MAWADZE J: This is an opposed application in which the
applicant seeks an order for contribution towards costs in terms of Order 35 r
274 (1) of the High Court Rules 1971 in the following terms,
“IT IS HEREBY ORDERED
THAT;
1. The respondent shall
contribute the sum of $5 000-00 towards Applicant's/Defendant's costs of
divorce.
2. The respondent shall pay
the costs of this application on an client-attorney scale.”
The respondent issued summons out of this court on 3 August
2011 seeking a decree of divorce on the basis of irretrievable breakdown of the
marriage, an order in respect of the minor child, an order in respect of
sharing of the assets of the parties and that each party pays its own costs.
The parties were married on 5 January 2005 in terms of the
Marriage Act [Cap 5:11]. The marriage was blessed with one child born
on 5 August 1997. Both parties currently reside in Germany.
The applicant entered an appearance to defend on 4 November
2011, filed her plea and counter claim on the same date. The matter then
proceeded in terms the rules. A reading of the pleadings filed by both parties
reveal the following;
a) Both parties agree that
the marriage relationship between them has irretrievably broken down and that
there are no prospects of the restoration of a normal marriage relationship.
b) Both parties agree that
custody of the minor child be awarded to the applicant.
c) On 10 February 2012 the
applicant withdrew the maintenance claim in respect of herself and the minor
child indicating that these matters were being dealt with by the courts in
Germany.
d) There is no dispute over the
sharing of movable assets. The parties are agreed that all household goods be
awarded to the applicant. They are also agreed that the applicant should be
awarded two of the three motor vehicles which are specified in the pleadings.
e) The only dispute before
the parties relates to the sharing of immovable properties being one in Germany
and six in Zimbabwe which are;
-
Zwischen den Hullen 45, 53343 Wachtberg, in Germany
-
Stand No 206 Goromonzi
-
Stand No 176 Goromonzi
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Stand No 6955 Dzivarasekwa, Harare.
-
Stand No 798 Charlotte Brooke, Borrowdale, Harare
-
Stand No 1338 Bluffhill, Harare and
-
Stand No 6 Manresa Harare.
The respondent proposes that the applicant be awarded only
one immovable property Stand No 1338 Bluffhill, Harare and that he be awarded
all the remaining properties. The applicant proposed that she be awarded a 50%
share of the value of the property in Germany and three other properties in
Zimbabwe being Stand 172 Goromonzi, Stand 1338 Bluffhill, Harare and Stand No 6
Manresa Harare with the remainder being awarded to the respondent.
At the time of filing of this application the parties have
not been able to resolve this dispute.It is common cause that the applicant is
not employed and that the parties are living on separation in Germany. The
respondent is employed by the United Nations agency in Germany.
The applicant in her founding affidavit states that on 6
December 2011 her legal practitioners wrote to the respondent's legal
practitioners seeking contribution towards costs from the respondent. The
response dated 3 January 2012 was that respondent was yet to advise his legal
practitioners on his attitude on the matter. On 10 February 2012 applicant's
legal practitioners renounced agency but re-assumed agency on 27 February 2012.
On 27 February 2012 applicant's legal practitioners sought respondent's
response to the request for contribution towards costs. The respondent's legal
practitioners indicated that they were still awaiting response from the
respondent. No response was formally given and on 9 May 2012 applicant filed
this application.
The basis for the application as stated in the founding
affidavit is that applicant lacks means to litigate in this divorce matter.
Applicant intends to defend the divorce action and to prosecute her counter
claim. The applicant believes that she will be unable to exercise this
constitutional right if respondent whom she alleges has means is not ordered to
contribute towards the costs. In her founding affidavit applicant stated that
she receives a monthly stipend of 550 Euros given to her by the respondent for her
upkeep. She later admitted in the answering affidavit that it is actually 650
Euros. In addition to that applicant also conceded in her answering affidavit
that she receives US$600-00 per month from rentals in Zimbabwe which she says
she is currently using to renovate the very premises being rented out. The
applicant explained that she is studying in Germany and also pays for their
child's bus fare for school. The respondent hotly disputed that applicant pays
the child's bus fare for school. Instead respondent indicated that he pays
26-90 Euros for the child's bus fare.
The applicant claims the sum of US$5000-00 as contribution
for costs as she estimates the trial on the contested issues to last for 2
days. There is no further justification given for the amount in the founding
affidavit. It was only in the heads of argument that it was explained then that
the applicant has engaged a very experienced legal practitioner whose tariffs
would justify the amount of US$5000-00. The applicant did not explain the respondent's
means in her founding affidavit save to state that he is a man of means.
In his opposing affidavit the respondent averred that
applicant was unwilling to compromise in this matter thereby avoiding costs of
litigation. He states that applicant was claiming a 50% share of the value of
the immovable property in Germany in when she knows respondent is still paying
a mortgage for it of 190 000 Euros. The respondent submitted that he offered
applicant only one immovable property because it is the only one unencumbered.
As regards his means the respondent did not address this pertinent point his
affidavit. It was only in argument that it was submitted that the respondent is
not a rich man as he earns 7000 Euros per month. No proof of his earnings is provided.
