[caption id="attachment_5575" align="alignleft" width="300"] National Water Day – Cape Town South Africa – Water Crisis[/caption]

World Water Day

Yesterday (22 March 2018) was World Water Day. A day where the focus is on the importance of water and raising awareness on the issues surrounding it. The residence of the Western Cape, South Africa all to well know of the scarcity of water, as in the last few years, water has become in less supply and expensive. Dam levels have declined compared to previous years, and at the time of writing this article, there has been no substantial amount of rainfall positively predicted for the coming winter season. What this tells us, is that both government and civil society need to work together to alleviate the water crisis in South Africa. This can be done by better water management and drilling into alternative sources of fresh water, to mention a few. Clearly some businesses have benefited from the crisis. People are purchasing bottled water in its gallons and the sale of 25 litre containers has sky rocketed. Almost every household owns a few containers. Then there is the Jojo tanks residence purchased and used to catch and store rain water, and water from water sources. All these costs money to the ratepayer. As Our Lawyer (Pty) Ltd is based in Cape Town, we felt it fitting to use our legal expertise to write something on the water crisis in celebration of World Water Day. We too are feeling the crisis in our office building where water saving measures are in place.

Cape Town Water Crisis

The water crisis in Cape Town is therefore clearly a real issue affecting not only its residents, but industry alike. Currently Cape Town is facing level 6B water restrictions, which allows its residence less than 50 litres of water usage a day. This has been the case for the past few months. Prior to that, the quota per person was in the region of 85 litres of water usage a day. With these restrictions, comes higher water costs in that, the more you use, the more you would pay as compared to periods before level 6B. This could be compared to the “polluter pays” principle when it comes to pollution. [caption id="attachment_5573" align="alignleft" width="300"] Water Quota Level 25 L Crises

Water Quota at Newlands Springs Cape Town[/caption]

Water Outages and Problems

As with the electricity crisis not too long ago, Cape Town is now experiencing water outages. And in some areas, more than others. Certain areas experience blue coloured water coming from their taps, which may not be potable. Then there is the issue of the controversial water meters being installed for homes across Cape Town. In some areas, the communities opposed its installations citing faulty devices as a reason. When the device fails, residence is left without water until it is repaired, and sometimes not soon enough. This can be particularly annoying as the devices comes at a cost to the ratepayer. No matter how you look at it, water is still a vital resource on any level. We need it for our daily living. Industry requires it for their growth. And farms require it to ensure that there is food on our tables. But where does this leave us going forward? As can be seen, clearly there is a crisis, and costing us. Is there light at the end of the tunnel, or water at the bottom of the pit?

A right to water in South Africa

South Africa is an arid country with a small percentage of its rainfall available as surface water. It further has one of the lowest conversion ratios in the world. Each time we lose a water resource due to pollution or to poor conservation, we are driven closer to ‘water resource extinction’. It is therefore critically concerning that many of the Western Cape’s rivers are heavily polluted.

What does our Constitution say?

Section 24 of our country’s constitution states that “everyone has the right to an environment that is not harmful to their health or well-being.” The same section further states that “the environment is to be protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. Furthermore, section 27 of our Constitution states that “everyone has the right to have access to sufficient water.”

Alternative Sources of Water in Cape Town

Cape Town has now bought into the idea of desalination. There are currently three desalination plants in Cape Town, hoping to be up and running in a few weeks’ time. This however would not supply Cape Town with all its needed water should it be fully up and running. Then there is the issue of borehole water. Many residences and businesses have invested in drilling boreholes. This however comes at a cost and the water is not drinkable. It seems whatever the alternative sources are, it would cost the user a pretty penny. [caption id="attachment_5572" align="alignleft" width="300"] Water Crises Cape Town Newlands Springs

Water Crisis Cape Town Newlands Springs[/caption]

Spring Water

The South African Breweries has a spring water collection point in Newlands Cape Town open to the public. Here residence may collect their water. There is also another collection point a few minutes’ walk away. With only five taps, and long queues, even being open twenty-four hours a day, would not support the entire Cape Town population. People may find it easier to just purchase water from the store. There are quite a few springs in Cape Town, but not all of them are open to the public. You will find people queuing in Muizenberg or collecting the water coming from the Mountain on Boyes Drive. Be that as it may, it would be clearly impracticable for a household of five people to collect their free water from springs, to alleviate a huge water bill. People work, and there are costs involved in transporting the water.

