Mending maintnenance

2013-05-07 00:00

ONE woman attorney is gearing up to challenge the local maintenance court system by examining its flaws and educating women on how to use the system to their advantage.

Tammy Coutts, a former acting magistrate and practising family law attorney, is doing her Master’s thesis on the maintenance courts.

Her experience as an acting magistrate in the Eastern Cape has made her determined to find a way to help women cope with the poor implementation of the existing laws that make obtaining maintenance almost impossible.

For many women, the maintenance court is a frustrating place to go when they need to get much-needed financial support from an ex-partner or -spouse. The process is long and user-unfriendly. Those who have staying power may eventually get a court order in their favour, but the road to this destination is filled with endless administrative and legal potholes.

Coutts has examined the legal framework and says that the administration of the law is the biggest hurdle to achieving change. “There is not much fundamentally wrong with the law itself, but the way the system is constructed and the poor implementation of the law itself means there are endless delays and many untrained and unqualified people in positions throughout the system who really don’t know what they are doing, [while] some of them do care about what they are doing.”

Coutts says that, as a result, many single parents struggle to get a cent out of their partners to pay for school fees or just put food on the table. “In the rural areas where I have conducted my research, the women walk for hours to get to the magistrate’s court.

“In winter it is freezing, and there is no inside waiting room in many of the courts where I conducted my research. They are told to wait outside the court until their case is called. Some of them have young babies with them. There are insufficient ablution facilities and places to change nappies.

“They are scared to leave the queue in case their name is called, so many women sit there all day, hungry and too afraid to use the toilet. Often they are told at 4 pm that the case roll for the day is closed and they must return the next day.

“While acting as a civil magistrate in the Eastern Cape, I personally experienced the inefficiencies in the maintenance system. I had no working plug in my office and therefore could not use a computer without running an extension cord through to the adjoining court room. My superior and I volunteered to assist with the maintenance court roll as there was always an excessive case load in that court.

“Our offer was never taken up because even though there was an open court, there was no stenographer available to record the details. The maintenance courts are hugely underresourced both in the area of staff and infrastructure.”

However, there were some glimmers of hope. “It is ironic that sometimes things work well in the smallest magistrate’s courts out in the deepest rural areas despite a chronic lack of resources, yet the system in a major centre like Pietermaritzburg, which should have more resources, is fraught with inefficiencies.

“In major centres, an education campaign has been launched and posters and pamphlets have been provided, setting out one’s maintenance-related rights and the procedure to be followed when enforcing same. Sadly, however, so many of the people relying on the maintenance system are barely literate and do not understand the legal language and process description. These people need someone to spend time telling them what their rights are and what the process involves.”

Coutts said she has often observed that court officials were rude and abrupt with people, and there was no privacy in the court offices where the intimate details of your finances were picked over by a stranger.

“It is very embarrassing for a complete stranger to question the spending of your income; for instance questioning a smoking habit when you cannot feed your child. This is humiliating, especially when the rest of the people in the queue can hear what is being said.”

Coutts says that it is common for the maintenance officer to place undue pressure on both parties to settle the matter so that it does not clog up the court roll.

“Women come to the maintenance court, usually taking unpaid leave for the day, and then find that they don’t have the necessary papers to lodge a case. They have to return another day with the correct information, costing them an additional day’s income.”

It is evident from other research available that there appears to be a pervasive feeling that magistrates, prosecutors and even attorneys who deal with maintenance cases would much rather be dealing with criminal or civil work.

“The maintenance officer is tasked with preparing the case before it comes to court, yet these cases are often so badly prepared that there are endless delays. The maintenance investigator is supposed to investigate the financial circumstances of the parties if necessary, but they, like so many other staff dealing with maintenance matters, are often not trained and are frequently unqualified, and investigations are often incomplete or simply not done.

“As an attorney, you often see women who come to you in desperation, wanting to take their partners to the maintenance court, and you know they really don’t have the money to pay your legal fees. But they have tried the maintenance court alone and have become so frustrated with the system that they are prepared to pay off the legal fees for years just to get some results.

“I believe that the only way complainants are going to be able to make the system work for them is to educate themselves about their rights and the maintenance process. As a result of the lack of resources and government funding, it is not likely that the system is going to improve dramatically any time soon. If parties within the process were armed with information, they would be more assertive about what to expect from the process.”

Coutts says that the issue of child maintenance is seen as a “social issue” by some countries, which believe it should be removed from judicial jurisdiction entirely. This approach favours the view that maintenance should fall into a social grant category and should be covered by the state.

Other First World countries have discussed the implementation of a “dad tax”, with tax being deducted generally. This is seen to be a way of forcing men to pay for their children by way of taxation.

Locally, Coutts has been in touch with a Port Elizabeth couple who are working on an initiative to black-list maintenance defaulters, to the extent that the defaulters cannot access certain public privileges, including overseas travel, if their name is on the list. This would work on the name-and- shame principle and defaulters would be urged to pay up to have their names removed from the list.

Coutts believes that the public needs to receive access to education concerning the Maintenance Act and also coaching on how to deal with the maintenance court. She believes that NGOs and other bodies could play a bigger role in helping women access these facilities.

Maintenance court officials need to be trained and motivated to understand how important their job is. In a recent case, the Constitutional Court emphasised the need for the state to ensure the smooth running of maintenance courts to prevent the violation of children’s rights, as stated in Section 28(2) of the Constitution, and to promote gender equality.

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