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The Supreme Court of Appeal (SCA) on 21 July 2022 in a unanimous decision of Z v Z 2022 (5) SA 451 (SCA) dispelled the notion that mothers cannot apply for maintenance on behalf of their young adult children. A few months after the Z v Z decision in October 2022, a mother in the George circuit court had a similar fight on her hands fending for the rights of her adult dependent children to maintenance. Saldanha J set the record straight for divorce matters in the SCA, or maintenance matters in the High Courts or lower courts, as to whether mothers have the locus standi or right to defend their adult dependent children’s maintenance claims until such children becomes self-sufficient. In DWT v MT and Another (WCC) (unreported case no A222/2021, 19-10-2022) (Saldanha J) and Z v Z, the ages of the dependent children ranged between 19, 23 and 25, giving maintenance courts an idea that between the ages of 18 to 25 young adult dependent children can still rely on the safety net of their parents while venturing into the adult world of financial independence.
Despite the Z v Z judgment, the DWT v MT attorneys still advised their clients that the non-custodial parent can stop maintenance payments ipso jure/ex lege the interpretation of a divorce clause in a divorce settlement without investigating if such children are self-sufficient and financially independent.
It became evident from social media and public discourse that the South
African public and some members of the legal fraternity are still under the misguided notion that custodial mothers do not have locus standi to pursue maintenance claims on behalf of their adult dependent children. It is obvious that the Z v Z case created a lacuna for legal representatives to advise their clients that the Z v Z case is only applicable to divorce matters in the High Court.
Applicability to other adult children
The question is whether the Z v Z case is applicable to other maintenance cases where no divorce proceedings were instituted. The short answer is affirmative since it is a SCA matter.
Unfortunately, some legal representatives including attorneys and advocates interpret the law to suit the needs of their clients and not the rights and needs of adult dependent children. For this reason, it is so important that a uniform approach is crafted by the Department of Justice (DOJ), which in turn will filter down to DOJ justice officials in maintenance courts, public prosecutors deemed maintenance officers in courts, the legal fraternity, magistrates, and judges.
Maintenance courts and maintenance officers (public prosecutors deemed maintenance officers in terms of s 4(1) of the Maintenance Act 99 of 1998, as well as maintenance officers appointed in terms of s 4(2) of the Maintenance Act) should take note of the case law pertaining to adult dependent children including Z v Z and DWT v MT and apply it in s 6 applications for discharge based on the young adult children reaching the age of majority as per s 17 of the Children’s Act 38 of 2005. The criteria should be that these young adults either still live with the custodial parent, studying at residence but still return over weekends and holidays to their family homes and still in need of financial support from both parents.
Psychological position of young adult children and social impact
I feel compelled to elaborate on the dire status of young adults who have just turned 18 and reiterate that they do not automatically become independent adults by attaining the s 17 (Children’s Act) age of majority. Within the South African context, many 18-year-olds are still completing their final year of secondary schooling, taking a gap year for various reasons. It is imperative that these facts are understood by those working in the space of maintenance and its impact on young adults and be cognisant of where young adult children find themselves. To elaborate on some of these facts, one is that the economic climate does not allow for young adults to forge a way to gain experience and earn an income. We see this with young graduates too. They struggle to land a job even after graduating from tertiary education. As a result, this remains a bone of contention in the light of what is the acceptable age for parents to stop financially supporting young adult children, but until we understand pragmatically what young adults are facing, we will continue to miss the mark of the best interests of the child and integrating them to becoming self-sufficient citizens, who will contribute to the economy and not be dependent on the state when they fall pregnant or become depressed from low job satisfaction, as a result of taking whatever job they can to earn an income and not pursue better prospects due to lack of financial support from the parent/s.
In many of the cases I have mediated between a parent and young adult child, these young adults experience great amounts of anxiety having to face their parent (usually fathers) in court and plead that their basic needs be met. These young adults are in academic institutions, showing great propensity to finish their studies to truly become self-sufficient. This anxiety affects them enormously, causing insomnia, eating disorders, and having to consult with doctors as a result of the emotional turmoil experienced. Some young adult children end up seeking unhealthy relationships with men and women that can fund their studies. As an advocate fighting against human trafficking, I have interviewed many survivors who saw the red flags but were in desperate need of financial support to complete their studies or help support their households.
