Need for improvement in child maintenance system: Shamila Batohi

Load-shedding, poor literacy and awareness of rights and parents withholding financial support are major stumbling blocks in the execution of child maintenance, says national director of public prosecutions advocate Shamila Batohi.

She was launching a national maintenance awareness webinar on Wednesday.

“We need to look a lot stronger at the issue of child maintenance and other social realities faced by vulnerable groups when they seek justice in the courts.

“The systems need to improve. Load-shedding also affects the finalisation of these matters. In most cases, when men feel they have been denied access to their children, they tend to withhold support, which is not correct.

“We deal with a number of applicants who are not educated and are not aware of their rights. We will have a provincial maintenance webinar where we will educate people on their rights, the processes of the courts, collaboration and holding each other accountable,” said Batohi.

She was joined by a panel of experts who clarified issues applicants often face.

Advocate Refilwe Lekgoathi said parents tend to ignore their duties towards children.

“The provisions of certain needs are looked into: accommodation of the child, education, and food.

“Every magistrate's court is a maintenance court by default. The court in which a claim can be made is the jurisdiction where the caregiver of the child and the child resides, where the caregiver works or operate a business,” she said.

Who is liable?

Advocate Nolitha Madiba, a senior maintenance prosecutor, said both parents are liable on the basis of three aspects: legal duty, a means test [determination of affordability], and the determination of a need for maintenance.

“There’s a perception that it’s the father who is responsible for financially maintaining the child. [It's not the case legally]. Grandparents can be liable for maintenance if the parent is unable to pay. They are not automatically joined in the matters,” said Madiba.

“Siblings and half-siblings, relatives can be joined to a maintenance matter if a parent does not meet the three criteria. Spouses are also liable, including in customary marriages.”

What if you don’t know the whereabouts of the other party?

Advocate Maria Phalane, also a senior maintenance prosecutor, encouraged applicants to approach a magistrate’s court, where the maintenance clerk will assist in opening a file.

She said applicants must provide as much information as they can on the other parent. This would include the last known address, date of birth/ID number, last workplace, car registration and social media accounts of the other parent.

The maintenance investigators in the court will take up the matter and track down the person.

Documents needed (both parents)

Advocate Mooketsi Molaudi tackled this aspect. He said the following documents are needed to process an application:

• ID/passport or driver's licence;
• certified copies of the child's birth certificate;
• three latest bank and income statements;
• proof of physical address;
• list of income and expenditure (school fees, medical aid, clothing and groceries); and
• a divorce decree (where applicable).

“Record of a maintenance order possibly in another court will be sourced and, if they have other children, to determine affordability.”

Can a court order be discharged based on a verbal agreement?

Senior maintenance prosecutor advocate Deon Ruiters said yes.

“It is enforceable through a formal application with the maintenance court. It can be a little bit difficult but the court can discharge the order,” said Ruiters.

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