News / National
Mugabe ally's maintenance appeal hits snag
23 Oct 2015 at 06:24hrs | Views
The lawyer representing Minister of Energy and Power Development Samuel Undenge in a case in which he is contesting the $350 monthly maintenance awarded to his daughter Bongani (18), yesterday had a tough time with two High Court judges grilling him over the rationale of the court challenge. Minister Undenge took his daughter to the High Court seeking to challenge the maintenance order granted in her favour arguing that she was now a major and should, therefore, support herself.
Bongani is now in Form Six. The lawyer, Mr Farai Nyamayaro of Farai Nyamayaro Law Chambers endured 15 minutes of questioning from Justices Hlekani Mwayera and Lavender Makoni who were sitting as an appeal court in the maintenance case. The judges were questioning the stance by Minister Undenge's lawyer that a child loses his or her right to maintenance upon attaining 18 years despite the need for financial support.
Mr Nyamayaro argued that at 18, the girl turned a major and that there was no law allowing such people to file fresh applications for maintenance. "Maintenance had terminated and I do not know of any provision in the Maintenance Act allowing the court to grant a fresh order where there is no extension of the order. "I believe it is unfortunate that the provisions of Section 2 of the Maintenance Act disadvantage the child but that is the law. The application has to be made before the child turns 18," said Mr Nyamayaro.
Justice Mwayera interjected:
"If the child turns 18 she becomes an adult. Can she not mount her own application for maintenance if she is in need? Is she supposed to drop out of school?" asked Justice Mwayera. Mr Nyamayaro struggled to answer the question before the judge further questioned him. "What does the Constitution say about education and training for the youth?"
Mr Nyamayaro said: "It is actually a right." Justice Makoni chipped in asking Mr Nyamayaro of the age limit for youths as provided for in the Constitution. "I am not sure, the court may guide me on that one," he said. The visibly shaken Mr Nyamayaro could be seen wiping sweat off his forehead as he defended his client's position.
Justice Makoni asked Mr Nyamayaro when he thinks the support for the girl should end. Mr Nyamayaro said: "At least if she completes her undergraduate degree at a local university, which the appellant (Minister Undenge) can afford."
In his founding affidavit, Undenge said he was not happy with the ruling by a Harare magistrate last year that ordered him to keep on maintaining Bongani until she became self-supportive.
The minister said his daughter was now a major and the magistrate ought to have ruled in his favour when he applied for suspension or downward variation of the maintenance order, but instead, the judicial officer ruled otherwise. The minister said the Maintenance Act only allowed for the extension of an existing order where such an application was done before the beneficiary turned 18 years.
Appearing for Bongani, Harare lawyer Ms Rumbidzai Venge of Mambosasa Legal Practitioners, supported the magistrate's order saying it was granted procedurally. She said the intention of the legislature was not to leave children destitute on attaining the age of 18. "It was not the legislature's intention to leave children destitute and vulnerable simply because they have reached 18. "Parents' responsibilities should disappear in the thin air simply because the child has turned 16?
"Section 11 does not bar a child who has attained 18 years from making a fresh application for maintenance," said Ms Venge arguing that the fact that Undenge had other children he was maintaining was not a good reason to deprive Bongani of her rights. She argued that Minister Undenge's argument that the $350 was too much, was misplaced and that it should have been addressed through an application for downward variation and not an appeal.
Ms Venge asked the court to slap the minister with costs on a higher scale because he persisted on a case he knew was hopeless. Justices Mwayera and Makoni reserved judgment in the matter.
Bongani is now in Form Six. The lawyer, Mr Farai Nyamayaro of Farai Nyamayaro Law Chambers endured 15 minutes of questioning from Justices Hlekani Mwayera and Lavender Makoni who were sitting as an appeal court in the maintenance case. The judges were questioning the stance by Minister Undenge's lawyer that a child loses his or her right to maintenance upon attaining 18 years despite the need for financial support.
Mr Nyamayaro argued that at 18, the girl turned a major and that there was no law allowing such people to file fresh applications for maintenance. "Maintenance had terminated and I do not know of any provision in the Maintenance Act allowing the court to grant a fresh order where there is no extension of the order. "I believe it is unfortunate that the provisions of Section 2 of the Maintenance Act disadvantage the child but that is the law. The application has to be made before the child turns 18," said Mr Nyamayaro.
Justice Mwayera interjected:
"If the child turns 18 she becomes an adult. Can she not mount her own application for maintenance if she is in need? Is she supposed to drop out of school?" asked Justice Mwayera. Mr Nyamayaro struggled to answer the question before the judge further questioned him. "What does the Constitution say about education and training for the youth?"
Mr Nyamayaro said: "It is actually a right." Justice Makoni chipped in asking Mr Nyamayaro of the age limit for youths as provided for in the Constitution. "I am not sure, the court may guide me on that one," he said. The visibly shaken Mr Nyamayaro could be seen wiping sweat off his forehead as he defended his client's position.
Justice Makoni asked Mr Nyamayaro when he thinks the support for the girl should end. Mr Nyamayaro said: "At least if she completes her undergraduate degree at a local university, which the appellant (Minister Undenge) can afford."
In his founding affidavit, Undenge said he was not happy with the ruling by a Harare magistrate last year that ordered him to keep on maintaining Bongani until she became self-supportive.
The minister said his daughter was now a major and the magistrate ought to have ruled in his favour when he applied for suspension or downward variation of the maintenance order, but instead, the judicial officer ruled otherwise. The minister said the Maintenance Act only allowed for the extension of an existing order where such an application was done before the beneficiary turned 18 years.
Appearing for Bongani, Harare lawyer Ms Rumbidzai Venge of Mambosasa Legal Practitioners, supported the magistrate's order saying it was granted procedurally. She said the intention of the legislature was not to leave children destitute on attaining the age of 18. "It was not the legislature's intention to leave children destitute and vulnerable simply because they have reached 18. "Parents' responsibilities should disappear in the thin air simply because the child has turned 16?
"Section 11 does not bar a child who has attained 18 years from making a fresh application for maintenance," said Ms Venge arguing that the fact that Undenge had other children he was maintaining was not a good reason to deprive Bongani of her rights. She argued that Minister Undenge's argument that the $350 was too much, was misplaced and that it should have been addressed through an application for downward variation and not an appeal.
Ms Venge asked the court to slap the minister with costs on a higher scale because he persisted on a case he knew was hopeless. Justices Mwayera and Makoni reserved judgment in the matter.
Source - the herald
