KAMOCHA
J: Both parties were legally
represented during the pleadings but by the time the matter came for
trial their respective legal representatives had filed notices of
renounciation of agency making the parties self actors when the
matter came for trial.
The parties attended a pre-trial conference on 11 May 2008 whereat
issues for trial had been formulated. However, at the trial the
parties informed the court there were now only two issues for the
determination of the court namely:
(a)
Which one of the parents should be awarded the custody of the two
minor children?; and
(b)
How should the maintenance of the minor children of the marriage be
apportioned between the parties?
The parties further informed the court that they stood by what was
agreed at the pre-trial conference. The agreement was as follows:
It
was agreed that:-
“(a)
the defendant retained total ownership of the property at 286 Jaywick
Road, Matshemhlophe;
(b)
Plaintiff retains total ownership of the property referred to as
Stand 6857 Pingstone Road, Khumalo; and
(c)
Defendant admits that plaintiff has 34,936533% of the value of the
property on Stand 4983200 Mpopoma, Bulawayo.”
The parties sought the assistance of John Pocock and Company (Pvt)
Ltd for the valuation of the Mpopoma property. The valuers gave an
estimated value for the house in the sum of ZAR90,000.00 (ninety
thousand South African Rands) which was accepted by both parties.
The parties also agreed that their marriage had irretrievably broken
down and that it should be dissolved.
Each party then gave viva
voce evidence.
The plaintiff's evidence was that he got married to the defendant
on 7 April 1996 in Bulawayo. The parties were blessed with two
children, namely: (a) Senzosihle Mfanelo Mavume - (girl) born on 22
June 1992 before the parties solemnized their marriage, and, (b)
Bhekumuzi Khulile Mavume – (boy) born on 22 July 1999.
Plaintiff dealt with the issue of
the custody of the children under four heads viz:
1.
Abandonment of children;
2.
Denying children basic rights;
3.
Parenthood/motherhood experience; and
4.
Children's future.
(1)
Abandonment of children
Under this head the plaintiff alleged that all started going wrong in
May 2002 when Bhekumuzi – the boy was only 2 years 9 months and the
girl Senzosihle was 9 years 9 months. Their mother – the defendant
decided to leave Zimbabwe to go and work in Botswana. Without
consulting the plaintiff about the plight of the children she left
them under the care of her sister – one Sihle who was allegedly a
heavy drinker of alcohol.
At that time the boy had no place for pre-school and the sister had
no place for secondary school. The defendant had made no
arrangements for that. Plaintiff had to take care of those situations
by looking for places for the children. He secured places for the
boy at Queen Elizabeth Pre-school and Dominican Convent for the girl
respectively. Plaintiff did all that without the participation or
input from defendant. Both parties were out of the country.
Plaintiff was in South Africa while defendant was in Botswana.
The children had been left with Sihle at the house of defendant in
Matshemhlophe. However, in January 2005 the defendant removed them
from her house and allegedly dumped them at the plaintiff's house
in Khumalo. She did that without consulting the plaintiff. He was
only informed by his brother's daughter about what had happened.
The boy was due to start school
by 2005. The defendant did not do anything about getting him a place
to start primary education. That again was done by the plaintiff who
finally secured him a place at Masiyephambili School.
In October 2008 the defendant allegedly took the girl away from the
plaintiff's house in Khumalo to her house in Matshemhlophe. She
however, left the boy behind. That again, according to the
plaintiff, the defendant did without consulting him.
After removing the girl from plaintiff's house defendant e-mailed
the plaintiff explaining that the girl had moved to Matshemhlophe
because she had gone hungry at the plaintiff's house in Khumalo in
August. She alleged that there was no bread and meat. The
plaintiff found that hard to believe as he always ensured that there
was enough food at his house. What made the defendant's story more
difficult to believe was that the alleged shortage of food at the
house occurred during the month of August but defendant only brought
it to the attention of the plaintiff in October when the girl had
already relocated.
