"My ex is missing, how do I find him so he can pay his maintenance?"

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Photo by yousef alfuhigi on Unsplash
Photo by yousef alfuhigi on Unsplash

It's an unfortunate fact that in South Africa a large proportion of mothers are raising their kids alone. The reasons are varied, but the outcome is often the same: not enough money to manage alone, and countless trips to the maintenance courts.  

This mom wrote to us asking how to find her missing ex. It would appear that he has deliberately disappeared to avoid his responsibilities towards their child.

"I am a single mother, I have a problem with my ex, who is the father of my son. I last received maintenance from him in March 2020, and when I called his boss to ask why my maintenance is late she told me he was paid off.

His phone number has changed and he has moved, when I asked for his new details she would not give them to me.

Almost a year later he has not contacted me. I went back to court and the courts set a date for me, but when I went to court he was still not found.

Must read: Maintenance defaulters can now be traced via their phones, and blacklisted, says DOJ 

I was told I must find him and when I do I must bring his new details to court, and they will set me another court date.

What steps can I take, as the law is not on my side? I can't afford a lawyer and I'm really struggling and now I have an extra stress to try locate this man.

He has a court order to pay me maintenance, plus he was still back paying me for the last time he decided not to pay me.

This is an ongoing thing with him and he finds every excuse not to pay me, and ya Corona is just another excuse.

What the court should do

Parent24 spoke to Cape Town attorney Simon Dippenaar, of Simon Dippenaar & Associates, to find out what the law says about tracking down maintenance defaulters. 

"Just like any other matter where one of the parties cannot be found, a tracing agent or private investigator can be appointed to try and locate the missing ex," he told us.

Where maintenance is involved, without finding the father or ex husband, there can be no claim for maintenance.

"If the tracing agent find the husband, a writ can be issued against his movables or bank statement and the arrears maintenance can be claimed back from him (provided there is an order)," he adds. 

If one cannot find the missing person despite all possible efforts, a claim can be made against the child’s grandparents (both paternal and maternal).

"The maintenance court will only ever allow such a claim if all other routes have been exhausted," Dippenaar says.

"The person claiming, the mother for example, has to prove that neither one of the parents can support the child or that they cannot be located to claim maintenance," he clarifies. 

Lack of legal interest

It seems that in this case, the courts are unable to find the defaulting father, so we chatted to maintenance activist Felicity Guest to find out more details on the process.

Guest agreed that the courts have the authority to trace anybody.

"They can contact the Department of Labour, do an ITC search, contact the cell phone provider and they can subpoena his old company," she says.

She explains that in fact the court can subpoena anybody as a witness to provide the whereabouts of a person, that could include any family member. They can even subpoena his bank to see if he has money and freeze the money in his account and then attach it for maintenance. 

Any information that enables the court to serve documents if helpful, so for example if the searching parent has a work address, it will suffice if they don't have a home address.   

The courts are mandated to do everything possible to ensure that people come to court and pay maintenance. However, Guest says that often the investigator is unfortunately reluctant to trace people due to capacity and lack of interest.

Over stressed parents 

She adds that there is a section of the law that states that if there is a change in work or home address the maintenance paying parent is to give notice to the court within seven days - failing to do so carries a fine and or prison, but they never enforce this.

When this person eventually appears in maintenance court he is rarely even reprimanded.

"The burden is placed on the already over stressed and burdened parent to trace the person, as you see in the readers letter, and many pay a private investigator to trace the defaulter," she says. 

"We have a very progressive Constitution and Maintenance Act yet the reality is that it is poorly interpreted, implemented and enforced. There has got to be political will to address the systemic apathy towards enforcement," Guest adds. 

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