MAINTENANCE MATTERS: REPORT ON THE OPERATION OF THE MAINTENANCE ACT
GENDER RESEARCH & ADVOCACY PROJECT
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study assesses the application of the Maintenance Act 9 of 2003 with a
view to assessing whether the law is serving its intended purpose
effectively. It is the first study to assess the operation of the Maintenance Act.
No one can anticipate exactly how laws will work in practice, and it is
unlikely that any new law will ever be perfect. Therefore it is
always vital to study laws in action, to see if they are serving their
The study is the third in a series conducted by the Legal Assistance Centre on the operation of key gender laws in Namibia.
Many of the recommendations in Rape in Namibia and Seeking Safety have
been considered by stakeholders and we hope that our new study can
similarly enable refinements in the law on maintenance to improve its
study is also a follow-up to a study published by the LAC in 1995 on
the operation of the previous Maintenance Act (the Maintenance Act 23
Therefore this study differs from the previous two in the series as it is the only one in the set which is able to compare the operation of a pre-independence law with a post-independence law.
HOW DID WE DO THE STUDY?
was collected from maintenance files opened during the years 2005 to
2008. During this four-year period, nearly 19 000 maintenance
complaints were opened nationwide. The study presents the findings of
the field research from:
The study also contains a review of the importance of maintenance and a summary of how the Maintenance Act was developed, an analysis of some of the Act’s key provisions and recommendations for fine-tuning the law and regulations, and for improving the implementation of the law.
WHY DOES MAINTENANCE MATTER?
The provision of maintenance is a human rights issue.
Children have a constitutional right to be cared for by their parents,
and parents have a duty to act in the best interests of their children
under the international agreements which Namibia has ratified.
The social context of maintenance is particularly relevant in Namibia.
According to the 2006-2007 Demographic and Health Survey, approximately
two-thirds of children live apart from one or both parents while the
absent parent or parents are still living – these children may be in
particular need of support.
The economic context of maintenance is also important.
For example, children are more likely than adults to live in poverty –
and according to the 2006-2007 Demographic and Health Survey, only 50%
of children between 5 and 17 years of age have a pair of shoes, two
sets of clothing and a blanket; many of these children might be able to
acquire such bare necessities of life through an absent parent’s
payment of maintenance.
parents may struggle to provide for their children – the difference
between income and expenditure is small for all households, which
suggests that many people live on a survival basis. Furthermore,
approximately 50% of the population do not receive a regular salaried
monthly income. This may explain why so many women are in need of
maintenance, but it may also explain why many fathers struggle to pay
On average, someone makes a maintenance complaint in Namibia every thirty minutes during working hours, since 4000-5000 complaints are filed at the maintenance courts each year.
However, only approximately two-thirds of complaints ever result in an order being made. This
is despite the fact that all children need maintenance and most claims
for maintenance present a clear need for financial support.
the findings show that if the maintenance complaint is a simple one and
the absent parent is willing to pay maintenance, the process of making
an order will be as quick and easy as the law intends it to be.
if there are challenges along the way, the outcome is very different –
the process will probably take much longer with numerous causes for
delay, and an order may not even be made. Problematic areas
may be where the complainant does not have details of the absent
parent’s whereabouts or financial position, where there are repeated
postponements resulting from evasions on the part of the absent parent,
or some other reason that complicates the process.
When an order is made, it is typically for low monthly payments, averaging N$250/month for a single pre-school age child.
In many cases, the amount of maintenance ordered is not a realistic
reflection of need but rather a generic amount that changes little
according to rural or urban residence or other factors. This appears to
be in part due to the lack of thorough investigation of the financial
situation of defendants, a problem that is mostly due to the lack of
maintenance investigators appointed to the courts.
It therefore comes as no surprise that one key concern arising from this report is the critical need to hire maintenance investigators. In
South Africa, the improved operation of the country’s maintenance
courts has been attributed primarily to the appointment of maintenance
investigators. Amongst other things, the provision of maintenance
investigators will allow the maintenance courts to ensure that
defendants and witnesses are found and that the financial status of the
parties is properly investigated, resulting in a higher success rate
for maintenance complaints and the making of orders that reflect the
real situation of the complainant and defendant.
major concern identified in this report is that many of the innovative
options included in the 2003 Act are not being utilised. For
example, the options of making payments directly to the complainant, or
into the complainant’s bank or post office savings account rather than
to the court, are seldom utilised. Concerns about proof of payment and
perceptions about what will be most likely to influence the defendant
to comply seem to have influenced the low uptake of alternative methods
of payment, despite the fact that no form of payment is more “official”
than another. Also, few courts use the innovation of default orders in
cases where a defendant who was properly summoned fails to appear in
court. Another problem is that few complainants or defendants are
utilising the option for substitution, suspension or discharge of a
maintenance order to deal with changed circumstances.
This report provides a number of recommendations for improving the implementation of the Act.
Maintenance Act 9 of 2003 has introduced positive changes in the
application of maintenance and many people are benefiting from the new
law. However the study has shown that the Act is not being as
effectively implemented as it could be. This means that we have the
situation often encountered in respect of gender-related laws, where
the law is providing the legal framework intended to support a strong
system but efficient practical application is
We hope that this study helps
to improve the operation of the Maintenance Act so that children may
receive the support that they so vitally need.