Parenting Plans Questions and Answers

We introduced this Parenting Plans Questions and Answers page for you to post questions you may have on the topic. For example, if you want to know whether you should enter into a parenting plan, pose a question with some background facts. At the same time, should you be able to assist others who posted questions below, requiring some advice on Parenting Plans, please proceed and reply to their comments. In that manner, we would all be able to assist each other and increase our online knowledge base. Therefore, although we a are legal consultancy, specialising in family law, you may have problems or experiences that we have not encountered. Let us share in our knowledge of Parenting Plans.

Sections 33 and 34 of the Children’s Act 38 of 2005

Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) deals with “parenting plans”. People that would find these sections useful are parents, legal practitioners, social workers, psychologists, social services professional. For an in-depth outline of the sections, visit this link on pare nting plans and the law.

What is a parenting plan?

The Children’s Act 38 of 2005 does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation. For an in-depth outline of the sections, visit this link on pare nting plans and the law.

Other family law resources on this website

There are various other family law resources on this website that you may find useful. For example, there is a downloadable child maintenance calculator. The resources may assist you with whatever questions you have, or the information you require on Parenting Plans. Therefore, after posting your question, or any time after, have a look at the useful resources and information on our website. Some of these resources are listed hereafter.

Articles and Q&A

There is a range of legal articles on this website dealing with various family law issues. Some of these articles are straight forward, outlining the legal position on a family law related topic. For example, how to apply for child maintenance, or how to get divorced. Other articles are written in the form of answering a specific legal question. For example, do I pay maintenance if I am unemployed, or what do I do if I want to leave the country with my child, and the other parent does not want to provide consent? Those articles are in blog format. This means that you are welcome to comment or pose questions to increase our knowledge base. The clear idea behind our website is that we want to make family law legal information more accessible and available to the public.

Downloadable resources

We created some downloadable resources for free on this website. They are: 1 Free Basic Will Tool Kit 2. Free Shariah Will Template 3. Free Divorce Starter Tool Kit 4. Free Child Maintenance Calculator 5. Free DIY Urgent Child Contact Toolkit Feel free to download these useful resources. Click on the links above, and complete the online purchase process. The purchase price is R 0. Thereafter, a downloadable link would be emailed to you. Once you received the email, download it as soon as possible as the link would expire after two months. We hope that we assisted you with any queries you had on Parenting Plans. If not, feel free to arrange a consultation with us.

Sharing is Caring

If you find any of our articles and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.

Posted on 11 February 2025 by Telelaw

Parenting Plans Questions and Answers

Sections 33 and 34 of the Children’s Act 38 of 2005

What is a parenting plan?

Who should agree on a parenting plan?

Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation. For an in-depth outline of the sections, visit this link on pare nting plans and the law.

Other family law resources on this website

Articles and Q&A

Downloadable resources

We created some downloadable resources for free on this website. They are:

1 Free Basic Will Tool Kit

2. Free Shariah Will Template

3. Free Divorce Starter Tool Kit

4. Free Child Maintenance Calculator

5. Free DIY Urgent Child Contact Toolkit

Feel free to download these useful resources. Click on the links above, and complete the online purchase process. The purchase price is R 0. Thereafter, a downloadable link would be emailed to you. Once you received the email, download it as soon as possible as the link would expire after two months. We hope that we assisted you with any queries you had on Parenting Plans. If not, feel free to arrange a consultation with us.

Sharing is Caring

There is NO Child Maintenance Payment Holiday during the National Lockdown Period! If the other parent is refusing to pay child support during the National Lockdown period – what can you do?
South Africa is now in a state of National Lockdown. As things stand at present, children are not to be moved between homes during this period. This is to limit the spread of COVID-19 / Coronavirus. A lot has been written on the topic of moving children during the lockdown period by co-holders of parental responsibilities and rights. Have a look at a few of these articles written by Our Lawyer on this topic:
Parental responsibilities and care during the coronavirus lockdown in South Africa – The uncertain questions that cannot and should not be answered today (24 March 2020)
Co-parenting during the South African National Lockdown period – What does the law say? – The good and the abuse (4 April 2020)
Latest regulations regarding the movement of children during the National Lockdown – 30 March 2020 (6 April 2020)

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020) For those who do not have much time to read further, there is no child maintenance payment holiday during the lockdown period!

