MAVANGIRA
J: The parties herein were divorced by this court on 18 March 2004 under HC
7136/2003. The divorce order incorporated an order for the maintenance of the
minor child of the marriage and two natural children of the applicant who are
step-children of the respondent. The terms of the maintenance order provide inter alia as summarized below that:
(i)
the respondent is required to pay ZW$400 000 per month
in respect of child maintenance in respect of Graydon, the minor child of their
marriage;
(ii)
the respondent is required to pay for Graydon's school
fees together with all other expenses related thereto and all shortfalls on
medical aid upon presentation to him by applicant of proof of those shortfalls;
(iii)
the respondent is required to reimburse the applicant
the full costs of all counseling undergone by Graydon and the parties'
step-children up to 31 December 2003, within ninety days of the date of each
counseling invoice;
(iv)
the respondent is required to pay for Graydon's
tertiary education, including boarding fees, cost of textbooks and reasonable
amount of clothing; and
(v)
the parties would regularly review the amount awarded
in (i) above having regard to increases in inflation and the general cost of
living and the cash maintenance payable by respondent and shall in any event
increase automatically by no less than 30% thereof compounded every four (4)
months with effect from 1 June 2004.
The
applicant now seeks an order for the variation of the order in HC 7136/2003. She
now seeks that the respondent be ordered to pay US$1000 per month in place of
ZW$400 000 per month with effect from 1 March 2009 alternatively, petrol in
such amount as can be purchased on the market at a cost of US$1000 on the date
on which payment is due each month. She also seeks an order that the respondent
pays her arrear maintenance in the sum of US$318, 50.
The
applicant states that the ZW$400 000 per month payable in respect of Graydon has
become meaningless as at the time that she deposed to her affidavit on 23
February 2009 the said amount had become a minuscule fraction of a cent. The
respondent's recent contributions in respect of Graydon were 80 litres of fuel
for each of the months of October and November 2008. As from December 2008 to
February 2009 when the applicant deposed to her affidavit, the respondent had
made no contribution at all. In respect of the respondent's two step-children,
despite the provisions of the maintenance order, the respondent had declined to
review with her the issue of their maintenance or to make any payment in
respect of either of them.
The
applicant's total income is US$1000 per month. She states that she has since
depleted her savings and has no other source of income. Her salary is
inadequate for her upkeep and that of the three children. She has attached the
list of expenses which shows a shortfall of well over US$1000. Graydon is in
receipt of a scholarship in respect of school fees from St. George's College
where he commenced his secondary education in 2009. This relieves the
respondent of a major part of his obligations in terms of the maintenance order
as summarised in (ii) above. The respondent has not been meeting the other
expenses related to Graydon's educational and medical or health needs. He has also not made any contribution
whatsoever in respect of his obligations to his step-children in terms of the
said order. On the other hand, although she does not know the respondent's
income, the respondent has been living a lifestyle from which the applicant
concludes that he must in receipt of a healthy foreign currency income. In August
2008 he spent three weeks in the United Kingdom. In December 2008 he
spent two weeks on holiday in South
Africa and another two weeks in Kariba. He
also spent two weeks in Mozambique
during the period December 2008/ January 2009. He drives an Isuzu truck, owns a
fishing boat with motor and accessories and plays golf frequently. He owns a
Camry motor vehicle, rents a large house in Avondale, frequently throws parties
and hosts dinners and is always dressed in new clothes. He receives rentals for
properties in Harare
that belong to his mother. He spends a lot of time fishing with Bassmasters, an
exclusive fishing club and takes part in all (at least ten a year) Bassmaster
Classics which entail full weekends away and considerable monies are spent on
transport, fuel and accommodation.
The
applicant contends that taking into account her income against the expenses
that she incurs even in respect of herself and Graydon alone as well as the
fact that the respondent no longer has to pay school fees for Graydon, a
contribution of US$1000 by the respondent would be fair and within his means.
The amount of US$318,50 that she claims as arrear maintenance arises out of
expenses that she incurred in making purchases of various items of school
uniform and sporting requirements for Graydon from South
Africa and from the St. George's School
thrift shop. In terms of the maintenance order it was the respondent's
obligation to make the said purchases. She prays that the court grants an order
in terms of the draft filed with her application.
