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The two regulations that will form the crux of this article are reg 3(1) and reg 3(3) of the Maintenance Act 99 of 1998. Regulation 3(1) states: ‘A maintenance officer may, in investigating a complaint and with due consideration to expediting the investigation of that complaint, direct the complainant and the person against whom a maintenance order may be or was made to –
(a) appear on a specific time and date before him or her; and
(b) produce to him or her on the date of appearance information relating to the complaint and documentary proof of the information, if applicable.’
Regulation 3(3) provides that: ‘Any person who fails to comply with a direction contemplated in subregulation (1) shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding six months.’
Section 6(1) provides that: ‘Whenever a complaint to the effect – … has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act.’ The prescribed manner, is in part, with reference to reg 3(1) of the Maintenance Act. This makes the investigating of every complaint compulsory. The investigation of the complaint bears significance to the fact that the caregiver of the minor child, usually the mother, approaches the court to assist in the maintenance matter between her and usually the father of the minor child. The direction in terms of reg 3(1) may be given by the maintenance officer in a manner the officer deems fit as contemplated by reg 3(2). A standard form for the initiation of the investigation, as contemplated by s 6(1) of the Maintenance Act, was formulated by the Department of Justice and is contained in Circular 05 of 2013: Directive by the Maintenance Officer: Regulation 3(1)(a) and 3(2)(a). This standard form, we refer to as the directive. The directive contains reg 3(1) and reg 3(3). The directive calls the parties to the s 6 enquiry for the maintenance officer to investigate the complaint. Regulation 3(1) is protected by reg 3(3) in order to enforce compliance with the directive that was given by the maintenance officer. The procedure after non-compliance of the directive is the subject of this article. There is no case law on the non-compliance with the reg 3 directive as opposed to s 31 of the Maintenance Act. The court indicated in detail in the case of S v Magagula 2001 (2) SACR 123 (T) how s 31 should be implemented and certain guidelines were put in place to deal with a matter that falls under s 31.
A directive is issued by maintenance officers during the investigation phase, and it is believed that on receipt of the directive the parties are called to the maintenance office in order for the maintenance officer to investigate the complaint. The reality unfortunately is that a respondent, who is a party to the application, does not always adhere to these instructions. The return of service by the Sheriff would indicate that the respondent was properly served but the respondent may still not attend the maintenance enquiry. The uncertainty that prevails when a breach of reg 3 directive does occur, leaves the maintenance officer seemingly with no remedy. The question is what now? How does the maintenance officer proceed in the case of non-compliance?
The court in Ilsley v Lechoba and Another (GJ) (unreported no 50748/10, 2-12-2011) (Meyer J) condemned the use of the subpoena during the investigation phase in the strongest terms. The court in Lechoba made no secret of its frustration when it gave voice on the use of the subpoena in the investigation phase of the maintenance enquiry. The presiding officer at para 7 called it ‘irregular’ and said that ‘I am of the view that the irregularities to which I have referred constitute grave or gross irregularities’. Section 6(1) makes the investigation of every complaint compulsory and the court in Lechoba strongly objected to the use of the subpoena during the investigation phase of the enquiry, making the directive the right process document when initiating an investigation in terms of s 6(1).
Previously, the maintenance officer would issue a directive and the return of service would indicate that the respondent was properly served, and the respondent would still not attend to the enquiry in the maintenance office. The maintenance officer would then issue a subpoena and on non-compliance with the subpoena, a warrant of arrest would be requested to secure the respondent’s attendance. This circumvention tactic was used to secure attendance. This type of action was already addressed and frowned on by the Lechoba decision. The maintenance court is mandated in terms of s 10(6) of the Maintenance Act, to ‘conclude maintenance enquiries as speedily as possible and … ensure that postponements are limited in number and in duration’, making the issuing of a subpoena after a properly served directive, counterproductive. The Lechoba case prompted the Department of Justice to intervene, and they issued Circular 07 of 2012: Directives by the Maintenance Officer: Regulation 3(1)(a) and 3(2)(2), warning all maintenance officers not to use the subpoena during the investigation phase of the maintenance enquiry.