Parents and lawyers should focus on what is best for the child

We at Our Lawyer (Pty) Ltd, when working with children matters, always focus on what is best for the child, and not necessarily the parents, or even our client who pays us for our services. Children are a vulnerable sector of our society, and their interests should be vehemently protected. They are our future and the leaders of tomorrow. Who knows, out of your home could emerge the next Olympic star, or State President one day. The best interest of the child principle applies to all situations – not only during the lockdown but other periods as well. It disappoints us when parents do not want to pay adequate child support towards their children in these trying times.

Complaints from parents where the other parent does not want to pay child maintenance during the lockdown period

We have received queries from parents where the other parent is not paying child support during the National Lockdown period. This for good reason concerns us. We felt it necessary to write an article on this issue. Does the national lockdown afford parents with a child maintenance payment holiday? The same as offered by some loan banks that allows you to miss the occasional monthly payments. Some banks are offering it to their customers due to the national lockdown. Now let’s get into it.

What is child maintenance usually for?

Each family is different, and therefore each child’s needs vary. What would be necessary maintenance for a child of 8, would not be necessary for a child of 13. The same applies to children of the same ages living in different homes. The usual maintenance provisions would include any of the following:

Groceries, Water and Electricity, Laundry
Telephone, Internet, airtime
Domestic Worker, Garden Services
Clothing, shoes
Transport costs, vehicle maintenance, repairs
Medical aid and medical expenses not covered by the medical aid
Holidays, Entertainment, Recreation, DSTV, Netflix
Reading material (books, newspaper etc)
Pets food, litter, Vet
School projects, assignments
School fees, Summer and winter uniforms, shoes
Extra-Mural (incl. clothes), stationery, textbooks, sports equipment (incl. clothing)

For some families, many other items would be included. An in others, only half the items above would be applicable.

Child maintenance payment scenarios

There are usually two (2) scenarios where child maintenance gets paid:

The first scenario applies where there is a maintenance order in place. This could have been made by the maintenance court, or the divorce court when the parties divorced. Should a maintenance court have made the order, it would usually mean there was a complaint about non-payment or paying too little. This is not always the case. Either way, the court making the maintenance order would have had to be satisfied that the order is in the child’s best interest.
Then there is the second scenario where there is no maintenance order in place. The parents were never divorced and neither party took the other to the maintenance court. The parties pay maintenance based on an agreement they have, or the paying parent just pays as he or she feels. In the scenario, no court determined whether the amount being paid is fair or not.

Is Non-compliance with a Maintenance Order allowed?

When the maintenance order was made, various factors where considered. Included in those was the fact that the child has a holiday. Therefore, under ordinary circumstances, a parent cannot say they do not want to pay child maintenance during the December holiday, because the child is with them during the entire period. If the court order says that child maintenance is R X a month, that includes school holidays as well. There is, therefore, no payment holiday when it comes to child maintenance where a court order is in place. And if there is no order in place, payments must continue.

Can parents agree to relax the maintenance order during the National Lockdown period despite the Maintenance Order being in place?

It must be noted that children usually cost much more during the holidays as opposed to when they are at school. They eat more and also want to go out more. The latter may not apply during the lockdown period. More electricity is used, as well as water. School fees and medical aid must still be paid. Furthermore, caregivers may not have any income during this period. However, if the parents come to an agreement for less maintenance to be paid during a specific month, and for it to be repaid the following month, that is in order. This could be because the paying parent is not working during the lockdown. However, unless the paying parent really cannot afford to pay the ordered maintenance, we do not advise that any relaxation of the maintenance provisions are made.

What to do when there is no maintenance order in place?

If there is no maintenance order in place, one would assume that the parents have a cordial agreement when it comes to their child’s expenses. The primary caregiver did not see it as necessary to approach the court for a maintenance order to be in place. On the other hand, a parent may decide not to proceed with seeking a maintenance order because he or she is afraid they may get much less than what is being paid. Then there is a further scenario, where a parent does not want to proceed with a child maintenance claim, as he or she does not want the other parent to be in the child’s life. There are many other reasons as well. Nonetheless, if a parent has a maintenance agreement in place, that agreement must be fulfilled. The same principles with relaxing the agreement as outlined above would apply here as well. This would be in the child’s best interests. Now we shall deal with what a parent can do if the maintenance obligations are not adhered to during the lockdown period, either in terms of a court order, or agreement.

Noncompliance with maintenance orders and non-payment

There are certain directives in place during the lockdown period for the maintenance courts. If you are not receiving maintenance, and there is no order in place, you may make a first time application to the maintenance court. If there is a maintenance order in place, but it is not being adhered to, then you may approach the maintenance court for its enforcement.

