Maintenance Amendment Bill [B16-2014]: credit bureau / electronic service provider deliberations

Meeting report

Adv Theresa Ross, Principal State Law Advisor: Department of Justice and Constitutional Development, said the aim of the briefing is to go through the possible Committee amendments following discussion in previous meeting of 17 February 2015. She would proceed clause by clause, noting some of the clauses which had not been further amended.

Clause 1: Ratification of Maintenance Agreements
Adv Ross said that commentator Mr van Niekerk had raised a concern in his submission about the wording of section 6(1)(c) which reads: “or that would cause exist for the substitution or discharge of a verbal or written agreement in respect of maintenance obligations, which has not been made an order of court in terms of this Act or any other law”. The word “obligations” was not meant to be removed (as indicated by the strike through) in the tabled Amendment Bill. This was an oversight and will need to be amended. The purpose is to avoid any ambiguities, targeting cases where there is no existing maintenance order.

Clause 2: Electronic Service Providers’ Provision of Defendant’s Details
Adv Ross said there was a suggestion by the Western Cape Social Development Department that the words “have not borne fruits” should be substituted for the sake of clarity with: “failed to locate the whereabouts of the person”. This will be the intended amendment for section 7 of the Maintenance Act.

Adv Ross said further issue was who should bear the costs of obtaining the contact information from cellular service providers. The concerns raised by the Committee and submissions have been noted, but the Department does not have any amendments to propose as it is still trying to work out how to accommodate the various concerns.

The Chairperson said it was unfortunate that no proposed drafting have been produced, because this was one of the most contentious areas, as the Committee did not want the complainant to bear the costs. Its view was that the state should pay and try to recover the cost from the defendant once they are traced.

Mr B Bongo (ANC) said the purpose of the Bill is important and if the amendments are not effected, the purpose of the Bill will be significantly undermined. This will mean that the efforts of the Committee with the Bill are reduced to zero and the Committee will not be able to move if a progressive stance is not taken on the clause.

Dr M Motshekga (ANC) agreed, why should the Committee proceed with the Bill, if without the provision, the purpose of the Bill is defeated. The Committee should not wait for the Department and should have its legal staff draft a provision on behalf of the Committee. It makes no sense to place the burden on the very people that the Bill aims to protect.

Mr W Horn (DA) asked for the Department to justify why it has not accepted placing the initial burden on the state, which would be a cost to the fiscus. Without such a provision, it would delay maintenance proceedings. In principle he agrees with the suggestion that the state should bear the burden. However, the Committee should not in its haste neglect to cater for the fact some guardians will be willing to pay such costs to expedite the process.

Ms M Mothapo (ANC) said this cost has been a contentious issue and it would be futile to continue to process the Bill leaving it unattended. There are three organs of state and the legislature has an important role to play. Therefore, the Department ought to properly consider the wishes of the Committee. The main purpose of the Bill is to make the procedures accessible to the poor, especially rural women in the country. Therefore, she agreed with what had been said by her colleagues.

Mr M Maila (ANC) agreed with what had been said before and would like to take it further, because the electronic service providers have a social responsibility and should also bear the duty of recovering the cost from the up-until-then untraceable person - as they should not solely focus on the commercial aspect of their business.

Ms K Litchfield-Tshabalala (EFF) said it must not be forgotten that costs have to do with accessibility and it cannot be pretended that South Africa is not a country where the majority of people are poor. The state cannot be allowed to abscond from its responsibility to ensure that poor people have access to services.

Ms Sueann Isaacs, Parliamentary Legal Advisor, replied that the number of untraceable persons is unknown and therefore it is unknown whether it is a few or many people who will require the state to bear the cost. If an estimation of the amount of money (which may not be significant) could be obtained, then this would give the Committee more grounding to identify who can afford the cost better.