The way forward

[caption id="attachment_5574" align="alignleft" width="213"] Water Bottles Cape Town Crises Shortage

25 LWater Containers being filled.[/caption] Without pointing fingers, it is clear that something has gone wrong with regard to water management in the Western Cape. How can things change so quick? But we are where we are, and now with our eyes open. We cannot depend on government solely anymore to save us, we need to take positive action. If this means installing water saving devices, collecting water, or drilling boreholes; that is what we must do. In any event, our pockets will feel it. We wish the City success with their water desalination venture, and making use of groundwater, and truly wish the Winter season will fill up our dams. However, we all need to have systems and contingencies in place, as this crisis is one that may be around for some time. For environmental legal services, visit Envirolaws (Pty) Ltd. Happy World Water Day! The Our lawyer (Pty) Ltd Legal Team

Posted on 11 February 2025 by Telelaw

National Water Day Cape Town South Africa - Water Crises — National Water Day – Cape Town South Africa – Water Crisis

World Water Day

What this tells us, is that both government and civil society need to work together to alleviate the water crisis in South Africa. This can be done by better water management and drilling into alternative sources of fresh water, to mention a few. Clearly some businesses have benefited from the crisis. People are purchasing bottled water in its gallons and the sale of 25 litre containers has sky rocketed. Almost every household owns a few containers. Then there is the Jojo tanks residence purchased and used to catch and store rain water, and water from water sources. All these costs money to the ratepayer.

As Our Lawyer (Pty) Ltd is based in Cape Town, we felt it fitting to use our legal expertise to write something on the water crisis in celebration of World Water Day. We too are feeling the crisis in our office building where water saving measures are in place.

Cape Town Water Crisis

Water Quota Level 25 L Crises — Water Quota at Newlands Springs Cape Town

Water Outages and Problems

No matter how you look at it, water is still a vital resource on any level. We need it for our daily living. Industry requires it for their growth. And farms require it to ensure that there is food on our tables. But where does this leave us going forward? As can be seen, clearly there is a crisis, and costing us. Is there light at the end of the tunnel, or water at the bottom of the pit?

A right to water in South Africa

What does our Constitution say?

Alternative Sources of Water in Cape Town

Water Crises Cape Town Newlands Springs — Water Crisis Cape Town Newlands Springs

Spring Water

There are quite a few springs in Cape Town, but not all of them are open to the public. You will find people queuing in Muizenberg or collecting the water coming from the Mountain on Boyes Drive. Be that as it may, it would be clearly impracticable for a household of five people to collect their free water from springs, to alleviate a huge water bill. People work, and there are costs involved in transporting the water.

The way forward

Water Bottles Cape Town Crises Shortage — 25 LWater Containers being filled.

Without pointing fingers, it is clear that something has gone wrong with regard to water management in the Western Cape. How can things change so quick? But we are where we are, and now with our eyes open. We cannot depend on government solely anymore to save us, we need to take positive action. If this means installing water saving devices, collecting water, or drilling boreholes; that is what we must do. In any event, our pockets will feel it.

We wish the City success with their water desalination venture, and making use of groundwater, and truly wish the Winter season will fill up our dams. However, we all need to have systems and contingencies in place, as this crisis is one that may be around for some time. For environmental legal services, visit Envirolaws (Pty) Ltd.

