Sinikiwe Mparutsa v Alvin Nyaradzai Mparutsa

### Preamble
HH 498-18
HC 7036/17
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SINIKIWE MPARUTSA

versus

ALVIN NYARADZAI MPARUTSA

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 16 May 2018 and 23 August 2018

Opposed Application

W. Mandinde, for the applicant

P. Chiutsi, for the respondent

MUREMBA J: This is an application for maintenance pendente lite and contribution to costs made in terms of order 35 r 274 (1) of the High Court Rules, 1971. The provision reads:

“274. Divorce or judicial separation: application for contribution towards costs and maintenance pendente lite

(1) When a spouse is without means to prosecute or defend an 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 pendente lite, such sums as it deems reasonable and just.”

The applicant who instituted divorce proceedings against the defendant on 5 January 2016 which proceedings are still pending filed the present application contending that she wants the respondent to be ordered to pay to her spousal maintenance in the sum of US$1 630.00 per month pending finalisation of the divorce proceedings together with contribution to costs for divorce in the sum of US $8 000.00. She averred in her founding affidavit that before she instituted the divorce proceedings the respondent had moved out of the matrimonial home in 2013 to stay with another woman with whom he has a child in Mutare. At that time she was gainfully employed as a Director of Classic Super Foods (Pvt) Ltd a company she and the defendant had started together as a family business. She successfully ran it and it grew to a medium sized business from 2013 to 2016 without the help of the respondent. She averred that when she instituted the divorce proceedings, the respondent did not take it too well, he elbowed her out of the business relying on the fact that she did not have a share certificate to show that she owns 50% shares of the company. She averred that he did this despite the existence of a resolution that both parties signed in 2015 which shows that each of them owns 50% shares.

The applicant averred that she has not been employed since March 2016 when the respondent held an Annual General Meeting and removed her from the directorship of the company. She however continued to get her allowance of US$2 500-00 per month until the allowance just stopped in September 2016. Ever since that time the respondent has completely refused to support her financially despite her writing him emails requesting for money. She further averred that the respondent has instituted various criminal cases against her in the Magistrates Court accusing her of stealing from the company thereby tarnishing her image. The respondent has ensured that articles are published in the newspapers about the trial proceedings thereof thereby making her unemployable. She attached newspaper articles to this effect. The applicant averred that this is what has necessitated her to make the present application.

The applicant further averred that in May 2017 she approached the Magistrates Court, sitting at Harare and applied for maintenance pendente lite and maintenance for their 3 children, but her application for maintenance pendente lite was dismissed whilst the application for the children’s maintenance was granted. She attached the court order. She averred that no reasons were given for the dismissal of her application for maintenance pendente lite.

The applicant averred in her founding affidavit that the divorce proceedings are getting protracted because the trial which should have commenced on 17 July 2017 was postponed sine die at the behest of the respondent pending determination of the appeal which is in the Supreme Court which appeal relates to the shareholding of the afore-mentioned company. She averred that the duration and cost of the divorce proceedings is not an issue for the respondent but for her because she is unemployed and has no means to pay her legal practitioner’s fees. She averred that the trial has been postponed on numerous occasions at the instance of the respondent who wants to avert the divorce proceedings from being finalised. She contended that the postponement of the trial necessitated her to file the present application for contribution towards costs by the respondent.

The applicant averred that the respondent has the capacity to pay her legal practitioner’s costs in order for her to continue to prosecute the divorce matter. She contended that the respondent who is currently a director of Classic Super Foods (Pvt) Ltd gets a salary of US$2500/month in addition to having his expenses such as fuel, medical aid and groceries being paid for by the company. She further averred that she has reasonable prospects of success in the divorce matter.

The applicant contended that the $8000 she is claiming is based on the hourly charge or rate of her legal practitioner who has 16 years of experience. She averred that she was informed by her legal practitioners that her legal fees currently amount to US$4 500-00. She contended that this amount will be higher especially if the matter proceeds to trial which trial she estimated will take 3 days hence her total claim for $8 000.00.

In opposing the claim for maintenance pendente lite the respondent averred that the matter was determined and dismissed in the Magistrates Court on 31 May 2017 and was therefore res judicata. He contended that it was improper for the applicant to reinstitute the claim afresh in this court on 31 July 2017 just a month after its dismissal in the Magistrates Court. In respect to the claim for contribution to costs, the respondent averred that the applicant was lawfully removed from the directorship of the company. She filed an application in this court claiming to be a shareholder, but she lost the case and then filed an application for condonation for the late filing of appeal in the Supreme Court. The application is still pending. The respondent averred that he made an application for the divorce matter to be postponed pending the determination of the shareholder matter in the Supreme Court. He averred that he further applied that the divorce matter be postponed pending the finalisation of the numerous criminal cases against the applicant in the Magistrates Court. He averred that the applicant has deliberately stalled the criminal cases and her Supreme Court appeal and as such she is to blame for the postponements in the divorce matter. He averred that the applicant did not oppose his applications for postponement of the divorce matter. The respondent averred that he has instituted criminal and civil proceedings involving amounts in excess of two million United States dollars that the applicant defrauded from his company. He gave case numbers thereof. There are 2 criminal matters and 4 civil cases. The respondent contended that the applicant runs her own milling company and as such is capable of paying her own legal costs. He averred that it is shocking that after such massive fraud, the applicant has the nerve to institute such an action against him.

