Under South African law, specifically the Maintenance Act 99 of 1998, children have the right to receive financial maintenance from parents… but let’s get real for a bit, maintenance is an emotional and relational issue and the people that get the short end of the stick are women who are the parents of primary residence of the children as well the children. The reason for this is simple; the people applying the Maintenance Act are South Africans, human beings, who perform their work subjectively and with prejudice.
Maintenance is traditionally viewed as something that disgruntled, bitter “ex” applies for in order to punish the man she had a child(ren) with who chose to move on with his life. Yet South African is traditionally and in all practically a highly patriarchal society, with the bulk of the responsibility of raising children falling squarely and mostly on the shoulders of women.
We can dive into our history of the role of women in society, the oppression and abuse that women suffered due to that structure and the impact on children, which perpetuated and continues to perpetuate dysfunctional relationships in us but that’s not going to feed anyone’s child. I implore you to understand, without relinquishing your rights as a potential maintenance court applicant, that going to court for your child is hard and must be seen as an “investment exercise” for your child(ren) and their future.
Why apply for maintenance?
For an upper middle class lifestyle, it can cost up to R90000 per year to raise a child in South Africa (businesstech.co.za), excluding inflation. That’s R7500 per month, R3750 between parents who earn the same amount of money. That’s also R20, 7 million by the age of 23.
There is also the traditional “work of a woman” that is unpaid for (because it’s performed by women) and is required for the raising of a child. This work includes caring for the child when they are sick, cleaning for the child, meal preparation, administrative duties such as determining the school where the child will go, organizing child care for working parents, organizing the transportation of the child, organizing social activities for the child, keeping track of the physical and psychological health of the child. All understood to be duties that must be performed for the child by the parent of the main residence but is not assigned any monetary value.
A predictable, consistent income for the child(ren) helps the parent of main residence be able to perform all duties for the child’s wellbeing; and that’s why I believe most men abuse women through refusing to pay fairly towards the maintenance of their children, because they know it makes life harder for their ex. The law does however recognize that the harder it is for the parent of the main residence to provide for their child(ren) the more vulnerable the child is. The Maintenance Act is for the protection of the child.
As much as the “independent woman” phenomenon is popular as our society changes, the child has a right to have financial contributions from both parents. So if the ex is inconsistent and unreliable in the financial contributions, get an order.
Maintenance court need not be a fight. Both parents can agree to go to court and have whatever arrangement they have agreed to formalized into an order to protect the child. This is to protect the child.
How to apply for maintenance
1. Determine which magistrate court you need to go to in order to “lodge a maintenance complaint” with the court. Note that the area in which the child receiving the maintenance must be in the jurisdiction of the court.
2. Find out what documentation you need to apply for the court to intervene in the maintenance of your dependent. Traditionally the required information is;
From you as the applicant;
- birth certificate of the child requiring the maintenance
- The ID of the applicant
- Proof of residence (to confirm the court has jurisdiction to enforce an order)
- The applicants proof of income; a payslip for employees
- The applicant’s bank statements for 3 months. For FICA purposes, please ensure the bank statement reflects the same address as the proof of residence supplied above
- A divorce settlement if there is one
- The respondents information; their name and surname, ID number, residential address or work address.
- Ensure you detail the child’s expenses. Preferably in spreadsheet form with items and amount. KEEP SHOP SLIPS AND RECEIPTS for all your child’s expenses as far as possible for evidence. Note that pharmacies, in my personal experience Dischem can give a print out of all medication purchased for a specific person at that particular shop when the purchase was made using the Dischem card.
What if I don’t know much information about the respondent?
You will have to approach the court to find the respondent. This will obviously delay the process of the actual maintenance order. Note the Maintenance amendment Act 9 of 2015 that gives the maintenance officer the jurisdiction to use electronic services to locate the respondent. I wish there was an easier way but you will need to read up on the maintenance act for yourself in order to monitor the process and ensure that all powers that the maintenance officer has been delegated are used to locate the respondent and that the child(ren) is protected.
The maintenance process
The first enquiry is described as the “informal enquiry” where the maintenance officer is supposed to mediate the parties with the goal of getting to an agreement. These are the challenges an applicant can face during this session:
- the respondent does not attend
- the respondent brings a lawyer that has been instructed to keep the amount for the child as low as possible
- the maintenance officer depresses the child’s expenses based on the prevailing cases and attempts to coerce the applicant to accept whatever the respondent is offering in order for them to “tick a box”
There are two strategies that you, as the applicant can employ for maintenance cases:
- Accept the offer with the plan to continually apply for increments at a frequency of twice a year i.e. every six months. You will consider that you have to plan your life for a couple of years around these cases. This strategy also gives the respondent a “long rope” with which he can hang himself. You need to allow for the respondent to default payments if he chooses to. You keep track of all these and then approach the court and request a garnishee order. If the respondent is not formally employed then you need to find out the various escalations that can be made for violating a court order, including prison (which compromises the respondent’s ability to pay maintenance in the future).
- Refuse what you believe to be an unreasonable offer. At this point you will need to:
2.1. Request all the documents from the respondent brought to court for you to review; this is called document exchange
2.2. Set a date where both parties will present their evidence, where there will be cross examinations and the magistrate must make a decision.
Whatever the chosen strategy, after initiating a maintenance case; DO NOT GIVE UP. Rather accept an offer that doesn’t care for the child as they should. I know it is unfair, but such is life. Strategically, it is a foundation for future maintenance where you, as the applicant, are emotionally stronger, possibly have more resources to employ legal representation and can push through for your child.
WIIN blog will share more information on the maintenance process as well and the various resources available for women to support you through the maintenance process.
Light, love and life to you.
Written by: Phumlile Nkomo