The drama of getting her former husband to court to set maintenance for their children was the first in a series of events that left Karen* defeated, cynical and a single parent in every sense of the word.
Her husband avoided the maintenance court for eight months, but 24 hours after a warrant of arrest was served on him, he was in court, livid, swearing that he earned only R1 500 a month. He claimed he could not afford more than R200 for each of his boys.
His comfortable flat and smart car belied the claim, but Karen was reluctant to stir his fury by lodging a complaint until she came across a salary slip showing he earned R8 000 a month.
The court took a while to call him in to have his maintenance reassessed. He then left his job and took a commission-only position with a friend. It was easy for him to persuade the court that he was out of pocket; it was also easy for Karen to tell that he was getting a decent allowance for clothing, a car and entertainment. But she was helpless.
Karen has received nothing from her former husband since last September. They have been in and out of court while he tries to prove he cannot pay.
“I have no faith in the system,” says Karen after years of vain hope and constant chase. “If someone from outside could have taken the time to find out how much he was getting and had presented the information to the court, then I could have shrugged and said to him, ‘It’s part of the system.’ Then we could have kept it civil and the children wouldn’t be suffering.”
Jerome Chaskalson, a director of the People’s Family Law Centre in Cape Town, says that if Karen’s maintenance officer had used the mechanisms of the new maintenance Act the couple could have kept the conflict civil and out the criminal-justice system. The court could have extracted his arrears by garnishing his salary or bank account, or by attaching his property and no criminal trial would have been necessary.
“Once you’ve attached their goods,” says Chaskalson, “destitute dads find the money.”
Chaskalson says Karen’s ideal of keeping the matter out the criminal courts is envisioned in the new Act, but her maintenance officer might not have been aware of the new civil options or might have thought them too difficult to implement. So Karen fell into the ineffectual criminal court route where the state must prove that the spouse can pay maintenance.
The People’s Family Law Centre is a five-month-old NGO that was formed to help the Department of Justice and Constitutional Development pick up systemic problems with family law. The initiative, which will soon go national, provides low-cost services for people struggling with family matters.
About a third of the centre’s clients have needed help to enforce maintenance orders. Attorneys at the centre have developed a strategy for these clients, based on the muscle of the new maintenance Act. But they have also had to work to bolster fragile areas in the powerful new law.
Two main weaknesses have been identified in the implementation of the Act. Many maintenance clerks are insufficiently trained to offer clients civil court options and still pull people like Karen into the criminal court.
Corlia Kok of the Directorate for Children and Youth Affairs in the justice department acknowledges the problem. She says the department is trying to train clerks “to concentrate more on the civil side”.
Secondly, an important provision to support complainants has not yet materialised. The Act prescribes specialist maintenance investigators to do the critical work of tracking down fathers and determining their financial affairs. The issue of maintenance investigators has been debated for four years, yet remains heavy with tension over transformation and responsibility.
The justice department has declined to accept proposals by sheriffs of the court to have tracing and investigation added to their functions — at a charge of R75 a tracing, “plus vat”.
Sheriffs now serve all maintenance documents and attach goods when parents don’t pay up. The department, however, says it would prefer specialists working in a multidisciplinary approach, which would increase the support base for women and children.
Sheriffs have traditionally been white males and observers speculate that the department would prefer to open up job opportunities for previously disadvantaged people.
Johan Fourie, chairperson of the Western Cape Sheriff’s Association and former president of the national association, insists that sheriffs are the best candidates for the job. He says there is a sheriff in every magistrate’s court countrywide. They have local knowledge to enable them to trace members of their own communities and a network around the country to catch up with the more mobile dads.
Fourie says that sheriffs are well equipped to handle money because they are already indemnified by a fidelity fund, which protects trust funds containing recovered maintenance. He points out that sheriffs are also “bound by a code of conduct”.
Another problem with implementation of the Act is that there is a three- to four-month waiting list at many maintenance courts.
Kaiser Kganyango, media liaison officer at the justice department, says that a preliminary report has identified difficulties with “human resources capacity, training of maintenance officers and congested maintenance rolls”.
He says the national director of public prosecutions recently appointed 80 new maintenance prosecutors to help relieve the backlog.
Diane Smart of the centre says that some maintenance courts have interpreted the new Act to mean that they can only use civil law to enforce their own orders. Orders made by other courts can then only be enforced by the criminal justice system.
* Not her real name