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Title: PRESENTATION TO SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS


1
  • PRESENTATION TO SELECT COMMITTEE ON SECURITY AND
    CONSTITUTIONAL AFFAIRS
  • 10 JUNE 2003
  • ACCESS TO MAINTENANCE FOR WOMEN AND CHILDREN
  • DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
    DEVELOPMENT

2
ACCESS TO MAINTENANCE IN TERMS OF THE MAINTENANCE
ACT, 1998 (ACT NO. 99 OF 1998)
  • Introduction
  • The DOJ CD (and in particular the Directorates
    Children and Youth Affairs in Business Unit
    Court Services and Directorate Gender Issues in
    the Business Unit Human Resources) is
    responsible for the planning, implementation and
    monitoring of the Maintenance Act, 1998 (Act No.
    99 of 1998), relating to access to maintenance
    for children and women respectively. The Regional
    and Magistrate Offices and these Directorates
    also deals with operational issues.
  • The DG Justice has appointed a General Manager
    Policy Planning and Monitoring, who will handle
    the policy issues and ensure that the
    Governments objectives are met relating to the
    empowerment of vulnerable women and children,
    also relating to the right to access to
    maintenance.

3
Challenges/ difficulties facing women in
accessing maintenance
  • Delays Long queues, clerks not having prescribed
    forms, shortage of personnel, lost files and
    backlogs in cases.
  • Securing the respondents attendance at court
    Culture of non-payment and ignorance of
    respondents relating to their maintenance
    duties.
  • Lack of knowledge of the Act by both court
    officials and women.
  • Failure by courts to use civil executions.
  • Lack of legal representation.
  • Increasing the amount of maintenance Difficulty
    in obtaining.
  • Attitude of staff results in lack of faith in
    system.
  • Limitation within the Maintenance Act.
  • Employers, especially Government Departments, not
    complying timeously with emoluments attachment
    orders.

4
SUCCESSES RELATING TO ACCESS TO MAINTENANCE
2002/2003
  • Appointment of contract Maintenance
    Investigators
  • The DOJ CD has further implemented the
    Maintenance Act, 1998 (Act No. 99 of 1998) in
    April 2003, by appointing 56 contract Maintenance
    Investigators from April to September 2003, in
    order to assist vulnerable women and children in
    the courts until the permanent appointment of
    Maintenance Investigators in terms of section 5
    of the Maintenance Act, 1998. The Assistants to
    Maintenance Officers/ contract Maintenance
    Investigators have also been appointed in the
    Eastern Cape, namely Port Elizabeth Bizana
    Mount Frere Butterworth Mdantsane Zwelitsha
    and Uitenhage and in the North-West in Odi,
    Rustenburg, Taung, Klerksdorp, Mmabatho and
    Kudumane. These appointments have made a positive
    impact at court level already.
  • Appointment of Maintenance Investigators in terms
    of section 5 of the Maintenance Act, 1998 It is
    expected that the permanent appointments will be
    made later in 2003.

5
SUCCESSES RELATING TO ACCESS TO MAINTENANCE
2002/2003
  • Appointment of Maintenance Prosecutors The
    Sexual Offences and Community Affairs Unit of the
    National Directorate of Public Prosecutions has
    appointed 70 Maintenance Prosecutors and 8 Senior
    Maintenance Prosecutors, who are concentrating on
    maintenance cases in rural, urban and peri-urban
    courts where problems have been identified. The
    contract Maintenance Investigators have been
    appointed where the first 55 Maintenance
    Prosecutors were appointed and the contract
    Maintenance Investigators work hand-in-hand with
    the Maintenance Prosecutors in practise. The
    Prosecutors handle the civil execution of
    maintenance orders as well as criminal
    prosecutions of maintenance defaulters,
    maintenance enquiries and problematic maintenance
    issues.
  • Base-line costing study on Appointment of
    Maintenance Investigators The Directorate
    Children and Youth Affairs of the Department
    commissioned a study in 2002 to cost the
    appointment of Maintenance Investigators, which
    also came up with a study on the challenges
    facing the maintenance courts as well as
    recommendations how to address these challenges.

