GARWE
JA:
[1]
This
is an appeal against the decision of the High Court dismissing with
costs an application filed by the appellant for the upward review of
the amount of maintenance payable by the respondent in respect of the
appellant and two minor children of the former matrimonial union.
[2]
The court a
quo concluded
that no good cause for such upward review had been shown.
Consequently, it dismissed the application with costs.
FACTUAL
BACKGROUND
[3]
The appellant and the respondent were husband and wife for 12 years.
The relationship went through turbulent times. Agreed that the
marital relationship had irretrievably broken down, and, in
anticipation of a divorce order by consent, the parties entered into
a consent paper in September 2009 to regulate the issues of custody,
maintenance for the appellant and minor children of the marriage,
rights of access and distribution of both the movable and immovable
property. On 17 December 2009 the High Court made an order granting a
decree of divorce and custody of the minor children to the appellant.
It further ordered that the issues of access, maintenance and
proprietary rights of the parties be regulated in accordance with the
consent paper signed by the parties.
[4]
Paragraph 4 of the consent paper was the subject of the application
filed before the High Court. That paragraph reads, in relevant part,
as follows:-
“4.
MAINTENANCE
The
parties have agreed the following provisions in respect of
maintenance;
4.1
(Not relevant).
4.2
(Not relevant).
4.3
The plaintiff will pay US 100.00 per month per child until each child
attains the age of 18 years or becomes self-supporting, which ever
first occurs, such maintenance to be paid by or before the first day
of the month to which it relates, commencing 1 November 2008,
and such maintenance figure to be reviewed from time to time as
appropriate, regard being had to Plaintiff's financial
circumstances in order to maintain the same value and benefit to the
children's living costs.
4.4
Plaintiff will pay US2 000.00 per annum to defendant, payable in 4
quarterly instalments on 1 April, 1 July, 1 October and 1 January for
as long as his obligation to pay maintenance for the minor children
pertains. It is specifically recorded that plaintiff will bear a
prorata (sic)
amount of this liability for the period extending from the date upon
which defendant vacated the former marital home, namely 31 October
2008, up to 31 March 2009, and in respect of which it is
recorded that such payment has already been effected.
It
is recorded that from this said amount of US$2 000.00 per annum,
defendant will procure payment of the DSTV subscription, and
plaintiff agrees to increase the said amount of US$2 000.00 per annum
by the amount of any annual increase in the DSTV subscription. The
current annual subscription being US$720.00.
4.5
Plaintiff will maintain the minor children at his cost for as long as
his obligation to pay maintenance for them pertains on a suitable
medical and dental aid scheme, both locally and externally (and where
the external medical and dental aid policy shall be the Goodhealth
policy), and shall in addition, bear any shortfalls in respect of any
medical and/or dental attention or treatment or medication
administered or applied in respect of the minor children.
4.6
Plaintiff will maintain defendant at his cost on an external medical
aid policy subscribed with Goodhealth until her death or remarriage
or until she may live as man and wife with another man, or until the
youngest child attains the age of 18 years, whichever of these
contingencies first occurs.”
APPELLANT'S
CASE A QUO
[5]
In her founding affidavit in the High Court, the appellant was clear
that the application was for an upward variation and extension of the
period of maintenance. She averred that, before the divorce, the
family enjoyed a high standard of living. They enjoyed regular
holidays in places such as Maldives, Mauritius, America, Scotland,
Germany, South Africa and, locally, at Mazvikadei and on a family
houseboat at Kariba. She stated that, as owner and Managing Director
of a long established firm, C & J Accounting Secretarial Services
(Pvt) Ltd, and having interests in several other companies, the
respondent was a wealthy man, capable of meeting the upward variation
without any difficulty. She further stated that, at some stage after
the grant of divorce, the respondent increased the cash payment in
respect of the two children to $600 per month but stopped providing
fuel. In February 2015, however, the respondent wrote to her advising
that he was reverting to the US100 per month per child agreed in the
consent paper.
