What Can I Do If The Biological Parent Does Not Pay Child Support In Terms Of An Existing Maintenance Order?

When a biological parent fails to pay child support under an existing maintenance order, the maintenance creditor can pursue enforcement remedies under the Maintenance Act 99 of 1998 — a warrant of execution against movable property, an emoluments attachment order (garnishee) against salary, attachment of a bank account, listing at a credit bureau under section 38A, and — where the default is wilful — a criminal charge under section 31 carrying up to one year’s imprisonment. The section 38A listing is often the fastest practical lever because it hits the defaulter’s ability to obtain new credit and can be activated without first locating physical assets. Where the defaulter cannot be traced, the creditor returns to the Maintenance Court for a maintenance investigator referral.

The Legal Framework: The Maintenance Act 99 of 1998

The Maintenance Act 99 of 1998 governs every maintenance order and its enforcement in South Africa. The Act draws a clear line between the maintenance creditor — the person to whom maintenance is owed, typically the custodial parent or caregiver — and the maintenance debtor — the person who owes it. Each order is issued by the Maintenance Court in the district where the child resides, or where the parties consent to jurisdiction. Once granted, the order remains in force until varied or terminated; arrears continue to accrue on top of the ongoing obligation.

The same Act applies uniformly across all nine provinces. The remedy framework is national, even though the maintenance creditor files enforcement applications at the Maintenance Court that issued the original order.

Burger Huyser Attorneys’ Family Law department handles maintenance enforcement across Gauteng through its Linden head office, Centurion, Bedfordview, and other regional branches. Anna-Mi Nel, Director and Head of Family Law, oversees the work.

The Speed-Levers: The Fastest Practical Remedies

Two remedies sit at the top of the practical hierarchy because they can be activated without first locating the defaulter’s physical assets:

• Section 38A credit bureau listing. The Maintenance Court can order the defaulter’s name and ID number listed on the credit bureau and the Department of Justice’s Risk Alert Monitoring Listing. The listing follows the defaulter through every credit transaction — new loans, hire-purchase agreements, bond applications — and is often the most effective single step. No prior proof of earnings or specific asset is needed.
• Maintenance investigator referral. The Maintenance Court can refer the file to a maintenance investigator employed by the Department of Justice and Constitutional Development, who traces the defaulter’s employment, address, and assets free of charge and feeds every subsequent property-based application.

The Risk Alert Monitoring Listing runs alongside the credit bureau listing and flags the defaulter at banks and vehicle registration, compounding the pressure.

Property-Based Enforcement: Warrant of Execution, Garnishee, and Bank Attachment

Once the defaulter’s position is known, three property-based remedies can be applied for at the same Maintenance Court:

• Warrant of execution. Applied for against the defaulter’s movable property — furniture, vehicles registered in the defaulter’s name, business equipment. The sheriff attaches and sells the property, with proceeds paid to the maintenance creditor up to the arrears.
• Emoluments attachment order (garnishee order). An order directing the defaulter’s employer to deduct maintenance directly from salary or wages and pay it over via the court. The employer is obliged to comply, and the deduction runs against future pay cycles until arrears and the ongoing obligation are cleared.
• Attachment of bank account. An order attaching funds held in the defaulter’s bank account, with the bank paying the funds over to the court.

Where the defaulter is self-employed or paid in cash, the garnishee route is harder to enforce and a warrant of execution on business assets or a bank attachment are the practical alternatives. In long-running defaults, the maintenance investigator is often the only realistic way to identify the defaulter’s actual bank account or employer.

Burger Huyser Attorneys’ Family Law team in Roodepoort, under Director Nadine Roesch-Prinsloo, handles warrants of execution and emoluments attachment orders.

The Criminal Route: Section 31 of the Maintenance Act

Section 31 of the Maintenance Act makes it a criminal offence to fail to pay maintenance in accordance with a maintenance order where the defaulter is wilfully in default. On summary conviction, the maximum sentence is up to one year’s imprisonment, or a fine, or both.

The criminal complaint is laid at the South African Police Service (SAPS); the docket is referred to the National Prosecuting Authority (NPA). A prior maintenance enquiry under section 5 of the Act is typically required first, allowing the defaulter to be called to explain the financial position and failure to pay. A criminal charge is usually reserved for persistent defaulters with proven means — the willfulness threshold is harder to prove than a civil step.

Burger Huyser Attorneys’ Family Law team supports section 31 proceedings by preparing the enquiry record and representing the creditor.

