MAKONI
JA:
This
is an appeal against part of the judgment of the High Court. The
appellant specifically appeals against paragraphs 2 and 3 of the
operative part of the judgment which awarded the respondent
maintenance at the rate of US$3,000.00 per month until she dies,
remarries or cohabits with another man plus costs of suit.
Although
the notice of appeal indicates that the appellant appeals against
paragraph 3 of the judgement, it is worth noting that no ground of
appeal relates to that paragraph, neither do the appellant's heads
of argument address that issue. I will take it that it was abandoned.
BACKGROUND
FACTS
The
appellant sued his wife, the respondent, seeking a decree of divorce
and other ancillary relief. The respondent did not contest the
appellant's claim for a decree of divorce. She however sought the
distribution of the assets of the spouses and post-divorce
maintenance.
The
parties found each other regarding the distribution of their assets
including the matrimonial home. They agreed to sell the matrimonial
home and most of the proceeds were used to purchase an immovable
property which was registered in the name of the respondent and the
major and only son of the marriage. The appellant received the
remainder of the proceeds.
PROCEEDINGS
IN THE COURT A QUO
The
court a quo captured the only outstanding issue before it as whether
or not the defendant is entitled to post divorce maintenance and the
quantum of such maintenance. I will revert to the question of how the
sole issue was captured later on in the judgment.
At
the end of the trial, the court a quo found that the appellant was
currently maintaining the respondent in the sum of US$3,000,00 per
month and that from his income he could continue to maintain the
respondent in that amount. It then concluded that on the basis of the
proven facts, the appellant was well able to maintain the respondent
in the sum of US$3,000-00 per month. It also found that the
defendant's health condition entitled her to maintenance until she
dies, remarries or cohabits with another man.
The
appellant, aggrieved by the decision, filed the present appeal on the
following grounds.
GROUNDS
OF APPEAL
“1.
The court a quo erred in awarding respondent post-divorce maintenance
in the sum of USD3,000-00 per month on the basis that appellant had
in the past afforded it and so erred in making that award against the
background of appellant's dwindling income and increase in his
financial obligation.
2.
The court a quo misdirected itself in failing to take into account
the fact that respondent had taken all the proceeds from the sale of
the sole immovable property of the parties and that she has
effectively been paid a lump sum payment by the appellant.
3.
The court a quo misdirected itself in finding without credible
evidence that respondent suffers from a medical condition rendering
her permanently incapable of engaging in any income generating
project.
4.
The court a quo erred in failing to take into account the rental
income derived by respondent from her Zvishavane properties and
misdirected itself in putting any premium on the fact that
respondent's late father's estate had not been wound up.
5.
The court a quo erred in failing to grant an award which releases
appellant from the control and influence of respondent and so erred
in failing to take into account the fact that he is entitled to move
on with his life.”
APPELLANT'S
SUBMISSIONS BEFORE THIS COURT
Mr
Mpofu, for the appellant, made the following submissions;
(a)
The court a quo's findings were contrary to the evidence adduced
and principles of law applicable in such matters.
(b)
The exercise of the discretion by the court a quo was therefore
improper and must therefore be vitiated.
(c)
Contrary to evidence presented before it, the court a quo imposed an
obligation upon the appellant to work for the respondent for life.
(d)
Respondent has some free income in the sum of US$3,800 whilst the
appellant's free income is under US$1,000-00.
(e)
It is settled law that marriage is not a bread ticket for life.
(f)
The court a quo further made a finding that the respondent was
entitled to US$3,000-00 per month when no evidence had been placed
before it showing the respondent's expenses to be in that amount.
The court had no basis to come to the conclusion that her expenses
were US$3,000-00 per month. The award did not take into account that
she was earning $3,800-00 from her father's deceased estate through
the properties she was leasing out in Zvishavane.
(g)
The court further fell into error in finding that the respondent was
unable to work, based on a report produced by a Dr Gunning. The
appellant complained that he paid for the production of the report
and yet it was only produced after he had testified and during the
respondent's case. The finding that she cannot work does not mean
she cannot generate income. She could employ people to do the running
around for her.
(h)
The respondent got a lump sum in sum of US$200,000-00 from the
proceeds of the sale of the parties' matrimonial home which enabled
her to buy another property. Appellant had to obtain a mortgage bond
to acquire his own property. The US$200,000-00 should have set up the
respondent and she should have used it in a profitable endeavour.
(i)
The question of the respondent's adultery should have been taken
into account in coming up with the quantum.
(j)
Mr Mpofu further submitted that the court a quo had erred in not
considering the income due to the respondent from the Zvishavane
properties on the basis that the estate has not been wound up. If
ever it changes then she would approach the court for variation.
Instead the court turned principles of law on the head by asking the
appellant to approach the court for variation if the respondent is
awarded the properties.
