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Chapter 5:09

Maintenance Act

Acts 51/1971, 32/1973 (s. 39), 33/1973 (s. 15), 45/1973, 44/1974, 22/1975, 33/1979, 6/1981, (s. 32), 15/1981 (s. 66), 29/1981 (s. 59), 21/1982 (s. 14), 31/1983 (s. 3), 24/1987, 2/1989, 2/1990, 11/1991, 15/1994, 20/1994 (s. 4); 9/1997 (s. 10).; 22/2001 (s. 4), 6/2005 (s. 3).

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

  1. Short title.

PART II

MAINTENANCE ORDERSBY MAINTENANCECOURT

  1. Maintenance courts.
  2. Summons to appear upon complaint of non-support.
  3. Inquiry to be held into complaint.
  4. Making of order.
  5. Effect of direction.
  6. Variation or discharge of direction or order.
  7. Application for direction against employer.
  8. Termination of order.
  9. Variation and rescission of directions, orders, etc., made in absence of person.
  10. Procedure at inquiries in terms of this Part.
  11. Witness failing to attend.
  12. Witness giving false evidence.
  13. Contempt of maintenance court.
  14. Review of summary penalties.

PART III

ENFORCEMENTOFVARIOUS ORDERSFORMAINTENANCE

  1. Registration of orders.
  2. Order to make future payments through clerk of court.
  3. Transmission of order to another province or district.
  4. Termination of employment and change of address to be notified.
  5. Civil enforcement of direction or order.
  6. Criminal offence for failing to comply with maintenance order.
  7. Criminal offence for failing to comply with direction.
  8. Release from imprisonment on payment of arrears.

PART IV

GENERAL

  1. Maintenance officers.
  2. Appeals from decisions of maintenance courts.
  3. Reciprocity with other states.
  4. Service of process.
  5. Payment of expenses of witnesses.
  6. Awards as to expenses.

AN ACT to provide for the making of orders for maintenance of persons; to provide for the enforcement of maintenance orders; and to provide for matters incidental to or connected with the foregoing.

[Date of commencement: 1st December, 1971.]

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Maintenance Act [Chapter 5:09].

                   2    Interpretation

In this Act—

“dependant”, in relation to a responsible person, means any person whom that responsible person is legally liable to maintain;

“direction” means a direction made in terms of subsection (5) of section six;

“earnings”, in relation to a responsible person, means any money payable to that person—

(a) by way of salary, wages, remuneration or allowances and includes any fees, bonus, commission, overtime pay or other emoluments payable in addition thereto; or (b) by way of a pension and includes—

  • an annuity, gratuity, commutation of pension or other like allowance or refund of pension contributions, including interest payable thereon, whether the same is payable in respect of past services or otherwise; and
  • periodical payments in respect of or by way of compensation for the loss, abolition or relinquishment, howsoever arising, or any diminution in the emoluments, of any office or employment;

“employer”, in relation to a responsible person, means a person, including the State, by whom earnings are payable or are likely to become payable to the responsible person;

“maintenance officer” means a maintenance officer designated in terms of section twenty-six;

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“order”, for the purposes of Part II, means an order made in terms of section six;

“probation officer” means a probation officer as defined in section 2 of the Children’s Act [Chapter 5:06];

[Definition amended by section 3 of Act 6 of 2005] “responsible person” means a person who is legally liable to maintain another.

PART II

MAINTENANCEORDERSBYMAINTENANCE COURT

                   3    Maintenance courts

Every magistrates court shall, within its area of jurisdiction, be a maintenance court for the purposes of this Act.

                   4     Summons to appear upon complaint of non-support

  • Upon a complaint on oath being made to a maintenance officer of a maintenance court that a responsible person fails or neglects to provide reasonable maintenance for any dependant of his, the maintenance officer may issue a summons requiring the responsible person to appear before a maintenance court to show cause why an order for the maintenance of the dependant should not be made against him.
  • A complaint in terms of subsection (1) may be laid by the dependant or by some other person having the care or custody of the dependant or by a probation officer.

