The Frustrations of Interim Orders

In my very short-lived but extensive experience of the Maintenance Courts, Gauteng, I have sadly become disappointed with what has recently transpired. Magistrates and Maintenance Officers from certain jurisdictions have taken an antagonistic approach towards "Interim Orders" and "Provisional Orders" for maintenance of a child pending finalisaton of those proceedings.

This problem arose as a result of the Pents v Ilsley judgment out of the South Gauteng High Court where the Randburg Maintenance Court (and thus any other court following the same procedure) was penalised for issuing Subpoenas to Respondents for their "First Appearance" at court. This "First Appearance" is an informal inquiry before a Maintenance Officer in terms of Section 6 of the Maintenance Act. In terms of the Regulations to the Act, this process is indeed the incorrect procedure. The nature of a Subpoena in terms of the Act is for the the purposes of calling upon the Respondent to attend a Formal Inquiry (i.e. a Trial in terms of Section 10 of the Act).

The attitude of Maintenance personnel from Johannesburg, Randburg, Germiston, Roodepoort, and even Krugersdrop Maintenance Court is a rather conservative one with regards to the issuing of "Interim Orders" even if they are by consent.

It has become so unmanageable and unpredictable that I have had to resort to taking measures to ensure that I am allocated to "very specific" Magistrates in each jurisdiction in any of my matters in terms of which an Interim Order has been requested or where one has been agreed to by both parties.

Whilst I may agree that this approach may be irregular and even incorrect, I am of the firm belief that the best interests of the child are overruling here. Those interests demand that interim relief be ordered (and should especially be encouraged where the parties themselves have come to some sort of agreement with regard to the interim needs of the child(ren)). 

What's more is that the Maintenance Courts in those jurisdictions have become excessively clogged to such an extent that matters are often only finalised formally after months and months of waiting and attending various interlocutory proceedings in between. During this time period, if no interim order is made, then the Applicant (usually the mother but will always be the primary-resident parent) will need to rely on the good will and good faith of the other party to "volunteer" to pay for certain expenses. The child him/herself has no say in this and cannot influence the other party.

I would like to one day elevate my concerns to the appropriate bodies when I am able to gather sufficient ammunition to make representations with the likely effect that an amendment of the Regulations (possibly even the Act itself) might take place where provision for Interim Orders and the enforcement thereof in the event of non-compliance will be catered for.

Section 26 of the Act (which deals with situations where there is a dispute about paternity of the child) makes provision for a kind of interim order and therefore it certainly cannot be deemed as a foreign concept! In fact, the Reciprocal Enforcement of Maintenance Orders Act itself makes provision for the provisional enforcement of a maintenance order awaiting service of the calling Directive on the other party and subsequent finalisation of those proceedings.

My stance on this concept is quite simple: it is in the best interests of the children that the Courts (as upper guardians of all minor children) ensure that the medical, educational, religious, social, and general wellbeing and needs of the children are looked after, including in the interim. What has resulted in place of a previously efficient system is the lack of support and responsibility by one parent to the detriment of the child (and the primary-resident parent). The primary-resident parent and thus the child in need of maintenance is suffering severe prejudice, largely caused mainly by the backlog of the courts and which that parent and child then had to suffer without recourse to securing support from the other parent.

If any one of you readers are of the same opinion, or wish to comment on this albeit short article, please feel free to do so or drop me an email so that we can rally enough support to address the relevant authorities on this aspect.


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