6
SUCCESSES RELATING TO ACCESS TO MAINTENANCE
2002/2003 (cont)
  • Training of service providers The Department,
    Justice College, JOASA and the SOCA-Unit of the
    National Prosecuting Authority, have all
    continued with training programmes to train and
    sensitise Magistrates, Maintenance Prosecutors,
    Maintenance Officers and Assistant Maintenance
    Officers/ contract Maintenance Investigators and
    clerks
  • Education and awareness campaigns aimed at women,
    children, men and employers of respondents The
    Department has further launched various education
    and awareness campaigns, spoken at the Ministers
    Imbizos and listened to the publics concerns
    expressed at the imbizos, taken the message to
    schools in the North-West during the recent Child
    Protection Week, distributed booklets and
    information to schools, child rights
    organisations, students from the South African
    Technikon and those who requested information
    directly from the Department.

7
SUCCESSES RELATING TO ACCESS TO MAINTENANCE
2002/2003 (cont)
  • Simplification of Maintenance forms An
    interdisciplinary Task Team held a Workshop on
    28 May 2003 to address the simplification of
    maintenance forms used at courts, in order to
    make them more user-friendly. This process is
    well underway and new draft maintenance forms
    will be distributed shortly by the Directorate
    Secondary Legislation for comments before
    publishing.
  • Simplification of civil execution procedures in
    terms of the Maintenance Act An
    interdisciplinary Task Team has been appointed
    by the DGl to investigate the possibility of
    promulgating Regulations in terms of the
    Maintenance Act, 1998, in order to simplify and
    fast-track civil execution procedures against
    maintenance defaulters in terms of Chapter 5 of
    the Maintenance Act. This Task Team has done
    quite a lot of work and it is expected that their
    recommendations in this regard, will be submitted
    to the Director-General within the next few
    months.
  • Maintenance Footprint Project of the Chief
    Financial Officer The Maintenance Footprint was
    one of the first footprints done by the Office of
    the CFO in 2001/02 and will result in payments
    being made electronically or at other places,
    obviating the need and frustration of women to
    stand in long queues and late payments by
    respondents.
  • Legal aid Justice centres to also assist
    vulnerable groups relating to maintenance and
    domestic violence

8
Specific Projects and Programmes in response to
difficulties experienced
  • Automation Project The DOJ CD (Gender) is at
    present engaged in a maintenance automation
    project, which will look at workflow procedure
    mapping research standardization of work
    procedures and forms in order to streamline
    administrative process and map ideal automation
    process also reconsidering the formula for
    maintenance, to ensure that no discrepancies or
    bias takes place in courts Furthermore,
    questionnaires, to understand difficulties
    experienced in hampering of service delivery were
    sent out.
  • Amendments to Maintenance Act A Task Team is
    looking at urgent legislative amendments to the
    Maintenance Act to rectify current
    inefficiencies, which will lead to Judicial
    Matters Amendment Bill and once implemented, can
    lead to a substantial improvement in service
    delivery.
  • A Committee is investigating civil executions of
    orders under the Maintenance Act to make the
    utilisation of the civil remedies more easier so
    that the courts use those instead of the criminal
    sanction.
  • Maintenance Guidelines for Magistrates is being
    discussed with Magistracy, to assist and guide
    Magistrates to ensure expediency, legal
    consistency and uniformity.
  • Awareness raising on judicial decisions creative
    High Court decisions which makes access to
    maintenance for women easier, such as recent High
    Court case which decided that pension funds could
    be attached for future maintenance, is being
    circulated.
  • Monitoring implementation of the Act Both
    Directorates Gender and Children continue to
    receive complaints and queries on the maintenance
    system and what happens at court, which enables
    the Department to determine what womens
    experiences are with the system and to address
    the shortcomings in the Act.