[6]
She averred that $100 per month is obviously insufficient to meet the
needs of a teenage girl. Whilst accepting that the respondent had
been meeting other additional expenses of the children, she submitted
that most of these were not necessary. At the time of divorce she had
no idea what it cost to run a family. She discovered, as time went
on, that the amount paid by way of maintenance was insufficient. As a
result, she sought full time employment although she has no
qualifications. Besides a twelve-year-old Nissan Double Cab, she has
no other assets of substantial value. She has a usufruct in the house
which she currently occupies but which is owned by a trust controlled
by the respondent.
[7]
It was also her submission that a number of expenses have gone up
since dollarization in 2009. She has had to adopt severe cost cutting
measures in order to meet some very basic expenses. To the contrary
the respondent continues to live a lavish lifestyle. He owns five
houses in upmarket areas of Harare, a house in Australia, a weekend
cottage at Lake Chivero, a houseboat on Lake Kariba, timeshares in a
plot at Lake Mazvikadei and Lokuthula Lodge. He also owns five top of
the range motor vehicles and has several bank accounts locally, in
South Africa, Australia and other off shore destinations. He has
interests in several companies including Kawasaki Motor Cycles which
provides motor cycles to the Zimbabwe Republic Police.
[8]
She further averred that fairness and logic dictates that the
maintenance in respect of the two minor girls should continue beyond
the time they attain the age of eighteen as they will need to attend
tertiary education. Maintenance for them should continue until they
are twenty two years of age. In her case, having contributed directly
and indirectly to the acquisition of the matrimonial assets and in
bringing up the children, respondent should be able to contribute to
her ongoing maintenance with little impact on his wealth. She further
stated that, although the terms of the consent paper had been agreed
upon, the terms were never fair in the circumstances of the marriage.
Indeed, if she had known the details then of what she now knows about
his assets, she never would have agreed to the terms in the consent
paper. Accordingly she sought an order for the upward variation of
the maintenance payable in respect of the children to $500 per month
per child and to $2 000 per month in respect of herself.
RESPONDENT'S
CASE A QUO
[9]
The respondent's submission was this. The appellant has more by way
of financial and proprietary comfort and security than the vast
majority of the Zimbabwean urban population. She has a secure job
and resides rent free in a well-appointed four bedroomed property in
a good area of Harare. She drives a sound and reliable car. The
entirety of the children's education as well as medical and dental
requirements are fully paid for by himself. The family never enjoyed
a high standard of living. Their lifestyle was more consistent with
an average middle class urban family. He denied owning C & J
Accounting and Secretarial Services but admitted that he is its
Managing Director. He gave no further detail. During the subsistence
of the marriage, they enjoyed average family holidays, in some cases
using RCI timeshares. The former matrimonial home is owned by the A.
W Mackintosh Trust, a trust which he formed. His annual income is
$59,660 whilst his annual expenditure is $61,535, the result being an
annual shortfall in the sum of $1,875.00. He admitted reducing the
monthly payment for the children from $600 to $200 but explained that
this was partly because the appellant was abusing the monies he would
have paid and would convert the money to her personal benefit.
[10]
It was his further claim that, in fact, he pays $561 per month to the
appellant. This consists of the cash maintenance of $200, 60 litres
of diesel ($83.00), internet and security ($87.00) and the $2,000
which is paid annually to the appellant which translates to $191.00
per month. The amount of $2,000 paid annually was not intended as her
personal maintenance but was meant to contribute generally to the
living costs of the family until the girls attained majority.
[11]
He also submitted that the appellant earns a minimum of $1,500 per
month. She stays in a home owned by a trust in her own name and
enjoys a life usufruct and is, together with the children, the sole
beneficiary of that trust. She also received, as part of the divorce
settlement, two motor vehicles and a fair division of the moveable
items. He indicated his willingness to pay maintenance to the
appellant for the upkeep of the minor children until such time as
they finish their secondary education or attain the age of 18 years,
whichever occurs last.
[12]
He denied spending considerable sums of money on holidays or that the
expenditure he incurs on the children is unnecessary. Whilst
accepting that his annual earnings are significantly in excess of
those of the appellant, he submitted that his expenses are also
considerable. He denied owning most of the immovable properties
listed by the appellant, save for the timeshares and Trader Horn, the
weekend cottage, and the house in Australia, which he says is still
heavily mortgaged. He denied owning the vehicles or the bank accounts
and other assets listed by the appellant but gave no further detail.
