Battle for maintenance
Desperate parents tell of endless struggle to get help from courts
ZANDILE* paints a harrowing picture as she speaks from outside the maintenance office in the East London Magistrate’s Court, her hands restlessly playing with prayer beads.
Having parted ways with her physically abusive husband five years ago, she said she was forced to allow the court to grant temporary custody of their 10-year-old son to his father as she was unemployed at the time of the separation and could not afford to support him.
After a brief visit during the June school holidays last year, Zandile was left heartbroken when the time came for her son to return to his father’s house and he tearfully told her he received daily beatings from his father.
She did not send him back, instead applying for an urgent interdict to have him remain with her while she resumed her fight for custody.
While her low-paying job will meet most of her child’s basic needs, she said she would need money from the father to supplement her income.
Zandile said she hoped going via the courts would yield positive results, but after months of rejection and humiliation at the hands of court officials, she said she was close to giving up.
“You get here and, on asking where to go, you are told to go and visit that office. You get to that office, sit in a queue for hours and, when it’s finally your turn, you are told you’re at the wrong office and you should be next door,” a tearful Zandile said.
“Because you are desperate, you go to the next door and again sit outside for a long time, waiting your turn. The people who work here are not friendly and many do not even seem interested in hearing your story. We are told to fill in many forms, some of which we don’t even understand.
“I’ve just been told to go visit social workers as I’m still in the process of getting legal custody of my son, but there are many women who have been coming here for a long time. It’s already so hard to come here seeking help and this is made more humiliating when we are treated the way we are. But we come back every single day because we really have no choice.”
Many mothers, fathers, step-parents and guardians report the difficulties they experience when visiting maintenance court in an effort to get errant ex-partners to contribute towards the upbringing of their children. This begs the question, are our maintenance courts failing the very subjects they exist to protect?
In an effort to gain a better understanding of the issues faced by many inside the court, East London attorney Tammy Coutts of Coutts Attorneys compiled a thesis on the topic in 2014.
Titled “A critical analysis of the implementation of the Maintenance Act 99 of 1998: Difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act”, the dissertation looks at a range of issues.
Coutts said she visited maintenance courts in Port Elizabeth, East London, Mthatha, King William’s Town, Zwelitsha and Mdantsane. What she found were issues including court files getting lost, rude staff, lack of proper waiting rooms and no ablution facilities in some courts.
“Some courts are better equipped than other courts but each of them has their own problems,” Coutts said.
“The system is designed that you don’t need to have a lawyer but, because of the inefficiency of the courts, many resort to getting one. In most cases, these people cannot afford one and when a case is done, many end up worse off financially than when they began.
“Those who don’t get a lawyer often struggle to fill in the complicated forms, they sit in waiting rooms waiting for their cases to be heard for up to eight hours and in many cases are told to come back the next day.
“Some of these women come from rural areas and may not have the taxi fare to come back or some have taken a day off from work and are losing out on a day’s pay.”
To speed up maintenance procedures, in 1998, “the Act introduced a number of new or revised concepts, including the introduction of the maintenance investigator (tracers), additions to the type of orders to be made (including the granting of default orders), a shift in the onus of proof from accused to prosecutor in a criminal matter, the extension of the application of the Act to a contractual duty outside of blood relation or marriage, and the automatic deduction of payments from wages through emoluments attachment orders.
“Despite the best intentions of the legislature, however, the maintenance system remains in disarray. It continues to be slow and ineffective and a fairly unproductive means of enforcing rights.”
The Saturday Dispatch sent questions to the department of justice (DoJ) on Wednesday this week, hoping to provide clarity on some of the maintenance court procedures, but these have gone unanswered.
According to the DoJ website, for a parent to claim maintenance from another party, the parent needs to apply at the magistrate’s court in the district they live in, where they will fill out an application form known as the J101.
Accompanying this form should be proof of monthly income and expenses such as receipts for food purchases, electricity and proof of rent payments.
The court will then set a date where the claimant and the respondent (the person from whom you wish to receive maintenance) must go to court. On this date a maintenance officer and an investigator will investigate the claim and look into the claimant’s circumstances.
Should they find grounds, a summons will be issued to the respondent telling them when they have to appear in court, where they will be given the choice to either agree to pay the amount or to contest it in court.
If the respondent agrees to the amount claimed, the magistrate will review the relevant documentation and make a payment order. If the respondent contests the payment, he or she must appear in court where evidence from both parties will be heard. If found liable for payment, the court will determine the monthly payments to be made. This can either be made directly to the magistrate’s office, from where the claimant can collect it each month; into the bank account of the person concerned, or directly to the claimant.
Jennifer*, a mother of two, who split from her husband when her youngest child was just a year old, said despite him initially contesting the maintenance order, the court had ordered her ex-husband to make monthly payments of just over R1 500 for both children.
Sixteen years later, Jennifer said she had yet to see a cent of this money and was now owed over R300 000.
The single parent currently holds down two jobs in order to support her children.
“I have e-mails from top officials promising to help me, to no avail. I have had enough of this maintenance department and have also lodged a complaint with the Hawks,” she said.
“I have battled and struggled for 16 years with a sick son with huge medical bills and this department has failed me and I am sure many others. My ex lives in Johannesburg and has a warrant out for his arrest from January 2016, but it seems . . . he cannot be found and held accountable.
“I have given officials his home address, his business address and all his contact numbers, but they tell me he cannot be found. I find it strange.”
Lecturer Steve* said he had been looking after his stepdaughter since she was in Grade 1 without any assistance from her biological father.
He said his wife had originally claimed R4 000 a month from the child’s father, which he contested, saying he could only afford R700, which he was granted. These payments finally started last year but stopped after six months. His excuse for not paying in the years before this was that he did not have a job.
“That amount is ridiculous. It’s not even enough to pay for her school transport, which is R750 a month, but the courts granted that order anyway. Now he’s stopped paying and when we asked him why, he just said he can’t afford it,” he said, adding that as a 15-year-old, his stepdaughter needed school fees, cosmetics, clothes, food plus her medical expenses.
“She has grandparents who live in a very fancy house in the suburbs but they also refused to give any money towards raising her.
“And it’s not that I mind paying for her. I just feel that as a father he has a duty to care for his child. He has full access whenever he wants to spend time with her but he clearly doesn’t see the need to try and raise her.”
Coutts said she had come across a number of fathers seeking compensation from mothers, but in many cases their pleas for help were not taken seriously.
“At the end of the day, a parent is a parent. Whether male or female, they have the right to seek what they need in order to raise their children.”
* Zandile’s name, and other names in this article have been changed to protect their identity and those of their children. — zisandan@dispatch.