Opinion / Columnist
Chiyangwa maintenance case takes new twist
25 Jan 2022 at 05:41hrs | Views
BUSINESSMAN Philip Chiyangwa's quest for a maintenance downward variation with his estranged wife has taken a new twist.
Chiyangwa, who sired two children aged 14 and 8 with Pamela Rusere, was ordered to pay $40 000 per month, sometime in 2020.
In addition, he was ordered to pay R49 000 directly to a school in South Africa, for the children's education.
However, in April 2021, the businessman obtained a default judgment that varied the maintenance from $40 000 to $8 000.
Rusere noted an appeal at the High Court where a judgment dismissing the downward variation was handed down in her favour by Justices Pisirayi Kwenda and Emilia Muchawa.
Chiyangwa was in default when the decision was made.
Through his lawyers, the businessman filed an application for rescission of the judgment on December 10, under HC 7097/21.
On the same day, Chiyangwa filed an urgent chamber application for stay of execution pending the outcome of the application for rescission.
The lawyers claimed the order, in favour of Rusere, was granted in error.
"The patent error alleged by Chiyangwa is that the court, after allowing the appeal against the dismissal of the application for rescission of a default judgment and setting aside the default judgment, should not have gone on to dismiss the application for downwards variation of maintenance.
"That should have been dealt with on the merits in the Magistrates' Court," Chiyangwa argued.
In his ruling, Justice Rodgers Manyangadze said:
"In the circumstances, it is my considered view that it is appropriate and, in accordance with real and substantial justice, that execution of the judgment be stayed until the question of whether or not it was granted in error is resolved.
"In her notice of opposition, Rusere does not clearly and convincingly address the issue of the alleged patent error, so as to assist the court on the important question of whether or not the pending application for rescission carries with it prospects of success.
"In the result, it is ordered that; the application be and is hereby granted.
"Execution of the order issued in Case No. CIV ‘A' 77/2021 be and is hereby stayed pending determination of the application for rescission filed under Case No. 9097/21," reads the judgment.
Chiyangwa, who sired two children aged 14 and 8 with Pamela Rusere, was ordered to pay $40 000 per month, sometime in 2020.
In addition, he was ordered to pay R49 000 directly to a school in South Africa, for the children's education.
However, in April 2021, the businessman obtained a default judgment that varied the maintenance from $40 000 to $8 000.
Rusere noted an appeal at the High Court where a judgment dismissing the downward variation was handed down in her favour by Justices Pisirayi Kwenda and Emilia Muchawa.
Chiyangwa was in default when the decision was made.
Through his lawyers, the businessman filed an application for rescission of the judgment on December 10, under HC 7097/21.
On the same day, Chiyangwa filed an urgent chamber application for stay of execution pending the outcome of the application for rescission.
"The patent error alleged by Chiyangwa is that the court, after allowing the appeal against the dismissal of the application for rescission of a default judgment and setting aside the default judgment, should not have gone on to dismiss the application for downwards variation of maintenance.
"That should have been dealt with on the merits in the Magistrates' Court," Chiyangwa argued.
In his ruling, Justice Rodgers Manyangadze said:
"In the circumstances, it is my considered view that it is appropriate and, in accordance with real and substantial justice, that execution of the judgment be stayed until the question of whether or not it was granted in error is resolved.
"In her notice of opposition, Rusere does not clearly and convincingly address the issue of the alleged patent error, so as to assist the court on the important question of whether or not the pending application for rescission carries with it prospects of success.
"In the result, it is ordered that; the application be and is hereby granted.
"Execution of the order issued in Case No. CIV ‘A' 77/2021 be and is hereby stayed pending determination of the application for rescission filed under Case No. 9097/21," reads the judgment.
Source - The Herald
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