The relevant regulations in respect of the maintenance court during the lockdown period

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows:

First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and
Application in respect of enforcement of maintenance orders

We, therefore, cannot stress it enough, for those who want to know whether there can be a payment holiday, our answer is no. All maintenance obligations must be adhered to. The maintenance courts are still in operation, and defaulters would be dealt with accordingly. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Frequently Asked Questions and Answers on Prenuptial and Ante-nuptial Contracts
Do you have any specific question on pre-nuptial or ante-nuptial contracts similar to that below? If yes, feel free to post it below. We will try to answer them for you as best we can.
How does a pre-nuptial contract work?
A pre-nuptial or ante-nuptial contract is an agreement an unmarried couple enters into before they get married. I deals with the proprietary aspects of their marriage and other related issues. For example, it would deal with what matrimonial property regime applies to the marriage. For example, whether they will be be married “In Community of Property and Profit and Loss”, or “Our of Community of Property and Loss”with our without the Accrual Regime. In an Ante-nuptial contract mention can also be made of what assets are excluded from the joint estate etc. Below are some questions that people have in relation to to ante-nuptial contracts. The Pre-nuptial agreement is executed, or signed before a Notary Public who then registers the document at the office of the Registrar of Deeds. In this way, the information in the Ante-Nuptial Contract becomes public.
How many years is a prenuptial agreement good for?
For the entire duration of the marriage.
What is a prenuptial agreement in marriage?
It is an agreement a couple enters into before the marriage.
How long should you wait to get married after signing a prenup?
You can get married the next day.
Can you get a prenup after you get married?
No. You should then enter into a postnuptial contract. You need to consent of the high court for that.
Can a prenuptial agreement be overturned?
Yes, if it was fraudulently done.
How much does it cost to get a prenuptial agreement?
Different places have different costs.
Can a will override a prenup?
No it cannot.
What good is a prenup?
One that is well written with no ambiguity.
What are ante-nuptials?
Agreements before the marriage.
Can you do a prenuptial agreement after marriage?
No. You should then enter into a postnuptial contract. You need to consent of the high court for that.
Can a prenuptial agreement be voided?
Yes it can, if there was fraud involved.
How long does it take to draw up a prenuptial agreement?
A good lawyer should take less than an hour for a basic one. A complicated one could take much longer.
Can you get a prenup for future assets?
Yes you can.
Can a prenup protect future inheritance?
Yes it can.
Is my husband entitled to half my inheritance?
It depends what the will of the person says.
How much money can you inherit before you have to pay taxes?
You need to speak to an accountant for that.
Can you get a postnuptial agreement?
Yes, but you need the High Court’s Consent before you can register it.
How do you get a prenuptial agreement?
You should see a lawyer.
Are post NUPS legal in South Africa?
Yes, it is.
Are postnuptial agreements valid in Cape Town?
Yes it is. You need the High Court’s Consent.
What does a postnuptial agreement mean?
An agreement, the same and an antenuptial agreement, but entered into after the marriage.
What is a marital agreement?

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Posted on 11 February 2025 by Telelaw

I never saw my child for months – How do I Obtain Urgent Access to Your Children Without the Services of a Lawyer?

Are you a father or mother whose ex-partner is refusing you access or contact with your child? If so, you have the right to seek relief from the Court for urgent access. When a couple has a child, they often agree on what is best for their child, actively contributing to the child’s life even if they are no longer together. The father typically maintains regular contact and bonds with the child. However, once the relationship ends, disagreements may arise over what constitutes the best interests of the child, particularly regarding the father’s access. In such cases, the mother might deny access outright or impose strict conditions that limit the father’s visitation. If the mother refuses access or imposes conditions that are not in the child’s best interest, the father has grounds to urgently approach the Court for relief. The same applies if the role were reversed. Navigating court procedures can be quite complicated. Therefore, it is strongly recommended that you consult an attorney experienced in urgent applications. If possible, the attorney should have an advocate available to assist you with the application in court, whether or not there is opposition. However, if you choose to represent yourself, please continue reading for guidance on making an application in the High Court.

The Court Procedure

Since your Court application is urgent, it should be made via affidavit rather than orally in court. However, you may still be required to provide oral evidence at the Judge’s discretion to clarify certain issues. This requirement can usually be avoided if your documents are well-prepared. To start, you need to draft two documents: a Notice of Motion and a founding affidavit. Although the text below references an attorney or advocate, you can complete this process on your own. For simplicity, the terms “contact” and “access” are used instead of “care” and “contact.”

What is the Notice of Motion?

