The Department of Justice and Constitutional Development continued its overview of the submissions and responses on the Maintenance Amendment Bill. The Bill aimed to amend the Maintenance Amendment Act by introducing provisions on granting interim orders where there was no maintenance order in place so that beneficiaries of maintenance did not suffer if the case was postponed for whatever reason. Other provisions included powers granted to courts to direct cellular service providers to hand over contact details of a maintenance defaulter or a ‘would be respondent’ in a maintenance claim. It specifically meant to assist maintenance beneficiaries where enquiries had to be postponed when the maintenance defaulter or a ‘would be respondent’ could not be traced.
The Committee continued the debate on the need for prima facie evidence to institute an interim maintenance order. The Department clarified by explaining that before an interim order could be issued, the “would be father” would have received notice of the application and it was not a given that the interim order would be granted. Whether the interim order would be granted or not, the court would grant an opportunity to the “would be father” to be heard. If the court, through its discretionary powers still granted an interim order based on the ‘best interest of the child’ principle, it would stand to provide interim relief until the paternity issue was cleared..
In terms of the court judgment, it was held that if a Magistrate contemplated an order where an employer was required to pay money on behalf of an employee, the court should give that employer an opportunity to be heard on the feasibility of that order. One of submissions explained that employers simply did not show up and maintenance orders enquiries would have to be postponed time and again in order to satisfy this requirement
The Committee agreed that if employers did not show up they had to abide by the decision of the court. Other Members raised the fact that there was a big difference between affording employers the opportunity to address the court and not being able to finalise the enquiry and to make an order in the absence of comments from the employer.
It had been submitted that the requirement that the complainant should bear the costs of obtaining the information on the whereabouts of the defaulter from electronic service providers would be burdensome to many complainants.
The Committee went on to discuss whether the blacklisting of defaulters was fair, whether imprisonment was an inappropriate means by which to enforce maintenance and what processes should be followed in terms a child reaching the age of maturity that still might need financial support.
The Chairperson welcomed everyone to the meeting.
Summary of written submissions and responses of the Department of Justice and Correctional Services (DoJ&CS): Maintenance Amendment Bill [B16-2014] (See attached document).
Adv Theresa Ross, Principal State Law Adviser, DoJ&CS, continued with the overview of the submissions received on the Maintenance Amendment Bill and the Department’s responses to the submissions.
Adv Ross said the Committee debated the need for prima facie evidence to institute an interim maintenance order at the previous meeting and this need was supported by Section 36 of the Children’s Act. If it could at least be proven that the mother of the child had sexual intercourse with the alleged father at the time the child was conceived, that man would be presumed to be the father.
The Chairperson said it validated the fact that it was a principle in law that once a man was pointed out to be the father then that man was legally assumed to be the father until proven otherwise. It was not really subject to evidence, because it was not a scenario that could produce witnesses to the fact.
Adv Ross replied that it was a presumption that could be rebutted by producing evidence to the contrary.
The Chairperson said instituting an interim order was a process and the issue at the previous meeting was what would happen to the children while a paternity dispute was ongoing.
Mr B Bongo (ANC) said lawyers still contested and debated what constituted prima facie evidence, because once a man was pointed out by a woman as the father of her child and that in itself was prima facie evidence by his understanding. The Committee would maybe need to get some statistics on the outcome of paternity tests.
The Chairperson said the legislation aimed to address the interim situation in the maintenance process. If there was contestation between parents, it would seem that the focus was more on the relationship of the parents rather than on the best interest of the child.
Mr W Horn (DA) said if paternity was in question there would be contestation which would be resolved by a paternity test. In drafting this legislation the rights and best interest of the child needed to be weighed against the rights of the “possible father”. It was paramount in the South African constitutional arrangement that a person should not be subjected to an outcome without due process. There was a risk of drafting constitutionally suspect legislation if the Committee did not build in some sort of test or measurement into the system before even interim measures on maintenance obligations were imposed.
Ms C Pilane-Majake (ANC) said the Committee should be guided by the purpose of the Bill to lessen unnecessary hardship experienced by children in the maintenance process.
