Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Springs.

Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.

Claiming child maintenance for your child in Springs

Whether you claim child maintenance in Springs, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Springs.

The maintenance scenario – Springs South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

1. The Child is seven years old and attends school in Springs
2. The child is cared for by the mother who works in Springs
3. The mother works and earns a Salary of R 10 000
4. The father sees the child every second weekend. He also lives and works in Springs
5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
7. The mother claims R 4 000 – 00 maintenance as the father earns double her salary

What is the first step the mother must take in claiming child maintenance?

The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.

How does she start the legal process?

The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Springs, it would be the maintenance court in Springs. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.

What do you do while waiting for the maintenance court date?

While you wait to be informed of the court date by the Maintenance Court of Springs, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.

What happens at the first court appearance at the Springs Maintenance Court?

Once you have been notified of the maintenance court date by the Springs Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.

The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.

How does the Maintenance Court hearing or trial work in Springs?

Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.

At the end of the day, the Springs Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Springs Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.

The above child maintenance application principles should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Springs, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

ABC Steps to Appealing to the Constitutional Court of South Africa

1. The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
2. A matter before the Constitutional Court must be heard by at least eight judges.
3. The Constitutional Court ­
4. is the highest court of the Republic; and
5. may decide
6. constitutional matters; and
7. any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
8. makes the final decision whether a matter is within its jurisdiction. 
9. Only the Constitutional Court may ­
10. decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
11. decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
12. decide applications envisaged in section 80 or 122;
13. decide on the constitutionality of any amendment to the Constitution;
14. decide that Parliament or the President has failed to fulfil a constitutional obligation; or
15. certify a provincial constitution in terms of section 144. 
16. The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court if South Afirca, or a court of similar status, before that order has any force.
17. National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court ­
18. to bring a matter directly to the Constitutional Court; or
19. to appeal directly to the Constitutional Court from any other court. 
20. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

How do I take a matter to the Constitutional Court?

19. Appeals

What is the procedure once leave to appeal has been granted?

20. Procedure on appeal

What are the Steps in Summary:

1. Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
2. Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
3. The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
4. If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
5. The Chief Justice may decide whether the appeal shall be dealt with based on written arguments only [Rule 20(5)]
6. The matter would be argued on the date provided by the Constitutional Court.

Best of luck with your appeal.