S v Chikwata (K 2023 of 2013) [2015] ZWHHC 455 (17 May 2015)

1 HH 455-15 CR 08/13 K2023/13 THE STATE versus TINASHE CHIKWATA HIGH COURT OF ZIMBABWE MUSAKWA & MAFUSIRE JJ HARARE, 18 May 2015 Criminal Review MAFUSIRE J: This matter was referred straight to this court by the trial magistrate for advice on a certain point. Thus, it did not come up by way of an automatic review in the ordinary way. From the referral letter advice on the point in question is sought, not for the trial magistrate alone, but for the generality of the magistracy. It appears that the referral has been prompted by a meeting of the magistrates, following a discussion of this case, and at which there were divergent views. The point of concern was this: where an accused person has been convicted of contravention of s 23(1) of the Maintenance Act, [Chapter 5: 09], for failure to pay maintenance in terms of an order of the maintenance court, should the court, upon conviction, order that he pays all the arrear maintenance in circumstances where it is shown that even though he did not pay in the particular manner as ordered, he was in fact paying in some other way? In the current case, it appears the order of maintenance directed the accused to pay the monthly amounts into the complainant’s bank account. However, the trial magistrate accepted the accused’s claim that he had paid the maintenance in the form of school fees directly to the child’s school, and groceries directly to the child. I shall shortly deal with the question posed. In the meantime, my attention has been drawn to something else that I have picked from the record. It is this. The trial magistrate’s acceptance of the accused’s assertion that he was paying maintenance for the child in the form of school fees directly to the child’s school was a manifest misdirection. The evidence adduced did not support such a finding. Furthermore, the charge was patently defective. I shall deal with these aspects in greater detail later on. For now I turn back to the magistrates’ point of concern. HH 455-15 CR 08/13 K2023/13 The accused was charged with contravention of s 23 (1) of the Maintenance Act, in that for thirty six months he had failed to pay the maintenance (at the rate of US$60 per month) resulting in an accumulation of arrears in the sum of US1 920. He pleaded not guilty. After a full trial he was convicted. The trial court ruled that the accused had wilfully disobeyed a court order that directed him to pay the maintenance into the complainant’s bank account. It rejected the State evidence that, contrary to his assertion, the accused had not been paying school fees for the child directly to the school, or at all, but that it was in fact the complainant who had been paying the school fees. But the court said it would give the accused the benefit of the doubt. Therefore, of the sum of US1 920 said to be in arrears, US$1 780 was subtracted; that amount being partly the total of the school fees said to have been paid by the accused directly to the child’s school, and partly being the total of three deposits made by the accused directly into the complainant’s bank account soon after the order of maintenance had been granted. The result was that the trial magistrate found that only US$140 had been outstanding. So the quantum of the arrear maintenance was ordered in that amount. The accused was sentenced to three months’ imprisonment which was suspended on condition that he paid the complainant before a certain date, and through the clerk of court, arrear maintenance in the sum of US$140 aforesaid. From the referral letter, it is said that two schools of thought emerged from the meeting of the magistrates. The one school of thought was that the accused ought to have been ordered to pay all the arrear maintenance in the sum of US1 920. The reason for that was that the maintenance court had not ordered him to pay the maintenance in the form of school fees. It had ordered him to pay into the complainant’s bank account. It should have been up to the accused to institute civil proceedings against the complainant to claim reimbursement of any excess payments. The other school of thought and to which the trial magistrate subscribed, was that the true object of the Maintenance Act is really to enforce payment of a civil debt, in much the same way as civil imprisonment proceedings are. It argued that such a view is supported by s 25 of the Act. That section entitles an accused person sentenced to prison for failure to pay maintenance, to seek his release upon proof that he has paid all the arrear maintenance, or proof that he has made adequate arrangements for such, and that he bona fide intends to make future payments in accordance with the order of maintenance. HH 455-15 CR 08/13 K2023/13 It seems both schools of thought were agreed that an accused person against whom there is an order of maintenance, but who claims to have paid, or to have been paying in ways other than as directed by the maintenance court, would be guilty of contravention of s 23(1) aforesaid. However, it seems to me that in such a situation, the more appropriate charge would be contravention of s 24. It is this section that makes it an offence for any person to fail to comply with any direction made against him. What s 23(1) criminalises is the wholesale failure by a person against whom there is an order of maintenance to make any particular payment in terms of that order. So if a person that was ordered to pay maintenance in a particular way shows that he has been paying, not in the way ordered, but in some other way, may be guilty of contravention of s 24, rather than s 23(1). It is probably understandable why a seemingly straightforward provision such as s 23(1), or s 24, of the Maintenance Act would produce divergent views. On the one hand, despite its penal character, the principal object and purpose of the Act, demonstrably, is to enforce the orders of the maintenance court. The object is not simply to jail defaulters. That would be somewhat self-defeating. A maintenance order is for the benefit of a dependent that is in need of support. A maintenance defaulter in jail is no good to the dependant. The dependant would sooner have him out of jail and providing for its wants and needs. That this is the object and purpose of the Act is made plain by the preamble. It says that the Act is one, inter alia, to provide for the enforcement of maintenance orders. Subsection (2) of s 23 empowers the court convicting the defaulter to order payment of all the maintenance arrears. And then, of course, there is s 25. It entitles the jailed defaulter to seek his freedom immediately upon payment of the arrears, or upon making adequate arrangements for their payment, and future payments. Yet, on the other hand, one who a court tells to do something in a particular way, does it but in some other way, has disobeyed the court. Disobedience of court orders lies at the root of threats to the rule of law. Such conduct is a serious infraction and a threat to orderly conduct. In the case of an order of the maintenance court, a direction