This
is an appeal against the entire judgment of the High Court of Harare
handed down on 25 August 2016. At the end of the hearing in this
matter we dismissed the appeal with costs and indicated that the
reasons would follow. These are they.
FACTUAL
BACKGROUND
The
parties are a married couple in the middle of divorce proceedings on
the basis of irretrievable breakdown of their marriage. The union was
blessed with four children.
In
February 2013, the appellant instituted divorce proceedings against
the respondent, Mrs Bowers. He was amenable to distribution of their
assets, to granting Mrs Bowers custody of their minor children, to
her retaining the matrimonial home and to payment, by him to her, of
spousal maintenance. The respondent accepted the US$2,000= per month
that Mr Bowers offered as maintenance as well as custody of the
children which he did not seek to contest. She however rejected the
distribution of assets suggested by him on the basis that he had not
disclosed all the assets in his possession.
In
August of 2013, the appellant sought to amend his declaration but
only pursued the matter in December of 2014. He was now seeking
custody of the minor children and retracting his offer to pay
maintenance to Mrs Bowers. The latter then, in February 2015, filed
an application for a contribution towards the costs of her litigation
in terms of Rule 274 of the High Court Rules.
It
was the court a
quo's
finding that the amendment sought by Mr Bowers, if successful, would
result in a costly and seriously contested trial over issues of
custody, maintenance for the children, and post-divorce maintenance
for Mrs Bowers. The court a
quo
accordingly found in the respondent's favour and granted the order
that she sought.
It
is this decision that the appellant has brought to this Court on
appeal.
The
grounds of appeal relied upon raise the single issue of whether or
not the respondent was entitled to a contribution towards her legal
costs.
The
judge a
quo,
relying on the case of Chinyamakobvu
v Chinyamakobvu 2014
(1) ZLR 509 (H)
correctly set out the requirements for the granting of an order of
contribution towards legal costs in divorce proceedings as follows;
(a)
There must be a subsisting marriage;
(b)
The suit in action must be matrimonial in nature;
(c)
The application must have reasonable prospects of success;
(d)
The applicant must show that;
(i)
He or she is not financially able to bring or to defend the action
without the contribution from the other spouse; and
(ii)
The other spouse is able to provide the applicant with the
contribution sought.
The
learned author, HAHLO, in his book “South African Law of Husband
and Wife” 5th
edition...,
states that the last two requirements cited, in particular, are
conjunctive, and that ultimately for the application to succeed all
the requirements must be met.
The
judge a
quo
correctly found that requirements (a) and (b) had been met. As for
requirement (c), that is, the prospects of success in relation to the
division of the parties' matrimonial assets as well as custody of
the minor child, the judge opined as follows in his judgment;
“The
aspect
that seemed contentious is whether there are prospects of success.
This should however not overly detain me. In terms of the Matrimonial
Causes Act [Chapter 5:13], a court, in determining the matrimonial
issues between spouses is enjoined to consider all the circumstances
of the case. The spouses must be able to place before the court all
relevant factors to be considered. Where, as in this case, parties
are not in agreement on the extent of their matrimonial estate it is
only prudent that each party be able to satisfy the court of their
contention regarding such assets. The success or otherwise will be in
the sharing ratios to be determined by court.
It
is my view that the facts clearly show that applicant may succeed in
getting a favourable share of the matrimonial estate as compared with
what she is being offered. In fact, in terms of the intended
amendment, the offer of Number 129 Patrick Close had been withdrawn
and replaced by a usufruct right for 2 years and half of the sale
proceeds thereafter. I am of the view that there are prospects of
success in applicant arguing for a better division of the immovable
property taking into account other properties she alleges respondent
acquired.
On
the issue of custody, clearly this is contentious and the need for
parties to adequately argue their respective cases cannot be
overemphasized. The paramount consideration is the best interests of
the children, and, in my view, this can only be achieved where both
spouses are afforded the opportunity to adequately argue their case.”
Concerning
the respondent's prospects of success in respect of spousal
maintenance and her financial capacity, the judge a
quo
had this to say:
“The
last issue, of spousal post-divorce maintenance, is an issue that is
also contentious especially that respondent, on his own volition, had
deemed it proper to offer applicant maintenance as he realized she
needed financial support. Now that he wishes to withdraw such offer
applicant is justified in seeking to be awarded maintenance as her
need for maintenance had initially been appreciated by respondent.
Whilst post-divorce maintenance is not granted just on the asking, it
is only proper that applicant be given opportunity to argue her case.
It may also be noted that the duration of the marriage and the
standard of living they had been used to may enhance the prospects of
success for applicant. I am thus of the view that there are prospects
of success.”
The
judge a
quo
also
considered the question of the parties' financial situations
vis-a-vis
the respondent's ability or otherwise to pay her legal costs and
whether the appellant was able, or obliged, to contribute to such
costs. The appellant, it seems, did not dispute that the respondent
had a monthly income of $6,384= made up of $1,084= salary, $2,000=
maintenance for herself, $2,000= maintenance for the children,
$1,000= received as rent and $300= received from her daughter. The
respondent showed how that income was spent, leaving her with
slightly over $300=. The appellant was of the view that if the
respondent did not live a 'lavish' lifestyle, as evidenced by the
breakdown of her expenses, she could easily afford the cost of the
litigation in question.
