Joseph Netsai Gakanje v Dorothy Gakanje (nee Chayitwa)

### Preamble
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HB 158/21
HC 1587/05
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JOSEPH NETSAI GAKANJE

Versus

DOROTHY GAKANJE (NEE CHAYITWA)

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 20 JULY 2021 & 23 AUGUST 2021

Civil trial

A. Masawi, for the plaintiff

N. V. Moyo, for the defendant

DUBE-BANDA J: This is a divorce matter. The parties were married to each other on the 23rd April 1996, which marriage still subsists. Five children were born of the marriage. All the children are now adults.  The plaintiff instituted divorce proceedings, issuing summons in this court for a decree of divorce and ancillary relief.  The divorce action is founded on the basis that the marriage relationship between the parties has irretrievably broken down and has reached such a state of disintegration that no reasonable prospect exists for the restoration of a normal marriage relationship between the parties.

In amplification of his claim, the plaintiff cited physical and verbal abuse by the defendant; accusation of infidelity without just cause; no meaningful communication between the parties; not having shared conjugal rights for a period in excess of one year; and loss of love and affection which culminated in the disintegration of the marital relationship between the parties. The defendant subsequently filed a plea, she admitted that the marriage relationship between the parties has irretrievably broken down to such an extent that there are no prospects of a reconciliation.

The parties attended a pre-trial conference, and according to the pre-trial conference minute, the issues for trial were set out as the following:

How the matrimonial estate should be dealt with including the parties’ immovable property.

The quantum of maintenance of the minor children.

At the commencement of the trial Ms. Masawi, counsel for the plaintiff made an oral application, whose import was that the parties’ son who was present in court be ordered to vacate the court room. The reason given for this application was that this is a matrimonial matter, as such the plaintiff might be uncomfortable to testify in the presence of his son. The application was opposed by Ms Sibanda, counsel for the defendant. She submitted that the son had a right to be in the court room. He was an adult, twenty-four years old. He had a right to make his own decision. He had come to support his mother, the defendant.

Both counsel did not assist the court in resolving this issue. I take the view that it is the duty imposed on legal practitioners presenting cases before the courts to prepare and assist the court in arriving at an informed and just decision. It’s not proper for the legal practitioners to simply make submissions to court without supporting their submissions with a single relevant authority including legislation, case law or other persuasive sources, particularly in a case where such a drastic relief is sought.  Litigants pin their hopes to the legal practitioners as professionals in court litigation for proper execution of their cases before the courts. For this reason, legal practitioners are expected at the most to have consulted basic sources that are relevant to the case before court. In casu, no authority was provided. No statutory provision in support of the relief sought was provided. No rule of court was referred to. No common law principle was referred to.

This is a court of law, and whatever decision this court makes must be based on the law. Rule 277A of the High Court Rules, 1971, provides that:

In a matrimonial matter, the judge may, in his discretion, hear the case in his chambers or in any other suitable room: Provided that the hearing shall be open to members of the public. (My emphasis).

A hearing must be open to members of the public. Again Rule 277 is specific about the holding of proceeding in camera in matrimonial cases, it provides that:

In a matrimonial case, or in a case affecting the custody of a child, the court hearing the case may order that the proceedings be held in camera if such a course appears to be desirable.

A court may, if it appears to be desirable hold a trial in camera. In casu, I did not consider it desirable to order the removal of the parties’ son from the court room. In general a hearing must be open to members of the public. He is an adult. A member of the public. There must therefore be a good reason, grounded in the law why such a person is ordered to vacate the court room. To merely submit from the bar that a litigant will be constrained from testifying on other issues in the presence of his son is inadequate. The relief sought was drastic, it required preparation and presentation. It is for these reasons that the application was refused.

