Josephine Chiweda (Nee Chiganga) v John Masimba Chiweda

### Preamble
1
HH 595-18
HC 7146/15
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JOSEPHINE CHIWEDA (Nee CHIGANGA)

versus

JOHN MASIMBA CHIWEDA

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 12 June, 4 August 2017 & 4 October 2018

Civil trial

J Mawora, for the plaintiff

C Mahlangu, for the defendant

NDEWERE J: The plaintiff and the defendant were married in terms of the Marriage Act, Chapter, 5:11 on 15 December, 1990, at Mutare Magistrates Court. Their marriage certificate was produced as Exh 1. When summons for divorce were issued in July, 2015, the parties had been married for 25 years.

They had five children; two adults; one minor child who died in 2017 and two other minor children, namely, Jonathan Chiweda, born 30 September, 2000 and is therefore turning 16 years and Grace Chiweda, born 29 April, 2005, and is therefore 13 years old.

The plaintiff issued summons for divorce and ancillary relief on 29 July, 2015, alleging irretrievable breakdown of the marriage. She said the reasons for the breakdown were the defendant’s adultery, which she did not condone and physical and psychological abuse by the defendant. She produced a peace order dated 24 September 2013, as confirmation of her abuse by the defendant.

She said she had lost love and affection for the defendant and there were no prospects of reconciliation. She claimed custody of the minor children and 50% share of the couple’s matrimonial home.

The defendant filed his plea on 31 August, 2015. He admitted that the marriage had irretrievably broken down but denied causing the breakdown. He claimed custody initially for the one child who died but later claimed it for all the minor children. On division of immovable property, he said he bought the matrimonial home solely on his own. He filed a counter claim alongside the plea claiming custody; maintenance and the matrimonial home.

After pre-trial discussions, the parties agreed on the following

That the marriage had irretrievably broken  down

How to share the movable property and had already distributed it between themselves as agreed

That the non-custodial parent will have access on alternate weekends and two weeks of every school holiday.

Just before the trial, the parties agreed that the level of maintenance payable by the non-custodian parent should be $150.00 per month per minor child.

The issues which were referred to trial were

Whether custody of the minor children should be granted to the plaintiff or the defendant.

Whether the plaintiff should be awarded 50% of House No. 12 Wattle Avenue, Westview, Kadoma, or 30%.

On the breakdown of the marriage: the evidence from both parties revealed a complete breakdown. The plaintiff said they had tried counselling to no avail. She also said she came back to the matrimonial home just for the deceased child’s sake, otherwise she had left the defendant. She said although they had a few sexual escapades during that period they had failed to reconcile.

The irretrievable breakdown of the marriage was common cause. It was also common cause that both parties mistrusted each other from the early stages of the marriage and accused each other of sexual infidelity. This lack of trust between them helped to destroy their marriage.

To confirm the irretrievable breakdown, the defendant’s counsel referred the court to case law which follows on the issue of irretrievable breakdown of marriage. In Ncube v Ncube 1993 (1) ZLR 39 (5) Korsah JA held that where the parties were agreed that the marriage had broken down, it was not necessary for the court to inquire into the cause of the breakdown.

In Kumirai v Kumirai 2006 (1) ZLR 13 (H), the court said;

“In view of the fact that the breakdown of a marriage irretrievably, is objectively assessed 	by the court, invariably, where the plaintiff insists on the day of the trial that he or she is no 	longer desirous of continuing in the relationship, the court cannot order the parties to remain 	married even if the defendant still holds some affection for the plaintiff.”

Therefore although there was evidence of some sexual intercourse between the parties when the plaintiff moved back home in January, 2016, the fact that the plaintiff came to trial in 2017 and insisted that the marriage had broken down irretrievably despite these sexual escapades with the defendant means the court has to accept her evidence and confirm the irretrievable breakdown. As correctly pointed out by the court in Murada v Murada 2008 (2) ZLR 326, at 329,

“It is hardly possible for a court to find that there is a reasonable prospect of reconciliation 	between the parties when one of them is determined to bring the marriage to an end.”

In this case, it is not just the plaintiff saying the marriage has broken down irretrievably, the defendant also agreed with her. So plaintiff’s claim for a decree of divorce on the grounds of irretrievable breakdown must succeed.