The
judge a
quo
was not persuaded by the appellant's submissions in this respect.
He noted that they ignored, firstly, the fact that the respondent was
expected to continue living the lifestyle to which she and he (a
specialist orthopedic surgeon) were accustomed, and, secondly, that
$4,000= of the amount was specifically for her and the children's
maintenance. The judge stated as follows in his judgment;
“It
would be an act of irresponsibility for applicant to utilise money
for the children's maintenance for her legal fees. The children
should not be denied their requirements just because father and
mother have some court battle. Out of the remaining $4,384=, $2,000=
was for applicant's personal maintenance. Upon separation,
respondent, on realizing the standard of living expected of his wife
had offered her that sum. It was thus not a sum for savings but for
the applicant's monthly requirements as appreciated by respondent.”
The
appellant, it would appear, did not assert that the expenses listed
by the respondent went beyond what the parties used to enjoy whilst
staying together. He made the suggestion, but tendered no evidence to
substantiate it, that the respondent had other undisclosed sources of
income. The latter disputed this assertion and placed before the
court records showing the extent to which she had been compelled to
raise loans in order to meet some of the family's expenses. These
were not seriously challenged by the appellant.
The
last requirement relates to the appellant's ability or otherwise to
pay the costs sought by the respondent.
The
judge a
quo
noted that the appellant did not dispute that he had a bank balance
of some $185,000= as shown by the respondent. Nor did he indicate
what expenses he had, out of an admitted monthly income of $7,500=,
that made it not possible for him to contribute towards the
respondent's legal costs. The judge a
quo,
in
my view, correctly observed that the appellant's opposition to the
claim was not because he could not afford to contribute to the
respondent's costs but his belief that she was extravagant in her
expenses and ought to be able to fund her defence from her own
resources.
It
is also clear from his heads of argument that the appellant believes
that he already does much for the family and ought therefore not to
be made to take on the respondent's legal costs as well.
The
point will be made here that while this may very well be true, it is
not part of the requirements put to the test in such an application.
What suffices is that the appellant does not dispute his ability to
contribute towards the respondent's legal costs as claimed.
With
all of the foregoing in mind, it is, in my view, correctly argued for
the respondent that the standard applicable in considering prospects
of success is itself low. In the case of S
v McGown 1995
(2) ZLR (S) 81...,
GARWE JA, after considering a number of authorities on the matter,
stated as follows;
“The
applicant should, therefore, be required to make out a reasonably
arguable case, in the sense of there being substance in the argument:
Beatley's
Trustee v Pandor & Co
1935 TPD 365 at 366, cited in S
v
Mutasa
1988
(2) ZLR 4 (S).”
When
this test is applied to the circumstances of this case, I do not find
that there is anything to fault in the reasoning of the court a
quo,
as
cited above, nor in the conclusions reached on the question of the
respondent's prospects of success in the main action.
Issues
of division of matrimonial assets, custody of minor children, and
maintenance tend to be contentious issues in divorce matters.
Generally, they are better determined by a Divorce Court after the
consideration of detailed evidence be it viva
voce
or otherwise. Thus, a court hearing an application for contribution
towards the legal costs of a party in ongoing, contested divorce
proceedings may not always be best placed to make a definitive
finding on that party's prospects of success, or lack thereof, in
the main action.
I,
accordingly, hold the view that the respondent cannot be said to have
failed to make out a reasonably arguable case, nor, for that matter,
that such case as she made out lacked substance. In the result, I do
not find any merit in the appellant's assertion that the court a
quo
fell into error in reaching the decision that the respondent had
proved a case for contribution, from him, towards her legal costs.
The
last issue to consider is the quantum
of the contribution awarded.
The
respondent claimed $28,750= contribution in legal costs and the court
granted $25,000= in her favour. The judge reasoned as follows;
“Upon
a careful consideration of the sum being claimed, I have come to the
conclusion that it may be on the high side. It must be borne in mind
that that this is a contribution and so it need not pay for
everything. The applicant should be able to save a bit on her own.
To expect (the) respondent to foot the entire bill may not be
appropriate. I believe a contribution in the sum of $25,000= should
be adequate.”
There
is no gain-saying the fact that in reasoning and concluding thus, the
judge a
quo
exercised
a
discretion.
The
respondent, in this respect, contends, correctly, that nowhere in his
arguments did the appellant challenge the exercise of this
discretion. It is an established principle of the law that a higher
court will not lightly interfere with the exercise of discretion by a
lower court. It can only do so if it is established that the
discretion was exercised capriciously or erroneously, that the lower
court acted on a wrong principle, allowed extraneous or irrelevant
matters to guide it, mistook the facts or disregarded some relevant
considerations. See
Barros & Anor v Chimponda 1999 (1) ZLR 58 (SC)...,.
All
this not having been alleged, much less established, I am unable to
find that the judge a
quo
misdirected himself in ordering that the appellant contributes
$25,000= towards the legal costs of the respondent.
In
all respects, therefore, we were satisfied that the appeal lacked
merit; hence the order dismissing it with costs.