Although the pre-trial conference does not identify the issue of irretrievable breakdown as an issue for determination by this court, I take the view that it is indeed an issue. Notwithstanding the fact that the parties are agreeable that their marriage has irretrievable broken down to the extent that it cannot be salvaged, the court must ascertain on the available evidence whether such is indeed correct.  A decree of divorce cannot be granted upon the mere agreement by the parties, it can only be granted upon the court being satisfied that the marriage relationship between the parties is no longer redeemable. This explains the reason why in uncontested divorces set-down on the unopposed motion court, plaintiff must adduce evidence by way of an affidavit, to satisfy the court that marriage relationship between the parties has irretrievable broken down. I therefore take the view that in every divorce matter, the first issue must whether the marriage relationship has irretrievable broken down to such an extent that there are reasonable prospects for a restoration of a normal marriage relationship.

The plaintiff’s version

The plaintiff testified that the parties started staying together in the year 1979. The parties had their differences as a young couple. After 1982 he realised that he was not happy, this unhappiness was caused by the involvement of his mother in law in the decision making. Initially he wanted the marriage to be saved. He did not want his parents in law to interfere in his marriage. He is a believer in God. He does not use violence. However, defendant started using violence against him. Defendant was always suspecting that he was having extramarital affairs, even with church members. He sought assistance from senior pastors at the church. From 2004 he stayed at the house on the basis of a peace order. He vacated the matrimonial home in May 2007. The reason he moved out of the house is that, when they appeared in court for trial, the court noted that this is a matter that was capable of being finalised through a consent paper, the court then advised him to move out so that the defendant could sign a consent paper. When he moved out of the house, he started staying with another woman. He has a child with this woman. No consent paper was signed. He moved back to the house in 2017. Attempts at reconciliation were made and failed. From 2017, the parties stay at the same house, but he had a protection order. He does not take meals at the house. Not allowed to touch anything at the house. He has no keys to the house. When he moved out of the house he bought some movable property, which is now at the matrimonial home.

Further, plaintiff testified that defendant did not financially contribute to the acquisition of the house. The house is valued at approximately USD $30 000.00 or USD $ 31 000.00. Defendant’s half share would be in the region of USD $15 000.00. The parties first born son was arrested and they sought a loan to rescue him. They did not want their son to be prosecuted. The amount owing from the loan received to rescue the son is now USD$4 800. The deed of transfer for the house is being held as security for this amount owing. Should the house be sold, the amount of USD $4 800 must be subtracted from the purchase price to off-set this debt. He asked that he be given the option to buy defendant’s half share. He would need twelve months to pay her half share. He is not employed, but he will make a plan to raise the purchase price. He wants to remain with the house and pay defendant her half share.

Under cross examination, plaintiff revealed that he was violent from 1975 to 1979. When he started going to church, he seized to be violent. He became a believer in God in 1985. In 2003 defendant lost one tooth as a result of the violence perpetrated on her by the plaintiff. He conceded that this episode of violence occurred when he was now a christian. He stated that he has lost all love and affection for the defendant. He conceded that he has a minor child born out of the marriage. He further conceded that even after he became a christian, he had extra marital affairs. He said during the period he had moved out of the matrimonial home, he used to buy groceries and pay school fees for the children. He would assist here and there in respect of payment of utility bills, i.e. water and electricity bills. He denied that plaintiff contributed financially to the acquisition of the house. When it was put to him that defendant is the sole primary care giver of the two minor grand-children. He said he was involved too. The two grand-children are aged 12 and 7 years. He said he has two motor vehicle which are not registered in his name. One of the vehicles was given to him by the parties’ daughter and son in law who are based overseas.

The defendant’s version

Defendant testified she resides at the matrimonial home with parties’ children and grand-children. She said although plaintiff has returned to the matrimonial home, he sometimes leaves for extended periods. She was first abused when she had her first borne child. She was not well fed. She will have one meal a day. She then made a decision to use her hands to raise income. She started making dolls and table cloths for sale. She will knit jerseys and teach other people for a fee to knit jerseys. Again she used to sell queen cakes to raise money for the upkeep of the children, including their bus fare to school. She also kept rabbits for sale. She also keeps chickens for sale. Also the parties’ daughter and son in law overseas send US$200 per month to help her makes ends meet.