Happy World Water Day! The Our lawyer (Pty) Ltd Legal Team

[caption id="attachment_10793" align="alignnone" width="733"] Relocation consent for minor child to Australia – Advocate Muhammad Abduroaf[/caption]
I want to relocate from South Africa to Australia with my minor child. The other parent does not want my child to relocate to Australia. What can I do?
Australia is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Australia, if a minor child will be joining that parent and also relocating to Australia, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Australia. Before we do so, let us list the various cities and towns in Australia to which you may want to relocate: Canberra, New South Wales, Albury-Wodonga, Armidale, Ballina, Balranald, Batemans Bay, Bathurst, Bega, Bourke, Bowral, Broken Hill, Byron Bay, Camden, Campbelltown, Cobar, Coffs Harbour, Cooma, Coonabarabran, Coonamble, Cootamundra, Corowa, Cowra, Deniliquin, Dubbo, Forbes, Forster, Glen Innes, Gosford, Goulburn, Grafton, Griffith, Gundagai, Gunnedah, Hay, Inverell, Junee, Katoomba, Kempsey, Kiama, Kurri Kurri, Lake Cargelligo, Lismore, Lithgow, Maitland, Moree, Moruya, Murwillumbah, Muswellbrook, Nambucca Heads, Narrabri, Narrandera, Newcastle, Nowra-Bomaderry, Orange, Parkes, Parramatta, Penrith, Port Macquarie, Queanbeyan, Raymond Terrace, Richmond, Scone, Singleton, Sydney, Tamworth, Taree, Temora, Tenterfield, Tumut, Ulladulla, Wagga Wagga, Wauchope, Wellington, West Wyalong, Windsor, Wollongong, Wyong, Yass, Young, Northern Territory, Alice Springs, Anthony Lagoon, Darwin, Katherine, Tennant Creek, Queensland, Ayr, Beaudesert, Blackwater, Bowen, Brisbane, Buderim, Bundaberg, Caboolture, Cairns, Charleville, Charters Towers, Cooktown, Dalby, Deception Bay, Emerald, Gatton, Gladstone, Gold Coast, Goondiwindi, Gympie, Hervey Bay, Ingham, Innisfail, Kingaroy, Mackay, Mareeba, Maroochydore, Maryborough, Moonie, Moranbah, Mount Isa, Mount Morgan, Moura, Redcliffe, Rockhampton, Roma, Stanthorpe, Toowoomba, Townsville, Warwick, Weipa, Winton, Yeppoon, South Australia, Adelaide, Ceduna, Clare, Coober Pedy, Gawler, Goolwa, Iron Knob, Leigh Creek, Loxton, Millicent, Mount Gambier, Murray Bridge, Naracoorte, Oodnadatta, Port Adelaide Enfield, Port Augusta, Port Lincoln, Port Pirie, Renmark, Victor Harbor, Whyalla, Tasmania, Beaconsfield, Bell Bay, Burnie, Devonport, Hobart, Kingston, Launceston, New Norfolk, Queenstown, Richmond, Rosebery, Smithton, Stanley, Ulverstone, Wynyard, Victoria, Albury-Wodonga, Ararat, Bacchus Marsh, Bairnsdale, Ballarat, Beechworth, Benalla, Bendigo, Castlemaine, Colac, Echuca, Geelong, Hamilton, Healesville, Horsham, Kerang, Kyabram, Kyneton, Lakes Entrance, Maryborough, Melbourne, Mildura, Moe, Morwell, Port Fairy, Portland, Sale, Sea Lake, Seymour, Shepparton, Sunbury, Swan Hill, Traralgon, Yarrawonga, Wangaratta, Warragul, Werribee, Wonthaggi, Western Australia, Broome, Bunbury, Busselton, Coolgardie, Dampier, Derby, Fremantle, Geraldton, Kalgoorlie, Kambalda, Katanning, Kwinana, Mandurah, Meekatharra, Mount Barker, Narrogin, Newman, Northam, Perth, Port Hedland, Tom Price, Wyndham. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Australia-2027337)
Why do I require the other parent’s Consent to relocate to Australia?
According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Australia. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.
What are Parental Responsibilities and Rights of a parent in relation to a child?
As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Australia. Even if the minor child only wants to go for a short holiday to Australia, both guardians’ Consent would be required.
When would the other parent be seen as a guardian in the case of a relocation matter to Australia?
It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Australia. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Australia.
Mother’s Consent for relocation of the minor child to Australia
Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Australia, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.
Married father’s Consent for the relocation of the minor child to Australia
Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Australia. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Australia.
Consent of unmarried fathers for the relocation of their minor children to Australia.
Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child- (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother- (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.
What do you do if the other parent does not want to consent to the minor child relocating to Australia?
Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Australia, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Australia, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10792" align="alignnone" width="714"] Relocation Order[/caption] [caption id="attachment_10793" align="alignnone" width="725"] Relocation Consent Order[/caption]

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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