Single mothers often face the daunting task of claiming arrear maintenance from the fathers of their children. These fathers frequently use various tactics to delay or avoid maintenance court proceedings. Although fathers sometimes face similar challenges, this struggle predominantly affects single mothers striving to provide for their children.
This battle is intensified by a dysfunctional system where courts are overcrowded and maintenance officers are overwhelmed by the volume of claimants. The legislature, in the preamble to the Maintenance Act, acknowledged that “the recovery of maintenance in South Africa possibly falls short of the Republic’s international obligations…”
Enforcing a Maintenance Order
According to the Maintenance Act, if a maintenance debtor (the person ordered to pay maintenance) fails to make a payment as specified in the maintenance order, the order can be enforced through:
Execution against the debtor's property,
Attaching the debtor’s salary or wages, or
Attaching any debt owed to the debtor.
Additionally, the debtor may be required to pay interest on the arrear amount and cover the costs associated with the attachment of the debt.
Can a Maintenance Debtor’s Pension Interest Be Attached?
Yes, it can. The Maintenance Act allows for the attachment or execution of any pension or annuity under a warrant of execution or an order from the maintenance court to satisfy a maintenance order. The Pension Fund Act supports this by stipulating that maintenance order deductions take precedence over court-ordered patrimonial claims, such as those arising from divorce proceedings.
Claiming Against a Maintenance Debtor’s Pension for Maintenance
Not only can arrear maintenance be claimed, but any court that issues a maintenance order can, upon application, also direct a pension fund administrator to make periodic payments to the claimant from the funds owed to the maintenance debtor. This ensures ongoing maintenance support directly from the debtor’s pension. The court must however take into consideration all necessary evidence and be satisfied that it is not impractical in the circumstances of the case.
What If the Maintenance Debtor Threatens to Resign and Withdraw the Pension?
The Maintenance Act, which partially codifies parents' obligations to maintain their children, should not be interpreted in a way that diminishes these obligations. In the case of Mngadi v Beacon Sweets & Chocolate Provident Fund, the court ruled that the legislature did not intend to limit maintenance claimants to the remedies specified in the Act.
The court likened minor children to creditors and affirmed that the law has historically protected creditors' rights from being thwarted by debtors' actions by not backing away in interdicting debtors from squandering their money. Thus, even if the Maintenance Act does not explicitly provide for it, the court interpreted the provisions of the Maintenance and Pension Fund Acts to authorize an order preventing a pension fund administrator from disbursing the full benefit of the debtor’s pension interest. Instead, the pension fund was instructed to retain the withdrawal benefit to ensure proper provision for the children’s support and maintenance. The court further mandated the pension fund to pay a monthly amount per child from the withdrawal benefit as long as the children required support.
Tax Liability
According to the Income Tax Act, any maintenance amount received through a deduction from the maintenance debtor’s pension interest is considered income in the hands of the debtor. Consequently, the maintenance debtor is responsible for paying income tax on the deducted amount.
Article by Andries Stander
Stander Attorneys
DISCLAIMER
The information contained herein should not be used or relied upon as legal advice. No liability is accepted for any errors or omissions, nor for any loss or damages arising from reliance upon any information herein. Contact your legal representative or adviser for specific and detailed legal advice applicable to your factual matrix.
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