Listed Attorney Fawzia Khan in conversation with Lyse Comins, (who is a journalist, editor and media consultant and a member of the Southern African Freelancers' Association (SAFREA).
The move by the National Credit Regulator to introduce an affordability guideline to any person who has failed to pay his or her child maintenance is welcome news. It’s in keeping with trends in many first world countries, including England. At the moment if a person is in arrears with his child maintenance obligations, there is no record of it in a credit record.
The proposed requirement to call to blacklist parents simply adds an extra layer to the existing laws designed to protect the vulnerable children. The public was invited until 31 August 2014 to make comments on the draft regulations. In as much as the news of the proposed draft appears to have sent shock waves rippling across the country, one must not forget that when the National Credit Act was signed into law in March 2006, there was a fair amount of resistance by various role players who questioned the need to regulate the consumer credit market industry in the manner in which it sought to do. One of the corner stones of the NCA lay in it’s legislation surrounding the credit provider’s obligation to promote responsible credit granting and the prohibiting of any reckless granting of credit. The net result of the implementation of the NCA meant that the banks and other credit service providers were forced to adopt a more cautious approach in granting credit facilities to consumers. Despite the initial resistance, having the NCA meant there were fewer casualties in South Africa when we were faced with the global financial melt down in 2008/ 2009.
In terms of the Maintenance Act 1998, both parents have a duty to support their minor children,(in accordance with their means). This means that it’s not only the father who has the obligation to pay maintenance, but in South Africa research shows that over 90 % of all maintenance defaulters are male.
The issue of “non-paying” and/ or “absent” father remains a huge problem in South Africa, with numbers reputed to run into millions of families who face this difficulty. The South African legislature and judiciary has over the years adopted a zero tolerance approach to those parents who try to avoid their maintenance obligations to their minor children. But the reality on the ground is that many absent fathers shirk this responsibility.
One of the important provision found in Section 28(1) of the Constitution says that every child has the right to basic nutrition, shelter, basic health care services, social services, education and has the right to be protected from maltreatment, neglect, abuse or degradation.
Maintenance is payable to a child, whether or not the parents are married to each other be it by customary law, civil law, or civil union. Before the order is made, the court will look closely at the financial needs of the child and income of the parent, before it makes its order for maintenance. Affordability by the parent is therefore taken into account. In South Africa child support is tax deductible.
A person who cannot afford to pay a specific amount of maintenance can approach the court to get the amount of maintenance reduced, if he can prove a change in his circumstances. Hence this person is not is being targeted in the draft regulations. It’s that person who deliberately refuses to financially support and maintain his dependents. Despite the fact that we have tough laws which seeks to promote and protect the rights of vulnerable children, the problem of maintenance defaulters continues to plague South African civil society.
At present, if a parent is employed and refuses to pay maintenance, you can apply to have a garnishee order issued and the employer will be ordered to deduct the maintenance from his salary and pay that over to the person concerned. Failure to pay maintenance is a criminal offence which carries the possibility of a year in prison with or without the possibility of a fine.
The real losers in this case remains the children who are adversely affected by the failure of the parent to pay his or her maintenance obligation. Failure to pay maintenance to your children is also considered economic abuse and is one of the grounds which will entitle a person to apply for and be granted a domestic violence interdict, against the other parent.
Once maintenance is ordered by the court, failure to pay the monthly maintenance could mean facing criminal charges. Many single parent families are wholly dependent on the maintenance payments to ensure that the children’s basic needs and expenses are met.
In South Africa we have one of the world’s highest divorce rates. There is a steady increase in number of domestic violence abuse cases. These factors coupled with the rise of teenage pregnancies which adds to the social burden to the State means that more has to be done to deal effectively with the problem of maintenance defaulters.
From a political perspective in post apartheid South Africa, government spending on social development has increased significantly. Government social support grants have certainly helped the poorest children in SA, which has in turn contributed towards in reducing the child poverty stats in the last few years.
But the reality is that the amount of these grants is simply not sufficient to eradicate poverty with many children barely having enough to provide for their basic maintenance needs.
The recent launch by the South African National Taxi Association Council (SANTACO) in KZN which saw a commitment by the taxi association that they will ensure their members (taxi driver and conductors) pay their child maintenance is proof of how widespread the problem of maintenance defaulters is.
Whilst there are a number of instances where the mothers are ordered by the courts to pay maintenance to their children, especially as more and more women are employed or earn an income, the vast majority of maintenance orders are made against the fathers. The reality on the ground is that at any given time, the queues of people applying for maintenance outside the maintenance court is still overwhelmingly female. Our courts are bursting at the seams with the number of maintenance applications and enquiries it is required to process.
The net effect is that failure to pay maintenance ultimately contributes towards the decline in the economy as children are forced to leave school prematurely, and to live a life of poverty.
The children are deprived of the opportunity to carve a better standard of living. Any chance they may have had of becoming a successful professional person in formal employment or business is denied to them.
In my practice, I’ve often found that many defaulters refuse to pay the maintenance because of the belief that the custodial parent is using the money on herself rather than on the needs of the children. Sadly the issue of maintenance is used as a ‘weapon’ to be used against either party,” she said.
I had a case where a father who claimed to have no income but who owned immovable property, was ordered by the court to sell the property and discharge his maintenance obligations to his minor children.
In another case, a father who remarried, brought an application to reduce the amount of maintenance he was ordered to pay my client, on the basis that he had to also support his new family. The court took into account all the man’s expenses and ordered that both families lifestyle had to be adjusted downwards and not that only of the first wife and her children.
The credit granter will also have to assess whether a customer can afford to take on additional debt by being able to repay the loan after considering his maintenance obligations to his dependents. This will certainly curb reckless lending. A person has to now declare if they have any maintenance default judgments. The regulations now allow for enlisting the assistance of credit bureaux in tracking down defaulters who can't be found.
Maintenance default will now stay on the credit record for 5 years or until the court rescinds the default judgment, whichever occurs sooner.
These laws would also enable government to work in conjunction with credit bureaux to track down maintenance defaulters.
It will certainly be welcome relief to those single mom’s in desperate need to track down the non paying dad’s, as credit bureaux keep accurate records of the whereabouts of people such as their latest known address and employment details.
In my opinion, having a breadwinner imprisoned because of his failure to pay maintenance results in more hardship for the families as it ends up being counter productive.
I believe that the measures as proposed by the Credit Regulator would serve to act as an extra deterrent to prevent and curb irresponsible lending and credit granting.
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