Maintenance Bill [b72-98]; discussion

JUSTICE PORTFOLIO COMMITTEE
21 September 1998
MAINTENANCE BILL: DISCUSSION

Documents handed out:
Maintenance Bill with proposed amendments included (MAN 52)

SUMMARY
The committee went through another draft of the Maintenance Bill. (Man 52)

DETAILED MINUTES
Index - Only consequential changes were made, for example, a new heading for Chapter 5 reading ‘Civil Execution of Maintenance Order.
The numbering of the sections still needs to be changed, but this can only be done later.

Chapter 1 - The definition of income is excluded is this Bill.
The definition of emoluments is new and is the same as the definition used in the magistrate court.
There is a small wording change in 2(1) but the meaning remains the same.

Chapter 2 - The chairperson suggested a change to Clause 4 so that the Bill can provide for guidelines if the maintenance matter is non-criminal in nature and also to build an experienced pool of maintenance prosecutors. Mr. Oosthuizen, departmental law advisor, was instructed to draft something giving effect to this.

The wording to clause 5 is also only slightly changed from the previous draft. Miss Camerer (NP) suggested that the words may appoint be changed to must appoint. The chairperson agreed because this would be in line with the aim of the Bill. At the same time the chairperson realised that this kind of change will not be able to be given effect immediately because of financial considerations. It was however clear that this obligation must be phased in. Mr. Oosthuizen was instructed to draft the change but to do so in a way that indicates that immediate implementation could be problematic.

Chapter 3 - Clause 7(1)(a) the words any relevant inserted after given. (line 2) The words material importance deleted. (line 2)
7(1)(b)(i) The word whereabouts to be included after the word identification.
A new clause 7(1)(b)(iii) inserted. The subject of such complaint.
7(1)(c) the word gather is deleted. After the word obtain, the words within the jurisdiction of the maintenance officer is inserted.
7(1)(d) is a new clause that will read something like this.
The maintenance officer may require the maintenance investigator to perform any other duties or functions which will achieve the objectives of this act. Mr. Oosthuizen was instructed to draft this properly.
7(2)(e) after the word identification the word whereabouts is to be inserted.
A new 7(2)(g) is inserted. Gather such information that may be relevant concerning a request in terms of 7(1)(c).
The old 7(2)(g) can now be deleted because of the new 7(1)(d).

At this stage the chairperson, Mr. De Lange, left and the meeting was chaired by L. Ngwane (ANC).

Clauses 8 - 10 were acceptable and it was decided that clause 11 be flagged until Mr. De Lange returns because it had generated much debate in the previous meeting.

Chapter 4 - Clause 15(1) only included grammatical changes.
Clause 15(2) was redrafted to change the previous draft because the reference to everything the child requires was too wide therefore the change to reasonably requires.

At this time the chairperson returned and the meeting was adjourned early.

Ms Ngwane (ANC) took the chair. The committee continued to deliberate the proposed amendments to the Maintenance Bill using the document (MAN 52).

Sections 16 and 17 there were no issues to discuss.

In Section 18 a question was raised as to what subpoena would constitute "good cause": whether this meant failure to serve the subpoena or the "say - so" of the applicant that he did not see the subpoena. The committee agreed that it was the former situation.

In Section 19, the Chairperson wanted to know whether substantive changes had been made. Mr Smit (from the South African Law Commission) explained that discretion had now been given to the maintenance court to vary the order relating to where and how necessary.

Regarding the heading of section 21, it was asked if it should read "scientific". It was decided that 21(1)(a) should be redrafted.

A technical amendment to section 24 was that "chapter 5" should be with a capital "C".

The heading of section 26 has changed. The section also now says that the maintenance order must be executed against movable property first, then immovable property if there's not sufficient movable property. The question was raised as to whether to execute against debt first. It was agreed not to and it was proposed that "emoluments or debt" would be deleted in subsection 1(d). Also "movables" and "immovables" should be put in the same paragraph to ensure that "movables" can be executed against.

A technical change was made to section 29 (1) by adding "the" to "after [the] day".

Changes were made to the heading only in section 31.

In section 32, Mr Smit explained the consequential amendments.

In section 38, the phrase "willfully and negligently" was taken out and "refuses or fails to make any payment" was added.

Changes to section 41 (previous clause 34) means that a garnishee order can now be made against arrears.

In section 43, it was decided that photographs would be dealt with in the regulations.

There was a technical amendment in Section 44(2): the word "parliament " changed to "Parliament".

In section 44(1) Ms Camerer (NP) wanted to know if "appointment" should be added. Mr Smit replied that it should not as that appointment would be governed by the public service regulations.

The committee decided that section 45 and 46 should be switched.

Regarding section 46, Mr Hofmeyr said that until the regulation in 44(1)(d) came into effect, the Rules of the Magistrates Court would apply.

Regarding the savings clause Mr Hofmeyr said that it was too specific and it needed to be made more general. Mr Smit noted this though he was concerned that Mr Hofmeyr's formulation would be too general. Mr Hofmeyr responded that once the new Act was effected, there may be a vacuum as it was inconsistent with the Act.

Mr Basset (law advisor) reported that the translation of the bill with amendments was not complete nor was the resolution. It would be unlikely that it would be completed in time for the next day.

Mr Hofmeyr said that a draft must be ready by the following morning in order for the Speaker to allow them to debate the Bill even though it was not printed yet. All parties would then look at the corrected proofs on 23 September and vote on it. Mr Oosthuizen said that he would try and make that deadline.

Mr Hofmeyr said that he was keen to have the Bill completed, but the law would be sloppy. It could be fixed during processing in the National Council of Provinces. He was also worried about drafting errors, especially in the translation.

Ms Camerer concurred with Mr Hofmeyr's suggestion. Mr Mzizi (IFP) said that the staff had been industrious and the committee should listen to what they have to say. The Chairperson requested a short adjournment.