Electronic communications service providers and maintenance defaulters

[19 December 2018] The Maintenance Act has been amended and section 7 came into effect on the 5th of January 2018.

Under section 7 where a maintenance court – upon application made by a maintenance officer – is satisfied that all reasonable efforts to locate the whereabouts of a person have failed it may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner, with the contact information of the person in question if that person is in fact a customer of the electronic communications service provider.

Statutory compensation is payable to the electronic communications service provider for provision of this information to a Maintenance Court, and this cost is borne by the person lodging the complaint unless otherwise ordered.

The direction:

  • Must be delivered to the electronic communications service provider either by email, fax or registered post and the party sending the direction must retain proof that the direction has been received by the electronic communications service provider;
  • Specify a time period for response; and
  • Specify that the electronic communications service provider may apply to the maintenance court for an extension of the allowed time or the cancellation of the direction on the grounds that it the target of the direction is not a customer or because the requested information is not available.

The procedure is broadly similar to that set out in the Protection from Harassment Act 17 of 2011 (“PFHA”) and the maintenance courts rely on the list of electronic communications service providers maintained under that Act.

Examples of the relevant forms to be used can be found below:

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[16 September 2015] The Maintenance Amendment Act 9 of 2015 has been published in the Government Gazette for general information.

Maintenance Amendment Act 9 of 2015

While the majority of the Act came into force on publication on 9 September 2015, provisions relating to electronic communications service providers will only come into force at a future date to be proclaimed by the President (presumably to allow the necessary regulations to be finalised).

Under the Maintenance Act as amended, where a maintenance court – upon application made by a maintenance officer – is satisfied that all reasonable efforts to locate the whereabouts of a person have failed it may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner, with the contact information of the person in question if that person is in fact a customer of the service provider.

Definition of “electronic communications service provider”:

For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service. service.”.

The direction

  • Must be served in a manner to be prescribed in regulations to be drafted
  • Specify a time period for response
  • Specify that the electronic communications service provider may apply to the maintenance court for an extension of the allowed time or the cancellation of the direction on the grounds that it the target of the direction is not a customer or because the requested information is not available

The procedure is broadly similar to that set out in the Protection from Harassment Act 17 of 2011 (“PFHA”) and the maintenance courts will rely on the list of electronic communications service providers maintained under that Act. Service providers are entitled to be reimbursed according to a tariff as determined in the PFHA.

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[10 December 2014] The Maintenance Amendment Bill is now open for public comment with the deadline for submissions being Friday, 16 January 2015. Comments can be emailed to Mr V Ramaano at vramaano@parliament.gov.za.

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[7 November 2014] Proposed amendments to the Maintenance Act 1998 formally introduced into Parliament this week seek to enlist the assistance of electronic communications service providers in obtaining information about maintenance defaulters who cannot be located.

The Maintenance Amendment Bill [B16-2014] aims to amend section 7 of the Maintenance Act which deals with the investigation of maintenance complaints by empowering a maintenance court to issue a direction directing one or more electronic communications service providers to furnish the court with the prescribed contact information of a person who may be affected by an order of a maintenance court if that person is in fact a customer of the service provider. The direction may only be issued if the court is satisfied that all reasonable efforts to locate the person in question have proved fruitless. Statutory compensation is payable to the electronic communications service providers for provision of this information to a Maintenance Court, and this cost is borne by the person lodging the complaint unless otherwise ordered.

Maintenance Amendment Bill B16-2014 

The relevant excerpt from the Amendment Bill reads as follows:

Amendment of section 7 of Act 99 of 1998

  1. Section 7 of the principal Act is hereby amended by the addition of the following subsection:

‘‘(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have not borne fruit, the maintenance officer may apply to the maintenance court, in the prescribed manner and using the prescribed form, to issue a direction as contemplated in this subsection.

(b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have not borne fruit, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner by means of an affidavit in the prescribed form, with the prescribed contact information of the person in question if that person is in fact a customer of the service provider.

(c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner.

(d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction.

(e) An electronic communications service provider on which a direction is served may, in the prescribed manner by means of an affidavit in the prescribed form, apply to the maintenance court for—

(i) an extension of the period referred to in paragraph (d) for a further period on the grounds that the information cannot be provided timeously; or

(ii) the cancellation of the direction on the grounds that—

(aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or

(bb) the requested information is not available in the records of the electronic communications service provider.

(f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed form and in the prescribed manner, of the outcome of the application.

(g) The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection.

(h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4(8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection and are, subject to section 20, payable by the person lodging the complaint referred to in paragraph (a).

(i) For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.’’.

 

 

 

2018-12-19T12:32:38+00:00Dec 19th, 2018|legislation, miscellaneous, snippets|