Dr Motshekga said he did not think the Committee should go that route, because it is a given that the overwhelming majority of people are poor and sourcing statistics would delay the processing of the Bill. His understanding was that the Bill had to be finalised by the end of May 2015. He felt there was enough data about the poverty levels in the country to safely ground the provision. He noted Mr Horn’s point that those who can afford should be not be prevented from paying the cost. Therefore, a means test could be used which is an established practice in the law.

Mr L Mpumlwana (ANC) said what is important is that people who can afford such costs will not normally be seeking maintenance. Further, when a crime is committed electronic service providers are required to divulge the information and why could this not be the case in this instance, which would avoid assessing whether a person can afford the costs or not.

The Chairperson said the overwhelming sentiment of the Committee is that the state should bear the costs of obtaining an untraceable defendant’s details from electronic service providers. With the added consideration that where claimants can afford the cost, they should be allowed to pay it. The manner in which the law is crafted should indicate that the state should bear the burden and recover the costs from the defendant.

Dr Motshekga said it should be accepted that this is a political issue which the Department cannot be expected to deal with, but the department representatives should convey the sentiment of the Committee and that if this sentiment is not complied with, the Committee will produce its own clause.

Adv Ross said the Department is not dismissing the concerns of the Committee or the submissions, but since the previous meeting the Department has undertaken to gather further information on the on the potential financial implications for the state. The Department is very alive to the wishes of the Committee and the type of provision it would be comfortable with. The Department has no intention of leaving the clause as is, there was just a need to determine the amount required to service the need, to motivate for the state to carry this cost. There is a similar provision in the Act concerning the state bearing the costs of a paternity test and this could be used as a model. The information from the regions would help the Department estimate a figure of the costs to the state. At the end of the day the Department knows it has to amend the provision in line with the sentiment of the Committee and submissions. On the role of electronic service providers, under the Harassment Act the amount payable for a similar service is R80. It was clear in the submission from Vodacom that it would want to be paid before the service is provided, which could be attributed to the rest of the service providers.

The Chairperson said the cost should not supersede the principle of creating a maintenance regime which makes it easy for women to access the service. Also the costs are recoverable, meaning that the state may very well not end up paying. Further, maintenance is a cost saving mechanism for the state, because once a child is catered for under maintenance, they do not qualify for social grants. Therefore, the state should not shoot itself in the foot and prevent a parent from taking full responsibility for their children, which could result in children being the responsibility of the state.

Dr Motshekga said the overemphasis on Vodacom is troubling, because state policies should not be dictated to by private entities. Further, why should the creation of a maintenance regime be guided by the Harassment Act? As there are clear objectives for the maintenance regime sought by the Committee, without which children will not be protected, the survival of children would be in question as would the development of children into productive adults. This brought him to the point that costs should not supersede principle, in this fundamental area, let alone have an Act (which is not explicitly mentioned) dictate the terms of another Act. There is funding channelled into the country through the Foundation for Human Rights, under the control of the Department to prioritise children and maintenance. This would extend to support for advice centres and paralegals, which could avoid the need for such service providers, as community based structures are best placed to bring people dodging the law before it. He was very uncomfortable with the sentiments of one service provider being given so much weight, enabling it to dictate to Parliament. Further, the Committee has a clear position: that women and children must not bear the cost, but rather the state should with the ability to recover expenses

Mr Bongo said the Committee did not want to be hard on the Department, but the purpose of the Bill must be given priority. This also verges on a constitutional issue, because accused persons are given funding to face the legal system and now the state must be able to fund persons in desperate need of maintenance. The Committee cannot legislate for a single service provider, which represents “monopoly white capital, which we are generally against” and stands to financially gain. If the purpose is deviated from, then he did not see the point of proceeding with the Bill. However, what Mr Horn has raised is also important, because people who can pay, should be allowed pay.