These students often have to miss lectures and compulsory practical training to attend court dates, where their fathers do not appear repeatedly and are intimidated by their father’s legal representative, causing undue stress in having to get permission to miss practical training, which adversely affects their overall semester marks. In the wake of the SCA acknowledging most children are not financially independent by the time they attain majority at the age 18, it is imperative to realise that they do not have the emotional maturity to defend their contribution to the food bill and electricity while living with the custodian parent and younger siblings. I have witnessed that it causes tension between siblings within the household and strains the relationship between the young adult child and parents. Children do not have the maturity to explain expenses incurred during the course of a month in the household that a custodial parent can easily explain and verify in bank statements and expenditure receipts and, therefore, I accede to the ch 5 recommendations of the South African Law Review Commission Discussion Paper 157 – Project 100B: Review of the Maintenance Act 99 of 1998 (see N Ruiters ‘Applying for maintenance on behalf of adult children’ 2023 (Jan/Feb) DR 17). Chapter 5 deals with the locus standi of mothers in the maintenance courts.
Status quo in South African maintenance courts
It has become common practice for maintenance courts to take maintenance files to magistrates to discharge maintenance orders without calling maintenance dependent mothers and their adult dependent children into maintenance courts to confirm if such maintenance contributions are still needed. This amounts to a practice of unilateral discharging orders without applying the audi alteram partem principle and consulting the custodial parent and the adult dependent child in the process.
Proposed way forward
The DOJ can assist by issuing a circular to the 454 maintenance courts in South Africa with 186 maintenance officers and 229 maintenance investigators. Maintenance clerks at the helm of maintenance courts should also be included in the circular to inform the frontline staff to advise non-custodial parents on ‘good cause’ and the s 6 criteria before such discharge orders are heard in maintenance courts.
The Legal Practice Council should be encouraging their registered legal practitioners to advise their clients to approach the maintenance courts on a J107 to apply on ‘good cause’ for a discharge of the maintenance order of adult dependent children and not unilaterally interpret divorce court orders to the benefit of their client but taking the best interests of the adult dependent children to heart. If legal practitioners are encouraged in a circular to advise non-custodial parents to approach maintenance courts for s 6 discharge orders by proving ‘good cause’, the South African communities might have less estranged relationships between parent and child, and to furthermore preserve these relationships, as family is the fibre of community and will reduce the social ills we are experiencing.
The National Prosecuting Authority (NPA) as s 4(1) deemed maintenance officers, should follow suit and issue a circular and train their prosecutors in the rights of adult dependent children. Maintenance inquiries are included in ch 26 of the NPA Policy on Maintenance and, therefore, place a duty on prosecutors to assist in maintenance inquiries including adult dependent children discharge applications.
Furthermore, it is proposed that maintenance officers and clerks be conversant in mediation as a form of alternative dispute resolution and the tool it can be used to restore relationships while addressing maintenance issues, allowing all parties to be fully heard in a non-threatening environment. This is extremely useful for instances where young adult children are already applicants in the maintenance courts. This would heed to the Supreme Court of Appeal recommending that ‘dependent children should also remain removed from the conflict between their divorcing parents for as long as possible, unless they elect to themselves assert their rights to the duty of support’ (Z v Z at para 17).
Conclusion
The judgment of DWT v MT will hopefully dispel the notion that mothers in the local maintenance courts do have locus standi in maintenance matters pertaining to their adult children. Hopefully maintenance officers will be able to use the Z v Z and DWT v MT decisions to reject non-custodial parent’s applications for discharge of maintenance orders solely based on the minor child turning 18 and deemed an adult in terms of s 17 of the Children’s Act.
Natalie Ruiters BA Psychology (UWC) is a member of the Social Justice Association of Mediators, accredited by NABFAM and the founder of La Poppie Mediations in Cape Town.
This article was first published in De Rebus in 2023 (Nov) DR 16.
Picture source: De Rebus
