Maintenance Application

 

Please ensure that you download the Maintenance Act as well as the relevant forms from http://www.justice.gov.za/forms/form_mnt.htm

 

In addition please consult J Heaton's Family law textbook, chapter 13.

 

Flow chart in respect of a maintenance enquiry:

 

1.              Client lodges a claim at the magistrate’s court that has jurisdiction to preside over the matter.

 

2.              Application is lodges by completing a standard form obtained from the maintenance prosecutor at the court under oath.

 

3.              The maintenance prosecutor will peruse the application and if satisfied that there is a responsibility to maintain /good cause shown for the variation of an existing order exists, issue the application with a reference/case number.

 

4.              The application as well as a notice to appear in court for an enquiry will be served on the Respondent via either the SAPS or the Sheriff.

 

5.              The Respondent has to appear at court on the date of the application. If he/she fails to attend court and prima facie proof exist that he/she had knowledge of the application – the prosecutor/applicant’s attorney may request that judgement by default is granted.

 

6.              If the respondent attends court on the date of the enquiry the matter will firstly be dealt with informally with an attempt to settle.

 

7.              If the parties cannot settle the matter- the matter will be postponed by a magistrate for trial.

 

8.              Prior to the trial date, either party may approach the prosecutor/the prosecutor on own accord can instruct a maintenance investigator to secure certain information etc.

 

9.              Prior to the trial date the attorneys acting on behalf of the parties will prepare for trial by having subpoenas issued iro witnesses they intend calling during the trial, as well as by indexing and paginating the bundle of documents they wish to use during the maintenance trial and by discovering same.

 

10.          The respective bundles of documents will be exchanged prior to trial, whilst a copy will be made available to the court, the maintenance prosecutor as well as for the witnesses.

 

11.          On the date of trial the applicant will firstly present viva voce evidence. After the applicant testified the respondent’s attorney will have an opportunity to cross-exam, thereafter re-examination by the applicant’s attorney.

 

12.          The applicant’s attorney may call further witnesses to support the application before court. Further witnesses must wait outside the court.

 

13.          Once the applicant has finalised his/her case – the applicant’s attorney will close its case.

 

14.          The respondent will thereafter present his/her case. Again the respondent will lead viva voce evidence and steps 11-13 are repeated.

 

15.          Once the respondent closes his/her case the attorneys of the parties will present arguments to the magistrate, where after the court will make a ruling.