As regards the issue of custody; when the plaintiff filed for divorce, she initially left the house with two minor children only namely Jonathan and Grace. She left the deceased minor child John Jnr with his father. This appeared to have affected John Jnr, who was sickly negatively. A child study report on p 26 of the plaintiff’s bundle confirms this. The deceased’s condition deteriorated after the plaintiff left the family home. The plaintiff came back to the matrimonial home afterwards but the deceased child did not improve.  Sadly he passed away on 16 May, 2017. Although he had been a sickly child, the breakdown of his parents marriage seemed to have affected him worse than the other minor children.

The remaining two minor children, Jonathan and Grace attend school at Jameson High School where their mother teaches.

The plaintiff’s evidence on the issue of custody was that it was in the interests of the minor children that she be given custody. She said one of the minor children was a girl child who needed assistance from her as the mother during her adolescence period. She said the minor child was previously abused and since then she felt uncomfortable in male company. She said since she believed that it was not in their best interests to separate the children she was claiming Jonathan’s custody as well. She believed that they should grow up together. She said she was also the one who helped the children to get ready for school, therefore it was proper that she be granted custody. She said she spent more time with the children because they attend Jameson High School where she teaches.

The defendant’s evidence on custody was that it was in the best interest of the minor children that he be granted custody. He said Grace needed guidance from a father. He said his wife was not suitable because she did not stay at home. He said she used to get home late around 8 pm and 9 pm and he was the one who spent more time with the children. He, however conceded that currently, she had been knocking off at 5 pm. He said the plaintiff had recently obtained a driver’s licence so previously, he was the one who drove his children to school. He said he learnt to cook for his children and he used to bath his sons. He said he was better able to look after the children because he was always available for the children whereas the plaintiff used to get home late, said she was tired and failed to cook for the children; leaving the maid to do all the cooking. He said he was the one who took care of John Junior, the deceased child even when she was there. She could not cope with him and would ring him to go and pick him from school. He said he took even more care of him after the mother abandoned him in August, 2015, after issuing divorce summons. He said his fear was that if the plaintiff was granted custody, she could abandon the children if they later got challenges, the same way she abandoned John Junior, who was sickly.

The other witness on the issue of custody was Mr Tiriwashoma Chari Jakarasi who was employed as a helper from 2015-2016. His testimony was that the father was more caring to the children than the mother. However, his testimony centred on the deceased child and how the plaintiff neglected him while she went out with the other two minor children. His evidence is therefore not relevant in relation to the remaining two minor children.

After, the trial, the court exercised its discretion in terms of s 83 of the Constitution of Zimbabwe and called the two minor children, Jonathan and Grace Chiweda for an interview in chambers. The plaintiff’s lawyer was present but the defendant’s lawyer asked to be excused. The result of the interview was recorded and it forms part of the record. Both children said they wanted to be in the plaintiff’s custody because she was the one they spent more time with.

The children were told that the court would decide what was in their best interest after taking all factors into account. They were told that the court’s decision would not necessarily be what they desired.

The court now needs to analyse all the facts and evidence placed before it to determine the appropriate custodian parent, between the plaintiff and defendant. Section 10 (1) of the Matrimonial Causes Act [Chapter 5:13] gives the court the mandate to conduct an inquiry and commit children of the marriage into the custody of the parent best suited to have such custody.

In Hackim v Hackim 1988 (2) ZLR 61, referred to by the defendants legal counsel, the court defined what is meant by the “best interest of the child”. It said in determining the best interest of a minor, the court is enjoined to consider all the circumstances and every aspect of the child’s upbringing, that is age, sex, health, education, religious needs, social needs and the financial position of each parent. The character, temperament and behaviour of each parent towards the minor child is also considered.

From the total evidence which was led, it appears the plaintiff’s temperament and behaviour towards the late John Junior was not the best in the circumstances. The manner the plaintiff left him behind when he needed her most was not satisfactorily explained to the court by the plaintiff. So applying the test of “best interests” as in the Hackim case supra, after taking into account John Junior’s age and health and the character and temperament of the plaintiff, had John (Jnr) been alive, the custody scale would have tilted against the plaintiff. This is because she left him when he was the one who needed motherly care the most because of his sickly condition. Because of what she did, John Junior’s condition took a turn for the worst and he never recovered. Sadly, John Junior passed on before the trial started.

