Judgment record
Tapiwa Shiri v Valerie Shiri and N Marufu NO
HH 236-21HH 236-212021
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TAPIWA SHIRI
versus
VALERIE SHIRI
and
N MARUFU NO
HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 8 April & 12 May 2021
Unopposed application
Applicant in person
Respondent barred
TSANGA J: This application for review of a magistrate’s maintenance variation
decision on the grounds of bias, was placed before me on the unopposed roll for family
matters. Suffice it to state that the failure to respond to the application for review by the
judicial officer, who was cited as the second respondent herein, was of no consequence. In
the case of Chiremba v Chiroodza and Another 2018(1) ZLR 315 (H), it was stated that a
judicial officer cannot be compelled to defend his decision in an application for review. If, as
held therein, he or she has not filed any affidavit which may be of assistance to the court, he
or she is simply taken to have chosen to abide by the court’s decision in the matter.
However, regarding the first respondent, Valarie Shiri, in whose favour the order for
variation of maintenance for the parties’ children had been granted, her lawyers Mucharaga
Law Chambers, had been served with the application for view on the 5 th of March 2021. They
had purported to file a notice of opposition on her behalf on the 25 th of March 2021. The
notice was therefore 4 days out of time. This formed the basis for the placement of the matter
on the unopposed roll by the applicant.
Whilst appreciating that matters become unopposed because certain rules of the court
that ought to have been observed have not been followed, nothing precludes the appropriate
court from determining an application for review on its merits in order to determine whether
the order sought should be granted. A maintenance review matter fundamentally impacts on
children whose best interests are central. All factors considered must therefore speak to the
interests of the child. Therefore even if a review particularly one involving children is
unopposed, the matter must still be reviewed on its merits against the backdrop of the
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interests of the children as well as in relation to the grievances that will have informed the
subject matter of the application. It is for the court to conclude whether from the record of
proceedings and against the back drop of procedural justice and the interest of the children,
the proceedings should be set aside on the basis of bias of a judicial officer.
The applicant is a self-actor and was thus advised when he appeared in court seeking
a default order that his application for review would be examined on its merits and a
judgment rendered.
THE FACTS
In 2017, the maintenance court awarded the first respondent the then sum in United
States dollars of $90.00 a month for the maintenance of three minor children of the applicant
and the first respondent. It is trite that in 2018 Zimbabwe underwent currency shifts that
resulted in sums which were expressed in United States dollars now having a value in
Zimbabwean dollars. Inflation decimated the Zimbabwean dollar following the conversion.
On the 3rd of September 2020, the first respondent herein, as applicant in the court below,
filed an application seeking to review upward the maintenance amount of what was now
effectively ZW$ 90.00 or more or less just one dollar in United States dollar terms, to Z$30
000.00 (approximately US353.00 at the official rate) for the three children per month. I state
the United States values so as to give a clear perspective of the impact of the monetary shifts
in terms of the amounts the lower court was being asked to review.
Following the requisite inquiry, the court ordered that the amount be varied to
Z$9000.00 with effect from the 31st of December 2020 as payment per month for all three
minor children. Dissatisfied with this rendition, applicant the father of the three children, filed
an application for review on the following grounds:
1. The 2nd respondent exhibited gross bias in favour of the 1 st respondent by granting an
upward review of maintenance without a proper assessment as required by the law, of
the financial abilities of the parties, bearing in mind that both parties had the capacity
to support the minors as they are of means to do so.
2. The 2nd respondent irregularly conducted herself in proceedings in the court a quo.
3. The 2nd respondent failed to apply herself to common sense. (sic)
4. The decision of the 2nd respondent was not based on the evidence before her.
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Besides the first ground that suggests that applicant’s gripe with the magistrate is that
procedures were not followed in assessing the financial abilities of the parties, the other
grounds are simply vague in their statement. How the judicial officer irregularly conducted
herself, or how she failed to apply common sense, or how she did not consider the evidence,
are statements made in blanket terms without reference to the substance of those assertions.
In terms of r 257 of the High Court Rules, 1971, the grounds for review must be clearly and
succinctly stated on the face of the application for review. As explained in Mambo v National
Railways of Zimbabwe 2003 (1) ZLR 347 (H) it is in the statement of the grounds for review
rather than in the founding affidavit that the reasons should emerge.
MAINTENANCE VARIATION
Procedural and substantive expectations
This being an application for review on the grounds of bias and procedural
irregularities, an appreciation of the procedures for maintenance variation is necessary to
grasp. The procedure to be followed is the subject matter of s 8 of the Maintenance Act
[Chapter 5:09]. The application is required to be in affidavit form and to spell out the grounds
upon which the variation is sought. In this instance, the first respondent, as applicant in the
court below, averred that the amount of ZW$ 90.00 was trifling. All three children were
staying at home with her and their living expenses which include food had risen. She
therefore sought the sum of ZW$10 000.00 for each child giving a total of an upward
variation to ZWL 30 000.00 for all.
If a maintenance officer determines that an application is not frivolous, then notices
are sent out to affected parties to attend court on a given date. If a maintenance officer is of
the view that the application is frivolous or vexatious s/he can decline to send out notices for
attendance or s/he can place the matter before the court for determination on that score.