The Maintenance Act provides for civil remedies in terms of s 26 and criminal remedies in terms of s 31 of the Maintenance Act. In Young v Young 1985 (1) SA 782 (C) the court held that the maintenance court is a hybrid of civil and criminal elements. In terms of s 38 of Criminal Procedure Act 51 of 1977 – to secure attendance at court proceedings – a warning, a summons or even an arrest may be affected. The directive issued by the maintenance officer served as a warning. The directive would instruct the respondent to attend the s 6 maintenance inquiries and for the Sheriff to serve a summons on the respondent after that, would do little to foster trust with the applicant.
Regulation 3(3) makes it a criminal offence in the event of non-compliance. The criminal sanction attached to the non-compliance explicitly states that, it is an offence not to adhere to the directive. In the Criminal Procedure Act ‘offence’ is defined as ‘an act or omission punishable by law’. The authority is given to the magistrate to issue a warrant of arrest where a reasonable suspicion has been established that an accused has indeed contravened a legislative provision as indicated by s 43(1) of the Criminal Procedure Act. In terms of s 38(1) of the Criminal Procedures Act, one of the methods used to bring an accused who has committed an offense before court is a warrant of arrest.
The best illustration of how the directive and non-compliance was addressed was when the Western Cape took the lead in this matter. The National Prosecuting Authority issued an Internal Memorandum (Maintenance Matters: DOJCD Circular 7 of 2012) dated 4 March 2012. Chief Prosecutor Esther Cross of the Bellville Cluster in agreement with Senior Magistrates Isak Pieterse, Karen Botes and Janel Cochrane agreed that as an interim measure, the following would apply when a party does not comply with a directive, a maintenance officer will submit an affidavit and register a criminal docket at the nearest police station. The matter will be investigated in the normal course and pending on the outcome, a J175 or J50 warrant of arrest will be applied for. They realised that the non-compliance should be addressed, and that action must be taken.
The rule of law requires that legal certainty must prevail in order to adjudicate matters fairly and treat everyone equally before the law, so much so that in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (Council for the Advancement of the South African Constitution and Another as Amici Curiae) 2021 (11) BCLR 1263 (CC) the court held that: ‘Both finality and certainty are components of the rule of law, a founding value of our Constitution.’
The directive is a foundational process document that initiates the whole process that ultimately secures the much-needed relief the applicant approached the court for in the first place. Currently the maintenance offices still try to apply the Lechoba type of action to secure attendance, due to non-compliance of the directive during the investigation phase. The issuing of a warrant of arrest after non-compliance with the directive might be in place for a while in the Western Cape due to the intervention of some senior leadership, but the practice is not universal.
A portion of the preamble of the Maintenance Act reads: ‘Whereas the Republic of South Africa is committed to give high priority to the rights of children, to their survival and to their protection’. When an applicant approaches the maintenance office and an investigation indicates that a need for maintenance indeed exists, the parties must be brought to court. It usually starts with the issuing of the directive. If the implementation procedure of the standard issued directive does not get proper recognition through intervention, finality and certainty cannot be attached to it, as required by the Constitution. The rights of children, their survival and protection cannot be guaranteed. The presiding officer would not be able to apply his mind to make an order, in terms of ss 15 and 16, implement attachment, nor consider imprisonment as contemplated by ss 26 and 31 of the Maintenance Act. As insignificant as this directive seems, if the procedure after non-compliance with the directive is not addressed as in the case of Magagula, the advantages of the maintenance legislative provisions fall away.
The maintenance offices still work on a ‘hope and prayer’ system. Hope the directive reaches the respondent on a day they are in a mood to receive such news and prays that they will attend the s 6 enquiry. This situation is unacceptable and should be addressed. The implementation procedure after non-compliance of the reg 3 directive is still one of the most elusive within the maintenance system. It can be seen as a weakness and the exploitation of that weakness will create an opportunity for respondents to take advantage or the weaknesses within the system, as indicated by Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC). The weakness needs to be addressed.
Andrew Swarts LLB (Unisa) is a Maintenance Officer at the Calvinia Maintenance Office in Calvinia.
This article was first published in De Rebus in 2022 (Oct) DR 13.
