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.
The
court a
quo
concluded
that no good cause for such upward ...
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.
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
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.
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 US100= 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= 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= per annum,
defendant will procure payment of the DSTV subscription, and
plaintiff agrees to increase the said amount of US$2,000= per annum
by the amount of any annual increase in the DSTV subscription. The
current annual subscription being US$720=.
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
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.
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.
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.
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, the 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
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=. 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.
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=), internet and security ($87=) and the $2,000= which
is paid annually to the appellant which translates to $191= 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.
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 movable
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.
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.
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
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.
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.
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
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
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
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
The
respondent has made a number of submissions;
(i)
First, that the grounds of appeal are vague. Misdirections are
alleged but none are illustrated.
(ii)
Secondly, the grounds do not show how the court erred in the exercise
of its discretion.
(iii)
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.
(iv)
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
In
my view, the issues that arise for determination before this court
are the following;
(i)
First, whether the grounds of appeal comply with the Rules or are so
fatally defective as to render the appeal a nullity.
(ii)
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.
(iii)
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.
(iv)
Lastly, the appropriate order to be made in the circumstances.
I
deal with each of these in turn….,.
INTERESTS
OF MINOR CHILDREN ALWAYS PARAMOUNT
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)…,.
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, section 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.
CRETNEY
S M, in Principle
of Family Law,
(Third Edition, Sweet & Maxwell, London, 1979)…, 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.'”
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).”
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
“Chicken
soup 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.” …,.
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.
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.
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.
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
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.
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.
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….,.
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….,.
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
1993 (1) ZLR 195 (S)…,.
In
the result, it is ordered as follows:-
1.
The appeal succeeds…,.
2.
The judgment of the court a
quo
is
set aside.
3….,.
4….,.
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, 1 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.
