Court name
Harare High Court
Case number
HC 5199 of 2009

Nyakodzwe v Bidi (HC 5199 of 2009) [2011] ZWHHC 151 (07 July 2011);

Law report citations
Media neutral citation
[2011] ZWHHC 151

 

MAXWELL NYAKODZWE

versus

JOYCE BIDI

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 21 September 2010 and 8 July 2011

 

 

FAMILY LAW COURT

 

Trial Cause

 

 

Mrs N P Munangati, for the plaintiff

Defendant, in person

 

 

MAWADZE J: The plaintiff and the defendant who are husband and wife respectively married each other in terms of the Marriage Act [Cap 5:11] at Harare on 22 March 2007. Hitherto the plaintiff and defendant had entered into a customary law union in 2004 which marriage they upgraded as it were in 2007.

The marriage was blessed with one female child Helen Nyakodzwe (born on 22 May 2005).

On 27 October 2009 the plaintiff issued summons out of this court seeking a decree of divorce on the basis of irretrievable breakdown, an order of sharing of matrimonial property, payment of maintenance for the minor child and other ancillary relief.

The defendant in her plea disputed the fact that her marriage to the plaintiff has irretrievably broken down. The defendant disputed the proposal offered by the plaintiff in sharing of the matrimonial property. The defendant also sought contributory maintenance for the minor child and herself and that the plaintiff’s access rights to the minor child be severely curtailed on account of the minor child’s tender age.

At the pre-trial conference stage it would appear the parties were unable to agree on any issues in dispute. Consequently the following issues were referred for determination at the trial:

 

  1. Whether or not the marriage has irretrievably broken down.
  2. What constitutes matrimonial property
  3. Whether or not there should be another order for maintenance for the minor child and the defendant and if so for what amount.
  4. What rights of access should the plaintiff enjoy.

 

It became clear during the trial of this matter that most of the issues referred to trial were not in dispute at all. One was left to wonder why the parties failed to resolve any if not all the issues of pre-trial conference stage.

I propose to deal with each of the issues referred for determination.

 

  1. BREAKDOWN OF THE MARRIAGE

 

In terms of s 5(1) of the Matrimonial Causes Act [Cap5:13] this court may grant a decree of divorce on the grounds of irretrievable break down of the marriage if it is satisfied on the evidence provided that the marriage relationship between the parties has broken to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties. Section 5 (2) of the Matrimonial Causes Act specifically s 5 (2)(a) to (d) [Cap 5:13] outlines the facts or circumstances which may show the irretrievable breakdown of the marriage though the list is not exhaustive.

The plaintiff in his evidence stated that he has completely lost love and affection for the defendant and gave a number of reasons for that. The plaintiff started that the defendant is of a violent disposition and occasionally assaults the plaintiff. The plaintiff said as a result he is in constant fear of his wife the defendant who orders him to do household chores like cooking food and washing dishes when he returns from work. The plaintiff said due to fear he complies with such orders and that such cruelty perpetrated on him by the defendant has rendered the continuation of the marriage relationship impossible. The plaintiff further stated that he is denied conjugal rights and that any intimacy can only be at the defendant’s behest. According to the plaintiff the matrimonial house is more like a prison to him as his relatives are barred by the defendant from visiting the house. It is for those reasons that the plaintiff is of the strong view that the parties are no longer compatible and that he has lost all the love for the defendant whom he says boasts of being possessed with some spirit. The plaintiff said he moved out of the matrimonial house in August or September 2009 and that he has no intention of sharing the same house with the defendant again. The plaintiff denied having extra marital relationships and insisted that he no longer has any feelings for the defendant. In fact when the defendant probed the plaintiff in cross examination if he was serious that he no longer loved the defendant, the unambiguous response by the plaintiff was as follows:

 

“A       That is the position. I can no longer stay with you because I can die.

  Q       In your view is the marriage over?

  A       Yes its over”.

 

I have no cause not to accept the plaintiff’s evidence. In fact the defendant totally failed challenge the plaintiff’s evidence in this regard in any meaningful manner. When the defendant gave evidence she virtually conceded that her marriage to the plaintiff has irretrievably broken down. It would appear that it was only after the plaintiff’s evidence that it dawned upon the defendant that her husband has no intention of reconciling with her at all.

I am satisfied that on the evidence before me the marriage relationship between the parties has irretrievably broken down. It is clear that the parties no longer have love and affection for each other and have been living apart since August or September 2009 to date. As was state in the case of Ncube v Ncube 1993 (1) ZLR 39 where parties are consenting to divorce (as later appeared to be the case in casu) it is not necessary for the court to hear evidence in order to ascribe fault for the breakdown of the marriage. The plaintiff, in my respectful view should be granted the relief he seeks in this regard.

 

  1. WHAT CONSTITUTES MATRIMONIAL PROPERTY AND HOW IT SHOULD BE DIVIDED/SHARED BETWEEN THE PARTIES

 

The parties failed to agree at the pre-trial conference on what constitutes matrimonial property and how it should be shared between the parties. During the trial it was apparent that there was virtually no dispute between the parties in this regard. Again this is an issue which should have, in my respectful view been resolved by the parties at least at the pre-trial conference stage. The parties do not own any immovable property.

Section 7 of the Matrimonial Causes Act [Cap 5:13] deals with the division of assets between the parties consequent to the granting of a decree of divorce. Section 7(4) of the Matrimonial Causes Act [Cap 5:13] obliges the court to have regard to all the circumstances of the case and in specific terms to consider the following:

 

“(4)            In making an order in terms of subs (1) an appropriate court shall have regard to all the circumstances of the case including the following-

 

  1. the income earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

 

  1. the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

 

  1. 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;

 

  1. the age and physical and mental condition of each spouse and child;
  2. 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;

 

  1. 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;

 

  1. the duration of the marriage; and in doing so 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”.

