Two parts were brought before the urgent court:
Part A That a warrant of arrest that a maintenance court issued to secure a party’s attendance before the maintenance court be suspended whilst
Part B The party against whom the warrant of arrest was issued applies to the High Court to review the maintenance court’s decision to issue such warrant.
We settled Part A) above on the basis that both parties attend the next maintenance court date. The costs of part A will be argued on an opposed basis in the High Court at a later stage.
In our heads of argument for the urgent application our counsel discussed the following parts of the Maintenance Act:
Section 6(2) explicitly differentiates between two processes provided for in the Maintenance Act:
The maintenance investigation; and
The maintenance enquiry.
The process prescribed by the Maintenance Act in section 6 is that, upon receipt of a complaint, a maintenance officer (who is akin to a state prosecutor) shall first investigate the complaint (i.e. conduct a maintenance investigation), whereafter he may institute a formal maintenance enquiry in court. In the present dispute, no formal maintenance enquiry has been instituted by the maintenance officer as he is still in the process of conducting his investigation.
In conducting his investigation, a maintenance officer is entitled by the provisions of regulation 3(1) to direct that both parties are to appear on a specific date and time before him and that they are to produce any relevant documentation which they may have in their possession. Regulation 3(2)(a) gives the maintenance officer a very wide discretion in that a direction in terms of regulation 3(1) may be given in any manner the maintenance officer deems fit. The Maintenance Act and its regulations therefore do not prescribe a process which the maintenance officer must follow in order to deliver his directive.
The contention relied upon by the Applicant for arguing that the warrant of arrest was issued irregularly is that the Applicant ought to have been subpoenaed to appear on 6 March 2018. The Applicant cites sections 7 and 9 of the Maintenance Act in her Founding Affidavit in support of this contention. It should be borne in mind that the Applicant wilfully refused to appear as directed purely based on her belief that the correct process had not been followed by the maintenance officer and/or the magistrate.
Section 7(1) provides for a set of powers which a maintenance officer is entitled (but not obligated) to exercise in the course of conducting a maintenance investigation. One such power is to direct the maintenance investigator (who is a court official) to perform whichever of his functions the maintenance officer deems necessary for the purposes of the investigation at hand. Section 7(2) then provides for a set of functions which such a maintenance investigator can perform, subject to the directions and control of the maintenance officer. One of these functions is to serve subpoenas in respect of criminal proceedings and another is to serve the process of the maintenance court.
It is submitted, with respect, that the Applicant misapprehends the content of section 7 if she believes it requires of a maintenance officer to subpoena her to appear at a maintenance investigation. It is submitted, in this regard, that section 7 merely provides that the subpoena process is one of the various processes which a maintenance officer has at his disposal to aid his maintenance investigation, which he is by no means compelled to utilise.