Civil
Appeal
MWAYERA J:
The
appeal is against the entire judgment of the court a quo wherein, the
court ordered that, the appellant pays maintenance in the sum of
$350-00 per month until the respondent becomes self-supportive. The
appellant raised grounds of appeal as follows:
“1.
The learned magistrate erred and misdirected herself in awarding the
applicant an order for maintenance when the Maintenance Act does for
provide for applications for maintenance by children who are above 18
years of age.
2.
The learned magistrate erred and misdirected herself in giving an
order that does not have a time frame. To say until the beneficiary
becomes self-supportive does not mean anything as the beneficiary can
become self-supportive after 40 years or not at all. The order is
clearly devoid for vagueness and is difficult to comply with.
3.
The learned magistrate erred and misdirected herself in holding that
the respondent fell within the defination of a dependant in terms of
the maintenance Act. This interpretation was clearly incorrect.
4.
The learned magistrate erred and misdirected herself in failing to
realise that where there is need to have a maintenance order extended
such an application is made in terms of s11(2) of the Maintenance Act
which is clear to the effect that it has to be made before the child
turns 18 years. 4(1) if it was possible after 18 years a child could
still make a fresh application for maintenance then in all legal
reasoning s11(2) of the maintenance Act would not be necessary.
5.
The learned magistrate also erred and misdirected herself in awarding
respondent a huge figure of $350-00 without taking into consideration
the fact that the appellant has other maintenance orders in respect
of 3 other children that he is paying $800-00 for, in addition he
pays school fees and attends to those children's other educational
needs.
6.
The learned magistrate erred and misdirected herself in falling to
take into consideration the fact that, the appellant is married and
has a legal obligation to also look after his family.
7.
The learned magistrate erred and misdirected herself in failing to
take into consideration the fact that 'A' level falls out of the
scope of mandatory level of education which is ordinary level. The
respondent therefore does not qualify for any further maintenance
beyond the age of 18 years.
8.
The learned magistrate also erred and misdirected herself in awarding
the respondent a maintenance order simply because she is still in
school. A person can choose to remain in school until the age of 40
years. She ought to have simply considered if the respondent
qualified to be a dependant in terms of the Maintenance Act.
8(i)
in any case, extension of maintenance orders even when done properly
in terms of the Act are not ordinarily granted. There has to be
exceptional circumstances and none were pleaded by the respondent.
Being in school is not an exceptional circumstance as any interested
person may choose to remain in school until they get old.
9.
In the circumstances the appellant prays that the maintenance order
by the learned magistrate be set aside and in its place an order
dismissing the application with costs. Should the honourable court
uphold the decision of the learned magistrate the appellant will pray
for an order reducing the maintenance order to US$100-00 per month
with effect from 30 June 2014.”
The
facts forming the background to this appeal, as discerned from papers
filed of record, may briefly be summarised as follows:
The
appellant is the father of the respondent. Pursuant to granting of a
decree of divorce to the appellant and the mother of the respondent
one Angeline Munyeza Undenge, a maintenance award was granted for the
upkeep of the respondent and her other sibling. Upon the respondent
attaining the age of 18 the order automatically terminated by
operation of the law.
The
respondent, who at the relevant time was in upper sixth form at Lord
Malvern High School in Harare, made an application for continuance of
maintenance as she was still not self-sustaining and aspired to
pursue tertiary training.
The
magistrate's court granted the order and the appellant was ordered
to pay $350-00 per month as maintenance for the respondent until the
she becomes self-supporting.
Irked
by this decision of the court a quo appellant lodged the present
appeal with this court.
Maintenance
issues are a governed by the Maintenance Act [5:09], (herein referred
to as the Act) to an extent the Matrimonial Causes Act [Chapter 5:13]
and the Constitution of Zimbabwe Amendment (No.20) Act 2013.
Section
19 of the Constitution on children reads:
“(1)
The state must adopt policies and measures to ensure that in matters
relating to children the best interest of children concerned are
paramount. (my emphasis)
(2)
The state must adopt reasonable policies and measures within the
limits of the resources available to it, to ensure that children -
(a)…,.
(b)…….
(c)
are protected from maltreatment, neglect or any form of abuse.
(d)
have access to appropriate education and training.” (my emphasis)
Section
20 on youth reads:
“(1)
the State and all institutions and agencies of government at every
level must take reasonable measures, including affirmative action
programmes, to ensure that youths, that is to say people between the
ages of fifteen and thirty five years -
(a)
have access to appropriate education, and training.”
