S v Chagomoka (CRB 4186 of 2015) [2015] ZWHHC 584 (16 June 2015)

1 HH 584/15 CRB NO. 4186/15 THE STATE versus NORMAN CHAGOMOKA HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 16 June 2015 Review Judgment MATANDA-MOYO J: This matter was forwarded to me for review. The accused was charged with failure to pay maintenance in violation of s 23 of the Maintenance Act [Chapter 5:09]. The accused was in maintenance arrears of $240-00. The conviction was proper. The magistrate sentenced the accused person to 3 months imprisonment and in addition he was sentenced to a further 3 months wholly suspended on condition that the accused paid his maintenance arrears. The regional magistrate queried the sentence by the magistrate. The regional magistrate felt that the trial court sentenced the accused to two prison terms for the same offence and that it is improper to do so. The brief facts are that the accused was ordered by the Harare Civil Court on 17 April 2013 to pay $80-00 maintenance for his two children beginning 30 April 2013. The accused failed to comply with such order resulting in him having arrears to the tune of $240-00 by October 2014. He was arraigned before the courts for the non-payment of maintenance. Whilst the conviction is proper, the magistrate erred in sentencing the accused person twice for the same offence. Such a sentence has been held to be incompetent in a plethora of cases; see S v Chipere HH 314 – 83, S v Msakasa HH 302 – 83 and S v Godfrey Trymore Musakiwa HH 239-83. Looking at the sentence of an effective prison term, it has never been the intention of the legislature to have defaulters of maintenance serve effective prison terms until one becomes a habitual offender. Such sentences should be imposed on very serious willful defaults. It is obvious that once a person serves 3 months effective prison term, his or her job is most likely to be lost. Once the job is lost it means the children would not be looked after. HH 584/15 CRB NO. 4186/15 In any case the magistrate herein imposed an effective prison term without conducting a proper enquiry into accused’s financial circumstances. The provisions of the Maintenance Act ought to be used to ensure that the rights and best interests of children are upheld as enshrined in s 81 of the constitution, by holding parents to their duty to maintain their children. Mokgoro J in the case of Bannatyne v Bannatyne (Commission for Gender Equality, as amicus curiae) 2003 (2) SA 363 (CC) said; “Systematic failures to enforce maintenance orders have a negative impact on the rule of law. The courts are there to ensure that the rights of all are protected. The judiciary must endeavor to secure for vulnerable children and disempowered women their small but life – sustaining legal entitlements. If court orders are habitually evaded and defied with relative impunity the justice system is discredited and the constitutional promise of human dignity and equality is seriously compromised by those dependants on the law. It is a function of the state not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by section 28 of the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weakness of the system.” In S v Visser 2004 (1) SACR 393 at 399E-F Van Heerden AJA (as she then was) said; “Effective enforcement of maintenance payments is necessary, not only to secure the wishes of children but also to uphold the dignity of women and promote the constitutional ideals of achieving substantive gender equality. It is therefore important that courts regard deliberate failures to comply with maintenance orders as serious offences and punish such failures accordingly” Before sentencing a defaulter to an effective jail term the magistrate must first make a finding that the default is deliberate. The magistrates must thrive to use other sentencing options that ensure the best interests of the children are catered for. Criminalisation of failure to pay maintenance was a way of ensuring that parents take the issue of maintenance seriously. However, the magistrates must familiarise themselves with alternative sentencing principles that ensure the interests of the children are not compromised. A prison term should be reserved for serious defaulters. Magistrates should make use of payment of fines, periodical imprisonment, writs of execution and suspended sentences. In the matter in casu, it is obvious the sentence by the magistrate is incompetent in so far as she pronounced two sentences for one offence. HH 584/15 CRB NO. 4186/15 In sentencing the accused the magistrate fell into error in bringing an already fulfilled suspended sentence into operation. Such sentence was discharged upon payment of arrear maintenance. Considering that accused did not fail to pay anything towards maintenance but partially complied with the order, I am of the view that another suspended sentence would have met the justice of this case. Accordingly the sentence is set aside and substituted with the following: “3 months imprisonment wholly suspended on condition accused pays the full arrears of $240-00 on or before 30 June 2015 through the Clerk of Court Harare” MUSAKWA J: agrees……………………………………….