Report of the Portfolio Committee on Justice on the Maintenance Bill [B 72 - 98] (National Assembly-sec 75), dated 30 October 1998, as follows:
The Portfolio Committee on Justice, having considered the subject of the Maintenance Bill [B 72-98] (National Assembly-sec 75), referred to it, submits the Maintenance Bill [B 72B-98] (National Assembly-sec 75).
The Committee further wishes to report as follows:
1. The Committee, from the outset of its deliberations on the Bill, took cognisance of the fact that the Bill, although constituting a re-enactment of the existing Maintenance Act, 1963 (the Act), is a temporary or interim measure which is intended to be replaced by legislation emanating from the report of the South African Law Commission in its comprehensive review of the entire judicial maintenance system. The Committee also took cognisance of the Department's acknowledgement of the fact that the proposed legislation, intended as an interim measure for the benefit of users of the maintenance system, should not be seen as being satisfactory in all respects. During its deliberations the Committee came across numerous provisions (which are mostly re-enactments of provisions in the existing Maintenance Act, 1963) which, in its opinion, are unsatisfactory and require addressing after further research. The deliberations also brought to light that some aspects of the body of law (Common Law) relating to the subject under discussion may not be in line with the spirit of the new constitutional dispensation. In the light of the temporary nature of the proposed legislation, the Committee was of the opinion that notwithstanding these unsatisfactory aspects, the numerous positive aspects contained in the Bill should be made available to users of the maintenance system as a matter of urgency, hence the decision of the Committee to pass the Bill in its present form. The Committee requests the Minister of Justice to ensure that all aspects of the present maintenance system which may not be in accordance with the new Commission in its investigation. The Committee also noted that the present legislation is sometimes disjointed and not as clear as it should be. It consequently also requests that the new legislation be made as clear and user-friendly as possible.
2.1 Numerous submissions were received regarding the present situation, regulated by section 3(2) of the Act and the provisions of the Bill which deem all prosecutors to be maintenance officers. The opinion was expressed that provisions of this nature have contributed to the situation where maintenance officers lack experience and knowledge or, even worse, commitment, when it comes to maintenance matters. The Committee requests the Department of Justice to take steps to direct that the National Director of Public Prosecutions, in conjunction with Justice College, make every effort to ensure that a specialised pool of expertise is built up and maintained as far as maintenance matters are concerned. The Committee expressed its concern about the lack of continuity in respect of maintenance matters and urged that career opportunities be created for the important post of maintenance officer. It also suggested that a pool of expertise in maintenance matters be created to address the present problems caused by this lack of expertise.
2.2 Similarly, section 3(1) of the Act and the Bill contain provisions which allow the Minister of Justice to appoint maintenance officers for any maintenance court The Committee was of the opinion that the Minister, where possible, should make greater use of these particular powers vested in him. Appointment of specific committed maintenance officers who intend specialising in this aspect of the administration of justice, who are interested in maintenance matters and who are specially trained, will go a long way in building a pool of expertise across the country.
3. Section 7A of the Act was enacted in 1991 and provides for the examination of persons with information relating to maintenance matters by a magistrate at the request of the maintenance officer. These examinations are similar to the procedure prescribed by section 205 of the Criminal Procedure Act, 1977. These provisions are on the Statute Book with the view to ensuring that all relevant information is obtained for purposes of a maintenance enquiry. Although the provisions are being re-enacted in the Bill, the Committee has taken cognisance of the fact that they have often not been used in practice. The Committee is aware that one of the many objections raised in respect of the present maintenance system is that the parties are required to appear in court on numerous occasions before a maintenance matter is finalised in one way or another, to the detriment of the parties and the entire court system. This can, to a large extent, be ascribed to the fact that the court does not have the benefit of all relevant information in order to come to a decision. The Committee has expressed the hope that these provisions will receive greater prominence in future and be put to greater use, to the benefit of the maintenance system as a whole. It consequently requests the Minister of Justice to bring the importance of these provisions to the attention of the relevant role-players and especially to maintenance officers, who are going to be assisted by maintenance investigators. It also requests Justice College to ensure that training programmes for maintenance officers, maintenance investigators and, where requested, presiding officers in respect of these provisions are initiated and implemented.
