A critical analysis of the implementation of the Maintenance Act 99 of 1998 : difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act.

Abstract

Maintenance law in South Africa is based on the existence of the common law concept of the duty of support between dependant parties. As a result of this duty of support, parents are obliged to support their children whilst they are unable to support themselves. This is a right of all children. There has been a constant evolution of the scope of the common law concept of duty of support through both case law, and legislation, culminating in the Maintenance Act 99 of 1998. However, due to structural and procedural issues tied to the implementation of the Act, children's rights often go unprotected, particularly in cases where members of the public enter and engage in the maintenance system unrepresented. This dissertation aims to identify and address many of the problems encountered by maintenance court users on a daily basis. Specific reference is made to the experiences of the unrepresented public in the Eastern Cape Province, where research was conducted. The study begins with a historical overview of origins of maintenance law. This is followed by an overview of Act 23 of 1963 and the innovations which it brought about. Next, Act 99 of 1998 is reviewed, accompanied by an explanation of innovations and amendments, and criticisms. The research results are discussed on a comparative basis with already documented studies on the maintenance system as identified through an analysis of available literature on the subject. Further criticisms are identified through quantitative research, undertaken in the form of a survey conducted amongst Maintenance court users within 7 magistrate’s courts in the Eastern Cape Province. This dissertation continues to document suggested solutions to the problems highlighted, including corrections to the 1998 Act itself, as well as solutions and recommendations related to its implementation. The conclusion of this study is that one of the primary means of overcoming the short falls in the maintenance system is education of court users in their rights and responsibilities, as well as procedures to follow, with regards to the Maintenance Court.