MAINTENANCE COURT PETITION
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This petition is brought by Child Maintenance Difficulties in South Africa, CMDSA NPO 220-827, in terms of Section 17 of the Constitution with section 69 (d) This clearly shows that our government is a caring government, a government that follows the constitution.
Section 28 (1) of the Constitution: (b) Every child has a right to family care or parental care(c) to basic nutrition, shelter, basic health care services(d) to be protected from maltreatment, neglect, abuse or degradation.
Section 9 of the Children’s Act 38 of 2005: The child’s best interest is of paramount importance in all matters concerning the care, protection and well-being of a child.
Chapter 4 section 15 of the Maintenance Act of 1998: 3 (1) that the duty of supporting a child is an obligation which the parents have incurred jointly.
Domestic Violence Act 116 0f 1998: Economic Abuse (a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity
Women in South Africa are facing insurmountable challenges in obtaining support from those legally obliged to provide maintenance for their children. The blatant disregard of maintenance orders results in great hardships for these women and children and pushing women and children into poverty. Therefore, how the maintenance system deals with obstinately uncooperative defaulters is an important mechanism for endorsing children’s rights and ensuring maintenance obligations are met. Women are battling to exercise their right to maintenance and to enforce these rights, non-payment is a children’s rights issue. The best interests of the child are of paramount importance in every matter concerning the child, maintenance obligations towards children should be regarded as a primary obligation because the money is for immediate personal needs and is, therefore, life-sustaining.
The current maintenance act is considered progressive and compares favourably with international norms, the implementation is flawed. The enforcement of the maintenance orders is in constant decline due to the moratorium on staff and lack of training which has resulted in the violation of the child’s rights which are paramount and a constitutional imperative and an international law obligation.
In spite of the Constitution, the Children’s Act, Maintenance Act and the Domestic Violence Act women and children are at constant risk and not being protected as mandated to by the above acts. The Judiciary is the ultimate guardian of children it is failing in their responsibility to protect the child and the primary caregivers, which are mostly women placing them more at risk.
CMDSA calls on the government to take immediate and urgent steps in fulfilling its mandate to protect children as enshrined in our constitution and other relative Acts and international agreements. To investigate the dysfunctionality of the Maintenance Courts as a matter of urgency and to stop the perpetuation of financial abuse of women and children.
1. The shortage of staff be remedied as a priority
2. That staff are trained in the Best Interest of the Child is Paramount
3. The staff adhere to the Maintenance Act procedure and not personal opinions
4. Enforcement of maintenance before debt and other commitments
5. The staff undergo sensitivity training to be aware of all forms of abuse, how it plays itself out in the maintenance courts and not victimise or re-victimise complainants
6. Complainants are explained their right’s at all times during the maintenance procedure
7. Legal practitioners stop being allowed to manipulate and abuse the court system to aid the defaulting parent from fulfilling their legal obligation and placing the child at further risk.
8. 90 Day resolution of maintenance applications enforced.
9. Time limitations placed on arrear maintenance resolutions.
10. Interim maintenance made mandatory in all cases pending finalisation.
11. DNA tests to be concluded before the first hearing.
12. Bank details mandatory on maintenance forms
13. Garnishee orders mandatory for serial defaulters
14. Employers held accountable for not adhering to garnishee conditions and not notifying the courts when the employee leaves his employment
15. A garnisheed parent held accountable for not notifying the court of a change of employment
16. Freezing bank accounts of serial defaulters who avoid court
17. Attachment of pensions for arrears whilst still employed as standard procedure
18. Payments made directly to the beneficiary and not to the courts
19. Digitisation of applications and maintenance files create a central database
20. The immediate halt to the complainant is responsible for having papers served.
21. Serving of documents via email, what’s app, FaceBook and Instagram
22. Special leave is granted for attending maintenance and family courts.
23. Periodic imprisonment for serial defaulters
24. Blacklisting implemented immediately.
25. More investigators to trace defaulters and conduct thorough financial investigations.
26. Enforcement of not notifying courts of change of address.
27. International travel denied if the parent is in arrears
28. Fraud and perjury charges laid against parents who deliberately hide assets and lie in court.
29. Reimbursement of travel costs for the complainant to attend court
30. SARS, Dept of Labour, CIPC, Car licence regulators, Dept of Home Affairs, Deeds office compelled to provide information for financial enquiries.
31. Batho Pele principles consistently applied in the courts
32. Expedited complaints against maintenance court officials
33. Independent partner to monitor courts performance
In 2011 it was reported by Stats SA that 48% households are run by single mothers, by 2016 it was thought that as many as 64% of children are raised by single parents, predominantly women unsubstantiated.
In spite of the many amendments to close the loopholes and include harsher penalties it has not filtered down to meaningful change to meet the child’s right to financial support from both parents. The reluctance to impose prison sentences works in the defaulter's favour and not in the best interest of the child.
Women and children are being forced into poverty due to the lack of maintenance enforcement; women are unable to provide for their later years due to the financial burden being placed on them during their most productive years which will place a further financial strain on an already overburdened social service.
52% of children live in single-headed households primarily with their mothers whose fathers are absent and don’t pay maintenance.
Research has shown that women on average earn 27% less than men.
The greater percentage of unemployed are women.
More women are menially employed earning minimum wage: domestic and factory workers.
Women who come out of abusive relationships are less likely to claim maintenance.
Women stay in abusive relationships due to financial constraints.
Women are controlled, manipulated and abused post-relationship by the withholding of financial support.
Highest school dropout occurs in single-headed households due to financial constraints.
Women use most of their annual leave to attend maintenance court.
Mortality of children under five is at an all-time high due to malnutrition.
The majority of single mothers do not get financial support, 53% get no support, 22% less than R1000, 4.7% less than R2000, 11.4% less than R3000 and 3.87% less than R4000 and 4.13% more than R4000. This has a direct bearing on poverty
66.8% of children 0-17years old live in poverty, the majority being African 73.6% and the least white at 1.4%, the majority of these children are not getting financial support from both parents.
A higher percentage of women live in poverty measured on the lower-bound poverty line of R647 per month as per Stats SA.
The lack of financial support is a gender inequality issue due to the majority of primary caregivers being mothers.
Justice delayed is justice denied.
There is an absolute imbalance in protecting women and children’s rights and the rights of defaulters yet the Maintenance Act’s aim is to be progressive in giving effect to the rights of the child, as children are the most vulnerable members of society thereby needing better protection from the legal system as they are unable to participate in the human rights discourse.
The BEST INTEREST OF THE CHILD IS PARAMOUNT
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