Maintenance Bill [B72-98]: discussion

JUSTICE PORTFOLIO COMMITTEE
09 September 1998
DISCUSSION ON THE MAINTENANCE BILL

MINUTES
Orders by consent
Clause 17

There was no discussion except that it was said that the words "any person not present" can be interpreted broadly.

Clause 18
This is simply a re-enactment of section 5(5)(b) of the 1963 Act. There was no further discussion

Clause 19
This provision is a re-enactment of section 14(b)(I) of the 1963 Act. Mr Oosthuizen speaking on behalf of the Department, said that the outcome of this provision is reviewable and appealable. He further added that the test or criteria of "conduct of the persons" as it is put in the provision, would be an issue decided by the court depending on the facts of each case.

Clause 20
This is a re-enactment of section 14(b)(ii) of the 1963 Act. The committee accepted the provision without any further discussion.

Clause 21
This is a new clause and Mr Basset speaking on behalf of the Department, stated that in practise warning letters are issued to respondents instead of subpoenas as is required by the bill. The committee therefore agreed that it should be stated in the regulations to the Bill that the process contemplated by this provision can only be initiated by the issuing of a subpoena and not a warning letter. Mr Oosthuizen asserted that 20(4)(d) does not allow the complainant to bring or adduce evidence to rebut the respondent’s application. The chairperson therefore requested the department to effect the necessary amendments so as to incorporate the complainants right to adduce evidence in 21(4)(d). The provision would then be in line with the Magistrate Court Act procedure of default judgement. Black Sash, in their submission, suggested that when once default judgement is given against a respondent, this judgement should be followed by the giving of a garnishee order against the respondent. The committee welcomed the submission but added that a garnishee order could only be given against a defaulting respondent if there is evidence regarding his/her details of employment. The committee felt that in such instances the court would find it practicable to grant the garnishee order. The department was therefore asked to effect the necessary amendments to the provision.

Mr O’Malley wanted to know what the ambit of the word "knowledge" in provision is Mr Basset responded by saying that "knowledge" as put in the provision has a broader meaning than "service". Mr Mahlangu said that the proceeding contemplated by this clause is a sui genereis proceeding and hence a subpoena is used to start off the proceeding but added that the subpoena document should more fully be described in the Regulations to the Bill as per its form and content. The department was therefore asked to include the above suggestion in the Regulations.

Clause 22
No discussion except that it is a re-enactment of section 6(2) and 6(3) of the 1963 Act.

Clause 23
No discussion

Clause 24
Re-enactment of section 14© of 1963 Act, no further discussion

Clause 25
Mr Nel asked whether a respondent in a default judgement matter may lodge an appeal even if he has not set the matter down for hearing on a date within 20days after the judgement has come to his knowledge. Mr Oosthuizen responded by saying that the respondent would not have to lodge an appeal but could apply for rescission or variation of the judgement and if he has lodged the appeal out of time, then the normal rules applicable to default judgements in terms of the Magistrate Court Act would have to be consulted. He added that 25(3) does not apply to default judgement matters. It was added by Mr Smith that if the judgement is rescinded the proceeding would convert into a maintenance enquiry once again, but until then the judgement will stand.

Clauses 26 – 29: Execution of Maintenance orders against property
It was submitted by the Law Commission per, Mr Smith that as the law no stands a maintenance order is not a civil order because in terms of the 1963 Act it has to be executed by the prosecution. The law commission’s proposal is therefore revolutionary in that it aims to utilise civil procedure, based on the Magistrates Court Act 44 of 1932 together with its rules, to execute a maintenance order. Hence it is tacitly implied then that a maintenance order would occupy the status of a civil order. The committee welcomed the proposal and the chairperson asked Mr Basset to transmit clauses 26-29 to the law society in order for them to ascertain whether these execution clauses are technically sound. Mr Basset is to report back to the committee on the 14^th of this month. The committee therefore did not consider these clauses in the meeting.

Clause 30
The committee asked Mr Smith to include in the Resolution to the Bill a provision stating that Magistrate should use these sentencing options creatively and in accordance with the objectives of the Bill rather than using them in punitive fashion. Mr Nel wanted to know whether the black listing of the respondent with the credit bureau is , in terms of this Bill still possible. Mr Oosthuizen responded by saying that the possibility has been provided for since 1992.

But the bureau cannot be compelled to black list the respondent. Furthermore, it now seems to be a meaningless provision in view of the fact that maintenance law is now in the process of being alligned with civil law as opposed to criminal law. He concluded by saying that this Bill however will still provide for "black listing" seeing that the Bill is an interim measure.

Clause 31
This is a re-enactment of section 11 of the 1963 Act. Mr van Heerden wanted to know whether this provision would cover an order granted in terms of rule 43 of the Magistrates Court Act. It was said that the department would investigate the matter.
Clause 32
Re-enactment of section 12 of the 1963 Act. No further discussions

Clause 33
Re-renactment of section 13 of 1963 Act. No further discussions

The rest of the clauses in the Bill were accepted by the Committee without further discussion. The committee decided to look at the Bill on Monday the 14^th of this month, after all amendments have been made at which time they will pass the Bill.