Daniel Nemukuyu Senior Court Reporter
People who default on paying maintenance and instead decide to pay school fees for their children or other services directly, should be found guilty of non-compliance with a court order, but in mitigation the magistrates must consider the payments made, the High Court has ruled.
Upholding the conviction of maintenance defaulter Tinashe Chikwata, High Court judge Justice Joseph Mafusire said if a parent is ordered to deposit monthly maintenance in a bank account, he or she must comply and not to hide behind payment of other services outside the court order.
Chikwata was found guilty of failing to pay monthly maintenance of $60 per for his child, but he argued that he had been paying school fees directly without depositing into the bank account as directed by the court.
The maintenance arrears had reached $1 920, while Chikwata argued that he had paid school fees amounting to $1 780.
However, the magistrate agreed that payment had been made and ordered Chikwata to pay the balance of $140 as restitu- tion.
The case was then taken to the High Court on review, where Justices Mafusire and Joseph Musakwa confirmed the conviction, but instead ordered Chikwata to pay the full $1 920 as arrears because he had not proved that the $1 780 had indeed been paid to the school.
Guiding the lower courts on how to handle such matters, Justice Mafusire said even if there is proof of payment in kind, the defaulter remains guilty of breaching Section 24 of the Maintenance Act, which criminalises non-compliance with a court order.
“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 arrears 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,” the judge ruled.
The judge described disobedience of court orders as a serious threat to the rule of law.
“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 Chikwata, the judge found that the magistrate erred in accepting that payment had been made when there was no proof that the accused person had indeed paid.