DISTRIBUTABLE
(66)
Judgment
No. SC 76/02
Civil
Appeal No. 306/02
JOHN
COSMAS MOYO v REGINA ZIHANZU
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & MALABA JA
HARARE,
JUNE 13 & OCTOBER 7, 2002
The
appellant in person
The
respondent in person
MALABA JA:
The appellant and the respondent lived together as husband and wife
under a customary law union. They separated
in July 1993. The
respondent retained the custody of four children of the union. In
August 1995 she obtained an order from a
maintenance court compelling
the appellant to pay an amount of $850 per month towards the
maintenance of the four children. The
order did not apportion the
amount due to each child but stated that it would terminate in
respect of each child when he or she reached
the age of eighteen.
The
appellant paid the maintenance in terms of the order for four months
but remained in default of payment thereafter until he
was arrested
and prosecuted for non-compliance in 1999. He was convicted of the
charge of unlawfully failing to obey the maintenance
order and
sentenced to a term of imprisonment. The sentence was suspended on
condition that he paid $16 000 in arrear maintenance.
Meanwhile
one of the children had, to the knowledge of the appellant, died on
18 December 1995.
The
respondent successfully applied for the variation of the maintenance
order on 23 March 2000 so that the appellant now had
to pay
$1 200 per month for the maintenance of the three surviving
children. At the time the variation order was made the
appellant
had not had the previous maintenance order varied for the reason that
one of the children had died.
In what
appears to have been a reaction to the variation order granted to the
respondent on 23 March 2000 the appellant made
an application to
the magistrates court on 27 April 2000 claiming an order
compelling the respondent to refund to him $11 687.50,
which he
said was the total amount he had paid to her as maintenance for the
deceased child during the period extending from December
1995 to
March 2000. The magistrate who heard the application dismissed it
on the ground that the appellant had knowledge of the
fact that the
child had died but nonetheless had paid the money to the respondent,
who used it to maintain the three surviving children.
He held that
it would not be in the interest of justice to order the respondent,
who had not put the money to personal use, to
refund it to the
appellant.
An
appeal to the High Court from the magistrates decision failed on
the same ground.
This appeal
is against the judgment of the High Court. I do not think the court
a quo
needed to base its decision on the alleged waiver by the appellant of
a right to discontinue the payment of the maintenance after
the death
of the child.
The
issue should have been disposed of by the application of the
provisions of s 11(1)(a), as read with s 11(1)(4) of the
Maintenance Act [Chapter 5:09]
(the Act), which state that:
11 (1) Subject
to subsection (4), an order made in favour of a child shall,
with respect to that child, cease if and when
(a) the
child dies;
(2)
(3)
(4) Where an
order has been made in favour of more than one person and the amount
due to each person under the order has not been
apportioned, the
order shall not cease with respect to any of those persons in
circumstances specified in subsection (1)
but shall remain
in force until varied or discharged in accordance with section 8.
The order
made against the appellant was that he should pay $850 per month for
the maintenance of the four children without apportioning
amounts due
to each child. It is common cause that at the time the respondent
obtained the variation order on 23 March 2000
for the
maintenance of the three surviving children the appellant had not had
the original order varied by the maintenance court
on the ground that
one of the children had died. Without a variation order having been
made in terms of s 11(1)(4) of the
Act, the appellant was under
a duty to pay the amount of $850 per month towards the maintenance of
the three surviving children.
There was no question of him acting
through volition. He was bound by law to pay the money.
The appeal
is dismissed with costs.
SANDURA JA:
I agree.
ZIYAMBI JA:
I agree.