Instead the respondent was keen to place before this court as per his opposing
affidavit his expenses or obligations which he outlined as follows;
i) That he is
paying a mortgage for the next ten years in the sum of 190 000 Euros for the
Germany property.
ii) That he has other
mortgage obligations outlined in para 6.3 of his opposing affidavit.
iii) That he pays applicant a monthly
stipend of 650 Euros.
iv) That he pays for applicant's
accommodation in Germany and all utility bills which is not part of the monthly
stipend of 650 Euros.
v) That he incurs monthly
expenditure outlined in para 6.3 of his founding affidavit (which if my
calculations are correct amounts to 4 163-14 Euros per month).
The respondent argues that applicant has means to pay her legal costs from the
monthly stipend and rentals received from Zimbabwe.
THE LAW
The learned author Hahlo in South Africa Law of Husband and Wife 5th
ed pp 424 sets out the requirements for an order for contribution towards
costs. I shall proceed to discuss these factors and relate them to the facts of
this mater.
a) There must be a subsisting
marriage. In the present case the marriage between the parties is subsisting.
b) The suit in action must be
a matrimonial one. In this matter the action relates to divorce hence a
matrimonial one.
c) The applicant must have
reasonable prospects of success. I have already alluded to the nature of the
dispute between the parties which relates to sharing of immovable assets. I am
satisfied that the applicant has made out a case that it is unlikely for the
court to award her one out of the seven immovable properties. The respondent
seems to labour under the mistaken belief that in deciding how to share the
immovable property the court only considers direct contribution. That
perception is wrong. The court is guided by the provision of s 7 (4) (a) – (g)
of the Matrimonial Causes Act [Cap 5:13] see also Mundawarara
v Mundawarara HH 51/12 in which I discussed these factors and
referred to other cases. I am of the view that the respondent's position is
untenable and that the applicant enjoys prospects of success.
d) The applicant is not on a
financial position to bring or to defend the action without the contribution
from the other spouse and
e) That the other spouse is
able to provide the applicant with this contribution. See also Dube (nee
Msimanga) v Mavako HC 78/06
I am of the view that items (d) and (e) above should be considered
conjunctively. In other words for an award to be made it should not only be
shown that the applicant lacks financial means to bring or defend an action
without assistance from a spouse but also that other spouse has financial means
to pay for such contribution.
I have already alluded to applicant's means. She is unemployed and wholly
dependent on the respondent for her needs. Applicant has therefore no
independent financial means to survive. All respondent has said is that
applicant should use either her monthly stipend of 650 Euros or the rentals of
US$600-00 per month or both to pay for her legal costs. I am not persuaded by
this argument. The applicant receive this monthly stipend for her day to day
needs. The costs of litigation in this matter is an additional expense to her.
Applicant also explained that she uses the US$600-00 to renovate and maintain
the property being rented out in Zimbabwe. This was not seriously challenged by
the respondent. It is therefore clear that applicant is not in a financial position
to defend this action and prosecute her counter claim without contribution from
the respondent.
I lastly consider whether respondent is able to provide the applicant the
contribution required. While applicant did not clearly explain and justify the
figure of US$ 5000-00 claimed, she none the less indicated that she has engaged
an experienced legal practitioner and that the trial will take about two days.
I find the amount to be reasonable in the circumstances.
The respondent has not taken the court in his confidence. He was not keen to
place before the court his income per month. The respondent was simply eager to
state his monthly expenses. This court had to ask for the respondent's monthly
income during submissions from his counsel. The impression I get from the
respondent is that he is simply unwilling to provide applicant with any
contribution not that he lacks means to do so. From the admissions made the
respondent earns a salary of about 7 000 Euros per month. It is therefore well
within his means to pay US$5000-00 claimed by the applicant.
I am satisfied that the applicant has proved on a balance of probability that
she is entitled to an order directing the respondent to contribute towards her
costs in the amount claimed. Consequently applicant's claim in this regard
should succeed.
Both parties have not made meaningful submissions in relation to costs. The
applicant did not justify why she was seeking costs on an attorney – client
scale. One may infer that this is informed by the applicant's lack of means.
The general principle is that a successful party is entitled to his or her
costs. See Mutyasira v Gonyora and Anor 2007 (1) ZLR 318 (S)
at 324 D. However in cases of this nature the court may be tempted for good
reasons for costs to be made costs in the cause of the main action and be
reserved for a decision by the trial court. See Barras vBarras
1978 RLR 384, Lindsay vLindsay 1993 (1) ZLR 195 (S). The
rationale is that the trial court is better placed to assess whether such an
application was well founded or not after having heard evidence in detail on
issues in contention between the parties. I am of the view that there are
unusual circumstances in this case in that applicant totally lacks means and
that her application is well founded. The distribution of the immovable assets
is very key to the dispute between the parties. It is for this reason that I
will award costs on the scale prayed for.
In the result I make the following order.
1. The respondent be and is
hereby ordered to contribute the sum of US$5000-00 towards the applicant's
costs for divorce.
2. The respondent shall pay
costs of this application on a client – attorney scale.
Munangati and Associates,
applicant's legal practitioners
Messers
J Mambara and Partners, respondent's legal practitioners
