Exposing the weakness of our maintenance law

THE law lays down that both parents have a duty to maintain their minor children, each according to his or her own means or ability. The way society is structured generally in Africa and Zimbabwe in particular, is such that the burden of fending for the minor children and indeed, the whole family, lies more on the father’s shoulders as they are the ones who, in the vast majority of cases, are endowed with the means by which to win bread.

So when maintenance orders are issued, they are usually against the fathers rather than the mothers. In fact, cases of fathers approaching the courts for maintenance of the minor children or for themselves are rare. Consequently, it is the fathers who have been jailed for failure to obey maintenance orders. I shall return to this later as it is the main matter.

In this discussion, my objective is to examine and discuss the law relating to the enforcement of maintenance orders. I, however, begin from a somewhat off-topic premise but this is necessary for a good understanding of the matter.

There are several types of orders or judgements that the courts issue in civil cases.

The most common are judgements for the payment of money. Then there are judgements for specific performance.

Judgements for specific performance will be ordering the persons against whom they are made to perform certain specified acts such as abiding by the terms of a contract or the delivery of a thing or property that was the subject of the court action to specified persons or places.

Other orders may direct employers to reinstate unlawfully dismissed employees to their former positions.

The courts also have the power to issue judgements directing a person to stop a certain act that is already in progress or that is anticipated. The legal term for such an order is an interdict or an injunction. The list is almost without end.

The manner by which a judgement is enforced depends on its nature.

With respect to judgements for the payment of money, failure by the person against whom the judgement is made, called the judgement debtor, will result in attachment, removal and sale of that person’s property, the purpose of which will be to raise the claimed amount. For certain acts of specific performance, the Sheriff of the High Court or the Messenger of the Magistrate’s Court can actually physically perform the task himself.

This occurs in situations such as when a person refuses to vacate rented premises despite the presence of a court order directing him to move from the property or declines to deliver movable property to the place or person stated in the court order. Note, however, that the Sheriff or Messenger is absolutely powerless when it comes to an order directing an employer to re-employ a former employee whose contract of employment had been unlawfully terminated.

In such circumstances, the court will couple its reinstatement order with the option to pay the employee damages in lieu of reinstatement. Should the employer feel uncomfortable to reinstate such an employee as so often is the case and at the same time fail, refuse and or neglect to pay damages, the concerned employee will simply cause the attachment of the employer’s property and thereby realise hi or her dues.

So, where a judgement debtor disobeys a court order in a civil case, the claimant’s remedies are as adumbrated above. Although such conduct or omission is termed “contempt of court” which in itself is a criminal offence, this is never invoked in our jurisdiction. The question of committing to prison a person who has failed to abide by a civil judgement never arises. There is, however, one exception which is in respect of maintenance orders and with that, I return to the main matter.

A person who fails to live by the terms of a maintenance order is liable to imprisonment for a maximum period of one year. This is in terms of Section 23 of the Maintenance Act. It is submitted that this is inappropriate as it subjects such a person to imprisonment in a purely civil matter. In fact, although such a person may be jailed for the said 12 months, the same person will be entitled to his freedom if he makes good the arrears or if he puts in place acceptable payment arrangements for such arrears even though he would not have completed the sentence imposed as at the date of such settlement.

The truth of the matter is that Section 23 is really an enforcement mechanism rather than a form of punishment of the “offender” for failure to maintain the minor children or the spouse or ex-spouse.

But then where is the logic in jailing a maintenance defaulter if the effect is really to completely disable him from finding ways and means of making good the arrears? I mean, how is he expected to raise the funds from inside the prison walls?

Accordingly, the temptation is attractive that our law-makers have perched the maintenance claim at a loftier position when looked at conjunctively alongside all other civil claims that any person may bring for adjudication in a civil court.

In my view, there are no justifiable reasons for this somewhat preferential treatment accorded to a maintenance claim. It is absurd.

In any event, Section 56 of the Constitution guarantees equal protection and benefit from the law. I, therefore, submit that Section 23 of the Maintenance Act is undesirable and may, in fact, be unconstitutional. It must be struck down. Furthermore, almost all maintenance applications are made in situations where the parents concerned would have separated or will be going through a bitter divorce. It is, therefore, quite possible that some mothers end up using Section 23 just to hit back at the former lover or spouse, particularly where he has moved on.

Another issue of concern arises where the minor children concerned would have gained a certain measure of maturity. This occurs when the minor children have attained the age of somewhere in the region of 10 years where they will now be beginning to have some sort of appreciation of the intricacies and politics surrounding the relationship between their parents.

Consequently, some of them might wonder how their mother could cause their own father to be jailed.

The result could be to put a wedge between the mother and the children. That wedge might, in the long run, become difficult if not impossible to remove and that is undesirable.

So in the final analysis, what may seem to be well intentioned efforts by the mother to ensure that the father of the minor children plays his role in the raising and welfare of his own children, unwittingly ends up achieving the opposite results, at least in as far as the children are concerned.

According to law, the court is the upper guardian of all minor children in our country and that in every court process in which the welfare of minor children is the subject matter, the best interests of the children concerned is the foremost consideration.

A question pops up: is it in the best interests of the minor children that the court should jail a parent for failure to maintain them?

This does not sit very well with me as I see serious conflict and or contradiction in that on the left hand, the concerned parent must be made to perform his or her role of maintaining the minor children but on the right hand, the same parent is placed in a situation where he or she is completely disabled from fending for the same children.

There ought to be other ways of ensuring that heads, the children win; tails, the children still win.

Having said all this, what is the best way to get ahead in these circumstances?

As I have already indicated, Section 23 is a bad law and ought to be removed. In its place must be put the usual methods of enforcing any civil judgement.

As a maintenance order is a judgement that sounds in money, it is only reasonable that the usual enforcement methods of any such judgement such as the attachment and sale of the judgement debtor’s property or garnishee orders be employed.

That way, the law relating to maintenance would have been placed on equal footing with all other civil laws and this will be done without directly or indirectly involving the children in the dispute.

It is not in the best interests of the minor children that they be caught up in the wars of attrition that may erupt between their parents and the law ought not to be seen to be allowing, aiding and abating such conflicts.