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Frequently asked questions

Frequently asked questions

What will a court take into account when making a maintenance order?

When a court makes an order in respect of the maintenance of a child, it will take into account:

• the reasonable maintenance needs of the child;
• that both parents jointly have a duty to support the child; and
• that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.

Which parent must support the child?

Both parents have a duty to support their child and must support their child proportionally according to their means.

The fact that the father may be in a stronger financial position does not mean that the mother has no liability, even though the father may have adequate means.

Can I withhold maintenance payments if I am denied contact to my child?

You have to honour the court order until it is set aside and you cannot unilaterally terminate your duty to pay maintenance in terms of a court order. Your duty to pay maintenance and your right of contact to your child are two entirely separate matters. If you are of the view that there are material circumstances to justify a change in the maintenance payable you can launch an application to vary or amend the current maintenance order can be made.

Until when must a parent pay maintenance for his/her child?

The duty to pay maintenance continues until the child is self-supporting, adopted or dead. Once the child attains the age of 18 years, the onus is on the child to prove how much maintenance he/she needs. A child that is self-supporting cannot claim maintenance from his/her parents. The duty to support a child will terminate at the child’s death but not at the parent’s death. In the event of the parent’s death, the child may lodge a claim for maintenance against the deceased parent’s estate.

Is there an obligation on grandparents to support a child?

It is accepted in our law that if neither parent can support or maintain the child, the duty passes on to the grandparents, both maternal and paternal.

Is there a duty on siblings to support a child?

If neither the child’s parents nor grandparents are in a position to provide support, then that duty will pass to the child’s siblings, according to their respective means. This is on the proviso that the child who claims maintenance is indeed completely indigent. This duty of support between siblings applies to sisters, brothers, half-sisters and half-brothers.

Is there a duty on step-parents to support a child?

A step-parent is not by law obliged to maintain his/her stepchild. The reason for this is that the duty to support a child rests on a blood relationship and not necessarily on affinity.
The Maintenance Act states that the court may, at any time, subpoena anybody that can provide relevant information pertaining to the maintenance enquiry, and that could include a step-parent. The step parent’s share of the household expenses must be apportioned to the step parent and it must be clear that the step parent is not being subsidized by the party paying maintenance.

Will a child have a maintenance claim when a parent passes away?

The child will have a claim against the deceased parent’s estate. A child’s claim only exists in so far as he/she is unable to maintain him/herself, so if the child receives an inheritance that is large enough to meet the his/her needs, he/she cannot claim maintenance from the deceased parent’s estate.

What is a domestic relationship?

A domestic relationship is defined as a relationship between the complainant and a Respondent in any of the following ways –

(a) They were married to each other, including a marriage according to any law, custom or religion;
(b) They ( whether they are of the same or opposite sex) live or loved together in a relationship in the nature of a marriage, although they are not, or were not, married to each other, or are not able to be married to each other;
(c) They are the parents of a child or are persons who have had or had parental responsibility for that child;
(d) They were or are engaged, dating or in a customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration;
(e) They are family members related by adoption, consanguinity or affinity;
(f) They share or recently shared the same residence.

What is domestic violence?

The following can be regarded as domestic violence:
1. Physical abuse
2. Emotional, verbal and psychological abuse;
3. Economic abuse;
4. Intimidation;
5. Harassment;
6. Stalking
7. Damage to property;
8. Entry into the complainant’s residence without consent, where the parties do not share the same residence;
9. Any other controlling or abusive behaviour towards a complainant,

Where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.

What are my options if I am being abused?

You have the right to:
* Apply for a protection order at the nearest police station or magistrate's court; or
* Lay a criminal charge at the police station and apply for a protection order.

What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, or any other person assisting such person, to stop the abuse. An interim protection order can also be issued at any time of the day or night for your protection.

Who can apply for a protection order?

Any victim of domestic violence. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

How can the SAPS help me?


It is the commitment of the SAPS to treat victims of domestic violence with sensitivity and care in terms of SAPS regulations and protocol and commitment to assist the community against acts of domestic violence.

The SAPS's responsibility is as follows:

* At the scene, the SAPS must locate the complainant and take reasonable steps to protect the complainant from any further danger.
* Create an environment that is conducive to communicate.
* Obtain statements from the complainant and witness(es).
* If there is reason to believe that an act of violence has been committed, the respondent must be arrested immediately without a warrant.
* Search the premises and seize (for safekeeping) any firearms and/or dangerous weapons in the possession of the person who has either threatened to kill or injure another person
* The SAPS will also do this if they are satisfied that the offender’s mental state, inclination towards violence and/or dependence on alcohol or drugs could influence his/her behaviour and pose a threat to anyone.

What other assistance will the SAPS provide?

* Medical attention
* Shelter
* Victim counselling
* Ensure that a medical officer collects and records any medical evidence in support of a criminal charge.
* Go with you to your home when you need to collect personal belongings, if this is provided for in a protection order that has been issued.
• Should a police officer fail to carry out this commitment, you can report the matter to the station commissioner at the relevant police station. The complaint will be noted in a complaints register, stating the name of the member concerned, the date on which the complaint is lodged, and the details of the complaint.
The station commissioner will take disciplinary steps against the member involved. The Police Service will also refer the complaint to the Independent Complaints Directorate (ICD) for their recommendations. If you are not satisfied with the way in which a station commissioner is dealing with your complaint, you may personally report the matter to the ICD. We will send monthly reports of your complaint(s) against police members to the SAPS Head Office.

