The Sunday News
Thulani Ndlovu
BULAWAYO High Court judge Justice Maxwell Takuva has reviewed maintenance obligations for city lawyer Tungamirai Nyengera, pending the finalisation of his case under review.
Last month, Nyengera made an application to the High Court to review the order of the maintenance court which revised his obligations upwards from $60 to $250 per month.
Should Nyengera have been arrested for being found in contempt of the maintenance court order before the High Court order was made, Justice Takuva said the warrant of arrest is now void.
“The order of $250 by the maintenance court is hereby stayed pending the finalisation of case number HC 1672/14 under review,” said the judge.
Justice Takuva noted that the application by the lawyer was urgent because Nyengera was under the obligation to comply with the magistrate’s order, failure of which would render him liable to prosecution in terms of Section 23 of the Maintenance Act.
“As regards irreparable harm, it was submitted that the applicant will be exposed to civil imprisonment and criminal prosecution if he does not comply with the order.
“It was submitted that the balance of convenience favours the granting of the order in that applicant’s failure to comply is due to a lack of means as his salary must be shared amongst six children, his spouse and himself,” Justice Takuva said.
However, Justice Takuva took issue to the fact that Nyengera’s pay slips were on bond paper with no security features or anything to prove that they were genuine and honest.
“Also questionable is the fact that the respondent earns his salary as cash from a professional legal practice, which might be true of course but still a sticky issue.
“Also arising is whether what is stated on the pay slip is a true reflection of respondent’s earning as everything is highlighted, allowances, gross salary and NSSA but suspiciously absent is the compulsory three percent Aids levy which is clearly missing. As such the pay slips appear not to be a true reflection of the respondent’s earnings,” queried the judge.
Justice Takuva added that while the maintenance court magistrate was perfectly entitled to query the documents produced, the proper procedure would have been to stop the court procedure while the court investigates the authenticity of the pay slips.
Said Justice Takuva: “Maintenance court should have instructed the clerk of the court to subpoena the employer for purposes of verifying the pay slips on oath. This the court did not do and ended up anchoring its decision on speculation and conjecture.
“Put differently, it is unclear from the record which figure the court used as the applicant’s correct salary. For this reason, I am of the view that the applicant’s prospects of success on review are good.”
The judge dismissed Zimbabwe Women Lawyers’ assertion that the matter was not urgent, saying the urgency arises from the fact that the applicant is required to immediately comply with an order improperly granted.