Going Back to the Maintenance Court: Variation, Enforcement Hearings, and Contempt

The Maintenance Court is not a once-off destination. Three further applications sit alongside the enforcement remedies:

• Variation under section 6. Where the order was issued some time ago and needs have changed, the maintenance creditor can apply for a variation — for example, an increase to cover new school fees, medical expenses, or nursery costs. Arrears under the existing order remain enforceable unless the court specifically orders otherwise on the variation.
• Contempt-of-court enquiry. The maintenance creditor can apply where the defaulter is summoned and fails to appear or to show cause for the non-payment.
• Warrant for the defaulter’s arrest. The Maintenance Court can issue a warrant where the defaulter fails to attend enquiries under the Act. This is distinct from the section 31 route and is a quicker civil escalation because it does not require an NPA prosecution decision.

Variation applications are handled by Burger Huyser Attorneys’ Family Law team in Pretoria (under Director Herman Bonnet) and across the other Gauteng branches.

What to Bring to the Maintenance Court

An enforcement application moves faster when the maintenance creditor arrives with a complete file. The clerk will typically expect the following documents at the first follow-up date:

1. Certified copy of the existing maintenance order.
2. Proof of the default — a payment schedule showing missed payments, or a maintenance statement from the court.
3. ID document of the maintenance creditor.
4. Birth certificate of the child.
5. Prior correspondence with the maintenance investigator or the defaulter’s employer.
6. For a variation application, supporting documentation of changed needs (school fees, nursery costs, medical expenses, or a change in primary residence).

Enforcement Remedies at a Glance

Remedy	Speed	Threshold	Practical Effect
Section 38A credit bureau listing	Fastest (administrative)	Existing order + arrears	Hits defaulter’s ability to obtain credit
Maintenance investigator referral	Fast	Existing order + arrears	Traces employment and assets
Emoluments attachment order (garnishee)	Moderate	Existing order + arrears	Employer deducts from salary
Warrant of execution	Moderate	Existing order + arrears	Sheriff attaches and sells movable property
Bank account attachment	Moderate	Existing order + arrears	Funds paid over to court
Section 31 criminal charge	Slowest	Wilful default + prior enquiry	Possible imprisonment up to 1 year

Frequently Asked Questions

Do I need an attorney to enforce an existing maintenance order?

For the simplest administrative steps — such as requesting a section 38A credit bureau listing through the maintenance court clerk — you can file yourself. For garnishee orders, warrants of execution, and section 31 criminal charges, the procedural and evidential requirements are tighter, and most maintenance creditors use an attorney for the property-based remedies and the criminal route.

How long does enforcement typically take?

The section 38A credit bureau listing can be applied for at the next maintenance court date and is often reflected on the defaulter’s credit profile within weeks. Garnishee orders and warrants of execution typically take one to three months, depending on the sheriff’s workload and the defaulter’s employer cooperation. A section 31 criminal charge can take several months from laying the charge at SAPS to first court appearance.

Can a maintenance order be enforced in another country?

Maintenance orders are enforceable across the Southern African Development Community under the SADC Protocol on the Facilitation of Movement of Persons, and across certain other jurisdictions under the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. South Africa has ratified the Hague Convention, but the framework is still being phased in, so practical cross-border enforcement depends on the destination country.

What if the defaulting parent says they cannot afford to pay?

The Maintenance Court can hold a section 5 enquiry to assess the defaulter’s actual financial position. If the defaulter genuinely cannot pay, the court can vary the order downward, but arrears remain enforceable unless the court specifically says otherwise. A genuine inability to pay is not the same as a wilful refusal, and the criminal route under section 31 is harder to pursue in a genuine inability case.

Can I get a maintenance order if there is no existing order?

This article assumes an existing maintenance order. If there is none, the first step is to apply at the Maintenance Court in the district where the child lives, under section 10 of the Maintenance Act. Burger Huyser Attorneys handles maintenance applications across Gauteng through its Family Law practice.

Can the defaulting parent be blacklisted at the credit bureau?

Yes. Section 38A, introduced by the Maintenance Amendment Act 9 of 2015 and proclaimed in 2016, allows the Maintenance Court to order the defaulting parent’s name and ID number listed on the credit bureau and the Risk Alert Monitoring Listing. This is often the fastest practical lever because it hits the defaulter’s ability to obtain new credit.

If a biological parent is in default on an existing maintenance order and the administrative steps at the Maintenance Court are not working, Burger Huyser Attorneys’ Family Law team can take the enforcement steps on your behalf — warrant of execution, emoluments attachment order, variation application, and support for section 31 criminal proceedings. The firm handles maintenance work across its Gauteng branches (Linden 011 888 0246, Centurion 012 644 4990, Bedfordview 011 201 7190, Pretoria 012 471 5700) and quotes on a per-file basis after the initial assessment.