                   5    Inquiry to be held into complaint

  • On the day specified in the summons issued in terms of subsection (1) of section four the maintenance court shall inquire into the matter of the complaint.
  • An inquiry referred to in subsection (1) shall be held in the presence of the responsible person or in his absence upon proof of the service upon him of the summons requiring him to appear.

                   6    Making of order

  • At any inquiry referred to in section five the maintenance court may, subject to this Part, make an order against the responsible person for the periodical payment of such sum of money as it considers reasonable for the maintenance of the dependant in respect of whom the complaint in terms of section four was made.
  • A maintenance court shall not make an order in favour of a dependant unless it is satisfied that—
  • the person against whom the order is sought is legally liable to maintain the dependant; and
  • the person against whom the order is sought is able to contribute to the maintenance of the dependant; and
  • the person against whom the order is sought fails or neglects to provide reasonable maintenance for the dependant.

(3) For the purpose of determining whether or not a person who is subject to customary law is legally liable to maintain another person, a maintenance court shall regard—

  • husbands and wives at customary law as primarily responsible for each other’s maintenance;
  • the parents of a child as being primarily and jointly responsible for the maintenance of that child until the child attains the age of majority or becomes self-supporting.

(4) In making an order the maintenance court shall have regard to—

  • the general standard of living of the responsible person and the dependant, including their social status;
  • the means of the responsible person and the dependant;
  • the number of persons to be supported;
  • whether the dependant or any of his parents is able to work and, if so, whether it is desirable that he or she should do so.

(5) The maintenance court may direct that the whole or any portion of the payments required to be made in terms of an order shall be paid by the employer of the responsible person from earnings due to that responsible person by the employer:

Provided that no such direction shall be made against an employer unless—

  • in the case of a direction to pay a sum which amounts in the aggregate to less than the minimum wages specified in terms of section 20 (“Minimum wage notices”) of the Labour Act [Chapter 28:01];

[Paragraph amended by section 3 of Act 6 of 2005]

  • in any other case—

(i) he has been given notice of the proposal to make such direction and a reasonable opportunity to appear to show cause why such direction should not be made; or (ii) he consents to the making of the direction.

(6) An order—

  • may direct that payments in terms of the order shall be made through the clerk of the maintenance court where the order is for the time being registered in terms of section eighteen and, in such event, shall specify the person to whom the clerk of the maintenance court shall transmit payments received;
  • may be made as to a lump sum or may apportion the amount which shall be paid in respect of any dependant in whose favour the order was made;
  • may include such award as to the maintenance court seems reasonable for the payment of maintenance which is in arrears.

(7) Where a direction is to be made against the State or a fund, the notice referred to in paragraph (b) of the proviso to subsection (5) shall be deemed to have been correctly given if it is served upon such person as may be prescribed:

Provided that, if no such person is prescribed in relation to the State, the notice shall be deemed to have been correctly given if it is served upon the Secretary of the Ministry by which the earnings of the responsible person are payable or are likely to become payable.

                   7    Effect of direction

  • Notwithstanding subsection (1) of section 51 of the Children’s Act [Chapter 5:06], a direction shall have precedence over any other order of court requiring payments to be made from the earnings due to the responsible person.

[Subsection amended by section 3 of Act 6 of 2005]

  • Where a direction has been made against an employer, no part of the earnings due to the responsible person by the employer shall be applied to the settlement of any debt, including set-off, or in accordance with any agreement, expressed or implied, or any arrangement or instruction of any kind whatsoever until all payments due in terms of the direction have been made:

Provided that nothing in this subsection shall be construed as relieving an employer from the obligation to withhold and make payments of employees’ tax in accordance with section 73 of the Income Tax Act [Chapter 23:06].

  • Subject to section eight, where a responsible person ceases to be entitled to receive any earnings from an employer against whom a direction has been made—
  • that direction shall cease to have effect as regards that employer; and
  • the responsible person shall make payments which were the subject of the direction and which are due to the dependant.

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