By Marlene Lamprecht

Section 31(1) of the Maintenance Act 99 of 1998 creates the offence of failing to make payment in accordance with a maintenance order.

Section 31(1) states: ‘Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to such imprisonment without the option of a fine.’

Section 31(2) states that a defence of ‘lack of means’, will not succeed if the prosecution proves that the failure to pay was due to the accused’s ‘unwillingness to work or misconduct’.

Regulation 22 of the Maintenance Act sets out the procedure that the complainant must follow in instituting a prosecution for failing to comply with a maintenance order: ‘A complaint regarding a failure to make a payment in accordance with a maintenance order shall substantially correspond with Form Q of the Annexure.’

Form Q requires the complainant to state under oath, inter alia: ‘The complainant is in arrears with his/her maintenance payments to the following extent.’

Form Q further requires the complainant to either: Attach ‘A certified copy of the existing maintenance order’ or to indicate that the order is ‘on file at the Maintenance Court’.

Section 31(1) sets out two requirements for institution of a prosecution, namely:

• A court order.
• Evidence that the respondent has failed to comply with the court order.

May the prosecution insist on further and better evidence?

In many courts the practice has arisen that the National Prosecuting Authority (NPA), before instituting a s 31(1) prosecution, will require evidence that the defaulting party, at the time of the default, had the means to comply with the court order.

This additional requirement conflicts with the provisions of s 31(2).

The NPA relied on S v Magagula 2001 (2) SACR 123 (T) as being the authority, which introduced this additional requirement.

The Magagula case

At para 105, Stegmann J held in order to establish a contravention by the accused of failing to comply with maintenance order that the following elements must be proved –

‘(1) a maintenance order directed to the accused;

(2) a failure by the accused to make a particular payment required by the order:

(3)(a) that at the time of his default, the accused had the means to comply with the order; or

(b) … if the accused has raised the defence of a lack of means, that the accused’s lack of means was caused by his own unwillingness to work, or by his misconduct; and

(4) a guilty mind on the part of the accused (including knowledge of unlawfulness).’

It appears as though the NPA – when insisting on this additional requirement – did not distinguish between the institution of a prosecution and a conviction for the contravention.

Effect of the additional requirement

The practical difficulty of this additional requirement is that it is not always easy to produce satisfactory evidence that the defaulter had the means to comply with the court order. This is knowledge that is peculiarly within the knowledge of the defaulter.

Often, when the NPA is of the opinion that there is insufficient evidence to prove that ‘the accused had the means to comply with the order’, it will decline to prosecute the matter.

Effect of a nolle prosequi

The institution of criminal proceedings is usually the last resort of the complainant. It comes after the civil remedies for defaulting on a maintenance order, warrant of executions, emoluments attachment orders and attachment of debts have been unsuccessful or have not been able to be utilised.

Once the NPA has declined to prosecute the matter the applicant is often left without any relief. The ball is now in the hands of the defaulting respondent. The respondent may, in theory, apply in terms of s 19 of the Maintenance Act for the order to be varied or set aside. The difficulty with this solution is:

• Does the respondent know this should be done?
• Does the respondent want to do this?
• Is the respondent not paying because of inability or because they do not want to pay?
• Does the respondent’s conduct amount to misconduct?
• Does the respondent have a guilty mind?

A nolle prosequi also means that the respondent is denied the opportunity of showing the criminal court that the lack of means was not due to any ‘unwillingness to work or misconduct’ on their part.

The practical effect of a nolle prosequi decision is that the maintenance court proceedings grind to a halt. Often the only hope available to the complainant is for the respondent to change their mind, to resign or retire and to receive a lump payment or to die and leave something of value in the estate.

What about a s 41 conversion?

Section 41(a) provides for the conversion of criminal proceedings into a maintenance inquiry.

If during the course of any proceedings in a magistrate’s court in respect of an offence referred to in s 31(1) it appears on good cause shown that it is desirable that a maintenance inquiry be held, the court may, of its own accord or at the request of the public prosecutor, convert the proceedings into such inquiry.

The institution of a criminal prosecution for failing to comply with a maintenance court order is distinguishable from an ordinary prosecution because the purpose of the prosecution is twofold –

• to determine whether the respondent committed an offence; or
• to determine whether the matter should be converted into a maintenance inquiry.

The institution of a criminal prosecution should not be seen only as a punitive measure, but also an opportunity of providing the respondent the right to have the maintenance inquiry re-opened.

The NPA by insisting on proof, before instituting a prosecution, that the respondent had the means to comply with the order, is limiting the application of the s 41 conversion and this has the effect of frustrating the purpose of s 41.

One of the main purposes of s 41 is to identify and assist respondents who either do not have the means to pay the maintenance court order or who have been wrongly ordered to make such a payment. A s 41 conversion may sometimes be seen as tantamount to a review of the original decision.

In criminal proceedings s 41 conversions are unique to maintenance defaulters.

Benefits of a s 41 conversion

A maintenance court, after hearing evidence, may substitute the original order or even discharge it. A criminal court, even if a person is found, ‘not guilty’, does not have the authority to discharge or substitute the maintenance order.

The role of the NPA in the Magagula decision

In the Magagula case, no fault was found on the part of the NPA in charging the accused for failing to comply with the maintenance order and relying only on –

• existence of a court order, and
• evidence under oath of a failure to comply with the court order.

The role of the magistrate in the Magagula decision

Criticism was leveled against the magistrate for –

• failing to establish that all the elements necessary for a conviction were either admitted or proved during the course of the criminal proceedings; and
• failing to convert the proceedings into an inquiry.

What if the NPA had declined to prosecute in Magagula?

If the NPA had declined to institute proceedings against Mr Magagula, the maintenance order would have continued to be of force and effect until set aside by a maintenance court. The arrear maintenance would have continued to accumulate. The complainant would have been entitled to institute civil proceedings for the recovery of the arrear maintenance. Should Mr Magagula have resigned or retired and received a lump sum payment the complainant would have been entitled to apply for an attachment of debt.

All in all, the best thing that happened to Mr Magagula and his other dependents was the institution of criminal proceedings.

Focus of the NPA

A policy of the prosecution aimed more at securing convictions rather than instituting a prosecution is problematic in the case of maintenance defaulters. A successful prosecution is not always the best outcome. Sometimes the best outcome is a conversion.

Rights of the child

One must not lose sight of the fact that a maintenance order is more than a civil judgment; it is the basis of a relationship between a child and the parents.  A maintenance order is the embodiment of the right of a child to be maintained by their parents.

All organs of state must endeavour to ensure that there is compliance of s 9 of the Children’s Act 38 of 2005.

In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

Conclusion

The NPA does not have the right to decline to prosecute a s 31(1) complaint if there is evidence of a valid court order and evidence under oath that the accused has failed to comply with the court order.

Marlene Lamprecht BProc (Wits) LLB (Unisa) is a senior magistrate and Head of the Family Court Section in Johannesburg.

This article was first published in De Rebus in 2018 (April) DR 19.