MAVANGIRA
J: The parties are husband and wife. They married customarily in 1981 and later
solemnized their marriage in terms of the Marriage Act, [Cap 5:11], (then Cap 37),
on 18 October 1985. Three children were born of the marriage and one of them is
still a minor. Certain unhappy differences have arisen in the marriage. The
plaintiff now seeks an order of divorce from her husband, custody of their
minor child and division of their property. The defendant has counterclaimed
for a decree of divorce, custody of the minor child, division of the
matrimonial estate and maintenance for himself in the sum of ZW$40 000 per
month.
The
joint pre-trial conference minute in terms of which this matter was referred to
trial records that the defendant abandoned his claim for maintenance. It also
records that the custody of the minor child of the marriage is no longer an
issue as the minor child concerned is beyond the jurisdiction of this court.
The parties reached agreement as to the disposal of most movable items. They
only require this court to determine the distribution of two immovable
properties being Stand 3687 Old Highfield, Harare
and Stand 7635 New Stands, Old Highfield, Harare
as well as a Nissan Sunny motor vehicle.
The
parties agree that their marriage has irretrievably broken down but each proffers
different reasons therefor. The reasons given by the plaintiff for the
breakdown of the marriage are that the defendant is a philanderer who has
fathered at least six children with different women during the subsistence of
their marriage. She contends that the defendant would desert the matrimonial
home for long periods of time leaving the plaintiff to single-handedly shoulder
the bulk of the family expenses. Furthermore, that he was also physically and
emotionally abusive towards her and failed to treat her with the love,
affection, companionship and friendship as is expected between husband and
wife. She contends that the parties have lost all love and affection for each
other. She further contends that the defendant's wayward conduct during the
subsistence of the marriage constitutes gross marital misconduct and that this
is a proper case in which in terms of s 7 (4) of the Matrimonial Causes Act, [Cap 5:13], ("the Act"), it is reasonable
and practicable for this court to take his misconduct into account in determining
the proprietary rights of the parties in respect of the outstanding items of
property on which no agreement has been reached.
The
defendant on the other hand gives as the reason for the breakdown, interference
by the plaintiff's relatives in the affairs of their marriage. He admits having
had a relationship with some of the women named by the plaintiff. He admits that
he fathered three children with one of the women. He said that he also
discovered at a late stage that a son whom he had allegedly fathered with yet another
woman and whom he had maintained for some time was in fact not his child. He
contends that the plaintiff was fully alive to the fact that he was having
mistresses but that she was able to live with it and that she forgave him for this.
He also contends that the plaintiff has failed to treat him with love and
affection as she has resorted to abusing alcohol and has also constantly denied
him his conjugal rights.
With
regard to the immovable property, the plaintiff prays for an order that Stand
3687 Old Highfield, Harare and Stand 7635 New
Stands, Old Highfield, Harare
be donated to two of the children of the marriage with the defendant having a
life usufruct on Stand 3687 Old Highfield. Alternatively, that the plaintiff
transfer her half share in Stand 3687 Old Highfield, Harare to the defendant in
exchange for defendant's claims in Stand 7635 New Stands, Old Highfield,
Harare. The plaintiff also wants to be awarded the Nissan Sunny motor vehicle. The
defendant on the other hand wants the immovable properties to be valued and for
him to be awarded a half share. He also wants the Nissan Sunny to be awarded to
him.
The
plaintiff stated in her evidence that the defendant had many mistresses at various
times during the subsistence of the marriage. She told the court about an
extra-marital affair that the defendant had with one workmate at his former
workplace when he was still in government employment. She had to resort to
approaching the administrator at the workplace and she did so in the company and
at the behest of the defendant's mother. This resulted in the administrator
causing the transfer of the workmate from the same station with the
defendant. She also produced letters
purportedly written by another named mistress to both the defendant and to herself
respectively. The letters are written mainly in the vernacular with some random
portions that are in the English language. The plaintiff stated that the
defendant had sired three children with this particular mistress and that the
children were born in 1989, 1992 and 2001 respectively, a period spanning
twelve years. She said that the
defendant had married the said mistress under custom. This relationship may
have ended when the defendant got involved in another relationship with a different
woman. She also said that the defendant also sired one child with a Hatcliffe
woman for whom he had also paid lobola and performed all traditional marriage
rites. He allegedly also had one child with a Chegutu woman whom he also
purported to marry under custom and another child with a Zvimba woman with whom
he also purported to contract a customary marriage.
