Constance Charity Chivinge (nee Semwa-Chihuri) v Joseph Chivinge

### Preamble
1
HH355-2012
HC 8848-2011
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CONSTANCE CHARITY CHIVINGE

(nee SEMWA-CHIHURI)

versus

JOSEPH CHIVINGE

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE 23 MAY AND 20 SEPTEMBER  2012

Opposed Application

N.R. Mutasa, for the Applicant

Advocate F. Girach, for the Respondent

MAWADZE J: This is an opposed application in which the applicant seeks the following order;-

IT IS ORDERED THAT:-

The Respondent be and is hereby ordered to pay to the Applicant a sum of US$1500 per month as and by way of maintenance with effect from the date of this application and thereafter on or before the first day of each month until the main matter under case reference number HC6214/2011 is determined to finality by the court.

The Respondent be and is hereby ordered to deposit with Messrs Costa & Madzonga within seven days of the date of this order, a sum of US$4 260,00 as and by way of his contribution towards applicant’s legal costs of this of the main matter under case reference number HC 6214/11.

The Respondent be ordered to pay the full taxed costs of this application on a legal practitioner and client scale as his contribution towards the Applicant’s costs of this application.”

During the hearing of this matter Mr Mutasa for the applicant withdrew item (3) of the order sought which relates to payment of costs of this application on a higher scale. He conceded that it would be proper in an application of this nature for costs to be made costs in the cause of the main action and be reserved for a decision by the trial court. This concession in my view is well founded and finds favour in cases decided in our jurisdiction See Barras v Barras 1978 RLR 384. The rationale for this is that the trial court is better able to assess whether such an application was well founded or not after having heard evidence in detail from the parties. An award for costs at this stage therefore can only be made in cases where there are unusual circumstances See Lindsay v Lindsay 1993 (1) ZLR 195 (S) at 203B-C.

The background facts of the matter are as follows;-

This is an application for maintenance pendete lite and contributions towards costs pendete lite in terms of order 35 Rule 274 of the High Court Rules of Zimbabwe.

The Applicant and the Respondent are wife and husband respectively. They married each other in terms of the Marriage Act [Cap 5:11] on 16 August 2003 and the marriage still subsists. Unfortunately the marriage has not been blessed with any children.

The parties agreed that the marriage has irretrievably broken down. In fact the Applicant has instituted divorce proceedings filed under case HC 6214/11. The Respondent has entered an appearance to defend and filed his plea. The pleadings are yet to be closed. The parties differ as regards the cause or causes of the breakdown of the marriage but both agree that a decree of divorce should be granted. From the pleadings filed of record each party has given his or her version as to the breakdown of the marriage and I believe for purposes of this application there is no cause to deal with those reasons. While the parties agree that a decree of divorce be granted there is no agreement as regards division of the parties’ assets. What is however important to note is that summons for divorce were issued out of this court on 28 June 2011 and served on 5 July 2011. Appearance to defend was entered on 6 July 2011 and the plea filed on 17 August 2011. No further pleadings were filed and on 8 September 2011 the Applicant filed this application.

Both parties are gainfully employed and fairly educated. The Applicant is employed as Financial Accountant since 01 July 2011 initially on probation but as per Mr Mutasa’s submissions she is now permanently employed. The Applicant’s sound academic and professional background is not in doubt. She is a holder of the following qualification;- An Honours degree in Commerce, An Institute of Bankers Diploma and is currently working towards becoming an Associate member of the Association of Certified Chartered Accountants. The issue as to whether she obtained these qualifications before or after this marriage and whether the Respondent partially or fully funded her education is neither here nor there. The fact remains that the Applicant possesses very high academic and professional qualifications. The Respondent is also gainfully employed as a Financial Director of Lake Harvest (Pvt) Ltd.

