BEKITEMBA LENKOSI DUBE

versus

LIZZY DUBE nee SOKO

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 1 October 2010 & 24 July 2011

Family Law Court

Trial Cause

Plaintiff, in person

C. Damiso,for defendant

            MAWADZE J: On 9 September 2009 the plaintiff issued summons out of this court seeking a decree of divorce on the basis of irretrievable breakdown custody of the two minor children, an order of sharing matrimonial property and that each party bears its own costs.

            The defendant filed her plea and counter claim on 8 October 2009 in which she sought an order for custody of the two minor children, maintenance for the two minor children, an order of sharing matrimonial property and post divorce maintenance for the defendant in the sum of US $250-00 until defendant secures a job or becomes self-supporting.

            The parties who now seem to accept that their marriage is indeed beyond resuscitation married each other in terms of the marriage Act [Cap 5:11] at Harare on 19 July 1996. The marriage is blessed with two children both females, Sifiso Dube born on 19 September 1995 and Stabile Dube bone on 7 December 1999.

            Although the marriage between the parties has irretrievably broken down the parties live under the same roof, albeit without sharing conjugal rights. During the subsistence of the marriage the parties did not acquire any immovable property. According to the plaintiff the matrimonial estate consists of “a set of sofas, 24 inch colour TV, upright fridge, two plate stove, bedroom suite, DVD player, DSTV decoder and kitchen utensils”. Out of this property the plaintiff only lays claim to the set of sofas, head board of the bedroom suite and the DSTV decoder. 

            At the pre-trial conference stage the parties remained poles apart. The following issues were therefore referred to trial for determination;

1. Whether the marriage has irretrievably broken down with no reasonable prospects of salvaging a normal marriage relationship.  
2. Which parent should be awarded custody of the two minor children
3. What access rights should be exercised by on non-custodian parent.
4. The quantum of maintenance the non-custodian parent should contribute towards the upkeep of the two minor children.
5. Whether or not the defendant is entitled to post divorce maintenance from the plaintiff, and if so, the quantum thereof. 

At the commencement of the trial the parties agreed to share the

matrimonial estate as per para 4 of the defendant’s counter claim which proposes as follows:- 

1. That the plaintiff be awarded as his sole and exclusive property the following:-  

     “radio, DVD player, dressing table, one big sofa, and one small    

      sofa .

1. That the defendant be awarded as her sole and exclusive property the following :-

DSTV decoder satellite dish, bedroom suite, head board, upright fridge, 2 plate stove, one big sofa, one small sofa, TV cabinet  and all kitchen utensils”.

            I now proceed to deal with the contentious issues.

            Break down of marriage

            In terms of s 5(1) of the Matrimonial Causes Act [Cap 5:13] the court may grant a decree of divorce on the grounds of irretrievably breakdown of the marriage if it is satisfied on evidence adduced that the marriage relationship between the parties has broken down to such an extent that there is not reasonable prospect of the restoration of a normal marriage relationship between the parties. Section 5(2) (a) to (d) of the same Act outlines the facts or circumstances which may show the irretrievably break down of the marriage. The list is not exhaustive.

            The plaintiff in his evidence adhered to the averments in para 6 of his declaration. The plaintiff alleged that the parties are now incompatible mainly due to defendant’s alleged adulterous affair and that this has resulted in the parties not sharing conjugal rights for the 1½ years prior to the issuance of summons. It is plaintiff’s evidence that although the parties share the same house they have lost love and affection for each other.

            The defendant in her evidence conceded that the marriage relationship between the parties has broken down to a state which is beyond repair and that this is no longer an issue. The defendant however vehemently denied allegations that she committed adultery. Let me briefly dispose of the issue of the alleged adultery as it was also raised in relation to the dispute of custody of the minor children.

            The plaintiff only revealed in his viva voce evidence that the defendant committed adultery with one Paul Green, a British citizen who was employed by the British Embassy in Zimbabwe but has since left the country. This specific accusation was flatly denied by the defendant. The defendant dismissed claims that she confessed to the said adultery.

            The defendant in her evidence stated that at the material time she was employed by a certain cleaning company which was contracted to clean the premises of the British Embassy. The defendant said the plaintiff wanted her to engage in an unlawful and corrupt act at the British Embassy and she refused. In specific terms the defendant said the plaintiff who allegedly engages in shady deals wanted her to abuse her access to British Embassy official stamps and make endorsements in some Zimbabwean passports belonging to the plaintiff’s clients which she refused.

            Under cross examination by the defendant’s counsel, the plaintiff was unable to substantiate the allegations of adultery. In fact the plaintiff said the non enjoyment of conjugal rights was by mutual consent. In my view the plaintiff has just made a bare allegation of adultery against the defendant. This allegation was not, on a balance of probability, proved to be a fact. The allegation was rebutted by the defendant and it remains an allegation the plaintiff failed to prove objectively. In the result this court shall not take into consideration the alleged adultery by the plaintiff against the defendant in determining other relevant issues like custody and maintenance of the children and spouses.