The
respondent concedes the need for a variation of the order for maintenance. He
contends that it is common cause or ought to be accepted that in view of the
changes that have taken place in the economy of this country since the original
order was granted, the application for the variation of the original
maintenance order cannot be said to be either frivolous or vexatious. He
however claims that his circumstances as at the date of the maintenance order
now sought to be varied cannot be said to have changed for the better. If
anything he is in a worse off financial position than he was then. He also
claims that he cannot afford what the applicant is claiming and that the
amounts claimed by the applicant are not fair and equitable. He further alleges
that he has met all the requirements of Graydon's schooling, clothing and
medical needs but that the applicant expressly relieved him of his obligation
to pay maintenance in respect of his step-children in exchange for his
abandonment of the right to have access to the said children. He made payments
in the form of 80 litres of fuel not only for each of the months of October and
November 2008 but also for the month of December 2008. Thereafter the applicant refused to accept similar payments
that he tendered for the months of January and February 2009 demanding that the
payments be reviewed. He also offered to buy groceries for the applicant on a
monthly basis but she refused the offer stating that she could get the
groceries cheaper elsewhere. The applicant who earns US$1000 per month is in a
far better financial position than he is in. As he is not employed and does not
have a definite monthly income, contributions in the amount of US$1000 per
month and 80 litres of fuel are not only excessive but clearly unaffordable. He
only earns money occasionally if he undertakes some work at his girlfriend's
shop or as a bodyguard for Cricket Zimbabwe. He has had to dispose of
a number of the assets that he got as a result of the divorce settlement in
order to sustain himself. He alleges that he finds himself in this pathetic
situation because the applicant ruined all his businesses during the period
when the parties were going through the divorce.
He indicated that he had cancelled
appointments that had been made for him to discuss an equitable maintenance
contribution with the applicant's legal practitioners as these had been
arranged without any reference to him. He contends that the applicant's budget
consists of exaggerated and unnecessary costs one example being a budget
requirement of US$220 per month in respect of telephone and internet charges.
Regarding
the factors cited by the applicant as pointers that the respondent is living a
lifestyle that suggests that he is in receipt of a healthy income, the
respondent alleges in respect of almost all of the stated travels and trips on
holiday or otherwise, that the expenses attendant thereto were all borne by
third parties. He alleges that the house in Avondale is owned by a friend and
his girlfriend only pays nominal rentals for it as she must contribute towards
the maintenance of the house. The motor vehicles referred to are owned by third
parties and/or are borrowed. The fishing boat was awarded to him as part of the
divorce settlement and is broken down and is in need of repairs which he cannot
afford to pay for as they require an amount of US$2500. He denies throwing
parties and hosting dinners and denies receiving any rentals in respect of his
mother's properties. Although he occasionally buys new clothes, that should not
be the basis for determining the amount of maintenance that he can afford. He
denies being a commodities trader in fuel, tyres, cell phones and other
commodities. He used to own a business of selling tyres but most of his
customers stopped dealing with him after the applicant made telephone calls to
them discrediting the respondent's personality during the period that the
parties were going through the divorce. He later tried acting as an agent for a
fuel supplier, selling fuel to customers on behalf of the supplier but this did
not work. He is now seeking new employment.
The
respondent claims that he is struggling to earn a living and largely depends on
his girlfriend's assistance and earnings from casual jobs that he gets from
time to time. The amount of US$1000 is far out of his reach. A contribution of
US$150 per month together with 50 litres of fuel would be just, fair and
reasonable having regard to his financial circumstances. He has no objection to
and agrees to pay the costs incurred in purchasing uniform items for Graydon in
South Africa
in the amount of US$68,50. He however disputes the veracity of the amount being
claimed for the items bought for him at the school thrift shop in the amount of
US$250. He believes that the items cost far less than the amount claimed and
put the applicant to the strict proof thereof. He prays that the court settles
the matter on the basis that he pays maintenance in the sum of US$150 per month
together with 50 litres of fuel.
In
Chodokufa v Chodokufa 1988 (1) ZLR 14
at 16E-F ADAM J said:
“It is clear
that there are on the papers factual disputes on a number of important issues.
The Court has been urged by both parties that, despite this, it should do what
it can and take a robust approach so as to determine the matter – Masukusa v National Foods Ltd & Anor
1983 (1) ZLR 232 at 235.
The onus is on
the applicant to show good cause for a variation order. This means that he has
to establish to the satisfaction of this Court that there is some alteration in
the circumstances and means of the applicant and the respondent, his former
wife: Marufu v Moyo 1983 (2) ZLR 386
at 387-388.”
In casu, the applicant is by implication
asking that the court infers that the respondent's means have altered or that
he has the means to pay the maintenance that she says is now required for the
upkeep of the minor child G.
In Marufu v Moyo (supra) at
387H – 388D GEORGES CJ said:
“In her evidence
the wife indicated that she based her application largely on the fact that she
was not happy about the original order. She appeared to concede that her
husband's earnings had not increased significantly since that order had been
made in 1981, but she did refer to the fact that the cost of living had risen
considerably since the original order was made.