The plaintiff had to conduct an investigation into the matter and
established the girl had obtained a driver's licence and had moved
to Matshemhlophe to drive her mother's car. He established that
the true reason why the girl relocated was to go and drive her
mother's car. That was the agreement the girl had since reached
with her mother. Plaintiff emphasized that that agreement excluded
the boy who was left alone at his Khumalo house.
He said since education in Zimbabwe had become uncertain due to the
strike by teachers, he decided to take the boy to join him in South
Africa so that he could attend school there. But because the parents
were not on talking terms, he asked the boy to inform his mother
about the intended move. In January the defendant took the boy to
South Africa and left him with the father. He has been there ever
since attending school there.
(2)
Denying children basic rights
This allegation was premised on the following facts.
The defendant only participated in securing pre-school and primary
school places for the girl. Thereafter she did nothing more. She made
no effort to secure the girl a secondary school place. She made no
effort to ensure that the boy got a place at a pre-school or primary
school.
Secondly, when the plaintiff was processing application forms for the
children's passports he sent the forms to the defendant for her
signature as a parent she refused to sign them and returned them
unsigned.
Defendant did not end there, but she also refused to sign application
forms for the children's South African resident permits. The
plaintiff had to use other means and succeeded in obtaining South
African resident permits for the children.
The defendant's explanation for refusing to comply was that she did
not quite understand what all that meant.
She, briefly, was attributing that to ignorance. That excuse is lame
and clearly unacceptable.
(3)
Parenthood/motherhood
Plaintiff averred that defendant had not lived with the boy since he
was 2 years 9 months she therefore did not have sufficient experience
for his upbringing on a day to day basis. It was his evidence that
defendant had not demonstrated foresight in as far as the children's
future was concerned. He held the view that defendant did not care
about the children and did not display any sensitivety in relation to
their plight. For instance plaintiff stated under cross-examination
that any caring mother would not leave behind a 2 year 9 months
toddler to go and work in Botswana.
(4)
Children's future
Plaintiff's evidence under this head was that the girl would be
turning 17 on 22 June. She therefore needed an identity card in
order to attend any tertiary institution outside this country. He
claimed that defendant did not seem to be doing anything about that.
As regards the boy plaintiff's
evidence was that he was now in his third school i.e. from St Thomas
Aquinas, to Masiyiphambili in Zimbabwe and now at Birchacre in South
Africa. If he were to be moved to Botswana where the mother is on
contract he would have to go to a fourth school before writing Grade
7. The mother's contract can be terminated at any time and she
would have to look for another job elsewhere. The boy would also be
moved to the new town or city where the mother gets a new job.
The plaintiff was cross-examined by the defendant and when asked why
he alleged that she had abandoned the children he replied that he was
saying so because she had left the children without securing places
for school and that any caring mother would not leave behind a 2 year
9 months child to go and work in the Diaspora. It was put to him
that the pre-school where he had got a place for the boy was of
sub-standard in terms of hygiene and the boy ended up suffering from
ringworms. His reply was that he had not been made aware of that.
All he knew was that she had left the children without making any
arrangements for their schooling. He had to come from South Africa
to find the child a place for school. He said the situation was
desperate which needed an urgent solution.
The defendant tried to justify why she left the child behind by
saying that she had joined a pharmacy where she had to go from place
to place in Botswana but plaintiff said that was no justification for
leaving a toddler with her sister who was an alcoholic. He also told
her under cross-examination that the explanation that she returned
the forms unsigned due to ignorance was unacceptable because she used
to be represented by some lawyers. She should have therefore sought
legal advice.
The plaintiff gave his evidence in a clear and straight forward
fashion. He is worth to be believed.
The same cannot be said about the
defendant when she gave viva
voce evidence although
she also had no witness to call.
Her evidence was that during the year 2002 she decided to go and work
in Botswana in order to fend for her children. She asked her sister
to stay with her children at her Matshemhlophe house during her
absence. At that time she thought the arrangement was just temporary
as she intended to come back home after receiving her share from the
proceeds of the sale of Bulawayo Centre Pharmacy. To her
disappointment she never got her share when the pharmacy was sold.
