6.1 Documented solutions/recommendations
6.1.1 Reforms suggested prior to the enactment of the 1998 Act
6.1.1.5 Broader jurisdiction and discretion in respect of granting of court orders 118
Under the 1963 Act the court was unable to make a number of ancillary orders (which are currently available under the 1998 Act) to ensure compliance with the principal order. As a result of the high number of maintenance defaulters and inability by the court to ensure compliance
360Ibid 4.
361Ibid 4.
P a g e | 119 of the existing orders the following suggestions for reform were made362:-
1. the implementation of a emoluments attachment order, applicable to a non-specific employer, with the resultant effect being that same shall remain in effect each time the defendant changes employment363;
2. the implementation of a system such as a method of deducting the relevant amount from the defendant's income, similar to PAYE or SITE tax payments;
3. the use of deputy-sheriff’s and tracing agents for service of maintenance process and orders in an attempt to increase their effectiveness;
4 where a defendant refuses to attend court proceedings that an order for payment be made in the absence of the defendant, by default, subject to the court being satisfied that the defendant was duly notified of the enquiry;
5. the definition of “maintenance order” be revised to include expenses which are not of a recurring nature, e.g. expenses related to education, training and medical expenses364;
6. at different stages of the maintenance procedure various court staff exercise enormous discretion in application of the common law formula of burden proportionate to the income of the parents365. It is documented that there is generally a low award of maintenance, and further, great variation between South African courts as to the monthly amount which is awarded.
Creation and use of a specific formula was suggested to address this issue and regulate the application of the law.
362A number of these suggestions were implemented in the 1998 Act.
363Clarke (note 2 above) 4.
364Ibid 3.
365Lund Committee on Child and Family Support (note 4 above) 47.
P a g e | 120 6.1.1.6 Broader jurisdiction and discretion with regards to the enforcement of
maintenance orders366
Criminal law has proved in many instances to be an unsuccessful medium for the enforcement of maintenance orders, with the provision for enforcement under the 1963 Act being only for sentencing and fines, and periodical imprisonment as prescribed by the Criminal Procedure Act 51 of 1977367. Criminal sanctions could only apply where the defendant had been convicted of the failure to pay maintenance, and if the court was satisfied that such failure is not due to a lack of means. It was suggested that the criminal sanctions available in criminal maintenance matters be broadened as follows:- 1. periodical imprisonment as an enforcement mechanism is a
possible option for maintenance defaulters as long as the balance between the need for prevention through deterrence and the preservation of productivity and family life of an offender is maintained. This type of imprisonment will have less of an impact on the earning power of a person who is under a duty to maintain other persons. It is further an option that costs the state less to implement than ordinary imprisonment and spares the offender the negative prison environment.
2. correctional supervision would provide a suitable option, as offenders may be subjected to monitoring as well as control over their financial affairs in order to ensure compliance with the existing maintenance order. Whilst under correctional supervision the offender may be subjected to educational programmes, for example money management, to help improve the offender’s management of resources. The aforesaid option is not frequently used by the courts, and it was argued that court officials should be trained to promote the use of the aforesaid measures;
366Ibid 47.
367Criminal Procedure Act 51 0f 1977 Section 285.
P a g e | 121 3. limitation of the courts discretion to suspend or postpone sentences in respect of maintenance defaulters, although it is not always desirable to restrict the sentencing options of the court;
4. the separate execution of maintenance orders from criminal proceedings, where such orders are not dependent upon the conviction of the defaulter to whom the order applies. Such order may be statutorily accorded the effect of a civil judgment for the payment of an amount in instalments and may be executed in the same manner as a civil judgment. However, drawbacks of such an order include:-
increased costs;
the difficulty of applying such order, and;
a need to enforce a periodical payment of maintenance as an ongoing obligation (as opposed to a once-off judgment debt).
The core problem with this method of maintenance enforcement lies in the fact that the debt continues to exist after execution of a warrant;
5. an alternative to 4 above, would be to allow for ex parte applications for attachment and execution of a maintenance debt, granted on a similar basis to a rule nisi application. This approach would allow the court to retain judicial control over the issue of warrants, creating a quicker, more dependable mechanism for the enforcement of maintenance orders that are already in place;
6. that the complainant be able to sue for a warrant of execution out of the office of the clerk of the maintenance court. It is suggested that the complainant be able to approach the clerk of the maintenance court and have a warrant issued, whereafter the defendant will be entitled to approach the maintenance court with an application for a stay of execution if necessary. This
P a g e | 122 alternative shall offer a faster mechanism of obtaining relief as the complainant does not have to go through the procedure of bringing the matter before court;
7. revision of computer systems, as the courts at this stage all had differing degrees of technology368 with regards to capturing and accessing of maintenance records. A regulated, uniform national system was required.