Maintenance Amendment Bill: public hearings

Meeting report

Maintenance Amendment Bill
Ms Teresa Ross, State Law Advisor, Department of Justice and (DOJ) read out the Memorandum on the Objects of the Maintenance Amendment Bill to the Committee. Notable among the amendments:
▪ Clause 1 seeking to amend section 6 of the Act to oblige a maintenance officer to investigate a matter with the view of instituting a maintenance inquiry where good cause exists for the substitution or discharge of a maintenance obligation in the case of a verbal and written agreement which has never been made an order of court.
▪ Clause 2 amends section 7 of the Act to empower a maintenance court to issue a direction directing one or more electronic service providers to furnish the court with the prescribed contact information of a person who may be affected by an order of the maintenance court if that person is a customer of that service provider.
▪ Clause 3 grants the maintenance officer the power to subpoena the beneficiary of maintenance order where the respondent was applying for the reduction or discharge of a maintenance order.
▪ Clause 4 places a duty on maintenance court to speedily conclude maintenance enquiries and make an interim order pending finalisation of the matter.
▪ Clause 5 amends 16(2)(a) so before the attachment of emoluments, it ensures that the court hears the views of the respondent's employer about the feasibility of such an order before it is made.
▪ Clause 6 empower a maintenance court to make an order in the absence of the respondent or beneficiary or both parties, if the order is consistent with the written consent handed in by the maintenance officer at the enquiry. A copy of the order made must then be served on the party that was absent.
▪ Clause 7 empowers a maintenance court to grant an order by default if the court is satisfied that a respondent person, including the person in whose favour a maintenance order has been made, failed to appear after having been duly warned by the court to so appear and after calling upon the person who lodged the complaint to adduce evidence orally or in writing in support of the complaint.
▪ Clause 9 allows the existing court order to cease to be in effect, but only insofar as the order of the maintenance court expressly or by necessary implication  replaces the earlier order.
▪ Clause 12 expands the instances where a court may order the attachment of emoluments to pay maintenance arrears
▪ Clauses 13 , 14 , 15 and 16 increases the prescribed penalties.
▪ Clause 17 proposes to create a new offence to deal with persons who obstruct or hinder a maintenance investigator from exercising his or her powers or who impersonate a maintenance investigator. Section 41 of the Act provides for the conversion of criminal proceedings into a maintenance enquiry in certain circumstances. In the case of S v Magagula 2001 (2) SACR 1123(T) , the court held that the question whether or not a court should convert a criminal trial into a maintenance enquiry should be in the form of a discretion and should not be peremptory, as is currently the case.
▪ Clause 18 aims to amend section 41 in order to make provision for the trial court, at its own discretion, to order that criminal proceedings be converted into a maintenance enquiry     

Sonke Justice Network Submission
Mr Wessel van den Berg, Parenting Portfolio Manager, Sonke Gender Justice, said generally, Sonke endorses the Bill which it believes enhances the administration of maintenance in South Africa. However, it raised a concern about incarceration of defaulters. A global body of evidence confirms that engaged, responsive fatherhood and man participation in children’s lives that goes beyond financial contribution has positive effects for women children and men themselves. In line with this thought, provisions designed to ensure financial support can sometimes have negative and discordant affects. Harsh penalties for child support nonpayment unduly and disproportionately affect low income debtors who may not have the capacity to meet their maintenance obligations. The penalty of incarceration not only has a direct impact on existing child support obligations, but more generally affects the debt status of the defaulter and the lives of the family. Where a maintenance defaulter is imprisoned for defaulting on obligations, the consequence is that this person will be rendered unable to meet existing and future maintenance obligations. The incarceration provisions could result in absent parenthood because the debtor will have limited visitation rights and little ability to provide day to day support to their children. The incarceration provisions only serve to secure payment from those who are able but unwilling to pay maintenance but have a devastating effect on those debtors who do not have financial capacity to meet their obligations. It is suggested that alternative penalties such as the withholding or revocation of passports, visas; drivers and other licences and/or membership across professional bodies.  

Discussion
Mr T Bongo (ANC) said that incarceration as solution for maintenance defaulters was wrong as taking a defaulter to prison was not a solution. Maintenance affects many people including Members of Parliament and putting a person into prison had to be reconsidered and other possible alternatives looked for.

The Chairperson said that the aim was to make it possible to ensure maintenance and that children do not go hungry. It was about making the maintenance system in South Africa more workable.

Mr L Mpumlwana (ANC) said that the prisons were full and the Committee was always looking for means to get people out of prisons. It does not help to incarcerate people in the already-full prisons and who come out as hardened criminals.

Mr J Selfe (DA) said that the question was about having an effective maintenance system. There were people who cannot pay and others who can pay, but choose to spend money on other things. It was indisputable that people emerge from prisons as hardened criminals and there was a need to make a distinction to between those who can pay but choose not to, and those who were indigent.

Mr Lawrence Bassett, DOJ Chief Director: Legislation Development, said that the courts were obliged to look at alternatives before sentencing. In their wisdom the courts look at the effect on the child and the person’s ability to pay. Incarceration for willful refusal will remain, of course.

