ABC Guide to Applying for Child Support/Child Maintenance in Cape Town (and South Africa)

The procedures for instituting a complaint for child maintenance are regulated by the Maintenance Act 99 of 1998. Below is a simple “ABC” guide to help you get started in claiming maintenance for yourself, your children, or dependents. This guide was created to encourage individuals to seek the maintenance they need. Please remember that the Maintenance Court is available to assist you with any legal queries you may have. This guide would apply whether you live in Cape Town, or anywhere in South Africa. Before outlining the steps for claiming maintenance in Cape Town (or anywhere in South Africa), I will first address the following question:

Question: From whom can maintenance be claimed?

Answer:Maintenance can be claimed from individuals who have a legal obligation to provide it. For example, children can claim maintenance from their parents, and a wife can claim it from her husband, and vice versa. Since children are minors, their parent or guardian assists them in the maintenance process; however, it is ultimately the child who is making the claim. This guide applies to all senarios.

What are the basic steps to follow when claiming child maintenance in Cape Town (or anywhere in South Africa)

Step 1: Gather Income and Expenses

1. Collect all proof of income, such as pay slips. If you are self-employed, obtain documentation that verifies your monthly earnings. If you are unemployed, that’s acceptable as well. 2. Compile a list of all monthly expenses for yourself and your children. This should include rent, groceries, clothing, entertainment, etc. This information will be essential when completing the maintenance application form in Step 2. 3. Gather details about the individual from whom you are requesting maintenance, including their home and work addresses, as well as their identity number.

Step 2: Visit the Maintenance Court

1. Go to the Maintenance Court closest to your location and obtain the “Application for Maintenance Order Form,” commonly referred to as “Form A.” If you live or work in the Cape Town CBD, then then go to the Cape Town Maintenance Court. 2. Use the information collected in Step 1 to fill out the form. The form is an affidavit, so you will need to swear to the accuracy of the information and sign it. Be honest in your disclosures, as providing incorrect information may lead to cross-examination in court, which can work against you. 3. If you need assistance in completing the form, the maintenance officers will be available to help you. After filling out the Application for Maintenance Order Form, return it to the maintenance officer for processing. If the officer can provide you with a reference or case number immediately, be sure to request it. 4. The Maintenance Court will send you and the individual you are claiming maintenance from a notice or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Make sure to mark the date on your calendar right away and arrange your work commitments and childcare as soon as possible. Missing the date may result in delays of several months in rescheduling your hearing.

Get Your Documents in Order – Step 3

From the moment you leave the office of the maintenance officer and even from the time you decide to claim maintenance, it’s crucial to keep all receipts for any items purchased for yourself and your child. Whether it’s diapers, toys, or any other necessities, treat those receipts as if they are gold. This is important because you will need to prove to the court that you genuinely spend money on your child, and having the receipts will serve as evidence.

Notification from the Maintenance Court

You will soon receive a notification from the Maintenance Court regarding a date to return for an inquiry. You may be informed by mail, email or through a subpoena. On that date, both you and the individual from whom you are claiming maintenance must appear. If you plan to have a legal representative, let them know the date as soon as possible, so they can be available to assist you in court. In the notice to appear for the maintenance inquiry, you will be required to bring proof of all expenses and income for both yourself and your child. This is why it’s essential to keep all evidence of expenditures in a secure place.

Hint: If possible, bring both the original documents and photocopies. The originals can be taken home afterward, while the copies will remain in the court file.

The Maintenance Inquiry – Step 4

This step involves the maintenance inquiry where you and the party from whom you are claiming maintenance will meet with a maintenance officer. The officer will speak with each party and review the documents provided. Both parties will have the opportunity to explain why maintenance is needed and why the requested amount may be unaffordable. The maintenance officer will try to resolve the matter on the spot to avoid a court trial. If an agreement can be reached, that amount can be formalized as a court order. If an agreement cannot be reached, the case may be referred to trial, depending on the court’s procedures. Remember, if you are a father or a person currently paying maintenance or child support, you can apply for a reduction. Conversely, if you need an increase in maintenance or child support, you can also make that application.

Sharing is Caring

This article and others on this website are written by Adv. Muhammad Abduroaf to assist individuals with various family law-related issues. If you find our articles, resources, or posts helpful, consider sharing them on social media.

Posted on 11 February 2025 by Telelaw

ABC Guide to Applying for Child Support/Child Maintenance in Cape Town (and South Africa)

Before outlining the steps for claiming maintenance in Cape Town (or anywhere in South Africa), I will first address the following question:

Question: From whom can maintenance be claimed?

What are the basic steps to follow when claiming child maintenance in Cape Town (or anywhere in South Africa)

Step 1: Gather Income and Expenses

1. Collect all proof of income, such as pay slips. If you are self-employed, obtain documentation that verifies your monthly earnings. If you are unemployed, that’s acceptable as well.
2. Compile a list of all monthly expenses for yourself and your children. This should include rent, groceries, clothing, entertainment, etc. This information will be essential when completing the maintenance application form in Step 2.
3. Gather details about the individual from whom you are requesting maintenance, including their home and work addresses, as well as their identity number.

