Webber Wentzel's Pro Bono Practice has successfully represented a single mother in a damages claim against the Minister of Justice and Constitutional Development (Minister).

Anna Mthimunye, a single mother from Siyabuswa who works as a hawker, was awarded damages against the Minister for negligence based on the omission by maintenance officers in the Mdutjana Magistrates Court in Mpumalanga to fulfil their statutory duties under the Maintenance Act.

Her claim was for pure economic loss suffered as a result of the officers' negligent failure to take the necessary steps entrenched in the Maintenance Act to secure her claim and to timeously attach her ex-husband's pension fund for satisfaction of arrear and future maintenance owing to her children.

Hiemstra AJ held that the Maintenance Act placed a statutory duty on maintenance officers to take such steps and that failure to do so was unlawful and grossly negligent.

The rationale for the court's finding was that the state is dominus litis in maintenance proceedings and that it is the duty of the State, not the plaintiff, to prosecute in such proceedings.

Hiemstra AJ found that the remedies had simply been disregarded in this case. The court upheld the dictum in
De Wit v De Wit which states that "it’s the maintenance officer, not the complainant, who must decide whether or not to take such steps. The failure to take effective and available steps speaks of gross incompetence and dereliction of duties."

The court went further and upheld the dictum in Magewu v Zozo & others which says that the Maintenance Act read together with relevant sections of the Pension Funds Act allowed for the attachment of pension fund benefits to recover arrear maintenance and to secure future maintenance.

As this action was akin to a review of proceedings of a magistrates court sitting as a maintenance court, Hiemstra AJ confirmed that the North Gauteng High Court had jurisdiction despite the small amount of plaintiff's claim.

The outcome of this matter will play a vital role in the enforcement of the right of all minor children to maintenance and will give true effect to section 28 of the Constitution.

By signing the World Declaration on Survival, Protection and Development of Children, the legislature committed itself to upholding the provision in Article 27 that state parties will take all appropriate measures to secure the recovery of maintenance for children. The preamble to the Maintenance Act acknowledges that the recovery provisions fall short of international obligations under the Convention. Despite this, steps have not been taken to improve the recovery mechanisms or to better train maintenance officers, 16 years after the enactment of the Maintenance Act.