HIGH COURT OF ZIMBABWE
TSANGA and CHIRAWU-MUGOMBA JJ
HARARE, 4, 12, 15, 18 and 25 June 2020
The appellant in person
The respondent in person
CHIRAWU-MUGOMBA J: This matter was placed before us as an appeal from the decision of the Magistrate court sitting at Harare, varying maintenance for a minor child. Before the application for variation, the order of maintenance in respect of the minor child was $400 per month. The initial order granted was $150 before being varied to $400 In July 2019. The respondent made an application for upward variation from $400 to $2000 in December 2019. In her application, she stated the reasons as being that rentals and groceries had gone up in price and that the child was enrolling at a new school that was expensive. The appellant filed a notice of opposition and an opposing affidavit. In his affidavit he acknowledged that he is the father of the minor child and thus he has a responsibility to maintain her. He stated that he had at the advice of his lawyers set up a family trust in his name and that of his wife. Four immovable properties namely 4 Scott Street, North End Bulawayo, 53 Poort Road Norton, 840 New Adyllin Westgate and 4285 Crowhill Borrowdale were donated to and now owned by the Trust. Further that the Trust had 9 beneficiaries including the minor child. The Trust had commenced eviction proceedings against the respondent from the Norton property which was operating as a lodge. The respondent was evicted in October 2019. He alleged that he was receiving pension in the sum of $487 and that he was also partly being maintained by the Trust due to his advanced age and that he is the founder and donor of the Trust. He averred that he was using his pension proceeds to maintain the minor child. He was opposed to the upward variation sought because it was not justified. He admitted that the respondent is not working though it is because she has not made any effort to look for employment. He suggested that if the respondent is desperate, then he was prepared to take custody of the minor child.
The record of proceedings shows that at the hearing of the 24th of December 2019, the matter was postponed to the 6th of January 2020 to enable the appellant to file his opposing papers. The respondent had also questioned whether or not the Trust was registered. On the 6th of January 2020, the appellant furnished the court with the original deed of registration for the Trust. The court inquired from the appellant whether or not the minor child was a beneficiary in the Trust and whether she was getting anything. The appellant’s response was that she was a beneficiary and the Trust would be paying dividends at the end of the financial year. The Magistrate ordered that the justice of the matter required the joining of the Trust as a respondent in the matter especially in view of the fact that the appellant had donated all his income generating properties to the Trust. The Trust was directed to file a response as the 2nd respondent within seven days. The matter was postponed to the 16th of January 2020. The Trust filed two documents the first one titled ‘maintenance of X’. The salient paragraphs to note from this document are the following:-
That the Trust had resolved at a board meeting held on the 7th of January 2020 as follows:-
- Not to single out (the minor child) from a list of 9 beneficiaries and start maintaining her alone to the disadvantage of other beneficiaries.
- To treat all beneficiaries equally without favour or prejudice
- (This appears in paragraph 4):- At its discretion to support and continue supporting the founder, by providing accommodation, vehicle and its maintenance, clothing, food and other necessary incidentals
- (This appears as paragraph 9):- To recognize the eviction court order granted by the Norton Magistrate Court on the 4th of July 2019 and the ejectment order granted thereafter by the same court to eject (the minor child) and her mother H from no. 53 Poort Road Norton a property of the Trust.
The second document is titled. “Benefits of (the minor child) from the Trust this year. The relevant paragraph is as follows: - No beneficiary was to get benefit from the Trust including the minor child.
The court a quo after hearing submissions and considering all the documents submitted by the parties, granted the order varying maintenance of the minor child from $400 to $2,000 per month as prayed for by the respondent. Irked by the ruling, the appellant noted an appeal against the whole judgment based on the following grounds.
- The learned Magistrate misdirected himself by approving the application of the respondent whose affidavit failed to produce proof of her allegation as required by law. See bottom of maintenance form M.6, as well as Annexures in the schedule of attachments which requires proof of the changed circumstances by bringing documentary evidence to the court hearing the application for upward variation, as required by that form M6 with calculated amount of change to enable the court to determine the level of variation. In the absence of this very critical information required by law it is puzzling to understand how the trying Magistrate agreed with the respondent in raising the maintenance from $400 -$2,000. What criteria was used other than that required by law as stipulated at the bottom of the maintenance form M6.
- The learned magistrate also misdirected himself by applying wrongly corporate veil piercing concept to the Alois and Gertrude Nyandoro Trust when he resolved that the founder and donor was one and the same with the Trust yet annexures in the schedule of attachments were very clear in this issue.
- The learned Magistrate again misdirected himself by failing to note the reason and period respondent lost employment at Ebenezer lodge. Again annexures B and D were very clear in answering this question.
- The learned Magistrate once more misdirected himself by failing to note that a child is a product of a father and mother and any upward variation in maintenance must be shared by both parents equally, unless one parent is mentally or physically incapacitated. A situation not applicable in this case. If $2,000 every month is to be paid by the appellant alone then respondent should be expected to pay another $2,000 to make it $4,000 for a child 6 years old. This is unreasonably too high.
