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This is the story of a particularly distasteful attempt by an apparently wealthy, well-connected and influential property owner in Zimbabwe, to avoid paying reasonable maintenance for his six-year-old daughter. (He is not named here or in the judgment, to protect the child’s identity.)
The man, N, was appealing against a decision by the Harare magistrates’ court to increase the maintenance he had to pay for his child. He had previously been obliged to pay Z$150 a month, but that was increased to Z$400 in July 2019. At the end of 2019, the child’s mother asked for that to be increased still further, to Z$2000.
In October 2019, the child and her mother were evicted from a property owned by N and run as a guest lodge, where they had lived and where N had worked. The mother, H, told the magistrate that she needed more maintenance for her daughter because she now had to pay rental. Further, groceries had gone up in price and the child was enrolled in a new school that was more expensive than the previous one.
Guest lodges
N acknowledged he was the child’s father and had a responsibility to maintain her. However, he said he no longer had independent ownership of any income-generating property. On the advice of his lawyers he had set up a ‘family trust’ in the names of himself and his wife. Four properties – at least three of which are listed as guest lodges – had been donated to this trust and were now owned by it. Its nine beneficiaries including the minor child.
Pleading poverty, N said he was receiving a ‘pension’ of Z$487 and was being ‘partly maintained’ by the trust ‘due to his advanced age’. He said he was using his pension to maintain the child. He opposed paying any additional maintenance, saying it was unjustified. N conceded that H was not working but questioned whether she had ‘made any effort to look for employment’. Finally, he told the court that if H ‘was desperate’, he was prepared to take custody of the child.
The magistrates’ court heard that the trust, duly registered, included the child as a beneficiary. N said the trust would pay dividends to its beneficiaries at the end of the financial year. However, when hearings in the case continued in January, the court was shown a board resolution dated 7 January, that the child was not to be ‘singled out’ or ‘maintained to the disadvantage of other beneficiaries’. All beneficiaries were to be treated equally.
Beneficiary
N also showed the court a document that included the following statement: ‘No beneficiary was to get benefit from the trust (this year) including the minor child.’
Unimpressed, the magistrate ordered that the maintenance be increased to Z$2000 as the mother had requested.
Now the father wanted the high court to overturn that decision. He said the magistrate failed ‘to note that a child is a product of a father and mother and any upward variation in maintenance must be shared by both parents equally unless one is mentally or physically incapacitated.’ If N had to pay Z$2000 every month, ‘then the mother should have to contribute an equal amount.’
Upper guardian
The two judges who heard the appeal, Amy Tsanga and Sylvia Chirawu-Mugomba, examined in detail the issues considered by South African courts faced with applications for variation under the maintenance laws. They found the magistrate in N’s case had played a proper role as the upper guardian of the child.
The judges found that the N was the ‘alter ego’ of the trust which created a ‘fictitious equality’ among N’s children, even though the child of H and N was only six while all the others were already over 21. The ‘resolution’ of the trust that no one including the child would benefit from the trust ‘shows the lengths to which N is prepared to go to ensure that the minor child does not get anything’.
By contrast, they pointed to the resolution of the board that N would continue to be supported with accommodation, vehicle, clothing, food and other ‘necessary incidentals’. N’s ‘fundamental duty of support as a father has nothing to do with the suspension of payment of dividends’ and the trustees had to ensure they provided N with enough funds to ‘meet his child-caring responsibilities.’
Poverty
‘For the avoidance of doubt, N is the founder [of the trust]. He alone can decide when and how much to give to himself whilst the minor child wallows in poverty. He admitted that the immovable properties that he owns have been donated to the trust and operate as lodges. The inescapable conclusion is that the trust was formed as a way of ensuring that the minor child does not get maintenance.’
N could not escape his legal obligations ‘by hiding behind a trust’, they said, adding, ‘This matter epitomises the length to which N can go to evade his maintenance obligations. Sadly, even though the child is the holder of rights, she remains at the mercy of N’, and her rights would only be realised if the courts stepped in. ‘The courts in that regard play a critical role in ensuring that the rights of children are enforced.’
The eviction of the mother from N’s lodge where she had been staying with the child meant that they needed accommodation. Her eviction also meant she lost her employment at the lodge. Although the mother did not have formal employment at the time of her application, ‘she was already playing an unquantifiable role in caring for the child …. Such contribution cannot be ignored. The argument that she is contributing nothing is fallacious.’
Declaring that the magistrate had not misdirected himself in ordering the increased maintenance, the two judges dismissed N’s appeal.
Welcome decision
Cases where the father uses extreme stratagems to avoid paying maintenance are not unheard of, but they seldom make it to court. All the more reason then, to welcome the firm decision of the two judges in this matter, particularly given that N is a prominent member of the Zimbabwe community. Had he been able to get away with his strategy of ‘forming a trust’ whose members then ‘declined to support the child’, it would have set a disturbing example.