However, the late John Junior is now out of the custody contest. The only minor children left are Jonathan Chiweda and Grace Chiweda. These are the children who spend the day with their mother at Jameson High School where she teaches.

No evidence was adduced to show that the plaintiff is a bad mother to the remaining two children. No evidence was led to suggest that the defendant is a bad father either. The turning point on the issue is the lifestyle the minor children have become accustomed to. Even Mr Jakarasi’s evidence was that plaintiff would go away with these two children, leaving behind the sickly one. Although, the defendant said plaintiff came home late and did not cook for the children, leaving everything to the maid, yet he conceded that in recent times, plaintiff had been getting home around 5 p.m. So she no longer gets home late. 	Nothing turns on the allegation of the plaintiff being tired and leaving the cooking to the maid. Indeed a working mother could be too tired to cook at times. That is why working mothers hire domestic help to assist them when they are tired. If preparation of meals by maids were to become a ground for denying mothers custody, very few working mothers would succeed in getting custody.

Besides, in the present case, we are not dealing with minors who are still babies, but teenagers who can also assist in the preparation of their own meals if the mother is tired from her employment activities.

The children themselves said they spend more time with their mother. This is borne out by the evidence before the court which shows that they leave for school with their mother and spend the day with her at school where she teaches.

The best interest of minor children, whenever parents are divorcing, is to avoid changing the lifestyle they were accustomed to unnecessarily. The two minors are used to being with their mother most of the time, even at school. It is not in their best interests to split them from their mother now. If custody were to be granted to the father; after the divorce, the parties will go their separate ways and this means the children will no longer be able to go to school together with their mother, because they will be staying at different addresses. That would negatively affect the lifestyle they had become accustomed to.

The defendant and the plaintiff appear to have equal competencies to look after the two minor children, if we look at the age, health, education, religious needs, social and financial position of each parent and the character, temperament and behaviour of each towards the minor children. However, the scale has tilted in favour of the plaintiff in relation to Jonathan and Grace because of the fact that the plaintiff has been spending more time with these two minor children as borne out by the evidence. The court would not like to disturb that position. The best interest of the minor children are better served if the status quo where the children are with their mother from the rising of the sun till its setting is maintained. Custody must therefore be granted to the plaintiff.

The parties have already agreed on access rights for the non-custodian parent. The defendant shall therefore have access rights every alternative weekend and two weeks of every school holiday.

The second issue for the trial was the division of House No. 12 Wattle Avenue Kadoma. Should the plaintiff get the 50% of the value she claimed, or get 30% of the value which the defendant offered?

The common cause evidence was that the house previously belonged to Costain Africa who was defendant’s employer. Costain Africa offered the house to defendant in 1996. He bought it in 1997 through a mortgage from Zimbabwe Building Society. The Title Deeds were registered in the name of the defendant only. The defendant resigned from Costain Africa in 1999. Plaintiff’s evidence was that she directly contributed towards the purchase of the house. She produced a receipt for $12 000 dated 26 November 1998 appearing on p 10 of her bundle. She said after defendant left employment, she took over the mortgage payments. She said she bought the roof for the cottage from Nyore Nyore. She said she paid for the roofing material for 12 months. She referred to some deductions in favour of Tedco Management Services in year 2000 on her pay slip but it was not clear what she was paying for. She said she indirectly contributed by cooking for the family, washing for the family, being defendant’s partner, performing motherly duties and taking care of his extended family. She said she paid Zesa bills, City Council bills and PTC bills for the phone. She referred the court to pages 14, where she paid a Zesa bill for $4 169.16 in April 2001. The bill was actually charged to her name, Josephine Chiweda and the address was given as 12 Wattle, Avenue, Westview, Kadoma. She referred to p 22 where there is a copy of a cheque for $2000 dated 18 May 2000 to Kadoma Municipality from her business, Afro Arts and p 23 where there is a copy of another cheque dated 20 July year 2000 for $1 500.00 to Kadoma Municipality.  She said she was paying for rates and water charges. She also referred the court to pp 15 to 17 which showed her Government pay slip for March, 2000, August, 2000 and December 2000 which contained deductions for insurance policies by Old Mutual and Doves-Croker. The one on p 18 and 19 dated January and February, 2016 contained deductions for Nyaradzo Funeral Services and for medical aid. Page 21 had a 2010 ZB cash funeral cover plan.