The defendant admitted having three
children with one mistress. He claimed that he had only paid damages for making
one woman pregnant and denied having purported to enter into any kind of
marriage with any other woman besides the plaintiff. With regard to yet another
named woman he claimed that although he had met her, nothing serious had taken
place. He denied fathering a child with her. It was only whilst he was being
cross-examined that he admitted that a child had been born to the woman and
that he was registered in the Births Register as the father. He however
immediately claimed that he had later discovered that the child was not his.
As
submitted by the plaintiff's legal practitioner, if the defendant at some stage
believed that the child was his, that on its own is an indicator that the
relationship was sexual and therefore adulterous. His denial of the other
adulterous relationships was rather feeble and lukewarm. The falsity of his
denials was embarrassingly exposed particularly during cross-examination when
he reneged on various material aspects of his evidence in chief. He also denied
that he had fathered a daughter who is now aged four and who stays with his
sister in Glen View. He said that the girl was his sister's son's daughter and
that if his sister had introduced her to the plaintiff as his son, she lied to
the plaintiff.
Regarding
the defendant's contention which the plaintiff denied, that the plaintiff had
condoned his adultery, it would appear to me that had the plaintiff done so, she
then would not have instituted these proceedings for divorce. Furthermore, the
parties would still be living together as husband and wife which they are not.
She would not be denying him his conjugal rights as he now complains. In any
event, it is highly unlikely that in this day of the deadly HIV virus the
plaintiff would have condoned each of the defendant's numerous and unending adulterous
relationships. The defendant appears to have continuously engaged in these with
total arrogance, complete disregard and a blatant disrespect for the
institution of marriage and for the plaintiff's feelings. The defendant's
demeanour before the court was also pervaded with an aura of self-righteousness
and a lack of any acknowledgment on his part that his conduct was incompatible
with the tenets of a civil marriage. He rather sought to hit back at the
plaintiff by calling her a drunk yet this was neither pleaded in his papers nor
put to her at any stage.
The
plaintiff also testified that the defendant would physically assault her and
that one such instance resulted in her going to live with the defendant's elder
brother for a month. She also said that she had to approach the courts on many
occasions for peace orders. The plaintiff said that she was so stressed in the
marriage that she asked her employer to transfer her out of Harare. She was transferred to Kwekwe but the
defendant sent emissaries to convince her to return to Harare and she did so in the belief that the
defendant had turned a new leaf. It turned out sooner than later that he had
not. The defendant's responses to these allegations were non-committal and
rather feeble as he would only say that the plaintiff had had to go and live
with his brother on the said occasion because of a misunderstanding without
elaborating on the details of the alleged misunderstanding and without
specifically denying the plaintiff's specific allegations stated above. It also
appears to me in the circumstances that the plaintiff cannot be said to have
condoned the defendant's adultery. Rather, she appears to have patiently
entertained the hope that the marriage could be salvaged hence her agreement to
return to Harare
to resume married life with the defendant, which hope as it later turned out
was misplaced.
The
plaintiff has urged the court to take the defendant's conduct into account and find
that the defendant is guilty of gross marital misconduct; and in terms of s
7(4) of the Matrimonial Causes Act, [Cap
5:13], accordingly make an appropriate order with regard to the division,
apportionment or distribution of the two immovable properties and the Nissan
Sunny motor vehicle as would place the spouses and the children in the position
they would have been had a normal marriage relationship continued between the
plaintiff and the defendant. For the reasons appearing above I am satisfied
that the defendant's conduct during the subsistence of the marriage amounts to
gross marital misconduct.
