This petition is brought by Child Maintenance Difficulties in South Africa, CMDSA, 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 that 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 and human 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, 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 as the ultimate guardian of children it is failing in its responsibility to protect the most vulnerable and marginalized of society, women and children. 

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.

CMDSA demands:

1.  The shortage of staff be remedied as a priority to meet service delivery expectations.

2.  That staff be trained in the Best Interest of the Child is Paramount.

3.  The DoJ staff adhere to the Maintenance Act requirements as prescribed and expected.

4.  Enforcement of maintenance before debt and other financial commitments.

5.  The staff undergo sensitivity training to be aware of all forms of abuse synonymous with GBV, so as  not to victimize or re-victimize complainants by respondents and their legal practitioners. 

6.  Complainants are explained their right’s and procedure at all times during the maintenance process so that they are able to make informed decisions.

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 due to protracted court appearances over extended time frames.

8.  90 Day resolution of maintenance applications enforced as per the DoJ NSP and section 10 (6) (a) conclude maintenance enquiries as speedily as possible and shall ensure that postponements are limited in number and duration.  This terminology is open to interpretation and abuse.

9.  Time limitations placed on arrear maintenance complaints to prevent further economic hardships on overburdened primary caregivers.

10. Interim maintenance (section. 10 (6) made mandatory in all cases pending finalization.

11. DNA tests to be concluded before the first hearing to prevent unnecessary delays in the finalisation of maintenance agreements. 

12.  All bank details are mandatory on maintenance forms so as to be able to attach bank accounts of defaults.

13. Garnishee orders (section 16 (2) mandatory for serial defaulters who ignore court directives.

14. Employers held accountable for not adhering to garnishee requirements and not notifying the courts when the employee leaves his employment as provided for in the Act section 

15. A garnisheed parent held accountable for not notifying the court of a change of employment as provided for in the Act section 29 (3) and (4)

16. To Freeze bank accounts of serial defaulters who avoid court appearances section 26.

17. Attachment of pensions (section 26 (1) (b) (1) for arrears and future maintenance whilst still employed as standard procedure against serial defaulters, to protect children.

18. Payments made directly to the beneficiary and not to the courts via Mojo Pay.

19. Digitisation of applications and maintenance files to create a central database, greater efficiency and enforcement.

20. The immediate halt to the complainant being responsible for having papers served on the respondent.

21. The serving of documents via email, WhatsApp, FaceBook, Linked In and Instagram as standard procedure.

22. Special leave is granted for attending maintenance and family courts so complaints do not have to use their annual leave to enforce their child's rights.

23. Periodic imprisonment for serial defaulters section 31 (1)

24. Blacklisting implemented immediately as per section 31 (4)

25. More investigators to trace defaulters and conduct thorough financial investigations.

26. Enforcement of not notifying courts of change of address, employment and personal as per section 16 (4)

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 to be included in section 11.

30. SARS, Dept of Labour, CIPC, Car license regulators, Dept of Home Affairs, Deeds office compelled to provide information for financial inquiries.

31. Batho Pele principles consistently applied in the courts

32. Expedited complaints against maintenance court officials particularly bribery and sexual harassment

33. Independent partner to monitor courts performance  

34.  Age of majority maintenance discharge:- the child should be allowed to be accompanied by the mother/primary parent and or the mother/ primary parent should be able to act on behalf of the child if the child is still at school.

35.  The state should bear the costs of security by the sheriff for attachment of movable assets in section 27 and not the complainant for has already been financially prejudiced by non-payment of maintenance.

In 2018 it was reported by Stats SA that over 48% of households are run by single mothers, by 2018 it was thought that as many nearly 70% of children are raised by single parents, predominantly women unsubstantiated.

Despite 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 services

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.

The highest school dropout occurs in single-headed households due to financial constraints.

Women use most of their annual leave to attend maintenance court.

The 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 R647-00 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 aims 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