Article written by S’negugu Dlamini, Candidate Attorney, checked by Jordan Dias, Associate and relesed by Chantelle-Gladwin Wood, Senior Partner at Schindlers Attorneys.
06 April 2022
Introduction
Maintenance is the legal obligation to provide another person, for example, a minor child, with housing, food, clothing, education, and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty is called “the duty to maintain” or “the duty to support”. The Maintenance Amendment Act 9 of 2015 (“the Act”) established remedies to deal with individuals who fail to comply with such duties. These remedies are explained more fully below.
How can a maintenance order be enforced?
If a parent or guardian against whom a maintenance order is sought (“the Respondent”) fails to comply with the terms of the maintenance order, the Act, provides that it is now lawful to hand over the Respondent’s personal details to a credit bureau, which will result in the Respondent being blacklisted.
An order for the warrant of execution, the attachment of emoluments (Garnishee Order), the attachment of debt and/or criminal charges may be brought against the Respondent, as stipulated by the Act, and he/she may be sentenced to imprisonment for a period not exceeding 3 (Three) years and/or he/she may receive a fine.
Section 27 – Warrant of Execution
The Maintenance Court may, on application, authorise the issuing of a warrant of execution. A warrant of execution is a method of enforcing judgments and empowers a court sheriff to attend at a judgment debtor’s address i.e., to attach and sell movables. If the movable property is insufficient, only then will it be issued against his/her immovable property.
Can a warrant of execution be set aside once granted?
The Respondent may apply to the Maintenance Court to have the warrant of execution set aside or suspended. The Respondent must give notice of his/her intention to apply to the complainant at least 14 days prior to the application being heard. The Court may, at the hearing of the application, request either or both parties to give evidence orally or in writing. When suspending a warrant of execution, the Court may grant an order for the attachment of emoluments or the attachment of debt.
Section 29 – Garnishee Order issued against the Respondent’s salary.
A Garnishee Order can be issued where an order made by the maintenance court remains unsatisfied for a period of 10 (Ten) days or when the Court suspends a warrant of execution. When the Court issues a Garnishee Order, within seven days of the order, the maintenance officer must give notice and a copy of the order to the Respondent’s employer. The order authorises the employer to deduct the amount mentioned in the order in monthly instalments from the Respondent’s salary and to pay this money to the Complainant, until such time that the full amount has been paid. If the Respondent becomes unemployed, the employer must give notice to the maintenance officer within seven days. If the employer fails to pay as stated in the order, the order may be enforced against the employer.
Can an attachment of emoluments be suspended or amended?
If the aggrieved party can show good cause, an order for the attachment of emoluments may be suspended, amended, or set aside by the Maintenance Court. The Respondent must give notice of his/her intention to apply for suspension or amendment to the Complainant at least 14 days prior to the application being heard. After hearing such an application, the Maintenance Court may call either or both parties to give written or oral evidence.
Section 30 – Attachment of a debt owed to the Respondent.
An application for the attachment of debt can be granted where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution. The Maintenance Court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover that which the creditor (Respondent) failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.
Can a parent’s estate be sequestrated due to non-payment of maintenance?
Case law confirms that it is perfectly legitimate for a creditor to utilize sequestration proceedings as a debt collection tool. Furthermore, arrear maintenance which has accrued before sequestration in terms of an agreement or court order may be proved as a claim against the insolvent estate. However, although it is legitimate to use the sequestration process to collect debt, the creditor is still required in terms of the Insolvency Act 24 of 1936 (“the Insolvency Act”) to prove that prima facie there is reason to believe that it would be to the advantage of the Respondent’s creditors if his estate were to be sequestrated. Only in extreme cases, and only once the requirements for sequestration have been met, can a parent apply for the other’s estate to be sequestrated based on the non-payment of arrear maintenance.
Conclusion
If a Respondent fails to pay maintenance, the Complainant can approach the Court in order to enforce the order. The law does not provide for a set amount of maintenance that a child is entitled to. The amount of maintenance that should be paid for a child is dependent on the needs of a child and the financial means of the parents of the child.
Value
If the Respondent fails to pay maintenance, the Respondent may have a warrant of execution or emolument order issued against him/her or attachment of debt. Criminal charges may be brought against a person who fails to pay the maintenance.
