Marvel Mtisi v Murombo Josiah Mimana

### Preamble
1
HH 612-25
HCH 2030/25
HCH 2030/25
---------




MARVEL MTISI

versus

MUROMBO JOSIAH MIMANA

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE, 14 July & 9 October 2025

Opposed Matter Contribution to Costs

Ncube, for the applicant

Chivhenga, for the respondent

MAXWELL J:   Applicant and Respondent were married under an unregistered Customary Law Union in December 2001. The marriage was blessed with eight children. Applicant instituted proceedings for a declaration that the unregistered customary marriage has ended and also ancillary relief. She stated in her declaration that Respondent abandoned the family home in March 2024 and that since then, he had been paying USD 20 000, 00 towards the upkeep of the family every month until February 2025. She alleged that the he inexplicably stopped paying the monthly family maintenance. She tabulated her monthly expenses totaling $21 936,00.

Applicant stated that she is not employed. Despite owning a 50% share in the family business, she has been excluded from their running and is getting nothing from them. She further stated that from the business Respondent is able to meet the $21 936, 00 family monthly expenses and assist in her legal costs as the businesses are viable. She pointed out that the business has lucrative Jet A1 fuel supply contracts at the company’s major airports and the mine has been operating viably for a long time. She prayed that Respondent be ordered to pay 80% contribution towards her legal fees duly taxed in the matter under case number HCHF 1566/25.

In opposing the application Respondent disputed personally paying $20 000,00 per month to the applicant. He indicated that the amount was paid by a legal entity for the upkeep of the family. He averred that applicant has not been able to account for the use of the money. He submitted that the payments were stopped after Applicant engaged in activities that disrupted the smooth running of the company.

Respondent asserted that the stoppage of payment by the company did not cause any suffering to the family as he has been personally paying for the upkeep, air fares and school fees for all the children. Respondent disputed that Applicant is a shareholder in the companies and indicated that she is not entitled to any payment of dividends. Respondent commented on each annexure attached by the Applicant and disputed the expenses therein.

In answer Applicant disputed that the monthly payment included money for future savings. She stated that the company and the Respondent were inseparable as it was his alter ego. She challenged the Respondent to produce a board resolution authorizing the payment of the $20 000 per month. Applicant stated that in HCH 1259/25 Respondent had acknowledged her as a director and shareholder under oath. Applicant stated that when Respondent was still living in the matrimonial home the family had nine domestic servants who have been reduced to seven. Further that the domestic employees are employed to look after the ten bedroom mansion on over one acre of land.

Mr Ncube submitted for the Applicant that the dispute between the parties is complex and the application for contribution to legal costs should not have been opposed at all. On the issue of maintenance, he submitted that taking into account the costs that were objected to, the total amount should be $20 196, 00. He further stated the need for the maintenance was proven, and there is no reason for the court not granting the order sought.

Mr Chivhenge submitted that the Applicant had not pleaded a key aspect in the contribution towards legal costs, which are the prospects of success in the lawsuit. He further submitted that Respondent’s capacity to meet the costs has been severely diminished by the acts of the Applicant when she instituted several legal proceedings. On the maintenance, Mr Chivhenge submitted that Applicant came up with fictitious figures with a view to reach the amount of $20 000,00. He pointed out that Respondent is paying school fees for both minor and major children. Further that some amounts included in the $20 000, 00 are for non-recurring expenses.

ANALYSIS

Point in limine Respondent submitted that the founding affidavit is defective in that the name of the commissioner of Oaths is not indicated. The affidavit was commissioned by the person who signed and put a stamp with the words “Officer in Charge, Zimbabwe Republic Police, Borrowdale.” Respondent argued that the stamp is a movable object that can be misused by an unauthorized person. Respondent did not go further and say the stamp was abused in this case and a person who was not the Officer in Charge signed the affidavit. It is trite that he who makes a positive assertion bears the onus of proving the facts so asserted. See Nyahondo v Hokonya 1997(2) ZLR 457. The office of the Officer in Charge of a police station is always occupied by one person at any given time. In Firstel Cellular (Pvt) Ltd v Netone Celular (Pvt) Ltd 2015 (1) ZLR 94 it is stated that

“What is required is that any stamp that is used to designate a Commissioner of oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner.”

In terms of the Ex- Officio Commissioners of Oaths: Designation Notice, 1983, SI 648 of 1983, a police officer of the rank of chief Inspector is designated a Commissioner of oaths for the district in which the police station is situated. On the affidavit that is being challenged, the Officer in Charge Administration, Zimbabwe Republic Police Borrowdale signed as the Comissioner of oaths. The stamp shows that he is in the Harare Suburban District. There is no allegation that he signed outside his area of jurisdiction.

