Dube (Nee Msimanga) v Mavako-Dube (HB 78 of 2006) [2006] ZWBHC 78 (2 August 2006)

Judgment No. HB 78/06 Case No. HC 317/06 X Ref 127/06 & 2403/05 SIBONGILE DUBE (NEE MSIMANGA) Versus SIKHUMBUZO MAVAKO­DUBE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 8 MAY & 3 AUGUST 2006 K Ncube, for the applicant N M Fuzwayo or the respondent NDOU J: The parties married each other in 1996. Their marriage is wading through quicksand of problems. In fact it has broken down and the divorce is due to be finalised under case number HC 2403/05. Three children were born of the marriage. The children are in the custody of the applicant. She claims maintenance pendente lite in the sum of $35 000 000,00 per month. The respondent has offered to and is indeed paying $15 000 000 per month. This is the first issue for determination in these proceedings. She also seeks an order that the respondent contributes an amount of $350 000 000,00 towards her legal costs. I will now deal with these issues in turn. Quantum of maintenance The respondent does not deny that he has an obligation to pay maintenance. The only issue arising is that of the quantum of maintenance. While applicant has demanded $35 000 000,00 per month, respondent has offered $15 000 000,00 per month, in addition to his accepted obligation to pay the children’s school fees. The court has to make a value judgment, based on the income and assets of the parties. The court will endeavour to make an order such that the children continue to enjoy a standard of living reasonably comparable to the standard of living that they were HB 78/06 accustomed to while the parents still lived together. A variety of factors play a role in calculating the amount of maintenance – Mentz v Simpson 1990(4) SA 455 (A) at 458. These are, inter alia, the needs of the child in view of his age, health, educational needs, the financial circumstances and social status of parents – Scott v Scott 1946 WLD 499; Bardihn v Bardihn 1956(2) PH B32 (A); Barras v Barras 1979 (1) SA 245 (R) and Mutenure v Mutenure HH­309­90. It is trite in such matters, that both parties must, in the interest of the children, disclose, their means to the court fully. This principle is captured well in the instructive judgment delivered by KORSAH JA in case of Lindsay v Lindsay 1993 (1) ZLR 195 (S). The learned Judge of Appeal, at 197(F), said: “I entertain no doubt that the quantum of maintenance, pendente lite, or otherwise, which a court may order a husband to pay to a wife … is at the discretion of the court. In order to ensure the proper exercise of that discretion, the court requires that every party to an application for maintenance shall deal with the court with candour and utmost good faith. Each party must disclose to the court every material fact, whether for or against him or her, which will enable the court to make a fair and just assessment.” See also Taneka v Taneka 1993(2) ZLR 9(H) at 12A­B. Further, in Ansell v Ansell 1980 ZLR 416 (GD) at 418A­D, DUMBUTSHENA J (as he then was) observed; “I hold the view that were parties are applying for maintenance for themselves or for the children of the marriage and contribution to costs or opposing the same, they should at least produce documentary evidence of their incomes. Such documentary evidence can be in the form of salary slips or commission payments and/or any other payments made to the parties. To be of assistance to the court, payslips for the last three consecutive months would be most helpful. The mere assertion that a party is in receipt of X dollars per month is, in my opinion, not enough. There is always the temptation to reduce one’s actual income in order to qualify for a bigger award or to pay less to the applicant, just as there is a tendency to exaggerate estimates of expenditure in order to gain more or pay less maintenance. Parties should be encouraged to prove their income by the production of documentary evidence in order that the courts may be better able to determine as early as is humanly possible an award or a contribution which falls reasonably within the income bracket of the respondent.” HB 78/06 On the one hand the respondent has attached his payslip to the opposing affidavit. While the applicant has disputed the genuineness of the payslip and gone so far as to allege forgery (which she says she once participated in to deceive a banking institution) the applicant has not stated how much, to her knowledge, the respondent earns every month, if it is not the $30 000 000,00 that the respondent alleges. It has been alleged that the respondent has “hidden or elusive resources,” without any substantiation of what these hidden or elusive resources are. Unfortunately this court cannot make a decision based on such allegations of “elusive resources”, which get mentioned only in answering affidavits. On the other hand, the respondent has alleged that the applicant does earn some income from her gown making business. The applicant has not disputed that she is, indeed, engaged in that kind business. She has not denied that she does earn from that business, and often in foreign currency. The applicant has, however, failed to disclose to the court fully what her income is on average, whether per month or per annum. What is clear to me from the papers, is that the applicant is not living in indigent circumstances and on charity of others. The onus was on the applicant to lay before the court in full and in detail, her own means, and, since she disputed those of the respondent as laid down by him. She did not. In the circumstances, this court has to go by the respondent’s more definitive statement of his means. The respondent has laid before this court proof of his earning and, in Annexure “C” to his founding affidavit, has broken down the needs of the children as he perceives them, for the next few months. Regarding the life style that the children have been accustomed to the HB 78/06 applicant has made the allegation that the children “go overseas for holidays.” The picture that emerges from this allegation is one of an unbelievably affluent lifestyle, where the children fly overseas every