4. In its submission on the Bill the National Association of Democratic Lawyers strongly objected to the fact that the Bill specifically recognises customary unions as defined in the Black Administration Act, 1927, which, in effect, constitutes unfair discrimination against other cultures. It recommended that all marriages, irrespective of religion or culture, be recognised for purposes of this legislation. Whilst recognising the need to eliminate any form of existing discrimination in this regard and whilst sharing the sentiments of NADEL, the Committee noted that this legislation is not the appropriate statute to deal with issues of this nature, since the Maintenance Act, 1963, and the Bill, do not deal with the substantive law relating to support but rather provide a mechanism in terms of which a legal duty to support another person can be enforced cheaply and easily in the lower courts. The Committee took cognisance of the fact that the South African Law Commission has on its programme an investigation dealing with the recognition of other forms of religious or personal law marriages and the review of the maintenance system referred to in paragraph 1 and requested the Law Commission to expedite these investigations and the submission of final reports in this regard.
5. Particularly during the course of the public hearings on the Bill, the Committee took note of the general complaint that the procedures followed in different parts of the country in respect of maintenance matters are not uniform. A particular complaint which seems to he prevalent and which requires addressing is to the effect that in some areas, maintenance enquiries are initiated by means of a letter addressed by the maintenance officer to the person against whom a maintenance order can be made, requesting him or her to attend court for purposes of trying to settle the matter between the parties. This letter is invariably ignored with impunity by the party to whom it is addressed and it then has to be followed by a subpoena in order to get the person in question to court, with resultant delays and frustrations. Should the letter have the desired effect of getting the parties to court, the maintenance officer then tries to mediate between the parties in order to reach an agreement. Should an agreement not be reached, the parties are then subpoenaed to court for purposes of holding an enquiry. In order to address this problem and to limit the maintenance officer's present very wide discretionary powers and to facilitate the expeditious making of an appropriate order, the Committee has seen fit to insert enabling provisions into the legislation in terms of which subordinate legislation will be drafted, setting out uniform and detailed procedures to be followed throughout the country in maintenance matters and particularly in respect of the institution of maintenance enquiries. Whilst recognising the need for uniformity as far as procedures are concerned, the Committee requests the Department, when enacting this subordinate legislation, to allow for some measure of flexibility, especially when it comes to the investigation of complaints which precede the institution of a maintenance enquiry. The Committee, however, requests the Department of Justice to ensure that the practice of initiating maintenance proceedings by way of letter be terminated immediately and be replaced with what was originally intended in the legislation and what is proposed in the new legislation, namely by way of a subpoena. It also requests the Department to ensure that the intended subordinate legislation, prescribing the procedures, is put in place and implemented, in co-ordination with the prosecuting authority where relevant, as a matter of urgency after the enactment of this legislation.
6. Unless it is impracticable to do so in the circumstances, the proposed legislation obliges presiding officers, when making a maintenance order, to order that the maintenance money be paid on behalf of the person against whom the maintenance order is made (for purposes of this discussion, referred to as "the respondent"), by any person who is responsible for the payment of a sum of money on a regular basis to the respondent, for example an employer. These provisions have been structured in such a way to ensure maximum application. Although it is assumed that most of these particular orders will be directed at employers of respondents, the provisions in this regard have been worded in such a way to allow this type of order to be made applicable in as many circumstances as possible, that is in any circumstances where money is paid on a regular or periodical basis to respondents. The only requirements which have to be met are whether the respondent receives periodical payments and whether it would be practicable to make such an order. In order to ensure the success of these provisions, the Committee requests the Department of Justice to ensure that the officials who are to apply these provisions are made aware, through training and otherwise, of the importance of making such orders only where it is practicable to do so, but not to exclude the application of the provisions simply because the respondent does not have an employer in the traditional sense of the word.
7. As far as the appointment of maintenance investigators is concerned, the Committee made a strong plea to the Minister and the government generally to ensure that this vital aspect of the new legislation receives the necessary budgetary allocation. Failure to do so will impact negatively on the implementation of the legislation. The Committee placed great emphasis on implementation generally and requested that a plan of action regarding the implementation of the legislation in so far as it introduces new mechanisms, measures or procedures, be drafted and submitted to the Committee. This plan of action must set out all new aspects which require implementation, including budgetary allocations and training programmes. The Committee took note of the fact that Clause 47(2) of the Bill provides that different Clauses of the Bill may be put into operation on different dates. Whilst the Committee is anxious for the entire Bill to be put into operation as 500n as possible after the enactment thereof, it realises that, in the interests of a smooth implementation process, a phased approach might be necessary.
