“This is a sad place, all these people are angry — nobody is happy here.” Nomsa Sibaya sits with her arms crossed, staring at the women in the queue at the Johannesburg Family Court.
The court deals with estates, divorce and domestic violence, but is commonly known as the maintenance court. The majority of women in the queue are involved in the long process of maintenance collection. But their anger stems not only from the queues and lengthy processes, but from the attitudes of their children’s fathers.
“The men think that you are taking the money to go drink with your other boyfriends, but you are just trying to do what is best for the child,” says one woman.
“If I phone my husband he says he has paid the money and, after waiting the whole day in the queue, I find that he hasn’t,” Franciska Shabangu chimes in. “Sometimes I don’t go to work. But what must I do if the children don’t go to school or eat?”
The new Maintenance Act 99 of 1998 was supposed to make life easier for these women. It stipulates the common law duty of both natural parents to provide their children with food, shelter, clothing, medical and academic services. If either party is having difficulty extracting maintenance from the other natural parent the court can order payment through the provision of emoluments.
This means a third party, such as
the respondent’s employer, can be ordered to deduct the payment from the respondent’s pay cheque every month. The payment is then deposited either in the claimant’s bank account or with the maintenance court, where it is collected by the claimant.
The laws are in place, but still the women wait. “I used to have to wait like those other people; you would come at 8 o’clock and then sometimes you have to come back tomorrow,” Sibaya says.
She recently applied for a garnishee order and says knowing that she
will receive the correct amount each month is a comfort. “Now I wait because of the faxes.” The claimants have to wait at the court’s information desk for proof of payment from the respondent’s employer. However, most companies deposit a single cheque that includes all the payments owed by the respondents employed in that firm. Delays arise when the staff at the information desk have to establish who is owed what by whom.
These wasted hours and lost wages could be avoided if maintenance was paid directly into bank accounts. However, according to Bhekinkosi Moyo of Tshwaranang Legal Advocacy Centre, this does not happen because almost 70% of African women do not have bank accounts.
It seems the garnishee orders are not the answer to the backlog of maintenance cases. A research report by Moyo found that 33% of respondents ordered to pay by emolument orders had changed jobs. No sooner had garnishee orders been implemented than the respondent left the company and the process of tracking him down and getting another order had to start afresh.
Moyo says this provision of the Act will only be successful when all parties concerned “play ball”. This includes the cooperation and commitment of employers, respondents, maintenance officers, investigators and claimants.
Prior to the new Act, a maintenance court case could be delayed indefinitely if the respondent did not attend. In terms of the new legislation a default judgement may be made in the absence of the respondent.
Default orders have enabled the quantum stage of maintenance investigations — where a formal settlement figure is decided — to progress more speedily, as men are often absent on the day of the court case because of work considerations or simple avoidance.
While it is women who are mostly assigned custody and guardianship
of children and more often seek maintenance, the situation is sometimes reversed. Selwyn Adams is running between two floors of the mainte-nance court, clutching his four-year-old daughter Dyra to his hip. His other children, Eryn and Tebin, are at school. He fears he may not be able to keep them there on his meagre salary. The mother of his children signed over custody to Adams when they divorced. Eight months after his application for maintenance, the court case is still not finalised.
“I was waiting at the wrong court since a quarter to eight. I was by court eight instead of court six. Now the case is postponed but nobody
can give me a date.” His maintenance officer refers him to the prosecutor. The prosecutor refers him back to the maintenance officer. After his second trip back and forth between the two, he stops briefly before running off again and says: “I don’t know anything; I’m so lost.”
The queues move forward unbearably slowly and on the dot of 12pm things shut down for lunch. A woman in the queue quips: “They will be on lunch from 12 until two. And then either the magistrate is not here or it’s something else.” She sighs: “But what can you do? You are just doing it for the child’s sake.” She faces the front and waits her turn.
Supporting our children
South Africa’s first Child Support Week will run from October 15 to 22.
It is a collaboration between the government and civil society and is intended to create awareness about our constitutional obligation to support our children. Themes include maintenance, education, basic nutrition, child support grants and health care issues.
There will be a focus on education about how to access child support services, as well as ensuring that all services to which women and children are entitled under the Maintenance Act 99 of 1998 are available within the court system.
Child Support Week will be launched by Minister of Justice Brigitte Mabandla at the new court in Tembisa on the East Rand. The court will serve two million people and deal with issues including domestic violence and maintenance.
Tshwaranang Legal Advocacy Centre will convene a workshop to bring together the Department of Justice and civil society organisations to develop a plan of action to deal with maintenance issues.
Cough up!
Economic circumstances are not the only reason that parents fail to pay maintenance. Several high-profile South Africans have appeared in court over non-payment of child support:
Mohseen W Moosa, former African National Congress MP. Arrested for defaulting on school fees. On the day of his arrest he deposited R11 000 into the account set up for the maintenance of his children. He was convicted last month of failing to pay maintenance of R3 400 a month, despite owning properties in Camps Bay and Hyde Park and a wine farm outside Hermanus. He was fined R2 000 and given a five-year suspended sentence.
Lucas Radebe, former Leeds United captain. Appeared in court in 2001 for failing to pay school fees and medical costs for his son. At the time he was reportedly earning R300 000 a week and living in a house worth R2,5-million. He was also South Africa’s ambassador to the global Fifa SOS children’s villages. The matter was resolved through an out-of-court settlement.
Sundowns’ striker Peter Ndlovu is South Africa’s highest-paid soccer player with the club paying R3,5-million to secure his services. He was paid a R1-million signing fee and is reported to be earning R162 000 a month. He appeared in the Randburg maintenance court earlier this month, and the matter has been postponed until October 28.
Metro FM DJ Glen Lewis appeared in the Randburg maintenance court over arrears in April this year, when he initially denied paternity of his two children aged 14 and 16, but admitted he was the father just before the court ruled on results of the DNA tests. He was ordered to pay all arrears. — Motlatsi Lebea