            What I find to be clear on the basis of evidence adduced is that the marriage relationship between the parties has irretrievably broken down. The parties no longer have love and affection for each other. A decree of divorce as prayed for by both parties should be granted. 

            Custody of the  Minor Children

            The issue of custody of the two minor children both female, Sifiso Dube born on 19 September 1995 (now about 16 years old) and Stabile Dube born on 7 December 1999 (now about 10 years old) remained very contentious during the trial. The elder child attends Roosevert Girls High School in Harare and stays with the plaintiff’s sister in Eastlea during school terms. She only stays with the parents during school holidays. The younger child still at primary school stays with the parents. Each party is claiming custody of the two minor children.

            It is trite law that in dealing with the question of custody of minor children the court should solely be guided by the best interests of the children. See Makuni v Makuni 2001(1) ZLR 189 (H) at 192A, Galante v Galante (3) 2002 (2) ZLR 408 (H) at 418-419.

            In the case of Jere v Chitsunge  2003 (1) ZLR 116 (4) at 118C-E CHEDA J summed up, what in my view are some of the most pertinent factors which constitute the best interest of the child. The learned Judge has this to say in Jere v Chitsunge supra at 118C-E:-

“The interest of the child means, therefore, that the interests of the parents are secondary. The common practice is that, if all else is equal, especially if the child is young, the mother is likely to be given custody. The following in my view is what the court should take into consideration in determining the interest of the child. The list is not exhaustive;

1. The fitness or otherwise of the custodian parent.
2. The age of the child
3. The sex of the child
4. The length of the time the child has lived with either party or her relative
5. The degree of emotional stress which the child will suffer in the event of the child being separated from either parent.
6. Any risk of ill treatment by either party or member of his or her household”.

The plaintiff is not formally employed. He engages in informal trading,

selling computer hardware or being contracted by travel agencies. According to the plaintiff he realises an income of about US$150-00 per month although his expenses far exceeds this projected income. I got the impression that whilst the plaintiff sought to down play the extent of his income the defendant seemed to exaggerate the plaintiff’s means. It has not been disputed that the plaintiff shoulders the burden of the family expenses which include inter alia school fees for the children, food water and electricity bills, transport and other needs. The parties stay in a house with two rooms which belongs to the plaintiff’s relative and they do not pay any rentals save for water and electricity bills.

            The defendant on other hand is employed as a general hand or cleaner earning a salary of US$100-00 per month, an income she also uses to compliment the plaintiff in meeting the family needs. It is clear that once a decree of divorce is granted the defendant would have to look for alternative accommodation for herself (and the children if she is awarded custody).

            I am not persuaded by the plaintiff’s evidence that he should be awarded custody of the minor children on account of his higher educational qualifications compared to the defendant whom he said is unable to assist the children with homework. The same goes for the argument that the plaintiff has accommodation in which to stay with the minor children. I do not believe these are factors which impinge on the defendant’s suitability as a custodian parent nor would they tilt the scales in favour of the plaintiff.

            The plaintiff indicated that he is willing to pay school fees for the children and meet all their educational requirements. He urged the court not to place undue regard to the sex of the children because he has a maid who can look after both children very well at home while he would be at work. In addition the plaintiff stated that the eldest child stays with his sister in Eastlea most of the time, that is during school term and that his sister is of impeccable character hence a good role model for the child. My understanding of the plaintiff’s evidence in this regard is that he is a suitable parent to be awarded custody of the two minor children not necessarily because he can look after the children better but he has other people who can do that for him.

The plaintiff went at length in his evidence to outline various reasons why custody of the children should not be awarded to the defendant. I am not persuaded by most of the reasons given as the basis for allegations made was never factually proved. I shall simply highlight and comment on some of the issues raised by the plaintiff.

1. That the defendant spends long periods of time away from home and would either be in her native country Zambia or in South Africa. An example was given that the defendant left for Zambia in August 2009 and only returned six months later in February 2010. This was described by the plaintiff as the normal pattern of the defendant’s conduct and that the defendant would lie that she would be attending funerals. I am satisfied  with the defendant’s explanation that she had last visited her native country in 1994 hence when she attended a funeral in August 2009 her stay was prolonged as she had to meet other relatives. She challenged the plaintiff to cite any other incidents and none were cited. In fact the defendant’s evidence that she only visited her sister in South Africa once to collect money for the benefit of the family was not controverted. There is therefore no evidence to suggest that the defendant is an uncaring parent who frequently abandons the family and children for no good cause.
2. That the defendant has suicidal tendencies hence unfit to be awarded custody of the children. The plaintiff said whenever they quarrel she threatens to hang herself and that at one point she asked the younger daughter to give her water in order for her to take an overdose of malaria tablets. All this was disputed by the defendant. In fact under cross examination the defendant conceded that the defendant’s emotional behaviour is consistent with the trauma arising from the difficult marriage relationship the parties have endured for a long time rather than it being an inherent weakness in the defendant’s character.
3. That the defendant is foul mouthed and not a good parent as vulgar language is an inseparable part of her vocabulary even in the presence of the children and that she is of violent disposition as at one time she threatened to scald the plaintiff with boiling cooking oil. Again under cross examination the plaintiff conceded that the defendant does not use foul language in relation to the children and that the defendant’s argues or quarrels is with the plaintiff not children. I find this to be merely the consequences of a strained marriage relationship rather than proof of the defendant’s character.
4. That generally the defendant is dishonest and that as proof she always hides important family documents like children’s birth certificates, the plaintiff’s driver’s licence and at one time the family satellite dish later recovered from the defendant’s friend. In fact the plaintiff said they also stay with a stepson, the defendant’s child but that he is not at school as the defendant has not cared to ensure that he attends school. Even if I was to assume that such incidents happened (the defendant disputes this), I am still not satisfied that it can be the basis to find that the defendant is unsuitable parent to be awarded custody.
5. That the defendant’s moral conduct is improper as she committed adultery. I have already dealt sufficiently with this allegation which I find to be baseless hence no probative value should be placed upon it.

