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!