Stand
3687 Old Highfield, Harare,
was donated to the parties in equal shares by the defendant's parents. Stand
7635 New Stands, Old Highfield, Harare
was purchased in the plaintiff's name through a mortgage loan that she applied
for in 1994 from her then employers, Standard Chartered Bank. The plaintiff
said that she facilitated that defendant apply for an overdraft to raise the
required 10% deposit for Stand 7635. She helped the defendant repay the
overdraft. This was in addition to the instalments that were deducted from her
salary for the repayment of the mortgage loan. She testified that during the
defendant's many sojourns away from the matrimonial home his concentration was
on his mistresses and their children whilst she took care of all family and
household business. She has carried out extensive renovations which are still
ongoing at Stand 7635 New Stands, Old Highfield, Harare. The defendant's response to this
initiative on her part was that she should not have carried out the renovations
pending the divorce.
In
addition to the testimony already discussed above, the defendant conceded
during cross-examination that he does support his three children with the one
mistress and that for some time he also supported the one child he fathered
whom he said he later discovered was not his as the mother had been having an
affair with another man at the same time. He conceded that the three letters produced
as exhibits by the plaintiff were written by one of his mistresses. The letter
to the plaintiff is undated. The two letters to the defendant are dated 5 April 1993 and 15 April 2003 respectively.
He denied any knowledge of the claims made in the letters addressed to him, to
certain items of property. He maintained that he did not set up a household
with the mistress and did not purchase any property and that he had no idea as
to what she was talking about. He said that the claims that the mistress made
in the letter addressed to the plaintiff that he had paid lobola for her as
well as the traditional "mombe yeumai" and that she was accepted by all the
in-laws as a daughter in law were all false.
The
defendant claimed that his financial woes only started in 2004 and not earlier
as claimed by the plaintiff yet when he was cross-examined on this he was
unable to give a coherent account. He denied having stayed with one named woman
during the time that he was based in Norton claiming instead that he lived in a
friend's furnished cottage. The letter dated 5 April 1993 from the said woman starts
off with an apology and also absolves the addressee, the defendant, from any
fault for whatever had happened the previous day. The rest of the letter is in
the vernacular and I did not have any regard to that portion. The letter dated
15 April 2003 states among other things, that the defendant had asked the
author of the letter to take over the payment of accounts as he could no longer
do so. It states that the defendant had indicated that she could thereafter
take everything in Norton, save for a bed which the author proceeded to state
that she had nevertheless taken. The author states that they had discussed and
agreed that the property would be ferried to Banket from Norton with the help
of one Kundi. Reference is also made in the letter to a wrangle over some
property items between the author and another named woman who the author
implied was another of the defendant's mistresses.
The
defendant's denial is highly improbable. It is more probable that he stayed
with the said woman in Norton. From the letter it appears that the relationship
became troubled around 2003, some fourteen years after the birth of the first
of the three children of this relationship. It also emerges that the cause may
have been the defendant's new relationship with yet another woman, which
relationship this particular mistress also found unacceptable. In fact reference is made to not only one
other woman but two other women. The denials by the defendant of the
plaintiff's claim that he would expend his attentions and his finances on his
various adulterous relationships and neglect his family are baseless and ought
to be dismissed as untrue. The probabilities tend to support the plaintiff's
testimony as to the defendant's wayward conduct in the various respects that
she stated. After he left Government service the defendant appears to have
ventured into projects that did not meet with any meaningful measure of
success. They all appear to have flopped. As a result he failed to support his
family adequately leaving the plaintiff to bear most of the burden. He said
that he had to sell a Peugeot 405 motor vehicle in order to service a loan he
had obtained from the ZDB, yet it is during this period that he curiously
claims to have been giving plaintiff cheques "for herself and for household
expenses". He lost his computers in Kadoma to thieves; his canteen equipment in
Harare went up
in smoke. His claim that he gave the plaintiff Z$6 million to pay off the house
in November 2004 was proved to be false as the house had been paid off in early
2003.