She alleged that that was the reason why she was still working in
Botswana up to this day.
Her first job was with a group which had pharmacies all over
Botswana. So she was moved from place to place in Botswana. It was
then practically impossible to take her son to Botswana.
However, in August 2004, she changed jobs and joined the Botswana
Government. During that same year her sister went to South Africa in
December. It also turned out that the maid went on maternity leave
at that same time. A new maid had to start in January but the
children were not comfortable with a new maid at the defendant's
house. They allegedly told the defendant that they would be
comfortable if she moved them to the plaintiff's house in Khumalo
to stay with their cousin there.
Defendant alleged that she attempted to explain her predicament to
the plaintiff but he would not hear from her. Whereupon she
explained to his niece and requested her to pass that information to
him. To make assurance double sure she asked her daughter to do the
same.
She told the court that the rules at her new job did not allow her to
take leave before she completed a year. She nevertheless managed to
come to Zimbabwe fortnightly to check on the children. After
completing a year she was entitled to a month's leave.
When she wanted to make arrangements to return the children to her
house in Matshemhlophe they told her that they were happy at their
father's house in Khumalo. The need to move them did not arise.
She then sent the plaintiff an
SMS message telling him to find a place for the boy at St Thomas
Aquinas in Khumalo. The boy transferred from Masiyephambili to St
Thomas Aquinas in 2007. Defendant had hired a driver to deliver the
children at their respective schools as well as collecting them
therefrom.
She went on to allege that during the children's stay at their
father's house in Khumalo they were not allowed to visit her in
Botswana during school holidays. However, at one stage the girl
managed to go and visit her without the father's approval. It was
during that visit that the girl allegedly revealed to her that the
father was no longer giving her pocket money which the mother started
to give her. It was at that stage that she stopped going to visit her
father in South Africa. The reason for that was that she played
tennis at national level being sponsored by the mother who
supplements the money for sponsorship with the proceeds from the
Mpopoma house rentals.
Defendant received a report from the girl, during 2007, to the effect
that her father was not longer phoning her even to just say hello. He
used to phone her at least three times a day during the construction
of the Khumalo house but had allegedly stopped when construction was
over. Defendant herself continued to phone the children at least
three times a week.
The situation deteriorated in May 2008 when the niece of plaintiff
left for South Africa. Another niece went to stay with the children.
They did not get on well with her. Suddenly there was a shortage of
food at their father's house. The father was allegedly no longer
sending any food for the children. The girl had to go to the mother's
house in Matshemhlophe to collect food. In the circumstances the girl
made up her mind to move from Khumalo to Matshemhlophe. When she told
her mother about what she wanted to do she was advised not to do so.
She allegedly told the girl that she could not leave behind her
little brother.
When she turned 16 years last year the mother enrolled her at a
driving school. She requested to have the car parked at the Khumalo
house but the father is alleged to have said the car should never
enter his yard.
That seems to have worsened the situation because the girl allegedly
persisted with her wish to move to Matshemhlophe. She began to
allege that her father no longer loved her and that the mother did
not also want her at her Matshemhlophe house. When asked if she had
told her father about the move she said she had and he had told her
to leave the mobile phone that he had given her to use. It was for
these reasons that the girl returned to her mother's house.
The boy remained at his father's house in Khumalo when defendant
e-mailed plaintiff suggesting that she would like to take the boy
with her to Botswana she got no response.
At the beginning of this year she took the boy to South Africa to
visit his father. According to her the boy was initially happy to
learn in South Africa but changed his mind when he learnt that the
parents were divorcing. She alleged that he now preferred to be with
her than with his father.
In conclusion she said it would be in the best interest of the
children if they remained with her after the divorce.
Her conclusion is baseless because she literally dumped them when
they were of very tender ages particularly the boy who was at the age
of learning how to speak sensible things. Any caring mother would not
leave behind such a child. Caring mothers are always seen with their
little ones strapped at their backs in times of hardships. They cross
borders with them. Yet the defendant who was going into a very good
job as a pharmacist left behind her child. Now that he can do things
for himself she wants to take him away.
