Civil
Appeal
UCHENA
J: The appellant sued the respondent, in the Magistrate's Court,
seeking a decree of divorce and ancillary relief. They were married
in terms of the Customary Marriages Act [Cap
5.07].
The trial court granted him the decree of divorce and orders granting
custody of their minor children to the defendant and distribution of
their matrimonial property.
The
appellant was aggrieved by the granting of custody to the defendant
and the distribution of their matrimonial property. He appealed to
this court against the Magistrate's decision on those aspects.
In
his grounds of appeal the appellant attacked the magistrate's
decision on custody on the following grounds;
-
The
misquoting of the Guardianship of Minors Act.
-
The
misapplication of precedents in the cases of Mutetwa
v Mutetwa
1993
(1) ZLR 176 (H) and Sakupwanya
v Sakupwanya
SC 180/88.
-
That
she erred in holding that there is a legal principle against the
separation of siblings when granting custody.
-
That
she erred by not finding that the respondent was irresponsible and
neglected her duty to care for the children.
-
That
she erred by not finding that the children's negative attitude
towards him were due to the respondent denying him access to them.
-
That
she misdirected herself by finding that the respondent's trip to
Botswana was a result of the appellant's failure to adequately
provide for the family.
In
respect of the distribution of the matrimonial property the appellant
in his grounds of appeal criticised the trial Magistrate's decision
for the following;
-
For
finding that the respondent had a legal right to property acquired
by the appellant out of community of property during and before
their marriage.
-
That
the respondent was due to her adultery which the appellant had not
condoned not entitled to a substantial share of the matrimonial
property.
-
That
she erred by concluding that the appellant had a proven case of
adultery and that both parties contributed, to the break- down of
the marriage.
-
That
she erred when she held that the legal position arrived at in
Takapfuma
v Takapfuma
1994 (2) ZLR 103 (S) and Mpofu
v Mpofu
2005 (2) ZLR 228 (H) on the conduct of the parties did not apply to
this case.
-
That
she misdirected herself when she held that the respondent was a
faithful house wife who made significant indirect contributions to
the matrimonial estate.
-
That
she erred when she held that the appellant had any legal rights,
title and interests in stand 184 Nyatsime Phase 3 Chitungwiza.
At
the hearing of the appeal the appellant persisted with his criticism
of the magistrate's decision on the above mentioned grounds. He
relied on what he believed was the law and precedents on the
respective aspects of his appeal.
In
her response, during the hearing of the appeal, the respondent,
supported the decision of the Magistrate on custody and the
distribution of their matrimonial property. She relied on the record
of proceedings which I will refer to below.
Guardianship
of Minors Act.
The
appellant's criticism is based on the Magistrate having in her
judgment referred to the Guardianship of Minors Act, as the
Guardianship and Minors Act which he correctly said does not exist.
The Magistrate was obviously referring to the Guardianship of Minors
Act [Cap
5;08]
which is an Act of Parliament and is relevant to the determination of
custody issues. Nothing turns on the mere misnaming of a statute
which exists and is applicable to the issue to be determined.
Mutetwa
v Mutetwa
1993 (1) ZLR 176 (H) and Sakupwanya
v Sakupwanya
SC
180/88.
The
Magistrate's reference to the case of Mutetwa
v Mutetwa
1993
(1) ZLR 176 (H) is on p 38 of the record where she said; “The same
case also stated that were the father of the children makes an
application for custody the onus is on him to show that it is in the
best interest of the children that custody be awarded to him”. This
is a correct statement of our law for which the finding of the
Magistrate need not be criticised. It is trite, that the best
interests of the minor children, is the determining factor in custody
disputes.
In
respect of the case of Sakupwanya
v Sakupwanya,
the Magistrate on pp 39 to 40 of the record commented on what the
Supreme Court said about the circumstances when a mother can be
denied custody, and the circumstances of each party and came to the
conclusion that the respondent was a suitable custodian and would
best serve the interests of the children. The appellant sought to
discredit the respondent because of the affairs she admitted. The
Magistrate was aware of that hence her relying on MANYARARA JA's
decision that “custody will only be granted to the father when the
mother's character had been rendered so undesirable to leave the
children in her care”. The Magistrate considered the appellant's
own misdemeanours and came to the conclusion that the children's
best interests will be served by granting custody to the respondent.
She had over and above assessing the suitability of the parents
interviewed the children who preferred to be in their mother's
custody. I find no fault in the Magistrate's decision.
Separation
of siblings.
The
appellant criticised the Magistrate's comment on p 40 where she
said,
“Whilst
plaintiff was not claiming custody of the youngest child who is 2
months of age it is important that I take this child into
consideration as granting custody of his siblings to the plaintiff
would amount to separating the children which would not be in their
best interest.”
