BHUNU JA: This is an appeal against a portion of the judgment of
the High Court dated 30 April 2015. The
order is couched in the following terms:
“In the result it is ordered as
follows:-
1.
That
respondent shall forthwith pay to the applicant the sum of US$3 026 by way
of reimbursement of medical aid subscriptions.
2.
That
respondent shall forthwith pay to the applicant the sum of US$5 599.80 in
respect of the child's arrear maintenance.
3. That
clause 3.2 of the consent paper be deleted.
4. That
clause 2.1 and 2.3 of the consent paper are by consent of the parties amended
by the substitution of the “Plaintiff” for “Defendant and of the “Defendant”
for “Plaintiff” in view of the minor child having relocated to Zambia with the
respondent.
5. That
respondent shall pay applicant's costs of suit.”
The appellant now appeals against clauses
1 and 2 of the order granting the respondent payment of US$3 026.00 as
reimbursement of medical aid subscriptions, US$ 5 599.80 in respect of arrear
maintenance and an award of costs.
The historical background to this case is
that the parties were married in 1996 divorcing on 25 September 2002. The marriage was blessed with the birth of a
minor child Courtney. Upon divorce the
parties concluded a consent paper regulating the maintenance of their minor
child. In terms of the consent paper it
was the appellant's obligation to provide medical aid cover from a recognised
medical aid scheme and to pay all medical, dental or prescription shortfalls for
the minor child.
The consent paper was couched in
Zimbabwean Dollars before dollarization in 2009. Upon dollarization the parties agreed without
reference to court to provide for the child's maintenance in United States
dollars apparently because the local currency had become valueless. In terms of that agreement arising from the
original maintenance court order, the appellant was obliged to pay US$500.00
per month for the child's upkeep and rentals.
When circumstances changed and the child
began to spend more days in the appellant's custody, the parties agreed to vary
the amount downwards to US$400.00 per month.
The appellant apparently having fallen on
hard times requested the respondent and she agreed to provide medical aid cover
for the minor child. He however
continued to pay the agreed amount until February 2013 when he stopped all
payments prompting the respondent to approach the High Court seeking the
variation of the original court order couched in Zimbabwean Dollars to sound in
United States dollars. Payment of arrear maintenance and a refund of the
medical aid expenses incurred in respect of the child at his specific instance
and request.
The net effect of the relief sought by the
appellant was a retrospective order for arrear maintenance sounding in United
States dollars and a reimbursement of the medical aid expenses in respect of
the minor child.
The Zimbabwean Dollar became worthless sometime in
2009 but the respondent only approached the court for relief in July 2014. This prompted the appellant to raise the
issue of prescription arguing that the cause of action arose in 2009 when the
Zimbabwean dollar became defunct and the obligation to pay in United States dollars
arose. There is absolutely no merit in
the argument founded on prescription because at no time did the appellant
dispute his obligation to pay in United States Dollars once the local currency
became valueless. In the opposing
affidavit at p 22 of the record of proceedings the appellant says:
“9.1. I aver that
I have always had the best interests of the minor child in my contemplation and
resultantly, despite not being compelled to do so by any order of court (the
provisions of the court sounding in Zimbabwean Dollars) having been rendered
worthless and resultantly, unenforceable, I duly gave applicant US$500.00 per
month from 2009 up until 2011 in respect of both my minor child and the
applicant. This payment was over and above the payments I was making for my
daughter's school fees and medical expenses.”
In terms of s 15 as read
with s 16 of the Prescription Act [Chapter
8:11] the prescription period of the debt arising from the plaintiff's
claim is 3 years. The prescription
period began to run as soon as the debt was due. In terms of s 18 the running of prescription
is however interrupted by acknowledgement of debt. Once so interrupted it begins to run afresh.
