Audrey Rungano Chimombe (nee Magume) v Tapiwa Mark Chimombe

The parties are a married couple involved in divorce proceedings. On 10 May 2021, the court granted the applicant's application for maintenance pendente lite (HC 6196/20), ordering the respondent to pay US$2,000 per month effective 1 May 2021 for the applicant and their three minor children. The respondent, who works in the Philippines, had previously been sending US$2,000 per month before unilaterally stopping in May 2020 and sending varying lesser amounts. The respondent applied for and was granted leave to appeal on 16 July 2021 (HC 2323/21), and filed a notice of appeal in the Supreme Court on 30 July 2021 (SC 27/21). After noting the appeal, the respondent stopped paying maintenance altogether, having only paid for June and July 2021. The applicant then filed this urgent chamber application for leave to execute the maintenance order pending the appeal.

• Whether the matter was urgent and properly brought on an urgent basis
• Whether section 27(3) of the Maintenance Act applies to maintenance orders granted by the High Court
• Whether the applicant should be granted leave to execute the maintenance order pending appeal
• Whether the noting of an appeal automatically suspends a High Court maintenance order

The application for leave to execute the judgment granted on 10 May 2021 under HC 6196/20 pending appeal (SC 27/21) was granted. The respondent was ordered to pay the applicant's costs.

Section 27(3) of the Maintenance Act [Chapter 5:09], which provides that the noting of an appeal does not suspend a maintenance order, applies only to appeals against maintenance orders issued by the Magistrates Court, not to High Court orders. The enforcement of a High Court maintenance order notwithstanding the noting of an appeal must be sought through the High Court's inherent jurisdiction upon application. In applications for leave to execute maintenance orders pending appeal, the court must consider: (i) potential irreparable harm if leave is denied; (ii) prospects of success of the appeal; and (iii) the balance of convenience. Where minor children's welfare is at stake and their need for maintenance is continuous and ongoing, matters may be heard on an urgent basis even where there has been some delay in bringing the application, provided the delay is reasonably explained. The proper approach to maintenance pendente lite is to enable parties to maintain a standard of living reasonably comparable to that maintained during the marriage, without requiring the exactitude necessary for final maintenance orders at divorce.

The court observed that when granting leave to appeal in the original matter, it did so not because it lacked faith in its decision, but to give the respondent a chance to be heard by a superior court and to benefit from the wisdom of the Supreme Court on what was an arguable case. The court expressed that it did not believe a responsible parent claiming to care for his children would stop paying maintenance simply because an appeal had been noted. The court noted that while section 27(3) of the Maintenance Act does not technically apply to High Court orders, the underlying purpose of that provision - ensuring children continue to be maintained pending appeal - should inform the court's exercise of its inherent jurisdiction. The court observed that COVID-19 lockdowns had created court backlogs, making it unlikely the appeal would be heard soon, which reinforced the need for interim maintenance. The court also commented that matters affecting the day-to-day welfare of minor children should be dealt with expeditiously, as the court is the upper guardian of minor children.

This case is significant in Zimbabwean family law for clarifying that section 27(3) of the Maintenance Act, which prevents the suspension of maintenance orders upon appeal, applies only to Magistrates Court orders and not to High Court orders. It confirms that High Court maintenance orders are suspended by appeal unless the court exercises its inherent jurisdiction to grant leave to execute pending appeal. The judgment demonstrates the court's willingness to exercise this inherent jurisdiction where children's welfare is at stake, emphasizing that maintenance needs are continuous and that delays in bringing applications do not necessarily defeat urgency where ongoing child welfare is concerned. It also illustrates the appropriate standard for maintenance pendente lite - maintaining the status quo ante and the standard of living enjoyed during the marriage, without requiring the exactitude needed for final maintenance orders at divorce.