Dr Charmain Badenhorst, Director: Child Justice and Family Law, DOJ&CS, replied that before an interim order could be issued, the “would be father” would have received notice of the application and it was not a given that the interim order would be granted. Whether the interim order would be granted or not, the court would grant an opportunity to the “would be father” to be heard. If the court, through its discretionary powers still granted an interim order based on the ‘best interest of the child’ principle, it would stand to provide interim relief until proven otherwise.
The Commission for Gender Equality (CGE) had submitted that the Bill should provide that where a matter was postponed for a period of one month or more, an interim order should be obligatory.
The Department responded that providing for an obligatory interim order would take away the discretion of the court. The circumstances might also not always warrant such an order.
The Chairperson agreed that there should be judicial independence.
Mr Van Niekerk submitted that the provisions of Section 16(2)(a) which required evidence to be heard before a Section 16(2) maintenance order could be made, were, in most cases, ignored simply because most maintenance orders were made by consent between the parties and there was no evidence led.
The Department noted this submission and provided the Committee with revised provisions to address Mr Van Niekerk’s concerns.
Mr van Niekerk further proposed that the provision that the court should hear the evidence of the person obliged to pay money under any contract and whom the court intended ordering to pay such money, should be deleted from the Bill. Employers should not be hauled to court because maintenance was an employee’s private financial issue.
The Chairperson asked that this submission be clarified.
Adv Ross replied that in terms of the court judgment, it was held that if a Magistrate contemplated an order where an employer was required to pay money on behalf of an employee, the court should give that employer an opportunity to be heard on the feasibility of that order. Mr Van Niekerk submitted that employers simply did not show up and maintenance orders enquiries would have to be postponed time and again in order to satisfy this requirement
The Chairperson said that if employers did not show up they had to abide by the decision of the court.
Mr Horn said there was a big difference between affording employers the opportunity to address the court and not being able to finalise the enquiry and to make an order in the absence of comments from the employer. The judgment would still be complied with if the Bill simply stated “that an order may not be made unless an employer was invited to comment, and in its absence the court may proceed to make an order”.
The Chairperson said the Department essentially agreed in its response and suggested revised wording.
The Committee agreed that Mr Van Niekerk’s submissions were valuable to this process.
The CGE submitted that the requirement that the complainant should bear the costs of obtaining the information on the whereabouts of the defaulter from electronic service providers would be burdensome to many complainants. They proposed that this clause be deleted from the Bill.
The Department responded that the court could, in terms of Section 8 of the Act, make an order for the costs to be borne by the defaulter. Placing this responsibility on the state would give rise to the question why the same assistance could not be extended to complainants under the Protection from Harassment Act and state funding was limited.
The Chairperson said this clause showed exactly why the public believed that the law favoured criminals, because the interpretation of the Constitution was weighted in favour of criminals.
Mr Bongo said people who applied for maintenance generally did so because they needed the money. Some redress was needed and this clause needed to be redrafted so that the cost could be recovered from the defaulter.
The Chairperson asked the Department to analyse the often wrong constitutional interpretations as it related to the rights of people.
Ms Pilane-Majake said the Department should also look at the legal representation available to women and children.
Ms K Litchfield-Tshabalala (EFF) supported the Committee’s stance.
Ms G Breytenbach (DA) said the Constitution protected the presumption of innocence.
The Chairperson said the interpretation of the Constitution created the impression that it was meant to protect criminals more than victims. It was reflective of the public perception and the interpretation thereof should be reviewed by lawyers. The Constitution did not intend women and children to be afforded fewer rights than criminals.
Adv Ross said the Bill already made provision for the costs to be recovered from the defaulter and in some instances defaulters were not traced.
The Chairperson asked if the burden should be on the state or on children if a defaulter was not traced, because the state collected taxes from the public.
The Congress of South African Trade Unions (COSATU) submitted that the direction by the maintenance officer to transfer the file should be done at the inquiry stage and the transfer should be standardised.
The Department replied that the aim of clause 10 was to standardise the transfer procedure and the need to transfer would usually arise much later when the order was already in place.
COSATU submitted that the blacklisting of defaulters was punitive and would also affect the defaulter’s other dependants.
The Department replied that the clause served the specific purpose to ensure that a defaulter did not continue to receive credit while owing on maintenance. A clause of this nature would encourage defaulters to make good on their maintenance obligations for fear of the consequences of being blacklisted.
Mr L Mpumlwana (ANC) agreed with COSATU’s view.
