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The Maintenance Act 99 of 1998 (the Maintenance Act) makes provision for various remedies pertaining to non-compliance with a maintenance order and it also renders a failure to pay maintenance a criminal offence, which is punishable in law. The offence of failure to pay maintenance has a negative impact on the best interests of the child and it also undermines the child’s right to be maintained.
The Constitution protects and provides in s 28(2) that ‘a child’s best interests are of paramount importance in every matter concerning the child’.
The writing of this article, therefore, emanates from the effect that the failure to pay maintenance has on the best interests of the child and the manner in which the said failure is curbed by the Maintenance Act through the remedies provided in the same Act.
General effects of failure to pay maintenance
Section 15(3)(a) of the Maintenance Act creates an obligation on both parents to support their children proportionately in accordance with their financial means. However, and notwithstanding this provision, many parents still fail to support their children and this failure negatively impacts on the children’s rights to maintenance, which includes the provisions of food, accommodation, education, health, clothes, etcetera.
The said failure contributes to the adversities and poverty experienced by many children including those that are still at school. In this regard, it was held in the case of Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA), that it is unquestionably in the best interests of a child that a non-custodian parent, who is unwilling, yet has the means to pay his child’s school fees, should be made to do so, if necessary, by the making of an order of a competent court in that if the said is not done, the custodian parent would solely be saddled with that responsibility.
The effect of failure to pay maintenance on the best interests of the child
The best interests of the child include, inter alia, the interest of the child to be provided with the necessary support or maintenance. In an earlier decision of Fletcher v Fletcher 1948 (1) SA 130 (A), the court ‘emphasised that the best interest standard must undoubtedly be the main consideration in matters involving the children’ (Themba Alfred Ndaba ‘Child maintenance after a parent’s death’ 2012 (March) DR 26).
Various factors for determining the best interests standard were cited in the case of McCall v McCall 1994 (3) SA 201 (C) and among them, the court indicated that the parent’s ability to ‘provide for the basic physical needs of the child, the so-called “creature comforts”, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security’ in respect of the child, fall within the criteria that can be used in the determination of what is in the best interests of the child.
Similarly, the Children’s Act 38 of 2005, in s 7(1)(c) refers inter alia to the capacity of the parents to provide for the needs of the child in determining the above interests and in s 9, the Children’s Act read together with Article 3 of the United Nations Convention on the Rights of the Child, 1989, produce the results that in all actions concerning the child, the best interests of the child standard shall be of primary consideration and should always be applied as paramount.
The aforesaid provisions coupled with the criteria in McCall’s case are broadly harmonious with the Constitutional provisions of the best interests of the child. Consequently, any disregard or failure on the part of the parent to pay maintenance in line with the said interests undermines same and accordingly, amounts to the violation of precious rights protected by the Constitution.
Maintenance Act civil remedies for failure to pay maintenance
Section 26(1)(a) and (b) of the Maintenance Act makes provisions for the civil recovery of the arrear maintenance by enlisting the following three civil remedies –
Warrant of execution
A warrant of execution is one of the civil maintenance remedies that can be granted by the Maintenance Court against the movable property of the maintenance defaulter in order to satisfy the payment of the maintenance amount in arrears. Additionally, the Maintenance Act provides in s 27(1) that if the movable property attached is insufficient to recover the maintenance arrears, the immovable property can be attached and sold in execution to the amount necessary to cover the maintenance arrears.
In this regard, a warrant of execution is one of the best remedies incorporated in the Maintenance Act in that it considers the fact that the maintenance defaulter’s property can be converted into a monetary value (see Kroon v Kroon 1986 (4) SA 616 (E): ‘“Means of support” is an expression covering not only income but property that can be used to produce income’).
Attachment of emoluments
Attachment of emoluments is an order, which can be granted by the Maintenance Court obliging and authorising the defaulter’s employer to deduct the amount specified in the order from the emoluments of the defaulter in order to satisfy or recover the maintenance amount in arrears until the arrears are fully paid.
Attachment of emoluments is mostly applied in practice. However, the manner in which it is applied was correctly criticised, though not directly by the court, in the case of S v November and Three Similar Cases 2006 (1) SACR 213 (C) read together with S v Visser 2004 (1) SACR 393 (SCA).
The criticism in the former case and its relevancy to the attachment of emoluments related to the lenient terms on which the accused persons were ordered to repay their maintenance arrears in terms of s 40(1) of the Maintenance Act.
The said s 40 of the Maintenance Act has among others, the similar effect to
s 28 (of the Maintenance Act) attachment of emolument in as far as the granting of the civil judgment and the terms of payment for the recovery of arrear maintenance is concerned.
Alternatively, in the Visser case, Van Heerden AJA stated that:
‘Effective enforcement of maintenance payments is necessary, not only to secure the rights of children but also to uphold the dignity of women and promote the constitutional ideals of achieving substantive gender equality. It is therefore important that courts regard deliberate failures to comply with maintenance orders as serious offences and punish such failures accordingly’.
Attachment of debts
Attachment of a debt is an order, which can be granted by the maintenance court directing any person who has incurred a debt obligation to the maintenance defaulter, to make such payments as may be specified in the order within the time and in the manner so specified, to recover the maintenance amount in arrears. The maintenance defaulter’s failure to pay maintenance should always be viewed seriously in context of the children’s rights and the achievement of gender equality. In the case of Bannatyne v Bannatyne and Another 2003 (2) BCLR 111 (CC), the Constitutional Court (CC) held that:
‘Compounding these logistical difficulties is the gendered nature of the maintenance system. The material shows that on the breakdown of a marriage or similar relationship it is almost always mothers who become the custodial parent and have to care for the children. This places an additional financial burden on them and inhibits their ability to obtain remunerative employment. Divorced or separated mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means. Fathers, on the other hand, remain actively employed and generally become economically enriched. Maintenance payments are therefore essential to relieve this financial burden. These disparities undermine the achievement of gender equality which is a founding value of the Constitution. … Effective mechanisms for the enforcement of maintenance obligations are thus essential for the simultaneous achievement of the rights of the child and the promotion of gender equality.’
Criminal remedy for failure to pay maintenance
The Maintenance Act in s 31 (as amended), renders any failure to comply with a maintenance order a criminal offence punishable in law. The Maintenance Amendment Act 9 of 2015, increased the sentence of a failure to pay maintenance from a period of one year imprisonment to a period of three years.
In ensuring compliance with maintenance orders and the effectiveness of maintenance payments after conviction, it remains permissible for our courts to also consider the imposition of other various sentences instead of the above and where the circumstances necessitate.
Considering the above, it is highly important to all maintenance legal practitioners in the field of maintenance to diligently ensure the enforcement of maintenance orders and compliance in order to protect the best interests of the children to be maintained.
Conclusion and recommendations
The offence of failure to pay maintenance has a negative impact on the best interests of the child and it undermines and overlooks the practical needs for which the Maintenance Act was promulgated.
The effective enforcement and implementation of the laws governing maintenance can highly assist in the protection of the best interests of the child and can also promote the constitutional ideals of achieving substantive gender equality and upholding of the dignity of women.
The remedies under the Maintenance Act should be applied fully and diligently. Courts should be alive to recalcitrant offenders and impose effective and appropriate sentences accordingly.
The insurance of maintenance payments through reputable private insurance companies may play a greater role in South Africa as is the case in some European countries.
Themba Alfred Ndaba LLB (University of Limpopo) is a Maintenance Prosecutor at Taung Magistrate Court. This article was written in his personal capacity.
This article was first published in De Rebus in 2022 (May) DR 19.