In the Notice of Motion, you clearly state what you want the Judge to grant you, similar to the prayers included in a summons. Your main request is for urgent access to your child. Because you are making an urgent application, you will be bypassing certain court rules regarding timeframes and procedures. Therefore, your first request to the Court should be for it to condone your non-compliance with its rules. Next, specify the relief you are seeking, generally in the form of an interim order that can be finalized later. Typically, you will request a rule nisi. An example of the prayers in an urgent access application in the High Court are as follows:

Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2026 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;

This document is signed by your attorney, or by you if, you are acting in person.

What is the Founding Affidavit?

In your Founding Affidavit, you must provide relevant information under oath. This includes details about yourself, the mother of the child, and the child. You will also need to provide information on several or more of the following matters: – Background information about your relationship with the child’s mother – Your past access to the child – Past involvement in the child’s life – When access to the child ceased or lessened, along with the circumstances surrounding this – Past maintenance or attempts to support the child – Why the application is urgent and why substantive relief cannot be afforded to you in due course – Any other relevant information

How do I Issue and serve the Urgent Application on the other side?

Once the Notice of Motion and Founding Affidavit are complete, your attorney will make the necessary copies. They will then have the application issued in court, which will provide a case number. If possible, you should have the application served on the child’s mother in a timely manner. You should also serve the Office of the Family Advocate. You can utilize the office of the Sheriff, or your attorney may serve the papers directly to the mother.

What happens if there is Opposition?

If the mother opposes the relief sought after being served with the application, she should file an opposing affidavit, to which you will need to reply. Both parties will then argue the matter before the Judge.

What happens at teh Urgent Hearing at the High Court?

If your matter is set down on the Court Roll, the Judge will have already reviewed the papers filed. You will wait for your matter to be called. If your case is to be heard before the Urgent Judge on duty that day, you or your Advocate must present the file to the Judge in advance for review. If the mother or her Advocate is present in court and the parties cannot reach a settlement, they will argue the matter before the Judge. However, if the mother has been duly served but does not appear in court, the process may proceed more quickly. After the Judge has made a decision on the matter, the following may occur: – The Judge may grant the urgent access requested – Grant you urgent access, but not under the terms you requested – Refuse to grant any relief without a family advocate report – Dismiss your application for lack of merits and/or urgency. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

I have a maintenance order for my children – but the father of my children does not pay. Is this allowed? What can I do?

Non-compliance with Maintenance Orders — Civil and Criminal Remedies

[Updated on 12 October 2020]

Many mothers (and sometimes fathers) go through great lengths to obtain a maintenance order against the other parent. This the mother found necessary as the father either did not want to pay child support at all or not an adequate amount. The mother then had to approach the maintenance court, for assistance. The process could have taken many months and sometimes, over a year to finalise. But now that she has the Order, he still does not pay. Can she do anything? Or does she only have in her possession a useless piece of paper with the word “Order” written on it? Before we tackle the above scenario, this blog post does not only deal with non-compliance with maintenance orders originating in the maintenance court. Most divorce orders made, where there were minor children involved have in it child maintenance provisions. The divorce court (High Court or Family Court) would not divorce the couple unless it is satisfied that the child’s best interests are taken care of after a decree is granted. And in many cases, the divorce could have taken months, if not years to finalised. And in those very cases, the amount of child maintenance to be paid was the stumbling block. Moving forward, this blog post would then be useful to anyone that has a maintenance order in place, and which is not being complied with. The provisions that are not being complied with may either relate to the cash component, school fees, medical aid and so on. Some maintenance orders are vague which causes problems when it comes to its enforcement. Therefore, ensure that your maintenance order is simple, and to the point.

What can the mother do if the father does not pay maintenance?

There are a few routes a parent can follow when a maintenance order is not complied with. For the purpose of this article, we will presume that the Maintenance Order was granted in the Maintenance Court. If it was granted in the High Court, for example, there are other options which may, or may not be as effective as that afforded by the Maintenance Act 99 of 1998 which we deal with below. It all depends on the facts of the case. When it comes to the Maintenance Act, there are two routes. The one is the civil route, and the other, the criminal route. Let us next unpack the law.