Ms Litchfield-Tshabalala said the law should be crafted to protect those that really could not pay, but the truth of the matter was that most defaulters simply did not want to pay and they should not be allowed to continue living lavish lifestyles if they could not support their children.
The Chairperson said punitive action should be taken to force people to own up to their responsibilities.
Mr Horn said perhaps the clause should be revised to protect those that had a valid defense for not being able to pay.
Adv Ross said Mr Horn’s concern was also raised by Mr van Niekerk and the Department committed to revise the wording. There were processes to follow before submitting someone’s particulars to credit bureaus to be blacklisted. A blacklisted person also had the right to approach the court to have that decision reviewed.
Ms M Mothapo (ANC) said the Department should take note that some men went so far as to enlist the help of mashonisas (loan sharks) to create artificial debt in order not to pay the rightful maintenance amount.
ABSA submitted that the administrative burden on the state and credit providers emanating from processing the orders would be alleviated if orders were submitted to one credit provider, which other credit providers would have access to. This would mitigate the credit risk and ensure the integrity of personal information.
The Department responded that this clause required the particulars of persons to be submitted in “the prescribed circumstances and in the prescribed manner” to credit providers. It was suggested that the details be dealt with in the regulations.
ABSA furthermore submitted that the appearance of identity numbers of affected persons on the orders would expose them to risks. The National Credit Act and the Protection of Personal Information Act required that the person whose personal information was being communicated to a third party should be consented thereto or there should be justification for communicating such information.
The Department responded that clause 11 required regulations and prescribed information meant that the information would be prescribed in the regulations. Role players would be given an opportunity to comment on the regulations. Section 11(1)(c)of the protection of Personal Information Act provided that a responsible party may process personal information of a person if that processing complied with an obligation imposed by law on the responsible person.
COSATU and Mr Van Niekerk submitted that the requirement that the court should hear the evidence of the employer of the defaulter before making an order would result in delays in finalising cases. The alternative was to encourage employers to cooperate with maintenance orders as a form of community service.
The Department responded that the clause gave effect to the court judgment in the case of S vs Nkoele. While it would be difficult to reach employers of all people with maintenance obligations, the Department would initiate awareness campaigns when the Bill became law. It was suggested however, that this clause be revised in a similar vein as clause 5.
Mr Horn said if the employer was not given sufficient notice before the first hearing the wording would not satisfy the Nkoele judgment, because the clause presupposed that the employer received notice to appear before the first hearing.
The Chairperson said those responsible for issuing notices should be able to provide the court with evidence that the notice had been given.
Dr Badenhorst confirmed that this was the case.
The CGE supported the proposed increase of the penalty, but proposed that Section 26(c) be amended to read: “Where a person against whom an order for the payment of maintenance in terms of Section 16(1)(a) or Section 21(3)(a) has been in default for a period of two consecutive months or more then the clerk of the court must immediately upon request by a complainant issue and execute a warrant for the arrest of the person concerned who may be then be treated in terms of Sections 31 and 41 within 48 hours of such arrest”.
The Department did not support this proposed amendment to the clause because only a court could issue a warrant of arrest. It would be improper for the clerk of the court to issue a warrant or even execute it and this proposal could open doors for abuse of the process.
The Chairperson agreed and said although all submissions had to be considered, proposals should be consistent with the law.
Mr Van Niekerk submitted that sometimes maintenance investigators were assisted in the execution of some of his/her duties, which were more administrative in nature, by the clerk of the court. Such assistance by the clerk of the court should not be criminalised.
The Department agreed and said the chances of such a matter being prosecuted were extremely remote. The Department however proposed to revise the wording to cover for any eventuality.
Sonke Gender Justice submitted that imprisonment was an inappropriate means by which to enforce maintenance payments and the timeframes were extreme and went beyond what was globally acceptable. Imprisonment provisions would result in absent parenthood and defaulters would not be able to work and as such be unable to meet existing and future maintenance obligations. The proposed prison terms would only serve to secure payment from those debtors who were able but unwilling to pay but would have a devastating effect on those debtors who did not have the financial capacity to meet their maintenance obligations.
