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Maintenance re: Approach, Disclosure of Income and Expenditure and the Judicial Inquiry into Ability to Pay

HH14-12 : JOEL MATONGO vs FLORA MATONGO (NEE JOE)
Ruled By: CHITAKUNYE J

The plaintiff and the defendant were joined in holy matrimony on 13 June 1997, in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. They had, however, commenced living together as husband and wife, in terms of customary law, in August 1985. Their marriage was blessed with two ...
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Appealed
SC06-11 : DARREN STEWART THORNTON vs KATHLEEN ENID THORNTON
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

The appellant's income is not known to the respondent but it was alleged that judging from the lifestyle that he enjoys he must be in receipt of a healthy foreign currency income because of the following:“a) In December 2008, he spent 2 weeks on holiday in South Africa (including a Rod Stewart concert);b) Also ...
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HH134-09 : PUWAYI CHIUTSI vs CLARA CHIUTSI
Ruled By: MUSAKWA J

In his testimony, the plaintiff confirmed that he will be responsible for the children's schooling needs and clothing....,.On maintenance for the children, the plaintiff testified that he meets all their needs with the defendant making minor contributions. He pays all school expenses, buys their groceries and clothing. He undertook to ...
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View Appeal
HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

From a perusal of the papers, it also appears that this application was conceived sometime 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 ...
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HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The claim for the children's maintenance, in the sum of $280 per month per child, by the plaintiff, was, in my view, excessive and not fully supported by evidence. The plaintiff merely claimed a blanket amount of $300 for groceries without setting out exactly what she required. It was only ...
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HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI
Ruled By: MUSAKWA J

On the issue of arrear maintenance, the defendant testified that when the plaintiff moved out of the matrimonial home the plaintiff neglected to give her financial support. She confirmed, though, that he paid the children's school fees. Having endured financial hardships, she decided to move to the United Kingdom. She did not challenge the plaintiff's ...
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Appealed
HH109-10 : MICHAEL PATRICK MORONEY vs VYVYAN JEAN MORONEY
Ruled By: MUSAKWA J

I will also take note that although maintenance for the defendant was made an issue by virtue of her plea she did not lead sufficient evidence on which a determination can be made. It is not sufficient to state that she is no longer employed and that she has no prospects of ever being ...
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HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

The plaintiff's evidence that her monthly expenditure averages US$2,200= was not challenged. She said that this amount does not cover the insurance on the house or charges for the licencing of vehicles. The defendant's claim that he is unable to contribute more than US$100= is not supported by the evidence and by the probabilities, especially when ...
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HH23-11 : SAMUEL SARUDZAI KANOYANGWA vs WINFREDER KANOYANGWA (NEE CHARLIE)
Ruled By: CHITAKUNYE J

The plaintiff said he was not employed but somehow did not disclose how he is surviving and how he had been able to provide for the child so far.
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HH24-11 : NOBUHLE MUPUDZI vs RUEBEN MUPUDZI
Ruled By: CHITAKUNYE J

The defendant tendered some documents in support of his assertion that Nebuer Management Systems (Pvt) Ltd is in the red and thus cannot afford the high school fees. Those documents comprised a Tel-One overdue bill for Nebuer Management Systems and an Old Mutual Rental Invoice in the name of Nebuer Management Systems showing rentals due. There ...
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HH61-11 : COLLIN SYDNEY DICKS vs AVERIL CAROL DICKS
Ruled By: CHITAKUNYE J

From the evidence adduced in court it appears that whereas at the inception of the action, the plaintiff was doing well in his business venture that does not seem to be so now. It is common cause that the plaintiff was a successful businessman who operated two companies that are said to now be ...
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HH194-14 : GILBERT CHINYA HUNGWE vs HANDINA FAITH HUNGWE
Ruled By: MAWADZE J

Lastly, the applicant stated that his circumstances have changed since the time the order was made as he has now remarried. The applicant did not, however, explain how or provide a schedule of his expenses. In fact, the applicant only attached his salary advice slip to his answering affidavit thus depriving the respondent the opportunity ...
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HH197-14 : PELLAGIA NYAUDE vs INNOCENT RUNGANO NYAUDE
Ruled By: UCHENA J

The respondent, on hearing that the applicant was now employed, withdrew the US$100= he was offering as maintenance per month. He now says she needs no maintenance. That view is both mean and indicative of a desire to inflict misery on the applicant through denial of means of survival. It is hard to imagine ...
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HH561-14 : JULIAN TINOTENDA MADONDO and MILLICENT NYARAI MEZA vs CECIL MADONDO
Ruled By: UCHENA J

