A BULAWAYO woman who failed to execute her maintenance award of US$150 monthly for eight years due to bungling by a magistrate, will now claim her dues now in excess of US$12 000 after intervention of the High Court.
Ms Manyara Masedewe was awarded the order for payment of
US$150 spousal maintenance, but a Bulawayo magistrate reportedly bungled and
set aside the order without a court hearing and without the woman’s knowledge.
The magistrate dumped the maintenance order after receiving
a letter from the husband’s lawyers through a document he termed “judgment
clarification”.
But that said “judgment clarification”, according to legal
experts, is not provided for in the Magistrates’ Court Act and all variations
to a maintenance order can be effected after a court application by one the
parties and with both parties given an opportunity to address the court.
That clarification has seen Ms Masedewe going for eight
years without receiving spousal maintenance.
Ms Masedewe, who was entirely depended on her husband
during marriage, said she had been living a miserable life due to the
non-payment of the maintenance.
The Chief Magistrate’s Office asked the High Court to
intervene on the basis that the mother and ex-wife was never asked to give her
views before the first order was clarified out of existence.
On December 15, 2020, Justices Nokuthula Moyo and Thompson
Mabhikwa set aside the “judgment clarification” after the magistrate admitted
to bungling.
“In this matter, the learned magistrate erred by revisiting
an order that he had given in a maintenance case on the strength of a letter
that had been written by a firm of lawyers representing one of the litigants in
the case.
“The learned magistrate upon receipt of a letter by lawyers
from one of the parties in the matter, sought to amend the order he had
initially given through the inscriptions in the record of a paragraph titled
‘judgment clarification’.
“The learned magistrate concedes the error and wishes to
have the order granted under the title ‘judgment clarification’ set aside.
“Accordingly, the order of the magistrate under case number
M56/2014 issued on October 5 2015 and titled ‘judgment clarification’ is hereby
set aside,” ruled the High Court.
Deputy Chief Magistrate Mrs Bianca Makwande wrote to Ms
Masedewe on December 20, informing her of the development.
This means Ms Masedewe can now proceed to claim her
maintenance, which is now in excess of US$12 000.
Ms Masedewe, who was married to a businessman Mr Munetsi
Blessing Masedewe under the Marriages Act, separated with her husband in 2012
and was awarded US$150 monthly maintenance.
The usual and routine spousal maintenance was issued: “The
respondent (Mr Masedewe) is ordered to pay $150 monthly maintenance for the
applicant with effect from November 2012. The maintenance will be paid through
the applicant’s bank on or before the end of each month and will run until the
order is either varied or the applicant dies or remarries whichever is
earlier.”
When the woman won custody of the minor child some two
years later, a different magistrate in the same court separately ordered Mr
Masedewe to pay monthly maintenance of US$280 for the minor child. Again the
child order is the standard one: “Respondent is hereby ordered to pay $280
monthly maintenance for the minor child until the child attains 18 years or is
self-sufficient whichever occurs sooner. Respondent is also ordered to pay
school fees for the minor child.”
But there were now two separate maintenance orders issued
by two different magistrates, although one was for the ex-wife and other for
the child.
One of the magistrates after communicating with Mr
Masedewe’s lawyer, unilaterally and without any court hearing, issued what he
called a “judgment clarification”.
The debt is in excess of US$12 000, but efforts to have Mr
Masedewe prosecuted for non-compliance with the spousal maintenance order of
2012 proved fruitless as the man’s lawyers always produced the “judgment
clarification” as his defence, and police do not have discretion to alter a
court order.
Legal expert and former head of the Harare Civil Court Mr
Brighton Pabwe said a correction of a judgment can only be done after a formal
application, which means both parties are told and both given the opportunity
to address the court.
Another former magistrate Mr Reginald Mutero, who is now
practicing at Caleb Mucheche Law Chambers said only judges, in terms of the
High Court rules, can make changes without hearing.
“In the Magistrates’ Court Act, there is nothing called
judgment clarification. There are provisions for correction, interpretation and
variation and the parties have to first make an application. However, in terms
of the High Court Rule 449, judges can do so on their own,” he said. Chronicle
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