Child Maintenance obligations – Ducking and diving – Maintenance Defaulters beware!

Maintenance Defaulters, come out of hiding and watch out.

By Advocate Megan Naidu

Advocate Megan Naidu

Maintenance is the obligation to provide another person, for example, a minor, with food, housing clothing, medical care, and education or with the means that are necessary for providing the person with these essentials. All parents have the responsibility to ensure that their children have access to these necessities. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

Duty of support in relation to maintenance and/or support

The duty to maintain is based on a blood relationship, adoption, or the fact that the parties are married to each other.
– His or her parents, whether married, living together, separated or divorced, are required to support the financial needs of their children.
– His or her grandparents, regardless of whether or not the minor’s parents were married to each other.
– Any person who’s responsible to raise the child, for example, a legal guardian or adoptive parents.

 

Important factors in relation to support

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

– The family member who claims support is unable to maintain himself or herself.
– The family member from whom maintenance is claimed can afford the maintenance that is claimed.

Information and/or documents required when claiming child support

When applying for maintenance, you should have the following documents available:
– The Birth certificate of your child/children.
– Your identity document.
– Proof of residence.
– A divorce settlement.
– Proof of your monthly income and expenses.
– The personal details of the parent required to pay maintenance such as their name, surname physical and work address.
– Copy of your 3-month bank statement.

Ways to enforce a maintenance order:

The court in this instance grants permission to the defaulting parent to explain why they did not pay the maintenance. However, without a good reason, the parent will either need to pay all the outstanding maintenance or they’ll go to jail.

Recent Amendments to the Maintenance Act

In terms of the Maintenance Amendment Act (Act No.9 of 2015) parents who default on their maintenance order can be held liable in the following ways:

– Be blacklisted at credit bureaus.
– Face imprisonment with the option of paying a fine.
– Be jailed for a period not longer than 3 years.
– Have their property attached.
– Have their salary attached.
– Have interest added to their maintenance arrears.

The Maintenance Amendment Act improves the maintenance system 

The Maintenance Amendment Act (Act No.9 of 2015) was signed into law by our former President Jacob Zuma. The new legislation provides, amongst others, that parents who default on child maintenance will be blacklisted. This came into effect on 5 January 2018. Sections 2, 11 and 13(b) of the Amendment Act provides, amongst others, that a parent who defaults on child maintenance will have their personal information submitted to credit bureaus, and run the risk of being blacklisted. This prevents maintenance defaulters from receiving credit while owing maintenance.

Relevant sections of the Maintenance Amendment Act

Section 7 of the Maintenance Act, 1998 was amended by the addition of the following subsection:

”(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have not borne fruit, the maintenance officer may apply to the maintenance court, in the prescribed manner and using the prescribed form, to issue a direction as contemplated in this subsection.
(b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have not borne fruit, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner by means of an affidavit in the prescribed form, with the prescribed contact information of the person in question if that person is, in fact, a customer of the service provider.
(c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner.
(d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction.
(e) An electronic communications service provider on which a direction is served may, in the prescribed manner by means of an affidavit in the prescribed form, apply to the maintenance court for —
(i) an extension of the period referred to in paragraph (d) for a further period on the grounds that the information cannot be provided timeously; or
(ii) The cancellation of the direction on the grounds that —
(aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or
(bb) the requested information is not available in the records of the electronic communications service provider.
(f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed form and in the prescribed manner, of the outcome of the application. (g)The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection.
(h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4 (8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection and are, subject to section 20, payable by the person lodging the complaint referred to in paragraph (a).
(i) For purposes of this subsection, ”electronic communications service provider” means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.”.

What does this all mean for people claiming maintenance?

Therefore, if a parent is responsible to contribute towards maintenance for a child and such person cannot be traced, the court may issue an order to an electronic communication service provider (such as Vodacom, MTN, Cell C or Telkom) to provide the court with their contact information, if any of those service providers have the contact information which is being sought.
This order may only be granted if the court is satisfied that all reasonable efforts to locate the defaulter in question have failed.
If the complainant cannot afford to obtain such vital information from the service providers, such a process will be funded by the State. If the State has paid for the provision of information the court may then order the defaulter to refund the State for the costs that have been incurred.

Conclusion on child maintenance

This amendment helps with tracing defaulters who often neglect their maintenance obligations and helps ensure that everyone has access to justice, particularly children and women.

About the writer of this article

This article an others were written by Advocate Megan Naidu, and Advocate of the High Court of South Africa. To read more about Advocate Naidu, and what else she wrote, visit her profile by click on this link: Advocate Megan Naidu.

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