Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters (1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters: (a) Maintenance pendente lite; (b) a contribution towards the cost s of a pending matrimonial action; (c) interim custody of any child; (d) interim access to any child. (2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff. (3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred. (4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default. (5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision. (6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: In the matter between:   JOHN SMITH                                Applicant     and     JANE SMITH                               Respondent    

NOTICE OF APPLICATION IN TERMS OF RULE 43

  TO THE ABOVE MENTIONED RESPONDENT MADAM   TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:
  1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
  2. The Respondent shall have reasonable contact with the minor child as follows:
    • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
    • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
    • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
      • Christmas Day;
      • The minor child’s birthday;
      • Father’s day and Mother’s Day; and
      • The Parties’ birthday.
  1. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
  2. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
  3. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
  4. JOINT DECISION MAKING
    • The Parties shall make joint decisions about the following aspects of the minor child’s life:
      • Major decisions about the minor child’s schooling and tertiary education;
      • Major decisions about the minor child’s physical care, mental health care and medical care;
      • Major decisions about the minor child’s religious and spiritual upbringing;
      • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
      • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
      • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
  1. Costs of this Application if opposed; and
  2. Further and/or alternative relief.
  TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.   If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.   TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.   DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.         ——————————————                                   ABC  Attorneys     _____________________ Per.:   TO:        THE REGISTRAR HIGH COURT CAPE TOWN     AND TO:  JANE SMITH (RESPONDENT) Working at: XX WESTERN CAPE c/o   AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN ______________________o0o____________________  

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.  
Posted on by Telelaw

Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters
(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) a contribution towards the cost s of a pending matrimonial action;
(c) interim custody of any child;
(d) interim access to any child.
(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed
and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff.
(3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.
(4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default.
(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision.
(6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:

In the matter between:

 

JOHN SMITH                                Applicant

 

 

and

 

 

JANE SMITH                               Respondent

 

 

NOTICE OF APPLICATION IN TERMS OF RULE 43

 

TO THE ABOVE MENTIONED RESPONDENT

MADAM

 

TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:

  1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
  2. The Respondent shall have reasonable contact with the minor child as follows:
    • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
    • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
    • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
      • Christmas Day;
      • The minor child’s birthday;
      • Father’s day and Mother’s Day; and
      • The Parties’ birthday.
  1. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
  2. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
  3. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
  4. JOINT DECISION MAKING
    • The Parties shall make joint decisions about the following aspects of the minor child’s life:
      • Major decisions about the minor child’s schooling and tertiary education;
      • Major decisions about the minor child’s physical care, mental health care and medical care;
      • Major decisions about the minor child’s religious and spiritual upbringing;
      • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
      • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
      • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
  1. Costs of this Application if opposed; and
  2. Further and/or alternative relief.

 

TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.

 

If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.

 

TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.

 

DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.

 

     

——————————————                                   ABC  Attorneys

 

 

_____________________

Per.:

 

TO:        THE REGISTRAR

HIGH COURT

CAPE TOWN

 

 

AND TO:  JANE SMITH (RESPONDENT)

Working at:

XX

WESTERN CAPE

c/o

 

AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN

______________________o0o____________________

 

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.

 

Related Post

What is the Status of Muslim Marriage in South Africa?

Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022)

In the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022), the Constitutional Court deal with an issue relating to Muslim Marriage. The parties in the case where the following:

WOMEN’S LEGAL CENTRE TRUST                                              Applicant

and

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA                First Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT                                                                            Second Respondent

MINISTER OF HOME AFFAIRS                                                    Third Respondent

SPEAKER OF THE NATIONAL ASSEMBLY                                 Fourth Respondent

CHAIRPERSON OF THE NATIONAL COUNCIL

OF PROVINCES                                                                             Fifth Respondent

