More-Precious Ncube (nee Mafu) v Stenslous Ncube

The parties were married on 13 August 2012 under Zimbabwean civil law and had two minor children. The marriage broke down in June 2020 and the parties separated on 6 June 2020. The respondent issued summons for divorce and ancillary relief on 2 July 2020. On 15 July 2020, the applicant, through her legal practitioners, demanded that the respondent contribute towards her legal costs for the divorce. The respondent refused on 24 July 2020, contending that the applicant had adequate means to meet her own legal costs. On 20 October 2021, as the main divorce action was set down for hearing on 23-24 November 2021, the applicant launched this application under Rule 67(1) of the High Court Rules, 2021, seeking an order that the respondent contribute US$16,000 towards her legal costs. The applicant claimed she had no financial means to pay her legal costs. The respondent opposed the application, arguing that the applicant had adequate income from various sources including: her events planning business; US$400 per month from the parties' mining venture; RTGS$16,000 in monthly drawings from the mining business; RTGS$90,000 per month for household expenses; US$100 per month for fuel; and US$450 per month in rentals from a property registered in the minor children's names. The main divorce action was ultimately concluded on 2 December 2020 (likely 2021 based on context).

• Whether an order for contribution towards legal costs expressed in foreign currency (US dollars) is lawful under Zimbabwean exchange control regulations
• Whether the applicant satisfied the requirements for an order for contribution towards legal costs in matrimonial proceedings
• Whether the applicant had adequate financial means to defend the divorce action without contribution from the respondent
• Whether the respondent had the financial means to make the contribution required
• Whether the applicant was entitled to costs on a legal practitioner and client scale

1. Respondent ordered to contribute towards applicant's legal costs in case number HC 1037/20 in the amount of US$8,000 (eight thousand dollars) or its equivalent at the prevailing bank rate on the date of payment. 2. Costs of suit on the ordinary scale.

1. Under Zimbabwean exchange control law, section 7 of SI 212/2019 (as inserted by SI 185/2020) permits dual pricing whereby service providers may offer prices in both Zimbabwean dollars and foreign currency at the ruling exchange rate. A court order requiring payment in US dollars or RTGS dollar equivalent at the prevailing bank rate is lawful and does not contravene exchange control regulations. 2. For an order for contribution towards costs in matrimonial proceedings, the applicant must establish five requirements: (a) a subsisting marriage; (b) the suit is a matrimonial one; (c) the applicant has reasonable prospects of success; (d) the applicant lacks financial means to bring or defend the action without contribution; and (e) the other spouse has the ability to make the contribution. Requirements (d) and (e) must be considered conjunctively. 3. An applicant seeking contribution towards costs has a duty of full and frank disclosure of their financial means and income sources. Lack of candor in disclosure may affect the quantum of contribution awarded. 4. The court has discretion to award partial contribution towards legal costs where the applicant has some but inadequate financial means and has not been entirely forthcoming about their financial position. 5. Costs on a legal practitioner and client scale are punitive in nature and require proper motivation and proof of conduct by the opponent warranting the court's disapproval. It is inadequate to merely request such costs without justification.

The court observed that the concept of legal tender means that a domestic debt, in whatever currency it is expressed, will at law be regarded as having been discharged upon payment in the currency recognized as legal tender in the country. The court noted that all legal tender is money but not all money is legal tender, following the well-established principle recognized in sections 41 and 44 of the Reserve Bank Act. The court commented that regulations made by the President under section 2(1) of the Exchange Control Act prevail over any contrary provision in any law, giving force to the dual pricing regime. The court observed that the main divorce action had been concluded by the time of judgment and that the parties had shown sense in settling the matter amicably after two days of evidence, thereby saving further legal costs. The court noted that the applicant's attitude of seeking to recover every penny of her legal expenses from the respondent was not appropriate given her own income sources and lack of full candor about her financial position.

This case is significant in Zimbabwean law for clarifying the legality of dual pricing and claims expressed in foreign currency under the Exchange Control regulations during a period of currency instability. The judgment confirms that section 7 of SI 212/2019 (as amended by SI 185/2020) permits service providers, including legal practitioners, to offer prices in both Zimbabwean dollars and foreign currency at the ruling exchange rate, and that court orders may properly reflect this dual pricing framework. The case also provides guidance on the application of the established requirements for contribution towards costs in matrimonial proceedings, particularly regarding the duty of full and frank disclosure by the applicant of their financial means. It demonstrates the court's willingness to exercise discretion in awarding partial contribution where an applicant has some but inadequate financial means, while not being entirely candid about their income sources. The judgment reinforces that costs on a legal practitioner and client scale are punitive and require proper motivation and proof of conduct warranting the court's disapproval.