Amendments to the Maintenance Act
The new face of maintenance in South Africa
The Maintenance Amendment Act No 9 of 2015 (the Act) was signed by the Presidency for promulgation on 9 September 2015. This Act amends certain existing clauses and incorporates new clauses to the existing Maintenance Act 99 of 1998 (the current Act) in order to improve the maintenance system. The reason for the improvement is to close the various loopholes that exist in the current Act which has caused the maintenance application procedure to be drawn out and, at times, have a prejudicial effect on interested parties.
The current Act stands to be amended as follows:
- Section 6 relating to the jurisdiction of Maintenance Courts has been extended allowing the person applying for maintenance to apply either where they reside, or where they are employed, rather than only where they are domiciled as is currently required.
- Investigation of maintenance complaints will be more effective by empowering the Court to direct certain service providers to disclose information about interested parties, such as their residential address, should other efforts to procure such information prove fruitless.
- Maintenance officers are currently empowered to issue subpoenas to ensure the attendance of interested parties at the proceedings in order to give evidence or to produce documents. Section 9 has been amended whereby a maintenance officer will be granted the power to subpoena the beneficiary of a maintenance order as well, such as in instances where the respondent is applying for the reduction or discharge of the maintenance order.
- An additional clause has been inserted in section 10 placing a duty on the Maintenance Court to conclude maintenance enquiries speedily by enabling the maintenance officers to make interim orders, pending the finalization of the matter.
- The High Court has held, in two separate judgments, that a Magistrate contemplating an order under either section 16(2)(a) or 28(1) of the current Act for the attachment of emoluments, should afford an employer an opportunity to comment on the feasibility of such an order before it is made. The current Act has been amended to bring it in line with these judgments. This amendment will ensure that a Court hears the views of the person who is obliged to make payments on behalf of the person who has the maintenance liability, before making such an order.
- Section 17(1) has been amended in order to empower a Maintenance Court to make an order in the absence of the respondent or beneficiary, or both, if written consent is given by the absentee party. A copy of the order must then be served on such party.
Section 26 currently provides for the enforcement of maintenance and other orders. A new provision has been inserted in this section enabling the reporting of the defaulter to one of the various credit bureaus. This means that as soon as a complaint of non-payment is made, the defaulter’s personal details must be submitted to the relevant credit bureau. This will prevent maintenance defaulters from incurring further debt whilst in arrears with maintenance.
The above merely highlights some of the amendments introduced by the amended Act. The Maintenance Amendment Act, as stated above, has been signed off by the President, but this Amendment Act is not yet in force. Thus, the effectiveness of the amendments remain to be determined. Hopefully the amendments will fill some of the loopholes that previously existed and ensure a fair and proper outcome for all persons involved.
For assistance or more information regarding divorce and family law issues , please contact:
Juan Smuts or Vera Kruger
Divorce and Family Law Department, Abrahams & Gross Attorneys