This is an appeal from a judgment by
a magistrate sitting at Rusape Maintenance Court. In that judgment, the trial
magistrate ordered the appellant to pay maintenance in a total sum of US$220=
in respect of the parties' two minor children.
The brief facts are that:- In the
year 2009, the appellant and respondent started living together as husband and
wife. Their union was blessed with two minor children born on 11 March 2009 and
16 November 2011 respectively. In January 2014, the respondent left the
matrimonial home. She took with her the parties' minor children. On the 29th
of January 2014, the respondent issued summons in the Maintenance Court against
the appellant in terms of section 4(1) of the Maintenance Act [Chapter
5:09] seeking maintenance in the sum of US$220= for the two minor children.
In his response to the summons, the
appellant denied that he had neglected his family. He contended that he has
been providing for his children to the best of his abilities. He also indicated
that his income is such that he cannot afford the sum being claimed. He,
instead, offered a sum of US$40= per month for the two children.
After hearing the parties, the trial
magistrate, in a very brief ruling, granted the respondent maintenance in a sum
of US$75= per child making a total sum of US$150= per month.
It is that decision that the
appellant has appealed against. The appellant's grounds of appeal can best be
summed up as that:-
1.
The learned magistrate erred in not considering the
appellant's evidence that he is not fully employed and thus cannot afford the
sum claimed;
2. The magistrate erred in deciding
in favour of the respondent when the respondent had not proved, on a balance of
probabilities, that the appellant earned the monthly income she alleged; and
3. In the circumstances, the
magistrate erred in making a finding that the appellant is able to pay USD150=
per month.
The major issue is whether the trial
magistrate erred in her assessment of the evidence before her and in coming to
the decision as she did.
A perusal of the record of
proceedings shows a lack of adequate evidence upon which the court could have
made a meaningful decision.
The respondent's claim was for a
total sum of US$220= for the two minor children. Her list of expenses was as
follows;
(i) Rent $40=;
(ii) Lights and water $15=;
(iii) Food and groceries $60=;
(iv) Crèche fees $65= per month;
(v) Clothes (uniforms) $25=;
(vi) Clothes (casual) $20=;
Total $220= per month.
Apart from the bald mention of the
figures there was no justification for any of the sums claimed.
There was no indication that prior
to the separation such had been provided as part of their standard of living.
The same trend pertained to the income she alleged the appellant earned. There
was no indication as to how she arrived at such a figure as the appellant's
income.
Section 4(1) of the Maintenance Act [Chapter
5:09] provides for the summoning of a responsible person upon complaint on oath
that he/she is failing or neglecting to provide reasonable maintenance for his/
her dependants. Section 5(1) of the Maintenance Act [Chapter 5:09] states that
on the day specified in the summons issued, in terms of section 4(1) of the
Maintenance Act [Chapter 5:09], the Maintenance Court shall inquire into the
matter of the complaint.
The inquiry envisaged in section 5 of
the Maintenance Act [Chapter 5:09] is an investigative inquiry so as to be
seized with adequate evidence upon which to make a credible determination.
In Hora v Tafamba
1992 (2) ZLR 348 (S)…., McNALLY JA alluded to the role of a magistrate in such
an inquiry in these words: -
“Generally, the duty of a magistrate
in a maintenance application, more particularly where the parties are
unrepresented, is that of an investigative magistrate. He is not merely an
umpire in a dispute between two sides. He is the upper guardian of the most
important party, the child. He must therefore seek out the relevant facts. He
must ask whatever questions are necessary to enable him to give an adequate
judgment. He must aim to give the child reasonable financial support without
placing an unfair burden on either parent.”
In casu, apart
from the contents of her written statement on oath, the respondent's submission
to the court on the appellant's income and ability to pay was that: -
'Appellant gets more than US$300= a
month. He juices US$10= in airtime a day. He buys and sells computers. He has
state of the art machinery to repair cell phones. He has been paying US$65= for
a child at crèche.'
These are the submissions that led
the trial magistrate to make his decision.
The appellant, on the other hand,
contended that he realises about US$150= per month from the cell phone repair
business. He denied that he earned US$300= per month from the business. He also
indicated that the money for their child who attends crèche is, in fact,
provided by his young brother.
The record of proceedings does not
show that either party was asked to justify their figures; it was a question of
each party merely stating their position.
It is my view that the magistrate
ought to have made an effort to establish the veracity of the statements on the
income and expenditure of the parties. The standard of living of the parties
when they were living together ought to have been inquired upon so as to
determine the standard of living the children were expected to enjoy. In the
absence of such an inquiry, clearly, the magistrate failed to come up with a
figure that the appellant could afford without compromising the children's
standard of living.
In view of the dearth of evidence,
we allowed the parties to make submissions on pertinent issues relevant to
ascertaining the ability of the appellant to pay and the need for the children
to be adequately catered for.
It was clear from the submissions
that since the making of the order on 10 February 2014, the appellant has been
failing to pay. He has been incarcerated on about two occasions for failure to
pay the amount ordered. On each of the occasions of incarceration he was bailed
out by relatives. It was clear to us that his ability to pay was not properly
assessed. He did not impress us as someone who was just stubborn and so willing
to go to prison despite being able to pay. The source of his income was
unstable. It was clear that the appellant did not earn the sum alleged by the
respondent. The respondent could not say how she came up with the figure of
US$300= per month as she was not involved in the appellant's business. The
figure appeared more of her estimation without a sound basis.
It was also clear that the standard
of living she wanted the children to have was not the one the family used to
have. On the crèche fees for their child, she did not dispute the fact that
they were in fact being assisted by the appellant's brother who shares the same
name as that child. To this effect, she did not dispute the various receipts of
money sent by that brother for the child's fees. Thus, whilst the court a quo may have considered the payment
of US$70= for crèche fees as indicative of the appellant's ability to pay, this
was, in fact, not so. The parties themselves could not afford to pay such
school fees.
The documents produced showed that
the appellant had fallen in arrears in respect of some service providers. The
respondent could not deny that this was probably because of the limited revenue
from the appellant's business.
Upon a careful analysis of the
submissions made by the parties we are of the view that the appellant cannot
afford the sum of US$150= per month.
Whilst appreciating the need to
provide reasonable maintenance for the children, we are of the view that the
sum must take into account the ability of the responsible person to pay the sum
and also the standard of living of that responsible person. A maintenance order
is not supposed to be punitive in nature. It must, however, provide adequately
for the children within the appellant's standard of living. We are, however, of
the view that the appellant's offer of US$40= per month for the two minor
children is inadequate. The appellant should be able to pay more than that from
his meagre income.
In the circumstances, we are of the
view that a sum of US$50= per child per month would be within the appellant's
means.
The appeal thus succeeds to the
extent that the order by the court a
quo is hereby set aside and is substituted by the following:-
The appellant is hereby ordered to pay
maintenance for the two minor children in the sum of US$50=00 per month per
child with effect from February 2014 until each child attains the age of 18
years or becomes self supporting whichever is earlier. The maintenance amount
shall be deposited into the respondent's bank account as provided by her.
