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        HB 85-15

                                                                                                                                        HC 3154-13

   X REF HC 1935-14; 196-14; 52-14

ELPHAS MAVUNE MAPHISA

versus

PATIENCE MOYO

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 2 & 23 APRIL 2015

Court application for review

L. Sibanda for applicant

Respondent in person

            KAMOCHA J:          On 17 April, 2013 the applicant was ordered to pay maintenance in the sum of $450 per month for his minor child until the child attained the age of majority or became self supporting whichever occurred first.

            He was only able to pay for the months of April 2013 and May 2013.  He thereby paid a total sum of nine hundred dollars ($900) and stopped paying all together.  He did not pay for the months of June, July, August, September and October 2013 incurring total arrears in the sum of two thousand two hundred and fifty dollars ($2 250,00).

            He applied for the discharge of the maintenance order in terms of section 8 of the Maintenance Act, [Chapter 5:09].  Subsection 7 of section 8 of the Act provides thus:-

“(7)      If the maintenance court holding an inquiry in terms of subsection (6) is satisfied that –

(a)there are no longer any reasons for the direction or order remaining in force, it may discharge the direction or order; or

(b)the means or circumstances if any have altered since the making of the direction or order or any variation thereof, it may vary the direction or order subject to subsection (3), (4), (5), (6) and (7) of section six which shall apply mutatis mutandis, in relation to any such variation; or

(c)the manner in which payments are to be made under the order or direction should be altered, it may vary the order or direction appropriately, subject to subsection (5), (6) and (7) of section six, which shall apply mutatis mutandis, in relation to any such variation.”

The trial court held that the reasons for the directive or order to remain in force still existed since the minor child was still there and had not attained the age of majority nor self supporting.  The trial court was correct in making that finding.

            The applicant contended that he was now over 60 years and was unable to get a new job at that age.  The trial court felt that he was just hiding behind his age.  He is now 63 years old but continues to sire children without stop.  He has 7 children from different mothers.

            The child who is the subject of this application is only 4 years old now and yet the applicant wanted the order or directive against him to maintain her discharged.  The trial court found as a fact that he was not truthful about his financial means.  This finding was based on the fact that applicant competed with other applicants to run Pata Pata Bar and worn the tender.  The tender was registered in his name.  He, however, told the court the funds came from a Mr A. Phuti who in fact was the one running Pata Pata Bar not him.  The applicant was the one who submitted the quarterly reports required by the local authority.

            The applicant said he did all this for no remuneration.  The trial court cannot be faulted for holding that he was not being candid with it and was untruthful as regards his financial means.  The applicant is a qualified accountant.  He could not have been doing all these things for Phuti without deriving a benefit there from.

            The trial court in the result varied the order or directive to two hundred and twenty-five dollars ($225,00) per month with effect from the month of November 2013.  He only made a payment of $100,00 for the month of December 2013 leaving a balance of $125 for that month.  He has not done anything ever since for a period of 15 months and has filed this application seeking for an order in the following terms:-

            “It is hereby ordered that:

(1)The ruling granted under case number M 76/13 be and is hereby set aside.

(2)The applicant be and is hereby discharged from paying any maintenance for the minor child.

(3)The costs of this application be paid by respondent.”

His arrear maintenance for the 15 months stands at US$3 375 plus the $125,00 for the month of December 2013 the figure jumps to US$3 500,00.

            While the magistrate was entirely correct in holding that the applicant was not candid with the court and was in fact untruthful about his financial means his financial gain from Pata Pata remained unknown.  There is no evidence whatsoever to establish his financial benefit from the running of the Pata Pata Bar.

            All we have is that he won the tender to run Pata Pata bar but his friend A. Phuti transferred money into Ingwebu Breweries account to meet the financial requirements for the application applicant made in his personal capacity.  There was evidence to the effect that he sometimes submitted quarterly returns but Pata Pata Bar was being run by Mr A. Phuti.

            Mr A. Phuti should have been called to testify to shade some light on whether or not applicant enjoyed some financial benefit from Pata Pata Bar and to what extent, if any.

            The court fell into error by guessing that applicant could afford to pay maintenance in the sum of $225 per mensem when there was no proof of his source of income and that he has the financial means to meet his obligations.

            The applicant took the witness stand and gave evidence.  He explained his predicament in some detail.  He said he lost his job as an accountant with South African Airways in mid 2010 and has been unemployed ever since.  He did not get any benefits from his employment.  One can only assume that he may have been discharged from employment for some act of misconduct and lost all his benefits.  He had worked there for a period of 12 years, so he said.

            He told the court that he had two other minor children with two different women who live in South Africa.   When his financial situation got worse he applied for and was granted bursaries for the two children by the South African government.  The respective mothers of the children are taking care of the other needs of their children.

            He said he had not been sitting around doing nothing but had applied to Air Zimbabwe, ETIHAD and Quatar Airways without success.

            He is now trying to get tenants for his house in Bulawayo.  It is a big house which took him 10 years to build and could fetch good money if he found suitable tenants for it.  It has a good cottage into which he could move in while tenants occupied the main house.  He said some students from the University of Science and Technology were keen to rent the property.  Some families also expressed interest to rent the cottage.  The applicant said he was hopeful that either the main house or the cottage will soon be occupied.

            He, as usual, was not prepared to tell the court how much he expected to receive as rentals.  He then offered to pay fifty dollars ($50,00) per month as maintenance for the child.

            The respondent put it to him that he was again not being truthful with the court.  She described the house as a mansion which could fetch a lot of money if rented out.  She told the court that even the cottage alone would fetch no less than two hundred and fifty dollars ($250,00).  He reluctantly accepted that.

            She was correct, a big house in suburbs like Khumalo, Hillside, Selborne Park and Suburbs would fetch a lot of money per month in rentals.  She put it to him that he could afford to pay more than fifty dollars per month for the maintenance of the child.  She said he could afford expensive legal representation while she was a self actor.

            His reply was all the legal fees were being paid by some of his children who are working abroad and they were in fact the ones who were taking care of his financial needs.  So he can channel what he gets from rentals towards the maintenance of the minor child.

            The mother of the child who is a business woman running a small shop is taking care of the child’s needs without the applicant’s assistance.  She proposed that the applicant pays at least one hundred dollars ($100,00) towards the maintenance of his child.  That in my view is a reasonable figure in the circumstances.

Costs

            This is a proper case where the applicant should bear the costs of suit.  He was not candid with the court from the onset.  He was untruthful about his financial means.  He in fact was not prepared to tell the trial court his financial benefit from Pata Pata Bar resulting in the trial court making an arbitrary maintenance award which is the subject of this case.  This type of conduct by a litigant cannot be countenanced by this court and must be visited with costs against such litigants.

            In the result, the order of this court is as follows:

            It is ordered that:-

1. The maintenance order by the trial court under case number M 76/13 be and is hereby set aside;
2. The applicant be and is hereby ordered to pay maintenance for the minor child at the rate of one hundred dollars ($100,00) per month with effect from 30 April 2015 until the child attains the age of majority or becomes self supporting whichever occurs first.
3. Applicant shall bear the costs of suit.

Webb, Low & Barry applicant’s legal practitioners