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The National Credit Regulator introduced an affordability guideline, which deals with the issue of arrear child maintenance. It proposed that maintenance defaults will remain on a defaulter’s credit record for five years or until the court rescinds the default judgment, whichever occurs sooner; the credit granter will also have to assess whether a customer can afford to take on additional debt by being able to repay the loan after considering his maintenance obligations to his dependents; details of maintenance payments are to be included in all affordability assessments for any person wanting to apply for a new loan. In addition, there is a provision for blacklisting defaulters with the Credit Bureau. Government would now work together with credit bureaus to track down maintenance defaulters.
This was a welcomed relief to those single mothers who were in desperate need to track down defaulting fathers. Credit bureaus are known to keep accurate records of the whereabouts of people such as their latest known address and employment details.
The Maintenance Amendment Act allows for parents who default on their maintenance order to be blacklisted at credit bureaus, have interest added to their maintenance arrears, or have their property or salary attached. If the parent who is liable for maintenance cannot be located or contacted, the court has the power to authorize that parent’s cellphone service provider to provide the court with their contact details. Apart from ordering the defaulter to pay the arrear maintenance due, the courts can impose fines, sentence a maintenance defaulter to imprisonment or issue a suspended sentence.
The reality on the ground, however, remains that many absent fathers run away from their responsibility of paying maintenance.
In terms of the Maintenance Act 1998, both parents have a duty to support their minor children in accordance with their means. This means that the father is not the only one with an obligation to pay maintenance.
Statistics show that South Africa has over 90% of all maintenance defaulters being male. The queues of people waiting outside the maintenance court to apply for maintenance are still overwhelmingly female. Whilst there is a growing number of instances where mothers are ordered to pay maintenance for their children, most maintenance orders are still made against fathers.
The issue of “non-paying” and/ or “absent” fathers remains a huge problem in South Africa. There is a steady increase in the number of domestic violence abuse cases in South Africa and this, coupled with the rise of teenage pregnancies, which add to the social burden to the State, means that more must be done to deal effectively with the problem of maintenance defaulters.
A person who cannot afford to pay a specific amount of maintenance can approach the court to get the amount of maintenance reduced if he can prove a change in his circumstances. Even though we have tough laws, which seek to promote and protect the rights of vulnerable children, the problem of maintenance defaulters continues to trouble South African society.
Many fathers refuse to pay the maintenance because of the belief that the mother is using the money on herself rather than on the needs of the children. In some cases, fathers who claimed to have no income, but own immovable property are ordered by the court to sell the property and fulfil maintenance obligations to their minor children.
In other cases, if the father remarries, he can apply to court and ask for a reduction in the amount of maintenance he would have been ordered to pay to his ex-wife on the basis that he had to also support his new family. The court will then consider all his expenses and may order that both family’s lifestyles be adjusted downwards and not that only of the first wife and her children.
The aftermath consequence is that failure to pay maintenance ultimately contributes towards a decline in the economy as children are forced to leave school prematurely and to live a life of poverty. Children are deprived of an opportunity to create a better standard of living for themselves. Any chance they may have had of becoming a successful professional person in formal employment or business is denied to them. In addition to this, the South African government has seen an increase in spending on social development. The amount of these grants is however not sufficient enough to eradicate poverty. Many children especially those in rural areas barely have enough to provide for their basic maintenance needs.
Krugersdorp Magistrates Court issued what is arguably one of the toughest judgements in a maintenance criminal court, to a father who failed to pay maintenance to his children and former wife.
The court sentenced the man to imprisonment for six years 18 months of which was suspended, so effectively it sentenced him to four and half years for contravening the Maintenance Act. The man, a director of a successful food franchise business which did an annual turnover of R9-million, owed his ex-wife approximately R1.4 million in arrear maintenance. In terms of their divorce settlement, he was to pay R24 000,00 per month for five years as rehabilitative maintenance to his ex-wife and R10 000 a month for the children. He stopped paying the maintenance after three months claiming that he could no longer afford to.
If a person is unable to pay any maintenance order due to lack of means, he or she needs to produce compelling proof to justify why the maintenance order they cannot abide the court order. The court heard that he subjected his children to poverty whilst he lived a life of luxury. He told the court that the business was doing badly and that his fiancé purchased the business, paid off his loans and that he now earned a salary of R25 000 as an employee of the business. The court said it considered the sale of the business to the man’s fiancé for no value, to be merely a “smokescreen for him to live a luxurious life‚ while forcing his ex-wife and children into poverty”.