Section
25 on the Protection of the Family reads:
“The
state and all institutions and agencies of government at every level
must protect and foster the institution of family and in particular
must endeavour, within the limits of the sources available to them,
to adopt measures for -
(a)
the provision of care and assistance to mothers, fathers and other
family members who have charge of children; and
(b)
the prevention of domestic violence.”
Domestic
violence in my view would be all inclusive ranging from economic
violence that is neglect, emotional violence to physical violence.
Section
27 on Education reads:
“27(1)
the state must take all practical measures to promote -
(a)
free and compulsory basic education for children; and
(b)
higher and tertiary education.” (underlining my emphasis)
A
reading of these sections of the Constitution shows the emphasis
placed on education and training. There appears to be no mention, as
suggested by the appellant, that 'A' level falls out of the scope
of the mandatory level of education.
The
Maintenance Act is a piece of legislation which has, among others,
the fundamental purpose of upholding the rights of dependents. The
Act makes provision to ensure that dependents and children are
catered for and looked after by the responsible persons.
A
maintenance court beset with a maintenance application initial, or
subsequent for downward or upward variation of necessity has to look
at the following aspects:
1.
Is the party from whom maintenance is being claimed responsible in
other words duty bound to maintain the claimant.
2.
Is the applicant or claimant entitled to maintenance as a dependent.
3.
Does the responsible person have the means to maintain.
4.
Has the responsible person neglected the obligation of maintaining as
expected by the law.
The
Act, in the interpretation section, clearly defines a dependant and
responsible person respectively.
A
'dependent' in relation to a responsible person means any person
whom the responsible person is legally liable to maintain; and
A
'responsible person' means a person who is legally liable to
maintain another.
In
this case the appellant is the father of the respondent who at the
time of award of the order by the court a quo, was not
self-sustaining by virtue of being an upper 6th student.
The
respondent was therefore a dependent as defined in the Act.
Section
4(2) makes it clear that a dependent or any other person having the
care of the dependent may apply to the maintenance court claiming
maintenance from a responsible person who fails or neglects to
provide reasonable maintenance for the dependent. Section 4(2) is
instructive and it reads:
“A
complaint in terms of subsection (1) may be laid by the dependent or
by some other person having care or custody of the dependent or by a
probation officer.” (underlining my emphasis)
In
casu the respondent having turned 18 had the existing maintenance
order automatically discharged in terms of s11(1)(2). The respondent
was however, still not self-sustaining since she was still in upper
6th. She was still a dependent in terms of the law and rightfully as
provided by the law, she mounted an application for maintenance from
the responsible person her father.
The
respondent was clothed by the law with locus standi in judicio.
For
starters she was still in need of maintenance as a dependent from the
responsible person her father. Secondly she had capacity to bring the
claim to sue for maintenance in person since she had attained the
legal age of majority. Lastly she was empowered to claim by virtue of
the Constitution and the Maintenance Act as she still required to
pursue her education and training to enable her to be
self-sustaining.
Section
11(2) of the Maintenance Act [Chapter 5:09] reads:
“A
maintenance court where an order is for the time being registered
may, upon an application being made to it by or on behalf of a child
who attains the age of eighteen years in whose favour an order has
been made and upon due inquiry to which section eight shall apply,
Mutatis Mutandis, extend the order for such period and on such terms
as the maintenance court thinks fit.”
The
wording of s11(2) does not, by any chance, bar a child who has
attained 18 from making an application for maintenance given the
automatic discharge upon turning 18.
The
argument by the appellant that the application has to be made before
the child attains 18 is mere semising with no legal foundation.
It
would be illogical for the legislature to seek to allow the child to
lodge an application on his own behalf on attaining 18 and then also
seek to bar self representation by insistence on application for
extension being made before the child turns 18.
In
fact the whole Maintenance Act does not preclude an 18 year old from
claiming maintenance. The Act lucidly and clearly allows a dependant
to claim maintenance from a responsible person.
Section
2, s6(2) as read with s4 of the Maintenance Act outline the
prerequisites for maintenance consideration.
A
dependent child is not excluded and has a right to education and
training as provided for in the Zimbabwean Constitution.
Clearly
the Maintenance Act was enacted to protect the rights of dependants
in situations where the responsible persons are held to be neglecting
the obligation of maintaining and sustaining dependents squarely
placed on them by the law.
If
I may digress a little at this stage and point out that from the
appellant's submission he is one such “responsible” person
defined in the Maintenance Act who has had to be ordered to maintain
his dependents by a court which will have after enquiry deduced that
he is the responsible person with means but neglecting his
obligations.
