However, it is on the remaining
grounds of the appeal that we found that there are clear grounds for remitting
this matter back to the Magistrate's Court for a full hearing.
It was evident from the record that
there were shortcomings in how the magistrate dealt with the issues that were
raised on appeal. The factual findings of the magistrate were not supported by
clear and convincing evidence in how the magistrate arrived at its conclusions.
In an award for maintenance, where there is no firm evidence that lends support
to how a Magistrates Court arrived at its decision, then a court, on appeal,
will naturally find that a proper enquiry has not been made in terms of section
5 of the Maintenance Act [Chapter 5:09] and section 13 of the Maintenance Act [Chapter
5:09].
Having ordered a remittal of the
matter back to the Magistrates Court, we hereby seek to clarify on the nature
of the proper enquiry to be conducted by the magistrate.
In holding a proper enquiry, as
hereby directed, it is our view the magistrate hearing this matter afresh
should have regard to the following:
1. The magistrate must be satisfied
that, factually and procedurally, the matter is one which falls within the
ambit of the Maintenance Act [Chapter 5:09] in terms of there being neglect by
a responsible person to carry out of his duty to support. This is particularly
so with regards to the appellant's son who is said to be at boarding school and
who spends two weeks of the holiday only with the respondent. The school fees
are fully paid for by the appellant. Where there is no evidence of neglect of
the duty to support with regards to any applicant, then the application, with
regard to such party, would not properly be before the Maintenance Court.
Where the court is satisfied that
there is, indeed, neglect of the duty to support then it must be clear how much
maintenance is awarded the applicant and the basis for arriving at the sum
awarded.
Where there are two applicants, as
in the present case, then the amount awarded to each must be dealt with
according to the facts.
2. The magistrate hearing the matter
should further ensure that all evidence in support of factual averments is laid
before him or her. Where an applicant, in particular, claims specific sums to
support alleged expenditures and a certain lifestyle, these should be supported
by clear evidence.
Expenditures cannot be based on mere
assertions from which the magistrate then draws his or her own conclusions. The
investigative role of the magistrate is emphasized. See Hora v Tafamba 1992
(2) ZLR 348.
The formula applied in arriving at
the final figure for maintenance must be apparent from the judgment. Where
appropriate, the magistrate must use the guidelines set out in cases such as Hora v Tafamba 1992 (2) ZLR 348 and Gwachiwa v Gwachiwa SC134-86.
3. Where a party to a maintenance
claim owns a business, as in this case, and reaps dividends from such business,
but clearly also has expenses, a proper enquiry into the company's income and
expenditures must be made in order for the court to arrive at an informed
assessment of the actual disposable income at hand.
Financial evidence is crucial and
its accuracy is key. It is the duty of the party concerned to place all relevant
information before the court. However, where such information has not been
placed before the court, the magistrate can request for such information,
particularly in terms of section 13(b) and (c) of the Maintenance Act [Chapter
5:09]. Only where such information has been sought and is still not forthcoming
can the court be justified in making its objective assessment on income from
the totality of the facts. (Lindsay v
Lindsay 1993 (1) ZLR 195).
4.
Spousal support pending divorce is often a matter of urgent
need and it should be apparent from the application, as well as from a thorough
enquiry, whether the applicant has generally not been employed in the marriage
and has not means to support herself.
Ultimately, in such cases, spousal
need, and the other spouse's ability to pay, are the core factors in an enquiry
for maintenance by a spouse.
An appropriate sum for spousal
support pending divorce is largely influenced by the standard of life the
parties established during the marriage and the spouse's ability to pay.
Where divorce is pending, and a
spouse seeks support because she is unable to support herself, the magistrate
must approach the matter in recognition that the application is being made in
the context of immediate need. However, it would also seem logical,
particularly where the reality of a pending divorce has been brought to the
attention of the magistrate, that the Maintenance Court should then bear in
mind that temporary support is different from the final post judgment support
in the divorce matter. This is because the Divorce Court will take into account
factors such a final apportionment of the assets of the parties, the duration
of the marriage, the age and physical condition of the parties, the time
necessary to enable the party seeking maintenance to find their feet and so on.
It will inevitably be in the final divorce matter that the issue of what is
equitable will be fully canvassed as espoused in the Pahla v Pahla 1987
(2) ZLR 70 (HC) case.
It is therefore the above issues which should
guide the magistrate in hearing this matter afresh.
