A Critical analysis of the implementation of the Maintenance Act 99 of 1998:
Difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act and the lack of service delivery by the Maintenance Court staff, specific to the Eastern Cape.
This dissertation seeks to identify the core problems experienced by the unrepresented public when entering and engaging in the maintenance system. Specific reference is made to the experiences of the unrepresented public in the Eastern Cape Province, where my research was conducted. The research results will be discussed on a comparative basis with already documented studies on the maintenance system as identified through an analysis of available literature on the subject.
It is my hypotheses that, owing to the lack of functioning of the maintenance courts throughout South Africa, parties to a maintenance matter are simply ill-advised and unassisted, and accordingly children's rights go unprotected. In a system where it is intended that parties are supposed to be able to cost effectively run their matter themselves, complainants find themselves floundering as a result of a lack of understanding of the system, and a poor implementation thereof. Further being uneducated, particularly in the area of law, many do not know their rights and are accordingly "bulldozed" by the system. This results in my opinion in a number of complainants seeking legal representation which they cannot afford in a hope that the process will be improved and "fast-tracked" as a result. However, the system delays are experienced regardless of whether or not a party is represented (although the explanation of rights and the process is covered), usually leaving parties with a massive legal bill at the end of the matter. As a direct result of the failing system, in
89Ibid 377(A).
P a g e | 34 many instances complainants find themselves dissatisfied with the results, discouraged by the process and in many instances financially worse off than when they started as a result of necessary legal fees, transport costs and income lost while waiting at court.
For many complainants the maintenance court system if more of a hindrance than a help and often costs more during the process than the actual gain at the end.
1.2.1 Maintenance in the South African context
Access to private maintenance for children should be seen within the broader context of poverty in South Africa. In South African society it is still predominantly women who care for children both inside and outside of marriage. Over a third of South African households are female headed, often by women who have no income or low-income employment (for instance employment as a domestic worker). These households are currently facing the highest risk of poverty in South Africa.90
As a result of the extremely high levels of poverty in South Africa, child maintenance often supports many more people than just the intended beneficiary. In some cases this maintenance payment is the sole source of income for many families, especially those situated in the rural areas91.
Further, abuse of women and children in South Africa is a serious and widespread problem, and not only includes physical and emotional abuse, but economic abuse as well. Economic abuse of women and children is extremely devastating, and is commonly overlooked as a form of domestic violence.
Failure to pay maintenance by respondents is an on-going form of such abuse.
It is argued that the majority of male maintenance defaulters’ refusal to pay maintenance condemns many women and children to absolute poverty and perpetuates the cycle of abuse, leaving women to “eke out a hand-to-mouth existence”92. Accordingly the failure to pay maintenance in many instances translates into dire economic circumstances for many women and children.
90Budlender & Moyo (note 2 above) 28.
91M Magakwe “Operation Isondlo Bearing Fruit” Justice Today (2006) Vol 1; 3.
92Budlender & Moyo (note 2 above) 10.
P a g e | 35 The failing system goes a long way to enforcing the prevalent attitudes that dominate South African society’s view of maintenance, namely "a belief that children are a woman’s sole responsibility and an attitude of detachment from the responsibility of fatherhood on the part of men"93. There is a widespread culture of non-payment and negative attitudes by men and employers towards maintenance, compounding the problem substantially94. A maintenance system which operates effectively would make an important contribution to the alleviation of women and children’s poverty in South Africa95.
With the introduction of the 1998 Act, it was thought that the lives of South African women and children would improve overall given the progressive nature of the Act. The Act however has made little effective improvement to the situation faced by women and children despite the stated intention of the legislature, namely to “have a maintenance system that is user-friendly and provides a simple, one-stop maintenance service that meets the needs of the many thousands of (mainly) women and children that are entitled to maintenance but cannot afford legal representation”96.
As a result of insufficient funds allocated to the implementation of the 1998 Act and the running of the maintenance court problems have occurred such as, inter alia, management system flaws within the courts, insufficient staffing, lack of training of court personnel, poor qualifications and a "low" level of personnel dealing with maintenance, long queues and a lack of priority of maintenance matters. Accordingly there is room and need for substantial improvement within the system itself97.
The 1998 Act envisaged a situation where laymen seeking maintenance would be able to approach the maintenance court without the assistance of an attorney. In light of the vast majority of generally poverty-stricken or low income-earning complainants, the legislature set out to design a manner in which these parties would obtain speedy, cheap and successful relief through
93Ibid.
94Ibid.
95Ibid.
96Ibid 18.
97Ibid 21.
P a g e | 36 the maintenance court. The flaws in the Act, the implementation thereof and the poor functioning of the system have however left many complainants seeking the need for legal assistance.
In terms of maintenance law, there are very few options available for those seeking legal assistance outside of appointing an attorney at great expense.
Legal Aid (a body designed to represent those will low/no income) does not come to the assistance of parties involved in a maintenance matter.
Complainants and respondents in maintenance matters are therefore dependent upon NGO's (if available) and court staff to guide them. Often NGO's are not available in certain areas, and staff are over-worked, unqualified and in many instances disinterested. This is resultant in the majority of maintenance complainants having to represent themselves in their matters, with very little assistance, if any at all, always to the detriment of the children.