Respondent has failed to discharge the onus on him to show that the founding affidavit falls short of what is required. I therefore find no merit in the preliminary point and dismiss it. It was a desperate attempt by the Respondent to avoid going into the merits of the matter. The point in limine having failed, I will proceed to consider the merits of the matter.

b)Merits

Rule 67 (1) and (2) of the High Court Rules 2021 provides as follows;

“67 (1) when a spouse is without means to prosecute or defend an action for divorce, judicial separation or nullity of marriage, the court may, on application, order the other spouse to contribute to his or her costs, and where necessary to his or her maintenance pending litigation such sums as it seems reasonable and just

(2) such an application must be supported by an affidavit stating shortly the grounds of the action or defence and that the Applicant has insufficient means with which to prosecute or defend the action, as the case may be, and insufficient means to support himself or herself pending litigation, and whatever information is available respecting the spouse’s financial position.”

The requirements for contribution of legal costs set out by the learned author Hahlo in South African  Law of Husband and Wife 5th ed p 424 are

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

The suit in action must be a matrimonial one. In this matter the action relates to the termination of an unregistered customary marriage and the sharing of the property acquired during the subsistence of the union. It is therefore a matrimonial one.

The applicant must have reasonable prospects of success. The sharing of property in this case will be very involving. Applicant listed 44 tankers, taut liners, tipper, pool cars and a water bowser as part of the property to be shared. In addition there are also two companies one of which is into mining. Applicant also listed commercial stands as part of the matrimonial estate. It is reasonable for applicant to seek legal representation so that she gets a fair deal.

The applicant is not in a financial position to bring or defend the action without contribution from the spouse.

The other spouse is able to provide the Applicant with this contribution.

Considering (d) and (e) together, it is common cause that Applicant has been dependent on the $20, 000 00 per month she was getting. Respondent said it was the company paying her whilst Applicant says the company is Respondent’s alter ego. The bottom line is that Applicant does not have any source of income except the contribution she was getting. She is not employed. Respondent has not disputed that he is unilaterally running and controlling the company and that the $20 000, 00 was being paid on his behalf. In the same vein, he is in a position to contribute to the Applicant’s legal costs whether personally or through the company.

Considering that the court will exercise its discretion in determining what is fair and equitable in the distribution of property based on the facts of the case, the request for contribution to legal costs cannot be said to be without merit.

On the maintenance Respondent argued that some of the expenses included are non recurrent. It will therefore be unfair to order monthly payment of expenses that are not recurrent. Applicant conceded that the claim for pocket money was not proper. The amount will therefore have to be deducted from the total to be contributed. Respondent challenged the claim for private transport for the minor children to and from school. He pointed out that there is also a claim for fuel so Applicant should claim either the fuel or money for private transport. Applicant did not respond to the specific averment that she should personally transport the children to and from school or employ a driver. For that reason the claim for private transport will not be allowed. The following expenses are not allowed on the basis that they are not monthly expenses;

Service of Mercedes Benz AFG 3558 $ 924

Service of Mercedes Benz  AFX0149  $101

Tyres                                                     $ 124

IT Gadgets 			          $ 1 945

Car Insurance Benz AFG 3558              $ 220

Car Insurance  Benz       AFXO 149            $176

Medical Expenses                                 $300

Uniform Clothing 		          $ 500

Total 				          $4 290.

On the tutoring costs, there is no need for the money to first go into the Applicant’s hands. Agreements should be made for the Respondent to pay the tutors directly. I will therefore not allow the cost of tutoring to be part of the maintenance amount. The following are therefore not allowed.

Physics tutoring 			$520

Chemistry & biology tutoring            $320

Mathematics Tutoring                        $350

Extra Tutoring      			$150

Extra mathematics tutoring                 $280

Total 					$1 620

The total disallowed expenses are therefore

Non recurrent 				$4 290

Tutoring 				$1 620

Private transport                                  $2 800

Pocket money 				$1 500

Total					$ 10 210

The total amount initially claimed was $21 936. From that amount what remains after removing the disallowed claims is $11 726. Respondent has the obligation to meet the nonrecurring expenses as and when they arise. Though some of the recurrent expenses were challenged, Applicant gets the benefit of the doubt especially considering that the payment is pending the finalization of the divorce matter.

Disposition

The application for maintenance pendente lite and contribution towards costs be and is hereby granted.

The Respondent shall pay maintenance to the Applicant in the sum of $11 726,00 per month with effect from February 2025 pending the finalization of the matter under case number HCHF 1566/25

The Respondent shall contribute 80% of the Applicant’s legal costs to be determined at the conclusion of the matter under case number HCHF 1566/25 and to be taxed accordingly.

Respondent shall pay costs of suit

MAXWELL J………………………………………………

Thompsons Legal Practitioners, applicant’s legal practitioners

Kachere Legal Practitioners, respondent’s legal practitioners