Maintenance defaulters could be blacklisted
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.