Legal Talk

Author: Fawzia Khan
Date: 2014-08-22

In terms of the Maintenance Act 1998, both parents have a duty to support their minor children, in accordance with their means. Hence it's not only the father who has the obligation to pay maintenance.

The move by the National Credit Regulator to introduce an affordability guideline, which deals with the issue of arrear child maintenance is reputed to send shockwaves across the country.

In South Africa maintenance defaulters are overwhelmingly male. The issue of "non-paying" and/ or "absent" father remains a huge problem in South Africa, with numbers reputed to run into millions of families who face this difficulty.

The South African legislature and judiciary has over the years adopted a zero tolerance approach to those parents who try to avoid their maintenance obligations. But the reality on the ground is that there are many who shirk this responsibility.

Many rural children barely having enough to provide for their basic maintenance needs. From a political perspective in post apartheid South Africa, government social support grants have certainly helped the poorest children in SA, which has in turn contributed towards in reducing the child poverty stats in the last few years.

Unfortunately the amount of these grants is simply not sufficient to eradicate poverty. In my practice, I've often found that fathers would refuse to pay the maintenance because they believed that the mother was using the money on herself rather than on the needs of the children.

Despite the fact that we have tough laws which seeks to promote and protect the rights of vulnerable children, the problem of maintenance defaulters continues to plague South African civil society.

A person who cannot afford to pay a specific amount of maintenance can approach the court to get the amount of maintenance reduced, if he can prove a change in his circumstances.

Hence this person is not is being targeted in the draft regulations. It's that person who deliberately refuses to financially support and maintain his dependents. The public and civil society has until 31 August 2014 to comment on the proposed regulations.

In it's present form the following draft regulations as proposed are the following. Maintenance defaulters will have an endorsement on their credit record to that effect.

Defaults will remain on their credit record for five years or until the court rescinds the default judgment, whichever occurs sooner. The credit granter will also have to assess whether a customer can afford to take on additional debt by being able to repay the loan after considering his maintenance obligations to his dependents.

A credit provider now stands at risk if it nevertheless grants credit to such an individual. It's anticipated to curb reckless lending. Details of maintenance payments are to be included in all affordability assessments for any person wanting to apply for a new loan.

The applicant also has to declare whether or not he or she has a maintenance default judgment. In addition there is provision for blacklisting defaulters with the Credit Bureau.

Government would now work together with credit bureaux in order to track down maintenance defaulters. No doubt this news would be heralded as welcome relief to those single mothers who are in desperate need to track down the non-paying dad's.

Credit bureaux are known to keep accurate records of the whereabouts of people such as their latest known address and employment details.

Know your rights! The Law Desk of Fawzia Khan & Associates. We Know! We Care! We Deliver! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance.

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