The Department responded that the Maintenance Act placed an emphasis on civil enforcement rather than criminal enforcement. There was a high prevalence of failure to comply with orders and imprisonment should be utilised as a measure of last resort where efforts to enforce the order had failed. The personal circumstances of the accused person, the interests of society and the nature of the crime would be considered. The intention behind the increase in the maximum terms of imprisonment was to empower judicial officers to use them in extreme cases of non-compliance.
Sonke Gender Justice also submitted that imprisonment without the option of a fine was a serious infringement on the right to freedom and proposed that all sentences should be subject to a period of suspension in order to allow defaulters an opportunity to remedy their failure to pay maintenance.
The Department responded that the clauses did provide for a fine and it would limit the court’s discretion if all sentences should be subject to a period of suspension. This would also render enforcement provisions of the Act ineffective.
Ms Litchfield-Tshabalala said the prevalence of maintenance defaulting was much higher in South Africa than what was the global norm and it would be a case of selective benchmarking if imprisonment terms were weighed against what was happening globally.
Sonke Gender Justice proposed that penalties such as withholding, the revocation or suspension of passports, visas, drivers and other licenses related to membership bodies be considered as alternatives to imprisonment in respect of any contravention of a maintenance order.
The Department responded that this would only apply to a limited number of defaulters and perhaps this proposal should be researched by the South African Law Reform Commission (SALRC) in its investigation.
The CGE submitted that in order to ensure compliance with the constitutional rights of the child, swift procedures similar to those applicable in the Commission for Conciliation Mediation and Arbitration (CCMA) which would deal exclusively with maintenance matters, including collection and payment, should be introduced.
The Department responded that the SALRC would need to investigate whether the establishment of such a body would be viable.
Mr P Govender submitted that the requirement for complainants to supply bank statements and income and expenditure should be done away with. This information should only be submitted to the court on a need to know basis, because one party could use the information obtained therein against the other.
The Department responded that maintenance officers needed ll relevant documentation before coming to a decision whether to institute a maintenance enquiry and on the amount payable.
Somar Sitlu submitted that some unemployed parents used maintenance for their own benefit and not for the benefit of the child.
The Department responded that a parent who paid maintenance could report improper use of maintenance money to social workers who would investigate the claim and take proper action.
Ms Litchfield-Tshabalala said the Department needed to relook this because who would be looking after the best interest of the child if the maintenance money was improperly used but no one cared to report this. Other monitoring mechanisms should be looked at.
Adv Ross suggested it be investigated by the SALRC.
Mr Danie Schutte submitted that maintenance payable should be determined by a panel of experts using a sliding scale, and COSATU similarly proposed that the consideration of the respondent’s personal expenditure should be done away with.
The Department responded that the SALRC was dealing with determination of the amount of maintenance payable in its Issue Paper on the review of the maintenance system. The SALRC would also deal with submissions that talked to the possibility of obtaining a maintenance order during pregnancy, the possibility of future maintenance for an unborn child from the estate of its deceased father and the special needs of rural women.
Mr P Govender submitted that in order to prevent the party ordered to pay maintenance from prioritising his/her personal expenses, an emoluments attachment order should be made simultaneously with the issuing of the maintenance order.
The Department replied that the objective of a maintenance order was not to punish the person against whom an order had been granted, but to ensure that a child was provided for. It was not necessary to attach the emoluments when a party complied with an order.
The Department noted COSATU’s submission that the Department should partner with communities in order to provide education and awareness programmes. Officers of the court should be sensitised with regard to gender issues when dealing with maintenance orders. The Department elaborated and said awareness should be expanded beyond the Bill to include the entire maintenance regime.
COSAU further submitted that maintenance should be needs-based, for example, in the case of disabled children who have reached the age of maturity.
The Department responded that the Act did not preclude children who have reached the age of maturity from being maintained by their parents, as long as such children were not self-supporting.
Adv Ross clarified that it related to special circumstances with a clear need for further support. It also depended on whether the parent was still willing and able to pay, but it ultimately up to the court’s discretion.
The Chairperson asked why the court should be empowered to enforce further obligations if a maintenance obligation had been fulfilled up to the child’s age of maturity. He further wanted to know if the age of maturity should not be the cut-off date and then the need for further support could be established.
Dr Badenhorst explained that the onus was on the parent to discharge the order. If there was a cut-off date, it would mean that the child, albeit mature, would have to apply for maintenance.
The Chairperson thanked the Department.
The meeting was adjourned.