The
magistrate, as is clear from the above quotation, considered the best
interests of the children which she was entitled to do. While
separation of siblings is not absolutely prohibited it is not
desirable where it can be avoided. In the present case I agree with
the Magistrate that it would not be in the best interests of the
children, two of whom told the magistrate that they preferred to be
in the custody of their mother. It is infact desirable that siblings
stay together if separating them can be avoided. In my view
separation can be considered if it is for the benefit of one or more
of the children. A child's separation from siblings, so that, he
may, pursue, his education which is only possible, while he is in the
custody of the other parent would be a good example. See the case of
Mpofu
v Mpofu
2005
(2) ZLR 228 (H) at 230 C-D. In this case the two months old child
cannot be separated from the mother and there are, no beneficial
interests, to the other children which justifies the separation of
the children. I am therefore satisfied that the magistrate did not
misdirect herself on this aspect.
Respondent's
irresponsibility.
The
appellant submitted that the respondent should not have been granted
custody of the children because she is not a responsible parent as
demonstrated by her extra marital affairs and going to Botswana
leaving the children without anyone to look after them. The
respondent submitted that she left the children in the care of the
appellant and her niece who was a form 3 student. The magistrate on p
38 of the record found that the respondent left the children under
the care of her niece and was therefore not irresponsible. She also
took into consideration the respondent's extra marital affairs and
balanced them with the appellant's own misdemeanours. She
interviewed the children who indicated their preferred custodian. The
children explained to her the reasons for their preferring the
respondent. I am satisfied that the Magistrate properly assessed the
issue of custody. The fact that the respondent had extra marital
affairs during the marriage does not make her an unsuitable
custodian. The letter of confession by Samuel clearly indicates that
they went, to far away locations from Zengeza to have sex in
Machipisa Highfield. They both contributed towards booking fees,
indicating a consciousness to avoid being exposed to the appellant
and the children. See p 97 of the record. The alleged telephone
exposure of the boyfriend to Onai was not proved on a balance of
probabilities and can thus not be used against the respondent. It
must also be stated that custody is not only granted to saints. It
can be granted to a parent with a bad history provided the granting
of custody to such a parent serves the best interests of the
children. A distinction should be made between being a bad spouse and
being a bad parent.
In
this case the two older children preferred to be in the custody of
the respondent who they said was always there for them. The alleged
abandonment of the children by the respondent when she went to
Botswana was not accepted by the court a
quo.
It found that she went to Botswana so that she could fend for the
children, leaving the children under the care of her niece and the
appellant.
The
children's negative attitude.
The
appellant submitted that the negative attitude against him by the two
children who were interviewed by the court a
quo
was due to the respondent denying him access. The respondent denied
that she denies him access to their children.
A
reading of the children's interview does not support the
appellant's allegation. On p 91 of the record Onai said she wants
to be in the custody of her mother because, “As our mother is
always there for us, provides for us, does home work with us, plays
with us”. She on the same page said her relationship with her
father is average. She said she does not want to be in his custody
because “he assaults my mother it offends me, he however caters for
our needs”. She gave a balanced reasonable background from which
she chose who will be a better custodian.
Malvick
was also interviewed and he on p 92 of the record said he would want
to be in the custody of his mother, as “she is always there for
us”. He on p 93 said he does not want to be in the custody of the
appellant because, “He assaults our mother and is strict on us”.
The Magistrate recorded that Malvick became “Uneasy, looking down
and about to cry” when she asked him why he does not want to be in
the custody of the appellant. The children's interviews do not
show that the children's attitude was due to his not being given
access to them. They simply do not like his violent and strict
behaviour. There is therefore no merit in this ground of appeal.
Trip
to Botswana.
The
appellant submitted that the court a
quo
misdirected itself by finding that the respondent's trip to
Botswana was a result of the appellant's failure to adequately
provide for the family. The respondent said she went to Botswana
while 7 months pregnant because the appellant did not want her to
have other children after Onai, and as a result she had to personably
look after the newly born child. The appellant confirmed that he did
not like the respondent's failure to exercise birth control. On p
80 of the record the appellant put it to the respondent,
“Correct
when I told you not to have children it was in the best interests of
children?” Faced with this admission the trial court cannot be
criticised for concluding that the respondent went to Botswana to
raise money for the child she was about to give birth to as the
appellant did not want her to have that child and would as he had
done previous not buy things for children conceived against his will.
Infidelity.
The
appellant in grounds of appeal numbers 8, 9, 10 and 11, criticised
the Magistrate's decision for;
-
Awarding
the respondent matrimonial property in spite of her having admitted
that she committed adultery during the marriage.
-
Finding
that the appellant also committed adultery during the marriage.