It is self-evident that
in his opposing affidavit the appellant makes it clear that prior to 2011 there
was no dispute concerning his liability to discharge his maintenance
obligations in that currency. It follows
therefore, that no cause of action could have arisen during that period in the
absence of any dispute concerning payment in United States Dollars and in light
of his agreement to pay as agreed. It
therefore stands to reason, that prescription only begun to run sometime in
2013 when the appellant stopped discharging his maintenance obligations
altogether thereby giving the respondent a cause of action.
There is equally no
substance in the appellant's defence of impossibility of performance when the
Zimbabwean Dollar became valueless. This
is for the simple reason that he professes to have continued to discharge his
maintenance obligations in United States dollars with the respondent's consent
in the best interest of both beneficiaries.
The appeal is however
grounded on the well-known principle against interpreting statutes in
retrospect. This is however only a
general principle of law not cast in stone.
Thus in appropriate circumstances the law may be applied in retrospect
as happened in this case.
When GUBBAY CJ in Nkomo & anor v Attorney General &
Ors 1993 (2) ZLR 422 (S) remarked that there is a strong presumption
against a retrospective construction of a legal instrument he was not setting
out an immutable rule of law but merely restating a well-known variable legal
principle.
This
being a case involving the welfare of a minor child the overriding
consideration in interpreting and applying the law is the best interest of the
child duly protected by the courts in terms of s 81 (2) and (3) of the
Constitution which provides that:
“(2) A child's best interests are paramount in every
matter concerning the child.
(3) Children are entitled to adequate
protection by the courts in particular the High Court as their upper guardian.”
Section 11 of the Matrimonial Causes Act [Chapter 5:09] provides for the
payment of arrear maintenance signifying a clear departure from the common law
principle against retrospectivity. Where
a valid law provides for retrospective effect courts have no option but to give
effect to the intention of Parliament.
In awarding the respondent arrear
maintenance the court a quo relied on
s 11 of the Act which provides that;
“11 Claim for arrear maintenance for
children
1.
Where a spouse has
provided for the maintenance of any children of the marriage or of a former
marriage of one or other of the spouses, that spouse shall be entitled to
recover in arrear from the other spouse such maintenance or such portion of
such maintenance as an appropriate court may consider just or equitable in the
circumstances.
2.
An
appropriated court may make an order for the payment by a spouse of his or her
share of such arrear maintenance in an application by the other spouse for
maintenance pendent lite, pending an
action for divorce, judicial separation or nullity of marriage, or may include
such an order in the final order of divorce, judicial separation or nullity of
marriage, as the case may be.”
Subsection
(1) makes it clear that a spouse who has, provided for any child of a former
marriage of the spouses is entitled to recover arrear maintenance determined as
just or equitable by the appropriate court.
The respondent is a
former spouse of the appellant who has since established in court his
obligation to pay maintenance for their child.
The appellant has however sought to bar the respondent from recovering
arrear maintenance for the child by employing the expressio unius est alterius maxim.
That maxim loosely translated means that the express mention of one
thing excludes that which is not mentioned.
By extension counsel for the appellant argued that the express mention
of spouse in subs (1) of s 11 of the Matrimonial causes Act excludes former
spouses who are not mentioned therein.
As I have already
indicated, whenever a court interprets legislation to do with the welfare of
children it is enjoined to employ the purposive interpretation in the best interest
of the child. Thus where the court is
confronted with more than one interpretation of a given statute or common law
principle, it will invariably give effect to the construction best suited to
give effect to the best interest of the child.
A child is an offspring
of both parents who have joint legal obligation to contribute towards its
maintenance according to their means. It
is therefore clear that the purpose of s 11 is to enable a spouse or former
spouse who has, in good faith, discharged the other party's maintenance
obligation in the best interest of the child to recover arrear maintenance
pertaining to their child from the former spouse. Excluding reference to subsisting marriages
the section reads:
“(3)
Where a spouse has provided for the
maintenance of children …… of a former marriage of one other of the spouses,
that spouse shall be entitled to recover in arrear from the other spouse
such maintenance or such portion of such maintenance as an appropriate court
may consider just or equitable in the circumstances.”
