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no games, JUST LAWTM
Success is the only OptionTM
your attorneys.
ON YOUR SIDE
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MAINTENANCE AND DOMESTIC VIOLENCE

MAINTENANCE ACT 1998 & DOMESTIC VIOLENCE ACT 1998

WITHHOLDING OF MAINTENANCE IS FINANCIAL ABUSE IS SOUTH AFRICA 

We receive so many calls on a daily basis for assistance with maintenance and domestic violence matters.

Recently, there is a sad trend in regard to the withholding of maintenance payments due for ex-partners, ex-spouses and children.

We point out that maintenance payable in terms of divorce orders, other court orders or in terms of the Maintenance Act 99 of 1998 or in terms of the Domestic Violence Act 116 of 1998, must be paid timeously to the beneficiary. One of the primary purposes of such orders is for the beneficiary to be placed in a position to manage the costs and expenses of the beneficiary when the cost or expense has to be paid.

Withholding of maintenance is not only a social injustice in light of the serious consequences for beneficiaries in not being able to pay for their monthly bills, incurring credit judgments and credit listings for non-payment of debit orders and other bills.

In terms of the Domestic Violence Act 116 of 1998, as amended[1], domestic violence is defined to be:

  • any form of abuse which includes physical, sexual, emotional, psychological or economic abuse;
  • damage to property;
  • stalking;
  • entry into a person’s home without their consent;
  • any other abusive or controlling behaviour where such conduct (acts or omissions) causes harm or may cause harm to your health, safety, or well-being.

Economic abuse is defined to be the “unreasonable deprivation of economic or financial resources to which a complainant is entitled under law…required for household necessities… mortgage bond repayments or payment of rent in respect of a shared residence”.

Not only is it a contravention of the Maintenance Act to withhold maintenance due and payable but it also constitutes domestic violence as defined in the Act because it is obviously a form of abuse.

If you are experiencing delays in payment of maintenance which is due and payable to you and /or your child(ren) it is imperative to approach the courts for assistance.

One of the remedies available is to apply for an Emoluments Attachment Order against the employer and earnings of the maintenance debtor so that you have a greater prospect of receiving the maintenance due on the expected date.

FREQUENTLY ASKED QUESTIONS?

How do I obtain a protection order in terms of the Domestic Violence Act?

Who can apply for a protection order?

  • Any person who has been in a domestic relationship with the abuser/respondent.

When is there a domestic relationship between the complainant and the respondent?

  • If they are or were married to one another;
  • if they live or lived together in a relationship in the nature of a marriage, though they are/were not;
  • if they share parental responsibility over a child;
  • if they are/were engaged, dating or in a customary relationship;
  • if they are blood relatives or related by affinity or adoption;
  • if they share or recently shared the same residence.

Against whom can a protection order be obtained?

  • Any person who is or has been in a domestic relationship with a complainant and who has committed an act of domestic violence against the complainant.

Where can a complainant apply for a protection order?

  • At any Magistrates Court or Family Court;
  • Any court in the area where the complainant permanently resides, carries on business or is employed;
  • In the area where the respondent resides, carries on business or is employed or any court in the area where the abuse took place or is taking place.

Can a complainant be represented by a lawyer when applying for a protection order?
Yes.

With whom must the application for a protection order be lodged at the Magistrates’ Court?
The Clerk of the Court.

Can a minor apply for a protection order without the assistance of a guardian?
Yes.

When is it allowed for an application for a protection order to be brought outside ordinary court hours or on a day that is not an ordinary court day? 

If the court is satisfied based on the allegations of facts and evidence that the complainant will suffer undue hardship if the application is not dealt with immediately.

What documents must the complainant submit when applying for a protection order?

  • An application substantially corresponding to Form 2 of Regulation 4 of the DVA regulations for a protection order.
  • Supporting affidavits by persons who have knowledge of the matter.

What happens if the court does not issue the Interim protection order?

The court must direct the clerk of the court to cause certified copies of the application and any supporting affidavits to be served on the Respondent in the prescribed manner, with the prescribed notice (Form 5 of Regulation 7) thereby calling on the Respondent to show cause why a protection order should not be issued.

When does the court issue a final protection order?

A final protection order will be issued if the Respondent does not appear on the return date as set out in the interim protection order, or if the Respondent does not appear on the return date as set out in the notice when an interim protection order was not granted.

If the Respondent appears on the return date as set out in the interim protection order or notice and opposes the issuing of a protection order, then the court will proceed to hear the matter.

A protection order issued by the court must be in the prescribed form and it must be served on the Respondent.

What happens after a protection order has been issued?


The clerk of the court must send certified copies of the protection order and warrant of arrest to the police station of the complainant’s choice.

Issuing of the warrant of arrest?

The warrant of arrest must be authorised and issued in accordance with Form 8 of Regulation 9.

Whenever a court issues a protection order, the court must make an order authorising the issue of a warrant of arrest.

The execution of the warrant of arrest is suspended subject to compliance with any prohibition, condition, obligation or order imposed by the court.

SOUTH AFRICAN POLICE SERVICE Family Violence, Child Protection and Sexual Offences Units (FCS).

The FCS Units can assist with allegations in regard to:

  • sexual offences against children,
  • person-directed crimes (where the family is involved),
  • illegal removal of children under the age of 12,
  • crimes facilitated through the use of electronic media.

For help, call SAPS Crime Stop: 08600 10111 or your local SAPS police station.

[1] Amended by Act 1 of 2011, Act 31 of 2008, Act 55 of 2003.

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