WHAT CAN I DO IF AN ABUSER DISOBEYS A PROTECTION ORDER?

Phone the SAPS. A statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order. If you are in immediate danger the abuser will be arrested, or the abuser will be given a notice to appear in court the following day.

What is harassment?

Harassment is any conduct (whether it be direct or indirect) that the perpetrator knows or ought to know will cause mental, psychological, physical or economic harm or inspires the reasonable belief on the part of the victim. And that harm will be caused to a person (referred to in the Act as the "complainant") or any member of the family or household of the complainant, or any other person in a close relationship with the complainant.

The Act refers to any member of the family, household of the complainant or any person in a close relationship with the complainant as a "related person".

Harassment includes:
• unreasonably following, watching, pursuing or accosting a person (or related person) or loitering outside of or near a building or place where a person (or related person) resides, works, carries on business, studies or happens to be
• unreasonable verbal, electronic or other communication (regardless of whether or not conversation ensues)
• unreasonable sending or delivery of letters, telegrams, packages, faxes, email to a person (or related person)
• sexual harassment
Bullying (including cyber bullying) is a form of harassment covered by the Act.

How serious must the harassment be in order to apply for a protection order?


Although the Act does not specify how serious the conduct must be in order to apply for a protection order, as a general rule South African courts will not concern themselves with minor or frivolous matters. The court will only issue a protection order if it is the perpetrator's behaviour is unreasonable. If a person acts frivolously, maliciously or unreasonably when applying for a protection order, the court may order that costs be awarded against that person.

Who may apply for a protection order against harassment?

Any person who is the victim of harassment may apply. A child may apply for a protection order with or without the assistance of his/her parents or guardian. You will however need the written consent of the person who is the victim of harassment except in circumstances where that person is unable to provide written consent.

Against whom can protection orders be granted?

You can obtain a protection order against any person who perpetrates harassment even if the perpetrator is a child (i.e. a person under the age of 18) who is old enough to appreciate the consequences of his/her actions and who knew or ought to have known that the conduct was harmful. You do not have to be in any form of a domestic relationship with the perpetrator in order to apply for a protection order. Children over the age of 14 are legally regarded as being mature enough to understand the difference between right and wrong and can be criminally charged if they committed a criminal act such as breaching a protection order.

A court may be reluctant to grant an order against a child under the age of 14 as a child under the age of 14 might not necessarily understand the difference between right and wrong. If a child is the respondent in an application for a protection order, the child would need to be assisted by his/her parents or guardian.

What if I don't know who is harassing me?

If you do not know the identity of the person harassing you, you may still apply for a protection order. If the court is satisfied that you are being harassed it may issue a directive directing the South African police to investigate the matter and identify the perpetrator.
If you are being harassed by a person who is using electronic communications such as email, text or telephone or harmful content is being posted on a website, the court may direct the electronic communications service provider concerned to provide details of the perpetrator.

Must I suffer harm before I can apply for a protection order?

No. You may apply for a protection order if you fear that you may be harmed (mentally, psychologically, physically or economically) in future. Your fear that you may suffer harm in future must be reasonable in order for the court to issue an order.

Do I need a lawyer to apply for a protection order?

No. The process for applying for a protection order is intended to be uncomplicated and inexpensive.
The clerks of the court are obliged to explain the procedure to all applicants and are trained to assist applicants and guide them through the process.

Where can I apply for a protection order?

You can apply at a magistrates court:
• in the area where you live;
• in the area where the harassment occurred; or
• in the area with the perpetrator lives.

Can a protection order be granted urgently or after hours?

Yes. A clerk of the court and a magistrate are available for all urgent applications.

What happens if I am harassed even after a protection order has been granted?

If the person against whom you have a protection order, contravenes that order, you may hand the warrant of arrest together with an affidavit to any member of the South African police service.
If it appears to the police officer that you (or a related person) are suffering harm or may suffer imminent harm as a result of the alleged breach of the order he/she must immediately arrest the perpetrator.
If it does not appear to the police officer that you are suffering harm or that you may suffer imminent harm, the perpetrator will be handed a notice to appear in court on a charge of contravening a protection order.
In considering whether or not you are suffering harm or may suffer imminent harm the police officer will take into account the risks to your safety or well-being, the seriousness of the conduct, the length of time since the breach occurred and the nature and extent of harm that you have previously suffered as a result of the actions of the perpetrator.
In addition to reporting the breach of the protection order, you may lay criminal charges if the perpetrator has committed any other crimes.
A person who contravenes a protection order may be held liable on conviction to a fine or imprisonment of a period not exceeding five years. Each instance of breach of the protection order can give rise to a separate charge. If the person has committed other criminal acts in addition to breaching the protection order he or she may face additional fines or a longer period of imprisonment.

 

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