She became Christian in 1985. Plaintiff was a pastor. One day she got to his office, plaintiff then saw her reading what was a love letter found she found in the drawers.  Plaintiff then assaulted her inside the church office. As a result of the assault she lost two upper teeth and two bottom teeth became loose.

She wants to keep the matrimonial home and buy plaintiff’s half share. She has no alternative accommodation. Her children will help her pay off the plaintiff his half share. She can pay him off in a period of six months. She is the sole custodian of the two grand children who lost their parents.

Under cross examination defendant confirmed that the marriage between the parties has irretrievably broken down to a point of no return. She said plaintiff was not providing for the family. He used to beat her. Plaintiff was a pastor in the church. He was suspended from his pastoral duties after he assaulted her at his church office. The house was built in 1987. At the time the house was built plaintiff was working for Grain Marketing Board and later African Associated Mines.  She augmented family income by knitting jerseys for sale. When the house was about to be auctioned by CABS, she sought and got a loan of from a friend to save the house. At some point plaintiff took a loan from SEDCO and used the deed of transfer for the house as security. A family car was sold to pay off this loan and save the house. She objected that plaintiff be given the option to buy her out of the house.

Plaintiff’s closing arguments

Ms Masawi argued that it is quite clear that the marriage relationship between the parties has irretrievably broken down to such an extent that there is no reasonable prospect of the restoration of a normal relationship between them. It is contended that defendant concedes that indeed the marriage relationship has irretrievably broken down. She prayed for a decree of divorce. It was submitted that there is no issue in respect of movable property. In respect of the motor vehicle, counsel submitted that the owners, i.e. the parties’ daughter and son in law overseas will decide who between the plaintiff and the defendant keeps the vehicle. In respect of the immovable property, i.e. stand number 380 Nketa 6, Bulawayo this court was urged to take into account the duration of the marriage and the contribution of the parties to the acquisition of this property, and plaintiff be given a chance to retain it and buy out the defendant. Plaintiff to pay defendant fifty percent of the value of the property, less the amount of US$4 800 owed to a third party.

Defendant’s closing submissions

Ms Sibanda for the defendant submitted that it is apparent that the marriage relationship between the parties has irretrievably broken down to such an extent that there is no reasonable prospect of the restoration of a normal relationship between them. Defendant agrees that each party is entitled fifty percent of the value of the property, less US$4 800 due and payable to the third party. The question is who should buy the other out of the property. The court was urged to order that defendant be given leave to retain the house and pay plaintiff his half share. It was submitted that defendant has demonstrated that she has means to buy out the plaintiff his half share of the property. The children will assist her to pay off the plaintiff. Defendant averred that she would require a period of six months to pay plaintiff his half share. This court was urged to take into account that defendant has always been at the house when plaintiff has moved out for a period of approximating nine years. Defendant has no alternative home. Plaintiff has an alternative home where he stayed when he moved out of the matrimonial home. That defendant looks after the two minor grand-children. She is the custodian of the two minor grand-children.

Whether the marriage has irretrievably broken down

The applicable law is section 5(1) of the Matrimonial Causes Act [Chapter 5:13] which provides that 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.

On a conspectus of the evidence, this was clearly an acrimonious marriage.  The parties notwithstanding the allegations levelled against each other during the trial, were both in agreement that their marriage was beyond salvation. That the marriage was emotionally, psychologically and financially abusive is patent. As a witness the plaintiff was a very poor witness. Under cross examination he could not answer questions, was argumentative.  Was warned on a number of occasions to use appropriate language and conduct himself appropriately in court. At some point he said he was getting emotional. I could not see any basis for him being emotional.

It is patent that the marriage relationship between the parties clearly deteriorated over time to such an extent that in May 2007 the plaintiff left the matrimonial home and returned in 2017. Defendant cited incessant exposure to emotional, psychological, financial abuse and physical abuse with allegations of the plaintiff’s infidelity, his ensuing abandonment of the marriage and vacation of the matrimonial home as the reasons for the breakdown of the marriage. On the evidence adduced before court, it is clear that the marriage relationship between the parties has irretrievably broken down to such an extent that there is no reasonable prospect of the restoration of a normal relationship between them.

