CHIYANGWA v CHIYANGWA

HIGH COURT, HARARE

[Opposed Application HH 173-16]

October 22, 2015 and March 3, 2016

MWAYERA J

Family law  –  Legal costs – Application for contribution to legal costs in a matrimonial matter  –  Factors to be taken into account.

The applicant sought a contribution to her legal costs in divorce proceedings.

Held, that the requirements for contribution of legal costs order are that there must be a subsisting marriage, that the suit in question is a matrimonial one, that the applicant has reasonable prospects of success, that the applicant is not in a financial position to bring or defend the action as the case may be, and that the other spouse is able to provide the applicant with his contribution.

Cases cited:

Barrass v Barrass 1978 RLR 384 (G); 1979 (1) SA 245 (R), referred to

Botes v Botes 1969 (2) RLR 238 (G); 1969 (3) SA 168 (R), followed

Chamani v Chamani 1979 (4) SA 804 (W), referred to

Dube (nee Msimanga) v Dube HB 78-06 (unreported), referred to

Landry v Landry 1970 (1) RLR 134 (G), referred to

Muzondo v Muzondo HH 247-83 (unreported), referred to

Treger v Treger GS 1-77 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 26

Matrimonial Causes Act [Chapter 5:13], s 7 (1)(a)

High Court Rules, 1971 (RGN 1047 of 1971), O 35 r 274 (1)

Book cited:

Hahlo HR and Khan E The South African Law of Husband and Wife (4th edn, Juta & Co Ltd, Cape Town, 1975)

S Mpofu, for the applicant

F Chandaengerwa, for the respondent

MWAYERA J:

On 22 October 2015 having considered both written and oral submissions by the parties I granted an order in favour of the applicant. I promised to furnish reasons for the disposition and the same are outlined herein.

The respondent instituted divorce and ancillary issues proceedings against the applicant in 2011. The applicant defended the divorce proceedings. The applicant then filed the current application proceedings seeking for contribution towards the costs of litigation in the pending divorce matter. In defending the divorce matter under HC 2288/11, the applicant made a counter-claim wherein she disputes the respondent’s proposed distribution plan of matrimonial property and also argues that the respondent has left out some of the matrimonial property. The contested divorce matter has been referred to trial and the applicant requires contribution towards legal costs. The applicant was retrenched in the year 2010 and sustains herself and three minor children from maintenance contributions from the respondent. The applicant presented argument that the respondent has the means to contribute to the legal costs for prosecution of the claim in reconvention and defending the divorce proceedings.

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