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MAINTENANCE MATTERS: REPORT ON THE OPERATION OF THE MAINTENANCE ACT
GENDER RESEARCH & ADVOCACY PROJECT

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Download the report:

Preliminary pages

Chapters 1-9

Chapters 10-17

Appendix

The 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 intended purposes. 

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 implementation.

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The 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 of 1963).

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?

Data 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:

  • 1 687 court files opened in the period 2005-2008 from 19 of the 31 magistrates’ courts in place at the time of the study, located in 12 of Namibia’s 13 regions (now 14 regions)
  • 34 interviews with magistrates, maintenance officers and clerks from 11 regions;
  • 6 focus group discussions with a total of 62 people;
  • an examination of reported and unreported cases that cite the Maintenance Act; and
  • relevant statistics, judicial developments and examples from other countries.

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.

However, many 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 maintenance.

KEY FINDINGS

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.

Overall, 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.

However, 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.

Another 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.

RECOMMENDATIONS

This report provides a number of recommendations for improving the implementation of the Act.

CONCLUSION

The 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 lacking.

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.

 

 

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