He also denied having anything to do with the various businesses
itemised by the appellant and, in respect of Kawasaki Motor Cycles,
stated, also without giving any further detail, that the contract
with the Zimbabwe Republic Police is governed by a confidentiality
agreement.
[13]
On the order sought, he stated as follows. Once the children attain
majority, they will be entitled to decide where they live. He will
deal directly with each child and make such financial contribution as
the child may reasonably need in respect of education, medical,
transportation and other related expenses. As regards the appellant,
he submitted that she should be able to look after herself and not
continue to look to him as her bread ticket for life. He stated that
the allegations made by the appellant on his financial and
proprietary circumstances are based on supposition, rumour,
exaggeration and are in fact “errant nonsense”. He again
reiterated his willingness to pay $300 per month per child but on the
condition that the appellant uses at least $75 of that amount towards
the children's clothing.
APPELLANT'S
ANSWERING AFFIDAVIT A QUO
[14]
In her answering affidavit, the appellant responded as follows. Her
employment in the tobacco industry is not secure. Whilst she does not
pay formal rental, she incurs a number of other costs in maintaining
the home. The complex in which she stays with the children is not
secure. The vehicle she drives is more than twelve years old. All she
asks for is fair and reasonable maintenance for herself and the
children, having subsisted on inadequate maintenance for several
years since the divorce. The annual maintenance of US$2,000 was
intended for her personal maintenance. She insisted that, during the
matrimonial union, the family enjoyed a high standard of living and
gave a summary of the travel undertaken during the period 1996 to
2007. She further insisted that the respondent is the owner of C &
J Accounting & Secretarial Services.
[15]
She denied that the $600 per month that the appellant paid at some
stage was misused, stating that it is not possible for three people
to misuse that amount which translates to $20 per day. On the
expenses claimed by the respondent, she averred that the respondent
has allocated $350 for his own food per month but expects the
appellant and the two minor children to survive on less than that
figure. He does not explain why it is necessary for him to rent
premises and produces no proof in respect of the rent he receives for
the former matrimonial house. She denied that the payslips produced
by the respondent correctly reflect his entire income, or that they
are consistent with his lifestyle. As regards the income of $1,500
per month mentioned in one of her letters, she stated that the figure
represented her total income position, inclusive of a thirteenth
cheque, $200 fuel allowance and the annual contribution of $2,000
paid by the respondent. She reiterated that the divorce settlement
was not fair and that she will be bringing a separate action to
revisit the settlement.
[16]
She attached a copy of a schedule which she says was prepared by the
respondent in support of an application for a loan to purchase the
Azari property in Mauritius. She came into possession of the document
after the respondent had filed his opposing papers. The document
reflects the estimates of the values of his assets and a net worth of
over $6 million and annual income totalling about $985,000. As
regards the offer by the respondent to pay $300 per month per child,
she submitted that this is not a compromise at all, as the total
figure that will be available to the family is $557, from which she
will be expected to meet all the food and children's requirements.
She attached further documents which reflect various bank accounts in
the respondent's name with banks in South Africa, Australia and
other places.
DETERMINATION
OF THE COURT A QUO
[17]
In its judgment, the court a
quo was
of the opinion that the application was an attempt to amend the
consent paper on the basis that the settlement had not been fair. The
court also found that there were contentious issues that required
full ventilation. Despite that finding, the court found that the
appellant had no good cause for variation because she was attempting
to revisit the agreement which the parties had entered into and that
the appellant appeared to have had a rethink on the position she had
earlier accepted. The court accordingly found that the appellant had
not shown any change of circumstances amounting to good cause as to
warrant variation of the maintenance paid to her and the children.
Accordingly, the court dismissed the application with costs. Hence
the present appeal.
GROUNDS
OF APPEAL
[18]
In her amended grounds, the appellant has raised seven grounds of
appeal. These are:-
“1.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in mistaking the factual Application a
quo for
a variation of a Consent Paper, rather than for an upward variation
in maintenance.
2.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in not exercising its equitable discretion at all, whether by
value judgment or assessment, notwithstanding facts proffered which
manifested good cause for the relief sought of a variation in
maintenance.
