The struggle for child maintenance in the lower courts — what’s a single parent to do?

7 Feb 2023

Single parenthood is hard enough without the added challenge of attempting to procure maintenance from the child’s other parent. What are the options available to the average South African parent?

If one is in the unfortunate position of needing to claim child maintenance from the other parent, there are essentially three options at one’s disposal. These include approaching the high court, the magistrates’ court, or the maintenance office with jurisdiction.

While it is arguable that the first option will yield the quickest result, it is also the most costly and therefore outside the reach of most average South Africans. This leaves the second and third options.

In South Africa, where most individuals cannot afford legal representation, the primary avenue for procuring maintenance is by approaching the nearest maintenance office. While it is the most accessible option, it brings with it an array of problems.

First, you may approach this office and be confronted with long queues while waiting to be assisted. Once finally helped, you may discover that in order to submit a claim, you need to provide detailed information about each expense claimed.

If you are unprepared, as most are, this may require another return trip to the maintenance office. Upon finally submitting your claim, you may be mistaken in thinking that the process will finally get underway. Not so!

You may be met with a Department of Justice and Constitutional Development (DoJCD) system that has been offline for several weeks, resulting in a severe backlog. It may thus take months for the respondent to be served and for a date to be set for the first appearance before the maintenance officer.

And in cases where the respondent works outside the province or country, you can brace yourself for even more delays.

Then, despite being instructed to provide a list of documentation, the respondent may omit to do so, which could result in even further delays. By now, four months (or more) have likely passed since your first visit to the maintenance office.

On your return visit, you may be faced with other challenges: the respondent may neglect to appear, she/he may attempt to delay the matter by insisting that legal counsel be present (although this is not required for a maintenance enquiry) or she/he may bring an application to stay the maintenance enquiry in light of any ongoing divorce proceedings or other litigation related to the minor child.

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This in no way benefits the child’s need for maintenance.

It is worth noting that there is an obligation imposed by the Constitution on the magistrate and all other maintenance officers to consider the impact that all of these requirements and red tape, or the respondent’s conduct for that matter, has on the child’s rights.

This is seemingly not the case in practice. In fact, little or no mention is made of the child’s best interests. Instead, it seems as if the interests of the applicant are being pitted against those of the respondent.

As a result of all this, parents or guardians in need of child maintenance are left with the responsibility of trying to maintain their children on their income, while the other parent neglects and evades their obligations. Regrettably, while this process is ongoing and in the absence of a maintenance order, the lost maintenance may never be recovered.

This leaves parents seeking child maintenance with one other option. But note that this option is only available to parents in cases where a divorce is ongoing.

Rule 58(1)(a) of the Magistrates’ Court Rules makes provision for interim maintenance to be awarded pending the finalisation of a divorce. This option, however, is less common as it requires applicants to appoint an attorney to assist them with the application. This may cost in the region of between R50,000 - R70,000 depending on how many postponements are granted.

Not only is there a cost component attached, which many can ill-afford, but the magistrate may on more than one occasion grant a postponement in an attempt to get the parties to settle the dispute.

On the one hand, this may avoid the need for argument to be heard to decide the matter which results in further costs but, on the other hand, it may mean that the parent claiming maintenance may settle for less than needed to provide for the children on the assumption that less is better than nothing and that further delays will only serve to cause them and the children more financial and emotional harm.

Neither of these scenarios protect the best interests of the children concerned.

So where does this leave the single parent? The answer is undoubtedly between a rock and a hard place.

Does the parent keep pursuing a claim for maintenance which is potentially to their detriment (i.e. time off from work, the costs involved) or does the parent give up and decide to maintain his/her children alone even though there is another parent who is legally obligated to do so and often in a financial position to do so?

After numerous visits to the maintenance office, it seems that the latter option is often the fate of many single parents. You can therefore only conclude that the DoJCD has clearly failed single parents.

Isn’t it time that the current system in place does more than pay lip service to protecting the best interests of the child? Or would that be asking the lower courts to put their money where their mouths are? DM

Dr Carmel van Niekerk is a Senior Lecturer in the Department of Private Law at the University of the Western Cape.

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