Court name
Harare High Court
Case number
HC 4909 of 2012

Chinyamakobvu v Chinyamakobvu (HC 4909 of 2012) [2014] ZWHHC 181 (16 April 2014);

Law report citations
Media neutral citation
[2014] ZWHHC 181
Coram
Mawadze J

HH 181-14

HC 4909/12

SHEILA CHINYAMAKOBVU

versus

EMMANUEL CHINYAMAKOBVU

 

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 29 October 2013 and 17 April 2014

 

 

 

Opposed application

 

 

 

C. Venturas, for the applicant

J. Mambara, for the respondent

 

 

 

            MAWADZE J: This is an opposed application in which the applicant seeks an order for contribution towards costs in terms of Order 35 r 274 (1) of the High Court Rules 1971 in the following terms,

            “IT IS HEREBY ORDERED THAT;

           

1.      The respondent shall contribute the sum of $5 000-00 towards Applicant’s/Defendant’s costs of divorce.

 

2.      The respondent shall pay the costs of this application on an client-attorney scale.”

 

The respondent issued summons out of this court on 3 August 2011 seeking a decree of divorce on the basis of irretrievable breakdown of the marriage, an order in respect of the minor child, an order in respect of sharing of the assets of the parties and that each party pays its own costs.

The parties were married on 5 January 2005 in terms of the Marriage Act [Cap 5:11]. The marriage was blessed with one child born on 5 August 1997. Both parties currently reside in Germany.

The applicant entered an appearance to defend on 4 November 2011, filed her plea and counter claim on the same date. The matter then proceeded in terms the rules. A reading of the pleadings filed by both parties reveal the following;

a)      Both parties agree that the marriage relationship between them has irretrievably broken down and that there are no prospects of the restoration of a normal marriage relationship.

b)      Both parties agree that custody of the minor child be awarded to the applicant.

c)      On 10 February 2012 the applicant withdrew the maintenance claim in respect of herself and the minor child indicating that these matters were being dealt with by the courts in Germany.

d)     There is no dispute over the sharing of movable assets. The parties are agreed that all household goods be awarded to the applicant. They are also agreed that the applicant should be awarded two of the three motor vehicles which are specified in the pleadings.

e)      The only dispute before the parties relates to the sharing of immovable properties being one in Germany and six in Zimbabwe which are;

-          Zwischen den Hullen 45, 53343 Wachtberg, in Germany

-          Stand No 206 Goromonzi

-          Stand No 176 Goromonzi

-          Stand No 6955 Dzivarasekwa, Harare.

-          Stand No 798 Charlotte Brooke, Borrowdale, Harare 

-          Stand No 1338 Bluffhill, Harare and

-          Stand No 6 Manresa Harare.

The respondent proposes that the applicant be awarded only one immovable property Stand No 1338 Bluffhill, Harare and that he be awarded all the remaining properties. The applicant proposed that she be awarded a 50% share of the value of the property in Germany and three other properties in Zimbabwe being Stand 172 Goromonzi, Stand 1338 Bluffhill, Harare and Stand No 6 Manresa Harare with the remainder being awarded to the respondent.

At the time of filing of this application the parties have not been able to resolve this dispute.

It is common cause that the applicant is not employed and that the parties are living on separation in Germany. The respondent is employed by the United Nations agency in Germany.

The applicant in her founding affidavit states that on 6 December 2011 her legal practitioners wrote to the respondent’s legal practitioners seeking contribution towards costs from the respondent. The response dated 3 January 2012 was that respondent was yet to advise his legal practitioners on his attitude on the matter. On 10 February 2012 applicant’s legal practitioners renounced agency but re-assumed agency on 27 February 2012. On 27 February 2012 applicant’s legal practitioners sought respondent’s response to the request for contribution towards costs. The respondent’s legal practitioners indicated that they were still awaiting response from the respondent. No response was formally given and on 9 May 2012 applicant filed this application.

The basis for the application as stated in the founding affidavit is that applicant lacks means to litigate in this divorce matter. Applicant intends to defend the divorce action and to prosecute her counter claim. The applicant believes that she will be unable to exercise this constitutional right if respondent whom she alleges has means is not ordered to contribute towards the costs. In her founding affidavit applicant stated that she receives a monthly stipend of 550 Euros given to her by the respondent for her upkeep. She later admitted in the answering affidavit that it is actually 650 Euros. In addition to that applicant also conceded in her answering affidavit that she receives US$600-00 per month from rentals in Zimbabwe which she says she is currently using to renovate the very premises being rented out. The applicant explained that she is studying in Germany and also pays for their child’s bus fare for school. The respondent hotly disputed that applicant pays the child’s bus fare for school. Instead respondent indicated that he pays 26-90 Euros for the child’s bus fare.

The applicant claims the sum of US$5000-00 as contribution for costs as she estimates the trial on the contested issues to last for 2 days. There is no further justification given for the amount in the founding affidavit. It was only in the heads of argument that it was explained then that the applicant has engaged a very experienced legal practitioner whose tariffs would justify the amount of US$5000-00. The applicant did not explain the respondent’s means in her founding affidavit save to state that he is a man of means.