The Chairperson said sentencing sanctions were there as a deterrent for willful defaulters.

Mr  van den Berg said he agreed with suspended sentences and fines. He supported the proposal to include imprisonment for those who defaulted excessively.

Prof C Msimang (IFP) said there were fathers who can pay and simply do not want to pay maintenance. Imprisonment in order to achieve deterrence was needed.

Mr Danie Schutte submission
Mr Danie Schutte, Attorney, Karien Schutte Prokureurs, said access to maintenance often requires three resources from women: money, time and energy. It should be made easier so as to help children and improve justice in the country as a whole. There were four types of maintenance providers involving the unemployed, self employed, employed and a hybrid. The employed was the only one where maintenance provision was easy to implement. He suggested that in the case where a man denies pregnancy, a provision should be made possible for the woman to approach the courts to issue a default order rather than wait for the child to be born and then only start the request for maintenance which will be six months down the line. He agreed with alternative sentences as suggested by Sonke. He suggested that lessons about interim orders used for domestic violence cases be used for the speedy conclusion of maintenance cases.

Discussion
Mr Selfe said there was a difference between domestic violence and maintenance in that the former was criminal and the later was civil.

Mr Schutte replied that taking lessons from domestic violence will enable the respondent to have an opportunity to expedite matters should a maintenance order be issued beyond his affordability by furnishing the court with proof of earnings. The woman must face consequences should she lie to the court about the husband's income.

The Chairperson pointed out that the interim order can be both positively and negatively adjusted. The welfare of children should always be the first consideration, without waiting for undue hardship. She asked what will be done about women who lie.

Ms M Mothapo (ANC) said offering interim maintenance orders was more acceptable and affordable especially to rural women who travel many kilometres to access the courts. Provisions should be made for emergency monitoring relief and assistance to rural women who were not literate enough to understand how the court maintenance system works.

Mr Shutte replied that the man can admit or deny that he is the father, however, an order should be made that two weeks after delivery, the husband must start paying maintenance. If this process is only started after delivery, this will only be done when the woman gets the time, money and energy. In case of domestic workers and others, they do not have these three resources necessary to make maintenance provision work.

Commission for Gender Equality submission
Ms Wendi Kondile, Commission for Gender Equality (CGE) representative, defined an alleged maintenance defaulter as any person who is liable for the maintenance, upkeep and welfare of a person in terms of any relationship, court order, agreement, law or legitimate expectation and where such liability has not been fulfilled for any period of time. CGE suggested the insertion of Section 7(3)(b) that the court may issue a direction in prescribed form, directing one or more electronic service providers as well as any family member to provide this information. It also recommended the amendment of section 9 to include that any person, who willfully fails to comply with a subpoena including persons who provide information that is incorrect, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. In order to mitigate against the prejudice suffered by complainants, CGE recommended that clause four amending section 10(6)(b) include that in instances where a postponement is for a period of one month or more, then the court must grant an interim order provided that the conditions in (i) and (ii) are fulfilled. It suggested an insertion in section 26(c) as: Where a person against whom an order for the payment of maintenance in terms of Section 16 (1)(a) or 21(3)(a) has been in default for a period of two consecutive months or more, then the clerk of court must immediately upon request by complainant, issue and execute a warrant for the arrest of the person concerned who may then be treated in terms of Section 31 and 41 within 40 hours of such arrest. The CGE proposed the establishment of procedures which will ensure that the right to maintenance was given the priority it deserves within the administrative and judicial structures by establishing for example a procedures similar to the Commission for Conciliation, Mediation and Arbitration (CCMA) to deal exclusive with maintenance matters.

Discussion
Ms Mothapo wanted clarity about CGE's suggestion about issuing a defaulter's order to a person’s family and its proposal for an arbitration commission.

The Chairperson asked if the involvement of network service providers was consistent with other laws.

Mr Kamraj Anirudhra, CGE Parliamentary Officer, replied that when the whereabouts of the respondent cannot be established, the complainant must be able to request this information from network service providers. The cost of requesting information should be borne by the respondent as the complainant was already seeking relief and already under a financial burden. He did not think it was in contravention of any other laws. When maintenance default takes place, defaulters usually seek protection from their family. The person assisting the defaulter should also bear the cost. The arbitration proposal seeks to establish something like the CCMA where both parties come and reach an agreement because the court system was adversarial especially for the financially weak.

Ms Mothapo asked if this meant that the man's mother can be held liable for her son not providing for the upkeep of his wife and children.

Mr  Anirhudra replied that in terms of common law, yes.

Mr Bassett said that this was covered under section 8 and there was no need to include a new provision.

Mr Anihudra replied that while section 8 exists, it was not used effectively.

Mr van den Berg disagreed with this argument because it increases the burden on grandmothers who already have the burden of looking after their grandchildren.

The Chairperson said the issue of including family members need to be looked into. She thanked the invited organisations for their submissions.

The meeting was adjourned.