- The learned magistrate again misdirected himself by ignoring oral submission and filed by applicant.
In his prayer, the appellant sought the dismissal of the upward variation from $400 to $2,000. At the hearing, we noted that the appellant who appeared in person made an attempt to make submissions on the nature of forms that the Magistrate relied on and we pointed out to him that this was not the subject of an appeal. He submitted that the court a quo did not look at his means of raising the $2,000 and that the award was not justified. Therefore only two grounds of appeal were addressed. These are;
- Appellant’s ability to pay $2,000 per month maintenance for the minor child
- The quantum of maintenance as varied.
Pressed by the court he admitted that the $400 that he was paying covered food, clothing, fees and school uniforms for the minor child. The respondent had submitted that she sought an upward variation because food prices had gone up. The appellant’s contention however was the margin by which the food prices had gone up based on what he termed ‘controlled price’. He also admitted that the respondent was no longer residing at the lodge and was incurring rentals. Although he had no issues regarding rentals, he took issue with the amount of $500 that the respondent put down as the rentals.
The law on maintenance is well settled. In terms of the Maintenance Act, [Chapter 5:09] a respondent must be legally liable, able and be failing to pay maintenance – see s2 (a) (b) (c).
An inquiry is held on the three aspects to make a determination. Some matters end at the legally liable stage, for instance D.N.A tests may prove that the alleged respondent is not actually the father. On ability, the law expects a parent to do all that they can in order to contribute. On failure to pay, if a respondent proves that they are actually contributing to the maintenance, a court may see no need for an order. No doubt assessing the level of the maintenance poses a headache especially in an inflationary environment. To that end, South Africa has developed a comprehensive financial disclosure form that a respondent completes and signs before a commissioner of oaths- see the consolidated judgment in E v E, R v R and M v M, case numbers 12583/17; 20739/18 and 5954/18 of the High Court of South Africa, Gauteng Local Division. The form is meant to assist the court in making a determination on the means of the respondent. At the level of an application for variation, the nature of the inquiry is different.
It is imperative that we set out the requirements for an application for variation as per the Maintenance Act.
Variation or discharge of direction or order
(1) Subject to this section, an application for the variation or discharge of a direction or an order may be made to a maintenance officer of the maintenance court where the order is for the time being registered in terms of section eighteen.
(2) An application referred to in subsection (1) shall—
(a) be on affidavit; and
(b) state the grounds upon which the variation or discharge is sought.
(3) Subject to subsections (4) and (5), where an application has been made to him in terms of this section, the maintenance officer shall cause a notice to be served on all persons affected by the direction or order, as the case may be, to appear before the maintenance court on a date to be specified in the notice and to show cause why the application should not be granted.
(4) The maintenance officer shall, if he considers that an application made to him in terms of this section is frivolous or vexatious—
(a) decline to cause a notice to be served in terms of subsection (3); and
(b) refer the application to the maintenance court.
(5) If the maintenance court considers that an application referred to it in terms of subsection (4)—
(a) is frivolous or vexatious, it shall summarily and without holding an inquiry in terms of subsection (6) order that the application be dismissed; or
(b) is not frivolous or vexatious, it shall direct the maintenance officer to cause a notice to be served in terms of subsection (3), and subsections (6) to (8) shall thereafter apply and be followed.
(6) On the day specified in the notice referred to in subsection (3) the maintenance court shall inquire into the application or may refer the inquiry to the maintenance court of the province or district where the person in whose favour the order or direction, as the case may be, was made, is residing.
(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 of any of the parties have altered since the making of the direction or order or any variation thereof, it may vary the direction or order subject to subsections (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 subsections (5), (6) and (7) of section six, which shall apply, mutatis mutandis, in relation to any such variation.
(8) An inquiry referred to in subsection (6) shall be held in the presence of the responsible person or in his absence upon proof of the service upon him of the notice referred to in subsection (3).
What is critical in an application for variation is that, ‘the means or circumstances of any of the parties have altered since the making of the direction or order or any variation thereof’. It being an inquiry, the role of the Magistrate becomes critical. Section 13 of the Act sets out the nature of an inquiry.
In Hora v Tafamba 1992(2) ZLR 348(S) at p 350 F-G mcnally ja alluded to the role of a magistrate in such an inquiry in these words: -
“Generally, the duty of a magistrate in a maintenance application, more particularly where the parties are unrepresented, is that of an investigative magistrate. He is not merely an umpire in a dispute between two sides. He is the upper guardian of the most important party, the child. He must therefore seek out the relevant facts. He must ask whatever questions are necessary to enable him to give an adequate judgment. He must aim to give the child reasonable financial support without placing an unfair burden on either parent.”