3.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in finding that the appellant had not shown a change in
circumstances warranting good cause for the variations sought, as
this ignored the facts and figures sworn to in her founding
affidavit.
4.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in allowing extraneous and irrelevant matters to affect its
decision, namely considerations pertinent to variation of a Consent
Paper, rather than applying its equitable discretion meru
motu
and exercising its value judgment to salient factors pertaining to
the costs of living.
5.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, and applied the wrong principle, namely, in not recognising that
the appellant's Answering Affidavit pertained to evidence in
rebuttal requiring denial from Respondent, failing which the
allegations in the Answering Affidavit were deemed to be admitted.
6.
The court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in overlooking respondent's deemed admissions which precluded
a finding that there were disputes of fact militating against the
exercise of an equitable discretion in appellant's favour.
7.
In the circumstances, the court a
quo made
a gross misdirection on the facts, amounting to a misdirection in
law, in not drawing an adverse inference on respondent's failure to
deny the evidence in rebuttal.”
APPELLANT'S
SUBMISSIONS ON APPEAL
[19]
The appellant has submitted that the application before the court a
quo was
for the upward variation in, and extension of the period of,
maintenance payable by the respondent to the appellant.
Notwithstanding that she had shown that she was in need, that the
respondent could afford the amount claimed, that there had been a
change in her circumstances, the court dismissed the claim in its
entirety. Further, although there were disputes of fact, the court
had the power to take a robust approach and determine the matter. In
her view the court a
quo should
have drawn an adverse inference on the respondent's failure to
rebut the contents of the documents which she attached to her
answering affidavit which showed that the respondent was a man of
means. Lastly she submitted that the amounts of $2,000 payable to her
per
annum
and $100 per month for the upkeep of the children are obviously
inadequate.
RESPONDENT'S
SUBMISSIONS ON APPEAL
[20]
The respondent has made a number of submissions. First, that the
grounds of appeal are vague. Misdirections are alleged but none are
illustrated. Secondly, the grounds do not show how the court erred in
the exercise of its discretion. Thirdly, the court a
quo could
not have granted the relief sought without at the same time varying
the terms of the consent order. In the absence of an application to
rescind the consent paper, the court a
quo could
not have revisited the contents of that consent paper. The appellant
had, however, made it clear in her papers that she had not come to
court to vary the consent order. Lastly, the appellant had not proved
that there had been a change in her fortunes. What she sought to do
was to make her case in her answering affidavit, which is not
permissible.
ISSUES
FOR DETERMINATION
[21]
In my view, the issues that arise for determination before this court
are the following. First, whether the grounds of appeal comply with
the Rules or are so fatally defective as to render the appeal a
nullity. Second, whether it was competent for the appellant to apply
for an upward variation of the maintenance before seeking a
rescission of the consent order. Third, whether there were material
disputes of fact and, if so, whether the court a
quo was
correct in finding, without resolving those disputes, that the
appellant had not shown good cause for the upward variation and
extension of the order of maintenance. Lastly, the appropriate order
to be made in the circumstances. I deal with each of these in turn.
GROUNDS
OF APPEAL – WHETHER VALID
[22]
The appellant was granted leave by this court on 18 November 2016 to
file amended grounds of appeal. Consequent to that order, the
appellant filed, on 2 December 2016, the amended grounds of appeal
that I have already referred to. The preliminary point taken by the
respondent in heads of argument filed on 17 October 2016 was
therefore overtaken by the order of this Court dated 18 November
2016. Nevertheless, the respondent submitted before this court that
even the new grounds of appeal are not compliant with the rules of
this Court which require that such grounds should be concise. In my
view, learned counsel
was
indeed correct in objecting to the grounds of appeal as formulated.
Some of the grounds remained vague whilst others, though listed as
separate grounds, duplicated issues already raised in other grounds.
Mr Uriri
accepted
that although the grounds are not very clear, one can discern from
ground 1 and 2 what the appellant seeks to impugn. In response, Mr
Fitches
accepted that some of the grounds merely repeated what had been
raised in earlier grounds. He was content to abandon the rest of the
grounds and rely on grounds 1 and 2 only. This appeal will therefore
be confined to those two grounds.