 

All the above stated factors should be considered by the court in the exercise of its wide discretion in order to make an equitable distribution of the matrimonial estate. See Hatendi v Hatendi 200 (1) (2) ZLR 530 (S); Shenje v Shenje 2001 (2) ZLR 160.

As already pointed out when the parties gave evidence it was quite clear that there was no material dispute as to what constitutes the matrimonial estate and how it should be shared.

As per para 9 of the plaintiff’s declaration the matrimonial estate comprises of the following asses:

  • grinding mill
  • Peugeout 504 motor vehicle
  • Fridge
  • 1 bed
  • 2 plate stove
  • Colour television
  • Supersonic radio
  • 5 blankets
  • 4 set sofas
  • 2 stools
  • 1 line easy call
  • 10 asbestos
  • 10 bags cement

 

As per para 9.1 of the plaintiff’s declaration the following assets should be awarded for the plaintiff as his share of the matrimonial estate and the remainder awarded to the defendant:

  • Peugeout 504
  • Supersonic radio
  • 2 blankets
  • 6 asbestos
  • 7 bags cement
  • 2 stools
  • Set of sofas

 

The defendant’s contention as per her plea (para 8) has been that some of the items listed by the plaintiff as part of the matrimonial estate were items she inherited from her father. These include a 30 horse power electric motor, a fridge, 1 bed, 2 plate stove, 4 blankets, 4 set of sofas, 2 stools, 4 kitchen chairs and 2 big speakers. According to the defendant the matrimonial estate consists of the following property (see para 14 of her plea):

Grinding mill, colour television set, one blanket, 20 bags cement, 1 bed, Pegeout 504, supersonic radio, one easy call line, 18 asbestos, a cattle, 15 goats.

In his evidence the plaintiff indicated that he is willing to have the grinding mill and any other property the defendantwants to be awarded to the defendant. The plaintiff however indicated that only 1 cow and 2 goats are available. He offered the two goats to the defendant and for him to retain the cow. The plaintiff testified that he has disposed of the electric motor and a pop gun machine and used the proceeds to buy the grinding mill which however is just the frame and not a complete unit. In response the defendant indicated that she  was no longer interested in any of the property in the defendant’s possession other than the grinding mill. The defendant in her evidence indicated that the movable in issue is of no significant value and that most of it is very old. Her view was that each party can retain the property in his/her possession save for the grinding mill. It is my considered view that an award in that regard should be granted.

 

  1. WHAT RIGHTS OF ASSETS SHOULD THE PLAINTIFF ENJOY

 

The parties are in agreement that custody of the minor child Helen Nyakodzwe (born on 22 October 2005) be awarded to the defendant. Initially the plaintiff wanted to be granted access to the minor child once per fortnight during weekends and during each alternate school holiday. The defendant contented that the minor child was too young and that the periods the plaintiff sought to have access to the minor child were grossly exaggerated and unreasonable. However during the trial it became again apparent that the differences between the parties in this regard were minor. In fact the parties agreed that the plaintiff should be granted access to the minor child during each alternate school holiday and on any other special occasions with prior arrangements with the defendant. An order in that regard should therefore be granted.

 

  1. WHETHER OR NOT THERE SHOULD BE ANOTHER ORDER FOR MAINTENANCE FOR THE MINOR CHILD AND DEFENDANT AND IF SO FOR WHAT AMOUNT

 

It is common cause that there is a current maintenance order granted by the magistrate court for contributory maintenance for the defendant and the minor child in the sum of US$60-00 per month. The minor child is a beneficiary of the plaintiff’s medical aid scheme. On the other hand the defendant contented that the amount of US60-00 per month is wholly inadequate to cater for her needs and the minor child. Instead she submitted that the sum of US$250-00 per month would be fair and equitable being US$150-00 for herself and US100-00 for the minor child.

Both the plaintiff and the defendant are employed. The plaintiff is a sales representative/person with a private company and the defendant a pre-school teacher. I find no cause to deal with the evidence led as regards the means of the parties and the needs for the minor child and the defendant. The reason is simple. During the trial it emerged that the defendant has filed an application for variation of the maintenance order in the magistrates court and that this application is pending. There is therefore no good cause for this court to proceed to deal with this issue which is pending in the magistrates court. It is not necessary to have a duplicity of proceedings on the same issue. I find it prudent not to grant another maintenance order in these proceedings but to simply confirm the existence of a current maintenance order. The parties should proceed to deal with the issue of the variation of the maintenance order which is pending in the magistrates court.

Accordingly, it is ordered as follows:

 

  1. A decree of divorce is hereby granted.
  2. Custody of the minor child Helen Nyakodzwe born on 22 October 2005 is hereby awarded to the defendant.
  3. The plaintiff is hereby granted reasonable access to the minor child which shall be exercised during three weeks of each alternate school holiday and on any other special occasions as the parties may agree from time to time. The access shall be exercised in consultation with the defendant.
  4. The maintenance order granted by the magistrates court in the sum of US60-00 per month in respect of the minor child and the defendant shall remain in force until it is varied  by the same magistrates court.
  5. Each party is awarded as his or her sole exclusive property the movable property in his or her possession. In addition the grinding mill is awarded to the defendant as her sole and exclusive property.
  6. Each party shall bear its own costs.

 

 

 

 

 

Munangati & Associates, plaintiff’s legal practitioners