The
appellant was arraigned before the Provisional Magistrate, Harare on 11
December 2013 and charged with contravening section 23(1) of the Maintenance
Act [Chapter 5:09]. The charge preferred against the applicant was couched as
follows:-
“In
that on 31st March 2011, and Harare Civil Court, the accused was
ordered by the Magistrate to pay US$800= per month ...
The
appellant was arraigned before the Provisional Magistrate, Harare on 11
December 2013 and charged with contravening section 23(1) of the Maintenance
Act [Chapter 5:09]. The charge preferred against the applicant was couched as
follows:-
“In
that on 31st March 2011, and Harare Civil Court, the accused was
ordered by the Magistrate to pay US$800= per month as maintenance fee for his
four children. The accused person then failed to pay maintenance and is in
total arrears of US$6,660=.”
Although
the State Outline is not drafted in a detailed manner, it captures the material
facts upon which the charge is premised. The complainant in the maintenance
matter is one Michelle Lisa Crawford who was married to the appellant but the
parties are now divorced. Apparently four children were born out of this
marriage. It is unclear if the maintenance order was granted before or after
the divorce. It is common cause that on 31 March 2011, the appellant was
ordered by the Magistrate Civil Court to pay US$800= per month as maintenance
for the four children. The appellant has since accumulated arrears to the tune
of US$6,660=. The details of how the maintenance arrears are calculated are not
given. Be that as it may, the graveman of the offence is that the
appellant did not comply with the maintenance order and is in arrears of US$6,660=
as at the time of his prosecution.
The
appellant, who was not represented in the court a quo,
pleaded guilty to the charge and was duly convicted….,.
In
view of the subsequent application for bail pending appeal by the appellant to
the court a quo, the grounds of appeal and
submissions made by counsel for the appellant before this court during the
appeal hearing it is prudent to capture the short but precise proceedings as
recorded in the court a quo.
“CHARGE
PUT
I
understand and admit
271(2)(B)
FACTS
AGREED
I
understand and agree.
ESSENTIAL
ELEMENTS
Q.
So it is correct that on 31/03/11 at Harare Civil Court you were ordered to pay
$800= per month as maintenance for your 4 minor children?
A.
Yes.
Q.
Correct that you defaulted in paying maintenance that you are now in arrears of
$6,660=?
A.
Yes.
Q.
You know it was unlawful?
A.
Yes.
Q.
Any defence?
A.
No.
BY
COURT
Guilty
as charged
NO
RECORD
MITIGATION
Aged
41. Divorced with 4 children. Not employed. I have $50= on person. No valuable
assets.”
After
this inquiry into mitigation brief reasons were then given….,.
On
16 December 2013, five days later, the appellant noted an appeal with this
court against both the conviction and sentence. The grounds of appeal which
inform the application made in the court a quo
for bail pending appeal and the submissions made before the court in support of
the appeal can be summarised as follows:-
(a)
That the appellant pleaded not guilty to the charge as he had no means to pay
maintenance and therefore he had a valid defence to the charge.
(b)
That the court a quo failed to enter a plea of
not guilty tendered.
(c)
That appellant is challenging how the amount of $6,600= was arrived at.
(d)
That appellant's answers to the effect that he knew that his conduct was
unlawful and that he had no defence to the charge should not be taken as the
correct position.
(e)
That the nature of the mitigation given by the appellant in the court a quo should have resulted in the court a quo altering the plea of guilty to one of not guilty.
(f)
That the sentence imposed induces a sense of shock because the appellant is
unable to pay the arrears of $6,600= by the due date given which is 31/01/14
and that the term of imprisonment is draconian.
On
20 December 2013, the appellant, now represented by Mr Harvey, who had filed a
notice
of appeal with this court, made an application for bail pending appeal before
the court a quo.
The submissions made by Mr Harvey at p17 of the
record of proceedings are difficult to appreciate. All one can ultimately
discern is that the appellant made an application for bail pending appeal based
on the grounds of appeal I alluded to.
The
appellant was unsuccessful.
In
dismissing the application for bail pending appeal, the court a quo reasoned that the proceedings were in terms of section
271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and that
the appellant had admitted to the essential elements of the offence. The court a quo did find that there was therefore no basis for the
appellant's review or appeal. The court a quo further stated
that if the appellant had no means to comply with the maintenance order he
should have applied for the downward variation of the maintenance order as
provided for in section 8 of the Maintenance Act [Chapter 5:09]. On that basis
the application was dismissed.
It
is this decision which has irked the appellant hence the appeal to this court.
