"Or what man is there among you who, if his son asks for bread, will give him a stone? Or if he asks for a fish, will he give him a serpent?" if you then being evil, know how do give good gifts to your children, how much more will your father in heaven give good things to those who ask him –
Jesus Christ in Matthew 7 vs 9-10 NKJV
The end times ought to be approaching and approaching fast! If during Jesus' time men had the kindness in their heart to acknowledge and take care of their offspring regardless of the inherent evil they possessed, then today's men have become evil at a whole new level. Whilst maintenance is an obligation of both parents as will be shown in the article, the male half of procreation has been the guilty party in abandoning its blood. However maintenance does not relate to a Parent and Child relationship alone, although it is the predominant relationship that is affected.
WHAT IS MAINTENANCE?
Maintenance is the legal obligation that a responsible person is supposed to pay toward the welfare and upkeep of their dependant. Maintenance is governed by the Maintenance Act [Chapter 5:09]. Maintenance in the legal sense is measured in monetary terms. It is therefore the reasonable amount of money sufficient for the upkeep of a dependant. This amount of money is at all times determined by the circumstances of each case. No single figure can be pegged as the sum to be paid for maintenance as will be shown later in the article. Other aspects of the welfare of the Dependant are governed by the Legal concepts of Custody, Guardianship and Access. The Act defines a dependant in section 2 as "any person whom a responsible person is legally liable to maintain. A responsible person is simply described as a person who is legally liable to maintain another.
To narrow down the difficulties in identifying a dependant the following circumstances can give guidance:
- A Parent and their birth child until the child reaches 18 years of age which is the age of majority. (However after attaining 18 years necessary expenses such as University fees can be claimed as maintenance)
- A Guardian and their adopted Child
- A Spouse and their Spouse who are lawfully married.
- A beneficiary of a deceased estate
- A child and their parent who can no longer maintain themselves (subject to qualification)
- Any other person whom by the order of court is liable to be maintained by a specified person
For the purpose of this article, much focus will be on the Parent and birth child maintenance.
WHEN SHOULD MAINTENANCE BE PAID
Upon birth of a child, both parents have an obligation to maintain their child. By operation of law and indeed through public policy, it is presumed that a reasonable parent will provide for and take care of their child. Maintenance is the sum payable in terms of a maintenance award by a Maintenance Court. Maintenance is therefore payable after the Maintenance court, which is primarily the Magistrates Court has made an award of maintenance. Maintenance is payable for future expenses to be incurred. In the case of Chifamba v Chifamba HH-28-15 Justice Tsanga with Justice Chitakunye concurring made the following remarks:
"A maintenance order cannot be made with retrospective effect. A claim for arrears of maintenance can only be entertained in relation to an order previously made by a court in terms of s 6 of the Maintenance Act [Chapter 5:09]. However, where there has been a previous failure to maintain, such failure may be relevant in assessing how much maintenance should be paid in the future. The more a claimant's resources have been depleted by a defendant's neglect in the past to contribute to maintenance, the greater her need for future maintenance might be. This means that although a maintenance order cannot be made in respect of the past, it can take the past into account."
It is clear from the above that a maintenance claim can therefore not be made claiming amounts of money that date back for instance to the period of time between the child's birth and when the complaint is made. In essence a maintenance award is for future expenses contemplated from the date of the award, if claim is granted. A claim for arrears is only made in respect of unpaid amounts on an existing maintenance order.
PROCEDURE WHEN MAKING MAINTENANCE CLAIM
- Maintenance is paid only when there is a complaint that is made to the maintenance officer (Who is a clerk of Court at the Magistrates Court) that a responsible person is failing to provide reasonable maintenance to their dependant. The complainant has to physically approach the Magistrates court to make complaint unless if they engage a legal practitioner who makes the complaint on their behalf.
- The complaint is made to a magistrates court in the area in which either the neglecting party resides or the court in which the complainant resides. That is called the court of Jurisdiction.
- The complainant then fills a maintenance complaint form, which doubles up as a summons, calling upon the specified responsible person i.e father of child to attend a maintenance enquiry.
- The complainant must indicate their bank account on the form. This will be explained later in the article.
- The Maintenance Officer provides a date on the face of the summons that the parties will attend the maintenance enquiry. This date must accommodate at least seven working days notice to the person receiving the summons.
- On the hearing date, the maintenance enquiry is conducted by a Magistrate who poses various questions to the parties. See guidelines to be discussed below.
- Upon a proper enquiry the Magistrate makes a maintenance award.