SOUTH AFRICAN HUMAN RIGHTS COMMISSION                     Sixth Respondent

COMMISSION FOR THE PROMOTION AND PROTECTION

OF THE RIGHTS OF CULTURAL, RELIGIOUS

AND LINGUISTIC COMMUNITIES                                                Seventh Respondent

LAJNATUN NISAA-IL MUSLIMAAT (ASSOCIATION

OF MUSLIM WOMEN OF SOUTH AFRICA)                                 Eighth Respondent

and

COMMISSION FOR GENDER EQUALITY                                   Intervening Party

and

MUSLIM ASSEMBLY CAPE                                                         First Amicus Curiae

UNITED ULAMA COUNCIL OF SOUTH AFRICA                        Second Amicus Curiae

The Constitutional Court gave the following ruling:

“On application for confirmation of an order of constitutional invalidity granted by the Supreme Court of Appeal: 1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed: 1.1. The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition. 1.2. It is declared that section 6 of the Divorce Act is inconsistent with sections 9, 10, 28(2) and 34 of the Constitution, insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved. 1.3. It is declared that section 7(3) of the Divorce Act is inconsistent with sections 9, 10, and 34 of the Constitution, insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. 1.4. It is declared that section 9(1) of the Divorce Act is inconsistent with sections 9, 10 and 34 of the Constitution, insofar as it fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved. 1.5. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 1.6. The declarations of invalidity in paragraphs 1.1 to 1.5 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament, to remedy the foregoing defects by either amending existing legislation, or initiating and passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 1.7. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows: (a) all the provisions of the Divorce Act shall be applicable, save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and (b) the provisions of section 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded. (c) In the case of a husband who is a spouse in more than one Muslim marriage, the court: (i) shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, and must make any equitable order that it deems just; and (ii) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 1.8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order. 1.9. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 above, the provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages. 1.10. If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order. 1.11. The Department of Home Affairs and the Department of Justice and Constitutional Development shall publish a summary of the orders in paragraphs 1.1 to 1.10 above widely in newspapers and on radio stations, whichever is feasible, without delay. 2. The conditional cross appeal by the Women’s Legal Centre Trust, and the appeals by the South African Human Rights Commission and Commission for Gender Equality are dismissed. 3. The President and the Minister of Justice and Constitutional Development must pay the Women’s Legal Centre Trust’s costs of this application, including the costs of two counsel.”

Status of Muslim Marriages in South Africa

Considering the latter judgment, Muslim Marriages are seen as valid marriages. However, the South African legal framework needs to be changed to allow for its incorporation.

Posted on by Telelaw

Child Maintenance Applications, investigation, preparation and enquiries – What you need to know, and more.

Everything you need to know when making a maintenance application at the maintenance court. This includes the filing of the complaint, up until the formal enquiry before a magistrate.

The internet is well-stocked with information written by Advocate Muhammad Abduroaf regarding child maintenance applications and related issues. As he gains more experience and sees the law develop, so does he publish and spread the invaluable knowledge. However, having all that information on different webpages is not forward-thinking. Therefore, we needed to do something about it. We, therefore, decided to provide this lengthy child maintenance application online post which provides practical information from start to finish. Let us begin.

Child Maintenance and Applications – How does it work?

Parents must pay child maintenance according to their means. So, if a child’s expenses each month is R 90 (obviously this is a fictitious example) and the father earns R 1 000 a month and the mother R 500 a month, then if all else is equal, the father should contribute R 60 towards the minor child’s expenses, and the mother, R 30. Now that is the long and short of the matter. However, other factors also play a role. They include the necessary expenses of each parent, which determines how much they should contribute, as well as what assets the parents own. For example, if a father earns R 200 a month, and the mother R R600 – 00, the father would pay the majority of the minor child’s expenses if he owns other assets worth R 100 000 – 00 and the mother none. If a parent is not happy with the maintenance he or she is receiving, an application may then be made to the maintenance court for a maintenance order.

