The prevailing status quo in South Africa dictates the normalcy of a human being producing an offspring yet not maintaining the offspring. Hence there are instances in which a Court of Law has issued out a judgement directing a parent to maintain their child through child monetary support as stipulated in the Children’s Act 38 of 2005, however the parent is either non-compliant or hesitant to do as instructed by the Court.
Given the socio-economic state of the Republic of South Africa characterized by inflation and Repo Rate increases , it is indubitably expensive to raise a child, as a parent dealing with a non-compliant co-parent, what is your legal recourse?
Sections 26-30 of the Maintenance Act 99 of 1998 (hereinafter referred to as “the Maintenance Act”) grants you the provision to enforce a maintenance order and thus grants you the following remedies :
●Execution against property :
You are advised to apply for a Warrant of Execution against the movable property of the person who isn’t compliant with the maintenance court order at the Maintenance Court. Upon reception of the warrant of execution , it ought to be delivered to the sheriff of the court for it’s execution. Given that an individual’s movable property is inadequate to remunerate the value of money in arrears, the individual in whose favour an order was handed down is given the option to head back to the Maintenance Court and apply for a Warrant of Execution to be issued against the immovable property.
●Emolument attachment :
Section 28 of the Maintenance Act allows for the individual in which the court ruled in their favour to apply via the Maintenance Court to have the emoluments of the other individual attached .
What is an emolument? An emolument is any remuneration, fee, profit, or income received due to employment, and therefore the Court has the legislative power to attach any emolument at present or in future that is owing or accruing to the individual in which the maintenance order was granted against.
●Attachment of debt :
Section 30 of the Maintenance Act stipulates that one may approach the Maintenance Court to apply to attach debt owed to the individual in arrears in relation to maintenance. It is significant to note that the debt ought to be owed to a third party or be owed in the future or accruing. The Court can issue a directive that such a debt is attached so that the amount in arrears may be paid.
●Criminal Charges :
If an individual contravenes the maintenance order and he/she had the ability and capacity to execute their obligation, an individual in whose favour the maintenance order was granted in favour of can approach the Maintenance Court and submit a criminal complaint. Given that such a compliant is submitted to the Maintenance Court, a state prosecutor will then issue a criminal summons and pursue criminal charges against the non-compliant individual.
If the individual is found to be guilty, they will face either imprisonment or a fine or both imprisonment and a fine.
●Conclusion :
Are you in a situation where your co-parent has the ability and capacity to maintain your child yet they deliberately choose not to? Recall that Section 18 of the Children’s Act of 2005 states the following:
(1) A person may have either full or specific parental responsibilities or rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a Child, include the responsibility and the right-
(a) To care for the child;
(b) To maintain contact with the child;
(c) To act as guardian of the child; and
(d) To contribute to the maintenance of the child.
Kindly get in touch with Manzankosi Corporate Legal Consultancy, a qualified legal practitioner will be delegated to assist you professionally and proficiently.
For more : Read Fletcher v Fletcher 1948(1) SA 130 (A)
About the writer :
Onkgapile Mokoena is a graduate of a Bachelor of Commerce In Law Degree(BCC- Accredited by the British Accreditation Council), he completed his internship in the Legal Advisory, Operations and Marketing department of Manzankosi Corporate Legal Consultancy from August 2022 to February 2023 under the sterling mentorship of Attorney N. Ndebele , he remains MCLC’s referral Legal Advisor & Operations Officer ,albeit he is currently employed by Clientele Life Limited.
