Maintenance and Child Support
When it comes to maintenance, the law is fairly straightforward. It is in the application of the law that difficulties lie. One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person/s obliged to pay. The obligation does not rest solely on the father; it rests on both parents, according to their respective means. The fact that the father can adequately support the child on his own does not mean that the mother can avoid contributing. In fact, it would be contrary to public policy and invalid to insert a clause into a divorce settlement agreement stating that only one parent need maintain the child. Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must institute action in his/her personal capacity. The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period, unless a court order contains a specific provision to the effect that this may happen.
A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a step-parent is also under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations. The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.
When maintenance court makes an order regarding maintenance, such an order is not fixed forever. If circumstances change, an application for an increase or reduction in maintenance can be made. In order to fulfill their obligations to support their child, parents must use both of their incomes and, if necessary, their capital. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student. The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock.
Spousal maintenance
Although women and men are equally entitled to seek maintenance awards, in practice, for historical reasons, the majority of cases at present involving maintenance are brought by women. For this reason, the discussion that follows usually alludes to the woman as the one seeking maintenance. One day in the future, you will find that it could just as equally be the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible. The court, however, does have the discretionary power to award spousal maintenance if necessary.
The duty of support
During a marriage, each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it. This support includes accommodation, clothing, food, medical services and other necessities, and is balanced by the couple’s social status, their means of income and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.
This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce. However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance. Similarly, when a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance.
Spousal Maintenance is not a right
Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The discretionary power of the court to make a maintenance award includes the power to make no award at all. As mentioned, our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.
Maintenance pending Divorce
When a divorce is taking a long time to finalise or when one of the spouses is a homemaker with no income, the law provides a mechanism that can be used to assist spouses during a divorce to provide for the interim period until the divorce is finalised. Rule 43 of the High Court and rule 58 of the magistrate’s court provide an interim measure to help an applicant quickly and with minimal legal costs. In the law, this is called interim relief.
Maintenance of Children
How to apply for a maintenance order in the maintenance court
The Maintenance Act 99 of 1998 came into operation on 26 November 1999. Maintenance courts, also called family courts, deal specifically with maintenance and family law-related issues. Every court has a maintenance officer who has unique powers to deal with maintenance disputes. The services of the maintenance court are free. The state pays for everything to ensure that those in need of maintenance receive the necessary support. If you decide to employ an attorney, you will have to pay for his/her services; however, the procedures of the maintenance court are relatively uncomplicated and easy to follow.
Step 1: Gather information
Make a list of all your monthly expenses (as in the table on page 00), and gather together any proof of your income and expenses, including:
Step 2: The application
Go to your local magistrate’s or family court (in the jurisdiction where you or your children reside) with your list and proof of expenses. You will need to fill in a form (the maintenance application) detailing your complaint, either J107E or J101E. These forms are obtainable from the clerk of the maintenance court. Ask him/her to help you fill it in. It is very important that you provide supporting documentation for any income and expenses stated on the form.
In the complaint, you must state why the person from whom maintenance is being claimed is legally liable to maintain the child. Once you have filed the maintenance application, a maintenance officer will issue a subpoena against the person you are seeking maintenance from (the respondent) and set a preliminary date for the respondent to appear. The maintenance officer is usually a public prosecutor who works for the state. He/she investigates maintenance complaints, helps the complainant (the person claiming maintenance) and represents the complainant in court.
Step 3: The investigation
Once the complaint has been lodged, the maintenance officer will investigate. If the maintenance officer needs any information about the respondent, he/she can ask a magistrate to call anyone with information to appear before him/her. The maintenance officer may also task a maintenance investigator with:
After the investigation, the maintenance officer will decide whether to hold an informal enquiry or a formal enquiry in the maintenance court. If he/she feels that there might be an opportunity to settle, the enquiry will be informal. It is desirable to avoid going to court, so an informal enquiry will usually be encouraged. A summons will be served on the respondent giving a particular date and time that he/she is to appear before the maintenance officer. As the complainant, you will receive written notification of the enquiry.
Step 4: The informal enquiry
The purpose of the informal enquiry is to attempt, with the involvement of the maintenance officer, to resolve the dispute by mutual agreement. As mediator, the maintenance officer plays an active role in the process. The respondent must provide information regarding the financial position of the people affected by the maintenance application, as well as any supporting documentation such as bank statements, salary slips and a list of monthly expenses.
