Ryan Lowe v Ursula Shaw

### Preamble
1
HB 139/25
HCBF 102/25
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RYAN LOWE

Versus

URSULA SHAW

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 17 JULY 2025

Application for variation of the Maintenance order

Mr BA Chifamba for Applicant

Mr S Nkomo for the Respondent

NDUNA J: This is basically an application for variation of the maintenance order made by this court. The parties had appeared before the court on the issue of their divorce. The divorce was granted and the applicant was ordered to make maintenance provisions towards the two minor children of the parties. He has now approached this court for downward variation of the maintenance order issued.

At the earing of the divorce, the court had taken into account that the parties have two minor children and as such it issued a maintenance order to the effect that;

That the plaintiff pays educational expenses for the two minor children including tuition, levies, uniforms and other educational materials as required by school attended

The plaintiff shall keep the two minor children on medical aid

The plaintiff shall pay a maintenance in the sum of US$250 or equivalent in Zimbabwe dollars

(1), (2), and (3) above shall apply until varied by an order of the court of competent jurisdiction or until each of the minor children attain the age of eighteen (18)

Each [arty to bear his or her own costs.

That was issued on 6 December 2022. The applicant is now desirous that the order be varied as follows:

That the applicant pays educational expenses for the two minor children in the sum of US$2500-00 per term, including tuition, levies and other educational materials as required the school attended

The applicant shall keep the two minor children on medical aid

The applicant shall pay maintenance in the sum of US$50 per month per child

Each part to pay its own cost.

I will address the points which will assist in the disposal of this matter. The Respondent is obviously opposing the application. She avers that the Applicant has erred in approaching this court for the variation of the maintenance order. She further avers that the appropriate court should have been the Magistrates Court. She further points out that Section 18 of Maintenance Act so provides. It will be better to look at the provision: -

18 Registration of orders

(1) 	The clerk of the maintenance court shall register—

(a)	all orders made in terms of section six by the maintenance court;

(b) 	all orders transmitted to the maintenance court in terms of section twenty;

(c) 	all orders tendered for registration in terms of subsection (2).

(2)	 An order of the High Court or any other court, other than a maintenance court, for the payment of sums of money towards the maintenance of a person may, without prejudice to any other remedies that may be available for the enforcement of that order, be tendered by any person against whom or in favour of whom it was made for registration to the clerk of the appropriate maintenance court of the province or district where the person against whom the order was made resides.

(3) 	Subject to subsection (4), where an order referred to in subsection (2) has been registered, sections seven, eight, nine, nineteen, twenty, twenty-one and twenty-two shall apply, mutatis mutandis, in relation to such order—

(a)	 as if it were an order made in terms of section six; and

(b)	in the case of an order of the High Court, notwithstanding that such order permits or authorizes a variation of any of the terms thereof only by way of application to the High Court;

and where any such order which has been made in favour of a child has ceased or is due to cease upon the child having attained or attaining a specified age, the maintenance court may, upon application being made to it and upon due inquiry to which section eight shall apply, mutatis mutandis, extend the order for such period and subject to such conditions as it may think fit.

(4)	 Where a maintenance court varies, extends or discharges an order of the High Court referred to in subsection (2)—

(a) it shall as soon as possible cause the record of the proceedings to be 	forwarded

(i)	 confirm, vary or set aside the order of the maintenance court; or

(ii)	 set aside the order of the maintenance court and remit the matter to that court with instructions to take such further proceedings as the judge may direct and thereafter to make such order as it thinks fit;

The Magistrate Court is designated as a maintenance court. And the High Court is not a Maintenance Court. However, the High Court can only make maintenance orders in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13]. One cannot start to make a maintenance application at the High Court. The same goes for its variation. The law is very clear as shown above in section 18 of the Maintenance Act (supra). It is the Magistrates Court which is designated as the maintenance court. This is done in section 3 of the Maintenance Act as follows: -

3 Maintenance courts

Every magistrates court shall, within its area of jurisdiction, be a maintenance court for the purposes of this Act.

What this entails is that the Magistrates Court is deemed to be the duly appointed maintenance court. The fact that the High Court can be seized with a maintenance application as a part and parcel of a broader divorce does not make it a maintenance court. That is why after it has made an order of maintenance, the order needs to be registered with the Maintenance Court.

It is for these reasons that the point in limine raised must be successful. It follows that an order which reflects that must be made by the court. It therefore becomes unnecessary to look at the other issues raised.

It is accordingly ordered that the matter should be struck off the roll with costs on ordinary scale.

Nkomo, Sibanda Legal Practitioners, applicant’s legal practitioners

Mukushi & Maupa,, respondent’s legal practitioners