4.2 Criticisms
4.2.4 Enforcement
P a g e | 99
4.2.3.5 Transport costs
In a maintenance enquiry a defendant may request payment of transport costs as an order, to be paid by the state. This option is not available to the complainants313.
P a g e | 100 arrears claims remain high316, thus indicating the reluctance of the courts to criminally sanction maintenance defaulters.
Courts may order the enforcement of a maintenance order by way of an emoluments attachment order. This enforcement mechanism however becomes difficult to implement as there is widespread reluctance by employers generally to comply with such order as the order imposes on them additional administration by staff members as well as certain costs317.
Further it appears from the orders that are currently being granted in South African maintenance courts that many maintenance officers and magistrates have little idea how to determine quantum (i.e. what is reasonable in the circumstances) when it comes to maintenance. Often very little consideration is given to a proper calculation of an amount to be paid by the defendant to the complainant. Maintenance orders are often granted based on the defendant's ability to pay, and not the actual needs of the child. It appears that the theoretical principles of maintenance law enforcement in South Africa have little application outside of the High Court318.
My qualitative research results (refer to Annexure 4.2 hereto319) confirm that problems relating to enforcement regularly arise, and that there are problems with both the enforcement of an order and the need to hold defendants accountable for their non-payment.
4.2.4.2 Warrants of execution
A court may order that an attachment may be made of the defaulting parties' property in respect of arrear and future maintenance. The problem with this remedy however is that the attachment and storage costs incurred herein are borne by complainant. In most instances the
316Law Society of South Africa (note 105 above) 8-10; Grieves (note 1 above) 17-20.
317Mamashela (note 26 above) 603 - 604.
318Grieves (note 1 above) 20.
319Items 4.2.38 and 4.2.47.
P a g e | 101 complainant is living hand to mouth and has no additional income to cover the costs of execution.
A further difficulty in proceeding with an execution of the defendant's goods is that often there is confusion as to ownership of the property under attachment and often the defendant does all that is possible to deliberately frustrate the attachment of property320.
4.2.4.3 Payments made into court
Payment of maintenance monies into court by the defendant for collection by the complainant has created its own difficulties. In general capturing the payment information takes too long and is often tedious and full of mistakes. Once the capturing has been done, there is a clearance period of 14 days before the complainant can collect the maintenance payment. This is detrimental to the complainant who is relying on the maintenance money as a source of income, and ultimately prejudices the child321.
4.2.4.4 Emoluments Attachment Orders
In terms of the 1998 Act a court can issue an order that instructs the employer of the defaulting debtor to pay maintenance on his behalf from the employee's salary322. Despite this being an innovative approach to arrear maintenance collection, the Act has not substantially improved the situation of women and children as anticipated323. The implementation of the Emoluments Attachment Order (EAO) is poor and there is much confusion surrounding the orders themselves as well as the implementation thereof324.
320Mamashela (note 80 above) 605.
321Law Society of South Africa (note 105 above) 8-10.
322Budlender & Moyo (note 2 above) 57; Maintenance Act (1998) Section 26.
323Ibid 57.
324Ibid 52.
P a g e | 102 The basis of payment by way of emoluments is that the order takes first priority for the employer over any order of court requiring payments to be made from the emoluments due to the person against whom that maintenance order was made. Accordingly failure to make payment in terms of a maintenance order is therefore to be enforced against the employer325.
EAO's are failing as a remedy as a result of lack of co-operation from employers of maintenance defaulters in implementing the orders. Many employers delay the implementation of salary deductions, and usually charge administration charges to the beneficiary, not the employee, thus diminishing the complaints claim326. It is argued that the administration costs should be for the debtors account.
There have been recorded instances where employees have been dismissed by an employer as a result of an EAO against them, leaving the debtor with no means of paying maintenance at all, resulting in the family reliant on maintenance income being in a worse off position than before. It has also become common amongst employers to change a debtor’s employment status from employee to “contracted worker”
and on that basis refuse to enforce the EAO. Debtors further have been known to resign from employment with the specific intention of avoiding the payment of maintenance327.
Employers who have more than one emoluments attachment to fulfil, such as institutions like the South African Police Services, make lump sum payments into court in respect of all outstanding orders, and usually without the correct references, creating additional administration for the court staff capturing the payments. This results in a delay in the payment reaching the complainant concerned328.
325Ibid 56; Maintenance Act (1998) Section 29(3) and 29(4).
326De Jong (note 105 above) 602 - 604.
327Sigwadi (note 66 above) 340.
328Budlender & Moyo (note 2 above) 62.
P a g e | 103 There is a tendency for employers upon whom EAOs have been served to fail to appear in court when requested, resulting in further delays and postponements of maintenance matters.
A critical factor which determines whether an EAO is used is whether the defendant is formally employed or not329. Additional drawbacks are experienced by the court and the complainant in implementing an EAO in instances where the debtor if self-employed. It is then fairly difficult to firstly ascertain his actual earnings and secondly to overcome the reluctance of the defendant to enforce a garnishee against him or herself330. In these instances it is generally preferred by the court to make use of other enforcement avenues such as warrants of arrest, summons or subpoenas331.
Missing information relating to the defendant, such as identity numbers and work and residential addresses further determine whether or not an EAO can in fact be issued332. Further additional reasons for the EAO not reaching the defendant's employ include change of employer by the defendant, retirement, dismissal, contract work and resignation, as well as the orders becoming "lost" when served at the office of the employer333
The courts do currently make use of EAOs but do so to a limited extent, thus making such order a rarer instrument in enforcement334.
4.2.4.5 Troublesome debtors/defendants335
Regardless of the order made by any maintenance court, often the court and complainants are faced with a "troublesome defendant". Often the
329Ibid.
330Sigwadi (note 66 above) 340.
331Budlender & Moyo (note 2 above) 62.
332Ibid 63.
333Ibid.
334Ibid 62.
335De Jong (note 98 above) 602-604; Grieves (note 1 above) 20.
P a g e | 104 court staff are faced with a degree of resistance from the defendant which makes the implementation of any maintenance order difficult.
Further given the lack of formal employment amongst a large majority of South Africans336, problems, such as unemployment of the defendant and the defendant failing to own any valuable assets available for attachment, hamper the enforcement process. In many instances the court is faced with a defendant who has poorly managed the income he or she has received and in is many cases is over-indebted. In these instances very little can be done to secure and enforce the complainants claim for maintenance.
Literature indicates that in the case of many male defendants it is not necessarily the opposition to the obligation of looking after the child that creates difficulties when it comes to maintenance payments.
Generally it is rather the opposition to the fact that maintenance matters are resolved through the courts in a way that involves the female complainant obtaining control over the defendant's money and the imposition of such duties without corresponding rights over the children and women337. In many instances in the African culture, and specifically in the Xhosa culture in the Eastern Cape, women who take their maintenance matters to court are seen as being disrespectful and demeaning of cultural ways338. Interviewees in my study remarked that where a defendant is self-employed it is impossible to "catch" him or her (refer Annexure 4.2 hereof339).