Emely Phiri (nee Mzungu) v Michael Phiri

### Preamble
1
HCMSF 230-24
HMA 07-25
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EMELY PHIRI (nee MZUNGU)

versus

MICHAEL PHIRI

HIGH COURT OF ZIMBABWE

CHAREWA J

MASVINGO, 17 February & 3 April 2025

Applicant, in person

Mr C Ndlovu, for respondent

CHAREWA J: The general rule in matrimonial matters is that each party pays their own legal costs unless the loser has behaved unreasonably, in which case the court may order costs against them. However, where a party is unable to afford legal representation in circumstances where they have reasonable prospects of success and the other party can afford it, a party may seek a court order against the other party to pay costs pendent lite.

This is such an application by the applicant seeking an order against respondent as follows:

The Respondent be and is ordered to pay US$6 000-00 (Six Thousand United

States Dollars) to the Applicant’s Legal Practitioners of choice as a contribution towards the Applicant’s legal costs in case number HCMSC82/24; and

The Respondent shall pay the costs of suit.

Respondent opposes the application on the basis that applicant can afford to fund her own legal costs to which he does not have capacity to contribute. In any event, he is now offering a 50-50 sharing of their matrimonial property to avoid unnecessary and protracted litigation. Accordingly, it is not necessary for applicant to pay for legal representation.

Factual Background

The parties have been married to each other since 10 December 1988 and have acquired substantial properties during the subsistence of their marriage. They are elderly pensioners over 61 years old. Their only child is already grown up and fending for himself. Their marriage has become fraught with challenges leading applicant to file, in HCMSC82/24, for divorce, spousal maintenance and sharing of property on 7 February 2024. The respondent entered an appearance to defend on the 26th of February 2024. On the 28th of May 2024 the applicant amended her declaration and on the 1st of July 2024 the respondent then filed his plea on the amended summons. It appears from the papers filed of record that there was a proposed consent paper which was however never signed by either of the parties. On the 16th of July 2024, the applicant herein filed an application for legal costs pendente lite under case number HCMSF159/24 which the respondent opposed. The applicant however withdrew the application. On the 25th of September 2024, the applicant then filed this present application. Respondent is legally represented. Applicant has no legal representation, alleging that she is unable to pay for such service, leaving her at a disadvantage in negotiating the unravelling of their marital relationship, particularly with respect to spousal maintenance and proprietary rights.  She therefore claims for an order for respondent to contribute to her legal costs in the amount of USD6 000. I heard the matter on 17th February 2025 and reserved judgement.

Parties submissions

Applicant intends to prosecute her claim for divorce and sharing of marital property and spousal maintenance. However, she 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. The applicant explained that she is unable to pay for legal services as her businesses are not doing well. She also explained that she could not get any assistance from legal aid organisations as she was turned down after disclosing that she and her husband own a house and 2 other businesses. She further explained that she cannot access funds from the family business as respondent has control over them. The applicant claims the sum of US$5250-00 as contribution for costs as she estimates the trial on the contested issues to last for 3-4 days. In justifying the amount, the applicant submits that she needs US$150 per hour for the 3-4 days of trial. She explained that the trial will go on for 6 hours a day which translates to 18 to 24 hours in total for the trial. She also submitted that she needs US$800 for disbursements. In total, the applicant prays for US$6000 which, she avers, will cover the round table meeting, pre-trial-conference as well as the trial itself.

In explaining the respondent’s means, the applicant avers that the respondent is capable of ‘contributing to her legal fees because he has access and control of funds from their family businesses. Applicant submits that during the subsistence of the parties’ marriage they acquired a family home and two other immovable properties, movable properties including several motor vehicles, a microfinance company and a company that makes and supplies school uniforms as well as established a school. She submits that both parties made direct contributions to all these properties from their salaries and pensions as well as their labour. However, the microfinance company folded and respondent has not made any contribution to the school which is mired in debt and struggling such that she receives no salary from managing it. But because respondent controls all the other assets, particularly the lucrative uniform company he can afford legal representation from the income thereof, while she cannot because the only asset under her control is the school which is still under construction. Further her financial incapacity was compounded by respondent withholding her salary in both the uniform and microfinance companies as she could not make any savings from such unpaid salary. Therefore, respondent should be ordered to contribute towards her legal costs so that she can negotiate, in the dissolution of their marriage, on an equal footing. She attaches several annexures showing her input into the family “empire” and her current financial status.

She avers that respondent can well afford to contribute to her legal costs from the income of the uniform company.

In his opposing affidavit the respondent averred in limine that the applicant was abusing court processes as she had made a similar under case number HCMSF159/24 and she withdrew the application. The respondent avers that the applicant did not even advise the court about this application hence it amounts to a material non-disclosure.

