Maintenance for Children

By its very nature, the concept of maintenance should be quite easy to ascertain and acquire in law. A parent of a child is (especially, for the purposes of law, financially) duty-bound and legally bound to support his or her child, whether natural or adopted parent. In a similar fashion, the law has created a set of reciprocal obligations between parents and children: children are equally bound to support their parents as parents are to support their children.

In South Africa, especially because of, inter alia, the high birth rare, the law has been geared with a fool-proof Maintenance Act, Regulations, and Court. This is primarily because the Constitution of the Republic of South Africa ("the Constitution") is the highest law in the land and therefore equality before the law is an entrenched value in respect of all law created and regulating the country.

However, the Maintenance system, particularly in Gauteng, is a system which is now essentially defunct: it fails to achieve the exact object for which it was created and it therefore fails as a system of justice. In the case of Bannatyne v Bannatyne 2003 CC, the court commented on the deficiencies of the Maintenance Act and stated that "failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weakness of the system."

Having said this, there are two primary concerns which I begin to address in this entry:

1. Why does the maintenance system in Gauteng not serve its purpose?
2. What additional problems have arisen surround the concept of maintenance?

1. THE FAILURES OF MAINTENANCE:

Maintenance is an issue which should be addressed quickly, efficiently, and inexpensively. Why then does it take approximately one and half years for a maintenance matter to be heard in some courts? I have had two of my matters run like this where I have taken over from where my client had begun, obviously the client believed that having an attorney deal with it would make it run faster. In fact, the law is quite ingeniously non-discriminatory in that regard: the system of maintenance in South Africa often fails the very people in whose benefit the Act was created because of this very reason.

It would seem that the maintenance courts themselves are strictly duty-bound to view circumstances linearly and therefore often to not take into consideration some of the injustices of the system. For example, in one of my own matters, the father of the child for whose benefit the maintenance was being claimed had somehow managed to steal the court file. This brought on extended lengths of unnecessary delays in acquiring maintenance for my client.

In some maintenance courts, the staff themselves stifle the potentially strict-liability system of maintenance. The maintenance officers themselves are often too few or not skilled enough to handle either the capacity or load of maintenance enquiries (and thus the unnecessary delay) or are not trained to the extent acquired to give effect to the needs of the child or children when it comes to ascertaining the means and aptitude of both parents.

2. MAINTENANCE CLAIMS ON ESTATES:

Given the aforementioned status of the Constitution, one issue that has arise which requires more discussion is whether a child born out of wedlock between the mother and the (now deceased) father has a preferential or concurrent claim on the state of the deceased father.

When an estate is wound up by the executor, and the final liquidation & distribution account is drawn up, all assets and liabilities of the estate are considered. Liabilities can include mortgage bonds, other secured creditors' claims, unsecured debts, remuneration due to employees if applicable, maintenance claims, etc. According to the law, these claims against the estate must have a ranking so as to fairly apportion the estate. Secured and preferent creditors would have a claim on the estate which would be included in the liquidation and distribution account because of the security held against the deceased (and therefore his estate) which basically means that those claims or debts are considered first. Unsecured creditors would have the rank of a concurrent claim against the estate which means that the residue of the estate will be apportioned to these creditors after preferent and secured creditors’ claims are apportioned. Basically, if anything is left in the estate after these debts or claims are apportioned, then the concurrent credits & claimants would be apportioned according to the debt that is owed or the amount that is claimed.


Section 2(1)(b) of the Maintenance of Surviving Spouses Act states that the surviving spouse's claim for maintenance shares the same rank as that of any other creditor and also shares the same rank as that of a claim for maintenance of the deceased's child. Therefore, effectively, a claim for maintenance (both spousal and for the child) is a concurrent claim against the estate. It is not considered as preferent nor secured and thus the residue of the estate is what must be apportioned to the child or spouse for any claim of maintenance.

This Act, and specifically this section, has been judicially considered several times and has been confirmed every time. The rationale for this is quite clear: what would be the point being a secured creditor or a preferent claimant if you were not guaranteed to acquire your fair share of the estate? Preferent claimants include heirs and legatees. These include situations where a testator bequests a certain item or items to someone (which are legatees), where the testator leaves amounts of money or his/her estate to his/her heirs, or if the deceased died intestate (in other words without a will), then the heirs according to spes would inherit his/her estate. The court believes, and perhaps rightly so, that these heirs and legatees should have that piece of mind that their inheritance would be paid out or given to them without undue delay or cause.

However, all this case law, including the Act itself, is pre-Constitutional and therefore stands to be changed in light of Section 28 of the Constitution which demands the courts, as upper guardians of all minor children, to consider the best interests of the child with paramount importance when dealing with matters concerning the child. It is my belief, therefore, that Section 28 effectively demands our legal system to rank a claim for maintenance of a minor child as preferent and no longer as concurrent.

This has not yet been challegned. I do however believe that, especially in yet another matter of mine, this will be challenged for its unconstitutionality. I believe that the claim for maintenance should rank above concurrent claims but below secured creditors' claims. That way, the interests of the prepared and secured creditor (who had obviously done his homework prior to the deceased becoming indebted to him) will be protected in addition to the needs and best interests of the child.

A problem that often arises is when the estate itself is close on becoming insolvent because the deceased had incurred a substantial amount of debt and (incidentally) with a crafty bunch of creditors who, as mentioned above, did their homework. In this situation, the secured creditors would deplete the estate and therefore there it a likelihood that the child could be left destitute should the surviving spouse not have the capacity to look after the child on her own (especially given her claim is concurrent to the unsecured creditors). It would be just and constitutional in these circumstances that the basic needs of the child or children be catered for prior to distributing the assets of the estate to the secured creditors. The claim for maintenance in these circumstances cannot include those expenses which do not attribute to the basic needs of maintaining the child or children. For example, expenses such as lunxurious sporting or outing school activities and expensive tertiary education expenses would need to be excluded from the calculation of future maintenance that would be required by the surviving spouse to maintain the child or children. The Executor, in these circumstances, should ideally put the money into a trust for the sole benefit of the child or children and with one of the trustees being the mother. This would prevent any possible abuse that may arise as a result of a "desperate mother" and it would secure the interests of the future wellbeing of the child or children.

Although it is evident that these suggestions are far fetched and perhaps idealistic, they are achievable in the long run and I believe that it can, if administered correctly (and which procedures I will leave up to the experts) be correct for the benefit of all those concerned.