However, it was common cause that between 2006 and 2009 the plaintiff was unemployed, for medical reasons. So during that period, there is no proof of any financial contribution from her.

The defendant’s evidence was that he paid for the house on his own and cleared the mortgage loan within 5 years. He said he got financial assistance from friends in the diaspora. He disputed the $12 000.00 payment by plaintiff, saying he is the one who gave her the money to pay, she was just a messenger. The defendant got title deeds in his name on 11 June 1998. The defendant conceded that the defendant indirectly contributed towards acquisition of the property. He said she contributed by taking care of him and cleaning the home. He said the purchase of immovable property was done by him alone, so were the improvements to the cottages.

The defendant also conceded that plaintiff took over the family bills. His evidence on this aspect was as follows:

“Q. The plaintiff said she contributed for medical aid and paid ZESA and rates single 	handedly so she wants 50%.

A. It was logical that she takes over those expenses; rates, ZESA, phone bill and insurance 	policies.

Q. So she wants 50% of the house.

A. It is not fair; l contributed more. That is why l am offering 30%.

The defendant confirmed that the $12 000.00 payment to ZBS was made by the plaintiff. But he said he WAs the one who gave her the money. He admitted that there was no proof that he gave her the $12 000.00. However, it is worth noting that from the evidence, the $12 000 payment was on 26 November, 1998, a date when the defendant was still employed by Costain Africa. So why would plaintiff spend $12 000 of her own money when the bond holder was still employed? Why would she pay just this once? This casts doubt on her allegation of paying using her own funds. The court is therefore not convinced that she paid the $12 000.00 from her own money.

Then there is the issue of the loan for the cottage roof. Clearly, the plaintiff failed to connect the deduction on her payslip in favour of Tedco Management Services to the roof renovations. So there is insufficient evidence of meaningful direct contributions to the repayment of this mortgage loan of $85 000.00 plus interest.

There is however, overwhelming evidence of indirect contributions not just as wife and mother, but financially by taking over the family bills. And defendant said it was logical to make her responsible since he was no longer formally employed.

The court’s view is that 30% is not sufficient for a spouse who contributed so much financially to other family expenses in a 25 year old marriage. But 50% appears too high as well, in the absence of proven direct contribution to the loan repayment of $85 000.00. 	Section 7 of the Matrimonial Causes Act, [Chapter 5:13] gives some guidance on the factors the court must take into account. Among the check list are issues such as income earning capacity, financial needs and obligations and responsibilities as they are likely to affect each spouse for the foreseeable future. In the present case, the court has considered that defendant is out of employment and from the evidence relies on unguaranteed church allowances. So his income generation capacity is less, compared to plaintiff who is still employed and younger at 50 years while the defendant is 54 years old.

The court’s view is that after taking into account all the circumstances of this case, a 40% share of the property will be a fair award to the plaintiff; while defendant gets 60%.

Consequently, it is ordered as follows:

A decree of divorce be and is hereby granted.

Custody of the two minor children, Jonathan Chiweda; born 30 September 2002 and Grace Chiweda born 29 April 2005 be and is hereby awarded to the plaintiff, Josephine Chiweda.

The defendant shall exercise access rights every alternate weekend and two weeks of every school holiday.

The defendant shall pay $150.00 per month per child to the plaintiff as maintenance till the minor children reached 18 or becomes self-supporting, whichever is earlier.

The plaintiff shall be awarded 40% of the value of no. 12 Wattle Avenue, Westview, Kadoma, with defendant retaining 60% of the value.

The defendant, shall have the first option to buy off the plaintiff within three months of the date of this order. Failing such buy out within the prescribed time, plaintiff shall have the option to buy out defendant within 3 months after the defendant’s failure to buy her out. Failing such buy out by either party the  property shall be sold at market value and the proceeds shared between the parties at the ratio of 60% to defendant, and 40% to plaintiff.

The parties shall finalise buyout arrangements within 45 days after the date of this order; and agree on an estate agent or valuer for purposes of giving effect to this order. Any valuation costs shall be paid by both parties, with the defendant paying 60% while the plaintiff pays 40%.

Each party shall pay its own costs of suit.

Pundu & Company, plaintiff’s legal practitioners

Munyaradzi Gwisai and Partners, defendant’s legal practitioners