Oweni Murimi v Nothando Mchina

### Preamble
1
HH 283-12
CIV ‘A’ 359/11
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OWENI MURIMI

versus

NOTHANDO MCHINA

HIGH COURT OF ZIMBABWE

HLATSHWAYO & MAWADZE JJ

HARARE, 28 June & 5 July 2012

Applicant in person

Respondent in person

MAWADZE J:	This is an appeal against the judgment by the Gweru magistrates court delivered on 28 June 2011.  The magistrates court dismissed appellant’s application for variation (downward) of a maintenance order passed by the Harare magistrates court on 31 June 2010 in which appellant was ordered to pay $US240,00 per month as maintenance for the two minor children in addition to payment of school fees, purchase of school uniforms and casual wear.

The brief facts of the case giving rise to this appeal are as follows:-

On 19 December 2010 the appellant filed an application for variation in terms of s 8(1) of the maintenance Act [Cap 5:09]  	(herein of the Act).  The appellant as per the affidavit filed in terms of s 8(2) of the Act sought a downward variation of the maintenance order on the following grounds;

“(a) air time dealership with TPS lapsed, no more access to credit and title deeds not

available to secure advances, property now in her name which was the main

source of income.

(b) revenue income has plummeted by over 50 % which has resulted in laying off

staff and pay cut on my part.

(c ) high rentals and increase in ops costs on the back of low revenue.  Proposing

$US 80 per month.  All order to remain unchanged.” (sic)

The appellant attached to the affidavit a letter written to the appellant dealing with an issue of an outstanding internet account amounting to $1 715,25.

During the hearing of the matter in the court a quo appellant reiterated that his income has diminished and that he was no longer generating revenue from selling air time and was now only selling stationary. All in all appellant wanted only the monetary component of the maintenance order to be varied from $US 240.00 per month to $US80.00 per month.

The application was opposed by the respondent who in a summary gave the following reasons.

That appellant was misleading the court as he is operating an internet cafe, a heavy duty photo copier and still sells air time.

That appellant has the means to pay $US 240.00 per month as he is able to afford $US50.00 per month as subscription fees for the Bowling Club.

That the $US80.00 per month offered by the appellant is wholly insufficient for the children, more so as one of the children has a heart condition.

The reasons for judgment by the court a quo are very brief and are as follows:-

“Applicant could not prove to the court that his circumstances have changed.  He brought to court a letter of demand and a statement.  There is nothing authentic before the court that indicates he is no longer in business.  Application for variation downwards is hereby dismissed.”

Dissatisfied the appellant filed a notice of appeal with this court on 13 July 2011 and the grounds of appeal are stated as follows:-

“GROUNDS OF APPEAL

The application for variation downwards was due to a change in circumstances

The magistrate erred;

In not founding that the business which appellant used to do with Econet, that of selling air time has gone sour  due to respondent’s sabotage and appellant is now being sued by Econet for the debt in courts of law.  The stationary business which appellant used to have is not thriving due to markets constraints and thefts.

The respondent is gainfully employed, she owns a stationary shop and  a flea market in Zvishavane and upon our separation respondent was given our matrimonial house in Borrowdale and another one in Rusape which she is renting out realising a lot of money which can be of assistance in the upkeep of the minor children.

Wherefore the applicant’s prayer is for;

Variation of the maintenance order downwards be allowed and maintenance of

each minor child be $US50.00 per month.” (sic)

It should be noted that appellant is a self actor hence the grounds of appeal are not drafted in an astute manner and contains a number of grammatical errors. Suffice to state that appellant now in the grounds of appeal is seeking variation of maintenance order from $US 240.00 per month to $US100.00 per month instead of the $US80 per month in the court a quo.

Section 8 (7) (b) of the Act clearly provides that a maintenance order granted in terms of the Act may be varied if it is shown that the means or the circumstances of the parties have altered since the making of the order.  The court a quo made a finding of fact that the circumstances of the appellant have not at all changed as appellant dismally failed to place such evidence before the court a quo.

During the hearing of the appeal both parties advised that they had found each other and wanted this court to grant an order by consent in terms of  agreement reached.  This in essence therefore means this court would not dwell on the merits of the appeal as raised in appellant’s grounds of appeal.  I would however point out that it was the view of this court that the appeal lacked merit.  This however is now besides the point.

In view of the fact that both parties are not legally represented we hand to solicit from the parties the exact terms of the agreement reached as it was beyond the parties to file a consent order.  After submissions by both parties this court was satisfied that indeed the parties have reached an agreement which does not jeopardise the best interests of the minor children.  This is so despite concerns raised by both parties.  Appellant was keen to emphasise the large family responsibilities he carries on his shoulders.  On the other hand respondent clearly made the point that appellant has not been complying with the current maintenance order and that the lower court has, for unknown reasons failed to enforce compliance.  The appellant is advised that as the author of his own misfortunes he should be man enough to look after his large family.  The parties were also advised of the provisions of part 111 of the Act which deals with the enforcement of maintenance orders.  In particular, the drastic provisions of s 23(1) of the Act which criminalises non compliance with any maintenance order and does not provide for an option a fine upon conviction was fully explained to the appellant.

In conclusion, the parties agreed that the monetary component of the maintenance order be varied to $US94.00 per month per child. Appellant agreed to pay the minor children’s school fees, being uniforms and casual clothes twice a year.  The parties were in agreement on the current situation obtaining regarding access rights afforded to appellant.

Accordingly, for the above reasons, the following maintenance order is made by consent.

The appellant is ordered to pay $US 94.00 per month per child for the two minor children until each child attains 18 years or self supporting whichever occurs first.

The appellant is hereby ordered to pay each of the two minor children’s entire school account including fees, levies, uniforms, extra curricula activities in the following manner.

payment of school fees for both minor children should be made before the

commencement of each school term on production to appellant of school fees invoices by the respondent.

the appellant shall purchase the school uniform for both minor children twice a

year at the beginning of the first school term and the second school term in accordance with the list of the uniform requirements issued by the relevant school(s)

the minor children should enrolled at a government school unless both parties

agree otherwise.

appellant’s responsibilities in terms of para 2 herein remain in force until the

each minor children complete their secondary education or attain 18 years which ever occurs first.

The appellant shall purchase casual wear for each of the two minor children twice a year at the beginning and during middle of each year until each of the minor children attain 18 years or self supporting whichever occurs first.

Appellant is awarded reasonable access to both minor children which shall be exercised in consultation with the respondent.

This order may be varied or discharged on application by either party in the magistrates court.

There shall be no order as to costs.

HLATSWAYO J agrees .................................