Pay your maintenance
The Maintenance Amendment Bill was tabled in parliament in early November and has subsequently been passed by parliament and sent to the President for assent. The Bill proposes 18 amendments to the current Maintenance Act 99 of 1998 (the Act), in order to provide clarity on the lodging of complaints relating to maintenance payments, and the enforcement of complaints and maintenance orders.
The Bill now makes provision for the investigation of complaints relating to verbal or written agreements that have been concluded between parties in respect of maintenance obligations, but which have not been made an order of court in terms of the Act or any other law. However, only those agreements that have been lodged with a maintenance officer in the prescribed manner will be subject to a complaint of non-performance. If, after investigating the complaint, the maintenance officer is unable to locate a defaulting party, the Bill allows him to apply to a maintenance court to issue a directive to locate them. Once the maintenance court is satisfied that all reasonable efforts have been exhausted to locate the defaulting party, it may issue a directive, instructing one or more of the electronic communications service providers to supply the contact information of the defaulting party by means of an affidavit. The party that made the complaint will bear the costs incurred as a result of the directive.
The Bill also provides that a maintenance court may make an interim maintenance order where a postponement of a maintenance enquiry is necessary. The court must be satisfied that there is prima facie evidence prior to the postponement that one of the parties is legally liable to maintain a person or persons, who may suffer undue hardship as a result of the postponement.
On the return date, the maintenance court may confirm the interim order, set aside the interim order, or substitute the interim order with any other order that it deems just in the circumstances. A maintenance order may be made in the absence of one or both parties, provided that it is made in accordance with the consent of one or both parties, and provided further that such order is delivered or tendered to one or both parties, and such delivery or tender shall be deemed to be sufficient proof of the fact that one or both parties were aware of the terms of the order in question.
Where a maintenance court has made or can make an order against a person liable to maintain another, and such person has knowledge of a subpoena against him or has appeared in court and was warned to appear in court at a later date but fails to do so, the maintenance court may, on application by a maintenance officer, grant an order by default against that person. The Bill has made it mandatory for a maintenance order to be transferred to the court that has jurisdiction over the person in whose favour the order was made and to have the maintenance order registered by the clerk of that court.
Section 26(2)(A) of the Bill makes it mandatory for the maintenance officer, on application, to furnish the particulars of the person against whom a maintenance order has been made and a certified copy of the relevant court order to any business where its object is the granting of credit or is involved in credit rating of persons.
The imprisonment period that can be imposed on a party guilty of an offence has increased from one year to three years in terms of section 31(1). Section 31(2) makes it mandatory for the maintenance officer to furnish the details of a person found guilty of an offence, to any business where its object is the granting of credit or is involved in credit rating of persons.
The imprisonment period has increased, in terms of section 38, from six months to two years, where any person without sufficient cause, fails or refuses to pay maintenance in terms of a notice issued in terms of sections 16(3)(a), 29(1) or 30(1) or where a person fails or refuses to give notice to an officer as required in terms of sections 16(3)(b) or 29(2).
The Bill has added in section 39A that any person who wilfully hinders or obstructs a maintenance investigation of a maintenance officer will be liable to a fine or imprisonment up to one year, and any person that impersonates a maintenance officer will be liable to a fine or imprisonment up to two years. The Bill makes provision that if during the proceedings in a Magistrates’ Court in respect of offences referred to in section 31 of the Act or in respect of the enforcement of a sentence suspended on condition of periodical payments, it appears to the court on good cause shown that a maintenance enquiry should be held, the court may on its own accord request the public prosecutor to convert the proceedings into an maintenance enquiry.
It is clear from these amendments that the Department of Justice and Constitutional Development has put in place more stringent provisions in order to deal with defaulting parties. The amendments further make it easier for somebody to claim maintenance from a person required to do so.
The Bill also makes provision for more effective and efficient maintenance enquiry procedures. The amendments make it possible to track a person through electronic communications service providers, where traditional means fail, and make it more difficult for persons who are liable to pay maintenance to be able to obtain credit or continue to receive credit, as they are after all bad payers. The increase in penalties should deter parties that are liable to pay maintenance from defaulting.
Such stringent amendments to the Act send out a strong message to all people out there that there is no way of avoiding their responsibilities and should they do so, complainants are in a much better position to obtain recourse against defaulters.