There are two primary innovations introduced in the 1963 Act which warrant specific mention:-
3.2.1 Maintenance Officer
Act 23 of 1963 makes provision for the appointment of a new court official, namely the Maintenance Officer173. Maintenance Officers are specifically tasked with the investigation of a complainant’s case. The primary duty of the Maintenance Officer is to ensure a duty of support exists between parties when a new application is launched, and further, upon the filing of an application for substitution or discharge of a maintenance order, that good cause to do so exists174. The Maintenance Officer may institute an enquiry in a maintenance court and must assist with the conduct of the enquiry (i.e. it is the maintenance officer and not the complainant who must decide to do so)175.
The position of the maintenance officer was carried over by the legislature in the 1998 Act, The duties and functions of the maintenance officer are accordingly discussed in more detail in chapter 4 hereunder.
3.2.2 Maintenance Enquiry
The concept of the maintenance enquiry was specifically created by the legislature with the intention of crystallizing a person’s duty to maintain another person through certain procedural steps. The enquiry process is used to determine an order where no order exists or to substitute or discharge an existing order176.
The enquiry is sui generis177 and inquisitorial in nature, meaning that it follows neither the criminal nor civil trial procedure exactly. An important element of
173The Maintenance Act (1963) Section 3(1) and 3(2).
174SA Law Commission (note 4 above) 10, 11.
175SA Law Commission (note 4 above) 11; Govender v Amurthan 1979 (3) SA 358 (SA); Van Zyl (note 19 above) 131.
176The Maintenance Act (1963) Section 5; SA Law Commission (note 4 above) 11.
177Foster v De Klerk 1993 (1) SA 596 (O); Van Zyl (note 19 above) 130.
P a g e | 62 this enquiry is a newly introduced concept which entails that during the enquiry the onus of placing evidence before the court rests not only on the parties to the proceedings but also on the maintenance officer and the presiding officer178. The 1963 Act, through this modified procedure, creates an all- encompassing obligation on all parties involved in a maintenance enquiry to look after the interests of the children primarily. Again this enquiry process has been carried over to the 1998 Act.
The 1963 Act was not without criticism. There were many flaws within the 1963 Act itself, as well as with the implementation thereof. A large number of these criticisms are in fact similar to those levelled at the 1998 Act, and the core criticisms are identified as follows:-
Untrained, unqualified court staff (see 3.2.1.2 hereunder);
Insufficient courts, magistrates and maintenance officers (see 3.2.1.3 hereunder);
Attitude of court staff towards maintenance matters and complainants and abuse of staff power (see 3.2.1.4 hereunder);
Location of maintenance courts and court resources (see 3.2.2.4 hereunder);
Inconsistent application of the law (see 3.2.2.5 hereunder);
Long waiting hours and numerous postponements (see 3.2.2.9 hereunder);
Poor file administration (see 3.2.2.10 hereunder);
Poor division in responsibility and allocation of needs (see 3.2.3.4 hereunder);
General problems in law enforcement (see 3.2.4.1 hereunder);
Payments made into court (see 3.2.4.3 hereunder).
178SA Law Commission (note 4 above) 12; Buch v Buch (note 146 above) 83.
P a g e | 63 In an attempt to address these shortcomings the 1963 Act was replaced with the 1998 Act.
However, although the above criticisms were initially levelled at the 1963 Act, they have unfortunately not been resolved by the amendment of the legislation and have carried over to the 1998 Act. Accordingly they shall be dealt with in more detail and within the context of the 1998 Act in Chapter 4.
P a g e | 64 4 Chapter 4: Act 99 of 1998
“In many instances women and children find it very challenging to access maintenance services. The Maintenance Act 1998 (Act No.99 of 1998) provides relief in this regard. It is clear from the provisions of the Act that it aimed at, amongst other things, to have a maintenance system that is simple and user-friendly and understandable to a lay person, meeting the needs of many thousands of women and children who are entitled to maintenance but cannot afford legal representation, private tracing agents and/or payment of sheriff’s fees for execution of court processes for maintenance” 179.
Justice Today
The 1963 Act was highly criticized in many respects180. It was accordingly repealed and replaced with the 1998 Act181 which came into operation on 26 November 1999, with the exception of sections 5, 7(1)(d); 7(2)(a); 7(2)(b) and 7(2)(c) which came into operation with effect from 1 November 2006182. The 1998 Act, which shall be dealt with extensively hereunder, sought to rectify the defects identified in its forerunner, with a view to reforming the entire South African maintenance system, placing emphasis on the importance of a sensitive and fair approach to the determination and recovery of maintenance183.
The most common complaints documented during operation of the 1963 Act were 1) the ill-treatment of complainants; 2) the attitudes of the staff towards both complainants and the system and 3) the poor facilities provided at maintenance courts. These key complaints were coupled with a system which appeared to allow maintenance debtors to evade their legal duty to maintain their children with impunity184. It therefore became necessary to revise the system, thus leading to the implementation of the 1998 Act.
179P Mthimunye “Improved Access to the Maintenance System” Justice Today (2005) Vol 1; 21-22.
180Bannatyne v Bannatyne (note 43 above) 376C-D.
181The Maintenance Act (1998).
182 Author unknown "Note on the amendment bill" 2011 (unpublished).
183The Maintenance Act (1998).
184De Jong (note 98 above) 590.
P a g e | 65 The 1998 Act was deemed to be a fairly progressive piece of legislation with new features185, in particular the provision for an order by default, the emoluments attachment order and the attachment of a debt in the form of a garnishee order186.