(k)
He prayed that the court interferes with the quantum and the period.
RESPONDENT'S
SUBMISSIONS BEFORE THIS COURT
Per
contra, Mr Nyamakura made the following submissions.
(a)
The court a quo did not act in a vacuum but in terms of facts it
found to have been proven. He referred to the judgement where the
court a quo deals with the facts that the court found to have been
proven.
(b)
The appellant, in his pleadings, did not put in issue the fact of
entitlement to maintenance and the period. He offered to pay
maintenance until such time as the respondent remarried or cohabited
with another man. In the notice of appeal, he now prays that he pays
the defendant the sum of US$1,500-00 per month for a period of five
years reckoned from the date of this order until the respondent
either remarries or commences to cohabit with another man. He now
seeks to re-argue his case on appeal.
(c)
The finding that the respondent had many ailments was based, inter
alia, on the appellant's own admission. These are findings of fact.
When the report by Dr Gunning was introduced there was no objection
from the appellant. There was no insistence that Dr Gunning be called
to testify. It would therefore be unfair to attack the court's
reliance on the report.
(d)
The issue of adultery was never raised as an issue to be considered
regarding the respondent's entitlement to maintenance and the
quantum.
(e)
Again, the issue of the lump sum, realised from the disposal of the
matrimonial home, was never raised as a factor in determining the
amount of maintenance to be awarded to the respondent. The appellant
should have given the respondent due notice that the lump sum would
be taken into account in considering the issue of maintenance.
ISSUES
From
the above submissions and the pleadings by the parties, the issue for
determination is the quantum of post-divorce maintenance and the
period.
In
my view this should have been the sole issue before the court a quo.
It however proceeded to consider the question of entitlement to such
maintenance. This was improper as the appellant in paragraph 9 of his
declaration pleaded as follows:
“9
It is just and equitable that plaintiff (appellant) pay maintenance
to defendant in the sum of US$750-00 per month for a period of one
year commencing with effect from December 2009 or until such time as
the defendant should remarry or live with another man as man and wife
whichever should occur first”.(my emphasis)
Clearly
the appellant did not take issue with the respondent's entitlement
to post divorce maintenance at that stage and throughout the trial,
but rather put in issue the quantum and the period.
The
trial was long-drawn and judgment was only rendered on 22 September
2016. The appellant did not seek to amend the period indicated in
paragraph 9 of his Declaration. The offer to pay maintenance for one
year from December 2009 was consequently overtaken by events.
THE
LAW
The
law is settled that an Appellate Court can interfere with factual
findings of a lower court in very limited circumstances.
In
Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at p 670,
KORSAH JA remarked:
“The
general rule of the law as regards irrationality, is that an
Appellate Court will not interfere with a decision of a trial court
based purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic that no
sensible person who had applied his mind to the question to be
decided could have arrived at such a conclusion. …”
In
Reserve Bank of Zimbabwe v Granger and Anor SC34/01, at pp 5 to 6 of
the cyclostyled judgment, the court held that if an appeal is to be
related to the facts: “there must be an allegation that there has
been a misdirection on the facts which is so unreasonable that no
sensible person who had applied his mind to the facts would have
arrived at such a decision. And a misdirection of fact is either a
failure to appreciate a fact at all, or a finding of fact that is
contrary to the evidence actually presented.”
As
regards the quantum in maintenance matters the approach to be adopted
on appeal was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER
JA held that the approach should be along the lines adopted in
compensation cases as indicated in Sandler v Wholesale Coal Suppliers
Ltd 1941 AD 194 where WATERMEYER JA stated at 200 that:
“....a
Court of Appeal should not interfere unless there is some striking
disparity between its estimate of the damages and that of the trial
court, and further unless there is some unusual degree of certainty
in its mind that the estimate of the trial court is wrong.”
The
position of the law regarding post-divorce maintenance and the
duration is now well established in our law. In Chiomba vs Chiomba
1992 2 ZLR 197 the following is captured in the head note;
“-
marriage can no longer be seen as providing a woman a bread ticket
for life. A marriage certificate is not a guarantee of maintenance
after the marriage has been dissolved. Elderly women who have been
married for a long time and are too old to now go out and earn a
living and are unlikely to re-marry will require permanent
maintenance.”
APPLYING
THE LAW TO THE FACTS
The
starting point in such matters where the lower court would have given
a decision within its discretion is to look at the power of this
court on appeal. As clearly comes out from the above authorities,
this Court cannot interfere with factual findings made by the trial
Court except;
(a)
on the basis of irrationality.
(b)
where the trial court reaches a decision which is not supported by
the evidence.
(c)
where the finding is patently wrong.
The
question therefore is whether the findings of fact made by the court
a quo can be interfered with on any of the bases set out above.
The
court a quo made the following factual findings;
“The
facts found proved are;
1.