You, the maintenance officer and the respondent will then discuss and decide how much maintenance should be paid. This is essentially a settlement negotiation, whereby the maintenance officer mediates between the parties in order to arrive at a settlement. The respondent will ideally agree to paying maintenance, thus avoiding having to appear in court. He/she will have to sign a J214E form in triplicate, which will then be made an order of court. If no settlement is reached, the maintenance officer will refer the matter to the maintenance court for an enquiry before a magistrate, who will then postpone the matter and summons you and the respondent to a formal enquiry.
Step 5: The formal enquiry
The formal enquiry takes place before a magistrate in a maintenance court, which essentially performs the functions of a civil court. The normal rules of civil proceedings in a magistrate’s court apply. At the formal enquiry, you, the maintenance officer and the respondent will put all the relevant information before the magistrate. The magistrate will decide how much money is required to meet the child’s needs, and then issue a maintenance order that will ensure that each party makes a fair contribution. During the enquiry, you and the respondent are both entitled to legal representation by an attorney or advocate, but at your own expense.
On the day of the enquiry, it is important that you arrive at court early and report to the maintenance officer. When you are called to give testimony, the magistrate will ask you to swear that your testimony will be truthful. After that, you will be questioned by the maintenance officer and then by the respondent’s lawyer. Answer all questions truthfully and only talk about what you know. It is very important to stay calm and not to argue. The magistrate may also ask you questions to clear up issues. Address the magistrate as ‘your worship’.
The magistrate plays an active role during the proceedings, and once it has been established that the respondent is obliged to pay maintenance, he/she will be compelled to rebut or give evidence as to why he/she should not pay maintenance.
Who must be present at the maintenance enquiry?
The person claiming maintenance and the person who must pay maintenance must be present at the enquiry. The maintenance officer must also be present to represent the complainant and act in their interest. In addition, the maintenance officer can, by his/her own volition or at the request of either party’s attorney, issue a written notice, called a subpoena, ordering anyone else to appear before the court as a witness to:
These witnesses may be recalled and re-examined by the court. Apart from legal representatives, no one else may be present unless granted permission by the court. Note that the court may examine anyone who is present at the enquiry, regardless of whether they were subpoenaed as a witness or not.
What if one cannot afford the transport costs to get to court?
Subpoenaed witnesses who live far from the maintenance court and cannot afford the transport costs can either ask the person who subpoenaed them to cover their travel expenses to and from court, or can claim at court for expenses incurred. The respondent is not entitled to such a claim, unless the court makes an order allowing payment.
What procedure must be followed when submitting evidence?
At the enquiry, documentary evidence in the form of a statement in writing by anyone other than the respondent may be placed before the court as evidence, provided that a copy of the statement together with any documents referred to in the statement are served on the respondent at least 14 days before the date on which the statement is to be submitted as evidence. The respondent may, at least seven days before the commencement of the enquiry, object to the statement being submitted as evidence.
It is important to note that the maintenance court may take into account any evidence in any proceedings in respect of an existing maintenance order, or accept as prima facie proof any finding of fact in such proceedings. In other words, evidence and findings of fact in a divorce action may, at a later stage, be used in proceedings in the maintenance court. The record of such evidence or findings will be admissible as evidence, as will any copy/transcription/extract from it certified as a true copy, or any transcription/extract by the registrar or clerk of the court or any other officer having custody of the records of the court where the existing maintenance order in question was issued.
What happens if the respondent does not appear at the enquiry?
If the respondent fails to appear in court, the complainant may apply for an order by default. The court will then hear the complainant’s evidence supporting the claim for maintenance, before making a maintenance order. The court will only make an order by default if it is satisfied that the respondent had knowledge of the subpoena. The return showing that the subpoena was served will be sufficient proof of this.
A copy of the order by default must be delivered or tendered to the respondent by a maintenance officer, sheriff, police officer or maintenance investigator. The return showing that the copy was delivered or tendered will be sufficient proof that the respondent is aware of the terms of the order.
The respondent may apply to the maintenance court for the default order to be changed or set aside within 20 days of receiving the order. If there is good cause, the maintenance court can extend this period. Notice of an application to set aside an order by default must be given to the person who lodged the complaint at least 14 days before the application is to be heard. The magistrate may ask either or both parties to give evidence. After considering the evidence, the magistrate will make a decision.
The maintenance order
After considering the evidence, the court may decide as follows:
Where no maintenance order is in force, and the respondent is found legally liable to pay maintenance, the court may make a maintenance order against the respondent to maintain the applicant and/or the child. The order can include:
Where there is already a maintenance order in force, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order. The court may also make no order.
Can parties agree to a maintenance order?