9
Base-line costing study on appointment of
Maintenance Investigators
  • A research and costing project was done in 2002,
    sponsored by the Swiss Development Corporation.
    The methodology of the basis of the first report,
    was to visit a cross-section of 13 courts in
    urban, rural and peri-urban areas, in order to
    evaluate the need for maintenance investigators
    and the amount of maintenance cases which will
    benefit by such appointments, including the North
    West and Eastern Cape Provinces.
  • Scientific costing of budget needed for various
    options of appointment of Maintenance
    Investigators Commissioned detailed cost
    analysis.
  • Five interim reports received
  • Gathering information on maintenance cases
  • Unpacking the functions of maintenance
    investigators as outlined in the Act
  • Developing proposals for remunerating MIs
  • Developing proposals for the implementation of
    the policy on MIs and
  • Developing a baseline costing model of the
    implementation of the above proposals.
  • One final report were received in December 2002,
    which also included recommendations for a whole
    new maintenance system for courts within and
    under the Family Court umbrella.

10
Conclusions and responses to the Cornerstone
report for a One-Stop Maintenance Service
  • The Intention of Legislature was to establish a
    user-friendly one-stop Maintenance Service with a
    view to servicing the needs of women and children
    who need maintenance but cannot afford legal
    representation. In practice and during visits to
    13 courts, it became clear that this vision has
    not yet been realised,but progress is being made.
  • The following challenges were identified
    Staffing matters lack of properly qualified,
    trained and motivated Maintenance Officers,
    Maintenance Clerks and Maintenance Prosecutors
    the Dept and the NDPP has appointed more
    Maintenance Prosecutors, contract Maintenance
    Investigators and Office Managers and has started
    with training programs for them.

11
Conclusions and responses to the Cornerstone
report for a One-Stop Maintenance Service
  • Lack of Training and Sensitivity of existing
    Maintenance Officers and Maintenance Clerks The
    Dept, Justice College and the NDPP has initiated
    continuous training sessions in this regard.
  • Weak administration and clouded lines of
    accountability The Dept has appointed Office
    Managers under the Re Aga Boswa Project (We are
    rebuilding) to prioritise service delivery and
    administration in courts
  • The Court Services Business Unit and the Sexual
    Offences and Community Affairs Unit of the NDPP,
    has also built a good working relationship, so
    that maintenance matters are starting to be
    handled in a co-ordinated, sensitive manner -
    the contract Maintenance Investigators fall
    administratively under the supervision of the
    Office Managers, but in practice they work
    hand-in-hand with the Maintenance Prosecutors to
    ensure that the necessary information gets to a
    court for an equitable court order to be made.
  • Maintenance matters are usually tagged onto the
    end of criminal court rolls, resulting in many
    postponements The Department and the SOCA-Unit
    has started to prioritise maintenance matters by
    appointing maintenance prosecutors and contract
    maintenance investigators and encouraging
    magistrates and service personnel to prioritise
    maintenance cases, especially relating to the
    recovery of maintenance arrears through civil
    execution procedures, but also through criminal
    prosecution of maintenance defaulters.

12
Conclusions and responses to the Cornerstone
report for a One-Stop Maintenance Service Cont
  • Lack of tracing and service of process in
    maintenance matters, also because of sheriffs
    filing many non-returns of service The Dept has
    appointed contract Maintenance Investigators and
    encouraged co-operation and dialogue with the
    organised sheriffs profession.
  • Limited options, because many maintenance
    officers do not seem to offer the option of civil
    procedures to complainants, and lack of securing
    of financial information for maintenance orders
    The Dept and Justice College has continued
    intensive training of maintenance officers
    relating to the civil procedures and the contract
    maintenance investigators relating to the
    investigative techniques necessary for tracing
    financial information.
  • Non-effectiveness of maintenance orders, even
    when obtained Civil execution orders and
    enforcements are being encouraged and awareness
    campaigns are launched to educate complainants
    and respondents on the necessity to keep the best
    interests of the child/children at the heart of a
    maintenance matter, as per the Constitution.
  • Lack of a coherent system with a good division
    and allocation of labour, resulting in
    duplications and backlogs The Dept and SOCA has
    drawn up a draft National Strategy in this
    regard, especially with regard to the
    communication lines and division of labour
    between Maintenance Prosecutors, Maintenance
    Officers and Clerks and the Maintenance
    Investigators.
  • Lack of proper facilities The Dept is
    prioritising the upgradiing of Maintenance Courts
    as part of the Family Court Blueprint and
  • Lack of technology and resources The Dept is
    prioritising Maintenance Courts as part of the
    Family Court Blueprint and computerisation
    project of the Business Unit Information
    Technology.