In her answering affidavit the applicant averred that she is appealing against the decision of this court in the shareholding dispute because the reasons for the dismissal of her claim was that she had used the application procedure instead of the action procedure and as such her matter was not decided on the merits. She averred that she is also challenging her removal from directorship in the Labour office under case No. 839/17. She disputed that she is now running her own milling company. She averred that she is unable to pay her legal costs that have accumulated due to the multiple ongoing cases she has with the respondent who keeps on opening new cases against her at every turn. She disputed stalling proceedings in the Supreme Court and attached a copy of the receipt that showed that she had just paid for the sheriff’s costs in the matter. She also denied stalling the criminal proceedings. She averred that the respondent is instituting legal proceedings just to persecute her for instituting divorce proceedings against him. She averred that she could not steal from a company that she single handedly built.

At the hearing of the matter Mr Chiutsi for the respondent raised two points in limine. The first one was that the claim for maintenance pendente lite was now res judicata since the same matter was dismissed in the Magistrates Court in case No. MC 5817/16. He argued that the applicant cannot bring the same matter before this court as a fresh application just a month after its dismissal in the Magistrates Court. He averred that she ought to have appealed against the dismissal of her application by the Magistrates court. It was a valid point because the matter had already been decided in the Magistrates Court. Mr. Mandinde made a concession that the matter was res judicata and went on to indicate that the applicant was abandoning the claim. With that, only the application for contribution to divorce costs remained for determination.

The second point in limine that Mr. Chiutsi raised was that there was non-compliance with rule 274 (2) of the High Court Rules, 1971 which says;

“(2) Such an application must be supported by an affidavit stating shortly the grounds of the 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 pendente lite, and whatever information is available respecting the spouse’s financial position.”

Mr Chiutsi argued that the rule requires the founding affidavit to traverse the grounds that found the divorce action. He submitted that the applicant’s affidavit does not meet this requirement because the grounds for divorce which are particularized in paragraphs 6 of the declaration in the divorce matter do not allege infidelity which however is a ground alleged in the founding affidavit of the present application. He argued that the applicant cannot make her motion on the grounds that do not form part of her pleadings in the divorce action.

This point in limine is without merit because as was correctly submitted by Mr Mandinde, the applicant’s founding affidavit sets out the grounds for divorce. In para 4 the applicant averred that the respondent moved out of the matrimonial home in 2013 and went to Mutare to stay with another woman with whom he has a child. Further, she averred that the respondent was not financially supporting her for a number of years. In para 6 she averred infidelity by the respondent and averred that various forms of abuse were inflicted on her by him. She alluded to these grounds for divorce in para 6 of her declaration in the divorce summons. She averred that the respondent was abusive and behaved unreasonably towards her; he was an absentee father to his family at most instances; has consistently failed to treat the plaintiff with love and affection that is expected of a husband and that the respondent was secretive and irresponsible with his finances. He has failed to assist and provide for the family. The fact that the applicant did not explicitly put infidelity as one of the grounds does not render the application as lacking compliance with r 274 (2). In the result, I dismiss the point in limine.

Turning to the merits, the claim for contribution to costs is based upon the duty of support that spouses owe to each other. The contribution towards costs is essentially for making funds available to the applicant in order to enable him or her to place his or her case before the court adequately. The idea is to protect both parties’ rights to equality before the law and equal protection of the law that are enshrined in the Constitution. The quantum of what is sufficient for such purposes is a discretionary matter for the court, guided by the general circumstances of the case, the financial position of the parties and the particular issues involved in the pending litigation. See Cary v Cary 1999 (3) SA 615 (C) The contribution is not contemplated to be complete cover but must enable him or her to present his or her case adequately. See Foote v Foote 1984 (2) ZLR 28 (HC) at p 35. The stage reached in the divorce action is also important. A spouse seeking contribution towards costs is not entitled to payment in full of the costs she avers will be incurred in presenting his or her case to the court nor all costs incurred to date – see Micklem v Micklem 1988 (3) SA 259 (C) at 262. Claims must be genuine and substantiated in order for the court to make a proper assessment of what the other party ought to contribute.

In Dube v Dube HB 78/06 at p 5 the requirements for an order for contribution to costs are set out as follows:-

“i)  There must be a subsisting marriage;

ii)   The suit in question is a matrimonial one;

iii)  The applicant has reasonable prospects of success;

iv)  The applicant is not in a financial position to bring or to defend the action as the case may

be; 	and

v)  The other spouse is able to provide the applicant with this contribution.”