A maintenance order may be obtained by consent. This usually happens during the informal enquiry, where the parties consent to an order among themselves or with the input of the maintenance officer. The respondent must consent in writing to the maintenance order and a copy must be handed to the maintenance officer. The respondent does not have to be present at the enquiry, but a copy of the order must be delivered to him/her by a maintenance officer, police officer, sheriff or maintenance investigator. The respondent must acknowledge receipt of the order in writing, and the officer, sheriff or investigator who served the papers must submit a written statement called a return of service showing that a copy of the documents was served on the respondent. The return of service is sufficient proof that the respondent is aware of the terms of the order.
Can the maintenance amount be reduced?
The respondent can apply to the courts for a reduction, but this will be subject to a financial investigation to determine if the applicant really can no longer afford to pay the amount in terms of the order. The other party’s circumstances, which may have changed, will be taken into account.
What if the respondent is unemployed?
If the respondent is unemployed, the magistrate will postpone the enquiry, allowing the respondent to look for work. He/she will need to get employers to sign a form proving that work was sought. If the respondent is unemployed but has hire-purchase agreements, the magistrate may order that the furniture be attached and sold to pay maintenance. It is up to the complainant to inform the maintenance officer if they know about any such agreements. If the respondent is unemployed, one may get a child-support grant from the Department of Social Development to help support the child.
Can one appeal against a maintenance order?
If a party is aggrieved about an order that was made by the maintenance court or about the court’s failure to make an order, he/she can appeal the decision to the High Court in the province where the order was made. A notice of the intention to appeal must be given to the clerk of the maintenance court and delivered to the other party within 20 days of the order being made. The magistrate who made the order then has 14 days in which to give a statement to the clerk of the maintenance court, setting out his/her reasons for the order. If the applicant cannot afford legal representation, they must inform the clerk of the maintenance court who will approach the Director of Public Prosecutions with a copy of the relevant documentation. The Director of Public Prosecutions will then decide whether to assist in the appeal.
It is important to note that any appeal in terms of the Maintenance Act does not suspend the payment of maintenance in accordance with the current maintenance order, unless the appeal is made against the finding that the applicant is legally liable to pay maintenance. If a court changes the original order at appeal, it will stipulate that the revised maintenance, if any, only be paid from the date of the order of appeal.
An appeal cannot be noted against:
What happens if the respondent doesn’t pay?
When the respondent fails to comply with the terms of the order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the respondent is resident for:
How is a warrant of execution issued?
The maintenance court may, on application, authorise the issuing of a warrant of execution. A warrant of execution is a method of enforcing judgments and empowers a court sheriff to attend a judgment debtor’s address to take goods for sale. The warrant of execution will first be issued against the respondent’s movable property. If the movable property is insufficient, only then will it be issued against his/her immovable property. The complainant must prepare Part A of Form L of the annexure to the Maintenance Regulations. Three copies must be lodged with the clerk of the maintenance court, who will issue the warrant of execution by preparing Part B of Form L, provided he/she is satisfied that authorisation was granted and the warrant has been properly prepared. The clerk will return the original warrant of execution and one copy to the complainant and file the second copy in the relevant court file.
The original warrant and the copy must then be handed to the sheriff or maintenance investigator for execution. Once the warrant has been executed, the sheriff or investigator must complete Part C and, if applicable, Part D of Form L and return it to the clerk.
Can a warrant of execution be set aside once granted?
The respondent may apply to the maintenance court to have the warrant of execution set aside or suspended. The respondent must give notice of his/her intention to apply to the complainant at least 14 days prior to the application being heard. The court may, at the hearing of the application, request either or both parties to give evidence orally or in writing. When suspending a warrant of execution, the court may grant an order for the attachment of emoluments or the attachment of debt.
Can a garnishee order be issued against the respondent’s salary?
Garnisheeing or the attaching of emoluments is the process of deducting money from an employee's monetary compensation (including his/her salary), sometimes as a result of a court order. A garnishee order can be issued where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution.
The court may issue a garnishee order immediately or in the future against the respondent for the amount he/she has failed to pay, plus interest, as well as for the costs of the attachment. Within seven days of the order, the maintenance officer must give notice and a copy of the order to the respondent’s employer. The notice to the employer must substantially correspond with (i.e. be similar to) Part A of Form O of the annexure to the Maintenance Regulations. The order authorises the employer to deduct the amount mentioned in the order in monthly installments from the respondent’s salary and to pay this money to the complainant, until the full amount has been paid. If the respondent becomes unemployed, the employer must give notice to the maintenance officer within seven days. If the employer fails to pay as stated in the order, the order may be enforced against the employer.
Can an attachment of emoluments be suspended or amended?
