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Article by listed attorney: Fawzia Khan 

The move by the National Credit Regulator to introduce an affordability guideline, which deals with the issue of arrear child maintenance, is reputed to send shockwaves across the country. The public and civil society has until 31 August 2014 to comment on the proposed guideline.

In it’s present form the following regulations are proposed:-

  • Maintenance defaulters will have an endorsement on their credit record to that effect.
  • Defaults will remain on their credit record for five years or until the court rescinds the default judgment, whichever occurs sooner.
  • 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. 
  • A  credit provider now stands at risk if it nevertheless grants credit to such an individual. It’s anticipated to curb reckless lending.
  • Details of maintenance payments are to be included in all affordability assessments for any person wanting to apply for a new loan.
  • The applicant also has to declare whether or not he or she has a maintenance default judgment.
  • In addition there is provision for blacklisting defaulters with the Credit Bureau. Government would now work together with credit bureaux in order to track down maintenance defaulters.

No doubt this news would be heralded as welcome relief to those single mothers who are in desperate need to track down the defaulting fathers.  Credit bureaux are known to keep accurate records of the whereabouts of people such as their latest known address and employment details.

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.

Research shows that in South Africa over 90 % of all maintenance defaulters are male. The queues of people waiting outside the maintenance court to apply for maintenance is still overwhelmingly female. Whilst there are a growing number of instances where the mothers are ordered to pay maintenance for 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 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. In South Africa we have one of the world’s highest divorce rates. There is a also 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.

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. The reality on the ground remains that many absent fathers shirk their responsibility of maintenance.

Failure to pay maintenance could see a defaulter imprisoned. 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.

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.

In my practice, I’ve often found that many fathers refuse to pay the maintenance because of the belief that the mother is using the money on herself rather than on the needs of the children. 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 to his ex-wife, my client, on the basis that he had to also support his new family. The court however 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.

From a political perspective in post apartheid South Africa has seen an increase in government spending on social development. This has helped the poorest children especially those living in rural areas and has in turn contributed towards in reducing the child poverty stats in the last few years. Unfortunately though the amount of these grants is simply not sufficient to eradicate poverty. Many children especially those in rural areas barely having enough to provide for their basic maintenance needs.

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. 

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