New legislation is aimed at addressing serious shortcomings in the maintenance system. But it doesn’t go far enough, writes Shireen Motara
The honeymoon is over. The election euphoria has subsided and as our new President, Thabo Mbeki, has said, it is time to get South Africa working.
His intentions are also apparent from his appointment of a Cabinet which will be dedicated to implementing government policies. More importantly, they will ensure that ”a better life for all” becomes a reality.
Unfortunately, this is easier said than done. How do you get people working when almost half of the population is without a job, and more and more people are joining the ranks of the unemployed on a daily basis?
It is no maybe that women – black women – are the majority of the unemployed. This status, in addition to their subordinate position in the workplace and the home, has ensured that women remain dependent on men (whether as husbands or bosses) for economic and financial relief.
One major area where this dependency is especially prevalent is child maintenance. With the increase in female-headed households and the rise in single-parent families (read single-mother families), women are reliant on maintenance to provide for their children’s basic needs. However, the maintenance system has become more of a problem than a solution.
The newly passed Maintenance Act (1998) and the review of the maintenance system by the South African Law Commission bear testimony to this. Legislative difficulties, administrative hiccups and human resource problems all contribute to the fact that women sometimes have to wait up to three years before they can secure maintenance for their children.
Research conducted for the National Association of Democratic Lawyers’ human rights research project in Cape Town in 1998 has again shed light on the avalanche of problems with the maintenance system. Whether or not legislation can address these problems remains to be seen.
The research included interviews with women who have used the maintenance system, maintenance officers, magistrates, advice workers and senior officials from the Department of Justice (the deputy minister of justice, the director of courts, the chief family advocate and the head of the gender directorate). In essence the research revealed the following obstacles:
l that there are lengthy delays between applications for maintenance and the receiving of the maintenance order, with one woman waiting four years before being granted an order;
l that there is ineffective implementation of defaulting procedures, resulting in more than 50% of fathers not complying with maintenance orders every month; and
l that there are numerous difficulties encountered with maintenance officers, including the fact that they do not explain the maintenance procedures to women, leaving them totally uninformed about the route the process will follow.
Women also noted that maintenance officers were ”unfriendly and unhelpful”, and some women commented that maintenance officers often appeared to be biased in favour of the fathers.
As one woman said: ”I wanted to go through [to the court] to get an order, but because he pleaded and promised to contribute, the maintenance officer gave in to him – I wanted to go before the magistrate but I had no power to do that.”
Responses from maintenance officers revealed the following:
l There is no uniformity in the manner in which maintenance officers deal with complaints. This is illustrated by the time it takes for action to be taken against defaulters. It ranged from three days to three months, with the waiting period differing even within the same court.
l Most matters are settled by the maintenance officer without their having to go to court. This was confirmed by a magistrate who indicated that 10%to 20% of cases eventually end up in court. This is highly problematic when maintenance officers are ill equipped to do their job successfully. This was also confirmed by some women who felt that maintenance officers compelled them to settle when they wanted to take the matter to court.
l The qualifications of maintenance officers, in addition to their experience and the training they receive, have an impact on the way they do their work. This is compounded by a lack of promotional opportunities for them. Most of the maintenance officers who participated in the study indicated a need for training and ”workshops and discussions on improving the service” they provide.
l Poor working conditions are a major contributing factor to the unsatisfactory way in which the maintenance system operates. These include: long working hours, full court rolls, staff shortages, outdated equipment and lack of co-operation from the police and the sheriffs.
l Most maintenance officers (including the two prosecutors interviewed) indicated that prosecutors should not deal with maintenance. The reasons given were a lack of interest on the part of prosecutors and that they do not know what is happening. According to some of the magistrates, prosecutors prefer not to do maintenance matters because of the ”status” of maintenance matters and the fact that the work is monotonous. This was confirmed by the head of the gender directorate in the Department of Justice and the chief family advocate.
Does the new Maintenance Act address these problems, or, indeed, can it? In a nutshell, no, it cannot. It is a well-known fact that legislation has limited success on its own. In order for it to be effective, it must of necessity be accompanied by a holistic approach which encompasses policy guidelines as well as implementation.
Nevertheless, the new Maintenance Act has made efforts to address some urgent shortcomings in the old Act. These measures are aimed at providing short-term solutions and include the following:
l The appointment of maintenance investigators to track down fathers who are escaping their maintenance responsibilities.
l The use of garnishee orders when a maintenance order is granted, provided that the father is employed. The garnishee order requires the employer to deduct the maintenance from the father’s salary each month.
l The granting of maintenance orders by default. This means that, unlike in the past when fathers used to avoid their obligations by not appearing in court, the court can now make an order in his absence if it is satisfied that he had knowledge of the subpoena and failed to appear before the court.
Again, for these measures to be successful, there must be an examination of the practicalities involved in implementing them. The incorporation of regulations in the Act will go a long way towards setting this out.
As part of addressing the lack of uniformity in the way maintenance officers do their work, the regulations prescribe set forms which have to be used in the process. This is to be welcomed because, as the research has indicated, the lack of consistency in the operational methods of maintenance officers was a concern of most of the women who were interviewed.
However, while the regulations give some practical guidance, some concerns remain. It is essential that these be taken into account by the Department of Justice as well as the South African Law Commission.
The regulations will not ensure that women are provided with information about the maintenance process. Rather, it will reinforce the disempowerment of women because the forms which will be provided for women to fill in will either be too legally complex or in a language they do not understand. This will isolate illiterate women from the entire process.
It is therefore important that, in a country where we are attempting to build a constitutional democracy, we must not base our work on the assumption that all people are literate and English-speaking.
The regulations and the Act will also not address the kind of problems mentioned above. These relate to human resources and can only be addressed by the appointment of additional staff, and better working conditions, continuous training and a change in attitudes.
Another major shortcoming of the new Act is that it still does not provide for the availability of legal aid in maintenance cases. This is highly disadvantageous when one takes into account the lack of information on the part of the women and the lack of commitment and interest which prosecutors show in maintenance matters.
Unless and until all these issues are addressed, the new Act will have very limited success.
The above suggestions are aimed at providing the Department of Justice and the Law Commission with recommendations on improving the maintenance system. The research conducted also makes far-reaching recommendations which aim to address the short-term and long-term difficulties with the maintenance system.
The restructuring and improvement of the maintenance system is critical to the creation of a society where the responsibility for the well-being of the children is shared by both parents. It also has implications for the promotion and protection of gender equality in South Africa. Until women are equal players in the home, the workplace and society, they will continue to look to men and the state for assistance.
With the social welfare system unable to address all needs, there is a responsibility on the government to show its commitment to gender equality by ensuring that there are resources available to improve the maintenance system.
It can also show its commitment by taking strong action against maintenance defaulters within its own ranks by making a public example of them. Public figures who are allowed to shrug off maintenance claims against them because their superiors do not speak out against them set a bad example for the rest of the country. This is a challenge to the new minister of justice. Penuell Maduna, the floor is yours.
Shireen Motara is the deputy director for policy and research at the Commission on Gender Equality. This article is written in her personal capacity