Child maintenance procedure in the maintenance court

The procedures to be followed in instituting a complaint for child maintenance is regulated by the Maintenance Act 99 of 1998. Let us first unpack the basics.

From whom may maintenance be claimed?

Maintenance (personal, spousal or child) may be claimed from persons who have a legal obligation to maintain you. For instance, children can claim maintenance from their parents or a wife from her husband and vice versa. Seeing that children are minors, they are assisted by their parent or guardian through the maintenance process, but in fact, it is the child who is claiming.

The best interests of the minor child’s principle

When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, concerning child maintenance matters, and specifically to the child maintenance court, the moment a parent applies to child maintenance, the principle should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. As stated further above, a spouse may take the other to the maintenance court for personal maintenance.

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

What is first looked at in a child maintenance matter? Income and Expenses?

Your first step when wanting to claim child maintenance is to get hold of all your proof of income. For example, payslips. If you are not working for an employer, you should get hold of proof that you earn a certain amount of money per month. Bank statements and financial records would suffice for now. If you are unemployed, you need to show proof thereof. For example, a termination letter from your previous employer.

Compile and gather all your proof of expenses for you and your child

This is a crucial step. You must create a list of all monthly expenses incurred for yourself and your children. This would include rent, groceries, clothes, entertainment, etc. This information is required when filling in the maintenance application form that is dealt with in the next step below.

Details of the parent you are claiming child maintenance from

Find out all the details of the person from whom you are requesting maintenance. For example, his/her home and work address and identity number. You would also need to obtain the contact details of that person. This would expedite matters. If you do not have all the information, you can still proceed with your application at court. The maintenance investigator referred to further below would be of assistance.

What do I do at the Maintenance Court?

Go to the Maintenance Court closes to your area and obtain an “Application for Maintenance Order Form” also referred to as “Form A”. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you, therefore, have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information for the Court. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not honest, this would not be in your favour. If you require any assistance in filling in the form, the maintenance officers would be happy to assist you. Once you have filled in the Application for Maintenance Order Form, return it to the maintenance officer who will process it for you. If the maintenance officer can provide you with a reference/case number there and then, request it. The Maintenance Court will send you and the person you are claiming maintenance from a letter or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Diarise the date immediately and make arrangements with your work and a babysitter as soon as possible. If you miss the date, it can take months to get another.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, the maintenance clerk must expeditiously process the application. In doing so, the clerk through other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

What do you do while waiting on the court date?

From the time you left the office of the maintenance officer and even from the time you decided to claim maintenance, keep all receipts you received for any items bought for you and your child. Therefore, if you buy nappies for your child or even a toy, keep that receipt as if it is gold. This is due to you having to prove to the court that you do spend money on the child and you have the receipts to prove it.

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, the maintenance court must ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school travelling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advice as well as proof of expenses. Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago. You will soon hear from the Maintenance Court where they will be giving you a date to appear back at the Maintenance Court for an inquiry. They would either inform you by post or by a subpoena. On that date, both you and the person from whom maintenance is claimed would have to appear. If you are planning on making use of a legal representative, inform him/her early about the date so that he/she can be available to assist you at Court. In the notice to appear for the maintenance enquiry, it is asked that you bring proof of all expenses and income for you and your child. This is why it is so very important for you to keep all proof of expenditure in a safe place. Hint: If you can afford to, bring original proof of expenditure and income and a photocopy thereof. The original you would then be able to take back home and bring it back when requested and the copy will stay in the Court file.

The maintenance enquiry before a maintenance officer

The maintenance enquiry before the maintenance officer is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain. The maintenance officer will speak to each of the parties and look at the documents provided. Each party will get a chance to explain why he/she requires maintenance and also why he/she can’t afford the maintenance requested. The maintenance officer will as far as possible try to resolve the matter there and then without it having to go to court. If the parties can agree to an amount, this amount can be made an order of the court. If, however, an agreement cannot be reached at this stage, the matter, depending on the Court will either be referred to a prosecutor or for trial. Remember, if you are a father or a person currently paying maintenance/child support, a reduction is possible. The same goes for an application for an increase in maintenance/child support Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

Denial of paternity – Is it sometimes a delaying tactic?

