Maintenance Bill [B72-98]: discussion

Meeting report

JUSTICE PORTFOLIO COMMITTEE
8 September 1998
MAINTENANCE BILL [B72-98]: DISCUSSION

Documents handed out
Summary of submissions on the Maintenance Bill

SUMMARY
Mr. Basset from the Department of Justice went through the Bill referring to the submissions as he went along.

MINUTES
Clause 10
Maintenance Action Group submitted that the complainant should also be entitled to legal representation. Clause 10 (3) is therefore to be amended to read any party in the maintenance matter.

NADEL was concerned about who bears the cost of the proceedings. Mr. Basset answered that the legal aid guide would deal with this.

The Chair added that it would be made part of the resolution that the final act should contain a step- by- step procedure for the enquiry.

Clause 11
The Law Society had a problem with paying allowances to defaulters. Mr. Oosthuizen of the Department of Justice said that these provisions are included in the Criminal Procedure Act. The Chair stated that 11(2) should be dealt with in the final act not this interim legislation.

The Chair said 11(4) was confusing and wanted to know what this was. Mr Oosthuizen replied that this was a principle from the old act which entitled the defaulter not to give evidence that incriminates himself (especially evidence relating to other people he must support). It was argued that 11(4) should be deleted.

Coming back to 11(1) Mr. Basset said that there was a difference between allowances and travel expenses. The Chair submitted that the clause made provision for travelling expenses subject to input from the Department regarding the financial point of view.

Clause 12
Clause 12(2)(b) is a new provision and deals with the situation where the respondent does not object to documentary evidence. The effect of this is that the evidence would be regarded as if it was given by a witness.

LB Ngwane (ANC) wanted to know what the aim of this was. Mr. Oosthuizen said that it was to speed up the process.

The Chair said that this provision should also be looked at closely when drafting the new legislation.

Clause 14
Refers to the Criminal Procedure Act for the procedure to be followed. The Chair said that if there was a wish to set out the whole procedure it should be done in the final act not in this interim one.

Clause 15
This provision deals with the recognition of the customary unions recognised by the Black Administration Act. The submissions were that this clause is unconstitutional because other religious and other cultural unions were not recognised. A long debate ensued but the outcome was that clause 15 should be dealt with in the definition section. The Chair and the committee share the concerns about the constitutionality but up to now other religions and cultures are yet to be formally recognised. The Chair said to Mr Smith, representative of the South African Law Commission, that the SALC must speed up work on their report on the religious and cultural problems and then later incorporate it with the definition.

Clause 16
This clause deals with the duty of the parent to support children. Mr. Smith said that child support goes further than the natural parents. The Chair said that the maintenance order is defined and includes any order by any person given by any court The Chair agreed that the way the clause stands could create problems. Mr. Smith stood firm that the clause would create problems for children if they are not supported by their parents. The Chair on the other hand did not see this problem because this provision only regulated the duty of the parent. The Chair suggested that the first provision in clause 16 should clearly spell out that the clause only refers to the duty of the parent and does not affect any other duty of support. Mr. Smith agreed that such a provision would be satisfactory.

The next discussion took up a lot of time and came up entirely by accident. A committee member had an old draft containing 16(3)iii which is not included in the present draft. It dealt with the common law rule that entitled the first born of children of the first marriage to preferential treatment in maintenance matters. It was decided that the legislation should prohibit such common law rules.

The chairperson felt that S16(3)(a)(ii) is redundant in the sense that it is already indirectly expressed by 16(2) and 16(3)(a). Mr Smith replied by saying that 16(3)(a)(ii) serves as a guidelines to maintenance court in determining the amount to be paid as maintenance in respect of a child. Mr Solomons felt that the words "divorced parents" used in 16(3)(a)(ii) should be deleted from the provision because the equality principle dictates that all children are equal and 16(3)(a)(I) already does create this presumption therefore is no need for these words to be used in the provision. The committee accepted what Mr Solomon had said.

Clause 17
The chairperson expressed a concern regarding 17(1)(a)(ii) i.e. whether or not prescription laws would operate against the mother’s claim in this regard, Mr Smith was therefore asked to research the issue and report to the committee on the 14^th of this month.

Clause 17(2)
This provision is based on section 12 of the 1963 Act. Mr Smith, speaking on behalf of the Law Commission, asserted that a statutory duty has been placed on the employer in order to give effect to this provision. The committee agreed that garnishee order, as is contemplated by this provision would only be granted in respect of periodical payments of maintenance as opposed to a once-off payments of maintenance. Mr Nel wanted to know what is meant by "income" as contemplated in the provision. Could "income" include rent received by the respondent? Mr Smith responded by saying that it is in issue which the court would have to decide on or that the issue could be regulated in the Regulations. Mr Mzizi wanted to know whether the onus rests on the respondent or the complainant. Mr Smith responded by saying that the court will decide on the issue and that therefore none of the parties bears the onus. The committee decided, however to flag the issue regarding "impracticability"

17(3) – no discussion

17(4)
This provision is based on section 12(2) of the 1963 Act. It was said by the committee that, regarding 17(4)(b), there should be a corresponding duty placed on the respondent as well to inform the maintenance officer of his/her change of the employment.

The clauses in the bill are numbered incorrectly therefore the next section which is orders by consent should be clause 18 but is numbered as clause 17. I will therefore follow the numbering as put in the bill for the sake of convenience and avoidance of confusion.