Main­te­nance de­fault­ers could be black­listed

Weekend Argus (Sunday Edition) - - NEWS - BULELWA PAYI

WITH the re­main­ing sec­tions of the Main­te­nance Amend­ment Act com­ing into op­er­a­tion soon, there will be no hid­ing for par­ents de­fault­ing on the main­te­nance of their chil­dren – as they may also not be able to make pur­chases of cars and houses.

The sec­tions pro­vide, among oth­ers, that per­sonal in­for­ma­tion of child main­te­nance de­fault­ers be sub­mit­ted to credit bu­reaus so that they may face be­ing black­listed.

The court may also is­sue an or­der to elec­tronic com­mu­ni­ca­tion ser­vice providers such as Vo­da­com, Cell C, MTN or Telkom to pro­vide them with con­tact in­for­ma­tion of de­fault­ers if they can­not be traced and all rea­son­able ef­forts to lo­cate them had failed, in or­der to force them to pay main­te­nance for their chil­dren.

Ac­cord­ing to the na­tional Jus­tice Depart­ment’s an­nual report for 2016/17, it re­ceived more than 145 000 new main­te­nance ap­pli­ca­tions. In 2015/16 it re­ceived over 210 000 en­quiries, and these gen­er­ally re­late to com­plaints of late pay­ment and ar­rears. In 2016/17 it fi­nalised just over 61 000 of the en­quiries.

De­fault­ing on main­te­nance pay­ment im­pacts on the abil­i­ties of the par­ent rais­ing the child to pro­vide ed­u­ca­tion, food, cloth­ing, med­i­cal ex­penses and other bare ne­ces­si­ties.

The head of the depart­ment of Jus­tice and Con­sti­tu­tional De­vel­op­ment in the Western Cape, Ad­vo­cate Hishaam Mo­hamed, said the law would now pre­vent main­te­nance de­fault­ers from con­tin­u­ing to re­ceive credit while ow­ing main­te­nance.

“We need to en­sure that main­te­nance pay­ments are treated like any other le­gal pay­ment obli­ga­tion. If you don’t pay an ac­count, you will be black­listed and if you don’t pay your main­te­nance, you will be black­listed in the same way. This pro­vi­sion will there­fore pre­vent main­te­nance de­fault­ers from con­tin­u­ing to get even more credit while they owe main­te­nance,” Mo­hamed said.

How­ever Joy van der Heyde, a Cape Town lawyer who pre­vi­ously worked with the Jus­tice Depart­ment and over­saw the im­ple­men­ta­tion of leg­is­la­tion im­pact­ing upon chil­dren and fam­i­lies in the courts in the Western Cape, ques­tioned the abil­ity of the depart­ment to ef­fect the changes given its bud­get and hu­man re­sources con­straints.

Van Der Heyde said the black­list­ing of main­te­nance de­fault­ers with credit bu­reaus was also a “catch 22” sit­u­a­tion.

“On the one hand it could act as a de­ter­rent to per­sons de­fault­ing on their fi­nan­cial re­spon­si­bil­i­ties, but on the other hand should we im­ple­ment same then we may be ham­per­ing that very per­son’s abil­ity to main­tain their chil­dren,” she said.

Ac­cord­ing to the new amend­ments, if a per­son has not paid their child main­te­nance within 10 days af­ter the pay­ment was due in terms of a court or­der, then the main­te­nance court, of­fi­cer or clerk may fur­nish the de­faulter’s de­tails to a credit bureau.

“In re­al­ity, there are var­i­ous rea­sons for late pay­ment of main­te­nance and this sec­tion does open it­self up for abuse. The other chal­lenge is that con­tact with a child is not pred­i­cated upon the pay­ment of main­te­nance. How is a per­son able to pro­vide ac­com­mo­da­tion for their child if they are black­listed and are un­able to ac­cess a mort­gage bond or other credit?” Van Der Heyde said.

She said the act was not clear on whether the black­list­ing of de­fault­ers should be utilised as a last re­sort and only af­ter the courts had at­tempted to en­force the pay­ment of the ar­rear main­te­nance through the at­tach­ment of as­sets or at­tach­ment of debts or an emol­u­ment at­tach­ment or­der.

“It is my opin­ion that this should be utilised as a last re­sort and the court should first at­tempt all other av­enues to sat­isfy the ar­rears main­te­nance,” she added.

How­ever, Mo­hamed main­tained that the amend­ment would as­sist in trac­ing main­te­nance de­fault­ers who “of­ten do ev­ery­thing in their power to dodge their main­te­nance obli­ga­tions”.

He said the depart­ment re­garded main­te­nance, es­pe­cially child main­te­nance, as one of its ma­jor pri­or­i­ties and there­fore crit­i­cal po­si­tions were be­ing filled.

Mo­hamed said the depart­ment had re­ceived a suc­cess rate of 81% in its turnaround time for fi­nal­i­sa­tion of main­te­nance ap­pli­ca­tions to within 90 days.

“We are con­fi­dent that these changes will im­prove ser­vice de­liv­ery to main­te­nance ben­e­fi­cia­ries and re­main com­mit­ted to en­sur­ing a more ef­fi­cient main­te­nance sys­tem that en­sures that the needs of af­fected chil­dren are put first,” Mo­hamed said.

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