that the maintenance be paid in a particular way is, or should be, made only after a full enquiry in terms of s 5 and s 6 of the Act. Ideally courts should not be in the business of telling men or women to be responsible for the upkeep of their offspring or dependants. But because sometimes some people are irresponsible, the courts will make it their business. And anxious to make their orders more effective the courts will sometimes go to some lengths to specify the manner in HH 455-15 CR 08/13 K2023/13 which their orders may be obeyed or enforced. So, any directions given in such orders should not be ignored. A failure to follow such directions, without just cause, should result in a conviction under any statute that penalises such failure, or under the common law. That is why in this case both schools of thought were agreed that the conviction had been proper despite the trial magistrate’s finding that the accused had paid a substantial portion of the maintenance in the form of school fees. Such would be a matter for mitigation and the quantum of the arrear maintenance to be paid. Therefore, if anyone against whom there is an order of maintenance that directs him to pay it in a particular way, shows that he did pay, but in some other way, should be found guilty. However, in the order to pay the arrear maintenance, the trial court convicting him should not ignore the payment made in kind, or in some other way, if such payments are ascertainable. If they are not, then the trial court would rather leave the matter for determination by the civil court, should the accused decide to claim reimbursement. However, in the present case there were a number of anomalies that drew my attention. The charge read out to the accused said that the accused was being charged with the crime of “… defaulting…” to pay maintenance “… as defined in …” s 23 (1) of the Maintenance Act, “…. in that … between October 2010 and August 2013 the Accused … failed to pay US60 per month resulting in the accumulation of the money to US$1 920 thereby contravening the said Act.” The State Outline was no better. It simply gave the name and address of the complainant. The accused was described as a male adult and his residential address and place of employment were stated. It then went on to repeat the period of the accused’s alleged default and the amount of the arrear maintenance. It concluded by saying that the accused had acted unlawfully. In drafting charges the wording of the statutory provision creating the offence should be followed as nearly as possible. The offence in s 23(1) is “… failure …” to make payments for the maintenance of a dependant by someone against whom an order of maintenance was made. In this case, the order of the maintenance court was not produced. There was no reference to it at all. So from the charge, nobody would have known when, where, by whom, against whom, in whose favour and for which dependant the order of maintenance was made. The manner and frequency for the payment of such maintenance was not disclosed. HH 455-15 CR 08/13 K2023/13 Apart from the defects in the charge sheet, the evidence militated against the trial magistrate’s finding that the accused had paid the maintenance in the form of school fees. Despite the absence of the order of maintenance, it seemed common cause between the State and the accused that the accused had been ordered to pay US$60 per month as maintenance for the unnamed child and that following that order the accused had made only three deposits into the complainant’s bank account. He produced the deposit vouchers for those three payments. This was not in dispute. What influenced the magistrate to accept the accused’s claim that he had been paying school fees for the child directly to the school was the fact that, except for the last receipt bearing the complainant’s initial and surname, the rest of them bore the accused’s initial and surname. As a matter of fact, the child and the accused shared the same initial “T”. The trial court said that the State had failed to prove its case beyond a reasonable doubt. Yet it was the State, through the complainant, that produced the school fees receipts. The accused claimed he would hand them over to the complainant after each payment. He implied in his cross- examination of the complainant that her long period of silence showed that she had been content that the accused had been paying. But both the complainant and the school bursar testified that it was the complainant that used to pay the school fees and that the receipts were being issued to the complainant. They both said that until instructed by the auditors to change it, the policy of the school had been to issue the receipts in the surname of the child. The trial court rejected this because it said nothing in writing had been produced to back up such a claim. That was a misdirection. It may have been daft or contrary to sound accounting principles to have such a policy. But that did not explain why the hard copies of the receipts would be physically issued to the complainant if it had been the accused paying. The complainant and the accused were not staying together. The accused’s claim was manifestly implausible. Among other things, he would not have willingly paid the school fees because he seemed irked by the conduct of the complainant in transferring the child from the one school to the other that she considered was offering much better education. Furthermore, the accused’s testimony was contradictory on that crucial point. In one breath, during the cross-examination of himself by the State, he claimed that he had stopped paying the maintenance into the complainant’s bank account because the complainant had changed her account and had told him to pay school fees HH 455-15 CR 08/13 K2023/13 instead. Yet in another breath, he claimed that he had changed from paying into the complainant’s account because he feared she would not pay the school fees if he gave her the money directly. For the above reasons the trial court ought to have ordered restitution in the full amount of the arrears. In the result, despite the anomalies in the charge, the evidence seemed to have adequately cured them. The conviction and sentence were proper. But there was a misdirection in the amount of the arrear maintenance to be paid. In the premises, the order directing the payment of the arrear maintenance is altered from US$ 140 to US$1 920. The period within which the accused may pay the amount shall be determined by the trial magistrate to whom the record is returned for an enquiry to be conducted in that regard. Thus the sentence shall read as follows: “The accused is hereby sentenced to three months’ imprisonment which is suspended on condition that he shall pay the arrear maintenance due to the complainant in the sum of US$1 920-00, less any amounts as he may have paid, such amount to be paid through the Clerk of Court, Karoi Magistrate’s Court.” The date or dates for the payment of the amount of the arrear maintenance shall be fixed by the trial court. 18 May 2015 MUSAKWA J: agrees ……………………………….