JOHANNES NYAMAYEDENG

versus

ANGELA NYAMAYEDENGA

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 26, 27 JANUARY 2009 AND 4 MARCH 2010

FAMILY LAW COURT

Divorce Action

Mr Govere, for plaintiff

Mr M. Chingore, for defendant

MUSAKWA J: The plaintiff instituted action for divorce and ancillary relief. The parties married under customary law in 1991. The marriage was later solemnized under the Marriages Act in 1997. There are parties two minor children one of whom is now a major.

In his evidence in-chief plaintiff testified that he last shared conjugal rights with defendant four years previously. Attempts at improving relations failed. He did not give details of what efforts he made to mend the relationship save that defendant’s parents refused to be involved.

Between 1993 and 1998 plaintiff worked for the Ministry of Information and Publicity. In 1995 he was allocated house number 143, 16 Honde Close, Nyameni, Marondera on a rent-to buy basis. He paid off the purchase price by way of lump sum in 1999. Repayments used to be deducted from his salary. He claimed that defendant did not contribute anything towards the purchase of the house. As a result he claimed a seventy percent share of the house. He stated that he would be able to purchase defendant’s share within one month. He also sought to remain in occupation of the house and offered to secure alternative accommodation for defendant.

 Plaintiff claimed that he should be awarded custody of the two children as he is gainfully employed and he spends more time with them. He claimed that defendant devotes no time to the children as she is a cross-border trader. On some occasions defendant was said to have spent two months away from home. On her return she would spend only about a week. In the event that custody is granted to defendant plaintiff said he can provide maintenance.

Under cross-examination plaintiff denied sharing conjugal rights with defendant two weeks before the commencement of trial. This is because he claimed not to be on talking terms with defendant. He claimed not to share meals with defendant and that he only eats meals prepared by their daughter. However, he admitted that defendant had returned to the main bedroom. This was after he had served her with summons. He also admitted that he has two children with another woman.

On the other hand defendant claimed she still loves plaintiff although she conceded that plaintiff no longer loved her. This rift was attributed to the fact that plaintiff had shifted her affection to another woman with whom he is staying. She stated that they have been sharing conjugal rights and had done so two weeks before trial. She also testified that plaintiff started to ill-treat her from 1999. In January 2008 plaintiff is said to have taken away his clothes from the matrimonial home. He makes some visits to the matrimonial home. Defendant was asked if they can still live as husband and wife under such circumstances. Her response was that it is difficult where one spouse no longer loves the other.

Defendant also testified that the elder child had finished ‘O’ level whilst the younger one was doing grade seven. The children only join her during holidays. She conceded going to South Africa to source goods for resale and this she attributed to ill-treatment by plaintiff. At some stage she claimed she resorted to vending meat illegally. She would return home and find the doors locked. In February 2009 she was locked out for two nights. She was only restored after she secured a court order. In October and November she was away for two weeks.

She said she contributed towards the family’s welfare. The only thing she did not contribute was school fees. She dyed cloths which she sold. The proceeds were used on food and household utensils. She also purchased clothes for herself and the children as well as purchasing a carpet. This was between 1999 and 2002. Plaintiff then chased her away from Mutare and she went to stay in Marondera.

As regards the matrimonial home she indicated that she wants to be awarded a forty five percent share. She also indicated that she wants to reside in the matrimonial house until the younger child is eighteen years old. She also stated that the plaintiff should provide maintenance in the sum of R400 for herself and the children.

Under cross-examination defendant stated that she first knew about plaintiff’s infidelity in 1999. She said she knew of two women with whom plaintiff has children. Regarding conjugal relations she said she consented because she loves plaintiff. The other reason she proffered was that if she had turned him down he would have used this as a ground for seeking divorce. Despite her avowed love for plaintiff she conceded that plaintiff cannot be compelled to love her.

In his closing address Mr Govere urged the court to find that the marriage relationship has irretrievably broken down. He submitted that it was incredible that the parties enjoy conjugal relations when they do not even communicate with each other. He also referred to plaintiff’s evidence that defendant’s parents were unco-operative when he sought their assistance in mending the sour relations. He also submitted that the fact of adultery serves to confirm plaintiff’s loss of love and affection for defendant.

On custody, apart from citing relevant authorities Mr Govere submitted that custody must be awarded on the basis of a parent’s ability to communicate and provide basic needs. He also pointed out the children’s preferences, especially the younger one. In the event of custody being awarded to defendant, he submitted that plaintiff can only afford US$30 per month including paying school fees and buying clothes for the children.

In respect of the matrimonial property Mr Govere submitted that defendant had conceded that she did not make a direct contribution. He indicated that plaintiff wants buy out defendant’s share within a month of the divorce order being granted. In the alternative, he submitted that the house should be sold and the proceeds shared in the ration of seventy percent for plaintiff and thirty percent for defendant.

The first issue is to determine whether the marriage relationship between the parties has irretrievably broken down to such an extent that there are no prospects of the restoration of a normal marriage relationship. Section 5 (2) of the Matrimonial Causes Act [Chapter 5:13] provides that:-

 (1) An appropriate court may grant a decree of divorce on the grounds of irretrievable break-down of the marriage

if it is satisfied that the marriage relationship between the parties has broken down to such an extent that there is

no reasonable prospect of the restoration of a normal marriage relationship between them.

(2) Subject to subsection (1), and without prejudice to any other facts or circumstances which may show the irretrievable

break-down of a marriage, an appropriate court may have regard to the fact that—

(a) the parties have not lived together as husband and wife for a continuous period of at least twelve months

immediately before the date of commencement of the divorce action; or

(b) the defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a

normal marriage relationship; or

(c) the defendant has been sentenced by a competent court to imprisonment for a period of at least fifteen years

or has, in terms of the law relating to criminal procedure, been declared to be a habitual criminal or has

been sentenced to extended imprisonment and has, in accordance with such declaration or sentence, been

detained in prison for a continuous period of, or for interrupted periods which in the aggregate amount to, at

least five years, within the ten years immediately before the date of commencement of the divorce action; or

(d) the defendant has, during the subsistence of the marriage—

(i) treated the plaintiff with such cruelty, mental or otherwise; or

(ii) habitually subjected himself or herself, as the case may be, to the influence of intoxicating liquor or

drugs to such an extent;

as is incompatible with the continuation of a normal marriage relationship;

as proof of irretrievable break-down of the marriage.

(3) If it appears to an appropriate court that there is a reasonable possibility that the parties may become reconciled

through marriage counsel, treatment or reflection, the court may postpone the proceedings to enable the parties

to attempt a reconciliation.

(4) Where proceedings have been postponed in terms of subsection (3), they may be resumed, with leave of the

court, before any other presiding officer or judge of the court.”

 The defendant maintained that she still loved plaintiff although she acknowledged that plaintiff no longer loved her. In terms of section 5 (3) of the Act a court may postpone the proceedings if it appears that there are prospects of a reconciliation. In support of defendant’s claim that she still loved plaintiff, she testified that she had been intimate with plaintiff two weeks prior to the commencement of trial. This assertion was challenged by plaintiff.

There are other factors that suggest that the marriage has irretrievably broken down. Whilst plaintiff’s evidence to the effect that he does not communicate with defendant went unchallenged, defendant’s own evidence shows maltreatment at the hands of plaintiff. She testified that she had been chased away from Mutare in 1999 and she went to stay in Marondera. There is also the evidence that at some stage she was locked out of the matrimonial house. She was only restored through a court order. Then there were the acts of adultery that were admitted by plaintiff. It was also not in dispute that at the time of trial plaintiff was staying with another woman.

Defendant did not suggest in what way the marriage may be salvaged. This is particularly pertinent if one considers plaintiff’s testimony to the effect that defendant’s family spurned his overtures for them to lend a hand in reconciling the parties. In light of the available evidence I am satisfied that the marriage relationship has irretrievably broken down such that there are no prospects of the restoration of a normal marriage relationship.

On custody, the elder of the parties’ two children is now a major. However, both parties want custody of the younger child as was the case in respect of the elder child. Although plaintiff contested this issue he had long conceded that custody be awarded to defendant in his replication. Since no amendment was sought, it was futile on the part of plaintiff to pursue this issue. Even the authorities cited by plaintiff’s counsel on the best interests of the child are of no consequence.

 Plaintiff conceded that he would provide maintenance in the event of custody being awarded to defendant. This would be in addition to paying school fees and other school requirements. As for the quantum of maintenance, the court will take into account that plaintiff was not earning much in local currency as at the time of trial. However, he had acceded to paying the equivalent of R300 for both children. He did say he supplements his salary through other means that he did not specify. That is why he was able to pay for the children’s boarding school fees. There was also mention of a farm although plaintiff said it was the subject of a dispute with another beneficiary. Overall I would hold that maintenance in the sum of US$60 per month would meet the justice of the case. This is because I have taken into account that plaintiff had offered to pay defendantUS100 for rentals in the event she moved out of the matrimonial home. The defendant can always seek a variation when there is a change in plaintiff’s circumstances.