[23]
It is necessary, however, to re-state the need for grounds of appeal
to be clear and concise. In the absence of such clarity, grounds of
appeal that are vague and lack conciseness stand to be struck out.
Grounds 3 to 7 clearly do not comply with the requirement that
grounds of appeal must be concise. They are in any event
argumentative and repetitive. In the circumstances, those grounds are
struck out. The remaining two grounds deal with the issue firstly,
whether there was need, before the application for variation was
filed, for the rescission of the consent paper and, secondly, whether
the court a
quo was
correct in finding that no good cause for a variation had been shown.
WHETHER
THERE WAS NEED TO VARY THE CONSENT PAPER
[24]
The respondent argued that since the parties had voluntarily agreed
to the issues of maintenance by way of a consent paper, the court
could not rewrite the agreement for the parties by allowing the
appellant an upward variation of the maintenance amount stated
therein. It was argued that, in these circumstances, the appellant
should have sought rescission or withdrawal of the consent paper and
that good cause for such rescission had to be shown. In short, it was
argued that, in the absence of a rescission, the parties could not
revisit what was agreed upon in terms of the consent paper.
[25]
The respondent, in my view, is wrong in making the above submission.
Firstly, the consent document itself provides in paragraph 4.3 for
the occasional review of maintenance. This was an express term of the
consent order which the parties agreed upon. An application for a
variation of maintenance was therefore contemplated by the parties.
Further, s 7 (1) (b) of the Matrimonial Causes Act [Chapter
5:13]
provides for the payment of maintenance, whether by way of a lump sum
or by way of periodical payments, in favour of one or other of the
spouses or child of the marriage. Section 7 (5) of the Act allows a
court, in granting a decree of divorce in accordance with a written
agreement between the parties to, inter
alia,
make an order for the payment of maintenance. This is what happened
in this case.
The
consent paper was, by consent of the parties, incorporated as part of
the order of the High Court. Section 9 of the Act, in turn, allows a
court, on good cause shown, to vary any order made in terms of s 7.
[26]
The consent paper signed by the two parties was incorporated as part
of the order of the court a
quo. In
terms of s 9 of the Act the maintenance awarded can be varied without
the need to first revoke the consent given in that paper. Whilst it
is clear that the consent paper records a compromise reached by and
between the parties, the agreement is however regulated by statute
once incorporated as an order of court. The submission by the
respondent that there was need for a formal withdrawal of the consent
therefore has no substance, viewed both from the terms of the consent
paper itself and at law.
WHETHER
THERE WERE MATERIAL DISPUTES OF FACT
[27]
In the court a
quo the
respondent submitted that there were serious disputes of fact which
could not be resolved on the papers without the parties giving viva
voce evidence
and being cross - examined. The disputes related to the following
issues: whether the maintenance payment of $2000 per
annum
was for the appellant personally or the children, the amount actually
paid by the respondent to the appellant per month – whether it was
$307 or $560 -, the identity of the assets owned by the respondent
and their value, the respondent's monthly income, the amount that
the appellant herself channels towards the maintenance of the
children, whether there has been an increase in the cost of living
since 2009 and lastly whether the document produced by the appellant,
which purports to have been prepared by the respondent and which
reflects a number of assets and considerable annual income, is
genuine.
[28]
The court a
quo accepted
that “there were contentious issues that require ventilation”.
Despite that acceptance, the court went on to find that the appellant
appeared to have realised that she had not been able to get a good
bargain and for that reason was seeking to revisit the consent paper.
It found that this cannot amount to good cause. Further, the court
found that the appellant was aware, at the time the parties entered
into a consent paper, that maintenance would be payable only until
the children attained the age of majority after which they would
choose who to stay with. The court further found that even the claim
for an increase of maintenance for the children was not
substantiated. It also found that no good cause had been shown why,
having agreed that maintenance terminates when the children attained
the age of majority, the appellant now wanted the respondent to
maintain her in perpetuity. In the result, the court found that the
appellant had not shown any change of circumstances amounting to good
cause warranting variation of the maintenance in respect of herself.
The court accordingly dismissed the application both in respect of
the appellant and the minor children.
