NATIONAL child protection week and I’m pointing fingers.
Everywhere government exhorts: protect vulnerable children. So where were the state’s justice officials when Annah Ouma Mthimunye tried to get the maintenance she was owed so she could care for and protect her kids?
And what, in the name of all those vulnerable children who depend on maintenance payments to survive, is a magistrate doing simply ‘writing off’ arrears payments that should have been made to Mthimunye? What kind of ‘protection’ is that?
When she discovered that her money had permanently disappeared thanks to the ruling of the magistrate, Mthimunye headed to the Tshwaraneng Legal Advocacy Centre. Her case was then referred to Webber Wentzel whose pro bono team won a landmark high court victory this week that could mean good news for other parents and their kids who depend on maintenance – a category of children all too often forgotten by the state.
As part of her divorce settlement, Mthimunye had a legally binding court order for child maintenance against her former husband.
He reneged – not unusual in itself – but the justice officials who should have helped did nothing or made things worse, and in her high court case she sued the Minister of Justice, her former husband and no fewer than four prosecutors, officially designated ‘maintenance officers’, supposed to ensure maintenance payments.
Mthimunye’s husband, a teacher, has a long defaulting history. At one stage she obtained a garnishee order but when payment stopped again she discovered he’d quit his job.
That brings us to the heart of the dispute: maintenance officers failed to attach his subsequent pension payout.
Mthimunye followed correct procedure when payments first stopped and once court officials confirmed his resignation with the school she also urged that the pension payout be attached as she feared her former husband would squander the cash.
A senior magistrate told her the maintenance court ‘had no authority’ to do so. ‘This advice was clearly wrong,’ the high court ruled.
Next followed a formal maintenance inquiry, initiated but never heard, that was struck from the roll. Finally a criminal case was brought against her former husband – not the correct procedure to have followed – but after repeated delays the state withdrew charges.
Mthimunye continued to report the growing arrears and to ask that the pension – he’d received over R230 000 – be attached.
One of the maintenance officers told the high court they’d known about the expected payout but had left it to the husband to make good his debt. He conceded that the court’s maintenance officers were ‘not fully familiar’ with Mthimunye’s file. In addition he was ‘not familiar with the whole of the Act, and had only read parts of it.’
The former husband made some payments from the pension but soon fell into arrears again. Less than a year later all the money had gone – much of it drawn from an ATM at a nearby casino – and he owed R24 500 in maintenance.
The dispute was again, incorrectly, sent to the criminal court where he was convicted and sentenced to R2 000 or two years’ imprisonment, wholly suspended on condition he was not found guilty of the same crime during that period. Then come these devastating lines from the high court judgment: ‘The (magistrate’s) court further ruled that the arrears of R24 500 be “written off”. The magistrate gave no reasons for this order.’
Though the law nowhere says that a magistrate can make such an order, and though it was obvious that the order was unjust, unlawful and caused severe hardship, no one thought to challenge the outcome. Not a single official tried to appeal the ruling, or have it reviewed or set aside.
That it was eventually overturned was due to Mthimunye’s own determination.
As the high court pointed out, the duty was on the state, not on her, to take steps against the magistrate’s decision. The proper remedies had ‘simply been disregarded, and the failure of the officers to act as they should have done ‘speaks of gross incompetence and dereliction of duties.’
As a result of all this incompetence, Mthimunye is now unable to get any money back from her former husband and that’s why she asked that the officers and minister pay instead.
At this point in the judgment a reader would be hoping that the grossly negligent maintenance officers would have to pay the money back to her out of their pockets. But the court let them off. Instead the minister must pay what’s she’s owed plus interest.
No-one will begrudge her the money., But there’s a deep irony here: we’re all marking national child protection week by taking the rap for incompetent officers whose actions left vulnerable children without protection.