The plaintiff is currently maintaining the defendant at US$3,000-00
per month.
2.
He earned an average of US$12,923-81 per month in 2015 and an average
of US$10,868-00 per month, between January and March this year.
3.
That salary is well able to maintain him and the defendant at
US$3,000-00 each per month.
4.
It leaves him a balance of between US$2,868-00 to US$4,913-00 per
month from which he can save for the future.
5.
His current means therefore enables him to continue maintaining the
defendant at US$3,000-00 as he is currently doing. He has been able
to do so and more since their separation.
6.
The defendant is not the type of spouse who should be weaned off from
her former husband on divorce. Her medical condition qualifies her
for maintenance till death or when she remarries or cohabits with
another man.
7.
That the defendant's father's estate is still to be wound up. If
the defendant's means improves from what she will get from it the
plaintiff can seek variation.
8.
The plaintiff's fear that his means may come down and make him
unable to maintain the defendant at US$3,000-00 per month is not a
bar to his maintaining her at that rate till the arrival of that
eventuality, which would entitled him to seek variation of the
maintenance order.
9.
Their son has acquired his first degree and is currently staying with
the defendant. This increases the defendant's expenses. The
possibility of his going for further education does not presently
disentitle the defendant from the maintenance she seeks. If those
changes come they can only be relevant in an application. This also
applies to the possibility of the plaintiff having to pay fees for
their son's further studies.”
It
then concluded as follows:-
“I
am therefore satisfied that on the present facts the plaintiff is
well able to maintain the defendant at US$3,000.00 per month. He has
been doing so and his means enables him to do so.”
I
turn to deal with the two issues that arise before this Court.
QUANTUM
Mr
Mpofu's argument was that the court a quo found without a basis
that an award of US$3,000-00 was a reasonable monthly award. In doing
that it committed many cardinal sins which he listed as set out
below;
(a)
It made an award in the absence of evidence showing her monthly
requirements and how they answer to the US$3,000-00 awarded.
(b)
It failed to factor in respondent's income from Zvishavane.
(c)
It did not consider the net effect of the award in that it left the
respondent with an income of $3,800-00 as against that of the
Appellant in the sum of $700-00.
The
court a quo reasoned that the appellant, in his evidence-in-chief,
stated that he could probably afford US$3,000-00 per month although
he could not say for how long he will be able to sustain that amount.
He did not put in issue the aspect of the respondent's schedule of
expenses despite the question being put to him by his counsel.
It
is the figure of US$3,000- 00 that he kept toying around with
throughout the proceedings.
He
also told the court that his own expenses were about US$3,000-00 per
month.
It
must be noted that due to the long drawn nature of the proceedings,
the appellant successfully applied to re-open his case. This was to
enable him to lead further evidence regarding his dwindling income.
Despite
leading that evidence, he still confirmed, under cross-examination,
that at that moment, he could afford to pay the respondent the sum of
US$3,000-00 per month and make provision for his own expenses in the
same amount and still have an amount left over for savings.
In
arriving at its decision, the court a quo looked at all the above and
the appellant's average income of US$12,923-81 per month in 2012
and US$10,686 per month between January and March 2016. It went
further to analyse the figures and concluded that after paying
US$3,000-00 to the respondent and to himself, he would remain with a
balance of between US$2,686.00 and US$4,913-00 per month which he
could save for the future.
I
find no misdirection in the court's reasoning.
The
appellant himself did not place emphasis on the absence of the
schedule of expenses. His main concern was whether he could be able
to pay the figure of US$3,000-00 per month in future in view of his
dwindling income and whether he would remain with some savings for
the future.
These
factors were taken into account by the court a quo in arriving at the
quantum it awarded.
THE
ZVISHAVANE PROPERTIES
The
court a quo had this say on the above issue;
“That
the defendant's father's estate is still to be wound up. If the
defendant's means improves from what she will get from it the
plaintiff can seek variation.”
Mr
Mpofu submitted that the court asked itself the wrong question. It
ought to have asked itself whether, as at the date of the trial and
subsequent thereto, the respondent was receiving income from the
Zvishavane properties. He opined that what can happen in the future
is immaterial. In ignoring the reality of that income from the
estate, the court a quo hopelessly misdirected itself.
I
am persuaded by the submission by Mr Nyamakura that there was no
misdirection by the court in finding that the estate of the
respondent's father had not been wound up.
It
would have been speculative on the part of the court to rely on the
existence or otherwise of income from that estate at that stage.
In
any event, the court made a finding that the evidence led from an
investigator hired by the appellant was not conclusive. This was not
challenged on appeal.
The
court could not have been expected to take into account evidence from
a report it had adjudged inconclusive.
