MAWADZE J: This is appeal against
the judgment of the Harare Magistrates Court delivered on 1 July 2010. The
appellant appeals against the order granted by the magistrate declining to
grant the upward variation of a maintenance order.
After
hearing the appellant on 22 June 2011 we granted the following order and
indicated that the reasons thereof will be availed in due course:-
"1. The appeal is allowed.
2. The
decision by the lower court dismissing the appellant's
application
for variation is hereby set aside.
3. The matter is referred back to the
lower court for a proper inquiry to be held.
4. The original maintenance order remains
in force.
5. No order as to costs".
I now proceed to
deal with the reasons for the order granted. A brief background of the case is
in order:-
On 26 February
2010 the appellant applied for contributory maintenance inn terms of s 4 of the
Maintenance Act [Cap 5:09]
(hereinafter the Act) in respect of two minor children Kudzaishe
Kakono and Simbarashe Kakono before the learned magistrate Tahwa. On 18 March
2010 after holding the requisite inquiry in terms of s 5 of the Act the learned
magistrate granted the following order in terms of s 6 of the Act;
"Order
granted in that both parties contribute to maintenance of minors. Respondent to
meet half costs of school fees termly, buy casual wear twice a year, to pay
monthly maintenance of US$150-00 with effect from 31 March 2010 and
contributing to cover minors on medical aid" (sic)
On 14 June 2010
the appellant approached the court seeking an upward variation of the
maintenance order granted on 18 March 2010 and the discharge of the provision
that the appellant contributes half of the school fees. This application was
made in terms of s 8 of the Act. The appellant wanted the maintenance order to
be varied from US$150-00 per month to US$300-00 per month. The basis for the
application for variation of the maintenance order is captured in the
appellant's affidavit which states as follows:-
"I
now have in my possession proof that other than the means of income the
respondent showed the court at earlier hearing he earns more than that.
-
That the amount of US$150-00 granted by
the court is inadequate to maintain the standard of living the children were
living prior to separation.
-
I have not been able to pay the other
half of the school fees of the minor children as the court ordered as I am not
employed. The respondent has always paid the full school fees and should be
ordered to do so.
-
Whereof I pray for an order varying the
maintenance to US$300-00 per month and an order that the respondent pays the
full school fees for the minors".
During
the brief hearing held on 1 July 2010 before the learned
magistrate Rwodzi the appellant
gave the same reasons as outlined in her affidavit for seeking the variation of
the maintenance order. The respondent opposed the application and indicated
that the appellant should not be heard as she had dirty hands arising from her
failure to comply with the initial maintenance order compelling her to pay half
of the children's school fees. As regards the merits of the application the
respondent stated that the appellant had now put tenants in the matrimonial
house and was realising a monthly income of US$300-00 to $400 per month.
The
respondent indicated that his circumstances had not changed since the granting
of the initial order except that the divorce proceedings have commenced. The
respondent dismissed the document produced by the appellant as of no value as
it is not signed by the parties mentioned therein and could not be taken as
proof that the respondent had extra income. The respondent therefore sought the
dismissal of the application.
The
appellant in response stated that she is unable to contribute towards the
children's school fees due to lack of means as she is unemployed. The appellant
refuted the allegations that she was renting out some of the rooms of the
matrimonial house to tenants for a fee. The appellant stated that she stays
with her niece and that there is a maid and a gardener who occupy staff
quarters and that one of the rooms is full of property belonging to the
respondent's brother. Appellant insisted that the document she produced was of
some probative value as it showed that the respondent owned a company. The
appellant indicated that she could not wait to have the issue of maintenance
resolved by the divorce court as this process takes long despite that the
divorce proceedings have commenced.
After this brief
hearing the learned magistrate granted the following order on 1 July 2010:
"Application
for upward variation be and is hereby dismissed - no changed
circumstances".
There
were no reasons given for the order granted and on 2 July 2010 the appellant
wrote to the clerk of court requesting to be furnished with the reasons for the
ruling by the learned magistrate dismissing her application for variation as
she wanted to appeal against the order. The record does not show that the
appellant's request was acceded to and to date there are no such reasons given
by the learned magistrate in the record of proceedings. On 9 July 2010 the
appellant noted an appeal with this court against the order granted by the
learned magistrate Rwodzi. The grounds of appeal are as follows:-
"1. The court a quo erred in finding that there were no changed circumstances
when the appellant clearly proved that;
(i)
The respondent had additional income
which had not been proved at the initial hearing of the matter. The court a quo disregarded the evidence produced
by the appellant and failed to give reasons as to why it did so.
2. The court a quo erred in taking an arm chair approach to the appellant's case
when the appellant had proved that the respondent had more means than initially
proved in court a quo".
There
are a number of irregularities in this matter. The failure by the trial
magistrate to give reasons for the order granted is a serious misdirection. The
court a quo is a court of record and
should always give reasons for the decisions made. The rationale for this is
self evident as MUCHECHETERE J (as he then was in S v Ndebele 1988 (2) ZLR
249 at 254 had this to say:-
"All
courts are courts of record and are required to keep full comprehensive records
of proceedings .. the need to do so is obvious. In the absence of such record
how is the review or the Appreciate Tribunal to assess the correctness and
validity of any proceedings placed before it for adjudication?"
In
casu no reasons are given as to the
reason or reasons why the learned magistrate was of the view that there are no
changed circumstances. The appellant's request for the reasons for the order
given was simply ignored.
The
court a quo made a finding in terms
of s 8(7)(b) the Act that the means or circumstances of the respondent have not
changed since the making of the order on 18 March 2010. In the absence of
reasons for this finding this court is constrained in deciding whether the
decision arrived at by the court a quo
is indeed correct and supported by the facts or evidence on record. This
problem is further compounded by the fact that no evidence was led in much detail
during the inquiry. The averments by the
parties during the inquiry clearly indicated material dispute of facts which
should have been properly dealt with by allowing the parties to lead evidence
in chief and in cross-examination.
Despite
the fact that the respondent was properly served for this appeal hearing and is
in default this court is still unable to find in favour of the appellant by
granting the upward variation sought in the court a quo. This is so because there is insufficient evidence on record
to make an informed finding in that regard. The proper course to take in such
circumstances is to set aside the order granted declining the upward variation
of the maintenance order and to refer or remit the matter to the court a quo for a proper inquiry to be carried
out by any magistrate of competent jurisdiction. In the interim the original
order granted on 18 March 2010 remains valid.
CHITAKUNYE J: agrees ..........