Ms Isaacs had technical comments on the wording of the section, because one of the principles of legal drafting is to make the wording as simple as possible. On clause 3(a), which reads “if a complaint is lodged with a maintenance officer and the maintenance officer, after all reasonable efforts to locate a person who may be made by a maintenance officer, pursuant to the complaint so lodged”; she suggested the end of the clause read “the efforts have failed”, because this is simpler. On clause 3(a)(2) and 3(b), reference is made to “prescribed manner” and in the “prescribed form”, which need not necessarily be mentioned in the clause as this will be dealt with in regulations.

Adv Ross said the Department noted the suggestions by Ms Isaacs and undertook to look into them to ensure there are no unforeseen consequences. Further, to report to the Committee on these consequences and other issues raised in the Committee.

Dr Motshekga said as much consensus should be reached in the meeting as possible, because if everything is referred back to the Department, then progress will not be made. The issue raised by Ms Isaacs is technical rather than a political issue. It is a general principle that legislation should be simple, so that ordinary people can read it. Therefore, going forward consensus should be sought in the meeting, lest another meeting be required to discuss terminology.

Mr Bongo said meetings should occur between the technical staff and the Department, so that the Committee can focus on the policy content of the Bill.

Clause 4: Interim Orders
Adv Ross noted that the Department removed reference to section 16(1)(b) because the purpose is for the court to be able to make an interim order where there is no other order in place. This therefore clarifies that this is not an interim order in respect of an existing order. There was an issue on whether the court should require prima facie evidence, to make an interim order where there is no order in place. She would like guidance on whether substituting the words “sufficient grounds” for “prima facie evidence” would be acceptable to the Committee.

Mr Bongo said this matter had been thoroughly debated in previous meetings and there had been a suggestion from the Department which had closed the debate. While the words, “sufficient grounds” may be appropriate, the Department would do well to bear in mind the abovementioned suggestion.

Ms Connie van Vuuren, DoJ State Law Advisor, said where an application is made for maintenance and paternity is in dispute, the court will hear evidence surrounding paternity. The defendant would then need to be present to have his side heard. The court can then on the grounds placed before it determine interim maintenance. Therefore the requirement should be “sufficient grounds”, rather than “prima facie evidence” to properly exercise its discretion.

Dr Motshekga said this is what had been agreed in the previous meeting.

The Chairperson said the proper wording of the clause should be ironed out with the technical staff, to ensure that what is being said is indeed contained in the provision.

Clause 5: Maintenance Court Jurisdiction
Adv Ross said the way the clause is currently couched, the jurisdiction of other courts capable of dealing with maintenance matter, is being taken away. The suggestion was that reference to an identified list of courts should be removed, and the phrase ‘any court with jurisdiction’ be inserted. Therefore, this provision will have to revert to the position as it is currently contained in the principal Act and this is what was done. There was another concern with clause 5 around the instances where there is no need to adduce evidence, because the parties have agreed on the amount payable. Therefore, the words “where applicable” have been inserted. A further concern was giving effect to a judgement which held that where a court seeks to impose an order on an employer, that such employer must be given an opportunity to be heard. However, the concern was that the clause should indicate that where the employer fails to attend court, an order may still be made, because non-appearance could lead to delays for the beneficiary.

The Chairperson asked what the purpose of the jurisdiction amendment was, specifically whether it was to give lower court’s jurisdiction where there was none previously.

Adv Ross said section 16 deals with ancillary orders. The subsection reads as follows “ any court that has at any time, whether before or after the commencement of this Act made a maintenance order under subsection (1) or (b) (i), or that makes such a maintenance order, or that convicts any person under section 31(1), shall subject to paragraph (b)(i) make an order directing any administrator who is obliged under any contract to pay any sums of money… to the person against whom the order has been made”. The purpose is therefore to make any court which is able to make an order contemplated in the section be allowed to make such an order, because in the present Bill a list of courts had been attached. However, as a maintenance court was defined in the Act, limiting the courts which could deal with such order would be regressive. Hence, the need to revert to the present position in the Bill.