He
refused to disclose his monthly income in South Africa where he is now
employed on the ground that he did not think it would be in his interests to do
so. He conceded that in 2002 the plaintiff went to the United Kingdom
where she worked and came back home in May 2003. He however denied that when
she came back in 2003 she used the money that she had earned in the United Kingdom
to pay off the loan that they had acquired from the bank to purchase Stand
7635. He rather claimed that the cheque that he issued in 2004 to the plaintiff
was for payment in full of the loan. He also then said that due to an oversight
on his part he had failed to ascertain from the bank as to how much was
outstanding on the loan account. He said that from mid 2005 to April 2008 when
he left for South Africa
he was not gainfully employed and thus could not contribute to the improvements
being made to the house. He was surviving on assistance from friends. He
maintained however that he did not see the logic of having these renovations
done before the divorce action was over.
The
defendant said that when the plaintiff asked him to contribute to the payment
of university fees for their first born daughter he felt that he had no legal
obligation to do so as she was then married and was someone's wife. It was the plaintiff's
evidence however that the defendant had since taken their daughter back home
and that by the time that she left for the United Kingdom where she attended
university she was already back home with them. The defendant also said that
from the time that their youngest son went to stay with his sister in the United Kingdom
in 2002 he had only sent some items of clothing for him in 2009. In one breath
he said that this was because when he asked his daughter if she would cope with
looking after her brother in the United Kingdom she said that she
would not have any problems. In another breath he said that during the same
period he continued to support his three children with his mistress because it
was easier for him to buy them food than it was to send food to his son in the United Kingdom.
It would appear however that his failure to support their youngest child was
not a result of financial inability as he stated that his financial woes only
began in 2005. He is currently living in a two-bedroomed house in South Africa
for which he pays a monthly rental of ZAR3 500. He further said that he is not
in control of Stand 3687 Old Highfield as the rentals are collected by his
parents. Yet, he also conceded that he had in March 2002 used the house as
security for a loan without the plaintiff's knowledge despite the fact that
they are co-owners of the property. Furthermore, the plaintiff said that the
two of them decided that instead of them buying groceries for his parents every
month, it would be more convenient for the rentals from the said property to be
used for the upkeep of his parents and she was not challenged on this aspect. .
The
defendant's vindictiveness against the plaintiff also came to the fore when
during cross-examination he conceded that the plaintiff needs a place to stay
in Harare as
that is where her work is but vehemently opposed the idea of her continuing to
live in the house at Stand 7635 New Stands, Old Highfield. In the very next
breath, in answer to another question he said that he also needs that house as
much as the plaintiff does as he could come home to Zimbabwe at any time.
Section
7 (4) of the Act requires the court to have regard to all the circumstances of
the case including the following factors in making an order with regard to the
division, apportionment or distribution of the assets of spouses. These are:
(a)
the income earning capacity, assets and other financial
resources which each spouse and child has or is likely to have in the
foreseeable future;
(b)
the financial needs, obligations and responsibilities
which each spouse has or is likely to have in the foreseeable future
(c)
the standard of living of the family, including the
manner in which any child was being educated or trained;
(d)
the age and physical and mental condition of each
spouse and child;
(e)
the direct or indirect contribution made by each spouse
to the family, including contributions made by looking after the home and
caring for the family and any other domestic duties;
(f)
the value to either of the spouses or to any child of
any benefit, including a pension or gratuity, which such spouse or child will
lose as a result of the dissolution of the marriage;
(g)
the duration of the marriage
The subsection ends with the
following provision:
"and in so doing
the court shall endeavour as far as is reasonable and practicable and, having
regard to their conduct, is just to do so, to place the spouses and children in
the position they would have been in had a normal marriage relationship
continued between the spouses".
That the
defendant is guilty of gross marital misconduct appears to me to be borne out
by the evidence placed before this court. The issue was fully ventilated by the
parties and in my view, on a balance of probabilities, the plaintiff proved her
case on this aspect. However, on a reading of s 7 (4), it is clear that the
conduct of the parties is not the only, nor indeed the major factor that the
court takes into account in determining the issue of the division,
apportionment or distribution of the assets of spouses. With regard to the
first listed factor, it is noted that in
casu, the plaintiff is currently
earning about USD100 while the defendant who refused to say how much he is
currently earning in South
Africa lives in a house for which he pays
ZAR3 500 every month.
With
regard to present and future financial needs, obligations and responsibilities,
it appears that the plaintiff is currently engaged in the renovations and
extensions to the matrimonial home at Stand 7635, New Stands, Old Highfield.
Presumably, they both have and will continue to have to bear the expenses
relating to their respective self-sustenance.
With
regard to the parties' standard of living the plaintiff has always lived at the
matrimonial home save for the period that she was in Kwekwe after she had asked
to be transferred. She devoted her earnings to the needs of the family. Whilst
in earlier times the two of them would sometimes work together and would both
contribute to any improvements, renovations and extensions of the house, the
plaintiff has during most of the latter part of the marriage continued to do
this alone and without any input from the defendant. The defendant has on the
other hand not directed his full attention and earnings solely to his family
but has rather dissipated resources as he moved from one extra-marital
relationship to another and as he has had to maintain the children borne out of
those relationships. He chose to spend a lot of time away from his family
leaving the plaintiff to hold fort alone. He behaved almost like a nomad. As at
the date of trial he was not even aware of the renovations and refurbishments
that were being carried out at the matrimonial home. Yet it is telling that he
opposed the distribution of the immovable property in terms of the plaintiff's
suggestion for the reason that whilst the matrimonial home is now a modern
house, the other property is a four roomed house consisting merely four walls
and a roof as it has not been similarly modernized. It thus appears that the
defendant and the plaintiff have not been enjoying the same standard of life
for the mere reason that they have not generally always lived together
continuously under the same roof as the defendant did not stay in one place due
to his philandering. Despite his denial the available evidence shows, on a
balance of probabilities that he did set up home with the one mistress in
Kadoma and that he purchased household goods which it appears he later failed
to pay for resulting in the mistress paying off the accounts and taking the
property with her when their relationship reached a rough patch.
With
regard to their ages, when the parties solemnized their marriage some 24 years
ago in 1985 the defendant was aged 24 while the plaintiff was 22. They are now
thus about 49 and 47 years old respectively. This in all fairness ought to be
regarded as a period that represents a lifetime as they have both gone past the
youthful and most productive years of their lives.
Regarding
their respective contributions, in view of the evidence placed before this
court, I have no doubt that the plaintiff made a greater contribution to the
family both directly and indirectly, not only by looking after the home and
caring for the family and doing other domestic duties but also by way of
financial, managerial and other contribution for the livelihood of the family
and the improvement of their standard of life.
With
respect to the sixth factor no evidence was placed before the court regarding the
value to either spouse of any benefit, including a pension or gratuity which
any of the spouses will lose as a result of the dissolution of the marriage. As
for the duration of their marriage the parties' customary marriage was in 1981,
some 29 years ago. It was solemnized 25 years ago in 1985.
In
terms of s 7 (4) of the Act, it is the duty of the court to make an order that as
far as is reasonable and practicable, places the spouses and children in the
position they would have been in had a normal marriage relationship continued
between the spouses. In casu the
defendant does not appear to have placed much value on his being fully or
wholly available for his family, particularly the plaintiff in the physical,
emotional, moral and financial sense. He lived a life that in a way resembles
that of a nomad yet he appears to want to have his cake and eat it. It appears
to me that the plaintiff's life will be unduly disrupted if she should have to
move out of the matrimonial home. I do not think that the same can be said of
the defendant. I do not see much prejudice to the defendant if he should, as
prayed for by the plaintiff in her alternative prayer, be awarded the other
property, Stand 3687 Old Highfield. I am persuaded by the plaintiff's legal
practitioner's submission that if the defendant wishes Stand 3687 Old Highfield
to be spruced up to the same level as Stand 7635 New Stands, he can do that
from his undisclosed salary. In view of the respective contributions made by
the parties to the development of the matrimonial assets as well as the
defendant's level of misconduct, it is my view that the plaintiff is entitled
to the order that she seeks in the alternative in respect of the outstanding
items of property. On this particular aspect the defendant chose not to be
candid with the court and I again find persuasive the further submission made
that that can only mean that he faces no financial hardships and his life would
continue as normal whatever the result. In fact his explanation of why he would
not disclose his salary to the court is quite telling; he said that he felt
that it would not be in his interest to do so.