13
Maintenance Proposed solutions
  • The 2nd, 3rd, 4th and 5th reports of the
    Base-line Costing Study, contained definitions of
    the functions of Maintenance Investigators,
    setting out proposals for their remuneration,
    proposals for the implementation of policy on
    Maintenance Investigators and a baseline cost of
    the proposed maintenance policy, including the
    appointment of Maintenance Investigators.
  • A full model for a Maintenance Court is being
    developed with the idea of a one stop service for
    both civil and criminal elements and proceedings
    in Maintenance Court, under the umbrella of the
    Family Court.

14
Recommendations of final Cornerstone Report
relating to Maintenance Investigators
  • Functions
  • Tracing and general assistance to prosecutors and
    officers to be done by a court-employed
    Maintenance Investigator already being piloted
    in 56 Maintenance Courts.
  • Service and Execution should remain with the
    Sheriffs, Securing of information by
    court-employed MI already being done in 56
    pilots.
  • Testifying in court by court-employed MI, already
    being done.
  • Support to court-employed MIs
  • NGOs to provide assistance in courts, eg re
    information and help in filling in forms.
  • National Information and Tracing Service to be
    set up to gather information electronically for
    MIs and maintenance cases Dept is
    investigating possibility.

15
Cornerstones proposed new organisational
structure of the Maintenance System
  • Cornerstone also recommended that a separate
    Maintenance Directorate be established at
    National Office, consisting of the following
  • Head Office function
  • National Information and Tracing Service
  • Training Unit and
  • Monitoring and Support Unit.
  • Most of these functions are already attended
    to at the National Office of DoJ CD and under
    the restructuring of Re Aga Boswa will fall under
    the General Manager dealing with Family Law
    Services.
  • Because the cost would be R170 million to
    implement in all courts Decided that project
    would be implemented in stages, starting with the
    appointment of maintenance investigators
    training etc.

16
Cornerstones proposed new organisational
structure of the Maintenance System
Magistrates Commission
Department of Justice
NDDP-SOCA Unit
Maintenance Division H/Office
Magistrates Court
National Information Tracing Service
Training Unit
Monitoring Support Unit
Maintenance Unit
Maintenance Magistrate
Maintenance Court
17
Generic Establishment of a Maintenance Unit
Maintenance Unit Maintenance Officers/
Prosecutors (Section 4(1)) Maintenance
Officers/ Admin (Section 4(2)) Maintenance
Investigators Maintenance Clerks
Maintenance Magistrates
Maintenance Court
18
Draft Proposed Maintenance Court Model
NDPP
Dept. Justice
Maintenance Courts
Family Courts
Prosecutors
Magistrates
Maintenance Unit at Courts Prosecutors, MOs
MIs
Services
Administration
Staffing
ORDERS
MO
MO
MO
Maintenance Investigator functions as outlined in
section 7(2).
19
Draft Maintenance Investigator-Model
Maintenance Prosecutor
Maintenance Officer
Maintenance Investigator Physical and digital
tracing
OTHER ROLEPLAYERS
Sheriffs service and execution of process
National Tracing Office Digital linked to
DNS-System/ E-Justice/ E-Gender
NGOs Education Advocacy Filling in forms.
20
Challenges
  • Co-ordination of maintenance matters at every
    level is essential in order to solve problems in
    the maintenance system.
  • Investment of resources and budget in maintenance
    courts and maintenance matters needs attention.
  • Need commitment from every accountable person to
    solve problems in each of their respective areas
    of responsibility to address systemic problems.

