This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Bulawayo, dated 21 April 2022, in terms of which the court a quo granted the application by the respondent for the variation of clause 2(e)(i) of the parties consent paper and paragraph 4 of the divorce order granted by the court a quo on 27 March 2014 under HC125/14, providing for the post-divorce maintenance of the parties two minor children.
The order of the court a quo reads:
“It is ordered that:
1. Clause 2(d)(e)(i) and paragraph 4 of the consent order be and are hereby amended by;
(a) The plaintiff shall pay the sum of US$400 for each of the two minor children, per month, payable in cash or into the applicant's nostro account or the RTGS equivalent thereof at the bank rate prevailing on the date that payment is made until the children attain the age of 18 years or become self-supporting, whichever comes first.
2. This order shall be effective from March 2021.”
Aggrieved by the decision of the court a quo, the appellant has noted the present appeal.
At the close of submissions in this matter, this Court made the following order:
“The respondent having conceded, that, there is merit in grounds of appeal number 5 and 6:
It is ordered as follows:
1. The appeal succeeds in part.
2. The judgment of the court a quo is amended by the deletion of paragraph 2 thereof.
2. Each party shall bear its own costs.”
We indicated that our reasons for doing so would follow. They are as follows:
THE FACTS
The parties were married on 5 July 2005 in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with two children.
Nine years into the marriage, the appellant instituted divorce proceedings in the court a quo on the grounds, that, the marriage had irretrievably broken down. He did so under case number HC125/14.
To curtail the divorce proceedings, the parties negotiated, and agreed, the terms of the consent paper that would govern their affairs after divorce. It was on the basis of that consent paper that divorce was granted by the court a quo.
Paragraph 2(e) of the consent paper provided for the maintenance of the parties two minor children. It reads as follows:
“(e) Maintenance of the Minor Children
(i) The parties have agreed, that, by way of maintenance, the plaintiff (the present appellant) shall pay US$500 for each of the minor children, per month, as monthly maintenance until they attain the age of 18 years or become self-supporting, whichever occurs first….,.
(ii) Plaintiff shall pay all school fees, inclusive of levies and other related ancillary education costs, purchase school uniforms, stationery, and all other school requirements until they finish tertiary education.”
The above quoted paragraph 2(e) of the consent paper was incorporated into the divorce order dated 27 March 2014 as paragraphs 4 and 5.
The appellant “religiously” paid the sum of US$500 per month, per each child, making a total of US$1,000 maintenance per month. He did so from 2014 until 2019 when Statutory Instrument No. 33/19 was promulgated.
This instrument decreed that all assets and liabilities, including judgment debts, denominated in United States dollars on or before 19 February 2019 (the effective date) shall be deemed to be values in RTGS dollars at the rate of one to one to the United States dollar.
The appellant, whose liability for maintenance was now deemed to be in RTGS dollars at the rate of 1 to 1 to the United States dollar, would now be liable to pay a total of RTGS $1,000 per month for both children.
However, realizing that this amount would fall short of the children's needs, the appellant, at his own volition, and unilaterally, decided to pay RTGS$1,500 per month for both children. The respondent found that amount awfully inadequate and proposed that the appellant pays the sum of US$320 per month per child.
The appellant refused to budge and persisted with his offer of RTGS$1,500 per month for both children.
At one stage and, again, unilaterally, the appellant decided to pay the sum of US$50 per month per child.
However, the respondent avers that between January 2021 and May 2021 the appellant did not pay any maintenance at all.
Dissatisfied with that state of affairs, the respondent approached the court a quo armed with an application for variation of the maintenance clause embodied in the divorce order granted under HC125/14. She asked the court a quo to set the rate of maintenance at US$500 per month per child in conformity with the order of the court a quo of 27 March 2014.
In opposing the application in the court a quo, the appellant submitted that the respondent wished to live a lavish life out of moneys paid out as maintenance for the children, and that her claim was based on figures plucked from the air. He also submitted that his financial circumstances had changed since 2014 in such a way that he was unable to pay US$500 per month per child.
Despite these submissions by the appellant, the court a quo granted the application and issued the order captured on the first page of this judgment.
Although this order is inelegantly drafted, its import is clear – that with effect from March 2021, the appellant was obliged to pay maintenance at the rate of US$400 per month per child or its equivalent in local currency determined at the prevailing bank rate.
It is this order that the appellant appeals against on the following grounds:
“GROUNDS OF APPEAL
1. The court a quo erred in varying the maintenance payable towards the minor children whilst disregarding the circumstances of the appellant.
2. The court a quo, in varying the maintenance order, misdirected itself on the meaning of good cause for variation.
3. A fortiori, the court a quo erred in rejecting that appellant's finances had been drastically changed negatively, due to lack of employment and the subsequent re-marriage.
4. The court a quo erred and fell into error in not considering the US$100 appellant had been paying consistently as maintenance towards the minor children.
5. The court a quo misdirected itself in granting a retrospective order when none of the parties prayed for such an order.
6. The court a quo misdirected itself in granting an order that was retrospective when the circumstances did not warrant such.”
RELIEF SOUGHT
The appellant seeks the following relief:
“1. That, the instant appeal succeeds with costs.
2. That, the judgment of the court a quo be overturned and substituted with the following:
“The appellant be and is hereby ordered to pay US$100 or Zimbabwe dollar equivalent at the prevailing interbank rate as maintenance for each minor child.”
ISSUES FOR DETERMINATION
The grounds of appeal only raise four issues, namely;
1. Whether the court a quo erred in varying the maintenance payable towards the minor children.
2. Whether the quantum of the variation is justifiable.
3. Whether the appellant has the financial capacity to fund the variation.
4. Whether the court a quo erred in granting a retrospective order.
ANALYSIS
It is trite that section 9 of the Matrimonial Causes Act [Chapter 5:13] (the Act) empowers an appropriate court, such as the court a quo, to vary, on good cause shown, an order made in terms of section 7 of that Act.
The onus is on the applicant to establish good cause for the variation.