-
Finding
that both parties contributed to the break-down of their marriage
therefore the dicta in the case of Mpofu
v Mpofu
2005 (2) ZLR 228 (H) was not applicable in this case.
The
Magistrate's judgment fairly deals with the parties' infidelity
leading to a conclusion that both parties contributed to the
break-down of their marriage. Where both parties were unfaithful to
each other the principle that the guilty party should not be seen to
be substantially benefiting from the break-down of the marriage does
not apply as neither party would be entitled to the matrimonial
property. In such circumstances other factors relevant to
distribution of matrimonial property should guide the court. The
respondent in her evidence gave details of how the appellant would
suffer from sexually transmitted diseases due to his extra marital
affairs with several women. She spoke of how he would phone his girl
friends from home. The magistrate who had the benefit of properly
assessing her evidence believed her. This court does not have any
basis for interfering with her findings. Once it is established that
the magistrate correctly arrived at the decisions on these aspects,
the grounds of appeal should not succeed.
Stand
19582 Zengeza 5.
The
appellant submitted that the Zengeza stand should not have been
distributed to him and the respondent as he bought it and their
marriage was out of community of property. The respondent submitted
that she directly and indirectly contributed towards the purchase and
development of that property. The Magistrate commented on the
distribution of this stand on page 13 where she said,
“Plaintiff
also did not deny that at a point in time when he was repaying the
loan for acquisition of their stand, the defendant is the one who was
catering for their bills that is rentals and food
provisions.------------------. It is also not in dispute that the
defendant managed to erect a 3 roomed house that she is residing in
with the children currently---”.
The
fact that the respondent was responsible for the payment of rentals
was confirmed by the appellant on p 69 of the record where he was
cross-examined as follows;
Q.
Is it not correct when you paid for stand I shouldered rentals?
A.
Yes that is true, but I bought the stand,.”
This
exchange confirms that the respondent enabled the appellant to buy
the stand by taking care of other responsibilities while he was
paying for the stand. On p 70 of the record the appellant did not
dispute that the respondent made indirect contributions by cooking
and cleaning for him.
The
magistrate therefore correctly considered the above factors and the
fact that she had allocated the Nyatsime stand to the appellant, in
distributing the Zengeza stand. She properly exercised her discretion
in distributing the Zengeza stand. There is therefore no merit in
this ground of appeal.
The
Nyatsime stand.
The
appellant submitted that the court a
quo
erred when it found that he owns the Nyatsime stand. The respondent
insisted that he does but could not produce any proof because she
said the appellant left the matrimonial home with all the documents
on their ownership of various stands. In arriving at her decision the
Magistrate on p 12 of the record said,
“I
thus afforded the defendant an opportunity to go and seek evidence of
other properties that the parties had acquired, and she came with a
letter showing the stand in Nyatsime is registered in plaintiff's
name though plaintiff stated that the property was not his as he had
failed to raise the money required for the stated property. I find
plaintiff's explanation hard to comprehend as the relevant
authorities would not give a real right to a person not entitled to
same thus for the purposes of these proceedings I will consider the
stipulated piece of land.
The
Magistrate's reasoning is supported by what the appellant said on
page 89 where he said, the “stand is just an allocation, I have not
yet received title deeds or a right. I have only paid US$100 and I am
yet to pay $2200 to have a right to the stand. The Nyatsime stands
are not yet available that is why I am reluctant to finish payments”.
The appellant's own account proves that he was allocated the
Nyatsime stand for which he has made part payments. Once that was
established the Magistrate was entitled to take that stand into
consideration and award it to the appellant as he did. She did not
misdirect herself.
Distribution
of movable properties.
The
appellant did not state which movable properties were wrongly awarded
to the appellant. This court cannot determine an unspecified
allegation, That is why Order 31 rule 2 (4) (a) and (b) of The
Magistrate's Court Civil Rules 1980, requires an appellant, to
state the party of the judgment and findings appealed against. It
provides as follows;
“2
(4) A notice of appeal or of cross-appeal shall state—
(a)
whether the whole or part only of the judgment or order is appealed
against and, if part only, then what part; and
(b)
the grounds of appeal, specifying the findings of fact or rulings of
law appealed against.”
If
this was the only ground of appeal it would have rendered the
appellant's appeal fatally defective.
It
is therefore, not enough, for the appellant, to allege, that some
property, was wrongfully, awarded to the respondent. He must specify
the property. A reading of the record does not reveal that he gave
such evidence to the trial court. There is therefore no merit in the
appellant's generalised allegation.
In
view of this court's findings, on the appellant's various grounds
of appeal I am satisfied that the appellant's appeal has no merit.
It
is dismissed with costs.
MWAYERA
J agrees ------------------------------