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

The maintenance investigator – Who is it?

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

The maintenance investigator at the Court

Each maintenance court has a maintenance investigator. What this investigator does is gather evidence in a maintenance court case. However, in practice, no one may tell you that there is a maintenance investigator who could assist you in your case. This could be because of the huge amount of maintenance cases that come through the doors of the court. Insist that the maintenance court instructs the maintenance investigator to investigate the financial affairs of the other parent. This you should even more so insist on if the father does not even provide the court with a copy of his salary slip and outline of expenses.

Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)

Not too long ago, amendments were made to the Maintenance Act. Below are some of the amendments:
  1. If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
  2. You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
  3. The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
  4. The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
  5. The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
  6. Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]

The Evidence – What else can I do to get the best our of my maintenance enquiry?

The outcome of your child maintenance matter would depend on the evidence presented. If there is no proof that the child cost so much, or the other parent earns that much, then you would have serious challenges convincing the court. Below are things to look into when dealing with your maintenance matter.

The father’s employer – Can he be brought to court?

Ask the maintenance court to issue a subpoena against the father’s employer for the salary advice of the father. Also, request details of the father’s pension interest the father may have.

The father’s banking account – Can the court obtain it?

Obtain the father’s bank statements. Here you should ask the court to subpoena various banking institutions for bank statements of the father. Bank statements hold in them valuable information about the lifestyle of a person. You may find out that the father spends half his money on his cell phone or luxury clothing. You can use this information to show the court that the father can tighten his belt and spend more money on his child. What sometimes happens is, you may find additional income coming into the father’s banking account.

Father’s Credit Profile – Is it possible to obtain it without his consent?

Have the maintenance court obtain a credit profile of the father. From the profile, valuable information can be obtained. For example, where he last applied for credit, employment and residential details. If the father says he does not have money, but he applied for credit to purchase a new car, clearly there is money.

Social media (Facebook, Twitter, Instagram, Pinterest etc.) – Is it of any use?

These days, many people publish their lives on social media. If the father, in this case, keeps loading pictures and posts of how he lives the good life; that information may be used to show the maintenance court that the father lives a life different than what he wants the court and you to believe. Many people also make use of LinkedIn accounts. On it, they provide updated employment details. This would be useful to show the court should the father say he is an admin clerk. but on LinkedIn tell the world he is a manager.

Property Search in maintenance matters – How would it help?

What may be useful, is to do a property search on the father. Here you would find out what property that person owns. For example, the father may rent a house, but own a house in a different province where he obtains rent. That house he could have inherited.

Other tips and tricks in child maintenance matters – Is there more?

Each case is different. What would work in one maintenance matter, won’t work in another. For example, if someone is self-employed, and only get paid with cash, the dynamics are different. There won’t be any bank statements or payslips. In such a case, you need to be creative. Maybe ask questions to clients of the father and find out what he does and charges. If you can obtain the names of people the father does business with; that would be very useful. You may provide that information to the maintenance court and the investigator could follow up on it. If the father sees that you are getting somewhere, he may decide to pay a fair amount.

The final step – The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

How does the maintenance court make a decision?

Now, this is where it becomes challenging. The maintenance court can only make an order against a parent if there is evidence that he or she can afford the maintenance claimed, and obviously, the amount claimed is fair. The problem in practice is, the mother alleges that the father can afford the child maintenance, but she has no concrete evidence to back it up. The father is also not forthcoming, and only shows evidence that he cannot afford the amount claimed. The mother knows that he can afford the required amount due to his standard of living and what she experienced while they lived together. Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.

The parent is unhappy with the maintenance court’s decision – Can I appeal it?

If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. What this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges.   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          
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