If the aggrieved party can show good cause, an order for the attachment of emoluments may be suspended, amended or set aside by the maintenance court. The respondent must give notice of his/her intention to apply for suspension or amendment to the complainant at least 14 days prior to the application being heard. After hearing such an application, the maintenance court may call either or both parties to give written or oral evidence. The application must substantially correspond with Part A of Form N of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with Part B of Form N.
Can one attach a debt owed to the respondent?
If the complainant knows that someone else owes the respondent money, for example, an attachment of debt order can be granted, which will order the respondent’s debtor to pay the monies owed to the complainant instead. An application for the attachment of debt can be granted where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution. The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover that which the creditor (respondent) failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.
Notice of such application must be given at least 14 days prior to the date on which the application is to be heard. The application must be similar to the example shown in Part A of Form P of the annexure to the Maintenance Regulations, whereas the notice must correspond with Part B of Form P.
Can I attach someone’s pension benefits for the payment of future maintenance in respect of minor children?
Yes, but subject to certain prohibitions as set out in the Pension Funds Act. In one such case, the applicant was an unemployed mother of two minor children. The children’s father was ordered to pay maintenance, but defaulted on his payments. He then attempted to withdraw his pension benefits, informing his ex-wife that he resigned primarily to avoid paying maintenance. The court ordered the pension fund to retain such an amount of the withdrawal benefits payable to the husband as was required for the children to have a dignified life.
What can be done if the man says he will not pay maintenance because the child is not his?
If a man refuses to pay maintenance because he says or believes that the child is not his, the court can order scientific paternity tests. If the court is satisfied that neither party can afford to pay for the tests, the state will pay. Once paternity is determined, the maintenance court can make an order for payment of all the mother’s expenses in connection with the birth and care for the child, from the date that the child was born to the date of the maintenance enquiry.
What must you do if you move to another part of the country?
You must notify the maintenance officer at the court that made the order that you are moving, and give him/her your new address. The maintenance order and the prescribed records will be transferred and registered at the court in the area where you are moving to. This is important because if maintenance is not paid, you have to make your complaint at the maintenance court where you live.
Can a maintenance order made in a South African court be enforced in a foreign country and vice versa?
South African law allows citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 regulates foreign maintenance processes. However, not all foreign countries are recognised under the Act. The Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development has a list of proclaimed countries, meaning those countries that have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.
South Africa has reciprocal enforcement agreements with the following countries: Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.
Can a complaint be laid against court officials?
Yes. If a police officer who has been authorised to enforce a warrant of execution or arrest fails to do so, he/she can be reported to the station commissioner. If a maintenance officer fails in his/her duties, or treats a complainant badly, they can be reported to the court manager or the senior prosecutor at the court, or at the Directorate of Public Prosecutions in the province. Attorneys can be reported to the Law Society in the province in which they practise. To report a magistrate, ask to speak to the chief magistrate at the court. You can also inform the maintenance officer. If a sheriff who has been authorised to enforce a warrant of execution fails to do so, he/she can be reported to the South African Board for Sheriffs. All sheriffs and deputy sheriffs must carry valid ID cards issued by the board and must produce them if asked.
Forms
Form A: Application for Maintenance Order (J101E)
Form B: Substitution or Discharge of existing Maintenance (J107E)
Form C1: Subpoena (J126)
Form C2: Subpoena (J130)
Form D: Notification to admit Statements by Witnesses (J167)
Form E: Maintenance Order (J168)
Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance (J176)
Form G: Consent and Maintenance Order (J214E)
Form H: Order by Default and Notice (J252E)
Form I: Application for Variation/Setting Aside of an Order by Default (J256E)
Form J: Notice (J280)
Form L: Warrant of execution against Property (J397)
Form M: Application for Setting Aside of a warrant of a Warrant of Execution (J435E)
Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments (J438E)
Form O: Notices to and by Employer (J448)
Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts (J458E)
THE FOLLOWING FORMS ARE ISSUED BY COURT OFFICIALS ONLY
A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a step-parent is also under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations. The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.
When maintenance court makes an order regarding maintenance, such an order is not fixed forever. If circumstances change, an application for an increase or reduction in maintenance can be made. In order to fulfill their obligations to support their child, parents must use both of their incomes and, if necessary, their capital. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student. The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock.
Spousal maintenance
Although women and men are equally entitled to seek maintenance awards, in practice, for historical reasons, the majority of cases at present involving maintenance are brought by women. For this reason, the discussion that follows usually alludes to the woman as the one seeking maintenance. One day in the future, you will find that it could just as equally be the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible. The court, however, does have the discretionary power to award spousal maintenance if necessary.