Civil Route in the Maintenance Court

The Maintenance Act

Chapter 5 of the Maintenance Act 99 of 1998 deals with the civil execution of maintenance orders. We pasted sections 26 to 30 of the Act below for your convenience. You therefore do not have to search the web and read through endless documents and sections to get to the right place. It is all here. The sections are quite long but provides useful information for someone searching the web for answers. Below that, we provide the regulations. It is always advisable to read any Act with its accompanying regulations. “26 Enforcement of maintenance or other orders (1) Whenever any person- (a) against whom any maintenance order has been made has failed to make any particular payment in accordance with that maintenance order; or (b) against whom any order for the payment of a specified sum of money has been made under section 16 (1) (a) (ii), 20 or 21 (4) has failed to make such a payment, such order shall be enforceable in respect of any amount which that person has so failed to pay, together with any interest thereon- (i) by execution against property as contemplated in section 27; (ii) by the attachment of emoluments as contemplated in section 28; or (iii) by the attachment of any debt as contemplated in section 30. (2) (a) If any maintenance order or any order made under section 16 (1) (a) (ii), 20 or 21 (4) has remained unsatisfied for a period of ten days from the day on which the relevant amount became payable or any such order was made, as the case may be, the person in whose favour any such order was made may apply to the maintenance court where that person is resident- (i) for the authorisation of the issue of a warrant of execution referred to in section 27 (1); (ii) for an order for the attachment of emoluments referred to in section 28 (1); or (iii) for an order for the attachment of any debt referred to in section 30 (1). (b) The application shall be made in the prescribed manner and shall be accompanied by- (i) a copy of the maintenance or other order in question; and (ii) a statement under oath or affirmation setting forth the amount which the person against whom such order was made has failed to pay. (3) A maintenance court shall not authorise the issue of a warrant of execution or make any order for the attachment of emoluments or any debt in order to satisfy a maintenance order- (a) if the payment of maintenance in accordance with that maintenance order has been suspended by an appeal against the order under section 25; or (b) if that maintenance court has made an order referred to in section 16 (2). (4) Notwithstanding anything to the contrary contained in any law, any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under any warrant of execution or any order issued or made under this Chapter in order to satisfy a maintenance order. 27 Warrants of execution (1) The maintenance court may, on the application of a person referred to in section 26 (2) (a), authorise the issue of a warrant of execution against the movable property of the person against whom the maintenance or other order in question was made and, if the movable property is insufficient to satisfy such order, then against the immovable property of the latter person to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the execution. (2) (a) A warrant of execution authorised under this section shall be- (i) prepared in the prescribed manner by the person in whose favour the maintenance or other order in question was made; (ii) issued in the prescribed manner by the clerk of the maintenance court; and (iii) executed in the prescribed manner by the sheriff or maintenance investigator. (b) The person in whose favour the maintenance or other order in question was made shall be assisted by the maintenance investigator or, in the absence of a maintenance investigator, by the maintenance officer in taking the prescribed steps to facilitate the execution of the warrant. (3) A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section, set aside the warrant of execution if the maintenance court is satisfied that he or she has complied with the maintenance or other order in question. (4) A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section- (a) in summary manner enquire into the circumstances mentioned in subsection (5); and (b) if the maintenance court so decides, suspend the warrant of execution and make an order- (i) for the attachment of emoluments referred to in section 28 (1); or (ii) for the attachment of any debt referred to in section 30 (1). (5) At the enquiry the maintenance court shall take into consideration- (a) the existing and prospective means of the person against whom the warrant of execution has been issued; (b) the financial needs and obligations of, or in respect of, the person maintained by the person against whom the warrant of execution has been issued; (c) the conduct of the person against whom the warrant of execution has been issued in so far as it may be relevant concerning his or her failure to satisfy the maintenance or other order in question; and (d) the other circumstances which should, in the opinion of the court, be taken into consideration. (6) (a) Any person who wishes to make an application under subsection (3) or (4) shall give notice in the prescribed manner of his or her intention to make the application to the person in whose favour the maintenance or other order in question was made, which notice shall be served at least 14 days before the day on which the application is to be heard. (b) The maintenance court may call upon- (i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or (ii) the person in whose favour the maintenance or other order in question was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary. 28 Attachment of emoluments (1) A maintenance court may- (a) on the application of a person referred in section 26 (2) (a); or (b) when such court suspends the warrant of execution under section 27 (4) (b), make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall authorise any employer of the latter person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the latter person until such amount, interest and costs have been paid in full. (2) (a) An order under this section may at any time, on good cause shown, be suspended, amended or rescinded by the maintenance court. (b) Any person who wishes to make an application for the suspension, amendment or rescission of an order under this section shall give notice in the prescribed manner of his or her intention to make the application to the person in whose favour that order was made, which notice shall be served at least 14 days before the day on which the application is to be heard. (c) The maintenance court may call upon- (i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or (ii) the person in whose favour an order under this section was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary. 29 Notice relating to attachment of emoluments (1) In order to give effect to an order for the attachment of emoluments referred to in section 28 (1), the maintenance officer shall, within seven days after the day on which such order was made by the maintenance court or whenever it is afterwards required, in the prescribed manner cause a notice, together with a copy of such order, to be served on the employer concerned directing that employer to make the payments specified in the notice at the times and in the manner so specified. (2) Whenever any person to whom the notice relates leaves the service of the employer, that employer shall, within seven days after the day on which he or she so leaves the service, give notice thereof in the prescribed manner to the maintenance officer of the court where the order in question was made. (3) Any employer on whom a notice has been served for the purposes of satisfying a maintenance order shall give priority to the payments specified in that notice over any order of court requiring payments to be made from the emoluments due to the person against whom that maintenance order was made. (4) If any employer on whom a notice has been served for the purposes of satisfying a maintenance order has failed to make any particular payment in accordance with that notice, that maintenance order may be enforced against that employer in respect of any amount which that employer has so failed to pay, and the provisions of this Chapter shall, with the necessary changes, apply in respect of that employer, subject to that employer’s right or the right of the person against whom that maintenance order was made to dispute the validity of the order for the attachment of emoluments referred to in section 28 (1). 30 Attachment of debts (1) A maintenance court may- (a) on the application of a person referred to in section 26 (2) (a); or (b) when such court suspends the warrant of execution under section 27 (4) (b), make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall direct the person who has incurred the obligation to pay the debt to make such payment as may be specified in that order within the time and in the manner so specified. (2) (a) An order under this section may at any time, on good cause shown, be suspended, amended or rescinded by the maintenance court. (b) Any person who wishes to make an application for the suspension, amendment or rescission of an order under this section shall give notice of his or her intention to make the application to the person in whose favour that order was made, which notice shall be served at least 14 days before the day on which the application is to be heard. (c) The maintenance court may call upon- (i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or (ii) the person in whose favour an order under this section was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary. (3) An order made under subsection (1) may be enforced as if it were a civil judgment of the court.”