WHAT IF THE NEGLECTING PERSON IS OUT OF ZIMBABWE
A number of questions arise as to whether a maintenance award can be obtained against a person who is outside the Country. Zimbabwe is a country which has had migrants into neighbouring countries for various reasons. It is common that a responsible person may abandon their family whilst they are in the diaspora. The law has made certain provisions to capture such situations.
- Section 4 of the Maintenance Orders (Facilities for enforcement) Act allows for an application to be made seeking a maintenance order against any person who is outside Zimbabwe but in a reciprocating country. A reciprocating country is defined as any country within the territory of the common wealth including England and Ireland. Notably, All countries in Southern Africa are in the common wealth.
- The Application can be made in the absence of the responsible person in terms of section 5(1) of the Act and the Applicant has to prove that the person is in a reciprocating country and the justice of the case deserves the order for maintenance.
- A court can only make a provisional order only when an application is made in terms of this section. The Order will however be of no force until it is confirmed by the reciprocating country. The order is transmitted to a court of the reciprocating country through the ministry of Justice.
WHAT HAPPENS IF ONE FAILS TO PAY
In the case of S v Chagomoka HH-584-15 Justice Matanda-Moyo made the following useful remarks on how maintenance defaulters must be treated:
It has never been the intention of the legislature to have defaulters of maintenance serve effective prison terms until the defaulter becomes a habitual offender. Such sentences should only be imposed on very serious wilful defaults. Once a person serves an effective prison term, his or her job is most likely to be lost. Once the job is lost, it means the children would not be looked after. The provisions of the Maintenance Act [Chapter 5:09] ought to be used to ensure that the rights and best interests of children, as enshrined in s 81 of the Constitution are upheld, by holding parents to their duty to maintain their children. The judiciary must endeavour to secure for vulnerable children and disempowered women their small but life-sustaining legal entitlements. It is a function of the State not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weakness of the system.
Magistrates must strive to use other sentencing options that ensure the best interests of the children are catered for. Criminalisation of failure to pay maintenance was a way of ensuring that parents take the issue of maintenance seriously. However, magistrates must familiarise themselves with alternative sentencing principles, that ensure the interests of the children are not compromised. A prison term should be reserved for serious defaulters. Magistrates should make use of payment of fines, periodical imprisonment, writs of execution and suspended sentences.
Further comments which emphasise this point were made by the High Court in the Criminal Appeal of S v Msimbe HH-686-15 wherein it was stated:
"a maintenance order providing for periodical payments, is an obligation arising by operation of law. It is an order to do a particular act. Failure to comply renders the defaulter liable to imprisonment for contempt. See Eeinberg v Weignberg 1958 (2) SA 618 (C) at 621 B –C; Lindsay v Lindsay (2) (1995 (1) ZLR 296 (SC) and S V Kelder 1980 ZLR 331(G).
The rational for the criminal sanction is not punishment for the disobedience for punishment's sake, but rather to coerce the defaulter to comply with the order in future. Understandingly, it is a remedy of last resort, only to be employed when all endeavours to bring the situation under control have failed, or are almost certain to fail. (See Ansah v Ansah  2 ALL ER 638 (CA) at 643 c.)"
FACTORS WHICH GUIDE A COURT IN MAKING MAINTENACE AWARD
Various factors are taken into account before a maintenance award is made. These factors are in terms of section 6 (4) of the Maintenance Act and include:
- The mode of life that the parties had been living.
- The social status of the parties
- The earning capacity per month of the Responsible Person
- The special needs of the child or dependant i.e if there is a medical condition which requires regular medication then that extra expense may be factored in.
- Whether or not the Responsible person has remarried and has another family. This tends to act to reduce the amount of maintenance payable but it does not absolve of liability. But if a spouse remarries, they cease to be entitled to be maintained by the former spouse.
A lot of mothers have had babies dumped in their hands and they have had to suffer alone at the expense of a meandering irresponsible man. They have become so timid to the extent that they believe even if they get a maintenance order, they will never be able to get the money anyway. However the law has put in place enforcement mechanisms for one to get the relief stipulated in the order. These mechanisms include:
- Garnishee orders (having the employer of the person against whom award is made directly deduct the whole or a portion of the award from the salary of the person concerned)
- Payments can be made through the clerk of court to avoid confrontations.
- Direct payments into the Complainant's bank account. This method is easy for the purpose of proving that monies were indeed being paid through the bank statement.
Maintenance is certainly a right and not a privilege. The information above has shown to whom this right is awarded and under what circumstances such right is enforced. The above discussion has been mainly limited to child maintenance. There are other forms of maintenance such as spousal maintenance and Deceased Estate maintenance. These will be discussed in future publications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.