BLACK SASH
PUBLIC HEARINGS ON [B72-98] MAINTENANCE BILL
We wish to welcome the tabling of legislation with regard to maintenance. The changes proposed by this legislation are, in the whole, improvements to the current system, which is in great need of reform.
According to work done be Prof. Sandra Burman, up to 80% of maintenance orders made in poor communities are not complied with. Simply getting a maintenance order is a lengthy process; Many applicants don’t succeed in obtaining an order in the first place, with the respondent evading service of subpoenas,
The introduction of maintenance investigators is very useful, and as we know, where they have been used they have assisted in bringing respondents to court. However, investigators must be budgeted for. We would like to know how much has been set aside for the employment of maintenance investigators, and in which jurisdictions they will be deployed?
We would also like maintenance investigators to be given specific powers to obtain information from -
• banks
• Home Affairs
• vehicle licencing authorities
• deeds registries
• registrar of companies
• Commissioners of Inland Revenue.
As far as paragraph 6 of the bill is concerned, it is necessary that where an order has already been made, "good cause" must exist for the substitution or discharge of a maintenance order. This is changed from ‘sufficient cause’ in the current Maintenance Act. This is , we assume, because in many instances respondents against whom orders have been made, often return to court for downward variation of the order made within short periods of time as they feel aggrieved by the order. We would question whether "good cause" is an adequate deterrant to, such an abuse of the courts process. "Good cause" may need explanation, or one may need to use a phrase such as ‘a material change in the circumstances’ of the party.
In paragraph 8 to 10 the process of a maintenance enquiry is outlined. This is currently a two stage enquiry. It seems the intention of the Bill to retain this structure. It is not made clear however, how these two stages work.
In the first enquiry the subpoena must detail all the documents required by the court, in plain English and the language of the respondent. The practice of not issuing subpoenas for the enquiries until the respondent proves intractable, should be stopped by ensuring subpoenas are issued for the first enquiry. It should be clarified that the 1st enquiry, in front of the maintenance officer, must be referred to a magistrate for the second or final enquiry if no agreement is reached at the first enquiry.
The attempt to codify the law in section 16 may be seen as useful in the light of our research. (See annexure 1). However, the common law is not set out thoroughly. For example; section 16(2) does not encompass all the expenditures one legitimately incurs with regard to children.
Section 17 should be expanded to include educational expenses.
Garnishee orders are a useful intervention. Section 17(2)(b) (I)(b) should not read inappropriate; it should be a matter of course that such orders are made.
The substitution of consent papers orders by maintenance orders needs to be avoided, and the Bill drafted accordingly. Section 17(1)(b)(I) might need to be amended.
It is very important that all judgements, including default judgements in the maintenance court have the effect of a civil judgement so that they may be executed against, not just arrears after conviction. In section 21, we welcome orders relating to blood tests, but point out that the wording is ‘prepared to submit themselves’.
Orders by default (section 22) will be very useful. It needs to be made explicit that these orders may be followed by garnishee orders.