Mr Horn said if what happens in practice in a maintenance court is looked at, then a section which reads that “provided that nothing precludes the court from making an order” becomes problematic if an unreasonable delay due to postponement becomes a problem. This was especially as it was put forward to the Committee that an emolument attachment order is not a normal order in a maintenance matter, and will always follow the default of the parent responsible for payment. To say that nothing precludes the court from making an order if a postponement will cause an unreasonable delay, may prevent an employer from ever coming before the court to present its views. If a court contemplates an emolument order, then at least one postponement will be required, to afford the employer an opportunity to present its views. The current wording therefore, may lead to a situation where the Committee transgresses from what was ordered by the court, which he saw as the main reason it was faced with the current Bill.

Adv Ross asked if Mr Horn’s concern could be solved by changing the wording to state: “nothing precludes the court from making such an order if it is of the opinion that the further postponement”.

Mr Horn indicated that this may be acceptable.

Clause 11: Submission of Defaulters’ Details to Credit Bureaus
Adv Ross said the provision states “on receipt of an application contemplated the court shall, notwithstanding anything to the contrary”. This means that in the case of a defaulter, merely on receipt of the application the court may make an order. A concern was raised that this application should be subjected to a decision of the court. This is what the amendments to section 11 are about, because maintenance officers who are at times prosecutors should not be involved in the enforcement of orders. Rather clerks of the court, at the request of the maintenance officer, should submit information to credit bureaus, as is done with civil cases.

The Chairperson asked for the drafting of the clause to be looked at so that lay people are able to read it with understanding.

Mr Bongo asked what compelling circumstances are present for providing a defaulter’s details to the credit bureaus - as being listed by a credit bureau is similar to being arrested.

Mr Horn disagreed with this concern, saying that the reasoning behind the provision is to stop truant parents from accessing further credit. He had a problem with the current wording as it does not necessarily place an obligation on the credit bureau that the order on the non-payment should be reflected. Linking to Mr Bongo’s concern, perhaps the Bill should also contain a provision which makes it possible after a period of time that the truant parent may apply to have their details removed. As one of the problems is that once one runs into credit problems, it is very difficult to get one’s name removed.

Dr Motshekga said he did not see the point of having the details submitted to credit bureaus, because it is defeating the purpose to restrict a parent’s access to credit which may be the only means available to support their children. Therefore, limiting their credit worthiness may be limiting their ability to maintain and other enforcement mechanisms should be found.

The Chairperson asked what other sanctions could be applied if the credit bureau option was not followed.

Adv Ross said the purpose of submitting the names of defaulters to credit bureaus is to prevent defaulters from continuing to receive credit while they are owing on maintenance.

Dr Motshekga interrupted saying what if the credit is being obtained for the purpose of paying maintenance.

Mr Bongo said the person is being crippled to the level that they will be unable to pay maintenance in the future, because they have limited options for acquiring assets. He promoted looking at other options. As recognised by Mr Horn it is difficult to have one’s name removed from credit bureaus, particularly as they are not properly regulated.

Mr Horn said Members may be looking at the option to take up credit to satisfy your maintenance obligations from the wrong angle. If you are in default, then a result of the enquiry may be that the court orders incremental payment of the outstanding maintenance. The reverse of not going the credit bureau route, is that credit can be abused to avoid complying with maintenance orders. Maintenance obligations being increased or decreased is a matter of fact, therefore a person may take out vast amounts of credit and say that practically their expenses are so high that they can afford only minimal maintenance. It will therefore help the health of the whole maintenance regime, if credit bureaus reflect the fact that the defaulter is a bad payer and force maintenance defaulters to pay maintenance before they obtain credit.

