[19 December 2018]

The Maintenance Act has been updated, with Section 7 coming into effect on January 5th, 2018. This new section gives maintenance courts more power to locate people who owe support.

How it Works

1. Missing Payer: If a maintenance officer can’t find someone who owes support (the “payer”), they can apply to the maintenance court.
2. Court Order: If the court agrees, they can issue a “direction” to electronic communications service providers (like cell phone companies or internet service providers).
3. Information Request: This direction asks the service provider to check if the missing person is a customer and, if so, to provide their contact information to the court.

Cost and Compensation

• The service provider will be reimbursed for their effort according to a set fee structure.
• The person who filed the complaint will typically pay this cost, unless the court decides otherwise.

Delivering the Direction

• The court order (direction) must be sent by email, fax, or registered mail.
• Proof of delivery must be kept by the party sending the order.

Responding to the Direction

• Service providers will have a specific timeframe to respond to the direction.
• They can request an extension from the court if needed.
• They can also ask the court to cancel the direction if the missing person isn’t a customer or the information isn’t available.

Similar to Existing Law

This process is similar to the one already used under the Protection from Harassment Act (PFHA) of 2011. The maintenance courts will use the same list of electronic communications service providers maintained under that law.

The following are examples of the applicable forms:

• R – Application for Direction in terms of section 7(3)(a)
• S – Direction to ECS providers in terms of section 7(3)(b)
• T – Information by ECS providers in terms of section 7(3)(b)
• U – Application by ECS providers in terms of section 7(3)(e)
• V – Outcome of Application in terms of section 7(3)(f)

[16 September 2015]

Maintenance Amendment Act 9 of 2015

The Maintenance Amendment Act 9 of 2015 has been recently published. Most of the Act’s provisions took effect on September 9th, 2015. However, there’s one section related to finding people through electronic communication service providers (like cell phone companies or internet providers) that will only be activated on a later date set by the President. This delay likely allows time for creating the necessary regulations for this part of the Act.

Here’s the key change:

If a court can’t find someone for a maintenance case, they can now ask electronic communication service providers to help locate the person, as long as the person is a customer of that service provider.

Definition of “electronic communications service provider”:

For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service. service.”.

The regulations, still to be drafted, will specify how this “direction” (order) must be delivered to the electronic communications service provider. This will likely involve a specific format and method of delivery.

The service provider will have a designated timeframe to respond to the direction. They can, however, apply to the maintenance court for an extension on this timeframe. Additionally, they can request a cancellation of the direction if they can demonstrate that:

• The target of the order is not actually a customer of theirs.
• The information requested is simply not available.

This procedure shares similarities with the process outlined in the Protection from Harassment Act (PFHA) of 2011. The maintenance courts will utilize the list of electronic communications service providers already maintained under the PFHA for this purpose. As with the PFHA, service providers are entitled to receive reimbursement for their efforts based on a pre-determined tariff.

[10 December 2014]

The public is invited to comment on the Maintenance Amendment Bill. Submissions are due by Friday, January 16th, 2015, and can be emailed to Mr. V Ramaano at vramaano@parliament.gov.za.

[7 November 2014]

New legislation proposed this week aims to leverage the power of electronic communication service providers (like cell phone companies) to locate people who owe child support (maintenance) but can’t be found.

The Maintenance Amendment Bill (B16-2014) targets Section 7 of the Maintenance Act. Here’s how it works:

• Court Order for Information: If all attempts to find a maintenance defaulter have failed, a maintenance court can now order an electronic communications service provider to provide the defaulter’s contact information, but only if the defaulter is a customer of that company.
• Compensation for Service Providers: The service provider will be reimbursed for the cost of finding this information, with the cost being passed on to the person who filed the maintenance complaint (unless the court decides otherwise).

This amendment aims to improve the effectiveness of the Maintenance Act by using modern technology to locate those who are shirking their financial responsibilities.

Maintenance Amendment Bill B16-2014 

The following excerpt is relevant from the Amendment Bill:

Amendment of section 7 of Act 99 of 1998

2. Section 7 of the principal Act is hereby amended by the addition of the following subsection:

‘‘(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have not borne fruit, the maintenance officer may apply to the maintenance court, in the prescribed manner and using the prescribed form, to issue a direction as contemplated in this subsection.

(b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have not borne fruit, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner by means of an affidavit in the prescribed form, with the prescribed contact information of the person in question if that person is in fact a customer of the service provider.

(c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner.

(d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction.

(e) An electronic communications service provider on which a direction is served may, in the prescribed manner by means of an affidavit in the prescribed form, apply to the maintenance court for—

(i) an extension of the period referred to in paragraph (d) for a further period on the grounds that the information cannot be provided timeously; or

(ii) the cancellation of the direction on the grounds that—

(aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or

(bb) the requested information is not available in the records of the electronic communications service provider.

(f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed form and in the prescribed manner, of the outcome of the application.

(g) The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection.

(h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4(8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection and are, subject to section 20, payable by the person lodging the complaint referred to in paragraph (a).

(i) For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.’’.