In casu the marriage is still subsisting, the suit in issue is a matrimonial one and the applicant has reasonable prospects of success in the divorce matter. She gave a detailed explanation explaining why she says she is not in a financial position to prosecute the divorce proceedings she instituted against the respondent. It is not in dispute that the applicant used to run Classic Super Foods (Pvt) Ltd as a director and used to earn a salary from that. It is also a fact that she was then removed from directorship thereof at the instance of the respondent after she had instituted the divorce proceedings that are currently pending. That even after her removal from directorship in March 2016, she continued to get her monthly allowance of US$2 500.00 until September 2016 when the allowance was just stopped is also not disputed. As it is the applicant has instituted legal proceedings in order to be declared a 50% shareholder in the company. She lost the case in this court but she is pursuing an appeal in the Supreme Court. She is also challenging her removal from directorship.

The respondent did not dispute that he is able to contribute to the applicant’s legal costs. The only reasons he advanced for objecting to contribute were that the applicant defrauded his company of money in excess of two million dollars and that she is well able to pay her legal fees as she now runs a milling company of her own. Other than making just a bold averment to this effect; the respondent did not furnish any proof that the applicant is indeed running a milling company. He furnished no documents of this company nor did he furnish the name of the milling company. This court is unable to take the respondent’s word without any tangible proof or confirmation by the applicant. She disputed that she runs a milling company and challenged the respondent to prove it. That the applicant defrauded the respondent’s company of money in excess of two million is simply an allegation which has neither been proven in a court of law nor admitted to by the applicant. The allegations cannot therefore be a reason for not granting the applicant’s request for a contribution to costs by the respondent.

However, as was correctly argued by Mr Chiutsi the applicant’s founding affidavit provides neither the proof of her legal bill so far which she said  stood at $4 500-00 nor proof of the estimated total cost of litigation to finality which she said will be $8 000.00. She just threw bold figures without any fee note to confirm the costs that have been charged so far or an invoice to show the costs she is likely to incur in future until litigation is finalised. These are documents which should have come from her lawyers to support the figures. I am in agreement with Mr Chiutsi that the party who wants a contribution to costs must first show that there are costs which she must pay. The applicant ought to have furnished proof of the $4500.00 which she said she had already incurred by the time she filed this application. In any case it is not even clear why she is claiming $4500.00 an amount she says is for the legal services which were rendered to her prior to the matter being set down for trial on 17 July 2017. I say this because the applicant’s averment is that what prompted her to make the present application was that after the matter had been set down for trial on 17 July 2017 the respondent applied for a postponement of the matter sine die.  She stated that that is when she realised that the proceedings would be protracted and that she would need some contribution to her legal costs from the respondent.  What it means is that before 17 July 2017 she had been able to pay her legal fees. She therefore did not lay the basis for claiming contribution to the costs she incurred before the matter was set down for trial.

If it is true that the applicant’s need for assistance only arose after the trial had been postponed, her claim should therefore start from the time the trial was postponed up to the finalisation of the matter. However, even then, it is impossible to make an assessment of what the respondent should contribute because as I have already stated above no proof of the amount being claimed was furnished. No evidence was placed before the court in order to show the kind of services that will be rendered to her and the costs thereof until the matter is finalised. There is not even a supporting affidavit by her legal practitioner explaining all this. An applicant seeking a contribution towards costs must set out the anticipated reasonable legal expenses with sufficient detail to enable the court to properly assess what is reasonably required in order to do justice between the parties. Moreover, the applicant did not show that she is not in a financial position to prosecute her matter to finality. I say this because she did not explain how the postponement of the trial on 17 July 2017 suddenly disabled her from being able to finance her own legal costs when all along she had been able to do so despite the fact that her allowance had ceased way back in September 2016. The applicant did not disclose how she had been able to finance her legal costs from September 2016 to 17 July 2017 when the matter was supposed to proceed to trial.  She did not give details of what happened to the money she was going to use to pay for her legal costs had the trial been conducted on 17 July 2017. The postponement of the matter only delayed its finalisation, but it is not clear how it affected the finances she had saved for trial on 17 July 2017.  She did not address this issue in her papers. This weighs against the applicant. An applicant who approaches the court for a contribution to costs must provide the court with full details of all the material circumstances relating to his or her financial position as well as the costs he or she is claiming. A figure cannot just be plucked from the air without anything to back it. How then does the court make an assessment of what the other party ought to contribute? Whilst the quantum of what is sufficient is a discretionary matter for the court, the discretion should be exercised judiciously taking into account all material circumstances of the matter. Besides, the applicant in the present matter averred that the total amount that she needs to prosecute her divorce matter to finality is $8000.00. However, she forgets that what she is seeking is a contribution to costs and not all her costs for litigation. She is entitled to a contribution only. This means that she should meet the other portion of her costs. For a person who had been able to foot her legal expenses for close to a year after she had stopped receiving her allowance from the company, she needed to state how much she was able to contribute on her part. She did not do that. The applicant failed to make out a case for this court to be able to assess the quantum of contribution the respondent ought to be ordered to pay.

I am not inclined to award costs against the applicant considering the circumstances of the case.

In the result the application is dismissed with no order as to costs.

Mafume Law Chambers, applicant’s legal practitioners

Puwayi Chiutsi Legal Practitioners, respondent’s legal practitioners