Improving Access to Maintenance for Women and Children

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 Government’s 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 respondent’s attendance at court: Culture of non-payment and ignorance of respondent’s 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 Minister’s Imbizo’s and listened to the public’s concerns expressed at the imbizo’s, 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 women’s 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 MI’s; • Developing proposals for the implementation of the policy on MI’s; 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 MI’s: • NGO’s 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 MI’s and maintenance cases – Dept is investigating possibility.

15. Cornerstone’s 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. Cornerstone’s proposed new organisational structure of the Maintenance System: NDDP-SOCA Unit Department of Justice Magistrates’ Commission Maintenance Division H/Office Magistrate’s 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 ORDERS Staffing 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, Children’s 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, children’s court and divorce. • 2: Pilot family courts should provide services in an integrated manner. • 3: Pilot family courts (PFC’s) should provide users with relevant substantive rights education services. • 4: PFC’s should provide court users with substantive legal advice and assisted form completion. • 5: PFC’s should, where appropriate, embrace the use of alternative dispute resolution and build into workflows. • 6: PFC’s should be staffed and supported by appropriately skilled people who should receive specifically developed training. • 7: PFC’s should operate ito own consolidated, designated budget and make progress towards performance based budgeting. • 8: PFC’s should operate within clear management and reporting lines. • 9: PFC’s 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!