On the merits, the respondent submits that upon being served with summons, he engaged the applicant and it appeared the divorce was going to proceed uncontested but the applicant suddenly changed her position forcing the respondent to enter an appearance to defend. The respondent further avers that the onus to prove that the applicant lacks means and the respondent has the means lies with the applicant. The respondent further submits that the applicant is not entitled to the relief she seeks because:

They are both pensioners and aged 61 years old.

The applicant is a managing director at a college/ school and she is in full control of the funds of the school, she can use them to get a legal practitioner.

The applicant has failed to prove that the respondent has the means.

The applicant has other income generating projects like poultry she engages in to earn more income.

The main matter is already close to being finalised and the respondent is offering the applicant 50% share of the assets but applicant is the one who wants more than that.

The law

The position of the law is codified in r67 of the High Court Rules 2021 (S.I.202/2021) which provides as follows:

“Matrimonial Causes Divorce or judicial separation, application for contribution towards costs and maintenance pending litigation

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, ………… pending litigation, such sums as it deems 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, ……... pending litigation, and whatever information is available respecting the spouse’s financial position.

(3) At the hearing of the application the court may hear oral evidence if it considers it necessary and may dismiss the application or make such order as it thinks fit to ensure a just and expeditious resolution of the matrimonial matter.

(4) The court may, on the same procedure, vary its order made under this sub rule in the event of a material change taking place in the circumstances of either party or the contribution towards costs proving inadequate. “

Honourable Mr Justice Ndou set out the law as prescribed in r67 regarding contribution to legal costs very succinctly in the case of Dube (Nee Msimanga) v Mavako-Dube HB 78/06 as follows:

“Now I come to the somewhat thorny issue of the respondent’s contribution to the costs of the applicant to enable her to prosecute the pending divorce proceedings. In Treger v Treger GS 1-77, SMITH J had this to say at page 7:

‘The court must look at the means of both parties and try to determine what is reasonable and just.’ - see also Landry v Landry, 1970(1) RLR 134 at 137D-H; Davis v Davis, 1939 WLD 108 and Butterworth v Butterworth 1943 WLD 127 at 130.

According to the learned author, H R Hahlo, The South African Law of Husband and Wife (5th edition) at 424, the claim for a contribution towards costs in a matrimonial suit is sui generis. It has its origin in Roman-Dutch procedure, and has been sanctioned through many decades of practice – Chamani v Chamani 1979(4) SA 804 (W) and Van Rippen v Van Rippen 1949(4) SA 634(C). Its basis is the duty of support spouses owe each other, its purpose is to enable a spouse who would otherwise not be able to do so, to place his or her case adequately before the court – Botes v Botes 1969(3) SA 169(R). The requirements for such an order are:

a)     there must be a subsisting marriage;

b)     the suit in question is a matrimonial one;

c)     the applicant has a reasonable prospect of success;

d)     the applicant is not in a financial position to bring or to defend the action,

as the case may be; and

e)     the other spouse is able to provide the applicant with this contribution.

My understanding of the respondent’s papers is that the opposition is based mainly on (d) but also to a lesser extent (e). In short, his case is that the applicant is capable of earning enough and she does not merit a contribution towards her costs. Further, he states that he cannot afford the quantum claimed by the applicant of US$6000.  It is trite that no contribution order will be granted if the wife is well able to afford the costs of the action herself, either because she has a substantial separate estate or because she has an income, savings or other assets which are under her control – H R Hahlo, supra at 425, Engelbrech v Engelbrech 1944 NPD 186 and Greyling v Greyling 1959(3) SA 967 (W).  In this case the onus is on the applicant to show that she does not have the necessary means while her husband is able to make a contribution – Barras v Barras, supra.

Such applications should be bona fide – Smith v Smith 1963(3) SA 84 (SR); Bernstein v Bernstein 1946 CPD 325 and Jones v Jones 1974(1) SA 212 (R) at 214D-H.”

This legal position was followed in Chinyamakobvu V Chinyamakobvu  and confirmed by the Supreme Court in Alban Gerard Bowers Vs Shariffa Precious Bowers. Finally, the law also states that, in an application of this nature it is important that an applicant is completely honest with the court about their financial standing and what they know of their spouse’s financial standing. It is not wise to play the court for a fool. In Malango v Malango the court had this to say about an applicant:

“The need for each party to deal with candour and utmost good faith in disclosing their income and assets is one of the pillars upon which the court can properly exercise its discretion.

It is difficult for this court to believe that for all the years the applicant has worked she has neither income in bank nor any other assets that she has accumulated which might be at her disposal to assist in taking care of her to compliment the respondent’s sole efforts in taking virtually everything to do with the welfare of the family pending divorce.