21
FAMILY COURTS
22
Family Courts Pilot Projects
  • National Family Court Task Team, chaired by Adv R
    Tladi.
  • Components dealt within the Family Court include
    Divorce, Maintenance, Childrens Courts and
    Domestic Violence.
  • Counseling, mediation and support services with
    designated specially trained personnel are
    offered.
  • The role of the Family Advocate is central to the
    concept of the Family Courts.
  • The pilots need to progress to permanency

23
Maintenance Courts part of Family Court
Blueprint/ Structures
  • Family Court Blueprint Draft Interim Policy
    Implementation Plan commissioned and finalised in
    2002 by Family Court Task Team.
  • Pilot Family Court Centres have been established
    in Johannesburg, Durban, Cape Town, Lebowakgomo
    and Port Elizabeth in 1997.
  • Interim policy principles accepted
  • 1 Pilot family courts should deal exclusively
    with comprehensive service delivery in
    maintenance, domestic violence, childrens court
    and divorce.
  • 2 Pilot family courts should provide services in
    an integrated manner.
  • 3 Pilot family courts (PFCs) should provide
    users with relevant substantive rights education
    services.
  • 4 PFCs should provide court users with
    substantive legal advice and assisted form
    completion.
  • 5 PFCs should, where appropriate, embrace the
    use of alternative dispute resolution and build
    into workflows.
  • 6 PFCs should be staffed and supported by
    appropriately skilled people who should receive
    specifically developed training.
  • 7 PFCs should operate ito own consolidated,
    designated budget and make progress towards
    performance based budgeting.
  • 8 PFCs should operate within clear management
    and reporting lines.
  • 9 PFCs should be subject to ongoing monitoring
    and evaluation which is uniform in nature.

24
Maintenance Courts part of Family Court
Blueprint/ Structures
  • 17 projects have been identified
  • Establishing a management foundation
  • Establishing a human resources foundation
  • Establishing a services delivery foundation
  • Full pilot site implementation
  • Longer-term policy development.
  • R17,7 million allocated for these projects in
    2003/04.

25
Development of Policy Framework for Family Court
Project
  • Objectives
  • Make justice accessible through appropriate
    family courts in urban, peri-urban, rural and
    isolated communities
  • Treat persons with dignity and compassion
  • Have minimum standards in service delivery
  • Provide fast, effective service delivery in an
    environment which avoids exacerbation of
    conflicts.

26
Development of Policy Framework for Family Court
Project
  • Policy Framework to cover the following issues
  • Infrastructure, accommodation requirements,
    provisioning and administration, court automation
    nature of family services provided, human
    resource requirements, management plan,
    performance standards, jurisdiction, structure,
    legislative/ statutory changes, physical
    location, specialised services, monitoring and
    evaluation and knowledge management amongst
    others.
  • The policy framework must also include
  • An analysis of foreign models, proposing a model
    that will reflect the SA context.
  • An audit of existing DoJ initiatives relating to
    family courts to identify duplications and
    inconsistencies
  • A strategy for integration, and
  • An analysis of systemic problems and needs
    analysis of the pilot projects, including
    proposed solutions.
  • The Policy Framework will also provide the Dept
    with a guideline for addressing inefficiencies in
    the family court pilot projects and costing
    before it can be rolled out to other areas as
    well as identify issues that should be included
    in legislation.

27
CONCLUSION
  • We are all working for the best interests of all
    our women and children and the realisation of
    their rights!
  • We welcome constructive assistance from all
  • We appreciate the concerns and oversight role of
    the Committee
  • ..
  • Any Questions
  • Thank you!
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