Issued by: GCIS
The Maintenance Act 1998 (Act 88 of 1998) which repealed the Maintenance Act of 1963 heralds the beginning of a drastic reform process as far as maintenance is concerned.
Whilst the Act itself is seen as an interim measure pending the implementation of the South African Law Commission's recommendations, it will directly tackle the problems experienced by thousands of people, particularly women who spend countless hours in quees at urban and rural Magistrates courts offices to collect their dues.
It has also been designed to be able to address non-appearance of persons who are supposed to appear before the maintenance also provides a mechanism to effect follow-ups on defaulters.
The Act provides for the appointment of maintenance investigators who are intended to assist the maintenance officers in carrying out their statutory tasks more effectively.
Their duties will include locating the whereabouts of recalcitrant respondents in maintenance proceedings, serving court papers on them and taking statements from persons who may be able to give information on the financial status of alleged defaulters.
Another important aspect of this legislation is the extension of the court's discretion to order that the payment of maintenance be done on behalf of the respondent by his or her employer, except in circumstances where it will be impracticable to do so.
Maintenance courts could also not make an order in the absence of the respondent unless he or she consented in writing to the making of such an order. This was making it easy for respondents to delay or evade payment, leaving many deserving people without food and in some cases forcing parents to withdraw children from school, thus depriving them of a future.
The Act empowers the court to make a maintenance order by default, in the absence of the respondent if the court is satisfied that the person in question had knowledge of the subpoena to attend a maintenance enquiry which had been issued and had failed to attend.
Another new and very important aspect introduced by the Act is Chapter 5 thereof, which introduces a civil enforcement mechanism in respect of maintenance orders for the first time.
The execution of a maintenance order will no longer be dependant on the outcome of arrest followed by criminal prosecution, but it will be seen as a final order of the court for the payment of a specific amount to another person and should be executable as such without requiring the persons in whose favour it was made to initiate further proceedings. These are indeed ground breaking changes that will go a long way in providing relief to needy people.
Of vital importance for the success of this legislation is the need for a core of experienced and dedicated officials to ensure that the goals thereof are achieved. The Department's officials are currently working around the clock to finalise regulations and facilitate the identification and training of officials to implement the law.
The office of the National Director for Public Prosecutions led by Mr Bulelani Ngcuka is also working in consultation with the Minister of Justice Dr P Maduna on policy directives with a view to establishing uniform rules, norms and standards to be observed by public prosecutors in the performance of their function and building a pool of dedicated and experienced maintenance officers.
The Maintenance Task Team which submitted its final report in June 1999 identified practical problems standing in the way of equitable, speedy and efficient administration of the maintenance system in the country.
It also collected and analysed statistics so as to indicate the current level of service delivery in the maintenance system throughout the country to be used in facilitating the implementation of the new law, and in monitoring pace and direction of the implementation process.
This legislation is regarded as a priority for the Department and it is hoped that a new era in maintenance with a renewed emphasis on sensitive and fair approach will be ushered in phases which will begin some time before the end of the year. At the present stage most of the regulations pertaining to the Act have been finalised and will be tabled for approval by parliament this month. Only those regulations dealing with the maintenance investigators are outstanding because the policy guidelines still being formulated.
This, however, does not mean that the implementation of the Act will be delayed.
The Act will be implemented partially during November, and provisions with regard to default orders, garnishes orders and the execution orders, will be implemented during that time.
ISSUED BY:
SIMON NGOMANE
DIRECTOR: LIAISON AND INFORMATION SERVICES
DEPARTMENT OF JUSTICE
Pretoria: TEL: (012) 315 1731
FAX: (012) 323 3595
E-MAIL: sngomane@justice.gov.za
9 September 1999