By Sanette Viljoen
Johnny is 17 and in a relationship with an older woman. The woman falls pregnant and it is accepted that Johnny is the father. However, Johnny is young and unemployed. He has no form of income and is still living with his parents. The woman refuses Johnny visiting rights to his child, as he is not paying maintenance.
The fact that the father is not paying maintenance does not mean he may not see his child. The legal principles “Control and supervision” (rights of access) and “Maintenance” have nothing to do with each other whatsoever. These are completely separate legal aspects, which must also be judged by separate courts. The one cannot be applied as proviso for the other.
The other truth is that there are also rules in the Maintenance Act 99 of 1998 that stipulate that if the father cannot pay maintenance, on the surmise that he is indeed the father of the minor child and that he is dutybound to pay maintenance, there are other persons in his family who are also dutybound to pay maintenance, namely the father’s parents or even other blood relatives, for example the father’s brothers and sisters.
The court may therefore order that the baby’s grandfather and grandmother pay the maintenance, but maintenance may not be used as reason for refusing visitation.
In these circumstances it would be best to obtain expert legal advice from a person who works with these kinds of cases on a daily basis, as the issue is not always as straightforward as it might seem.