It is common cause that the parties started to live apart in January 2011. The parties are unable to agree as to whether the Applicant walked out or, was locked out of the Kariba matrimonial home by the Respondent. The fact remains that the persons are living apart and are no longer sharing resources. The Applicant used to enjoy access to the Respondent’s bank Account even after separation but the Respondent has since blocked the Applicant’s access to his account. Consequently the Applicant can no longer access any funds. The Respondent admits blocking the Applicant access to his bank account and indicate the reason thereof as the Applicant unauthorized withdrawal of US$5 000 part of which was to fund the farming activities by the Applicant’s father. While the Applicant admits withdrawing the US$5000,00 she insists it was with the Respondent’s consent.

It has not been disputed that the Applicant still enjoys medical cover under a scheme financed by the Respondent. She also enjoys medical cover as part of her conditions of employment (see item 7 on letter of appointment) The Applicant has remained in possession of the only family motor vehicle after separation.

According to the Applicant, the basis of the maintenance claim pendete lite is that she has no income and is struggling to survive as the Respondent had virtually abandoned her. The Applicant particularised the maintenance claim as follows;-

The maintenance claim is for US$1 500, 00 per month and a schedule of the Applicant’s expenses are contained in Annexure B. It is illustrative to list the expenses per month in US dollars.

Rent						$600

Water, rates & levy				$100

Electricity					$50

DSTV						$70

Clothes (Account)				$152

Fuel 180 Litres				$234

Groceries					$300

Africom Internet Airtime			$70

General expenses for generator		$100

Incidentals ( medical, car parking

tithes & funeral contribution	$200

Hair do					$100

Maid						$120

Lunch at work					$66

Entertainment					$200

once off payment for car service,

tyres, insurance and car licence		$1880

Grand total					$2518,66

According to the Applicant an amount of US$2518,66 per month is based on the standard of living the Respondent used to provide for the period they stayed together as husband and wife. In fact the Applicant in the same Annexure B provided a list of items which said constitute their monthly expenses when they were staying together which is a total of $2969,83.

The Applicant stated that she has no any other means except the income she derives from her salary which is $1200,00 per month as per Annexure C.

It should be noted that the Annexure C relates to the Applicant’s salary at the time she was on probation and not as at now. Mr Mutasa could not provide evidence of the Applicant’s current income except to say it is now about a gross salary of US$2000 per month and a net salary of US$1500 per month. It is not clear if the Applicant has a bank account and she did not provide any financial statement to show if she has any savings. The payslip the Applicant produced Annexure D is dated 26 August 2011 showing a net salary of $1031,00 per month. The Applicant’s case is that the quantum for her claim for maintenance pendete lite is based on the difference between her monthly expenses of US$2518,66 and her net income of $1031,00 which is US$1487,66 per month which she has simply rounded off to US$1500 per month.

In her founding affidavit the Applicant stated that the Respondent has the means to pay  US$1500 per month as maintenance pendete lite. She said she was constrained in providing proof of Respondent’s income on account of being locked out of the house but knew as a fact that the Respondent earns a net salary of $3 500 per month and has other additional benefits amounting to US$7 000 per month. In a bid to provide proof of Respondent’s additional income the Applicant attached to the answering affidavit in Annexure M to M2 which are Respondent’s bank statements for December 2010, February and March 2012.

Mr Mutasa was however at pains to explain the interpretation to be deduced from the bank statements and the probative value to be placed by the court.

In his response the Respondent stated that the Applicant is not entitled to any maintenance pendete lite as she is gainfully employed and has sufficient means to fend for herself. The Respondent further stated that the Applicant’s schedule of expenses is exaggerated as they used to spend only US$1000 per month when they were staying together and not US$2969,83 claimed by the Applicant. Lastly the Respondent states that he has no means to meet the Applicant’s claim as his net salary is US$3 500 per month as per Annexure I his payslip. The Respondent is of the view that the Applicant’s claim for US$1500 per month is for the Applicant to simply earn more as the Applicant would have about US$1500 to US$2000 from her own salary and the US$1500 paid by the Respondent as maintenance pendete lite. The Respondent denied that he had other sources of income amounting to US$7000 per month and queried why the Applicant chose to attach the bank statements to her answering affidavit instead of the founding affidavit and in the process depriving the Respondent the opportunity to explain those deposits which Advocate Girach indicated related to cash in lieu of leave and other compensatory payments which are not regular income.

