Arrear Maintenance
When the respondent (person who has been ordered to pay maintenance) fails to comply with the terms of a maintenance order and the order remains unsatisfied for a period of 10 days, the court treats it as a debt and the usual civil debt recovery options become available to the complainant in terms of sections 26 to 30 of the Maintenance Act. The complainant may apply to the maintenance court where the
respondent is resident for:
– Authorization to issue a warrant of execution;
– An order for the attachment of respondent’s earnings (emoluments attachment order); or
– An order for the attachment of debt.
Warrant of execution
A warrant of execution is a method of enforcing court orders and empowers a court sheriff to go to the home address of the respondent and to take goods that are owned by the respondent to be sold to satisfy the debt. This process is governed by section 27 of the Maintenance Act. The warrant will first be issued against the respondent’s movable property. If the movable property is insufficient, only then will it
be issued against his/her immovable property.
The complainant must prepare the necessary forms which must be lodged with the clerk of the maintenance court who will then attend to getting the warrant issued and executed with the assistance of the sheriff. It is advisable to get the assistance of a legal practitioner when applying for a warrant of execution.
Attachment of earnings
Attachment of earnings (emoluments) is the process of deducting money from a person’s salary or wage. An emoluments attachment order (EAO) can be issued in terms of section 28 of the Maintenance Act where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court
suspends a warrant of execution.
The complainant must prepare the necessary forms which must be lodged with the clerk of the maintenance court who will then get the order granted by the magistrate on duty on that day. It is advisable to get the assistance of a legal practitioner when applying for an EAO.
Within seven days of the order, the maintenance officer must give notice and a copy of the order to the respondent’s employer. The order authorizes the employer to deduct the amount mentioned in the order in monthly installments from the respondent’s salary. The amount deducted each month is paid to the complainant until the full amount has been paid.
Attachment of debt
In terms of section 30 of the Maintenance Act, if the respondent is owed money or is due to receive money in the future – for example, if he/she has retired and has a pension due to him/her, an attachment of debt order can be granted, which will order the party owing the money to pay that money to the complainant instead.
The complainant must prepare the necessary forms which must be lodged with the clerk of the maintenance court who will then get the order granted by the magistrate on duty on that day. It is advisable to get the assistance of an attorney when applying for an order for the attachment of a debt.
Future Maintenance
Future maintenance is not specifically dealt with in the Maintenance Act, but section 26 (4) of the Act allows for pensions, gratuities and annuities to be attached to satisfy a maintenance order. This section is usually relied on when the respondent is about to stop working (either because of retirement, resignation or dismissal) and the complainant wants to attach part of the respondent’s pension benefits for future maintenance. In most cases regarding future maintenance, the respondent has a pension from which future maintenance is claimed.
The complainant must be sure that the respondent is about to stop working and that there is an existing maintenance order. It is advisable for the complainant to approach a legal practitioner who will prepare the necessary court papers. The complainant would need to know where the respondent is employed and if the
respondent is contributing to a pension or provident fund.
Once the order is granted, the pension fund will be notified and ordered to pay to the Guardian’s Fund the amount mentioned in the order. The complainant will not receive the full amount in a lump sum, instead it will go to the Guardian’s Fund which will continue paying the complainant the amount of maintenance that he/she was receiving from the respondent, usually until the minor child reaches the age of
majority (18) or becomes independent.
Rhodes University Law Clinic helping you
The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to indigent people in most areas of law. In addition to its New Street offices, Law Clinic staff are available to clients at the Assumption Development Centre (Konongendi), Ncame Street, Joza, on the first and third Thursday of every month from 9am-12pm.Law Clinic staff also conduct a talk show on Radio Grahamstown on the second and fourth Friday of every month, and provide workshops on a wide range of topics in order to raise awareness of people’s rights. For more detail, please contact the Rhodes Law Clinic:
Rhodes University Law Clinic
41 New Street, Grahamstown
Telephone 046 603 7656
lawclinic@ru.ac.za
Shaun Bergover