The respondent tendered Annexure B1, his payslip, which shows he earns US$8,000= per month and has a net salary of US$5,539=17. He also receives rentals in the sum of US$750=. In Annexure B2 he gave a list of expenses which he said leaves him with a disposable balance of US$911=17. It is unfortunate that this application ...
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HH579-14 : RICHARD CHIWANDIRE vs CYNTHIA CHIWANDIRE
Ruled By: CHITAKUNYE J and TSANGA J

However, it is on the remaining grounds of the appeal that we found that there are clear grounds for remitting this matter back to the Magistrate's Court for a full hearing. It was evident from the record that there were shortcomings in how the magistrate dealt with the issues that were raised on appeal. ...
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HH592-14 : PARENTS HWATA vs CAROLINE ZVINGWE
Ruled By: CHITAKUNYE J and TSANGA J

This is an appeal from a judgment by a magistrate sitting at Rusape Maintenance Court. In that judgment, the trial magistrate ordered the appellant to pay maintenance in a total sum of US$220= in respect of the parties' two minor children. The brief facts are that:- In the year 2009, the appellant and respondent ...
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SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

As regards the claim for maintenance, such a claim is ordinarily predicated on a relationship between the parties of such kind as to create a legal duty to support between them, viz. husband and wife, parent and child, grandparent and grandchild, and immediate collaterals. The liability of a third party outside any such familial relationship ...
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CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

A nation which is not concerned with the welfare of children cannot look forward to a bright future. Murina Ors v State of Uttar Pradesh Ors (1982) 1 SCC 545.
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HH28-15 : LINDIWE CHIFAMBA vs ELIJAH CHIFAMBA
Ruled By: TSANGA J and CHITAKUNYE J

This was an appeal heard by this court on the 28th of October 2014 against an order for maintenance granted by the Magistrate Court. The matter was remitted back to the Magistrate's Court for a proper enquiry to be made on the income and expenditure of the respondent and that of the applicant (who ...
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HH28-15 : LINDIWE CHIFAMBA vs ELIJAH CHIFAMBA
Ruled By: TSANGA J and CHITAKUNYE J

Section 13(c) of the Maintenance Act [Chapter 5:09] makes it clear that the court has power “to call for the production of any book or document and to examine any witness on oath.
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HH44-15 : NYARAI NYAMBUYA (NEE BAKASA) vs HURBERT FUNGAI NYAMBUYA
Ruled By: CHITAKUNYE J

From the evidence adduced, it is common cause that the plaintiff and the defendant enjoyed a high standard of living. Their children were used to that lifestyle. This was when things were going on well for the family business. However, with the disintegration of the marriage, so came the collapse of the family business. It was ...
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Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

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 ...
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HH120-15 : ROY NYABVURE vs HILDA KIRIMI
Ruled By: TAGU J

From the submission made on behalf of the mother, the father is a senior employee of the City of Harare. He is a propertied person who has other means of earning extra income. If indeed he was in arrears, as he wanted the court to believe, surely he should have produced such evidence. The father, in these ...
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HH674-14 : ISAAC SITHOLE vs LUCIA SITHOLE (NEE MUTORE)
Ruled By: CHITAKUNYE J

In determining an appropriate award of maintenance, the court is enjoined to endeavour to ensure that the children of the marriage continue enjoying the same standard of living as the responsible person...,. Such standard must be as they had been used to at the time they were staying together. This inevitably calls for credible evidence of the means ...
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HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE)
Ruled By: UCHENA J

The plaintiff is clearly a man of means. He is, in my view, well able to pay to his wife maintenance in the sum of $2,000,000= per month.
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Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

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 ...
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Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and 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 per month until she dies, remarries, or cohabits with another man ...
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HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

The plaintiff sued his wife, the defendant, seeking a decree of divorce and other ancillary orders.The parties were married on 5 October 1991 in Bulawayo. Their marriage was blessed with a son who has since attained the age of majority and obtained his first degree. He is staying with the ...
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HH955-15 : SAMUEL UNDENGE vs BONGANI UNDENGE
Ruled By: MAKONI J and MWAYERA J

A Maintenance Court beset with a maintenance application initial, or subsequent, for downward or upward variation, of necessity, has to look at the following aspects:1. Is the party from whom maintenance is being claimed responsible; in other words, duty bound to maintain the claimant.2. Is the applicant or claimant entitled ...
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HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

Maintenance, and its variation, are, by way of enquiry, and cannot be dealt with through an urgent chamber application.
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