Maintenance: When A Parent Fails To Pay

When it comes to maintaining a child, it is a well-established principle in South African law that both parents have a duty to maintain a child according to their respective means.The amount of maintenance due to a child from his/her parents is determined by the means of the parents and the needs of the child. The obligation attaches to both parents jointly, but their respective shares of the maintenance obligation is apportioned according to the financial resources and circumstances of each of parent. The parties can easily work out this amount by completing either of these maintenance calculators. One should also know if a parent cannot afford to maintain a child, the duty passes to the grandparents and in certain circumstances if neither the parents nor the grandparents can afford to maintain a child then the duty passes to the child’s siblings.If one of the parents passes away, a child has the right to claim against the deceased parent’s estate. Should a child receive a large amount of inheritance that meets their future needs then often there will not be a maintenance claim from the estate, over and above the inheritance. A child’s claim against a parent’s estate is only if a child is unable to maintain themselves.

One needs to be aware that a child’s maintenance claim has preference over heirs but not over creditors.The amendments to the act have made two very important changes, firstly that parents who default can now have their personal information submitted to credit bureaus and be blacklisted, causing the defaulting parent to not be able to receive credit while blacklisted and still owing maintenance. Secondly, if a defaulting parent cannot be traced, an electronic communication service provider, (e.g. Vodacom, MTN, Cell C or Telkom) can be ordered to provide the court with the defaulters contact information.

If the defaulting party fails to pay maintenance and the order remains unsatisfied for a period of 10 days, the complainant has the following CIVIL AND CRIMINAL REMEDIES:

  • If the defaulting party is unemployed yet owns movable property, then then the complainant should APPLY FOR A WARRANT OF EXECUTION; this authorises the sheriff to attend the defaulting party’s address and attach movable assets, which will be sold on auction and the proceeds paid to the complainant. If the movable property is insufficient, one can proceed against immovable property if the complainant has any.
  • If the defaulting party is employed then the complainant should APPLY FOR AN EMOLUMENTS ATTACHMENT ORDER; this authorises the defaulting party’s employer to deduct a certain amount in monthly instalments from their salary and to pay this directly to the complainant, until the full amount has been paid. If the defaulting party becomes unemployed, the employer must notify the maintenance officer within seven days.
  • If the complainant knows that someone else owes the defaulting party money, the complainant can APPLY FOR AN ORDER FOR THE ATTACHMENT OF DEBT ordering the defaulting party’s debtor to pay the monies owed directly to the complainant.
  • Any person who fails to make a payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a FINE OR TO IMPRISONMENT for a period not exceeding one year or to such imprisonment without the option of a fine, except for the defence of lack of money. A complainant should know that the defaulting party can get arrested however it will not necessarily result in your receiving payment. Generally, what occurs is when the defaulting party is arrested, he/she then immediately pays the arrears and the state drops the charge, practically this is just another means to extract payment.


The complainant can approach the maintenance court to make any of the applications mentioned above. The complainant will need to provide the court with a copy of the court order, where the defaulting party is currently residing together with an explanation on how much money is currently outstanding; how the amount outstanding is calculated; and proof that the amount is outstanding.