As of January, three outstanding provisions of the Maintenance Amendment Act will come into effect, with the new regulations expected to have a significant impact on divorce, and privacy considerations in South Africa.
The main provision (section 2) deals with the investigation of maintenance complaints.
The provision sets out that if a person responsible for maintenance cannot be traced by a maintenance officer and is a customer of an ECSP – electronic communications services provider (eg any ISP or mobile company in South Africa), the maintenance court may now issue an order to one or more ECSPs to provide the contact information of the responsible person.
Essentially if someone who is supposed to be paying maintenance, isn’t (eg a former spouse), the maintenance court can now order that a mobile provider provide their contact information.
The order may only be granted if the court is satisfied that all reasonable efforts have been made by the maintenance officer to locate the defaulter and such efforts have failed.
The service provider may also apply for the cancellation of the order, if it can be proven that no service is provided to the person in question, or if the requested information is not available in its records.
“While this amendment may assist in tracing defaulters who often do everything in their power to evade their maintenance obligations, it adds a further obligation on service providers to comply with information and interception directives – an increasingly complex area of network compliance,” warned Cliffe Dekker Hofmeyr’s Tracy Cohen.
“Banks, telecommunications companies, ISPs and other electronic communications services (ECSPs) are facing increasingly strict laws regarding networks and accessing information pertaining to their use,” she said.
“Most notably, the proposed Cybercrimes and Cybersecurity Bill, tabled last year, added new monitoring obligations for communications service providers and financial institutions.
“The Cybersecurity Bill requires an ECSP (and financial institution) within 72 hours of becoming aware of its network being involved in the commission of a cybercrime, to report it and preserve any information which may be of assistance to law enforcement agencies.”