PARKER v PARKER & ORS 1985 (2) ZLR 79 (H) *

Flynote

Husband and wife — maintenance — variation of maintenance order by consent — effect of Exchange Control Regulations on ability to pay maintenance.

Civil procedure — variation of an order of the High Court by the High Court — when appropriate — application for directions.

High Court Rules O 23 R 151

Headnote

In January 1983 the parties were divorced. Both parties subsequent to their divorce emigrated from Zimbabwe. Exchange Control Regulations prevented the husband from complying with the terms of the consent paper in respect of maintenance payments. The parties entered into an agreement as to how to overcome the difficulties created by the Exchange Control Regulations but this agreement was in turn rendered useless due to further Exchange Control restrictions.

The ex-wife obtained leave to sue her ex-husband by way of edictal citation for arrear maintenance arising out of the divorce order granted in 1983. To confirm jurisdiction a property belonging to her ex-husband in Harare was attached. To this claim the ex-husband excepted on the basis that in law an action may not be instituted seeking relief which has already been ordered by the court.

Subsequently the ex-husband filed notice of motion papers seeking two separate forms of relief, namely an order to set aside the attachment and a variation of the maintenance order. In response to an application by the ex-husband's practitioners SANDURA JP issued directives that all the matters extant between the parties be heard at the same time.

For the ex-wife it was argued that the directives given by SANDURA JP were outside his powers due to the peremptory nature of O 23 R 151 of the High Court of Zimbabwe Rules. It was also submitted that personal service of the notice of motion on the ex-wife was required to comply with the spirit of the rules governing edictal citation.

Held that the order of SANDURA JP as to directives was not an incidental order and a judge of the High Court cannot vary or alter an order of a judge of parallel jurisdiction short of expanding on it.

Held, further, that where a party to litigation condones non-compliance of rules by the other party he cannot later rely on such non-compliance to avoid the issues raised.

Held, further, that where an order for maintenance exists it is not open to a party to bring a new action seeking a fresh order to enforce it. An aggrieved party in the situation of the ex-wife being already armed with a court order should properly apply for committal for contempt in the face of non-compliance with such order. The exception to the action instituted by the ex-wife therefore succeeded.

Held, further, that as to the relief sought by the ex-husband the attachment of property to found jurisdiction is intended to provide security for a judgment which might result from the action. The failure of such action through a successful exception being taken thereto renders the continued attachment of property meaningless and the order of attachment was therefore uplifted.

Held, further, that as the ex-husband had not disclosed all the facts relating to his financial circumstances he could not show "good cause" why the existing maintenance order should be varied. He could not take refuge behind Exchange Control restrictions where it appeared on the facts that assets existed outside Zimbabwe which could be used to meet the maintenance required.