There is South
African authority supporting the proposition that the effect of inflation can
be regarded as good cause for variation in South African law. In Prophet v Prophet 1948 (4) SA 325 at 329
(O) HORWITZ J said:
'…accepting
that the onus rests upon the applicant to show good cause for the proposed
variation of the order, I am entirely satisfied that she has fully discharged
that onus, since it is common cause that the cost of living has risen
appreciably since the date of the divorce and that respondent's position has become
more favourable financially... .'
While it is true
that inflation affects both the husband and the wife, if it can be shown that
the husband's income allows some room for an increase taking into account his reasonable
expenditure then it would be justifiable to hold that there has been an
alteration in circumstances justifying a variation.”
In casu, it appears to be common cause
that the cost of living has risen considerably since the maintenance order was
made in March 2004. It also appears from a perusal of the applicant's founding
affidavit that the applicant had earlier suggested that the respondent
contributes US$500 per month and 80 litres of petrol as maintenance. However,
the order she now seeks from this court is for the respondent to pay US$1000
per month and 80 litres of fuel. From a perusal of the papers it also appears
that this application was conceived some time around December 2008 or January
2009. The application itself was then filed on 24 February 2009. It is not
clear, as no explanation is given, as to why and how the amount needed as at
December 2008 or January 2009 which was indicated to the respondent as being in
the amount of US$500 suddenly rose to US$1000 as at 24 February 2009. This may
tend to lend credence to the respondent's contention that the applicant's
schedule of expenses is most probably deliberately inflated in anticipation of
a reduction of the claim by the court. This contention also becomes persuasive
when one considers some of the items on the schedule of expenses and the
amounts claimed therefore. These include telephone, cellphone and airtime
charges, pocket money and entertainment which all add up to a total of US$924,
about one fifth of the total budget. As submitted by respondent's legal
practitioner, citing Lindsay v Lindsay
1992 (1) ZLR332 at 335C in which Mutenure
v Mutenure HH 300/90 was cited:
“…court
proceedings are not a game where one inflates one's claim in order to allow for
an element of reduction. Claims must be genuine, realistic and substantiated in
order that the court can make a proper assessment on the claim….”
The
onus is also on the applicant to justify the granting of the claim that she
seeks. In casu the onus is
particularly pertinent as regards the quantum of such maintenance. No direct or
concrete evidence has been adduced to justify the contribution sought from the
respondent. The respondent accepts the need for the variation of the
maintenance order and has in fact proposed the amount that he should be ordered
to pay. But he has not taken the court into his confidence and divulged/stated
how much income he gets albeit from the occasional jobs that he says he does
from time to time. It cannot also be ignored that his responses to the factors
cited by the applicant as indicators of the lifestyle that he is leading are
far from convincing. The respondent is eager to portray himself as someone
without adequate means even for his own upkeep. It is not possible to miss the
undertones of his responses which in a number of instances reveal some level of
resentment towards the applicant.
Regarding
arrear maintenance in respect of school and sporting uniforms purchased by the
applicant from the thrift shop, the respondent notably does not contend that
these were unnecessary purchases. He did not make any checks with the thrift
shop for the prices neither does he say why he did not purchase the items
himself. It appears to me that he cannot escape liability to pay the amount
claimed as arrear maintenance. While the applicant has not, in my view,
established justification for maintenance in the amount of US$1000, the US$150
offered by the respondent appears to be guided more by his apparent resentment
of the applicant than by his inability to pay more than that amount. Taking
into account the telephone, cellphone and related charges, pocket money and
entertainment amounts reflected in the applicant's schedule of expenses
totaling US$924 and already referred to above, it would appear to me that
applicant's reasonable expenses should only be slightly more than US$1500. A
contribution by the respondent in respect of Graydon's maintenance (the
applicant is not making any claim in respect of the maintenance for the
respondent's two minor children) in the amount of US$500 would thus be fair and
equitable. In her draft the applicant also seeks amendment of paragraph 8 of
the order in HC 7136/2003 by the deletion of the word “living” in line 12
thereof. As no submissions were made in support of this prayer I assumed that
the applicant abandoned that part of her prayer. Furthermore, as such an
amendment would render the paragraph grammatically meaningless I am not
inclined to grant the amendment sought. As the applicant has been substantially
successful, costs will follow the cause.
In
the result it is ordered as follows:
1.
The Order of the High Court of Zimbabwe of 18 March
2004 in HC 7136/2003 be and is hereby
amended by the deletion in clause 6(a) thereof of the words “5th”
and “February 2004” and “$400 000 (four hundred thousand dollars)” and the
substitution in place thereof of the words “1st” and “March 2009”
and “US$500”;
2.
The respondent shall pay to the applicant, in respect
of arrear maintenance for the minor child G, the sum of US$318,50.
3.
The respondent shall pay the applicant's costs of suit.
Coghlan, Welsh & Guest, applicant's legal practitioners
Gill, Godlonton &
Gerrans, respondent's legal practitioners.