The Applicant gave similar reasons in seeking the contribution towards legal costs, which reasons relate to her alleged lack of means and the Respondent’s ability to pay such contribution. The Applicant blames the Respondent for stalling the divorce proceedings and his unwillingness to settle the matter. As a result the Applicant contends that the matter will proceed to trial and she is claiming an amount of US$4 260,00 as contribution towards costs. She arrived at this figure on the following basis;-

The Applicant is using a legal practitioner of 4 years experience and estimate the trial to last for two days or a total of 20 hours. She calculates her costs up to the pre-trial conference stage to be $1500 and the two days of trial would amount to US$2760 as per the Law Society tariffs which would give a total of US$4260,00. The Applicant believes the Respondent has the means to meet the full legal costs in the divorce matter.

In response the Respondent disputed that he is to blame for the dispute in relation to ancillary issues the parties are unable to agree on. He indicated that he has since filed his plea and that the offer for a round table conference involving the parties and their legal practitioners has not materialized. It is the Respondent’s contention that the Applicant has up to this stage managed to pay her legal costs without assistance and that she has the means to meet her costs. I now turn to the law governing applications of this nature. As already stated the basis of this application is provided in Order 35 Rule 274 of the High Court rules 1971 which provides as follows;-

“274 Divorce or judicial separation; application for contribution towards costs and

maintenance pendete lite

When a spouse is without means to prosecute or defend any action for divorce or judicial separation, the court may, on application order the other spouse to contribute to his or her costs, and where necessary, to his or her maintenance pendete lite, such sums as it deems reasonable and just.

Such an application must be supported by an affidavit stating shortly the grounds of action or defence and that the applicant has insufficient means with which to prosecute or defend the action, as the case may be, and insufficient means to support himself or herself pendete lite, and whatever information is available respecting in spouse’s financial position.”

It is trite law that spouses have a reciprocal duty to support each other during the subsistence of the marriage and the mere separation of the spouses does not extinguish the responsibility. In casu both the Applicant and the Respondent owe each other this reciprocal duty. The same principle applies generally to the duty to pay contribution towards costs. See H.R Hahlo, The South African Law of Husband and wife 5th Edition of page 432.

In the case of Galante v Galante 2000 (2) ZLR 453 (S) at pp454D-455A the principles to be taken into account in dealing with the application for maintenance pendete lite are set out by McNally JA and he makes specific reference to other cases which include the following;- Acutt v Acutt 1990 (2) ZLR 220 (S), Hodsson v Hodsson  S – 190-92, Lindsay v Lindsay 1993 (1) ZLR 195 (S).

I am satisfied on the evidence on record that the Applicant has not shown, on a balance of probability that it is necessary to order the Respondent to pay maintenance pendete lite. I arrived at this conclusion on the basis of two reasons. First, the Applicant has not shown that she is without sufficient means to support herself. Second, it has not been shown that the Respondent has sufficient means to pay maintenance pendete lite. Both the Applicant and the Respondent as already stated are gainfully employed. While the court is entitled to adopt a robust approach I do not believe that the Applicant has placed sufficient detail in relation to her means to enable the court to make a reasonable and just award. The Applicant’s income remains unclear as the information provided related to the period she was on probation. It was only after probing by the court that Mr Mutasa submitted that the Applicant is now permanently employed and that her income is no longer as per papers filed of record.

The need for the parties in an application of this nature to take the court in their confidence and to be open and candid cannot be over emphasized. See Lindsay v Lindsay supra at 197 F.As already said the Applicant has not put before the court correct evidence regarding her income as she has now secured a permanent job. The conditions of her service in Annexure ‘C’ relates to the period she was on probation. It remains unclear if she is currently employed on the same or better conditions. Her current conditions of service should have been put before the court. It is very unlikely that a person of the Applicant’s status would not have a bank account. It was necessary for the Applicant to place her bank statements before the court to show her income or savings if any. The Applicant has not been frank and candid with the court as regards to her financial means especially after she had been employed permanently. While I accept that the application was filed at the time the Applicant was on probation, that cannot be an excuse for the Applicant’s failure to provide the court with current and relevant information as regards her means. This court cannot make a value judgment based on conjencture.