During cross examination the plaintiff was asked this pertinent question by the defendant’s counsel:

“Q             Does she love the children?

  A             Yes”

All in all the plaintiff conceded that the defendant loves the children and that she is a hardworking woman and that she does not abuse the children.

I am satisfied that both the plaintiff and the defendant are responsible parents. I am however inclined to grant custody of the minor children to the defendant mainly on account of the sex of the children and their respective ages and stage of development. It is not a principle of law that a girl child should be placed in the custody of the mother. See Goto v Goto 200 (1) ZLR 275 (H), Hackim v Hackim 1988 (2) ZLR 61 (S) and Goba v Muradzikwa 1992 (1) ZLR 212 S at 214 B-C.

As already explained the proper approach for the court is whether the plaintiff being the father is better than the defendant being the mother in the care and upbringing of their two daughters. In other words who best caters for the interests of the two daughters. Each case therefore should be judged on its own merits bearing in mind that it is the best interests of the child which are paramount, predominant and the sole consideration. The parents’ interest are secondary.

In casu I am satisfied that the interests of the two female children are better served in the custody of their mother. The defendant loves the children and no adverse findings have been made against her in relation to all relevant factors. The youngest child needs constant motherly care and the adult is going through the process of adolescence which needs proper nurturing and guidance. It is on that basis that I am of the view that on a balance of probabilities the best interests of the two girl children are better served by awarding custody to their mother, the defendant rather than the father, the plaintiff.

Access Rights

From the evidence led both parties accept that the non custodian parent should have reasonable access to the children. The nature and extent of such access is a matter of this court’s discretion. After resolving the issue of custody in favour of the defendant, the only issue is what access rights should be awarded to the plaintiff. I am inclined to ensure that the bond between the children and the plaintiff remain strong. In that regard I believe it is fair and just to allow the plaintiff access to the children one weekend per month and during each alternate school holiday.

Maintenance

I am not satisfied that that on the evidence led there is a basis to award

 post-divorce maintenance in favour of the defendant. The plaintiff is unemployed whereas the defendant is employed. Considering the financial burden this court shall place on the plaintiff in respect of the two children it is clear to me that the plaintiff has no capacity to meet further financial obligations as post-divorce maintenance for the defendant. The defendant’s claim in this regard can therefore not succeed.

As regards maintenance for the minor children the plaintiff has indicated his willingness to pay all school fees and other requirements for the children. I have already dealt with the respective means of both parties. As already discussed the defendant would have to find alternative accommodation for herself and the children. I believe the plaintiff should therefore contribute towards the children’s accommodation, school fees and all educational requirements, and medical bills. On the other hand the defendant should be able to provide for day to day needs for the children inclusive of food. I shall therefore order the plaintiff to pay for the children’s educational requirements, medical bills and in addition a sum of US50-00 per month per child as contributory maintenance to cater for rentals.

The order which I make is the following:

1. A decree of divorce be and is hereby granted.
2. The custody of the two minor children Sifiso Dube (born on 19 September 1995) and Stabile Dube (born on 7 December 1999) be and is hereby awarded to the defendant.
3. The plaintiff be and is hereby granted reasonable access rights to the two minor children which shall be exercised as follows:
   1. He shall have the two minor children one weekend per month and during each alternate school holiday.
   2. He shall have the children on any other special occasions as the parties may agree from time to time.
   3. The access shall be exercised in consultation with the defendant.
4. The plaintiff be and is hereby ordered to pay each of the children’s entire school account including fees, levies uniforms and extra curricula activities, medical bills and to pay contributory maintenance in the sum of US$50-00 per child per month until each child attains the age of 18 years or becomes self supporting which ever occurs sooner.
5. Each party be and is hereby awarded as his/her sole and exclusive property the following movable property:
6. For the plaintiff:
   • Radio
   • Dvd player
   • Dressing table
   • One big sofa
   • One small sofa
7. For the defendant:
   • DSTV decoder
   • Satellite dish
   • Bedroom suite
   • Headboard
   • Upright refrigerator
   • 2 plate stove
   • One big sofa
   • One small sofa
   • TV cabinet
   • All kitchen utensils
8. Each party be and is hereby ordered to bear its own costs.

Zimbabwe Women Lawyers Association, defendant’s legal practitioners