ZIYAMBI JA: The parties herein were divorced by an order
of the High Court dated 18 March 2004 ("the order"). In terms of that Order the respondent was
granted custody of the minor child Graydon William Thornton born 30 January
1996, and the appellant was ordered to pay maintenance for the minor child.
Clauses 6 and 8 of the Order provide as follows:
"6. That as and by way of child maintenance:-
a)
Defendant
shall pay to the plaintiff, in respect of the minor child Graydon, in cash and,
without deduction, with effect from the 5th day of February 2004 and
thereafter on or before the 1st day of each successive month, until
his completion of secondary school, the sum of $400 000,00 (four hundred
thousand dollars); and
b)
Defendant
shall pay, on or before due date, directly to the school or institution
concerned, upon presentation to him of the invoice in respect of the attendance
of Graydon at private primary or secondary schools including the full cost of
any necessary extra tuition, reasonable extra-mural activities, school
uniforms, school outings, textbooks and school sportswear and sports equipment;
and
8. That the provisions hereof relating to the custody, access
and maintenance of Graydon and of the minor step-children shall be variable on
application by either Plaintiff or Defendant to the High Court of Zimbabwe or
other court of competent jurisdiction on good cause shown and, without derogation
from the generality of this clause, it is recorded that the child maintenance
payable by Defendant in terms of this Order, and the issue of a maintenance
contribution by Defendant in future in respect of defendant's said minor
step-children, shall be reviewed by plaintiff and defendant regularly, as to
the sufficiency thereof, having regard to increases in inflation and the
general cost of living, (And the cash maintenance payable by defendant in terms
of clause 6(a) shall in any event increase automatically by no less than 30%
thereof compounded every four months with effect from 1 June 2004)."
On 23 February 2009, the respondent
brought a court application in the High Court seeking a variation of the above
order. She sought the following:
"IT IS ORDERED:
1.
That the
Order of the High Court of Zimbabwe of 18th March 2004 in matter HC
No. 7136/2003 be and is hereby amended -
(a)
by the
deletion of 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$1 000
(alternatively petrol in such amount as can be purchased on the market at a
cost of lUS$1 000 on the date on which payment is due each month)',
respectively; and
(b)
by the
deletion in clause 8 of the words following the word "living" in line 12 thereof.
2.
That the
respondent, shall pay to the applicant, in respect of arrears maintenance,
within ten (10) days of delivery to him of a copy of the Order, the sum of
US$318.50.
3.
That the
respondent shall pay the applicant's costs of suit herein (if this matter is
opposed)."
The High Court granted the
application to the extent that the appellant was ordered to pay US$500 per
month for the maintenance of Graydon and arrear maintenance in the sum of USD$318. The appellant now appeals against the order
for maintenance.
It was submitted by the appellant
that the learned Judge erred in making the Order that she did, in the face of
evidence that he was not employed and could not afford the amount of
maintenance awarded.
The respondent, however, averred
that her net income from her employment is US$1 000.00. The appellant has made no payment in respect
of the maintenance of the step-children and that during the month of October
2008 to February 2009 the appellant made the following contributions by way of
maintenance for Graydon:
a)
80 litres
of fuel for October
b)
80 litres
of fuel for November.
Nothing was paid whether in cash or
kind during the month of December to February 2009. The respondent works fulltime and has
exhausted her savings on the maintenance of herself and the children.
On 9 January 2009 the respondent's
legal practitioners addressed a letter to the appellant reminding him of his
obligations in terms of the consent paper and broaching the subject of a
variation of the court order in order to claim a reasonable maintenance for
Graydon. Although the appellant has made
no contribution whatever to the maintenance of his step-children
notwithstanding his statutory liability in terms of the Children's Act and his
binding undertaking in terms of clause 8 of the consent paper, the appellant's failure
to make any contribution to the maintenance of his step-children was not
pursued. The request was only in respect
of Graydon.
No response having been received, a
Court application was filed by the respondent seeking a variation of the Order as
set out above.
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
in December 2008, he spent 2 weeks in Kariba;
c) over
December 2008/January 2009 he spent 2 weeks in Mozambique;
d) he
drives an Isuzu truck;
e)
he owns a
fishing boat with motor and accessories;
f)
he plays
golf frequently;
g)
he spends
a lot of time fishing with Bassmasters, an exclusive fishing club, (and has a
lot of expensive fishing tackle) and takes part in all Bassmaster Classics - at
least 10 a year - which covers full weekends away and considerable monies are
spent on transport/fuel and accommodation;
h)
he rents a
large house in Avondale (near the Ridge);
i)
he is
always dressed in new clothes;
j)
he
frequently throws parties and dinners;
k)
he
receives rent from properties in Harare
belonging to his mother;
l)
he owns a
Camry motor vehicle;
m)
he has
external holidays every year (and internal holidays including houseboat trips
to Kariba);
n)
in August
2008 he spent 3 weeks in the United
Kingdom."
