Civil
Trial
KAMOCHA
J: The
plaintiff and defendant got married on 18 September 2007. The
plaintiff was a widower and defendant was a divorcee at the time of
the marriage. Each had two children from the previous marriage but
they had no children together. They had started cohabiting two years
before they got married.
Sadly
two years after solemnizing their marriage the plaintiff instituted
divorce proceedings on 19 November 2009 claiming an order for a
decree of divorce and ancillary relief.
He
alleged that the marriage had irretrievably broken down owing to the
following reasons:
(a)
The defendant had allegedly verbally abused and ill-treated his
children from his former marriage.
(b)
That the parties do not live together as husband and wife and they
are not sharing conjugal rights which scenario is inconsistent with a
normal marriage relationship; and
(c)
That the parties quarrel verbally quite often and they have lost all
love and affection for each other.
He
went on to allege that during subsistence of their marriage the
parties only acquired a television set and a bed. It was his
suggestion that at divorce the defendant should be awarded the colour
television set while he gets the bed.
In
her plea the defendant responded to what had not been raised by the
plaintiff.
She
denied ill-treating or abusing plaintiff. The plaintiff's
allegation was that she verbally abused and ill-treated his children
from his previous marriage not him.
She
denied any wrong doing on her part and went on to allege that their
marriage had been besieged by mistrust and unfaithfulness which made
the parties intolerant of each other.
As
regards the matrimonial property acquired during the marriage, she
alleged that the plaintiff was not being candid with the court and
had not made a full disclosure of the matrimonial property.
In
addition to the two items that he was prepared to disclose there was
the following property:
(i)
3 and a half tonnes of maize;
(ii)
14 x 50kg bags of rapoko;
(iii)
14 x 50kg bags of shelled ground nuts;
(iv)
4 x 50kg bags of millet;
(v)
7 x 50kg of beans;
(vi)
6 x 50kg bags of sweet potatoes;
(vii)
14 herd of cattle;
(viii)
a homestead;
(ix)
2 goats;
(x)
8 chickens;
(xi)
Omega radio;
(xii)
2 x sofas;
(xiii)
3 x double beds (one in rural areas and one in town) sic;
(xiv)
1 blanket;
(xv)
2 pairs of bed sheets;
(xvi)
8 x 20 litres empty containers;
(xvii)
4 x 25 litre empty containers;
(xviii)
kitchen utensils;
(xix)
4 tents;
(xx)
2 raincoats;
(xxi)
a trunk;
(xxii)
2 x 2 plate stoves;
(xxiii)
fridge;
(xxiv)
a radio;
(xxv)
2 x CTV; and
(xxvi)
a sewing machine.
It
was her contention that justice would have been done if plaintiff
were to be awarded a sewing machine; a radio which is in Bulawayo; a
fridge; a raincoat; a 2 plate stove; one double bed in Bulawayo and
one in the rural home; sofas; and 7 head of cattle while she retained
the remaining property as her sole and exclusive property.
The
parties appeared before a judge for a pre-trial conference whereat it
was agreed that the issues for trial were these:
“(a)
Whether or not the breakdown of the marriage was caused by the issues
outlined by plaintiff in his declaration or by the issues outlined by
the defendant in her plea;
(b)
Whether the property listed by the defendant forms part of the
matrimonial property or not; and
(c)
What is the equitable sharing of the available matrimonial assets.”
Each
party gave viva
voce
evidence in support of his or her story.
It
was clear from their stories that their marriage had indeed
irretrievably broken down although the defendant at one stage had
told the court that she did not want the marriage to be dissolved.
Her reason for that was that the plaintiff had infected her with the
HIV virus in 2006 before they solemnized their marriage in 2007.
After
the infection she discovered that he was HIV positive and was taking
ARVs.
When
she also wanted access to ARV treatment at Mbizo Barracks Clinic she
was told she could not as she was not a soldier or plaintiff's
wife. So she decided to marry him in 2007 in order to access ARV
treatment as plaintiff's wife.
The
marriage was a marriage of convenience.
She,
however, conceded that ARV tablets are now easily available at
hospitals and clinics. She further conceded that since their marriage
had irretrievably broken down it should be dissolved.
The
plaintiff denied infecting the defendant with the HIV virus.
It
is difficult to make a finding on which of the parties brought the
HIV virus into their new marriage as they both admitted that they did
not go for an HIV test before they started to cohabit. One or both of
them could have got the virus from the previous marriage.
Turning
now to the matrimonial property the court finds that the plaintiff
had indeed not made a full disclosure of it.
This
court takes a very dim view of litigants who are not candid with it.
An
award of cost shall be awarded against such party on a punitive scale
as a sign of the court's displeasure.
The
defendant filed a document quantifying her claim relating to the
crops harvested. The total for all the crops amounts to $3,140,85.
Her half share would be $1,570,42. It was agreed that the figure be
rounded off to $1,600.
Plaintiff
shall pay $100 per month into the defendant's account number POSB
201310011455 starting from end of March 2015 until the full amount is
paid.
Defendant
is also awarded the following:
(i)
sofas;
(ii)
double bed;
(iii)
Omega radio;
(iv)
one colour television;
(v)
one 2 plate stove; and
(vi)
a sewing machine; or their respective equivalent values.
As
far as the cattle are concerned defendant averred and conceded that
she found the plaintiff with 4 cattle. She said those were his
cattle.
They,
however, bought 2 cattle together which multiplied during the 4 years
they lied together.
At
the most, it was conceded that they had multiplied to six. She is
accordingly awarded half of those cattle which is 3 beasts.
In
the result this court makes the following order. It is ordered that -
(a)
A decree of divorce be and is hereby granted;
(b)
The defendant be awarded $1,600 for the harvested crops, plaintiff
shall pay $100,00 per month beginning at the end of March 2015 into
defendant's POSB account number 201310011455 until the amount is
paid in full;
(c)
Defendant is also awarded the following items:
(i)
sofas;
(ii)
double bed;
(iii)
one Omega radio;
(iv)
one colour television;
(v)
one 2 plate stove; and
(vi)
a sewing machine; or their respective equivalent values while
plaintiff keeps the balance.
(d)
Defendant is further awarded 3 head of cattle;
(e)
The plaintiff who was not candid with the court and did not disclose
the bulk of the matrimonial property shall pay the costs of suit on
attorney and client scale.
Cheda
& Partners,
plaintiff's
legal practitioners
Messrs,
Moyo & Nyoni, defendant's
legal practitioners