holiday. With respect, from the papers before me, this picture is too bright. This is so especially in view of the respondent’s explanations of the circumstances surrounding the children’s two visits to the United Kingdom. The respondent has explained that the children went to the United Kingdom at the invitation of other parties, who gave them tickets and met their expenses while in the United Kingdom. The applicant did not refute the respondent’s allegations in her answering affidavit. This court will not be unduly influenced by the said visits to the United Kingdom. The same applies to the statement that the “respondent is a businessman” and averments that follow soon after. This statement is casually flung into the applicant’s heads of argument notwithstanding the respondent’s explanation that he does not own the business at all, but that the business is a family, from which other parties expect to benefit as well. This court has to keep in mind the true picture, rather than the extravagant one painted by the applicant. The applicant has not denied that the respondent is not the sole owner of the business. The true picture is that the respondent runs a family business, from which he draws a monthly salary, and the fact that twice, the children have been to the United Kingdom to visit with family, and the respondent did not bear the full costs of their travel and related costs. On this issue I find in favour of the respondent. In the circumstances, and in view of the lack of detail in the applicant’s papers of her income, the only order this court can make would be for $15 000 000,00 for the three minor children per month. It is important to bear in mind that the order sought now will only be obtaining until a final order is made, after a full enquiry, at the time that the divorce is granted. (In this case the trial has already been set down for the next term). In view of this fact, and the fact that the respondent shall continue to buy the children HB 78/06 clothing, and to pay school fees, the order would be a fair one. Contribution towards applicant’s costs Now I come to the somewhat thorny issue of the respondent’s contribution to the costs of the applicant to enable her to prosecute the pending divorce proceedings. In Treger v Treger GS 1­77, SMITH J had this to say at page 7: “The court must look at the means of both parties and try to determine what is reasonable and just.” ­ see also Landry v Landry, 1970(1) RLR 134 at 137D­ H; Davis v Davis, 1939 WLD 108 and Butterworth v Butterworth 1943 WLD 127 at 130. According to the learned author, H R Hahlo, The South African Law of Husband and Wife (5th edition) at 424, the claim for a contribution towards costs in a matrimonial suit is sui generis. It has its origin in Roman­Dutch procedure, and has been sanctioned through many decades of practice – Chamani v Chamani 1979(4) SA 804 (W) and Van Rippen v Van Rippen 1949(4) SA 634(C). Its basis is the duty of support spouses owe each other, its purpose is to enable a spouse who would otherwise not be able to do so, to place his or her case adequately before the court – Botes v Botes 1969(3) SA 169(R). The requirements for such an order are: a) b) c) d) there must be a subsisting marriage; the suit in question is a matrimonial one; the applicant has a reasonable prospects of success; the applicant is not in a financial position to bring or to defend the action, as the case may be; and e) the other spouse is able to provide the applicant with this contribution. HB 78/06 My understanding of the respondent’s papers is that the opposition is based mainly on (d) but also to a lesser extent (e). In short his case is that the applicant is capable of earning enough and she does not merit a contribution towards her costs. Further, he states that he cannot afford the quantum claimed by the applicant of $350 000 000,00. It is trite that no contribution order will be granted if the wife is well able to afford the costs of the action herself, either because she has a substantial separate estate or because she has an income, savings or other assets which are under her control – H R Hahlo, supra at 425, Engelbrech v Engelbrech 1944 NPD 186 and Greyling v Greyling 1959(3) SA 967 (W). In this case the onus is on the applicant to show that she does not have the necessary means while her husband is able to make a contribution – Barras v Barras, supra. The applicant has, by design, decided not to disclose what her means are. She had admitted that she makes wedding gowns for sale. She has admitted that some of the gowns are for sale overseas. The applicant, surely must be able, even with the failure of access to the overseas market, to sell her products locally. She has decided not to disclose to the court how much she makes from her business, contenting herself with stating only that her income is not regular. Further, the applicant has not shown where the respondent would get the sum of $350 000 000,00 from. The applicant has failed to show the bona fides of her claim by declining to disclose how much she earns. Such applications should be bona fide – Smith v Smith 1963(3) SA 84 (SR); Bernstein v Bernstein 1946 CPD 325 and Jones v Jones 1974(1) SA 212 (R) at 214D­H. On the probabilities the applicant has not shown that she does not have the necessary means to raise money for the costs of her divorce proceedings. She has, therefore, failed to discharge the above­mentioned onus on a balance of probabilities. Her claim for a contribution towards her costs therefore fails – Ansell v Ansell, supra. The order of the court will therefore be as follows: HB 78/06 1. The applicant is awarded maintenance pendete lite in the sum of $15 000 000 per month for the three children. 2. The respondent shall, pendete lite, continue to pay school fees for the children, buy uniforms and meet all the educational expenses relating to the children at the private schools. There will be no order of contribution towards the applicant’s costs. Costs shall be costs in the cause. 3. 4. Job Sibanda & Associates, applicant’s legal practitioners Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners