CHITAKUNYE
J. The plaintiff and defendant were married in terms of the Marriages Act [Cap 5:11] on 23 April 1994.
Their
marriage was blessed with 3 children of whom two are now majors. These two were
born before the solemnization of the marriage on 22 April 1994. The 3rd
child was born on 29 June 1994 and is thus a minor.
On
19 December 2008 plaintiff sued defendant for a decree of divorce, division of
the matrimonial property and custody of the minor child.
The
plaintiff averred that the marriage has irretrievably broken down and that
there was no reasonable prospect of restoration of a normal marriage
relationship between them in that: 1. the parties have not lived together as
husband and wife since April 2001
2. the parties have lost all love and
affection for each other.
3. the parties have lost
trust in each other and the defendant has formed improper relationships with
other women, and has married another woman who he is staying with at the
matrimonial home.
The
defendant in his plea admitted that the marriage has irretrievably broken down
and that there are no reasonable prospects of restoration of a normal marriage relationship.
He made a counter claim seeking a decree of divorce, division of the
matrimonial property and custody of the minor child. He outlined the basis for
the breakdown as that:
1.
the plaintiff deserted the matrimonial home in 2001 and
left Zimbabwe
for the
Diaspora
2.
parties have not lived together as husband and wife
since 2001; and
3.
parties no longer have the love and affection for each
other.
When
the matter was set down for a pre-trial conference plaintiff could not avail
herself. The matter was postponed on a number of occasions to enable plaintiff
to avail herself for the pre-trial conference without success. Eventually the
pre-trial conference was held on 29 November
2009 without plaintiff's attendance.
When
the matter was set down for trial the plaintiff could not avail herself. On 15 March
2010 the plaintiff's then legal practitioner indicated that the plaintiff was
not available for trial despite notice of the trial date in good time. The
plaintiff had no valid travel documents for her to travel from Canada where
she is now residing. The plaintiff was thus seeking a postponement sine die. The application was opposed by
defendant. The grounds for opposition were that right from the issuance of
summons in 2008 plaintiff knew she would be required for trial but had not
obtained valid travel documents. The same reasons were used at the pre-trial
conference stage leading to the pre-trial conference being postponed but still
plaintiff did not come. The judge before whom the pre-trial conference was held
had to proceed without plaintiff. The defendant was thus opposed to a
postponement sine die as there was no
clear indication as to when plaintiff would obtain valid travel documents. Such
a postponement would serve no useful purpose.
Upon
hearing the arguments I postponed the trial to 22 March to enable plaintiff's
legal practitioner to clarify the position with her client.
On
22 March 2010 plaintiff's legal practitioner advised that she had been in touch
with the plaintiff and had duly advised the plaintiff of the need to come for
trial. She advised the plaintiff that trial had been postponed to 22 March
2010. The plaintiff was thus aware of the trial date. In spite of the advice
plaintiff insisted on her request for the matter to be postponed sine die. In the circumstances, the plaintiff's
then legal practitioner renounced agency. It was in those circumstances that
the defendant's legal practitioner applied for the plaintiff to be held to be
in default and for the plaintiff's claim to be dismissed. He also applied for
the plaintiff's defence to defendants counter claim to be struck out and for judgment
to be granted in favor of the defendant.
Upon
being satisfied that the plaintiff was fully aware of the trial date and that
she had not availed herself for trial I granted the defendants application. The
plaintiffs claim was dismissed and her defence to the defendants counter claim
was struck out.
As
the case was ready for trial, but for the plaintiff's default, the defendant gave
evidence on all the pertinent aspects on an uncontested counter claim.
The defendant gave evidence to the effect that he married the plaintiff
on 22 April 1994 in terms of the Marriages Act, [Cap 5:11]. Of their three children only one is still a minor. He
confirmed that the marriage has irretrievably broken down. The causes thereof
were that:-
- The plaintiff deserted the matrimonial home in 2001 and
went to the United States
of America. She has now moved to Canada.
- Since the plaintiff's desertion in 2001 the parties
have not lived together as husband and wife, that is, they have not enjoyed
conjugal rights.
- As a consequence they have lost love and affection
for each other.
He averred that there is no reasonable prospect of restoration of a
normal marriage relationship.
On custody of the minor child the defendant indicated that he is best
suited as he has had custody of the child since the plaintiff deserted the
family in 2001. He has been taking care of the child as the custodian parent.
Defendant said he is amenable to plaintiff being granted reasonable rights of
access whenever she is in Zimbabwe
and wishes to see the child. This can be over weekends or she can take the
child for holidays. He would however want the plaintiff to contribute towards
the upbringing of the child by paying the child's school fees whilst he meets
the child's other daily needs. It was his evidence that he had reason to
believe that the plaintiff is capable of making such payments from the income
she is earning.
On the property, it was his evidence that he be awarded the motor vehicle
and the few remaining chairs that are in the matrimonial house as his sole and
exclusive property. He testified that the rest of the property including
plaintiff's clothing was taken by their daughter a long time ago.
On the immovable property the defendant averred that he bought that
property on his own without plaintiff's direct contribution. He only had it
registered in their joint names because he thought that as husband and wife the
law demanded so. It was also spurred on by his love for his wife. In the
circumstances, he is prepared to grant plaintiff 20% of the value whilst he
retains 80%.
Upon hearing the defendant I was satisfied that indeed the marriage has
irretrievably broken down with no reasonable prospects of restoration. I was
also satisfied that a default judgment can be granted.
Accordingly a default judgment is
hereby granted in favor of the defendant as follows:-
- A decree of divorce be and is hereby granted.
- In respect of the minor child TINOTENDA PATRICK
MAKOSA (born 29th June, 1994)
(a) custody be and is hereby awarded to the defendant
(b) the plaintiff be and is hereby ordered to pay
all school fees for TINOTENDA PATRICK MAKOSA and other expenses reasonably
required for the attendance of the minor child at school with the defendant
taking care of all daily needs of the child.
(c) the
plaintiff is awarded reasonable rights of access to the minor child to be
exercised
upon request over weekends and during
holidays whenever she is in Zimbabwe.
3. The
defendant is hereby awarded the Ford Telster motor vehicle registration No.
523-
510G and the household goods currently in the
matrimonial house as his sole and
exclusive property
4. The immovable property stand 506 Hatfield Township 16 of
Medehampstede, Block C
of Hatfield Estate also known as
number 3 Cawood Close, Hatfield, Harare
registered in
the joint names of the parties
shall be valued by a firm of estate agent appointed by the
registrar from his list of
evaluators after which the defendant shall within a period of six
(6) months from the date of the
said evaluation pay to the plaintiff 20% of the net value
of the property.
Chinamasa, Mudimu,
Chinogwenya & Dondo, defendant's legal
practitioners