In his opposing affidavit the respondent averred that applicant was unwilling to compromise in this matter thereby avoiding costs of litigation. He states that applicant was claiming a 50% share of the value of the immovable property in Germany in when she knows respondent is still paying a mortgage for it of 190 000 Euros. The respondent submitted that he offered applicant only one immovable property because it is the only one unencumbered. As regards his means the respondent did not address this pertinent point his affidavit. It was only in argument that it was submitted that the respondent is not a rich man as he earns 7000 Euros per month. No proof of his earnings is provided. Instead the respondent was keen to place before this court as per his opposing affidavit his expenses or obligations which he outlined as follows;

i)        That he is paying a mortgage for the next ten years in the sum of 190 000 Euros for the Germany property.

ii)      That he has other mortgage obligations outlined in para 6.3 of his opposing affidavit.

iii)    That he pays applicant a monthly stipend of 650 Euros.

iv)     That he pays for applicant’s accommodation in Germany and all utility bills which is not part of the monthly stipend of 650 Euros.

v)      That he incurs monthly expenditure outlined in para 6.3 of his founding affidavit (which if my calculations are correct amounts to 4 163-14 Euros per month).

            The respondent argues that applicant has means to pay her legal costs from the monthly stipend and rentals received from Zimbabwe.

THE LAW

            The learned author Hahlo in South Africa Law of Husband and Wife 5th ed pp 424 sets out the requirements for an order for contribution towards costs. I shall proceed to discuss these factors and relate them to the facts of this mater.

a)      There must be a subsisting marriage. In the present case the marriage between the parties is subsisting.

b)      The suit in action must be a matrimonial one. In this matter the action relates to divorce hence a matrimonial one.

c)      The applicant must have reasonable prospects of success. I have already alluded to the nature of the dispute between the parties which relates to sharing of immovable assets. I am satisfied that the applicant has made out a case that it is unlikely for the court to award her one out of the seven immovable properties. The respondent seems to labour under the mistaken belief that in deciding how to share the immovable property the court only considers direct contribution. That perception is wrong. The court is guided by the provision of s 7 (4) (a) – (g) of the Matrimonial Causes Act [Cap 5:13] see also Mundawarara v Mundawarara  HH 51/12 in which I discussed these factors and referred to other cases. I am of the view that the respondent’s position is untenable and that the applicant enjoys prospects of success.

d)     The applicant is not on a financial position to bring or to defend the action without the contribution from the other spouse and

e)      That the other spouse is able to provide the applicant with this contribution. See also Dube (nee Msimanga) v Mavako HC 78/06

            I am of the view that items (d) and (e) above should be considered conjunctively. In other words for an award to be made it should not only be shown that the applicant lacks financial means to bring or defend an action without assistance from a spouse but also that other spouse has financial means to pay for such contribution.

            I have already alluded to applicant’s means. She is unemployed and wholly dependent on the respondent for her needs. Applicant has therefore no independent financial means to survive. All respondent has said is that applicant should use either her monthly stipend of 650 Euros or the rentals of US$600-00 per month or both to pay for her legal costs. I am not persuaded by this argument. The applicant receive this monthly stipend for her day to day needs. The costs of litigation in this matter is an additional expense to her. Applicant also explained that she uses the US$600-00 to renovate and maintain the property being rented out in Zimbabwe. This was not seriously challenged by the respondent. It is therefore clear that applicant is not in a financial position to defend this action and prosecute her counter claim without contribution from the respondent.

            I lastly consider whether respondent is able to provide the applicant the contribution required. While applicant did not clearly explain and justify the figure of US$ 5000-00 claimed, she none the less indicated that she has engaged an experienced legal practitioner and that the trial will take about two days. I find the amount to be reasonable in the circumstances.

            The respondent has not taken the court in his confidence. He was not keen to place before the court his income per month. The respondent was simply eager to state his monthly expenses. This court had to ask for the respondent’s monthly income during submissions from his counsel. The impression I get from the respondent is that he is simply unwilling to provide applicant with any contribution not that he lacks means to do so. From the admissions made the respondent earns a salary of about 7 000 Euros per month. It is therefore well within his means to pay US$5000-00 claimed by the applicant.

            I am satisfied that the applicant has proved on a balance of probability that she is entitled to an order directing the respondent to contribute towards her costs in the amount claimed. Consequently applicant’s claim in this regard should succeed.

            Both parties have not made meaningful submissions in relation to costs. The applicant did not justify why she was seeking costs on an attorney – client scale. One may infer that this is informed by the applicant’s lack of means. The general principle is that a successful party is entitled to his or her costs. See Mutyasira v Gonyora and Anor 2007 (1) ZLR 318 (S) at 324 D. However in cases of this nature the court may be tempted for good reasons for costs to be made costs in the cause of the main action and be reserved for a decision by the trial court. See Barras vBarras 1978 RLR 384, Lindsay vLindsay 1993 (1) ZLR 195 (S). The rationale is that the trial court is better placed to assess whether such an application was well founded or not after having heard evidence in detail on issues in contention between the parties. I am of the view that there are unusual circumstances in this case in that applicant totally lacks means and that her application is well founded. The distribution of the immovable assets is very key to the dispute between the parties. It is for this reason that I will award costs on the scale prayed for.

            In the result I make the following order.

1.      The respondent be and is hereby ordered to contribute the sum of US$5000-00 towards the applicant’s costs for divorce.

2.      The respondent shall pay costs of this application on a client – attorney scale.

 

 

 

 

Munangati and Associates, applicant’s legal practitioners

Messers J Mambara and Partners, respondent’s legal practitioners