Thus on proper reading
of s 11 of the Act given its natural and grammatical meaning, it expressly
confers the right to recover arrear maintenance on a former spouse. The appellant's reliance on the expressio unius maxim was therefore
misplaced and ill-advised as there was no omission to talk about.
In the context of s 11
it is wholly undesirable and not in the best interest of the child to
discriminate against a former spouse in favour of a current spouse as suggested
by the appellant.
In any case, the
appellant agreed to pay maintenance for his child on agreed terms and
conditions from which he now wants to resile.
Generally speaking, lawful agreements freely concluded by persons of
competent capacity are sacrosanct and therefore enforceable at law without let
or hindrance by courts of law and tribunals.
In furtherance of his
bid to avoid paying arrear maintenance for his child, the appellant argued with
some force that the agreement without reference to court amounted to an
unlawful variation of a court order rendering it unlawful and unenforceable.
A maintenance court
order is designed to provide the minor child with the basic necessities of life
according to its parents' means and status in life. It is by no means a bar to parties agreeing
to vary the award in the best interest of the child as happened in this case.
While in Godza v Sibanda H-H – 254-13 the High
Court expressed the need for parties to apply to court before departing from a
lawful binding court order it was not laying down a hard and fast rule but a
general rule subject to alteration or modification depending on the exigencies
of each case.
A
survey of the authorities shows that it is permissible for parties to agree to
vary such court orders without reference to court. This prompted BEADLE AJ, as he then was, to
remark in Exparte Boshi & Anor 1978
RLR 382 (H) at 383 F that :
“In matters such
as this where the amendment can be of interest only to the parties themselves,
I do not think the court would require formal amendment of the original order
or consider it discourteous to the court if no formal amendment was applied
for.”
In
this case, it is clear that the parties tacitly agreed to amend the original
consent court order in the best interest of their minor child and the
subsequent claim for arrears arising from that agreement could only affect none
other than the parties themselves. That
being the case, the parties were within their rights to amend the consent order
regulating their divorce without reference to court. The agreement was therefore, lawful and
enforceable at law like any other contractual agreement. In the words of BEADLE AJ, as he then was, in
Exparte Boshi & Anor (supra):
“The parties having entered into an agreement, it may
be enforced as an ordinary contract and to apply to court for the amendment
seemed a waste of costs.”
Our legal system pays
great honour to the doctrine of sanctity of contract to the effect that lawful
agreements are binding and enforceable by the courts. In Book
v Davidson 1988 (1) ZLR at 369F, the court held that, it is in the public
interest that agreements freely entered into must be honoured.
The appellant having
agreed to pay the medical aid subscriptions and maintenance in all the amounts
claimed and in the absence of any error in calculation or fraud he is firmly
bound in contract and in terms of s 11 of the Matrimonial Causes Act. Thus the court a quo did not err at all when it ordered the appellant to discharge
his maintenance obligations arising from a lawful court order subsequently
modified by mutual agreement in the best interest of the minor child of the
parties according to law.
The respondent has asked
for costs on the punitive scale. Such
costs are however not lightly granted.
They are normally reserved for unbecoming deplorable conduct which puts
the other party to unnecessary expense.
Although the appellant was unsuccessful, he had an arguable case based
on sound legal principles. Punishing him
with costs at the higher scale in the circumstances of this case would have the
undesirable adverse effect of discouraging litigants with arguable cases from
approaching the courts.
It does not follow that
every loser in a legal contest must face costs at the punitive scale. Such costs are normally meant to punish some
form of misbehaviour or unbecoming conduct, which attributes are absent in this
case.
It is accordingly
ordered that the appeal be and is hereby dismissed with costs.
MALABA DCJ: I agree
GUVAVA JA: I agree
Mawere
& Sibanda, appellant's legal practitioners
Coghlan, Welsh & Guest, respondent's legal practitioners