I
say so because gleaning from the heads of argument filed on behalf of
the appellant para 4 there are other current maintenance orders
issued by the Maintenance Court:
“….if
the learned magistrate had correctly considered the appellant's
earnings of less than $2,000 per month and the fact that he has 3
other maintenance orders to comply with that he has since remarried
and also that he has other family responsibilities, then she would
have awarded an order not exceeding $100. ……” (underlining my
emphasis)
The
“responsible” person is duty bound per the Maintenance Act but
needs to be cajoled by court orders to take up his responsibility to
take care of his dependents.
The
court a quo, surely beset, by the man who is duty bound to see to his
18 year old child in upper 6th complete education and training
resisting the legal obligation bordering on neglect surely had to
make provision for the dependant's needs.
A
close look at the record of proceedings in particular the reasons for
the decision of the court a quo reveals the court considered all
necessary factors before coming up with a decision.
The
court a quo dismissed the point in limine that the respondent could
not bring a maintenance application on her own as clearly s11(2)
empowers her to bring up an application.
Even
s4 as read with s6 does not preclude the respondent from claiming
maintenance.
The
trial court further made a finding that the respondent was still not
self-supportive and that remained a dependent in need of assistance.
The
appellant being the father, was held to be the responsible person to
maintain the respondent.
The
court made an assessment of the respondents needs and balanced it
with the appellants' income and expenses p7 of record last
paragraph:
“The
court is of the humble view that $150 for food for one child is more
than enough and also considering that the respondent has other
children and he is realising $1,000”.
The
trial court in coming up with an appropriate maintenance order took
into account the requirements to be satisfied before granting on
order.
It
is settled an appeal court should not be quick to upset the trial
court's decision for the obvious reason that the trial court has
the opportunity to assess evidence. Only in exceptional circumstances
where the trial court will have improperly exercised its discretion
and misdirected itself should the appeal court interfere with the
court a quo's findings.
In
the case of Barrows and Another v Chimpondah 1999 (1) ZLR 58 Gubbay
CJ (as he then was) made pertinent remarks on the general test for
interference with lower court decision when he remarked:
“These
grounds are firmly entrenched. It is not enough that the appellate
court considers that if it had been in the position of the primary
court, it would have taken a different course. It must appear that
some error has been made in exercising the discretion. If the primary
court act upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it mistakes facts, if it
does not take into account some relevant consideration then, its
determination should be reviewed and the appellate court may exercise
its own discretion in substitution provided always it has materials
for doing so. In short, this court is not imbued with the same broad
discretion as was enjoined by the trial court.”
See
also BHP Minerals Zimbabwe (Pvt) Ltd v Cranny Takawira SC81/99.
It
is apparent that where there is no misdirection, the appellate court
should not be quick to interfere with the decision of the court a
quo.
In
casu having considered the requirement on whether or not to grant
maintenance the court a quo correctly, procedurally and in terms of
the law came up with a maintenance award. The fact that the
respondent had turned 18 at the time of application is no bar for
grant of maintenance. The respondent was not self-supportive and the
appellant was held the “responsible” person for the maintenance.
The
maintenance award was after due consideration of all relevant factors
and cannot be viewed as outrageous given the need for tertiary
training.
The
argument that the order is vague and difficult to comply with cannot
be sustained either.
We
are not persuaded by the appellant's argument that the order is
vague because it is specific that maintenance is to be paid till the
respondent becomes self-supportive.
The
appellant unsurprisingly, in a dramatic fashion, given the history of
maintenance orders suggests the appellant might get to 40 still not
being self-sustaining.
Maintenance
is a creature of statue and clearly regulated by the Maintenance Act.
In the event of a party being aggrieved because of change of
circumstances there is provision for downward and upward variation or
better still discharge.
The
order issued by the trial court is specific that the appellant is to
pay $350 maintenance per month till the respondent becomes
self-supportive. It follows once she becomes self-supportive the
order terminates. There is no ambiguity in the order which cannot be
regulated by the relevant statute warranting interference with the
court a quo's decision.
The
appeal lacks merit and must fail.
Accordingly,
IT IS ORDERED THAT:
1.
The appeal be and is hereby dismissed.
2.
The appellant shall pay the respondent's costs on an ordinary
scale.
MAKONI
J agrees:_____________________
Farai
Nyamayaro Law Chambers, appellant's legal practitioners
Mambosasa,
respondent's legal practitioners
