judgement, which will allow an Applicant to commence proceedings for recovery.
RECOMMENDATIONS
That the Committee considers:
• the introduction of a garnishee order in a default orders in appropriate cases;
• the introduction of clear provisions relating to the effect of a default judgement for the purposes of recovery.