adminDaniel Nemukuyu
Investigations Editor
A BULAWAYO woman, who was in 2012 awarded spousal monthly maintenance amounting to US$150, has gone for eight years without receiving a cent from her ex-husband following a decision by a magistrate to dump this order without a hearing, on the basis that a second order was later issued for US$280 purely for the couple’s child.
The Chief Magistrate’s Office has 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.
Ms Manyara Masadewe, who was married to businessman Mr Munetsi Blessing Musadewe 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. But one of the magistrates after communicating with Mr Masedewe’s lawyer, unilaterally and without any court hearing, issued what he called a “judgment clarification”.
But a “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.
But that claification has seen Ms Masedewe going for seven years without receiving maintenance from her estranged husband. 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 debt is in excess of US$12 000 but efforts to have Mr Musedewe 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.
But the Chief Magistrate’s office questioned the procedure adopted by the magistrate before the judicial officer involved was asked to explain his case.
Then Deputy Chief Magistrate Mr Elijah Makomo wrote to the provincial magistrate in charge of Bulawayo Mr Aeneas Magate seeking explanation on the decision made by one of his subordinates and asking if there was an application for the change and if Ms Masedewe was served with notice of the application.
Mr Makomo added: “Order in M809/12 is clear that it is spousal maintenance. Order M56/14 is equally clear that it is for the child alone. What was the basis therefore for the ‘Judgment Clarification’?”
The Chief Magistrate’s office later realised the need to have the decision reviewed and assist the desperate woman. A letter dated January 28 last year was written to the Registrar of the High Court justifying the request for review.
“Basically, the reason why the record has to be placed before the judge for review is that the judgment titled ‘Judgement Clarification’ by trial magistrate adversely affected Manyara Masedewe, a party to the proceedings because it was made without hearing her side . . .
“Therefore, the judgment clarification by trial magistrate must be set aside in that the decision violated the audi alteram partem rule. “Furthermore it was irregular for the trial magistrate to make a decision affecting the other party when he was functus officio. The magistrate had discharged his function when he made an order for the maintenance of the child,” reads Mr Magate’s letter to the High Court.
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 judgement 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.
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