ENFORCING MAINTENANCE ORDERS

One of the ills plaguing our society is the failure by many people to pay maintenance in accordance with maintenance orders granted by our courts. In many instances people lose faith in the court systems, usually after having had a difficult road to obtain the maintenance order in the first place, because they are unaware of the ways in which maintenance orders can be enforced.

The Maintenance Act provides that maintenance orders can be enforced in the following ways when a person fails to comply with the terms of the orders: 

  1. WARRANTS OF EXECUTION:

A person in whose favour a maintenance order has been granted can approach a maintenance court and apply for a warrant of execution to be issued against the movable property of the person against whom the order was made.

Once a warrant of execution has been issued, it must be taken to sheriff of the court to be executed.

If it is discovered that a person’s movable property is insufficient to satisfy the amounts owed, the person in whose favour an order was granted can return to the maintenance court and apply for a warrant of execution to be issued against immovable property. 

  1. EMOLUMENTS ATTACHMENT ORDERS:

 A person in whose favour of maintenance order has been granted can approach the maintenance court and apply to have the emoluments of the person against whom the order was granted attached.

An emolument is any salary, fee, profit and / or income received as a result of employment and the court is empowered to attach any emolument at present or in future that is owing or accruing to the person against whom the maintenance order was granted.

For these orders to be affected the maintenance officer will serve the order on the employer of the person whom the order was granted against.

After receiving service of an emoluments attachment order, an employer is required to comply with the order and pay the amounts referred to in the order prior to paying a salary over to the person against whom the order was granted.

These orders have commonly become known as Garnishee orders.

In the event that the person again whom the order is granted leaves the employment of the employer who received service of the order, the employer must notify the maintenance officer in writing within seven days. 

  1. ATTACHMENT OF DEBTS:

A person in whose favour a maintenance order has been granted can approach the maintenance court and apply for any debts owed to the person against whom the order is granted to be attached.

A debt in this regard would be any debt which is presently owed or will accrue and/ or be owed in future to the person against whom an order is made.

An order granted in this regard is capable of being enforced as if it was a civil judgement of the court.

  1. BLACKLISTING:

 

As of 1 January 2018 a person in whose favour a maintenance order has been granted also has an additional option to report any failure to pay maintenance to a credit bureau, credit provider and/ or business involved in granting credit or in the credit rating of persons.

This in effect will blacklist a person against whom an order was granted and would damage their credit ratings and / or prevent them being granted further credit.

  1. CRIMINAL CHARGES:

Where a person has not complied with the terms of a maintenance order and it is clear that they had the means to do so, a person in whose favour the maintenance order was been granted can approach the maintenance court and submit a criminal complaint of a failure to pay maintenance.

 

If such a complaint is submitted to the maintenance court, a state prosecutor will issue a criminal summons and pursue criminal charges against a defaulting party.

 

If convicted the maintenance court may direct the defaulting party to serve a prison sentence of up to 3 (three) years.

 

From the above it is clear that there are various options available to enforce maintenance orders.

Nuno Palmeira

 

Changes to the Labour Relations Act and the Right to Strike

The Labour Relations Amendment Bill was recently debated and passed in the National Assembly and has subsequently been submitted to the National Council of Provinces to be ratified.

The Bill proposes significant amendments to the right of employees to strike, by introducing a new mechanism for strikes to be resolved by an advisory arbitration panel. Such a panel will be led by a commissioner appointed by the Commission for Conciliation, Mediation and Arbitration (CCMA), and will have the power to resolve strike action without the employers being required to engage directly with their dissatisfied employees.

Furthermore, the Bill extends the traditional 30-day conciliation period to maximum of 35 days, consequently delaying strike action and causing much dissatisfaction amongst workers and trade unions.

Another controversial element introduced by this Bill, is the requirement for trade unions to take decisions whether to strike by secret ballot. The Bill defines “ballot” as “any system of voting by members that is recorded and in secret”. This is in stark contrast with the established practice of unions to hold open and relatively informal ballots to take these decisions. It is interesting to note that this “ballot-clause” is included in the constitutions of many trade unions, but has never been enforced by government.

This new proposed procedure surrounding strike actions also confers considerable power on employers to prevent a strike in its entirety. If an employer is of the view that a ballot was improperly conducted, they may apply for an interdict against the strike action before it has even begun.

As demonstrated by the widespread acrimony with which these amendments have been received by workers and unions, this Bill imposes significant restrictions on the right to strike – a remarkable irony in the face of the increased protection afforded to workers by other recent Bills such as the National Minimum Wage Bill. However, when one considers the rather tedious enforcement mechanisms proposed by the minimum wage Bill, it is yet to be seen if the recent changes in the South African labour law landscape are favouring the employee or the employer.

Eduane Neethling

The National Minimum Wage Bill and its Enforcement

On 29 May 2018, the National Minimum Wage Bill was submitted to the National Assembly for debate and approval – a development long-awaited by South African workers and labelled by Labour Minister Mildred Oliphant as “groundbreaking”. The Bill was passed and has been sent to the National Council of Provinces for ratification.

The purpose of the Bill, according to the legislator, is to improve social justice, protect workers from unreasonably low wages and promote the process of collective bargaining.

The proposed minimum wages are structured as follows:

R 20-00 per hour for average workers;

R 18-00 per hour for farmworkers;

R 15-00 per hour for domestic workers;

R 11-00 per hour for expanded public works programme workers.

The Bill also determines that it will be unfair labour practice for an employer to unilaterally alter work hours or other conditions of employment when implementing the relevant minimum wage.

Employers can take comfort that the Bill does provide for companies who cannot afford to pay their employees the minimum wage. These companies will be allowed to apply online to the Labour Department for an exemption, which can be granted for a maximum period of one year. Companies registered as small businesses will be granted a period of two years. However, the department will reserve the right to revoke these exemptions if employers violate any labour laws in force.

The enforcement of this Bill is partially dealt with in the (also recently introduced and passed) Basic Conditions of Employment Bill, which will uphold wages determined by each individual sector that are already higher than the proposed national minimum wage.

It is also envisaged that the enforcement of the national minimum wage will be shifted from the Labour Department to the Commission for Conciliation, Mediation and Arbitration (CCMA). This means that, if a worker is not being paid at least the national minimum wage, he/she will need to refer their matter to the CCMA.

This Bill is a clear indicator of the change in the labour law landscape in South Africa which has long since been demanded and fought for by workers and unions alike, and employers should pay close attention to keep abreast of further developments regarding this Bill and other new labour legislation.

Eduane Neethling