Raphael Matinyarare v Tendai Matinyarare

### Preamble
1
HH 570-25
HCHF 1363/25
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RAPHAEL MATINYARARE

versus

TENDAI MATINYARARE

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE,14 July and 26 September 2025

Opposed Matter

C Sakupwanya, for the applicant

T D Dzvore, for the respondent

MAXWELL J:   Applicant and respondent were previously married in terms of the Marriages Act [Chapter 5:17].  A decree of divorce and ancillary relief was granted in HCH 328/13.  Respondent was granted spousal maintenance of USD 300.00 per month until she remarries or dies whichever comes first.  In 2019 respondent applied for variation and applicant was ordered to pay RTGs 10 000.00.  In 2023 the order was varied back to USD 300.00 per month.  Applicant applied for downward variation of the maintenance amount but was not successful.  Applicant subsequently approached the court in terms of s 9 of the Matrimonial Causes Act [Chapter  5:13] seeking rescission or suspension of the maintenance order.  In the alternative, applicant seeks the variation of the maintenance order.

Section 9 of the Matrimonial Causes Act [Chapter 5:13] is couched in the following terms.

“9. Variation, etc, of orders.

Without prejudice to the Maintenance Act [Chapter 5:09], an appropriate court may, on good cause shown, vary, suspend or rescind on order made in terms of section seven, and subsections (2), (3) and (4) of that section shall apply, mutatis mutandis, in respect of any such variation, suspension or rescission.”

The question to be answered therefore is whether “good cause” has been shown to warrant variation of the maintenance order.

Applicant stated in his founding affidavit that he needed to prove the change in circumstances of the person being ordered to maintain and the ability of the person being maintained.  He further stated that he has since remarried and sired minor children therefore he has to cater for his new family.  In addition, he indicated that he was responsible for the welfare of his old aged father and that his salary has not improved since the divorce order was granted.  If anything, it has reduced to almost half of what he was earning.  To add to that, he has a loan that he is servicing.

Applicant pointed out that respondent is a middle aged woman who is gainfully employed as a labour officer. She has no children and does not suffer from any disability or medical condition.  He prayed that the order be suspended or varied.

In response, respondent submitted that applicant has not shown any good cause why the maintenance order should be rescinded, suspended or varied.  She submitted that the so-called changed circumstances have always been in existence even at the time the order was granted.  Further, that applicant did no disclose his current earnings as he attached a payslip of more than 12 months ago.  Respondent also stated that her personal circumstances had not changed from the date the order was given.

The Nature of the Application

In para 11 of the Founding Affidavit applicant stated as follows:

“This is an application for rescission and suspension of a spousal maintenance order granted by this Honourable court under HC 328/13.”

Firstly, applicant is seeking the rescission of the order.  It is trite that in terms of r 29(1)(a) of SI 202 of 2021, the court may rescind an order granted in the absence of the party seeking its rescission.  The factors to be considered in such an application are set out in a plethora of cases.  These include reason for the default, prospects of success and the balance of convenience.  See Songore v Olivine Industries 1988(2) ZLR 210.  The divorce order attached as Annexure A confirms that it was granted in default of the defendant, the applicant herein.  A perusal of the application leads one to the conclusion that even though applicant stated that this is an application for rescission of a spousal maintenance order he is not pursuing rescission.  In his Founding Affidavit and heads of argument he did not address any of the factors that the court should consider in granting rescission.  Even in the Draft Order, it is clear that rescission was not a prayer to the court.  The Draft order has a prayer for the suspension of the order with the alternative of a downward variation.

Secondly, applicant is seeking the suspension of the spousal maintenance order.  Suspension is a temporary stoppage.  This is usually done pending a certain condition or a specific period.  From applicant’s Founding Affidavit he is not seeking a temporary suspension.  He stated in para 13(iii) of the Founding Affidavit.

“… I can no longer carry the burden of maintaining the respondent.”

And also in para 13(iv)

“… it is clear therefore that I am no longer able to maintain the respondent.”

In his needs of argument, he stated under Factual Background.

“Since the time the order for divorce and maintenance was granted, applicant’s circumstances have changed to the extent that he is no longer able to pay for the respondent’s maintenance as it is unduly burdening him financially.”

He concluded para 9 of the heads of argument by a statement which clearly shows his desire.  He stated.

“The court should thus lean in favour of the applicant in discharging the applicant’s obligation to pay spousal maintenance for the respondent.”

It is my view that had the applicant intended to seek the discharge or cancellation of the maintenance order he ought to have presented a case for such a relief.  In the Founding Affidavit he did not state that he is seeking the discharge of the obligation to pay spousal maintenance.  It is trite that an application stands or falls on the Founding Affidavit.  See Fuyana v Moyo SC 54/06.