The Regulations to the Maintenance Act

Chapter 3 of the Regulations to the Maintenance Act, deals with civil executions. Again, we provide it below. “Application for enforcement of maintenance or other orders

An application for –

(a) the authorisation of the issue of a warrant of execution; (b) an order for the attachment of emoluments; or (c) an order for the attachment of any debt, contemplated in section 26(2)(a) of the Act, shall substantially correspond with Form K of the Annexure. Warrant of execution

(1) A warrant of execution, contemplated in section 27 of the Act, shall –

(a) substantially correspond with Form L of the Annexure; and (b) be prepared in triplicate. (2) The person in whose favour the order was made shall prepare Part A of Form L of the Annexure and thereafter lodge the said form with the clerk of the maintenance court concerned. (3) On receipt of the warrant of execution referred to in subregulation (2) the clerk of the maintenance court shall issue the warrant of execution if he or she is satisfied that (a) authorisation for the issuing of a warrant of execution was granted; and (b) the warrant of execution has been properly prepared, by preparing Part B of Form L of the Annexure. (4) The clerk of the maintenance court shall after the warrant of execution has been issued (a) return the original warrant of execution and one copy thereof to the person in whose favour the order was made; and (b) file the second copy of the warrant of execution in the relevant file. (5) Any change on the warrant of execution shall be initialled by the clerk of the maintenance court. (6) The person authorised to execute a warrant of execution shall complete Part C and, if applicable, Part D of Form L of the Annexure and return the form to the clerk of the maintenance court. Particulars of persons authorised to execute warrant of execution

A maintenance investigator or maintenance officer shall submit to the person in whose

favour the order was made particulars of the person authorised to execute the warrant of execution. Application for the setting aside of a warrant of execution

(1) An application for the setting aside of a warrant of execution by a person against

whom such warrant has been issued, contemplated in section 27(3) of the Act, shall substantially correspond with Part A of Form M of the Annexure. (2)(a) A notice of an application for the setting aside of a warrant of execution, contemplated in section 27(6)(a) of the Act, shall substantially correspond with Part B of Form M of the Annexure. (b) A person who applied for the setting aside of a warrant of execution shall submit the notice referred to in paragraph (a) to the person in whose favour the warrant of execution was issued in any manner convenient to him or her, subject thereto that the person who submits the notice shall keep record of the manner in which the notice was submitted. Attachment of emoluments