In this instance, the matter was set down for hearing from the onset. Procedurally
thereafter, in terms of s 8 (6), on the specified day of the hearing, the court then enquires into
the matter. In terms of s 8 (7) (b) if the court is satisfied that the means or circumstances of
any of the parties have altered since the making of the maintenance order, it may vary the
order.
The onus is on the applicant who seeks variation to show that circumstances have
indeed altered. It is also trite that the effect of inflation on the costs of living is a ground for
seeking variation and granting of such variation. The income of the party paying maintenance
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must allow room for some increase in spite of the effect of inflation. See Marufu v Marufu
1983 (2) ZLR 386 (SC).
Clearly, the means of the first respondent to look after the children from the existing
maintenance order, given her circumstances as the primary caretaker had altered due to
inflation. With a current order which now amounted to no more than one United States dollar,
she satisfied the requirement to show altered means in supporting the three children on the
basis of the existing order. Suffice it to observe that the most she could buy with that amount
is a loaf of bread.
The court being content that there was a case for variation went on to the next
procedural requirement of satisfying itself that the applicant could afford the varied amount
sought. In this instance, on the day of the hearing the court postponed the matter to allow the
applicant to provide proof of his earnings as indicated in his bank statements. This followed
submissions by the first respondent that the applicant herein earned at the very minimum least
US$500 from leasing out premises as commercial premises and that he has at least five bank
accounts.
In other words, the court held the requisite inquiry and asked applicant for proof of his
earnings in order for the court to arrive at an informed conclusion as to whether he could
afford the variation sought. Granted both parties have a legal duty to maintain their children.
However, it is not mandatory that the magistrate should request for proof of earnings from
both parties all the time. Drawing on the case of Sibanda v Chikumba & Anor HH 809/ 15, it
is important to bear the following in mind:
“The enforcement of the rules of procedure of the court, is subject to strict guidelines which
nevertheless are applied to a certain extent at the discretion of the presiding officer. Judicial
discretion is the power of a court to take some step, grant a remedy, or admit evidence or not
as it thinks fit. Many rules of procedure and evidence are in discretionary form or provide for
some element of discretion.”
Looking at the case before me as a whole, there is nothing here that suggests that the
failure by the magistrate to call in the proof of earnings of the first respondent was motivated
by bias. The test for basis is an objective one from the perspective of the impression created
in the minds of right thinking people. Sibanda v Chikumba above. Furthermore, as stated in
the Supreme Court case of Macintosh v Macintosh 2018(1) ZLR 636, in addition to any
evidence given by the parties, a court must be guided by its own experiences and sense of
what is fair.
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What is particularly noteworthy here is that the final order granted as variation by the
court was ZW$ 9000.00 as a total for all three children bringing the maintenance order in
value to more or less where it was in 2017 when the order was granted. In Crone v Crone
2000 (1) ZLR 367 ( SC) the court also stated that an increase in the cost of living is in itself
“good cause” for an increase in maintenance and also regarded changes in exchange rate as
negativing any argument by the husband that he could not afford the “increase’ in
maintenance. The same can be said herein.
Procedurally, having heard the matter, the magistrate in the lower court gave her
reasons for the sum she granted as the varied amount. She noted that the applicant herein had
converted one of his two houses into commercial premises which meant he was getting more
money for rentals. She noted that the bank statements which the applicant herein produced in
court when ordered to do so, were not a conclusive summary of his financial circumstances.
(He produced the bank statements and a lease agreement showing that he was letting his
premises for US$150.00 a month). As regards his income, she stated that he also runs a
printing business which trades in United States dollars on a cash basis. The court therefore
found that he was a man of means, contrary to his assertions. The magistrate also considered
the factual circumstances of the parties namely that he has no rentals to pay whereas the first
respondent pays rent. She noted that the first respondent is a marketer earning between
ZW$20 000-ZW$30 000.00 a month and that she contributes 50% of the children’s school
fees. She found that the applicant’s income, on the other hand, was over US$500.00. The
magistrate also considered that the first respondent is the one who looks after the children.
The court’s finding was therefore that applicant is in a position to support the variation of
maintenance and hence the award of ZW$ 9000.00 for the three children in total.
As emerges from the record, the lower court reached the conclusion after an
examination of the statements that he was earning more than he had let out. Suffice it to state
that where a court finds that a party’s income in a maintenance matter is not a true reflection
of their actual income, it is free to impute additional income as being available to that party.
This is in order to fulfil its duty of ensuring that the welfare of the child is taken care of
through adequate child support.
Also all contributions must be taken into consideration. The lower court took into
account first respondent’s means and circumstances from the point of view that she is the
custodial and care giving parent. The court was alive to the fact that her contribution to the
children’s welfare is already at a far higher level than that of the applicant even if no
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monetary value is assigned to such work. Unfortunately, child caring is often taken for
granted as a given role for women. The applicant’s own attitude here is that such a role does
not count and that what only counts are financial contributions. Were the courts to disregard
the circumstances of child caring as insignificant, then the courts would simply be
perpetuating unjust stereotypes in the worthlessness of child caring roles.
Putting all procedural requirements under scrutiny, the conclusion is that objectively
there was zero bias by the judicial officer as claimed by the applicant. The application for
review on the basis of bias is absolutely lacking in merit.
Accordingly:
1. The application is dismissed with no order as to costs.
Applicant: Self Actor