The duty of support
During a marriage, each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it. This support includes accommodation, clothing, food, medical services and other necessities, and is balanced by the couple’s social status, their means of income and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.
This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce. However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance. Similarly, when a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance.
Spousal Maintenance is not a right
Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The discretionary power of the court to make a maintenance award includes the power to make no award at all. As mentioned, our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.
Maintenance pending Divorce
When a divorce is taking a long time to finalise or when one of the spouses is a homemaker with no income, the law provides a mechanism that can be used to assist spouses during a divorce to provide for the interim period until the divorce is finalised. Rule 43 of the High Court and rule 58 of the magistrate’s court provide an interim measure to help an applicant quickly and with minimal legal costs. In the law, this is called interim relief.
Maintenance of Children
How to apply for a maintenance order in the maintenance court
The Maintenance Act 99 of 1998 came into operation on 26 November 1999. Maintenance courts, also called family courts, deal specifically with maintenance and family law-related issues. Every court has a maintenance officer who has unique powers to deal with maintenance disputes. The services of the maintenance court are free. The state pays for everything to ensure that those in need of maintenance receive the necessary support. If you decide to employ an attorney, you will have to pay for his/her services; however, the procedures of the maintenance court are relatively uncomplicated and easy to follow.
Step 1: Gather information
Make a list of all your monthly expenses (as in the table on page 00), and gather together any proof of your income and expenses, including:
- doctors’ bills;
- receipts for school fees, books and uniforms;
- rent, water and electricity accounts;
- groceries and clothing till slips;
- proof of transport or any other travelling expenses;
- if you are working, a copy of your most recent payslip;
- your ID document;
- birth certificates of your children;
- if the child is at school, a letter from the school saying that the child attends the school;
- if divorced, a copy of the divorce order; and
- any information you may have about the respondent, for example, an ID number, home/work/postal address and, if possible, a recent photograph.
Step 2: The application
Go to your local magistrate’s or family court (in the jurisdiction where you or your children reside) with your list and proof of expenses. You will need to fill in a form (the maintenance application) detailing your complaint, either J107E or J101E. These forms are obtainable from the clerk of the maintenance court. Ask him/her to help you fill it in. It is very important that you provide supporting documentation for any income and expenses stated on the form.
In the complaint, you must state why the person from whom maintenance is being claimed is legally liable to maintain the child. Once you have filed the maintenance application, a maintenance officer will issue a subpoena against the person you are seeking maintenance from (the respondent) and set a preliminary date for the respondent to appear. The maintenance officer is usually a public prosecutor who works for the state. He/she investigates maintenance complaints, helps the complainant (the person claiming maintenance) and represents the complainant in court.
Step 3: The investigation
Once the complaint has been lodged, the maintenance officer will investigate. If the maintenance officer needs any information about the respondent, he/she can ask a magistrate to call anyone with information to appear before him/her. The maintenance officer may also task a maintenance investigator with:
- finding the respondent and witnesses;
- giving any maintenance court documents to the respondent; and
- taking statements and gathering relevant information.
After the investigation, the maintenance officer will decide whether to hold an informal enquiry or a formal enquiry in the maintenance court. If he/she feels that there might be an opportunity to settle, the enquiry will be informal. It is desirable to avoid going to court, so an informal enquiry will usually be encouraged. A summons will be served on the respondent giving a particular date and time that he/she is to appear before the maintenance officer. As the complainant, you will receive written notification of the enquiry.
Step 4: The informal enquiry
The purpose of the informal enquiry is to attempt, with the involvement of the maintenance officer, to resolve the dispute by mutual agreement. As mediator, the maintenance officer plays an active role in the process. The respondent must provide information regarding the financial position of the people affected by the maintenance application, as well as any supporting documentation such as bank statements, salary slips and a list of monthly expenses.
You, the maintenance officer and the respondent will then discuss and decide how much maintenance should be paid. This is essentially a settlement negotiation, whereby the maintenance officer mediates between the parties in order to arrive at a settlement. The respondent will ideally agree to paying maintenance, thus avoiding having to appear in court. He/she will have to sign a J214E form in triplicate, which will then be made an order of court. If no settlement is reached, the maintenance officer will refer the matter to the maintenance court for an enquiry before a magistrate, who will then postpone the matter and summons you and the respondent to a formal enquiry.
Step 5: The formal enquiry
The formal enquiry takes place before a magistrate in a maintenance court, which essentially performs the functions of a civil court. The normal rules of civil proceedings in a magistrate’s court apply. At the formal enquiry, you, the maintenance officer and the respondent will put all the relevant information before the magistrate. The magistrate will decide how much money is required to meet the child’s needs, and then issue a maintenance order that will ensure that each party makes a fair contribution. During the enquiry, you and the respondent are both entitled to legal representation by an attorney or advocate, but at your own expense.
