What is maintenance abuse?

“Maintenance” refers to the financial support provided by one person to another, typically to ensure that the recipient has adequate means for their living expenses. The primary focus is on the maintenance of children, ensuring their basic needs such as food, clothing, education, and healthcare are met. However, it can also apply to the support of a spouse or other dependents such as parents, grandparents and siblings.

Purpose of the Maintenance Act

• The purpose of the Maintenance Act is to promote and protect the welfare and wellbeing of children in and their rights in terms of section 28 of the Constitution.
• The Maintenance Act furthermore enables major dependants and major persons who are unable to financially support themselves to obtain maintenance and
• The Act enables major persons to recover maintenance where there is a duty of event of non- payment.

Locus Standi: Who can bring an application for maintenance?

• The biological parent
• A care giver should the biological mother be deceased.
• Where the child lives with the grandmother in one province and the biological mother works and lives in another province, in such instance the biological mother does not lose her right to approach the Maintenance court where she resides, carries on business or resides.

Jurisdiction: Which Court can the applicant approach to lodge a maintenance claim?

Section 3 and Regulation 6(2) regulates the issue of jurisdiction.

Section 3 of The Maintenance Act provides: that every Magistrate’s Court within its area of jurisdiction is also a maintenance Court.

Regulation 6(2) provides: after investigating the complaint, the maintenance officer may institute an enquiry in the maintenance court within the area of jurisdiction in which the person to be maintained, or the person in whose care the person to be maintained is, resides, carries on business or is employed with a view to enquiring into the provision of maintenance for the person so to be maintained.

Until what age can a child be supported?

The duty of support exists until the child becomes self-supporting and is not linked to the child turning 18. The fact that a child has reached the age of majority and is employed does not mean that such person is completely self-supporting. In such event parents will be responsible to maintain such major to the extent that the major is unable to support themselves. This is conditional upon the parents having the necessary means to do so.

What happens where a respondent fails to appear at a section 6 enquiry by the Maintenance Officer

This is regulated by section 18 of the Act titled Orders by default: which provides: “(1) If a maintenance court is satisfied on the grounds of sufficient proof or otherwise

(a) that any person against whom an order may be or has been made under section 16 (1) (a) or (b) or that any person in whose favour such an order has been made-

(i) has knowledge of a subpoena issued under section 9; or

(ii) has appeared before the court and was warned by the court to appear at a later date, time and place before the court

It is important to note from this section that the use of the word subpoena is used in a section 10 enquiry. A subpoena cannot be issued in a section 6 enquiry and only directives are issued in such an enquiry therefore orders by default cannot be made in section 6 enquiries.

• The Maintenance Enquiry held by the Court: Section 10

After the parties met at the section 6 enquiry with the Maintenance Officer and it was not capable of settlement, the matter proceeds to court to enable the court to holds an inquiry in terms of section 10.

What happens where there has been proper service and the respondent is not present

If the Presiding Officer is satisfied that the requirements have been complied with then the court can either consider issuing a warrant of arrest if the subpoenaed person fails to appear at court or consider a request by the complainant for an order by default.

Duties placed on maintenance officer in preperation for the section 10 enquiry: codified instructions paragraph 17

• Maintenance Officers are expected to ensure that witnesses are properly and timeously subpoenaed to court using the Section 9(2) subpoena.
• Codified Instructions for the Clerk of Court Maintenance in paragraph 17 instructs the maintenance officer to ensure that two separate bundles of documents are prepared for the Complainant and Respondent.
• The Maintenance Officer must ensure that all the parties and the court have identical bundles of documents which must be indexed and paginated so that the evidence is presented in a chronological manner.