Marvel Mtisi v Murombo Josiah Mimana

Applicant and Respondent were married under an unregistered Customary Law Union in December 2001 and had eight children. Respondent abandoned the family home in March 2024. Prior to February 2025, Respondent had been paying USD 20,000.00 monthly towards family upkeep, but stopped. Applicant was unemployed and claimed to own a 50% share in family businesses but was excluded from their running. She tabulated monthly expenses totaling $21,936.00 and sought maintenance pendente lite and 80% contribution towards legal costs in divorce proceedings under case number HCHF 1566/25. The family business included lucrative fuel supply contracts and mining operations. Respondent disputed the figures, claiming the company (not him personally) paid the money, that Applicant was not a shareholder, and that he was personally paying for children's upkeep, airfares, and school fees. Applicant contended the company was Respondent's alter ego.

• Whether the founding affidavit was properly commissioned by a Commissioner of Oaths
• Whether Applicant met the requirements for contribution to legal costs under Rule 67 of the High Court Rules 2021
• What constitutes reasonable maintenance pendente lite in the circumstances
• Whether claimed expenses were recurrent or non-recurrent
• Whether Respondent had the capacity to contribute to legal costs and maintenance

1. The application for maintenance pendente lite and contribution towards costs was granted. 2. Respondent shall pay maintenance to Applicant in the sum of $11,726.00 per month with effect from February 2025 pending finalization of matter under case number HCHF 1566/25. 3. Respondent shall contribute 80% of Applicant's legal costs to be determined at the conclusion of the matter under case number HCHF 1566/25 and to be taxed accordingly. 4. Respondent shall pay costs of suit.

1. For an affidavit to be validly commissioned, the stamp used must clearly identify the person before whom the affidavit is deposed and the office or capacity in which he or she acts as commissioner. A party challenging validity bears the onus of proving irregularity. 2. Under Rule 67 of the High Court Rules 2021, a court may order contribution to legal costs and maintenance pendente lite where: (a) there is a subsisting marriage; (b) the suit is matrimonial; (c) the applicant has reasonable prospects of success; (d) the applicant lacks financial means to prosecute or defend the action; and (e) the other spouse has capacity to contribute. 3. In determining maintenance pendente lite, courts must distinguish between recurrent and non-recurrent expenses. Non-recurrent expenses should not form part of monthly maintenance but should be paid as they arise. 4. Where a spouse controls a company and payments have been made through that entity for family upkeep, the court may treat the company as the spouse's alter ego for purposes of determining capacity to pay maintenance and contribute to legal costs.

The court observed that it would be unfair to order monthly payment of expenses that are not recurrent. The court also noted that tutoring costs should be paid directly by the Respondent to tutors rather than channeled through the Applicant. The court remarked that the point in limine raised by Respondent was "a desperate attempt by the Respondent to avoid going into the merits of the matter." The court noted that considering the complexity of the property distribution involving numerous vehicles, companies, and property, "the request for contribution to legal costs cannot be said to be without merit." In calculating maintenance, the court gave the Applicant "the benefit of the doubt especially considering that the payment is pending the finalization of the divorce matter" with respect to some challenged recurrent expenses.

This case demonstrates the application of Rule 67 of the High Court Rules 2021 in matrimonial matters involving unregistered customary law unions in Zimbabwe. It clarifies the requirements for maintenance pendente lite and contribution to legal costs in divorce proceedings. The judgment is significant for its approach to distinguishing between recurrent and non-recurrent expenses in maintenance calculations, and for recognizing the concept of a company as an alter ego of a spouse in matrimonial disputes. The case also provides guidance on the requirements for valid commissioning of affidavits by ex-officio Commissioners of Oaths under SI 648 of 1983, applying the principles from Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd regarding identification of commissioners.