I
am aware that Stand 3687 Old Highfield is jointly owned by the parties.
However, s 7 (1) (a) of the Act empowers the court to order that any asset be
transferred from one spouse to the other. I will therefore order the plaintiff
to transfer her half share in that property to the defendant.
This
now leaves the issue of the Nissan Sunny as the only outstanding issue. On this
issue Mrs. Mtetwa's in her closing
submissions said that the defendant has shown no justification for claiming
this vehicle as he disposed of two family motor vehicles without account to
plaintiff. The plaintiff did not benefit from the proceeds of the two vehicles.
Furthermore the vehicle was purchased by the plaintiff during a period when he
was absent from home and he did not make any contribution towards its purchase.
The defendant thus wants to reap where he did not sow. He also has no need for
the vehicle whilst it has been the plaintiff's mode of transport during the defendant's
absence and continues to be even as at the date of trial.
I
am in agreement with Mrs. Mtetwa's
submissions which in my view succinctly lay bare the futility of the
defendant's claim to the motor. The defendant has not justified his claim. I
will award the Nissan Sunny motor vehicle to the plaintiff.
The plaintiff also prayed for an
award of costs in her favour. In her closing submissions the plaintiff's legal
practitioner urged the court to award costs against the defendant who caused
the unnecessary lengthening of the trial by his unreasonable attitude in
disputing his various acts of misconduct which were mostly confirmed during his
cross-examination. The plaintiff was thus forced to give evidence on every
minute detail resulting in the unnecessary prolongation of the trial. She cited
Gambiza v Gambiza SC 75/2009 as authority for awarding costs against the
defendant on a punitive scale. She also cited Marimba v Marimba 1991
(1) ZLR 87 as authority justifying this court awarding costs as a sign of its
displeasure where a litigant in a matrimonial case behaves badly. At p98 A-B of
the Marimba case GILLESPIE J stated:
"Finally,
as to costs, I consider the plaintiff the substantially successful party and
deserving of an award of costs, notwithstanding that in matrimonial matters
courts may be less inclined to order costs to follow a finding of substantial
success. Not least of the factors influencing this award is the thoroughly
reprehensible treatment the defendant has meted out to the plaintiff over the
past eighteen years. It is not a husband's place to beat his wife nor a wife's
lot in life meekly to endure. It is most regrettable that the advice given to
the plaintiff for so many years only served to perpetuate her submission to
abuse. My order of costs signifies the repugnance with which marital violence
is viewed."
The learned
judge proceeded to order the defendant to pay the costs of suit. In my view for
the reasons already discussed above, the instant matter is a proper case in
which the repugnance of the defendant's conduct should result in an order of
costs. The defendant abused the plaintiff not only physically but also
emotionally for most of their married life.
For the reasons above the following
order is now made:
It is ordered:
- That a decree of divorce shall issue.
- That the assets of the parties shall be divided as
follows:
(a)
Stand 7635 New Stands, Old Highfield, Harare be and is hereby awarded to the
plaintiff who shall retain it as her sole and exclusive property.
(b)
Stand 3687 Old Highfield, Harare be and is hereby awarded to the
defendant as his sole and exclusive property; and
(i) The plaintiff shall transfer
her half share in Stand 3687 Old Highfield, Harare to the defendant within
(fifteen) 30 days of being requested, in writing, to do so by the defendant
failing which the Sheriff or his lawful deputy is hereby empowered and
authorised to sign all necessary documents and do any acts as may be necessary
to give effect to the transfer of the plaintiff's half share into the
defendant's name.
(c) The Nissan
Sunny motor vehicle is hereby awarded to the plaintiff as her sole
and exclusive property.
3. The defendant shall pay costs of suit.
Mtetwa & Nyambirai, plaintiff's legal practitioners
Maunga &
Associates, defendant's legal practitioners