[29]
At the hearing of the matter before this court, counsel for the
appellant accepted that there were disputes of fact but urged this
court to take a robust approach and take into account all salient
factors and the fact that the general cost of living had gone up.
Counsel also accepted that the matter could be remitted for the
hearing of viva
voce
evidence.
[30]
Counsel for the respondent, on the other hand, submitted that, if
this Court comes to the conclusion that the court a
quo
was correct in finding that the application by the appellant was an
attempt to revisit the consent paper, then that would be the end of
the matter and the question whether disputes of fact exist would not
arise. Secondly, he submitted that the appellant had chosen the
application procedure well aware that there were disputes of fact
which disputes may warrant the dismissal of the application for that
reason. Lastly, he submitted that the document which purports to shed
new light on his assets and income was attached for the first time in
the answering affidavit and the court a
quo correctly
found that the appellant could not make her case in an answering
affidavit.
[31]
There is no doubt at all that there were disputes of fact which
required resolution before the court a
quo could
consider the question of good cause. Without resolving those
disputes, and this goes without saying, the court was handicapped in
coming to a proper conclusion on whether indeed there was good cause,
as such good cause depended on the findings that the court would make
on those disputed facts.
[32]
In determining the issue of good cause without resolving the dispute
on the facts, the decision of the court resulted in an injustice. The
interests of the minor children were not addressed at all and the
application for an upward variation of their maintenance was treated
in the same cursory manner as the application by the appellant
herself, which application was viewed by the court as an attempt to
correct what she believed had been a bad bargain. The court should
either have heard evidence itself in order to determine the issues
before it or alternatively referred the matter to trial. It did
neither. In this respect it was therefore wrong.
INTERESTS
OF MINOR CHILDREN ALWAYS PARAMOUNT
[33]
A court, such as the court a
quo, must
always keep in mind that the interests of the minor children are
always paramount. In considering those interests, the court should
not allow itself to be misled by the appearances that the parties
give. It must, in addition to any evidence given, be guided by its
own experiences and sense of what is fair. It must take a pragmatic
view of the means of the respondent - Lindsay
v Lindsay
1993 (1) ZLR 195 (S), 199 A-B, 202 B.
[34]
The need to have due regard to the best interests of the minor
children has been part of our law for some time now. Indeed, with the
advent of the new Constitution, s 81 (2) thereof has codified this
position and provides that in every matter concerning a child, it is
the child's best interests that are paramount and that minor
children are entitled to protection, particularly by the High Court
as the upper guardian of the rights of children.
[35]
Cretney S M in Principle
of Family Law,
(Third Edition, Sweet & Maxwell, London, 1979) at page 493
states:-
“It
has traditionally been stressed that the law is not that the welfare
of the child is the sole consideration. There may, for instance, be
cases where the public interest overrides the welfare of a particular
child. But the requirement to treat the child's welfare as the
“first and paramount” consideration means;
'more
than that [it] is to be treated as the top item in a list of items
relevant to the matter in question. [The words] connote a process
whereby, when all the relevant facts, relationships, claims and
wishes of parents, risks, choices and other circumstances are taken
into account and weighed, the course to be followed will be that
which is most in the interests of the child's welfare as that term
has now to be understood. That is the first consideration because it
is of first importance and the paramount consideration because it
rules upon or determines the course to be followed.'”
[36]
In the UNHCR
Guidelines on Determining The Best Interests of the Child,
May 2008, the UN High Commissioner for Refugees states:-
“The
term “best interests” broadly describes the well-being of a
child. Such well-being is determined by a variety of individual
circumstances, such as the age, the level of maturity of the child,
the presence or absence of parents, the child's environment and
experiences. … neither offers a precise definition, nor explicitly
outlines common factors of the best interests of the child, but
stipulates that… the best interests must be a primary (but not the
sole) consideration for all other actions affecting children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies (Article
3).”
