Resigning work to avoid child maintenance wont work for defaulters.Image: file
Child maintenance defaulters who quit work as a way of dodging their obligations have something coming their way.
The South African Law Reform Commission (SALRC), the body responsible for legal reforms in the country, has recommended that the Maintenance Act be amended to allow for attachment of a portion of pension benefits of such defaulters. The same should apply to those retiring or dismissed from work.
“It is the Commission’s view that the act should regulate the issue of future maintenance and give the maintenance court the power to make an order for future maintenance,” said the SALRC’s discussion paper, titled The Review of the Maintenance Act.
“To make this possible the definition of ‘maintenance order’ in the act needs … to include a provision that should a maintenance debtor resign, retire or be dismissed from his or her employment or is due to receive any lump sum from any source, while he or she still has a duty to maintain, then a pension benefit or that lump sum may be attached to secure future maintenance.”
The discussion paper pointed out that high courts granted orders for future maintenance despite the Maintenance Act currently not prescribing this.
“It is encouraging to note that the courts have taken a lead in rectifying this anomaly in the legislation,” said the document.
“In all cases, the maintenance courts had been unable to assist the applicants for maintenance, mostly because the act is silent or does not regulate future maintenance, but only deals with arrears.
“But however noble the endeavours of the courts, a legislative prescription is required to ensure that, first, there is consistency in the orders made by the various courts for future maintenance; and secondly, to ensure that the rights of beneficiaries are protected from errant maintenance debtors – who would otherwise squander the money that should be earmarked for the future maintenance of children.”
The SALRC made an example of a case in which Public Protector Busisiwe Mkhwebane stepped in to assist a mother after the Government Employees Pension Fund (GEPF) failed to comply with an order to pay a sum of money from the father’s pension fund towards future maintenance.
A court granted an order for the attachment of R344 000 of the defaulting father’s pension fund held at the GEPF. A mother approached Mkhwebane on grounds that the GEPF failed to comply with that order.
Following the public protector’s intervention, the GEPF implemented the court order and paid the mother.
The SALRC also referred to a 2010 case that ended up in the high court after a father defaulted on maintenance payments for his minor children.
“The father had in fact voluntarily stopped working precisely so that he would not be expected to pay maintenance,” said the discussion document.
An application for execution against his pension was unsuccessful on grounds that the Maintenance Act did not regulate pensions.
The mother appealed at the high court, which ordered that the money be attached to pay for future maintenance of the children.
“The cases illustrate the need for future maintenance of children to be regulated by the act in much the same way as arrear maintenance,” said the SALRC.
“If benefits such as pensions, annuities, gratuity or compassionate allowances and other similar benefits can be attached to recover arrear maintenance, the same should be possible with regard to future maintenance.
“Both types of claim are aimed at securing the rights of maintenance beneficiaries.”
The public has until June 30 to comment on the proposals.
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