Article on Maintenance Law

Article Keys: Companies and organisations: African National Congress People: Bathabile Dlamini

- bdlive

WHEN Bathabile Dlamini was elected the new president of the African National Congress (ANC) Women’s League earlier this month, she promised that maintenance defaulters would be held to account. "We call on all fathers to pay for and support their children — if they don’t, we will bring them to book."

She was gesturing, in part, to the National Assembly’s passing of the Maintenance Amendment Bill, with its controversial Section 13 that requires convicted violators of maintenance orders to be listed with the various credit bureaus so they are unable to get further credit until they pay child maintenance owed. Holding accountable fathers who would rather spend money on themselves (and their new families) while relegating their children from prior relationships to poverty is perhaps a positive step.

But it is a devastatingly inadequate step unless women have adequate access to justice and the courts can be relied upon to work well enough to issue respectable maintenance orders and the government secures enforcement in individual cases.

To focus solely on either holding maintenance defaulters accountable — and by the very limited mechanism of credit listing — without examining the big picture of how women experience injustice in the legal system is short-sighted.

Meet Zama (not her real name). She grew up in a rural village in KwaZulu-Natal and married Nkani (not his real name) under customary law when they were just out of high school. They never registered their marriage.

They lived with Nkani’s family. After a few years, Nkani took another wife who, after a brief stay in the family homestead, insisted on having her own home in a town almost 100km away.

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NKANI and Zama’s marriage fell apart because, Zama says, Nkani did not adequately provide for their children and her and they fought a lot. Zama felt she was a slave for Nkani’s family and was no longer treated as his wife, and so she left.

After Zama had been living independently in a city for a few years and raising their children on her own, Nkani approached the headman of their families’ ward to initiate a claim for custody of all of Zama’s children.

She had three children from their marriage and a fourth with another man a few years after she had left her marital home.

A meeting — of which Zama was not timeously notified — was called for the matter to be discussed by Nkani and Zama’s families as well as the headman. It concluded that customary law required either that Zama return to her marital family as Nkani’s wife or that all four children go to their father at what was referred to as "their home" and "their family" (because Zulu culture is patrilineal).

The fourth child was also deemed to be Nkani’s child because he had paid lobolo for Zama in full.

Neither option in the ultimatum was palatable to Zama. The indistinction in the customary law system meant the legal status of the ultimatum handed down by the headman and family council was unclear, so Zama feared she might lose her children.

She did not know what her rights were under the Recognition of Customary Marriages Act of 1998 or the Constitution and was concerned about the customary advantage Nkani seemed to possess.

Until she could figure out an alternative, she used a self-help strategy well known to people without means or institutional support: she ignored the decision.

The matter was not pursued further by the headman, who subsequently reported that Zama was being stubborn and not wanting to do the "easier" or "more sensible" (read: socially expected) thing of returning to her husband.

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BUT Nkani, whose mother was ageing and in need of care, periodically petitioned Zama over the phone to hand over the children.

In circumstances in which rural people are all disempowered, men are arguably in a stronger position than women when it comes to protection by legal mechanisms. Nkani mobilised this advantage.

She had initiated a claim against him in the magistrate’s court nearest to his residence for maintenance of the three children they share. She complained that she believed Nkani had bribed a court official so the case would be thwarted. She said the court clerk was rude whenever she phoned to ask about a date for her case.

Whether or not Zama’s hunch was correct, she is not alone in being thwarted. In research I have conducted on access to justice through traditional courts, I have repeatedly come across women who have been similarly defeated by their former partners’ greater ability to navigate or "game" the system.

The recalcitrant partners’ position is often strengthened by their buying justice through civil courts (and police officers) — such as by making formal records such as dockets, files and orders disappear — and they are often preferred by patriarchal traditional courts.

I fear the new maintenance law is inadequate and the hype around it not wholly warranted. It takes for granted that women have adequate access to justice and ability to leverage court decisions.

Mainly, it assumes that the courts are accessible and functional enough, and will give useful maintenance orders.

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IT ALSO assumes that those to whom the maintenance orders are granted will be able to enforce the legal protections they are due, even when the formal institutions will not proactively, supportively or dependably enforce them.

For someone such as Zama, a referral to legal aid services from her relatively remote location was impractical. Free legal services are also overstretched and it is all but impossible for someone such as her to secure an advocate’s representation on a pro bono or contingency basis.

As a lawyer, a woman and a South African, I am left depressed by the experiences these women without means have with the legal system (police, traditional forums and courts) and how it protects the poor. Were I in their shoes, I could not afford the time and cost of trying to enforce my rights. How, then, could they?

Perhaps this new law will make the slightest bit of difference but, until the government drastically shifts power dynamics in the sphere of access to justice and enforcement through judicial forums, I fear it is just window-dressing.

One obvious opportunity for the government to assist, particularly, rural women such as Zama is for it to overhaul the Traditional Courts Bill to address these problems.

The new bill should guarantee women’s rights to represent themselves in traditional court disputes. It should also explicitly exclude maintenance from traditional courts’ jurisdiction.

Rather than confining women to the predominant use of traditional courts defined by apartheid boundaries, the government should strengthen women’s ability to access and effectively use state courts.

• Mnisi Weeks is assistant professor in public policy of excluded populations in the School for Global Inclusion and Social Development at the University of Massachusetts Boston. She has a Carnegie African Diaspora Fellowship at the Centre for Law and Society at UCT.