[37]
In S
v M (Centre for Child Law as Amicus Curiae)
2008 (3) S.A. 232 (cc), the South African Constitutional Court quoted
with approval the remarks by Julia Sloth –Nielsen in the article
“Chickensoup
or Chainsaws: Some implications of the Constitutionalisation of
Children's Rights in South Africa”
1996 Acta Juridica 6 that :-
“The
inclusion of a general standard ('the best interest of a child')
for the protection of children's rights in the constitution can
become a benchmark review of all proceedings in which decisions are
taken regarding children. Courts and administrative authorities will
be constitutionally bound to give consideration to the effect their
decisions will have on children's lives.” (at page 26)
[38]
It follows from the aforegoing that the best interests of a child
should always be paramount in the making of any determination that
affects them in their well-being. A court is therefore under
obligation to apply its mind directly to what is in the best
interests of a child in any given case.
[39]
The suggestion that, as at 2016, the sum of $200 per month was
sufficient to meet the growing needs of two teenage girls, one born
in 2000 and the other in 2001, flies in the face of logic. I say this
because the respondent, in his opposing papers, appropriated the sum
of $350 from his income just for his food, and a further $200 towards
electricity, $150 for entertainment, $340 for the gardener and maid.
The complaint by the appellant before the court a
quo was
that the amounts paid by the respondent are not just for food, but
also for electricity and the general upkeep of her and two growing
girls.
[40]
In my view, whilst the question whether the respondent should
maintain the appellant beyond the period the children attain the age
of eighteen is a moot one, there can be little doubt that, as at the
date of the hearing of the application, there was urgent need for the
sum of $100 awarded to the appellant in respect of each child to be
varied upwards. The only question before the court, after hearing
evidence, should have been the means of the respondent and, as a
corollary, the amount of maintenance to be paid by him. It was,
therefore, a clear misdirection on the part of the court a
quo
not to hear evidence in this regard or at the very least refer the
matter to trial.
[41]
This Court has already found that the dismissal of the application in
its entirety, particularly the upward variation of the maintenance
for the minor children, was wrong. It is a truism that as children
grow, so too do their needs. In this particular case, some of the
needs of the children cannot be treated separately from those of the
appellant. Shared expenses such as food, toiletries, consumables,
electricity, water, and the like, cannot be divided into categories
of what is consumed by the appellant and what is consumed by the two
minor children.
INTERIM
VARIATION OF MAINTENANCE NECESSARY
[42]
Having reached the conclusion that there is need for the factual
disputes in this matter to be fully ventilated in a trial, I am of
the further view that there is an obvious imperative for the interim
variation of the amount payable in respect of each of the children
until such time as the matter is fully and finally determined. Trials
in this jurisdiction can take a long time to complete. In the
meantime, the children will need reasonable maintenance.
[43]
In the court a
quo, the
respondent consistently offered to pay the sum of $300 per child,
until they complete their secondary education, although he attached
conditions to such offer. In coming to a figure that addresses the
interests of the children on an interim basis, this court must take
into account that offer as well as the other evidence on record which
suggests that the respondent is not a poor man. Even taking into
account the sum of $200 which the respondent is under obligation to
pay to the appellant in respect of the maintenance of the children,
it is clear that the appellant does not have sufficient resources to
meet the general expenses both for herself and the children. Whilst
the appellant described the respondent as a rich man, he downplayed
this claim and suggested that the family had always enjoyed a
lifestyle of the middle class. The middle class in this country does
not spend a paltry $100 per month to meet the every day basics of two
teenage girls, one of whom, as at the date of this judgment, has just
attained the age of majority.
[44]
From all the facts of this case, I am satisfied that the respondent
is not a man of straw. He owns a number of houses in Harare, mostly
through trusts established by himself, as well as a house in
Australia. He deliberately decided not to take the court into his
confidence and avoided disclosing his full interest in C & J
Accounting and Secretarial Services as well as Kawasaki Motor cycles.
He deliberately said nothing about the considerable assets and
income reflected in a schedule, purportedly prepared by him, which
was attached to the appellant's answering affidavit in the court a
quo.
He denies owning some of the properties and motor vehicles reflected
in the appellant's papers but does not say who does. One can
reasonably infer that the respondent is a man of means, capable of
providing, on an interim basis, reasonable maintenance for his two
children. As already noted, the respondent, in his list of expenses,
has appropriated the sum of $350 just for his own food. No doubt he
has other costs in addition to food. These would include cleaning,
electricity, maintenance and others. It seems to me, on a
consideration of all the facts, that, at the very least, and pending
a final determination of this matter, the respondent should be made
to pay the sum of $300, which he offered to pay, for each child.