(1) An application for the suspension, amendment or rescission of an order for the

attachment of emoluments, contemplated in section 28(2) (a) of the Act, shall substantially correspond with Part A of Form N of the Annexure. (2) (a) A notice of an application for the suspension, amendment or recission of an order for the attachment of emoluments, contemplated in section 28(2)(b) of the Act, shall substantially correspond with Part B of Form N of the Annexure. (b) A person who applied for the suspension, amendment or recission of an order for the attachment of emoluments shall submit the notice referred to in paragraph (a) to the person in whose favour the order for the attachment of emoluments was made in any manner convenient to him or her, subject thereto that the person who submits the notice shall keep record of the manner in which the notice was submitted. (3)(a) A notice, contemplated in section 29(1) of the Act, to an employer shall substantially correspond with Part A of Form O of the Annexure. (b) The service of a notice referred to in paragraph (a) shall be in accordance with the provisions of regulation 26(1) or (2), as the case may be. (c) The return of service of a notice referred to in paragraph (a), if the notice is served in accordance with the provisions of regulation 26(1), shall substantially correspond with Part B of Form O of the Annexure. (4) (a) A notice, contemplated in section 29(2) of the Act, by the employer that the person against whom the order for the attachment of emoluments was made has left his or her service, shall substantially correspond with Part C of Form O of the Annexure. (b) The notice referred to in paragraph (a) shall be submitted to the maintenance officer of the court where the order was made in any manner convenient to him or her, subject thereto that the person who submits the notice shall keep record of the manner in which the notice was submitted. Attachment of debts

(1) An application for the suspension, amendment or rescission of an order for the

attachment of debts, contemplated in section 30(2) of the Act, shall substantially correspond with Part A of Form P of the Annexure. (2) (a) A notice of an application for the suspension, amendment or recission of an order for the attachment of debts, contemplated in section 30(2) of the Act, shall substantially correspond with Part B of Form P of the Annexure. (b) A person who applied for the suspension, amendment or recission of an order for the attachment of debts shall submit a notice referred to in paragraph (a) to the person in whose favour the order for the attachment of debts was made in any manner convenient to him or her, subject thereto that the person who submits the notice shall keep record of the manner in which the notice was submitted.

Summary on civil execution

From the above, it is clear that when it comes to the civil route, there are three (3) options to follow in order to obtain unpaid maintenance. They are: (1) by execution against property; (2) by the attachment of emoluments (Garnishee Order); and (3) by the attachment of any debt.

How do you go about making use of the civil route?

The complainant must approach the maintenance court and make the necessary application. He or she would fill in a “Form K” which is headed “APPLICATION FOR ENFORCEMENT OF MAINTENANCE OR OTHER ORDER IN TERMS OF SECTION 26 OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”. On the application, you should write down all relevant information, including how the amount owed is calculated and the whereabouts of the defaulting party. It is advised that you go to court with proof that the monies were not paid. Therefore, if maintenance had to be paid into your bank account, take a printout of your bank statements with to show that monies were not paid. You must also state what relief you want as outlined above. Once your application is in order, and by way of example you asked for attachment of emoluments, an order may be made against the defaulter’s employer to the effect that he or she makes payment directly to you by deducting it from the defaulting party’s salary. If the defaulter is unemployed and has property, then the route to follow is to ask for the execution of property. This means that the property would be sold and what is owing to you would be paid to you. Now let us move on to the criminal route.

Criminal procedure

It is a criminal offence not to adhere to a maintenance order. Furthermore, one can be convicted for that. You can be liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine. This is serious. Now let us unpack the law.

The Maintenance Act 99 of 1998

Chapter 4 of the Maintenance Act deals with Offences and Orders relating to prosecutions when it comes to non-compliance with maintenance orders. We copied it below for your convenience. “CHAPTER 6 OFFENCES AND PENALTIES (ss 31-39) 31 Offences relating to maintenance orders (1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to such imprisonment without the option of a fine. (2) If the defence is raised in any prosecution for an offence under this section that any failure to pay maintenance in accordance with a maintenance order was due to lack of means on the part of the person charged, he or she shall not merely on the grounds of such defence be entitled to an acquittal if it is proved that the failure was due to his or her unwillingness to work or misconduct. (3) If the name of a person stated in a maintenance order as the person against whom the maintenance order has been made corresponds substantially to the name of the particular person prosecuted for an offence under this section, any copy of the maintenance order certified as a true copy by a person who purports to be the registrar or clerk of the court or other officer having the custody of the records of the court in the Republic where the maintenance order was made, shall on its production be prima facie proof of the fact that the maintenance order was made against the person so prosecuted. (4) If a person has been convicted of an offence under this section, the maintenance officer may, notwithstanding anything to the contrary contained in any law, furnish that person’s personal particulars to any business which has as its object the granting of credit or is involved in the credit rating of persons. 32 Offences relating to examination of persons by maintenance officer (1) The provisions of sections 164 (2), 188 and 189 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall, with the necessary changes, apply in respect of a person required to appear before a magistrate under section 8, and the magistrate may, subject to subsection (2), exercise in respect of that person all the powers conferred by section 170 (2) of the said Act and the said section 189 on the court referred to in those sections. (2) A person who is required to appear before a magistrate and who refuses or fails to furnish the information in question shall not be sentenced to imprisonment as contemplated in section 189 of the Criminal Procedure Act, 1977, unless the magistrate is also of the opinion that the furnishing of such information is necessary for the administration of justice.