On the day of the enquiry, it is important that you arrive at court early and report to the maintenance officer. When you are called to give testimony, the magistrate will ask you to swear that your testimony will be truthful. After that, you will be questioned by the maintenance officer and then by the respondent’s lawyer. Answer all questions truthfully and only talk about what you know. It is very important to stay calm and not to argue. The magistrate may also ask you questions to clear up issues. Address the magistrate as ‘your worship’.
The magistrate plays an active role during the proceedings, and once it has been established that the respondent is obliged to pay maintenance, he/she will be compelled to rebut or give evidence as to why he/she should not pay maintenance.
Who must be present at the maintenance enquiry?
The person claiming maintenance and the person who must pay maintenance must be present at the enquiry. The maintenance officer must also be present to represent the complainant and act in their interest. In addition, the maintenance officer can, by his/her own volition or at the request of either party’s attorney, issue a written notice, called a subpoena, ordering anyone else to appear before the court as a witness to:
- give evidence;
- produce any book, document or statement relating to the financial position of any of the affected parties; and/or
- produce full particulars of either party’s earnings, signed by his/her employer.
These witnesses may be recalled and re-examined by the court. Apart from legal representatives, no one else may be present unless granted permission by the court. Note that the court may examine anyone who is present at the enquiry, regardless of whether they were subpoenaed as a witness or not.
What if one cannot afford the transport costs to get to court?
Subpoenaed witnesses who live far from the maintenance court and cannot afford the transport costs can either ask the person who subpoenaed them to cover their travel expenses to and from court, or can claim at court for expenses incurred. The respondent is not entitled to such a claim, unless the court makes an order allowing payment.
What procedure must be followed when submitting evidence?
At the enquiry, documentary evidence in the form of a statement in writing by anyone other than the respondent may be placed before the court as evidence, provided that a copy of the statement together with any documents referred to in the statement are served on the respondent at least 14 days before the date on which the statement is to be submitted as evidence. The respondent may, at least seven days before the commencement of the enquiry, object to the statement being submitted as evidence.
It is important to note that the maintenance court may take into account any evidence in any proceedings in respect of an existing maintenance order, or accept as prima facie proof any finding of fact in such proceedings. In other words, evidence and findings of fact in a divorce action may, at a later stage, be used in proceedings in the maintenance court. The record of such evidence or findings will be admissible as evidence, as will any copy/transcription/extract from it certified as a true copy, or any transcription/extract by the registrar or clerk of the court or any other officer having custody of the records of the court where the existing maintenance order in question was issued.
What happens if the respondent does not appear at the enquiry?
If the respondent fails to appear in court, the complainant may apply for an order by default. The court will then hear the complainant’s evidence supporting the claim for maintenance, before making a maintenance order. The court will only make an order by default if it is satisfied that the respondent had knowledge of the subpoena. The return showing that the subpoena was served will be sufficient proof of this.
A copy of the order by default must be delivered or tendered to the respondent by a maintenance officer, sheriff, police officer or maintenance investigator. The return showing that the copy was delivered or tendered will be sufficient proof that the respondent is aware of the terms of the order.
The respondent may apply to the maintenance court for the default order to be changed or set aside within 20 days of receiving the order. If there is good cause, the maintenance court can extend this period. Notice of an application to set aside an order by default must be given to the person who lodged the complaint at least 14 days before the application is to be heard. The magistrate may ask either or both parties to give evidence. After considering the evidence, the magistrate will make a decision.
The maintenance order
After considering the evidence, the court may decide as follows:
Where no maintenance order is in force, and the respondent is found legally liable to pay maintenance, the court may make a maintenance order against the respondent to maintain the applicant and/or the child. The order can include:
- The amount of maintenance to be paid, as well as any yearly increases.
- Directions about when and where the money should be paid. The court can order the respondent to pay maintenance on a weekly or monthly basis. The court may order that the maintenance either be paid at the maintenance court, where the complainant will then have to collect the payments from month to month, or be paid into an account at a financial institution by stop order or in any other manner.
- An order that, if the respondent is a member of a medical scheme, the child be placed as a dependant on that scheme.
- Where the mother was pregnant, the magistrate can order the respondent to back pay all expenses, plus interest, relating to the child’s birth; as well as all expenses relating to the child’s maintenance from the date of birth up to the date of the enquiry.
Where there is already a maintenance order in force, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order. The court may also make no order.
Can parties agree to a maintenance order?