ADULTERY
The
court a quo was attacked on the basis that it failed to consider that
the respondent had committed adultery which had not been condoned. Mr
Mpofu relied on section 10 of the Maintenance Act [Chapter 5:9] which
provides as follows:-
“Where
a spouse is proved to have committed adultery before or after the
making of an order and such adultery has not been condoned, the
maintenance court may refuse to make an order for maintenance in
favour of such spouse or may discharge an order for maintenance made
in favour of such spouse.”
I
find merit in the submission, by Mr Nyamakura, that whilst the
appellant expected the court a quo to deal with the issue and
consequently this court, he never pleaded that such alleged marital
misconduct be used against her, in his pleadings. Doing so would have
been inconsistent with his prayer which offered post-divorce
maintenance until the respondent remarried or cohabitated with
another man.
LUMP
SUM PAYMENT OF $200,000-00
Mr
Mpofu submitted that the judgment of the court a quo was irregular in
that it ignored the lump sum payment made to the respondent in fixing
the quantum of maintenance and its duration.
Again,
as submitted by Mr Nyamakura, this does not arise from the
proceedings.
When
the parties agreed on the distribution of the proceeds of the
matrimonial home, they did not agree that that aspect was to be taken
into account in the maintenance dispute.
DURATION
Mr
Mpofu attacked the court's findings that the respondent was
incapacitated from working on the basis of her medical condition. He
submitted that the court relied on a medical report prepared by a Dr
Gunning which report was signed on 25 October 2015 after the
appellant had testified. It did not at any rate claim that the
respondent could not work.
Per
contra, Mr Nyamakura submitted that the appellant's case on appeal
is certainly different from his case in the court a quo.
In
his declaration, he tendered maintenance until such time as the
respondent cohabited with another man or remarried, whichever
occurred sooner. The appellant in his prayer before this court now
seeks an order for payment for a period of 5 years reckoned from the
date of the order of this Court. No amendment to the declaration was
sought and granted.
The
law is clear that parties are bound by their pleadings and they are
not allowed to depart from them without leave.
The
remarks by the authors Jacob and Goldrein in Pleadings: Principles
and Practice, (Sweet & Maxwell London, 1990) at page 8-9 which
are cited with approval in the judgment in Jowel v Bramwell-Jones &
Ors 1998 (1) SA 836,898 are apposite and to the following effect:
“As
the parties are adversaries, it is left to each of them to formulate
his case in his own way, subject to the basic rules of pleadings ……
for the sake of certainty and finality, each party is bound by his
own pleading and cannot be allowed to raise a different or fresh case
without due amendment properly made.
Each
party thus knows the case he has to meet and cannot be taken by
surprise at the trial.
The
Court itself is as much bound by the pleadings of the parties as they
are themselves. It is no part of the duty or function of the court to
enter upon an enquiry into the case before it other than to
adjudicate upon the specific matters in dispute which the parties
themselves have raised by their pleadings…..
In
the adversary system of litigation, therefore, it is the parties
themselves who set the agenda of the trial by their pleadings and
neither party can complain if the agenda is strictly adhered to……”
See
also Dube v Bushman Safaris & Another HB112 – 13; Matambanadzo
Bus Service (Pvt) Ltd v Magner 1971 (1) RLR 543 at 55H-I.
The
appellant is therefore bound by his pleadings wherein he offered to
pay maintenance until such time as the respondent remarries or
cohabites with another man.
This
is the order that the court a quo granted.
In
any event, even going by the appellant's own version, he still
would not have succeeded on appeal.
The
court did not solely rely on the report by Dr Gunning. It also took
into account that the appellant, on his evidence, accepted that the
respondent was of ill health and that condition caused her to stop
working during their marriage. It then concluded:-
“A
spouse who may if in good health be expected to work and earn his or
her own money and support himself/herself is entitled to maintenance
if the evidence placed before the court establishes that his or her
condition does not permit him/her to do so. His or her condition
entitles him or her to permanent maintenance which according to
MANYARARA JA in the case of Chimora v Chiomba 1992 (2) ZLR 198 is
reserved for an elderly spouse who is too old to work. A spouse who
is too ill to work is like the spouse who is too old to work entitled
to permanent maintenance.”
From
the above, it is clear that the court was alive to the legal
principles to be taken into account in post-divorce maintenance
claims despite the unjustified attack by the appellant that the
judgment was contrary to the law.
The
reasoning of the court is supported by evidence presented before it.
Its findings of fact cannot be described as irrational.
In
view of the above the appeal has no merit and must be dismissed.
The
respondent prayed for costs on a higher scale on the basis that the
appellant sought to re-argue his case on appeal. This prayer was not
persisted with in submissions before this court. Costs will be
awarded on the ordinary scale.
In
the result I make the following order;
The
appeal is dismissed with costs.
GARWE
JA: I agree
BHUNU
JA: I agree
Mtetwa
& Nyambira, respondent's legal practitioners
Atherstone
& Cook, appellant's legal practitioners