In casu, the Magistrate as he was entitled to in terms of s13 (c) stopped the proceedings and ordered the joining of the Trust as a party as well as direct that the Trust files a response to the application. He was not a mere spectator. He rightly recognised that the appellant had donated his immovable properties to the Trust and that this was an issue that needed to be considered. The salient points of the submissions by the Trust to the application have been captured above. The submissions on behalf of the Trust reveal that the appellant is what can be termed the alter ego of the Trust. Whilst the appellant seeks to create an impression that he is a father who recognises his legal duty of maintenance towards the minor child, the ‘resolutions’ tell a different story. The Trust sought to create fictitious equality amongst the children of the appellant and yet as admitted by him at the hearing and recognised in the court a quo, all except the minor child in question are majors. Despite appellant’s submission in the court a quo that the Trust would give out dividends at the end of the year, the ‘resolution’ by the Trust that no one was to benefit that particular financial year including the minor child shows the lengths to which the appellant is prepared to go to ensure that the minor child does not get anything. Ironically, the appellant stated that the Trust would consider, “At its discretion to support and continue supporting the founder, by providing accommodation, vehicle and its maintenance, clothing, food and other necessary incidentals”. Whilst the Trustees may have resolved not to pay out any benefits to beneficiaries save towards maintaining the appellant as the founder including his incidentals, the appellant himself acknowledges his legal responsibility to maintain the child. A part of his incidental expenses include supporting the child. This is not the kind of obligation that the Trustees can say that they will not meet. The appellant’s fundamental duty of support as a father has nothing to do with the suspension of payment of dividends for the pleasure of all beneficiaries. The Trustees must ensure that they provide appellant with sufficient support to meet his child caring responsibilities.
For the avoidance of doubt, the appellant is the founder. He alone can decide when and how much to give to himself whilst the minor child wallows in poverty. He admitted that the immovable properties that he owns have been donated to the Trust and operate as lodges. The inescapable conclusion is that the Trust was formed as a way of ensuring that the minor child does not get maintenance. The concurring judgment by gubbay j in Lindsay v Lindsay, 1993 (1) ZLR 195 @203-4 is apt despite it being in relation to a husband who divested himself of assets in order to defeat a claim for maintenance. The learned judge stated, in paragraph H:-
Even if I were constrained to accept the applicant’s self-imposed penury as factually established, which I am not, I would be loath to permit of the prejudice caused to the destitute respondent, whom the appellant would otherwise be obliged to maintain, by such an induced liability. For, certainly the change in the appellant’s circumstances did not arise form something beyond his control. It was deliberately engineered with the predominate objective of avoiding the payment upon death of estate duty.
The learned judge continued,
This principle, then, pertains where difficulties or supposed impossibilities in honouring the obligation to maintain dependants stems from a purposeful undertaking of additional financial commitments, such as a second marriage, or from a decision to reduce income by the taking of early retirement or less onerous and remunerative employment. But it may also encompass a somewhat converse situation- that of a breadwinner who, although not entertaining a positive intention to defeat a potential claim for financial support by a dependant spouse or child, nonetheless irresponsibly closes his eyes to the contingency and voluntarily disposes of all his assets.
The court a quo properly concluded that appellant is the alter ego of the Trust and he cannot escape his legal obligations by hiding behind a Trust. This matter epitomises the length to which the appellant can go to evade meeting his maintenance obligations. Sadly even though the child is the holder of rights, she remains at the mercy of the appellant in ensuring that her rights are realised unless the courts step in. The courts in that regard play a critical role in ensuring that the rights of children are enforced. That is why the best interests of the child concept as acknowledged in the court a quo is paramount as enshrined in the 2013 Constitution s19 (1) (and also s 81 (2). The appellant’s assertion therefore that he does not have the means has no merit.
It is trite that in an application for maintenance, the onus rests on the applicant to show changed circumstances –see Smit v Smit 1994(2) ZLR 149 (S). The Magistrate properly concluded that the circumstances of the respondent and the minor child had changed. In casu, the affidavit by the respondent was very clear that food prices had gone up and that the minor child was enrolling at a new and expensive school. The appellant never challenged these assertions and even admitted at the hearing that the minor child had moved to a more expensive school. The appellant strengthened the respondent’s application for variation by confirming in the document by the Trust on the maintenance for the minor child that the respondent had been evicted from the lodge that she was staying owned by the appellant. The eviction not only affected the respondent but the minor child as well. The eviction meant that the respondent and the minor child would need accommodation. The eviction of the respondent meant that she also lost employment at the lodge a fact that the appellant confirmed in ground 2 of his notice of appeal and in his notice of opposition. The eviction of the respondent disturbed her means of earning a livelihood. Whilst at the time of the application, the respondent was out of formal employment, she was already playing an unquantifiable role of caring for the child on a day to day basis. Such contribution cannot be ignored. The argument that she is contributing nothing is therefore fallacious. The court rightly considered the issue of inflation as having a bearing on the quantum- see Marufu v Moyo 1983 (2) ZLR 386. We see no misdirection on the part of the court a quo in varying the maintenance from $400 to $2000.
- The appeal be and is hereby dismissed
- Each party shall bear its own costs.
TSANGA J AGREES: …….……………………..