When Bathabile Dlamini was elected as the new president of the ANC Women’s League last month she promised 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 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 issue respectable maintenance orders and the government secures enforcement in individual cases.
Meet Zama. She grew up in a rural village and married Nkani (not their real names) under customary law. They never registered their marriage and lived with Nkani’s family. After a few years‚ Nkani took another wife who insisted on having her own home in a town almost 100km away.
q Zama felt she 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.
A meeting of Nkani and Zama’s families with the headman concluded that customary law required that Zama return to her marital family as Nkani’s wife or that the children go to their father.
Neither option was palatable to Zama. The system meant 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 support: she ignored it.
The headman qreported that Zama was being stubborn and not wanting to do the “right” (read: socially expected) thing of returning to her husband.
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 children.
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.
I have repeatedly come across women who have been defeated by their former partner’s greater ability to navigate the system.
The partner’s position is often strengthened by their buying justice through civil courts (and police officers) – such as by making dockets‚ files and orders disappear.
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, functional‚ and will give useful maintenance orders. 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 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 depressed by the experiences women without means have with the legal system.
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 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 courts, and also exclude maintenance from traditional courts’ jurisdiction.
lMnisi Weeks is assistant professor in excluded populations at the University of Massachusetts Boston. She has a Carnegie African Diaspora Fellowship at UCT. This article appeared in Business Day
New maintenance law rings hollow for women
“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 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 issue respectable maintenance orders and the government secures enforcement in individual cases.
Meet Zama. She grew up in a rural village and married Nkani (not their real names) under customary law. They never registered their marriage and lived with Nkani’s family. After a few years‚ Nkani took another wife who insisted on having her own home in a town almost 100km away.
q Zama felt she 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.
A meeting of Nkani and Zama’s families with the headman concluded that customary law required that Zama return to her marital family as Nkani’s wife or that the children go to their father.
Neither option was palatable to Zama. The system meant 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 support: she ignored it.
The headman qreported that Zama was being stubborn and not wanting to do the “right” (read: socially expected) thing of returning to her husband.
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 children.
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.
I have repeatedly come across women who have been defeated by their former partner’s greater ability to navigate the system.
The partner’s position is often strengthened by their buying justice through civil courts (and police officers) – such as by making dockets‚ files and orders disappear.
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, functional‚ and will give useful maintenance orders. 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 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 depressed by the experiences women without means have with the legal system.
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 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 courts, and also exclude maintenance from traditional courts’ jurisdiction.
lMnisi Weeks is assistant professor in excluded populations at the University of Massachusetts Boston. She has a Carnegie African Diaspora Fellowship at UCT. This article appeared in Business Day
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