The respondent further averred that
although the appellant is relieved from paying school fees for Graydon by
reason of the fact that he has obtained a scholarship from St Georges College
in respect of the school fees, he has not met Graydon's needs either for maintenance
or the expenses attendant upon his schooling for which the appellant is
expressly liable in terms of Clause 6(b) of the order. The appellant, she
averred, is well able to pay the amount claimed because most of the activities
in which he habitually engages sound in foreign currency and the appellant is a
commodity trader buying and selling such items as fuel, tyres and cell phones
in foreign currency.
The appellant in his opposing
affidavit pleaded inability to pay the amount claimed by the respondent and
accused the latter of inflating her claims.
Regarding his income, the tenor of his evidence was to the following
effect. He is currently unemployed and
does not have a definite monthly income.
He is occasionally hired as a bodyguard by Zimbabwe Cricket and on
occasion he works at his girlfriend's shop.
Indeed, he has disposed of most of the assets awarded to him in the
divorce settlement to fund his living costs.
He did not disclose his income to the Court.
He traveled to South Africa
but that was at the expense of his girlfriend who was on a business trip.
Certainly it was not a holiday trip. He spent
5 days in Kariba but all expenses were paid by his unnamed friend and host. He went to Mozambique on a business trip but
all the expenses were paid again by his unnamed friend at whose lodge they were
accommodated. As to the Isuzu truck that
he drives, that is borrowed from an unnamed friend. He has not played golf for 8 months now. He has
taken part in Bassmasters fishing expeditions only four times and not ten as
alleged by the respondent. The boat that
he uses belongs to his "partner" and the vehicle they used is the one borrowed
from his friend. The expenses of the
Bassmasters expeditions are shared with his "partner". The very house he lives
in at the Ridge, Avondale, is owned by a friend and the rent is paid by his "partner". The rent is minimal because his girlfriend,
presumably the same person described above as the "partner", contributes to the
maintenance of the house. He denied that he receives rent for the properties
belonging to his mother, averring that such rent is, since 2009, applied to the
maintenance of the properties.
The Camry motor vehicle belongs to
his mother (who apparently lives in London).
He does not have external holidays or houseboat trips to Kariba. Only in 2008
did he make a visit to London. It was his first visit in 8 years and he had
gone to visit his mother and his brother.
The expenses incurred on that trip were not more than 80 dollars as he
stayed with his mother and brother.
The appellant claimed that he has
duly met all his obligations in terms of the Order, that the respondent's needs
were exaggerated, and that 150 dollars per month as well as 50 litres of fuel
would be just, fair and reasonable for the maintenance of Graydon.
The learned Judge after full
consideration of the matter reasoned as follows:
"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."
In arriving at the determination
which she made, the learned Judge exercised a judicial discretion. See Hinwood
v Hinwood SC-61-99.
There is nothing on the papers to
show that her discretion was wrongly exercised.
Indeed, the conclusion arrived at by the learned Judge is inescapable on
the papers. It would be naïve to accept
the picture painted by the appellant of a businessman content to sponge off
relatives and friends for a living. The
appellant has not disclosed his income or given in his affidavit any
information which would assist a court in ascertaining a fair maintenance for
Graydon judging by the earnings of both parents. He pleaded poverty and
inability to pay 500 dollars per month for the maintenance of his child yet the
evidence shows that he has managed to enjoy a fairly luxurious life, albeit at
the expense of others, as he would have the Court believe.
Quite clearly, the appellant has
not been candid with the Court and has not taken the court into his
confidence. Other than his say so, there
is nothing on the record to suggest that, indeed, his friends and girlfriend
have assisted him in the way he has described.
The lifestyle that the appellant has been living is not that of an
ordinary unemployed and possibly destitute man.
It suggests a person with some means and influential connections. This is a case where the court must take a
pragmatic view of the means of the appellant and not be misled by appearances. Such an approach is called for in a case,
such as the present, where the appellant is being exceptionally frugal with the
truth. The remarks of KORSAH JA in Lindsay v Lindsay 1993(1) ZLR 195(S),
202 D are pertinent. In that case the
learned Judge remarked:-
". one can only infer that he is still a
wealthy man capable, from his elusive resources, of furnishing his wife with
maintenance .".
Those remarks apply with equal
force to the present case. On the evidence
placed before it, the court a quo made
a value judgment which cannot be impugned in any way.
It is therefore our finding that the
appellant has not established that he is unable to pay the amount ordered and
that no good cause has been shown which would justify interference by this Court
with the judgment of the court a quo.
The appeal is
accordingly dismissed with costs.
GARWE JA: I agree
CHEDA AJA: I
agree
Gill,
Godlonton & Gerrans,
appellant's legal practitioners
Coghlan,
Welsh & Guest, respondent's
legal practitioners