[45]
In the consent order, the parties agreed that maintenance would cease
once the two children attained the age of majority. Whilst that is
the factual position, there is little doubt that that threshold was
arbitrary. It cannot be disputed that the children will, in all
probability, still be at school when they attain the age of majority.
Even if they are not, they may be awaiting enrolment at tertiary
institutions. They are unlikely to be self-supporting. The suggestion
that once the children attain the age of eighteen, maintenance should
cease and that the respondent relates directly to each child is not
feasible. As previously noted, there are expenses that are shared and
cannot easily be apportioned between the appellant and the children.
In any event the respondent did accept in the court a
quo
that maintenance for the children could be extended until they
completed their secondary education.
[46]
In the result therefore, I consider it in the best interests of the
children that the amount of $100 per month awarded at the time of
divorce be increased, on an interim basis, to $300 per month per
child. Since the children will not automatically be self-supporting
at the age of eighteen and, in all probability, will be staying with
the appellant, there is need that such maintenance continues until
after the children complete their education (in the broad sense) or
become self-supporting. Naturally, if either of the children, or
both, on attaining the age of eighteen, decide not to live with the
appellant, then the interim maintenance order can be varied in order
to take into account that development.
[47]
I am also of the view that the interim maintenance be made payable
from the date when the respondent became aware of the application for
the upward variation of the maintenance. If it were not possible to
do so, an applicant for maintenance would suffer prejudice, not
because of any fault on her part, but because of the recalcitrance of
an obdurate spouse, who ought not to be permitted in law to benefit
from protracting the proceedings so as to reduce the burden of
maintenance. Such a spouse should be saddled with the burden of
arrear maintenance whenever it is apposite to grant it – Lindsay
v Lindsay (supra)
at 202 E-G.
DISPOSITION
[48]
The High court Rules permit a court hearing an application to allow
any person to give oral evidence if it is in the interest of justice
for such evidence to be heard (Rules 229B and 239 (b). Alternatively
the court can direct that the matter be referred to trial. In the
circumstances of this case, the court a
quo
should itself have heard evidence in order to properly determine the
issues before it.
[49]
On the question of costs, I am of the view that the opposition to the
upward variation of the children's maintenance was unnecessary and
unreasonable. Further, I find the use of intemperate language such as
“arrant nonsense” unacceptable in a court of law. I consider that
the respondent should therefore be made to pay the costs on the
higher scale.
[50]
In the result, it is ordered as follows:-
1.
The appeal succeeds with the respondent paying the costs on the scale
of legal practitioner and client.
2.
The judgment of the court a
quo is
set aside.
3.
The matter is remitted to the High Court for the resolution of the
following issues, with viva
voce evidence
being led, if necessary:-
(a)
The extent of the upward variation of the maintenance payable in
respect of each of the children,
(b)
The duration of the maintenance referred to in paragraph (a) above.
(c)
Whether in terms of the order of the High Court, the sum of $2,000
payable per
annum
by the respondent is in respect of the maintenance of the appellant
and, if so, whether this should be increased and the extent thereof.
In the event that it is found that there is need for the upward
variation of the maintenance due to the appellant personally, whether
this should be made payable until her death or remarriage but
excluding any periods during which she cohabits with another man as
if married.
4.
The High Court may give such directions on the discovery, inspection
and production of documents to be used during the hearing as it
considers necessary.
5.
Pending the determination of the issues itemised in paragraph 3
above, the respondent is to pay interim maintenance for the children
at the rate of $300 per month per child, such maintenance to be
backdated to the time of the application, namely, I June 2015.
6.
For the avoidance of doubt, the interim maintenance of $300 ordered
in paragraph 5 above is in substitution of the figure of $100 awarded
by the High Court in terms of the consent paper.
GUVAVA
JA:
I agree
UCHENA
JA: I
agree
Coghlan,
Welsh & Guest,
appellant's legal practitioners
Atherstone
& Cook,
respondents' legal practitioners
