The practical & systemic problems facing the maintenance system

1. The practical & systemic problems facing the maintenance system Presentation By The Legal Resources Centre 2012 Pro Bono .Org’s Maintenance Help Desk Project

2. CONTENTS OF PRESENTATION • Introduction • The reasons espoused for the enactment of the 1998 Maintenance Act • Changes that the 1998 Act hoped to bring to the Maintenance System • The practical problems facing the maintenance system • The systemic problems facing the maintenance system • Way forward • Conclusion

3. INTRODUCTION • South Africa’s transition to a democracy heralded many changes. One of these changes was the identification of women and children as being vulnerable groups in society. • The rights of these vulnerable groups became a priority and government policy dictated that they be foregrounded. • The enactment of the Constitution Act 108 of 1996 further entrenched the rights of children in s28: “The Best interests of the child”.

4. The reasons espoused for the enactment of the 1998 Maintenance Act • 1998 Act viewed as a reform process within ambit of maintenance. • Act viewed as being a temporary measure pending recommendations by SA Law Reform Commission. • Act viewed as being a catalyst to herald a new phase in maintenance law characterised by a fair and sensitive approach. • 14 years later?... Still experiencing huge practical and systemic challenges in the maintenance system of South Africa. • Leads one to question whether the preamble of the 1998 Act wherein it is espoused that the Act hopes to emphasize the importance of a sensitive and fair approach to the determination • and recovery of maintenance has been achieved.

5. Changes that the 1998 Act hoped to bring to the maintenance system • The 1998 Act made provision for new positions: maintenance investigators and legally qualified maintenance officers. • Creation of core principles introduced when dealing with the support of children by their parents leading to guidelines being available to assist court officials when making a maintenance order. • Extension of courts discretion when deciding upon an appropriate order. • Creating uniformity in the various court processes involved in a maintenance application. • Ensuring greater accessibility for the public.

6. The practical problems facing the maintenance System • When one examines the maintenance system one notices both practical and systemic problems. • Zooming into the “practical” problems one notices that the maintenance system has numerous steps attached to it and thus it is resource intensive. This poses a challenge, as the courts are lacking in both human capacity, as well as in material resources. • The practical problems thus centres around non-functioning (not even “semi-functioning”) of internal mechanisms in government departments, missing court files, non-execution of court orders.

7. Practical problems continued… • A lack of staff further enhances the practical problems, and ultimately leads to severe backlog in cases being experienced. • Absence of crucial role-players in the maintenance process at certain courts e.g. maintenance investigators. • Ad-hoc approach at courts. • Excessive case loads. • Lack of information at courts and lack of proper signage.

8. Practical Problems continued… • The sub-optimal functioning of the cash-hall- the new system implemented restricts what the cash-hall attendants can do e.g. they cannot check why money hasn’t been paid. They therefore refer complainants back to the maintenance officers and this prolongs the process unduly • A lack of co-operation between various courts, e.g. when courts send returns of services late.

9. The systemic problems facing the maintenance system • When one turns to the systemic problems facing the maintenance system one has to examine whether problems exist which are inherent in the overall system. • Unfortunately the maintenance system is plagued by numerous systemic problems. Some of these include: infrastructural backlogs, the various practices employed by officials during the maintenance system etc. • All of these severely affect the entire system, and is detrimental to the proper functioning of this crucial component of our law. • When one examines the systemic problems facing the maintenance system it becomes apparent that in most instances a cycle of poverty is already in existence. This is further exacerbated by systemic issues such as protracted delays, low maintenance awards all of which discourage people from utilizing the maintenance system.

10. Systemic problems continued… • A lack of adequate training of court officials on the Maintenance Act and the practical implementation thereof is a factor that severely affects the overall functioning of the maintenance system. • It further leads to the perception that maintenance is quasi-judicial, and as such not “as important” as other aspects of law. This in turn leads to certain magistrates refusing to preside over certain cases, or the situation whereby maintenance matters are pushed to the end of a court roll.

11. Systemic problems continued… • Differences in the way that courts function leads to an ad-hoc approach being utilised and this results in a lack of uniformity in the services being offered. An example of this is that at some courts members of the public have to write their names in a book and the court operates on a first come first serve basis while at other courts clerks count a certain number of people that they will serve on a particular day. • A limited knowledge by both complainants and respondents on how to navigate through the maintenance system compounds the problems, as already under-staffed courts have to expend more resources to explain processes.

12. Systemic problems continued… • This is aggravated when officials themselves are not fully aware of how the maintenance system works due to a lack of both theoretical training on the Maintenance Act, as well as a lack of practical training on the implementation of the Act. • A lack of human resources leads to officials having to do more than one job, e.g. maintenance officers who in terms of the Act have to only concentrate on the maintenance enquiry often have to help with first applications and the filling out of forms. • In addition, there is a difference in the resources at various courts…e.g. some courts have maintenance investigators and dedicated magistrates while other courts do not. • A lack of material resources also further entrench the systemic problems already inherent in the maintenance system.

13. Problems inter-linked • When researching both the practical and systemic problems inherent in the maintenance system one finds that these two are inter-linked. • In essence they feed off each other. The systemic problems thus create fertile ground for practical problems to be experienced at an alarming rate, which in turn further entrenches the systemic problems that have already invaded the existing maintenance system.

14. Way Forward… • The question thus emerges: “how do we tackle this?” • Unfortunately there is no easy answer, as the maintenance system is fraught with complications. • A possible solution is to have multi-pronged and inter-sectoral approach whereby all relevant stakeholders are identified and work together to improve the current system. • It has been noted that the South African Law Reform Commission has been tasked with looking into maintenance and implementing possible improvements.

15. Way Forward continued… • In addition, initiatives like the Pro Bono Help Desk needs to be utilized so as to bring much-needed services to our courts. • The courts themselves also have to be frank about the challenges experienced so that an accurate picture can be painted. For it is only once we have an accurate picture can we begin to address the numerous challenges facing maintenance in our country. • Gatherings like the one held today is also effective as it increases awareness, and provides avenues for sharing ideas and formulating possible solutions. • Any suggestions?

16. Conclusion • Numerous practical and systemic problems identified. • Possible solutions needs to be discussed. • Also need to assess how the current act can be improved to best suit the needs of the people needing to access the maintenance sector.

17. THANK YOU!