Justice delayed is justice denied. A more accurate description of this adage in today’s context is that justice “supply” is not meeting justice “demand”. The new amendments to the Maintenance Act, which came into effect on January 5 this year, allow for the Justice Department to trace maintenance defaulters through their cellphone service providers, and blacklisting them with credit bureaus is creating a further demand which the department can barely supply.
In order for this amendment to be implemented, the maintenance officer may apply to the maintenance court (via the maintenance court clerk) to issue a directive to the cellphone service provider to furnish all the contact information of the maintenance defaulter.
The information provided by the cellphone service provider in turn has a cost implication. This cost will be paid by either the Justice Department or the maintenance applicant. The challenge with the implementation of this is threefold:
(1) The Justice Department already has a thinly stretched budget and paying for this service may not be feasible.
(2) The applicants are approaching the court for financial assistance and paying this cost implication may not be feasible.
(3) The maintenance courts are heavily understaffed.
The solution to the first two scenarios, perhaps, is that legislation should have made provision for the cellphone service provider to deduct the cost implication from the actual maintenance defaulter.
This would have served as a further deterrent to others defaulting on their maintenance.
The solution to the third scenario is far more complex as it involves a change of government policy. Since October 2014, when minister of finance Nhlanhla Nene announced the two-year blanket government job freeze, the workload on government departments has increased due to legislation amendments such as these.
In the instance of Cape Town Maintenance Court, it provides services to applicants who not only live in the court’s jurisdiction but also those who work there.
Currently, there is only one maintenance officer shouldering the massive workload of what should be three maintenance officers.
Maintenance officers are people with a law degree who are employed to assist in determining the financial assistance required to maintain a child, which maintenance must be reasonable and affordable and in the child’s best interests.
The Justice Department has always had a high turnover of legally qualified staff, and not being able to fill these gaps as it arises will affect the maintenance courts negatively in that these courts will not be able to finalise maintenance matters within the promised target of 90 days after proper service upon the respondent or maintenance defaulter.
This in turn has a negative impact on our children, as they are the beneficiaries of these maintenance applications for financial assistance.
The challenge with the blacklisting of maintenance defaulters with credit bureaus so that they do not qualify for credit is that this might further hamper their ability to maintain their children, compounding the negative impact on our children.
The Children’s Act, in echoing the sentiments of the constitution, states: “In all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied”.
Government should lead by example in realising this constitutional principle and not just by paying lip service during campaigns such as 16 Days of Activism For No Violence against Women and Children.
Government needs to uplift the blanket government job freeze and provide sufficient budget to the Justice Department in order to ensure that the children’s best interests are upheld.
Joy Van der Heyde is an attorney practising at Schuld Inc specialising in family law and children’s rights and was previously employed as the senior legal administrative officer with the Department of Justice and Constitutional Development. She oversaw the implementation of legislation affecting the rights of families and children.
** The views expressed here are not necessarily those of Independent Newspapers.