Ms Litchfield-Tshabalala said while the intentions of the clause may be good, she worried about the implementation. The dilemma with applications is that we do not live in a society free from racism and current research indicates that the people listed by the credit bureau are Africans above all other race groups. The African male who has been stigmatised so much already and as African men are the highest portion of maintenance defaulters, they will now have to deal with this as well. Secondly, the punishment must fit the crime as the person has defaulted on maintenance as opposed to a debt, why should they be listed with the credit bureau. Thirdly, are we saying that the system is failing to ensure compliance to such an extent that this is the only option? Further, what if the person has been listed and they continue to default, what then? Therefore more effective means of enforcement must be looked for, to ensure that maintenance is paid.

Mr Bongo disagreed with Mr Horn, because in practice courts do order that assets must be sold to pay maintenance, regardless of credit obligations. Therefore, listing on credit bureaus is going to have unintended consequences.

Dr Motshekga said the DoJ is bringing legislative proposals and once before the Committee, they are in control of the process. Its duty is not to try to convince the Department, but to look at the proposal and public submissions, towards establishing its own autonomous position. The Committee’s position is that it does not see any sense in listing people with credit bureaus and actually places impediments in the way of paying maintenance. The issue here is finding effective ways of making defaulters pay. These can be built into the law without reliance on outside agencies. The Committee agrees that the credit bureau is not the way to go. Further, it does not want to say that because of maintenance problems, people are restricted from doing business.

The Chairperson said she hoped the point had been taken and a clause will be drafted utilising effective means to enforce payment.

Ms van Vuuren wanted to emphasise the fact that, as the law stands, if someone defaults on their debt and receives a court order against them, then their name is registered with credit bureaus. A maintenance order creates an amount of money owed. Therefore, as it stands the law will be acting more harshly against persons owing normal debts, rather than against maintenance defaulters. Therefore people may choose to pay their normal debts rather than maintenance, because of the fear of being blacklisted for their normal debts.

Mr Bongo said he did not feel credit bureaus were an option, because where children from different parents are to be maintained, the sanction is not effective once the defaulter is listed. As Ms Litchfield-Tshabalala said the bulk of maintenance defaulters are African men and more often than not, these men have children with more than one person.

Dr Motshekga said the legislature is charged with the radical transformation of the legal system, therefore the errors of past laws should not be perpetuated. He said garnishee orders would be more effective, because before they default, the amount would be deducted. He did not feel the point should be belaboured, because the Committee has found its position.

Adv Ross said the Maintenance Act as it stands already makes provision for submission of the name of persons who have been convicted for default on maintenance. This clause was merely to extend that provision to the point that upon receipt of a complaint of default the listing may happen.

Dr Motshekga said Parliament has the right to remove such offensive provisions and why should something be perpetuated when it is not in the interests of children.

The Chairperson asked what the submissions stated in this regard.

Adv Ross said three were not many submissions against the provision, but notably there were several in support of the provision. COSATU said blacklisting of defaulters is punitive, but there were also submissions which indicated that the provision will be effective in preventing default on maintenance.

The Chairperson said a balanced approach should be used and both the sentiment of the Committee and submissions should be taken into account.

Adv Ross asked for clarity on the Committee’s position and whether it is only against the present clause, as there are further provisions in the Maintenance Act.

The Chairperson said the Committee is against the submission of names to credit bureaus, because it feels that it handicaps defaulters and therefore other effective enforcement measures should be found.

Adv Ross said section 26 of the Maintenance Act contains enforcement measures including attachment of emoluments or debt and execution against property. Therefore, the submission to credit bureaus was inserted, because despite the above, defaulters still exist.

The Chairperson asked for the Department to work with Ms Isaacs, to find a balance between taking the Committee’s position into consideration and ensuring payment by defaulters.

Clause 12: Attachment of Emoluments
Adv Ross said the Bill allows the court to order attachment of emoluments, at present or in future owing or accruing to such person against whom a maintenance order has been made, “after hearing evidence from the employer”. This is the same amendment as done under clause 5, with the words “where applicable” being inserted. Mr Horn’s earlier concern about unreasonable delay due to postponements, will also be catered for.