What one sees through the applicant’s founding affidavit is her bitterness about the divorce and the blame game placed squarely on the door steps of the respondent as the proximate cause for the parties impending divorce. One sees very little in terms of the disclosure of the applicant’s own financial situation except a determined effort to want to manage the respondent’s deliberately exaggerated finances.”

Analysis

It is evident that the parties are agreed on the property acquired during the subsistence of their marriage. The only issue is how it should be shared.  Both parties having been fully employed and bringing in income for the acquisition of their property, and both of them having participated in the founding and management of their family businesses, there is little dispute that the starting point for sharing their property ought to be a 50-50 ratio, subject to any evidence to the contrary. Yet, surprisingly the parties are hell bent on arguing about this to the extent of wanting to go to full trial, thus necessitating this application.

In limine

I make short shrift with regard to applicant’s withdrawal of a previous application for costs pendente lite. It is not unlawful to withdraw a matter and file a fresh one as long as one does so before set down, or has reasonable justification for it.

On the merits

What I note is that, in relating the facts of this case to the law, it is common cause that there is a subsisting marriage, leading to a matrimonial dispute regarding sharing of property and spousal maintenance. Further, in relation to that marital dispute, applicant, in her declaration, proposed a sharing which was close to 50-50. Respondent, in response, proposed a consent paper, with a suggested ratio which gave him the lion’s share of the income generating businesses of the marriage and exclusive ownership of the more valuable immovable properties.

Further, in his plea, respondent puts forward a third scenario by only offering 50% of the matrimonial home and the flat in Harare. To be able to analyse these propositions and legal implications thereof, applicant definitely requires legal assistance. Consequently, I am of the view that applicant was justified in the circumstances in refusing such a sharing and thinking that perhaps if she was represented, she would also have a better understanding and perhaps a stronger negotiating position, hence this application. This is more so when consideration is had to the provisions of s 7 of the Matrimonial Causes Act [Chapter 5:13] which guides the court in deciding on division of matrimonial property. In particular, s 7(4) lays out the considerations that the courts must consider in the exercise of its discretion as to how property is to be distributed upon divorce. These include factors such as the income earning capacity of the spouses; financial needs, obligations and responsibilities; standard of living, age, physical and mental condition of each spouse; direct and indirect contributions, value of pensions and gratuities; and the duration of the marriage.

The concrete offer by the respondent as contained in the draft consent paper does not meet the standard set by s7(4). Nor does the offer in his plea. Now had respondent concretised his offer of a 50% sharing ratio for all the property as appears to be his new stance during the hearing, applicant would not have had a glimmer of a chance to succeed in this application. As it stands, such offer could merely be an assertion to win brownie points with this court, which offer could easily be sidestepped as feared by applicant. In my view therefore, given the multiplicity of propositions floating between the parties, applicant’s case meets the requirement of prospects of success.

Ultimately, in my view, the first three requirements are satisfied. What comes out clearly in the submissions and arguments is that the last two requirements are fiercely disputed, that is

d)     whether or not the applicant is not in a financial position to bring the action,

and

e)     whether or not the respondent is able to provide the applicant with this

contribution.

To arrive at a determination of these two requirements, the court must assess the financial resources of both parties. I am in agreement with the position of the court in Chinyamakobvu V Chinyamakobvu (supra), that these two requirements must be considered conjunctively as one feeds or leads into the other. The findings of such assessment will accordingly guide the court in order to arrive at what is a reasonable and just contribution, if any has to be made.

Applicant submits that she currently has no income and has to survive on loans and handouts apart from her pension. Her school is not yet making profit as it is still under construction. The money she is earning from the school fees paying students who have been enrolled is being ploughed back into attempting to accelerate construction and complete the school. She even has to use public transport to travel to and from the school or for any business related to the school as she cannot afford a car and does not own any as respondent re-possessed the family car she was using.

These averments are not seriously challenged.

The respondent did not seriously dispute that the school is incomplete and is still in the development stage. The state of construction of the school and its income generating capacity was not seriously disputed by respondent. However, his position was that, that the school is not doing well does not preclude applicant from taking her salary from the school to fund her legal costs as she is entitled to it. But this begs the question, is there even any operating profit to allow her to take her salary? Applicant says not, and attaches the financial statements from the fees’ income paid by the current students, vis-a-viz the financial requirements to keep the school running.

Further, while respondent admits that applicant is a director of Mes Clothing (Pvt) Ltd, the family business, he does not, in the face of applicant’s averment to the contrary, allege and prove that she is receiving her director’s salary so as to be able to fund her legal costs. If, it is his position that the company is not doing well and cannot pay her director’s salary which she is entitled to, then he cannot expect a school, which also claims to be in dire straits, to pay her school director’s salary. What’s good for the goose must be good for the gander.