8. The Committee noted the enactment of the provisions enabling a maintenance court holding a maintenance enquiry to take into consideration any evidence in any proceedings in respect of an existing maintenance order or to accept as prima facie proof any finding of fact in such proceedings. The Committee welcomed provisions of this nature and requested that the Department do everything in its power to ensure that the administration surrounding maintenance matters and particularly the proper keeping of the required records is improved and updated regularly so as to ensure the proper application of these and similar provisions.
9. The Committee noted that the object of Clause 15 of the Bill is to provide statutory guidance to maintenance courts and maintenance officers this determination of maintenance, by setting out the core principles as far as the duty of parents to support their children is concerned. Whilst the Committee noted the cautious welcome this initiative received in many submissions, it was of the opinion that this could in fact possibly be regarded as the beginning of a codification process relating to maintenance. It expressed the view that should this codification process be continued by the South African Law Commission the process should ensure that all positive aspects of the law are retained whilst those aspects which are not in line with the spirit of the new constitutional dispensation are discarded.
10. When dealing with Clause 31 of the Bill, which criminalises the failure to pay maintenance in terms of a maintenance order, and which sets out the sanctions for non-compliance, the Committee requested the Department, by means of training or otherwise, to bring to the attention of magistrates the wide variety of sentencing options available which could be imposed in appropriate cases. The provisions of section 297 of the Criminal Procedure Act, 1977, are particularly relevant in this regard.
11. The Committee noted that many of the very valid and useful contributions in the submissions received from interested parties revolved around the implementation and application of the legislation rather than the proposed legislation itself. The Committee consequently requests the Department of Justice to compile a document, setting out all these suggestions which could be put to good use in the maintenance system. This document should be submitted to all role-players in the administration of justice who are involved in maintenance matters to serve as a useful guide, in an attempt to eliminate all existing bad practices and must also be submitted to the Committee.
12. The Committee, when considering the submission of the General Council of the Bar, which was received at an advanced stage of the deliberations on the Bill, noted the potential advantage of enacting provisions to regulate the discovery of documents for purposes of a maintenance enquiry. In order to give effect to this proposal the following draft was submitted to the Committee:
"Discovery of documents
(1) A maintenance officer who has instituted an enquiry in a maintenance court and any other party to the proceedings must, not later than 15 days before the date of the enquiry, deliver a notice to the other party calling on him or her to deliver a schedule specifying the books and documents in his or her possession or under his or her control which relate to the enquiry and which he or she intends to use at the enquiry or which tend to prove or disprove either party's case.
(2) The provisions of the Rules made under section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), in respect of the discovery of documents shall, with the necessary changes, apply to the discovery of documents under subsection (1).".
In the light of time constraints the Committee was not in a position to evaluate the desirability or viability of the proposal properly and requested the Department or the South African Law Commission to investigate the advantages and disadvantages of this proposal and to report back to the Committee. The Committee expressed the view that the problem of inadequate information being placed before the maintenance court invariably arises because the existing provisions which provide that a maintenance officer may subpoena any person to appear before a maintenance court and produce any book, document or statement are not applied to their full potential. The Committee argued that the more frequent application of these provisions and the enforcement thereof by the courts would go a long way in ensuring that the relevant information is placed before the court. It urged maintenance officers and presiding officers to put these provisions to proper use and to enforce compliance with the provisions.
13. The Committee noted a problem raised regarding the uncertainty of divorce settlement agreements and maintenance orders which often regulate the duration of maintenance obligations and which in some cases in practice limit the Common Law rights of children as far as the duty of support is concerned. The Committee, whilst recognising that this problem cannot be addressed in a legislative measure dealing with a procedural mechanism to enforce a duty of support, took note of the fact that this aspect forms part of the South African Law Commission's review of the judicial maintenance system and urged the Commission to expedite the finalisation of its report in this regard.
14. The Committee noted the Justice Department's recent approach to make greater use of mechanisms such as preambles and an index, setting out the contents of the legislation, in an effort to promote legislation which is more user-friendly. The Committee endorsed this approach and expressed the hope that this approach would be continued in the future. It also requested that a greater emphasis be placed on the use of plain language which will promote user-friendly legislation.
15. The Committee requests the Department of Justice to report back to it on all aspects raised in this resolution within six months from the date of the resolution and to submit copies of the Bill, this resolution and all documents emanating from the resolution to the relevant role-players.