South African Law Commission
21 August 1998
The Chairperson: Justice Portfolio Committee
House of Assembly
ISSUES RELATING TO DRAFT MAINTENANCE LEGISLATION
The Commission, through its project committee on maintenance, had occasion to consider a proposed Bill prepared by the Department of Justice and circulated for comment during the first half of 1998. A number of issues contained in that proposed Bill caused concern with the project committee. These concerns together with proposed alternatives are discussed in the Commission's Interim Report on Maintenance. Although the Maintenance Bill, 1998, ("the Bill") differs substantially from the proposed Bill which was the subject of the project committee's discussions, some of the committee's concerns remain. These will be highlighted in this document.
Influence on common law duty of support
The current Maintenance Act, 1963, ("the current Act") does not purport to create any duty of support nor is it a codification of the common law in this respect. It approaches the issue of maintenance from a formal rather than substantive point of view and attempts to provide a speedy and inexpensive alternative to the enforcement of a duty of support in the High Court. The Bill, seems to approach the issue of maintenance from the point of view that provision of child support is the most important component of a maintenance system without recognising the other relationships that can give rise to a duty of support at common law. (The preamble and clause 16 of the Bill) This approach does not take cognisance of the fact that the duty of support between a parent and child is a reciprocal one and can upset the application of the Bill to other maintenance obligations which are not based on a parent-child relationship. The Bill goes further and attempts to codify the duty of support owed by a parent to a child which may cast the effect of such a duty in too narrow terms.
Interpretation of "maintenance order"
A maintenance order is currently defined as an order for the periodical payment of amounts of money and this definition is retained in the Bill. This definition read with the provision for the making of orders which deals with the making of a maintenance order and an order for the payment of medical expenses in two separate subparagraphs leads to the interpretation that an order for the payment of medical expenses is not included in a maintenance order. (Clause 1, read with clauses 17(1)(a)(iii) and 17(1)(b)(ii) respectively) This causes problems with the enforcement of orders for the payment of medical expenses which will continue under the Bill.
Maintenance investigators
The function of a maintenance investigator should go beyond that of a mere tracer who will only locate persons and serve process on them. (Clause 5) The maintenance investigator should assist the maintenance officer in the investigation which he or she is required to carry out in respect of a complaint. This entails, among others, establishing the respective financial positions of the parties concerned.
Procedural aspects
Of the many problems experienced in relation to the present maintenance system two areas seem to require the most urgent attention. The first is the procedure leading up to the making of a maintenance order where repeated visits to the office of the maintenance officer and numerous postponements of enquiries are common complaints. The second is the enforcement of maintenance orders by way of conviction of maintenance defaulters which is widely accepted to be ineffective. In both these respects it is believed that the Bill does not provide adequate relief.
Orders in the absence of a person
The maintenance court currently has the power to make a maintenance order against a person who is not present at an enquiry with that person's consent. This power can simply be extended to apply to a person who was duly summoned to appear at an enquiry instead o f providing a whole new procedure to accomplish this. (Clause 22) What should be added is a procedure for the variation or rescission of an order made in a person's absence. This procedure should entail an onus on the person applying for a rescission or variation to satisfy the court that his or her failure to appear at the enquiry was not due to his or her fault and that there are sufficient grounds to justify a rescission or variation. It is also imperative that the person in whose favour the order was made be given an opportunity to oppose the application for recission or variation.
Payment of maintenance
As a general rule maintenance payments should be recovered from the maintenance debtor’s income. This should be the automatic consequence of the making of a maintenance order without obliging the court to make an order to this effect. (Clause 17(2)) The exception to this should be where the court is of the opinion that the recovery of maintenance payments from the maintenance debtor’s income will be impracticable. The income that may be taken into account for this purpose should include more than just the wages or salary of the person in question. Income from a profit sharing agreement, trust, long term contract for the rendering of services etc can be included in a person’s income.
Execution of maintenance orders
The procedures for the execution of a maintenance order and the enforcement thereof (through criminal sanction) should be separated. (Clause 28) A maintenance order should be seen as a final order of a court for the payment of an amount in installments to another person and should be executable as such without requiring the person in whose favour the order was made to initiate further court proceedings. The execution of a maintenance order should therefore be placed on par with the execution of a civil judgment of the Magistrate's Court for the payment of money.
The issues raise in the discussion above relate to the main objects of the Bill as stated in paragraph two of the Memorandum on the Objects of the Maintenance Bill, 1998. It is submitted that all of these matters, except for those clauses of the Bill that affect the common law duty of support, can be dealt with more efficiently than is done in the Bill. Alternatives, in the form of amendments to the current Act, to accomplish this are recommended in the Commission's Interim Report on Maintenance.
Th Commission would appreciate an opportunity for the researcher who assisted the project committee in drafting the Interim Report on Maintenance and the proposed alternatives contained therein to address the Portfolio Committee in the issues highlighted in briefly in this document.