Clause 17:
Adv Ross said here the clerk of the court would be criminalised for rendering assistance to a maintenance officer. The purpose of the amendments are to ensure that clerks of maintenance courts are allowed to assist with such investigations, without being labelled as impersonating a maintenance officer.

The Chairperson said emolument attachments may fill the vacuum created by removing submission to credit bureaus, but the Committee would like to see more being done.

Dr Motshekga asked when the Bill would return to the Committee and said it should be agreed that when it does do so that issues around credit bureaus and electronic service providers will not be discussed. More options may be proposed, but there should not be regression. Lest the Bill not be passed in this term, because the legislative buck stops with Parliament.

Mr Horn said perhaps it would be helpful for the Department come back with concrete proposals for strong enforcement mechanisms, mindful of the fact that the Act already contains provisions for submission of details to credit bureaus, perhaps as a very last resort. Further, on the electronic service providers, that Mr Maila’s suggestion that the truant parent’s accounts be debited, rather than the state be made to pay the cost.

Dr Motshekga said all positions are valued, but the majority position, informed by the submissions, is that credit bureaus should not be included as an option.

Ms Litchfield-Tshablala said it had been agreed that the credit bureau was not an option and Mr Horn is leading the Committee back to a closed discussion.

The Chairperson hoped that on 5 May 2015 when the Department returns with a revised draft of the Bill that it complies with the position of the Committee.

Planning Scope for the Second Term
The Chairperson said the Committee would meet on 14 April for a political overview of Budget vote 18 for the Department of Correctional Services, under the Minister of Justice and Constitutional Development. Also an analysis of the budget will be done by the content advisor. The plan takes the Committee up until 24 June and Members will be periodically informed about the contents of dates.

Ms Mothapo said the programme shows that meetings will be held on Fridays.

The Chairperson said it had been agreed that meetings would not be held on Fridays, however the Committee has a backlog and will have to work out a backlog management mechanism. This must also take into account that meetings on Tuesdays start at 10 am, because Mondays are constituency days and Members must fly in making it difficult for Members to start at 9am. The concern is noted, but it must remain until a clear backlog management mechanism is found.

Mr Vhonani Ramaano, Committee Secretary, said at present only two Fridays are planned for meetings, to deal with the budget process finalisation. So that there is enough time to draft the Committee’s report for the budget vote. Another issue was the Sexual Offences Bill, which will as it stands be finalised on 10 June and perhaps this will have to be finalised sometime in May, so that the Bill can be processed within the time of the extension granted by the House.

Dr Motshkga asked for a blunt answer regarding the use of Fridays.

Mr Ramaano said as the Committee has a large portfolio and it cannot do without the Fridays, even if meetings start at 8:30.

Dr Motshekga said perhaps it should be accepted that to do proper work,           Fridays will have to be sacrificed. There is also the option of using the mornings, allowing Members to travel in the afternoons. Perhaps Monday constituency time could be sacrificed, so that there could be early meetings on Tuesdays.

Mr Horn suggested that there is also the option to meet in the evenings, because this could perhaps accommodate those with far away constituencies. Secondly, he had been informed by his whippery that the budget vote debates would start on 5 May and there is a strong push for DA Members’ attendance. However, the Committee still has a full week of Committee meetings and so he asked whether the timing of the budget vote debates has changed.

Mr Ramaano said the practice has been to have Extended Public Committee (EPC) sittings, so if the EPC is not in the Committee’s cluster then they may hold committee meetings. If the National Assembly programme is looked at, then it will be seen that committee meetings run alongside the EPCs.

Dr Motshekga said the suggestions should be taken on board and a solution found which keeps the best interests  of the Members in mind.

Ms Litchfield-Tshabalala agreed with Mr Horn’s suggestion that meetings be held in the evenings. It is frustrating for Members who have to take connecting flights which may be missed due to meetings ending late afternoon on Fridays. For their sake, then it should be agreed that meetings are held from Tuesday to Friday, even pushing into the evenings.

The Chairperson declared the meeting adjourned.