While the schedule of the Applicant’s expenses (Annexure B) may reflect the Applicant’s needs and the standard of living she was accustomed to when the parties were living together, I share the Respondent’s view that the schedule of expenses is not only exaggerated but contains some extra ordinary and luxurious items like clothing accounts with three different shops, 180 litres of fuel, food for $300 for one person, lunch, weekend outings and the figure of US$1200 related to what are termed incidentals. ( medical, car parking, church tithes funeral contributions) and hairdo of $100,00. It is also not clear why the Applicant would require a full time maid. The items set out in Annexure ‘B’ the top part which relates to the Applicant’s needs shows in my view a high degree of extravagance. This leads me to the next issue.

It has not been proved on the evidence on record that the Respondent has sufficient means to pay maintenance pendete lite. The payer’s means is a crucial factor the court considers in deciding to grant an order for maintenance pendete lite and quantum thereof See Acutt v Acutt supra.

The Respondent is on a net salary of US$3500 per month. There is no basis for the Applicant to allege that the Respondent has an additional net income of US$7000 per month. The Applicant was not able to explain why the Respondent’s bank statements were not attached to the founding affidavit only to be included in the answering affidavit as proof of Respondent’s monthly income. The bank statements Annexures M and M2 are meaningless in so far as it relates to the Respondent’s monthly income. The explanation proffered by Advocate Girach in relation to the two deposits of US$7216,40 on 21 January 2011 and US$7586,90 on 17 March 2011 maybe correct. At the end of the day the court can only proceed on the basis of the fact that the Respondent’s monthly net income is US$3500 per month and the Applicant’s net income is about US1500 to US$2000 per month. While the Respondent has not attached a schedule of his expenses the difference between the parties monthly net incomes is about $1500 per month. On the facts before the court the Respondent cannot be described as a man of substantial means.

It is on the basis of the aforementioned reasons that I make the finding that the Applicant has failed to prove her entitlement to maintenance pendete lite. The Applicant’s claim in that regard cannot succeed.

I now turn to the issue as to whether the court should order the Respondent to contribute towards the Applicant’s legal costs in the main matter HC 6214/11.

According to the learned author HR Hlahlo supra at page 424 the requirements for an order for contribution towards costs are as follows;-

there must be a subsisting marriage -: there is a subsisting marriage between the Applicant and the Respondent

the suit in action must be a matrimonial one:- the action in casu is indeed a matrimonial one

the Applicant must have reasonable prospects of success:- It is very likely that the Applicant would succeed in this regard as both parties are in agreement that a decree of divorce should be granted. The quarrel between the parties only relates to division of the assets and other ancillary issues.

The Applicant is not on a financial position to bring or defend the action without contribution from the other spouse and

The other spouse is able to provide the Applicant with this contribution.

It is clear that the only requirements in dispute in this matter relate to items (d) and (e) which in a nutshell refers to the means of both parties see Dube (nee Msimanga) v Mavako- Dube HB -78-06.

I have already dealt with the question of the means of both parties in dealing with the aspect of maintenance pendete lite. From the evidence availed by the parties they derive income from their monthly salaries only. Both parties are gainfully employed and earn reasonable amounts. I am not persuaded that the Applicant lacks means to presecute the matter. Her circumstances financially are no worse than that of the Respondent. It seems the Applicant believes that the Respondent’s inability to accede to her demand for a decree of divorce on her terms should entitle her to an order for contribution towards costs. That view is erroneous. The Applicant has not proved on a balance of probability that she is entitled to an order directing the Respondent to contribute towards her costs. Consequently the Applicant’s claim in this regard should also fail.

In conclusion I am satisfied that on the basis of evidence availed by the parties the Applicant’s claim for maintenance pendete lite and contribution towards costs cannot succeed.

In the result I make the following order;-

The application is dismissed.

The costs be costs in the cause.

Costa & Madzonga, Applicant’s legal practitioners

Wintertons, Respondent’s legal practitioners