She is working as a contract worker with the Botswana Government.
She refused to answer the plaintiff's question when he asked her to
tell the court when her contract was due for renewal. Even when told
by the court to answer the question she would only say her contract
was due for renewal sometime next year. It is common practice the
world over that a contract may be renewed or may not.
The boy has now got a place at
Birchacre School in South Africa. It would not be in his best
interest to pluck him off from there to either go to Petra School in
Zimbabwe or go to some yet unknown school in Botswana.
The defendant was an unreliable witness.
She wanted the court to believe that she did not get her share from
the proceeds of the sale of the Bulawayo Centre Pharmacy. It only
came out under cross-examination that she in fact got a car, a table
and some chairs. So it was not true to say she was still in Botswana
because she had not received her share.
Defendant was also evasive and did not want to answer questions.
For instances when asked why she had left the children without
planning what was going to happen to them next her reply was that the
plaintiff and herself never used to talk to each other. When asked
why she did not tell her lawyer that the children had no food at the
Khumalo house her answer was that the lawyer who had over 20 years
experience was expensive. When pressed further why she did not even
tell her lawyer that the children were unhappy at the Khumalo house
and about the father not loving his daughter she was unable to
explain and maintained that her lawyer was expensive.
She clearly had no acceptable explanation. She and her lawyer were
in the habit of producing very long documents. Her plea and claim in
reconvention were long. Her synopsis of evidence was 12 pages yet in
all those long documents she does not mention these material points.
This court has no hesitation in making a specific finding that the
allegations of the children not having food at the Khumalo house and
not being happy there are after thoughts which are false and are
accordingly rejected.
Defendant told the court under cross-examination that the girl was
likely to go to study in the United States of America but produced no
evidence showing that a place for study has indeed been secured. The
girl turns 17 years on 22 instant and will attain age of majority
next year. She has already made her decision to stay with her
mother. It would not be fair to force her to go and live with her
father in South Africa. She should be left with the mother to enjoy
driving her mother's car to and from school.
As for the boy who will be turning 10 years on 22 July 2009, it is in
his best interest to continue living with his father. He is already
attending school at Birchacre in South Africa. The education in our
country collapsed last year when teachers went on strike. Examination
papers are taking nearly a year to mark. It would not be in the best
interest of the child to purport to put him in such an education
system. Neither would it be in his best interest to pluck him from
where he has been learning since January in order to go to some
school in Botswana. In the result, the court shall allow him to
remain with his father in South Africa.
In the light of the foregoing I would issue the following order:-
It
is ordered that:-
(1)
A decree of divorce be and is hereby granted;
(2)
The custody of the girl namely Senzosihle Mfanelo Mavume born on 22
June 1992 be and is hereby awarded to the defendant with plaintiff
being given reasonable rights of access to her;
(3)
The custody of the boy namely Bhekumuzi Khulile Mavume be and is
hereby awarded to the plaintiff with defendant being given reasonable
rights of access to him;
(4)
Each parent shall be responsible for the full maintenance of the
child in his or her custody, meeting in full the expenses incurred in
educating the child, including the timeous settlement of all invoices
produced by the school in respect of tuition fees, levies and any
other charges, and by meeting the costs of school uniforms or other
equipment required by the child during the course of his or her
education;
(i)
By meeting in full the costs of the child's extra mural activities;
(ii)
By meeting in full the costs of any medical, dental, surgical or
ophthalmic treatment of the child including the costs of medicines
and drugs administered in the course of such treatment;
(5)
Plaintiff shall retain sole ownership of the property known as Stand
6857 Pingstone Road, Khumalo, Bulawayo;
(6)
Plaintiff shall be entitled to have as his share 35% of the value of
the property known as Stand 4983200 Mpopoma, Bulawayo which shall be
paid to him on or before 30 September 2009 failing which the property
shall be sold so as to pay plaintiff from the proceeds of such sale;
(7)
Defendant shall retain sole ownership of the property known as 286
Jaywick Road, Matshemhlophe; and
(8)
Each party shall bear its own costs.