CHAPTER 7 ORDERS RELATING TO PROSECUTIONS (ss 40-41)

40 Recovery of arrear maintenance (1) A court with civil jurisdiction convicting any person of an offence under section 31 (1) may, on the application of the public prosecutor and in addition to or in lieu of any penalty which the court may impose in respect of that offence, grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with the maintenance order, together with any interest thereon, whereupon the order so granted shall have the effect of a civil judgment of the court and shall, subject to subsection (2), be executed in the prescribed manner. (2) A court granting an order against a convicted person may- (a) in a summary manner enquire into the circumstances mentioned in subsection (3); and (b) if the court so decides, authorise the issue of a warrant of execution against the movable or immovable property of the convicted person in order to satisfy such order. (3) At the enquiry, the court shall take into consideration- (a) the existing and prospective means of the convicted person; (b) the financial needs and obligations of, or in respect of, the person maintained by the convicted person; (c) the conduct of the convicted person in so far as it may be relevant concerning his or her failure to pay in accordance with the maintenance order; and (d) the other circumstances which should, in the opinion of the court, be taken into consideration. (4) Notwithstanding anything to the contrary contained in any law, any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under an order granted under this section. 41 Conversion of criminal proceedings into maintenance enquiry If during the course of any proceedings in a magistrate’s court in respect of- (a) an offence referred to in section 31 (1); or (b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person, it appears to the court that it is desirable that a maintenance enquiry be held, or when the public prosecutor so requests, the court shall convert the proceedings into such enquiry.” Now let us move on to the regulations

Regulations to the Maintenance Act dealing with the Criminal Route

“OFFENCES AND ORDERS RELATING TO PROSECUTIONS Complaints of failure to comply with orders

A complaint regarding a failure to make a payment in accordance with a maintenance

order shall substantially correspond with Form Q of the Annexure. Recovery of arrear maintenance

(1) The clerk of the court shall submit a certified copy of an order made by the court in

terms of section 40 of the Act to the clerk of the civil court for registration of such order. (2) The clerk of the civil court shall – (a) register the order referred to in subregulation (1) by numbering it with the following consecutive case number for the year during which it is registered; and (b) inform the maintenance officer of the maintenance court where the maintenance order was made and the person in whose favour the order was made of the registration and the number of the case. (3) The provisions of the Act relating to civil execution shall, with the necessary changes, apply in respect of the execution of an order referred to in subregulation (1).”

Summary of the Criminal Route

Should the person against whom a maintenance order was made, not comply with it, the party who should receive maintenance may approach the maintenance court and lay a criminal complaint. The complainant would fill in a “Form Q” headed “COMPLAINT OF FAILURE TO COMPLY WITH A MAINTENANCE ORDER FOR PURPOSES OF SECTION 31(1) OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”. On the form, you should state how the defaulter failed to comply with the order and also what amount is outstanding. Once you successfully laid your complaint, the maintenance court would subpoena the defaulter to the criminal courts. The defaulter has the right to legal representation prior to a trial date being arranged. Once a date has been arranged for trial you would be subpoenaed as a witness and give evidence as to the maintenance order, the outstanding amount that the defaulter failed to pay and anything else that is relevant. As the proceedings are criminal, the State would prosecute the defaulter and you would be their witness. Therefore, the public prosecutor would ask you questions and then the defaulter or his attorney or advocate will cross-examine you. If a foundation has been laid by the State, then the defaulter would get a chance to outline his defense to the court and the public prosecutor would then cross-examine him or her. Should the court find the defaulter guilty, then on the request of the “public prosecutor and in addition to or in lieu of any penalty which the court may have imposed grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with the maintenance order together with any interest thereon. Whereupon the order so granted shall have the effect of a civil judgment of the court…” This means that the order may be used to sell the convicted person’s property.

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