More astonishingly, respondent suggests that applicant is capable of contributing to her legal fees because she has access and control of funds paid into the school by parents. I am not certain if respondent is seriously advocating for applicant to divert school fees into her own pocket before meeting the demands of the service that has been paid for by those fees or the regulations, terms and conditions pertaining to the permit to operate a school. If that is so, it is very concerning given that fees are paid for the school to provide a particular educational service to pupils which, if the standards are not met because the manager of the school has dipped their hands into the till, may result in the closure of the school and criminal charges against such a manager. However, quite crucially what respondent says in his notice of opposition suggests that he accepts that the school is not yet making money for applicant to be able to fund her legal costs. In paragraph 6 of his opposing affidavit, he states that

“Plaintiff should not be awarded spousal maintenance since she will

have a source of income from the College (my emphasis)”.

He does not say that she already has an income, but that she will at some point in the future, have such income. This puts forward the argument whether or not applicant has adequate funds to cover her legal costs: she does not now have it, but will have it sometime in the future.

However, I am even more concerned that in reading the papers, the overwhelming impression I get is that that both parties have skirted around the real evidence to prove their financial positions. I cannot overemphasise the obligation of the parties in matters such as this to be completely honest with the court about their financial standing.

Applicant has not submitted her current bank statements to show that her only income is from her pension. Nor has she submitted the current income and expenditure account records and or official audit reports to show that the school is running at such a loss as to be unable to meet her salary entitlements. Neither has she attached the loan agreements pertaining to the school’s indebtedness which she claims. At the end of the day, regardless of who loans money into the school, it must be paid back because the school is a business. In addition, applicant has not submitted any proof of respondent’s personal financial reports, statements and records, or the records of the financial status of Mes Clothing to show respondent’s remuneration from the company. However, it is understandable that she might not have access and might not have the legal advice on how to obtain them.

On his part, even though he has no onus to prove his lack of means, respondent has also not been candid with the court. While he filed documents showing Mes Clothing’s indebtedness to ZIMRA and City of Gweru, this is not proof of the company’s inability to pay his or applicant’s director’s salary, as this could just be a sign of mismanagement at some point. Audited statements of the company, or the company’s income and expenditure statements and its bank statements would have been more appropriate.

Conclusion

The result is that, in normal circumstances, the court would have had no option but to order absolution from the instance. However, this is a matrimonial matter which is sui generis and in circumstances where the law governing such matters does not always follow the established norms for general matters. Accordingly, r67(3) permits the court, apart from either allowing or dismissing the application, “to make such order as it thinks fit to ensure a just and expeditious resolution of the matrimonial matter”.

In casu, the real issue is that the sharing of the parties’ matrimonial property must be done justly and equitably, taking into account the unquestionable contributions made by each of them, in a marriage spanning almost four decades, and that this must be done swiftly given their ages and the health requirement to avoid unnecessary stress.

Therefore, I note that, on balance, both parties have their pensions. Even without the financial statements and records, the pictorial state of the school applicant is running leaves no doubt that it is not a fully established operation running at full capacity. Even respondent did not dispute that the school is still under construction. It can be deduced therefrom that applicant has little or no income from the school as yet. That she earns income from other ventures like poultry keeping has no justification on the papers and cannot be taken into account.

Respondent on the other hand, is managing a long-established business with a substantial market share in the field of uniforms provision. Accordingly, it follows that he ought to have more income than applicant and ought to contribute to her legal costs.

However, I am mindful of the fact that the rationale for applications such as this is that one party should contribute (my emphasis) to the other party’s costs, not that the financially able party must bear the entire costs for an applicant. In this case, I am averse to granting an order as sought by applicant, firstly, because the nature of the concessions made by respondent point to a truncation of the process as the dispute now is only with regard to two issues: the sharing of two properties (the matrimonial home and Mes Clothing (Pvt) Ltd) and the claim for spousal maintenance.  Therefore, any pre-trial proceedings will be brief and any trial is unlikely to exceed one day. Secondly, the murky financial data supplied by the parties, particularly the applicant, does not support the claim that she is totally without funds. In the premises, a figure in the amount of one third of the claim should suffice. Should the situation change, the parties can always approach the court for a variation.

Costs

As already, stated above, in matters such as this, each party normally bears its own costs. The applicant being a self-actor has not incurred any legal costs. And given that she is pleading poverty in any event, I am not inclined to exercise my discretion and grant any costs to respondent for having succeeded in having applicant’s claim reduced.

DISPOSITION

Accordingly,

IT IS ORDERED THAT

The application is granted.

The respondent is ordered to contribute towards applicant’s costs pendente lite in the amount of US$2000 or its equivalent in Zimbabwe Gold Dollars at the interbank rate on the date of payment.

There be no order as to costs.

Applicant, in person

Messrs Ndlovu & Hwacha, respondent’s Legal Practitioners