Regarding the division of assets, section 7 of the Act provides that:-

 (1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any

time thereafter, an appropriate court may make an order with regard to—

(a) the division, apportionment or distribution of the assets of the spouses, including an order that any asset be

transferred from one spouse to the other;

(b) the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of

one or other of the spouses or of any child of the marriage.

(2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as

the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of

securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the

generality of this subsection—

(a) order any person who holds any property which forms part of the property of one or other of the spouses to

make such payment or transfer of such property as may be specified in the order;

(b) confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate

court to be necessary or expedient.

(3) The power of an appropriate court to make an order in terms of paragraph (a) of subsection (1) shall not extend

to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether

before or during the marriage—

(a) by way of an inheritance; or

(b) in terms of any custom and which, in accordance with such custom, are intended to be held by the spouse

personally; or

(c) in any manner and which have particular sentimental value to the spouse concerned.

(4) In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances

of the case, including the following—

(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 and child 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

or expected to be 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;

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.

(5) In granting a decree of divorce, judicial separation or nullity of marriage an appropriate court may, in accordance

with a written agreement between the parties, make an order with regard to the matters referred to in paragraphs (a)and (b) of subsection (1). 

The bone of contention centred on the bedroom suite, coffee table and chairs. Plaintiff’s evidence was that he purchased all the movables save for a carpet. On the other hand defendant testified that she also contributed towards the purchase of sofas. This was after plaintiff defaulted in paying installments to Pelhams.  In addition she stated that she also purchased the coffee table and chairs albeit having received some of the money from plaintiff. Although plaintiff disputed that defendant ever contributed to the purchase of movables it is inconceivable that defendant never engaged in any income generating activities. This is especially so when it is not disputed that she embarked on cross-border trading in order to supplement the family income. In addition it was never challenged that defendant was once locked out of the matrimonial home for two nights. This happened after she had returned from selling some wares. Defendant also told the court that she used the money she earned on clothes for herself and the children as well as for food. As for the refrigerator plaintiff did not want it awarded to defendant but preferred that it be awarded to the children. Since I am going to award custody of the minor child to defendant I will exercise my discretion and award the refrigerator to defendant as that will in essence benefit the child as well. Plaintiff has a better earning capacity than defendant. I will therefore also award the lounge suite to defendant.

As for the immovable house there is no doubt that it constitutes matrimonial property. It is only that plaintiff has not yet taken title. However, he paid off the purchase price in 1999. It is not in dispute that defendant did not make any direct contributions. However, she supplemented the family income and assisted in the upbringing of the children, let alone cooking and washing for plaintiff as well up to such time the marriage relationship deteriorated. Up to the time of trial the parties had been married for eighteen years, which period must be taken into account in distributing the matrimonial assets. I will award defendant a share of forty percent of the matrimonial home having taken into account that it is difficult to quantify the precise value of her indirect contribution.

The plaintiff has an obligation to provide accommodation for the minor child. Under cross-examination he stated that he could provide US$100 for such accommodation. This would be in lieu of defendant’s occupation of the matrimonial house. Plaintiff did not challenge defendant’s testimony that he moved out of the matrimonial house to put up with one of his mistresses. This means that as between plaintiff and defendant, the former has ready access to alternative accommodation. It would meet the justice of the case if the court orders that defendant is to remain in the matrimonial home until the minor child attains the age of eighteen years. However defendant will have to forgo part of her share of the house as plaintiff’s enjoyment of his share will be put in abeyance. Since the minor child is now fourteen years old, it means defendant will live in the house for only four years. I will therefore take away five percent of her share and give it to plaintiff.

In the result it is ordered that-

1. A decree of divorce be and is hereby granted.
2. Custody of the minor child Tinashe Talent Nyamayedenga be awarded to defendant with plaintiff having access during the first two weeks of every school holiday.
3. Plaintiff is awarded the following items- bedroom suite, radio with c.d. player, colour television set, video cassette recorder, coffee table and chairs.
4. Defendant is awarded the following items- bed, four plate stove, wardrobe, three piece wall unit, dining room suite with folding table, sewing machine, all kitchen utensils and cutlery as well as refrigerator.
5. Plaintiff is awarded sixty five percent and defendant is awarded thirty five percent of the value in respect of house number 143, 16 Honde Close, Nyameni, Marondera.
6. Upon the minor child attaining the age of eighteen years the house in paragraph (e) shall be valued by an evaluator appointed by the Registrar. Thereafter plaintiff shall have the option to pay to defendant the value of thirty five of her share failing which the house shall be sold to best advantage on the open market and the net proceeds shared as in paragraph (e) above.
7. Each party shall bear their own costs.

Coghlan, Welsh & Guest, plaintiff’s legal practitioners

Chingore & Associates, defendant’s legal practitoners