SOME HURDLES IN THE IMPLEMENTATION OF THE MAINTENANCE ACT 99 OF 1998

Abstract

This note discusses some hurdles in the implementation of the Maintenance Act 99 of 1998 (hereinafter “the 1998 Act”) in the Pietermaritzburg maintenance court. I argue that the introduction of changes in the 1998 Act without adequate personnel and budget has had a deleterious effect. For instance, the shifting of the burden of proof of lack of means from the accused to the state and the requirement that the state should prove that the accused had the requisite mens rea, without the appointment of the required
maintenance investigators, means that there is no person to assist the complainant in the collection of relevant information for the successful prosecution of her case. With regard to the conversion of a maintenance trial into a maintenance inquiry for arrears, introduced by the current Act, some magistrates confuse it with the conversion of a criminal trial into an inquiry for lack of means thus making the process longer. These changes, which are arbitrarily divided into three categories, namely, procedural, personnel and administrative changes, will be highlighted and summarized in this note. The shift of the burden of proof of lack of means from the accused to the state and the conversion of a criminal trial into a maintenance inquiry for arrears maintenance fall under
substantive changes. The new position of the maintenance investigator and the maintenance officer are discussed under personnel changes. The discussion of administrative changes includes the maintenance forms, the enforcement of emolument attachments and warrants of execution. I conclude that these changes have prolonged and complicated the court process and continue to frustrate the enforcement machinery.