A maintenance order may be obtained by consent. This usually happens during the informal enquiry, where the parties consent to an order among themselves or with the input of the maintenance officer. The respondent must consent in writing to the maintenance order and a copy must be handed to the maintenance officer. The respondent does not have to be present at the enquiry, but a copy of the order must be delivered to him/her by a maintenance officer, police officer, sheriff or maintenance investigator. The respondent must acknowledge receipt of the order in writing, and the officer, sheriff or investigator who served the papers must submit a written statement called a return of service showing that a copy of the documents was served on the respondent. The return of service is sufficient proof that the respondent is aware of the terms of the order.
Can the maintenance amount be reduced?
The respondent can apply to the courts for a reduction, but this will be subject to a financial investigation to determine if the applicant really can no longer afford to pay the amount in terms of the order. The other party’s circumstances, which may have changed, will be taken into account.
What if the respondent is unemployed?
If the respondent is unemployed, the magistrate will postpone the enquiry, allowing the respondent to look for work. He/she will need to get employers to sign a form proving that work was sought. If the respondent is unemployed but has hire-purchase agreements, the magistrate may order that the furniture be attached and sold to pay maintenance. It is up to the complainant to inform the maintenance officer if they know about any such agreements. If the respondent is unemployed, one may get a child-support grant from the Department of Social Development to help support the child.
Can one appeal against a maintenance order?
If a party is aggrieved about an order that was made by the maintenance court or about the court’s failure to make an order, he/she can appeal the decision to the High Court in the province where the order was made. A notice of the intention to appeal must be given to the clerk of the maintenance court and delivered to the other party within 20 days of the order being made. The magistrate who made the order then has 14 days in which to give a statement to the clerk of the maintenance court, setting out his/her reasons for the order. If the applicant cannot afford legal representation, they must inform the clerk of the maintenance court who will approach the Director of Public Prosecutions with a copy of the relevant documentation. The Director of Public Prosecutions will then decide whether to assist in the appeal.
It is important to note that any appeal in terms of the Maintenance Act does not suspend the payment of maintenance in accordance with the current maintenance order, unless the appeal is made against the finding that the applicant is legally liable to pay maintenance. If a court changes the original order at appeal, it will stipulate that the revised maintenance, if any, only be paid from the date of the order of appeal.
An appeal cannot be noted against:
- an order that was made by consent;
- a provisional order relating to the costs of scientific tests regarding paternity; and
- an order by default.
What happens if the respondent doesn’t pay?
When the respondent fails to comply with the terms of the order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the respondent is resident for:
- authorisation to issue a warrant of execution;
- an order for the attachment of emoluments (garnishee order); or
- an order for the attachment of debt.
How is a warrant of execution issued?
The maintenance court may, on application, authorise the issuing of a warrant of execution. A warrant of execution is a method of enforcing judgments and empowers a court sheriff to attend a judgment debtor’s address to take goods for sale. The warrant of execution will first be issued against the respondent’s movable property. If the movable property is insufficient, only then will it be issued against his/her immovable property. The complainant must prepare Part A of Form L of the annexure to the Maintenance Regulations. Three copies must be lodged with the clerk of the maintenance court, who will issue the warrant of execution by preparing Part B of Form L, provided he/she is satisfied that authorisation was granted and the warrant has been properly prepared. The clerk will return the original warrant of execution and one copy to the complainant and file the second copy in the relevant court file.
The original warrant and the copy must then be handed to the sheriff or maintenance investigator for execution. Once the warrant has been executed, the sheriff or investigator must complete Part C and, if applicable, Part D of Form L and return it to the clerk.
Can a warrant of execution be set aside once granted?
The respondent may apply to the maintenance court to have the warrant of execution set aside or suspended. The respondent must give notice of his/her intention to apply to the complainant at least 14 days prior to the application being heard. The court may, at the hearing of the application, request either or both parties to give evidence orally or in writing. When suspending a warrant of execution, the court may grant an order for the attachment of emoluments or the attachment of debt.
Can a garnishee order be issued against the respondent’s salary?
Garnisheeing or the attaching of emoluments is the process of deducting money from an employee's monetary compensation (including his/her salary), sometimes as a result of a court order. A garnishee order can be issued where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution.
The court may issue a garnishee order immediately or in the future against the respondent for the amount he/she has failed to pay, plus interest, as well as for the costs of the attachment. Within seven days of the order, the maintenance officer must give notice and a copy of the order to the respondent’s employer. The notice to the employer must substantially correspond with (i.e. be similar to) Part A of Form O of the annexure to the Maintenance Regulations. The order authorises the employer to deduct the amount mentioned in the order in monthly installments from the respondent’s salary and to pay this money to the complainant, until the full amount has been paid. If the respondent becomes unemployed, the employer must give notice to the maintenance officer within seven days. If the employer fails to pay as stated in the order, the order may be enforced against the employer.
