The ‘any court’ conundrum – revisiting s 16(2) of the Maintenance Act

April 1st, 2023

Section 16(2) of the Maintenance Act 99 of 1998 provides that ‘any court’ – including a children’s court – can issue a maintenance order.

South African courts, like the divorce courts, issue interim financial relief to vulnerable parties during divorce proceedings – in r 43 of the Uniform Rules of Court and r 58 of the Magistrates’ Courts Rules.

The Domestic Violence Act 116 of 1998 provides for emergency monetary relief in s 7(4), which states: ‘The [domestic violence] court may order the respondent to pay emergency monetary relief having regard to the financial needs and resources of the complainant and the respondent, and such order has the effect of a civil judgment of a magistrate’s court.’

The Children’s Act 38 of 2005 provides for maintenance in ss 33(3) and 161. Parenting plans can provide for maintenance as provided in s 33(3), while foster parents taking care of a foster child can apply for financial relief in an s 161 contribution order.

If one looks at children’s courts and domestic violence courts statistics, these monetary orders are glaringly absent since most courts in South Africa shy away from making these monetary awards and refer maintenance matters to maintenance courts, which leads to the overcrowding of maintenance court rolls nationally.

I have observed divorce courts who refer spousal maintenance and child maintenance to maintenance courts by rather putting the burden of negotiating spousal maintenance orders with no token maintenance award on the maintenance court rolls than assisting divorced women during divorce proceedings. Child maintenance matters can take weeks or months to conclude after the divorce proceedings took its own toll of time on a desperate mother for financial assistance from fathers. It is recommended that divorce courts provide for token maintenance (nominal maintenance) – see Butner v Butner 2006 (3) SA 23 (SCA) or rehabilitative maintenance for indigent mothers to help them during the rehabilitative phase post-divorce instead of exacerbating overburden maintenance court rolls.

Since all South African courts have the statutory authority to make maintenance orders it is a strange phenomenon that courts do not make these orders but rather refer maintenance matters to an overburdened maintenance system.

Bail courts are sui generis in nature and can make any order including a maintenance order. Over the past few years, I have been advocating for a maintenance order to be considered by bail courts in domestic violence and sexual offences matters where the accused is a father or stepfather, and the criminal offence was perpetrated against another family member in the same household. I observed how mothers come to domestic violence courts and sexual offences courts to withdraw criminal charges against accused because their only source of income is incarcerated or refuses to contribute to rent or other necessities after their release on bail. If bail courts when hearing evidence of affordability of a bail amount can enquire regarding maintenance of the complainant or the family that the accused form part of – it might lead to more mothers and complainant pursue their domestic violence or sexual offence matter with no fear that their source of survival will be withdrawn from them.

In reprisal to filing a criminal case against a suspect the accused will refuse to contribute to the same household he once paid rent and contributed to food. Once released from the criminal courts on bail with a bail condition that the accused should not be in contact with the family member who filed the case against them – there will be little chance of success in securing much needed maintenance from the suspect while the criminal matter is pending. Some accused use the bail conditions as reason for not contributing to maintenance. If a bail magistrate while hearing the facts of the criminal case realise there might be reprisal or retaliation by an accused – the bail court can impose a bail condition that the accused continue his contributions to rent, groceries and school fees of his children or stepchildren despite the criminal matter brought against him by one of the family members dependent on the accused for financial assistance.

There is absolutely no reason why a domestic violence court cannot make an ‘emergency monetary relief’ order in terms of s 7(4) of the Domestic Violence Act.

There is absolutely no reason why a children’s court cannot make a maintenance order in an s 33 parenting plan.

The question remains, why are courts reluctant to make these maintenance orders?

Some courts will argue no proper financial enquiry was conducted to make a proper finding regarding the financial liability of parties. Section 10(6) of the Maintenance Act provides that a court can grant interim financial relief during any enquiry after hearing evidence relating to affordability, or an offer made by a respondent. During these s 10 proceedings pending a final order, a court is given the authority to make an interim order even where all evidence have not been heard but can consider an offer of the respondent as an interim order.

The divorce courts in High Courts and regional courts can consider interim financial relief based on evidence placed before it by the parties and consider these financial relief orders pending a final divorce order that can amend the interim financial orders.

In a similar fashion, a children’s court can consider maintenance in a s 33 parenting plan based on an offer by the non-custodial parent based on affordability that be reviewed later by a maintenance court – if there is some form of financial relief pending the finalisation of a final order.

Where a respondent makes an offer to any court to provide financial relief there is no reason why a court cannot consider and make such financial relief orders. If the father makes such an offer during the s 33 parenting plans process – the mediator or advocate can include such offer in the parenting plan that can easily be amended by a maintenance court at any stage after the parenting plan was made an order of court.

In domestic violence matters an emergency financial relief order can easily be reviewed and amended by a maintenance court.

In criminal bail matters, the bail court can easily review and amend the bail conditions, or the maintenance court can amend the maintenance order.

The enforceability of children’s court parenting plans has been questioned by some legal practitioners stating it is not a ‘maintenance order’ since it was made in a domestic violence court, children’s court or bail court but s 1 of the Maintenance Act defines a  ‘maintenance order’ as meaning ‘any order for the payment, including the periodical payment, of sums of money towards the maintenance of any person issued by any court in the Republic, and includes, except for the purposes of section 31, any sentence suspended on condition that the convicted person make payments of sums of money towards the maintenance of any other person’. So why an s 33 parenting plan with a maintenance order is not regarded by some courts as maintenance order is a mystery.

It is recommended that the legal fraternity, including presiding magistrates, attorneys, advocates, and mediators include maintenance clauses in proposed parenting plans. Public prosecutors in domestic violence matters and bail court proceedings can consider interim financial relief for vulnerable women and children where these gender-based violence offences occurred in a family setting that might be disrupted by removing the offender from the common household. There is no reason why a public prosecutor cannot consult with a complainant and obtain evidence on expenses and present such evidence to a presiding officer to make an interim maintenance order in domestic violence courts or bail courts.

Deon Henry Ruiters BIur (UWC) is a Senior Maintenance Prosecutor in the Sexual Offences and Community Affairs Unit at the National Prosecuting Authority Western Cape Office in Cape Town.

This article was first published in De Rebus in 2023 (April) DR 9.