Step 2: Visit the Maintenance Court

1. Go to the Maintenance Court closest to your location and obtain the “Application for Maintenance Order Form,” commonly referred to as “Form A.” If you live or work in the Cape Town CBD, then then go to the Cape Town Maintenance Court.
2. Use the information collected in Step 1 to fill out the form. The form is an affidavit, so you will need to swear to the accuracy of the information and sign it. Be honest in your disclosures, as providing incorrect information may lead to cross-examination in court, which can work against you.
3. If you need assistance in completing the form, the maintenance officers will be available to help you. After filling out the Application for Maintenance Order Form, return it to the maintenance officer for processing. If the officer can provide you with a reference or case number immediately, be sure to request it.
4. The Maintenance Court will send you and the individual you are claiming maintenance from a notice or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Make sure to mark the date on your calendar right away and arrange your work commitments and childcare as soon as possible. Missing the date may result in delays of several months in rescheduling your hearing.

Get Your Documents in Order – Step 3

Notification from the Maintenance Court

In the notice to appear for the maintenance inquiry, you will be required to bring proof of all expenses and income for both yourself and your child. This is why it’s essential to keep all evidence of expenditures in a secure place.

Hint: If possible, bring both the original documents and photocopies. The originals can be taken home afterward, while the copies will remain in the court file.

The Maintenance Inquiry – Step 4

The maintenance officer will try to resolve the matter on the spot to avoid a court trial. If an agreement can be reached, that amount can be formalized as a court order. If an agreement cannot be reached, the case may be referred to trial, depending on the court’s procedures.

Remember, if you are a father or a person currently paying maintenance or child support, you can apply for a reduction. Conversely, if you need an increase in maintenance or child support, you can also make that application.

Sharing is Caring

The role of a facilitator in family matters regarding children – Should he or she make legally binding decisions or directives?
When parties divorce or they approached a court of law to resolve a dispute regarding a minor child, it was customary for them to appoint a facilitator should they settle the matter. Specific clauses would be inserted into consent papers and settlement agreements which the parties sign and is made an order of Court. The clauses would basically state that the parties appoint a facilitator to resolve disputes regarding the minor child and that the facilitator has certain authority and powers. Such disputes could range from one-party wanting more contact with the child or disputes regarding aspects of education, for example, which school the child goes to, or aspects regarding extramural activities. At the end of this article you would find an example of a facilitator clause. A facilitator should be a suitably qualified person. He or she does not necessarily have to be a clinical psychologist, social worker or a lawyer. He or she should be somebody that knows family law, understands the family dynamics and is skilled in resolving issues between parties. It is therefore very important that the parties appoint a facilitator that they would feel comfortable with and one that will be compatible with their family situation.

Facilitator’s Power

It would often happen that the parties cannot resolve a dispute amicably through a facilitator. In such a case, a decision will have to be made. The facilitator would then have to issue a directive. In other words, make a firm and binding decision for the parties. A further clause would then usually be inserted into the consent paper stating that the facilitator’s directive would be binding upon the parties as if it was an order of the court. The directive of the facilitator would then remain binding upon the parties unless a court of competent jurisdiction orders otherwise. It is this latter aspect that this article deals with.

Introduction of the Facilitation Clause

Based on our history with family law matters, this specific facilitation clause came about in or about 2008, a short while after the Children’s Act came into operation. It was then customary for parties to insert this facilitation clause as a matter of course. In our experience, the family advocate’s office would insist that such a clause be inserted and furthermore the courts would have no issue therewith.

Limiting the power of the Facilitator

What has now happened since 2018, in the Western Cape at least, was that certain judges started having an issue with the fact that a facilitator had the authority of making binding decisions on the parties which had the effect of an order of Court. In other words, due to the clause stating, that the facilitator’s directive would be binding upon the parties as if it was an order of Court; certain judges began to question such authority.

The court’s reasoning

Basically, the court’s reasoning is how could judicial authority be delegated to a third party? Taking it one step back when, the courts in the past made an order incorporating the settlement agreement, which had a clause therein authorising the facilitator to make binding directives; it basically gave judicial authority to the facilitator. In other words, the facilitator had the authority of a Judge. What has now become a practice, should a facilitation clause be inserted into a settlement agreement, the office of the Family Advocate of Cape Town, at least, would endorse the Consent Paper or Settlement, Agreement but also direct the Court to determine whether or not the parties understand the role of the facilitator and that they would be responsible for the cost associated therewith.

The Family Advocates Reasoning

There could be many reasons why the Family Advocate is directing the parties to advise the court whether or not they understand the role of the facilitator. One such reason could be that they do not want parties to come to them to facilitate disputes and issues that might arise. And of course, the other reason could be due to the court judgments that recently stated that a court can’t delegate its authority to a facilitator. In our view, asking a party in court, whether or not they understand the role of a facilitator, and that they will be responsible for the cost thereof is unnecessary. The party would say that they understand the role and that they are responsible for the cost thereof. What value that has in the case of a dispute arising in the future is very little.

The future role of the facilitator

Going forward, we still recommend that a facilitation clause be inserted in settlement agreements and consent papers. We further agree that a Court cannot delegate its judicial authority to a third party, unless in exceptional circumstances. However, at the same time, we feel that the facilitator could play a crucial role in resolving disputes between the parties. Having said that, the parties need to discuss whether or not they would require a facilitator, and in the event they do, they should specifically outline the role of their intended facilitator in the consent paper or settlement agreement.

An example of a neutral facilitation clause

FACILITATOR
- A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
- These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
- In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
- The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
- The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.

Posted on 11 February 2025 by Telelaw