The matrimonial property

In his declaration to the summons plaintiff had claimed certain movables and suggested that some be awarded to the defendant as his sole and exclusive property. In their submissions counsel agreed that the division of movable property is no longer an issue for determination in this court.

In respect of the immovable property, stand number 380 Nketa 6, Bulawayo plaintiff in his declaration pleaded that it “it is just and equitable that this honourable court orders that the defendant has usufruct on the parties’ matrimonial home, 380 Nketa 6 until the parties’ last born child turns eighteen (18) where after each party shall decide what to do with his /her half share of the property.”  The last born of the marriage in now an adult. In their closing submissions, both counsel contended that each party is entitled to a half share of the property. The dispute turns on who should buy out the other party’s half share.

Ms Masawi argued that it is the plaintiff who purchased and financed the construction of the property, hence he must be given the option to buy out defendant’s half share. The evidence establishes that the plaintiff was gainfully employed and he paid for the acquisition of the property from his income. Notwithstanding the defendant being unemployed, the evidence establishes that she contributed to running the household.  It becomes patent that during the subsistence of the marriage between the parties, that the defendant contributed both directly at certain periods and indirectly by saving the property from being sold at the instance of creditors. The defendant placed reliance on her contributions, both directly and indirectly during the subsistence of the marriage to buttress her claim to buy out the plaintiff from the matrimonial home. She had to seek a loan to save the property from being sold by CABS. She was knitting jerseys for sale, kept rabbits and chickens for sale, she was also selling queen cakes, all to fend for the family.  The evidence reveals that both parties made contributions consistent with the institution and sanctity of marriage. It is patent that both parties made contributions to the family during the marriage and it is disingenuous of the plaintiff to rubbish defendant’s contributions.

Defendant has no alternative accommodation. She has been at the home since the house was built in 1986. She is the primary care giver of the two grandchildren of the parties. Plaintiff vacated the matrimonial home for a period approximating nine years. Even now on the date of the trial, defendant testified that plaintiff had not been home for a period approximating two weeks. I take the view that on the facts of this case, it will be easier for the plaintiff to find alternative accommodation than the defendant. Defendant is offering to buy out plaintiff within a period of six months from the date of this order. She is very clear as to where she would get the funds from to make a payment to the plaintiff. On the other hand, plaintiff requires twelve months to pay out defendant’s half share. He was very vague about where he would get such funds to pay out to the defendant. I take the view that it is just and equitable that defendant be given the first option to buy plaintiff’s half share of the house, in the event she fails to exercise the option, then plaintiff be given an option to buy defendant’s half share of the house.

Disposition

This court is content to grant a decree of divorce on the ground of the irretrievable breakdown of the marriage having been satisfied that the marriage relationship between the parties has reached such a state of disintegration that there are no reasonable prospects of the restoration of a normal relationship between them.  On the evidence and the facts of this case, it is just and equitable that defendant be given the first option to buy out plaintiff from stand number 380 Nketa 6, Bulawayo.

In the result, I make the following order:

A decree of divorce be and is hereby granted.

Stand number 380 Nketa 6, Bulawayo be evaluated by a firm of registered estate agents appointed jointly by the parties. Each party is awarded 50% share of the net value of stand number 380 Nketa 6, Bulawayo.

That defendant be and is and hereby given the right to buy out plaintiff’s 50% share of the stand number 380 Nketa 6, Bulawayo within six (6) months of the date of this order.

Failure of the defendant to buy out plaintiff his 50% share within six months of the date of this order, plaintiff be and is hereby given the right to buy out the defendant’s 50% share within a further two months.

Failure by the plaintiff to buy out defendant her 50% share within the two months, stand number 380 Nketa 6, Bulawayo shall be sold to best advantage and the net proceeds be shared equally between the parties.

The amount of USD$4 800 owed by the parties to a third party and the cost of the evaluation shall be payable by the parties in equal share.

Each party to pay their own costs.

It is so ordered.

Abigail Masawi Law Chamber, plaintiff’s legal practitioners

Tanaka Law Chambers, defendant’s legal practitioners