Written By Anna-Mi Nel
30 January 2024

Maintenance Law and The Correct Legal Procedure to Follow in South Africa

The South African Constitution stipulates that every child has the right to basic education, shelter, nutrition, health care, and necessities for their daily social growth. In a perfect world, each caregiver would be able to provide a child with everything they need to fulfil their basic rights; however, the harsh reality is that caregivers often don’t always have the financial capacity to sustain a child and ensure a healthy, stable, and safe environment. The Maintenance Act, 99 of 1998 (hereinafter referred to as the “Maintenance Act”) breathes life into the ideals set in our Constitution by enabling caregivers to apply for financial support from a child’s biological mother or father, which assists caregivers with securing the basic rights every child so desperately needs.

Below, we discuss the practicalities one should take into consideration when applying for child maintenance, as well as the correct legal procedure and the general booby traps one should look out for.

Which Government Form Should be Provided to the Maintenance Court?

Firstly, Section 6(1)(a) of the Maintenance Act requires that an Application for Maintenance Order form (Form J101 E) be completed when applying for a new maintenance application or when applying for an increase in child maintenance. This form can be found either at your nearest magistrate’s court or online by searching for the official title, “Application for Maintenance Order: Complaint in terms of Section 6(1)(a) of the Maintenance Act, 1998 (Act No. 99 of 1998)”. 

What Additional Information Should be Provided to the Maintenance Court?

In addition to the form mentioned above, the applicant (complainant) must also submit the required financial documentation that specifies the applicant’s financial status and the needs of the relevant child or children for whom maintenance is being sought. The submission of these financial documents serves to place the maintenance officer in a position to assist the applicant by determining the financial needs of the child and the basic necessities that should be catered for.

The Application for Maintenance Order form (Form J101 E) should, therefore, always be accompanied by the following financial documents:

  • An income and expenses sheet: This will assist the maintenance officer in understanding your monthly budget and why an application is necessary.
  • Proof of the applicant’s income and expenses: The applicant should provide the court with six (6) months’ salary advice, six (6) month’s bank statements, and proof of expenses incurred as stipulated on the Application for Maintenance Order form (Form J101 E).
  • The child’s or children’s school expenses: It is viable to support an application for maintenance or an application for an increase in maintenance with the minor child’s school expenses and the enrolment of the school, as this emphasises the child’s need for basic education.
  • The child’s or children’s medical expenses: Imperatively, a child’s medical care must be prioritised. It is, therefore, of significant importance that an applicant submit any proof of medical expenses incurred to be tallied with the total of the child’s expenses.
  • Any previous maintenance orders: If a previous maintenance order was made an order of court, the order will suffice as prima facieproof of the respondent’s legal duty to pay maintenance and state the quantified amount.

It is of vital importance that an applicant organises their application once the Application for Maintenance Order form (Form J101 E) has been completed and all other supporting financial documentation has been obtained by numbering the additional documents and placing them in chronological order for clarity.

What happens if I submit incorrect or incomplete information when applying for maintenance?

The onus to submit all completed forms and required documentation lies with the applicant, as all maintenance courts follow the underlying evidence law principle that directs the applicant to support all allegations with the necessary supporting proof of expenses.

Ensuring that your Application for Maintenance Order form (Form J101 E) is fully and correctly completed and that you have provided all the necessary supporting documents is of vital importance. If the information stated on your Application for Maintenance Order form (Form J101 E) is incorrect, the matter may be delayed or classified as a defective application due to these inconsistencies. Additionally, if an applicant fails to submit all the necessary documents to support and prove their financial expenses, the applicant’s matter may be prejudiced, and it may be deemed that the applicant is inflating their expenses by not providing adequate proof thereof.

Why do I need to submit so many documents when applying for maintenance?

If the application is not submitted correctly to the maintenance officer with all relevant supporting documentation, the maintenance officer cannot properly execute their duty in terms of Section 7 of the Maintenance Act. This section of the Maintenance Act dictates that the maintenance officer shall investigate the complaint submitted by the applicant and obtain information from the relevant parties involved, including all the necessary financial information, financial statements, proof of identification, and information surrounding the whereabouts of all relevant parties. If the applicant’s application lacks or completely omits the necessary information, the maintenance officer cannot obtain all the relevant information required for the proper and successful finalisation of the application.

Must I be present at the maintenance court?

Yes. On the date that the applicant personally submits the application to the maintenance officer, the maintenance officer will provide the applicant with a date on which both the respondent and the applicant need to be present before the maintenance officer.

What legal procedure is followed when applying for child maintenance?

Firstly, the maintenance officer will have an informal inquiry with both parties on their first appearance date. If the applicant does not appear on the date when the informal inquiry is being held, the applicant’s file may be closed due to non-appearance. During the informal inquiry, the maintenance officer’s objective is to see whether the parties can mediate a maintenance settlement between the parties that is fair, reasonable, and in the minor child’s best interest.

What happens if caregivers disagree on a maintenance settlement?

If the initial informal inquiry is unsuccessful and caregivers fail to agree on a maintenance settlement, the maintenance officer will refer the matter to a Section 10 inquiry under the Maintenance Act. During this second inquiry, both parties’ attendance is vital, as each party’s income, expenses, and supporting documentation are scrutinised. After scrutinising the facts, the court will make an order based on the evidence provided by both parties. Should either of the parties, especially the applicant, not be present during the Section 10 inquiry, the court cannot proceed with the inquiry, and the application will be dismissed.

Do I have to be legally represented when I apply for child maintenance?

The Maintenance Act envisages a fair and equitable maintenance system. An applicant is, therefore, permitted to approach a competent maintenance court without a legal representative’s assistance to reduce or eliminate unnecessary legal costs. However, it is advised that a party, irrespective of whether it is a person applying for child maintenance, the increase thereof, or whether it be the respondent, properly consult with a legal representative if the person does not bear proper knowledge of his or her rights in terms of the Maintenance Act.

Burger Huyser Attormeys’ child maintenance lawyers and legal specialists have experience in various matters, families, cultures, backgrounds, and with children of all ages. Our attorneys are experts in child maintenance matters, including the legalities, procedures, requirements, and complexities involved therein. Contact Burger Huyser Attorneys family law attorneys to answer all your questions surrounding maintenance today!

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE