Bills and bottles: Mediation and the rights of the unborn to maintenance

March 1st, 2024
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Picture source: Getty/iSotck

When a mother conceives an unborn child – she is not in terms of our domestic legislation in the Maintenance Act 99 of 1998 allowed to claim maintenance from the moment of conception until the birth of her child.

A mother is only eligible for maintenance from the moment the child is born and can claim ‘lying-in expenses’ from the date of birth until the day the maintenance inquiry is completed by a maintenance officer in an s 6 informal inquiry or a magistrate orders a maintenance order in terms of s 16(1)(a) on a J168 court order.

Section 16(1)(a)(ii) of the Maintenance Act provides:

‘After consideration of the evidence adduced at the inquiry, the maintenance court may –

(a) in the case where no maintenance order is in force –

(ii) make an order against such person, if such other person is a child, for the payment to the mother of the child, of such sum of money, together with any interest thereon, as that mother is in the opinion of the maintenance court entitled to recover from such person in respect of expenses incurred by the mother in connection with the birth of the child and of expenditure incurred by the mother in connection with the maintenance of the child from the date of the child’s birth to the date of the enquiry.’

For the nine months from conception to the period of birth the mother is left defenseless and must fend for herself in a harsh economic climate – not just locally but internationally. The mother must collect expense receipts and store all her expenses from the date of conception until the day the father acknowledges liability and agrees to a maintenance amount or the day a court hears her evidence and decides on the quantum of her maintenance claim.

Unfortunately, in the South African economic climate pregnant mothers have no realistic goal of attaining meaningful employment during pregnancy and must depend on the goodwill of family and friends for nine months of pregnancy before she has a statutory right to claim maintenance.

Internationally, too, it can be an uphill struggle where pregnant mothers face dismissal and other challenges during pregnancy that are mercilessly rejected by national and international maintenance courts.

Mediation as alternative dispute resolution tool

Mediation is a good way of involving a father in discussions long before the child is born. Mediation can soften the heart of an accepting father of his responsibilities and hearing the cry of the pregnant mother for assistance during the pregnancy. Mediation can make the father realise that the sooner he assists the pregnant mother, the easier the financial burden will be on him when a lying-in expense claim is considered by a maintenance court.

In international maintenance matters, mediators can conclude mediation agreements and parenting plans without being held ransom by the Maintenance Act (s 16(1)(a)(ii) or the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963). Once fathers hear what their absence means to a pregnant mother, mediation might shift a father’s acknowledgement of paternity and even to take financial responsibility during the nine months of pregnancy.

The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 and the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 are limited to the reciprocating countries who sign the treaties but mediation can transcend these limitations and conclude mediation agreements and parenting plans beyond the scope of United Nation conventions, treaties, and domestic and international legislation.

The Nasciturus rule

We should be applying the nasciturus fiction from the moment of conception that is not possible in the maintenance legislation but possible in mediation.

Nasciturus fiction is the common law principle in which a child that was born alive and conceived prior to the testator’s death is considered to have obtained rights from the moment it was conceived’ (Cheralco Worship ‘Nasciturus Fiction – Inheritance for an Unborn Child’ (https://schoemanlaw.co.za, accessed 27-1-2024)).

‘The nasciturus fiction originated in Roman law. According to Roman lawyers an unborn child in ventre matris was deemed to have been born and to have legal personality prior to the date of his birth if this would be to his advantage and provided the child was in fact born alive … . The fiction was also applied in Roman-Dutch law, when the maxim nasciturus pro iam nato habitur quotiens de commodo eius agitur was formulated … . At common law the fiction was applied mostly in cases dealing with succession … (André Mukheibir ‘The nasciturus fiction and delictual claims – RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006) 27 Obiter 188).

‘The nasciturus fiction was applied for the first time in South African law in 1909 in Chisholm v East Rand Proprietary Mines Ltd (1909 TH 297). In this instance the father of an unborn child had been killed as a result of delictual conduct of another. The deceased was employed by a mining company and his death was the result of the negligence of a fellow employee. The widow claimed damages. The court … held that the child was entitled to claim loss of support even though it had not been born at the time of the delict’ (Mukheibir (op cit) at 189). In maintenance matters mothers can only claim maintenance once the child is born. In the event of the father passing away during pregnancy mothers will have an uphill battle claiming maintenance from the deceased estate of the father and will have to negotiate her maintenance claim with the executor and further claim her rights via the Master of the High Court’s Guardian’s Fund.

Recommendation

The South African Law Reform Commission Discussion Paper 157 – Project 100B: Review of the Maintenance Act 99 of 1998 proposed fundamental changes to the domestic Maintenance Act.

Unfortunately, lying-in expenses are not covered in Paper 157 and precarious positions pregnant mothers find themselves during pregnancy. It is unfortunate that no one during the July 2023 public participation process touched on the s 16(1)(a)(ii) position mothers find themselves in. Hopefully during the parliamentary debate on the Maintenance Amendment Bill B17 of 2022 civil society will play an active role in advocating for the rights of pregnant mothers during pregnancy and their subsequent rights to maintenance. The principle of fairness in s 15(3)(b) of the Maintenance Act provides: ‘Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case’. Where the lying-in expense amount accrued during nine months of pregnancy exceeds the income of the father the courts are bound to follow a principle of fairness that does not exist during the first nine months, while a mother has to fend for herself to ensure that her health and wellbeing are taken care of. It is for this reason of fairness that fathers should be held liable for maintenance during pregnancy rather than waiting until a child is born.

The South African Law Reform Commission in chapter 16 of Paper 157 covers deceased estates of parents and provides for maintenance of such dependent children after the demise of the parent.

Natalie Ruiters BA Psychology (UWC) is a member of the Social Justice Association of Mediators, accredited by NABFAM and the founder of La Poppie Mediations in Cape Town.

This article was first published in De Rebus in 2024 (March) DR 28.

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