T L B V M G S

### Preamble
1
HH 524-25
HC 3343/24
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T L B

versus

M G S

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE; 5 September 2025

(Opposed Matter: Reasons for judgment)

R Mambwe, for Applicant
K Phulu, for Respondent

TSANGA J:   It is trite that to hold a person in contempt there must an extant court order, which was served on the respondent and of which he is aware, and, lastly which he has failed to comply with. The applicant herein sought an order for contempt of a maintenance order against her former husband, which I dismissed with costs based on the following critical averments among others in the relevant paragraphs of her sworn affidavit:

“10. At the time that we signed the Consent Paper we agreed on a maintenance figure of USD$300.00 (Three Hundred United States dollars) per month per child. This amount soon became unsustainable as the children got older. In 2017, I applied for an upward variation of the maintenance order in terms of section 7 of the Maintenance Act based on the change in the children’s needs and the respondent’s means to cater for the variation. The Maintenance Court found that the Respondent has the means to cater for the variation and ordered the Respondent to pay maintenance for the three minor children in the sum of USD$600 per month. I attach a copy of the ruling issued by the Maintenance Court hereto as Annexure “C”.

11. I made a further application to the Maintenance Court in September 2024 for an upward variation of maintenance based on the change in the children’s needs. The Court agreed that the children’s needs have changed, and the respondent has the means to cater for the change in circumstances. The Court ordered the respondent to pay me maintenance in the sum of USD$2000 (Two Thousand United States dollars) for our three children with effect from the 31st of October 2024.1 attach a copy of the court order issued by the Maintenance Court hereto as Annexure “D”.

12. The Respondent failed to comply with clause 2.4.1 of the Consent Paper marked as Annexure “A” hereto and the variation order marked as Annexure “D” in that he failed to pay maintenance for his three minor children for eighteen (18) months, from May 2023 to October 2024. The total amount owing to me for maintenance is USD$10,800.00 (Ten Thousand Eight Hundred United States dollars) for the eighteen (18) months prior to the 31st of October 2024. I have had to borrow these funds from my new husband to maintain my children.”

The respondent maintained he was not in contempt of the alleged 2017 order. What was evident from the respondents opposing affidavit and submissions was that there had been variations to the maintenance orders. The order relevant to the time in question was the variation granted in October 2019, which required the respondent to pay $2000.00 a month and 50% of the fees. This variation was granted at the peak of Zimbabwe’s currency changes from the United Dollars to local RTGs currency. Hence, the $2000.00 per child was in Zimbabwean currency. The applicant was fully aware of this in  light of the relevant statutory instruments that were put in place that year. It was this 2019 order that was still extant and which was only varied in October 2024. The 2019 order is the one applicable to the time averred to by the applicant in her founding affidavit and yet she had made no mention of it in her averments.

Mr Phulu for the respondent therefore correctly highlighted as indeed had also been done in the opposing affidavit that the order applicable for the time that his client was said to be in contempt was granted in 2019 in RTGs and that it had been complied with. Also highlighted was that the respondent could not have been in breach of the current maintenance order under the period claimed as this was only granted at the end of October 2024. He was therefore not in contempt of any order that required him to pay US$2000.00 under the relevant period highlighted in the founding affidavit.

Applicant had also claimed for medical aid. The respondent’s position supported by documentation was that he was only supposed to pay for shortfalls as opposed to paying wholly for medical aid. The respondent explained the context under which he had placed the children on his medical aid as a hunter who would sometimes take his sons on these expeditions. There had therefore been no breach when he could no longer afford to continue with this additional arrangement since the primary arrangement was that they would be on their mother’s medical aid.

Similarly on extra school costs that were being claimed by the applicant, he also highlighted that these were not fixed costs but he had paid as included in proofs of payment. Mr Phulu sought costs on a higher scale on the basis that costs of coming to court for a contempt application could have been avoided. Materially, in March 2025, I had specifically asked that the parties meet and reconcile all the payments so as to indeed make sure that payments had been complied with. Therefore, at the time that the hearing resumed on 22 July 2025, the applicant was fully aware of the practical details upon which the application was not sustainable.

Each case for contempt must be treated on its own merits. This court did not agree that costs should be on a higher scale but was indeed fully satisfied that the respondent had been put to unnecessary expense in defending this contempt of court application particularly as the parties had been advised to reconcile the claims to ensure which payments had been made. I was satisfied that the respondent had in fact fully furnished the necessary information relating to his compliance with the order. Against that backdrop where this was a matter for contempt, it was distinguishable from a maintenance application for which no costs would have been necessary. This was a challenged application for contempt where the applicant failed to prove on a balance of probabilities that the order had not been complied with. Costs had to follow the cause.

It was for the above reasons that I dismissed the application with costs.

Tsanga:…………………………………………..

Dhaka Lightfoot and Stone, Applicant’s Legal Practitioners
NLC Nyakutombwa Legal Counsel, Respondent’s Legal Practitioners