The Sunday Mail
The case has divided opinion with the majority seeming to side with Alick. Tafadzwa has been vilified in both the print and electronic media.
The case, however, raises interesting aspects of the law relating to maintenance, paternity and ‘divorce’ where parties are married under customary law.
As far as maintenance is concerned, the law states that husbands and wives who are married to each other under customary law must maintain each other. In other words, if a man pays lobola, that constitutes a customary law union.
Therefore Tafadzwa was well within her rights to sue Alick for maintenance for herself. Alick could also have sued Tafadzwa for maintenance.
For children the law places a duty of looking after children on both parents each according to her or his own means until the child turns 18 years or is able to support oneself, whichever happens first.
The court can also extend maintenance for a child who is over 18 years because practically a child may be 18 but still unable to support oneself, for instance, they may still be going to school.
Tafadzwa was criticised for claiming a high figure of maintenance.
The law, however, is very clear on this issue. The court ought to take into account the general standard of living of the parties including their social status. In this case, if Tafadzwa was living a life that reflected the expected standards of the wife of one of the most well-known musicians in Zimbabwe, this fact should have been taken into account.
The law, however, expects the person claiming maintenance to also contribute. In this case, Tafadzwa would not have been awarded all the money she was asking for in respect of herself and the children. The law also expects her to contribute to the maintenance of the children and also to her own maintenance.
The case also raises fundamental issues on the amount of maintenance awarded. From the number of cases that come before the courts for maintenance, it would not be surprising if the award of $1 030 is among the higher band awards .
Complainant’s in maintenance matters are being awarded as little as $50 per month. When the maintenance law was formulated, it was based on a formal economy, one in which it would be easy to determine who earned what. It was an era where owning a bank account was almost compulsory.
This made it easy to determine the amount of maintenance to grant. The courts even came up with a mathematical formula popularly known as the Gwachiwa formula where earnings of the parties were added and respective shares allocated to them and the children.
The major challenge facing the courts is that Zimbabwe is characterised by an informal economy. Even those who are formally employed may be receiving salaries in cash.
Added to the maze is One wallet, Ecocash and Telecash, where employees are receiving their salaries through these.
In the old days it was easy to obtain a person’s P6 tax return form to determine what one earned. Moreover, not all businesses are remitting PAYE making the determination of what one earns a juggling act.
Persons from whom maintenance is claimed will go out of their way to hide assets. They will inform the court that they do not have a cent to their name. They will allege that they have no savings, no bank account and are surviving by the grace of God.
The party claiming maintenance and the court are left at a loss as to what the true picture is.
Fake payslips showing nett salaries of ridiculous amounts such as $10 or $50 are produced in court and the person presenting these will not have a bank account.
Ironically the person claiming to be nearly destitute will be driving a good car, dressing and eating well. The Herald of the 29th of May 2014 carried a story of a man who offered a dollar each for three of his children.
Unfortunately the law is based on evidence and without clear evidence placed before it, the court finds it difficult to determine the amount.
Alick is a well-known musician. His music sells reasonably well.
His shows attract huge crowds, but without evidence on exactly how much he is making, it becomes difficult for a court to make an assessment.
Even though the Maintenance Act gives a court authority to go all out in ascertaining the truth, unfortunately due to reasons mentioned above, it’s difficult to make a determination of how much one earns through either formal, informal or self-employment.
This is one of the greatest challenges being faced in claiming maintenance. Many parties are left dissatisfied and that is why they end up appealing against the order of the magistrates’ court as Tafadzwa has done.
Even then, she has been criticised for appealing because she was awarded too much money in the view of a large section of society.
Some women also believe wrongly that it is better to claim a huge amount initially because the court will reduce the amount by half and that claiming little will result in the court further reducing the little amount. This is all because of the uncertainty surrounding income of the person from whom maintenance is being claimed.
Some men who receive maintenance applications go on to claim custody of their children in a bid not to pay maintenance.
Children are therefore affected negatively in this game of hide and seek. There are a lot of cases where children have to be pulled out of private schools and enrolled at less expensive schools or drop out of school altogether.
Children who were living in a family home suddenly have to live in rented accommodation with one parent.
Suddenly the parent who was paying for private school education pleads that his business is not doing well and he can no longer afford to pay the fees.
He can now only purchase clothing once a year for the children rather than once every three months as he used to and worse still he goes to the second hand market to purchase the clothes.
Some parties in maintenance claims end up punishing innocent children in a bid to settle scores with each other.
As far as paternity is concerned, the law states that the husband or the man whom the mother of a child is married to is the father.
This means that as long as a woman is married either under general or customary law then her husband is the father of the children.
In Shona culture the concept is known as gomba harina mwana.
However, the man can challenge paternity. In other words, he can say that yes I am married to the mother of these children but in actual fact I am not their biological father .
The court ordered Tafadzwa and Alick to go for paternity tests which also involves the children.
There are several methods that are recognised at law as ways of challenging paternity. DNA tests can show that a man is not the biological father of the children who are alleged to be his.
The major challenge of DNA is the astronomical figure of US$400-$500 that is required depending on whether the test is done in Zimbabwe or South Africa.
Parties can also go for blood tests. These can show that an alleged father is not the father. Therefore blood tests can exonerate a man 100 percent that he is not the father.
The major challenge is that the blood tests cannot show that a man is the father of a child.
They can prove that the man belongs to a group of possible fathers and once he is put in that group, then he is made liable for paying maintenance.
A man can also plead that during the time that the mother of the child could have gotten pregnant, he did not have physical access to her.
For instance, he could have been in prison or out of Zimbabwe. So the man has to put evidence before the court.
A man may also state that he is incapable of performing a sexual act or that although he can perform a sexual act, his semen is not capable of making a woman pregnant.
He must, however, produce medical evidence to this effect.
It remains to be seen what the paternity tests for the children of Tafadzwa and Alick will show.
The last legal issue raised is that of divorce.
The Press kept making reference to divorce.
However, due to the fact that Alick paid lobola for Tafadzwa, theirs is not recognised as a full marriage but only a union.
Although it can be terminated by the giving of gupuro, Tafadzwa and Alick cannot use the divorce law to break up the union and share property. This is also a major gap in the law.
As matters stand, in the event of termination of the union, the courts have used a complex legal process to divide property.
When all is said and done, the rights of the children of Tafadzwa and Alick need to be protected.
As Zimbabweans take sides and express their views, some in the most unsuitable manner, let us not forget that children are innocent.
After all the new Constitution states clearly that in all issues involving children, their best interests should be taken into account.
The law will be a last resort if parents behave responsibly and contribute to looking after their children.
The law relating to maintenance and termination of an unregistered customary law union need to be revamped to take into account the realities of Zimbabwe especially in relation to sources of income and to also reflect gender equality norms in the new Constitution.
Sylvia Chirawu is the National Co-ordinator of Women and Law in Southern Africa-Zimbabwe. She is lawyer by training, women’s rights and gender advocate, researcher and author of several books and articles on the rights of women. She also teaches family law and the law of succession. She writes in her personal capacity.