The submission by the respondent that the application is vague and bad in law is therefore justified.  The application is vague for want of clarity and precission.  Applicant stated that he is seeking rescission and suspension yet in the heads of argument he talks of being discharged from the obligation to pay maintenance.  The application therefore fails on that basis.

Whether variation is warranted

It is trite that a party seeking variation of a maintenance order must show good cause and change of circumstances warranting such intervention.  See Anstee v Anstee HH 691/15.

In coming up with a decision, the court must look at the financial standing of both parties.  In Henning v Henning HH 27/2003 what amounts to good cause and the factors to be considered in determination thereof are laid out.  In order to grant variation of a maintenance order, there must have been a change in the conditions that existed when the order was made.

Applicant stated in the Founding Affidavit that:

when the order was granted he did not have another family that he was taking care of therefore he could afford.  He has since remarried and sired three minor children.

he is responsible for fees, basic educational needs of the children, bills and welfare of the family including his old aged father.

the salary he earned has not improved since the divorce order and his earnings have reduced to almost half.

he has a loan that he is currently servicing.

respondent is a middle aged woman who is gainfully employed as a labour officer with no children to take care of.  Further, she does not suffer from any medical condition and is not disabled.

The applicant stated the law relating to post-divorce spousal maintenance as well as variation of maintenance correctly.  He however, did not substantiate the issue of changed circumstances sufficiently.  The fact that he has since remarried was challenged by the respondent who stated in her heads of argument that the applicant had already remarried when the court order was granted.  She submitted that applicant only regularized his marital status in 2015.  These averments by the respondent were not challenged.  Applicant submitted that when the order was granted he could afford and that the salary he is now earning has been reduced to almost half of what he was earning at the time the order was granted.  These are factual submissions which need to be backed by evidence.  Nothing was placed before the court to prove how much the applicant was earning at the time the order was granted.  Nothing was placed before the court to show the applicant’s current earnings.  There was no explanation of how his current earnings relate to his expenses.

In Whiteley v Whiteley 1959(2) SA 148 O’ Hagan J stated on p 149.

“Broadly speaking the exercise of the court’s discretionary power will be dictated by considerations of fairness and justice in the light of the claims of both parties.  It must, however, be emphasized that it is for the party who seeks a variation to satisfy the court that sound reason for an alteration of the status quo exists.”

Further, of p 150 the learned Judge stated

“An applicant who approaches the court for the variation of a maintenance order must provide the court with full details of all material circumstances relating to his financial position, and where an applicant fails in this respect, particularly where there is a suspicion that he has endeavoured to mislead the court, it seems to me that the court can have regard to such circumstances in considering whether a good cause for a variation has been made out.”

Applicant was content to just allege a reduction in earnings without giving specific figures.  The thrust of his argument seems to be because the respondent is employed, she is not entitled to maintenance.  In my view that argument is misplaced in an application for variation of a maintenance order.  Applicant did not demonstrate that the respondent’s circumstances have changed warranting the court’s interference with the existing order.  That she is middle aged, gainfully employed has no children to take care of and does not suffer from any medical condition have not been shown to be factors that came to be after the order from maintenance was granted.

Moreover, without applicant being candid on his current earnings and expenses, one cannot tell whether he no longer has the capacity to pay the amount ordered.  An increase in responsibility does not necessarily translate to a loss of capacity.  I appreciate that  applicant’s expenses increased with the birth of children and the responsibilities that came because of that.  In the Whiteley case (supra), the court considered that the first born child was born shortly after the granting of the final order of divorce which was an indication that the applicant must have remarried very shortly after the granting of the final order of divorce.  The court further took into account that despite the remarriage, applicant had been able to maintain his second wife and the child while at the same time, adhering to his obligation in terms of the court order.  In this case the application was made 12 years after the first child was born, 9 years after the second child was born and 5 years after the third child was born.  Nothing has been placed before the court to prove a lack of capacity to meet the added responsibilities as well as the maintenance order.  The same applies to the fact that applicant takes care of his aged father and also the existence of a loan obligation. Applicant has not been candid enough to disclose his total income.

In the draft order, applicant prays in the alternative that the maintenance amount be varied to $100.  There is no indication of how he arrived at that figure.  It was just thumb sucked.  Whilst there might have been a case for the reduction of the amount applicant is obligated to pay as post-divorce spousal maintenance, he has not been candid with the court and has not provided enough details to enable the court to exercise its discretion in his favour.  He has not discharged the onus upon him to demonstrate that there is a basis for the court to vary the maintenance amount.  In Jacobs v Jacobs 1955(1) SA 235 the court opined that the one thing the applicant therein had not shown the court was his inability to pay.  The same is true of the applicant herein.

Consequently, the application falls.  I make the following order.

The application be and is hereby dismissed with costs.

Maxwell J:…………………..

Mudzonga Law Chambers, applicant’s legal practitioners

Mushonga, Mutsvairo and Associates, respondent’s legal practitioners