Hilary Muza 
THE significance of the Maintenance Act [Chapter 5:09] (the Act) to our law, in view of its effort to protect interests of dependents, cannot be over emphasized. 
It is a law whose motive emanates from the morality philosophy which attempts to curb selfishness and irresponsibility among those entitled to look after others. For there are those among us who create responsibility by having children, but out of sheer malice, or recklessness, abandon their natural duties leaving their dependants in squalor.
Despite the existence of the law, and many dependents being aware of their rights to claim maintenance money, the prevailing harsh economic conditions have adversely affected the rights of claimants.
The hardships experienced by would-be breadwinners due to lack of employment, and scarcity of income have gravely undermined the rights of children or any other dependents requiring care.
Due to the fact that employment incomes have shrunk because of inflation, even those who contribute maintenance are unable to give adequate sums that meet the full requirements of their dependents.
The result is that the dependents continue to live in destitution, forcing some of them to abscond from home and resort to scavenging for food while living on the streets in our main urban centres.
On the other hand, the state with its social responsibility to care for the underprivileged continues to dismally fail to deliver because government resources are inadequate. In all progressive states, the government has a strong legal obligation to care for certain categories of social groups like the unemployed, disabled, children, the sick and the poor.
Going back to the Act, it can be observed that only a person legally entitled to maintain a dependent must be made to contribute. The legal entitlement to maintain can arise through various ways including parenthoods or guardianship.
These two are commonly accepted reasons compelling one to exercise responsibility over his children or dependents. However, the Roman and Roman Dutch Common Law, which is the main basis upon which our law is laid, recognises a parent’s right to claim maintenance from an adult child.
The popular view amongst most individuals, which view is also common among certain practitioners is that, only a child or divorced wife can claim maintenance and alimony respectively.
This view has gained ground and persisted over time, in the process obscuring lawyers and would be claimants from discovering the uncommon hibernating legal position just stated. Local academics on family law including Professor Welshman Ncube in his book, Family Law in Zimbabwe, appear to have failed to give attention to this valuable aspect of the law of maintenance.
In order to explore this point further so as to establish its validity, it is important to visit the Act with alertness. A close perusal of the language used by the legislature will prove that indeed, Parliament was conscious of the common law position when it enacted this law. The relevant sections in their reference to a breadwinner talks of “the responsible person” and not to “a parent” or “a husband” or even further “a wife”.
A responsible person is defined in the Act as “a person who is legally entitled to maintain another”. By a deliberate failure to qualify these categories of persons, and leaving the broad reference of “the responsible person”, Parliament was boldly acknowledging that a responsible person could include a child who neglects to look after a parent.
It is therefore, apparent that the law as it stands, generally does not preclude a parent from lodging a claim of maintenance from a child who neglects to look after him/her. From the above, it can be observed that the law provides for a reciprocal duty of maintenance between parents and children. While children are still minors or where even after majority age they are indigent, parents or guardians have a duty to contribute towards their maintenance. On the other hand, adult children have a duty to care of their parents and this duty is not only a moral one but a legal one as well.
The right to be maintained as a parent is not an absolute one, for to make it such would open floodgates of litigation. The law as a matter of public policy, guards against the potentiality of innumerable litigation, some of it that might be frivolous. Consequently, the right to sue a child can only be successfully enforced where a parent can establish that he is indigent or so poor that he/she is incapable of looking after him/herself. It must also be proven that the child is able to maintain his/her parent.
For it would be injudicious and a cause of undue hardship to compel a child to cough up money to sustain a parent when the income of the child does not permit.
This second requirement of the common law is consolidated in Section 6 of the Act which states that, a person shall only be made to contribute maintenance if he is able to.
A diligent survey of our law from sometime back, will reveal that almost no precedent exists where a parent sued a child for maintenance. As observed already, the cause was ignorance by the public and a careless reading of the law by many lawyers. The South African experience slightly differed from ours because although litigation around this area has transpire, it has been a trifle.
Sometime back, a KwaZulu-Natal court in South Africa, ordered the daughters of an elderly couple to pay maintenance to their parents.
This isolated but important judicial precedent sent out a clear message that children had an obligation to take care of their hard-up parents. It is high time that our law took a positive evolution and adopted a transparent position to enable impoverished parents sue neglecting, irresponsible and at times extravagant children.
The primary responsibility to conscientise parents about this rights lies with the lawyers, the government, as well as the media at large.
It is hoped that the rights of indigent parents, which have hitherto been forgotten about, will vigorously be enforced so that the prevalent neglect of ageing impoverished parents will be curtailed.
The law is there primarily to ensure justice and what justice will the law be serving if it fails to effectively protect the rights of impoverished parents blessed with materially sound offspring?
After all, it will be the sweat of the parents that would have made the children enjoy the comfortable lives they will be leading.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