Can an attachment of emoluments be suspended or amended?
If the aggrieved party can show good cause, an order for the attachment of emoluments may be suspended, amended or set aside by the maintenance court. The respondent must give notice of his/her intention to apply for suspension or amendment to the complainant at least 14 days prior to the application being heard. After hearing such an application, the maintenance court may call either or both parties to give written or oral evidence. The application must substantially correspond with Part A of Form N of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with Part B of Form N.
Can one attach a debt owed to the respondent?
If the complainant knows that someone else owes the respondent money, for example, an attachment of debt order can be granted, which will order the respondent’s debtor to pay the monies owed to the complainant instead. An application for the attachment of debt can be granted where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution. The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover that which the creditor (respondent) failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.
Notice of such application must be given at least 14 days prior to the date on which the application is to be heard. The application must be similar to the example shown in Part A of Form P of the annexure to the Maintenance Regulations, whereas the notice must correspond with Part B of Form P.
Can I attach someone’s pension benefits for the payment of future maintenance in respect of minor children?
Yes, but subject to certain prohibitions as set out in the Pension Funds Act. In one such case, the applicant was an unemployed mother of two minor children. The children’s father was ordered to pay maintenance, but defaulted on his payments. He then attempted to withdraw his pension benefits, informing his ex-wife that he resigned primarily to avoid paying maintenance. The court ordered the pension fund to retain such an amount of the withdrawal benefits payable to the husband as was required for the children to have a dignified life.
What can be done if the man says he will not pay maintenance because the child is not his?
If a man refuses to pay maintenance because he says or believes that the child is not his, the court can order scientific paternity tests. If the court is satisfied that neither party can afford to pay for the tests, the state will pay. Once paternity is determined, the maintenance court can make an order for payment of all the mother’s expenses in connection with the birth and care for the child, from the date that the child was born to the date of the maintenance enquiry.
What must you do if you move to another part of the country?
You must notify the maintenance officer at the court that made the order that you are moving, and give him/her your new address. The maintenance order and the prescribed records will be transferred and registered at the court in the area where you are moving to. This is important because if maintenance is not paid, you have to make your complaint at the maintenance court where you live.
Can a maintenance order made in a South African court be enforced in a foreign country and vice versa?
South African law allows citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 regulates foreign maintenance processes. However, not all foreign countries are recognised under the Act. The Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development has a list of proclaimed countries, meaning those countries that have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.
South Africa has reciprocal enforcement agreements with the following countries: Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.
Can a complaint be laid against court officials?
Yes. If a police officer who has been authorised to enforce a warrant of execution or arrest fails to do so, he/she can be reported to the station commissioner. If a maintenance officer fails in his/her duties, or treats a complainant badly, they can be reported to the court manager or the senior prosecutor at the court, or at the Directorate of Public Prosecutions in the province. Attorneys can be reported to the Law Society in the province in which they practise. To report a magistrate, ask to speak to the chief magistrate at the court. You can also inform the maintenance officer. If a sheriff who has been authorised to enforce a warrant of execution fails to do so, he/she can be reported to the South African Board for Sheriffs. All sheriffs and deputy sheriffs must carry valid ID cards issued by the board and must produce them if asked.
Forms
Form A: Application for Maintenance Order (J101E)
Form B: Substitution or Discharge of existing Maintenance (J107E)
Form C1: Subpoena (J126)
Form C2: Subpoena (J130)
Form D: Notification to admit Statements by Witnesses (J167)
Form E: Maintenance Order (J168)
Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance (J176)
Form G: Consent and Maintenance Order (J214E)
Form H: Order by Default and Notice (J252E)
Form I: Application for Variation/Setting Aside of an Order by Default (J256E)
Form J: Notice (J280)
Form L: Warrant of execution against Property (J397)
Form M: Application for Setting Aside of a warrant of a Warrant of Execution (J435E)
Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments (J438E)
Form O: Notices to and by Employer (J448)
Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts (J458E)
THE FOLLOWING FORMS ARE ISSUED BY COURT OFFICIALS ONLY
- Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998) [J126]
- Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 [J130]
- Form D: Notification to admit Statements by Witnesses [J167]
- Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998 [J168]
- Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made [J176]
- Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998 [J252]
- Form J: Notice in terms of Section 19 of the Maintenance Act, 1998 [J280]
- Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act [J397]
- Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998 [J448] [Regulation 6]
