Talent Nyazaya v Christine Meda

### Preamble
1
HH 704 - 25
HCHF 318/24
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TALENT NYAZAYA

versus

CHRISTINE MEDA

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE; 17 & 28 March, 4 & 10 April & 6 November 2025

Matrimonial Summons

B Hatinahama, for the plaintiff
B T Mudhara, for the defendant

TSANGA J:

The parties are husband and wife and married in terms of the then Marriage Act [Chapter 5:11] on 21 December 2012. They have two children, a boy and a girl, currently aged 11 and 9 years old respectively. They are agreed that their marriage has irretrievably broken down to the extent that there is no reasonable prospect of the restoration of a normal marriage relationship. They have lived apart since 2023. There is therefore, consensus that an order for divorce should be granted.

During the subsistence of their marriage, two immovable properties were acquired being house number 1516 Platinum Park, Zvishavane and house number 42 Percy Avenue, Hillside, Bulawayo. Various movables were also acquired. It is common cause that both immovable properties are registered in the name of the plaintiff and were each acquired through a mortgage facility arranged by the plaintiff’s employer.

The parties’ points of departure regarding their divorce centre on custody and access arrangements for the two children. They are also not agreed on how the immovable property should be shared. The plaintiff is of the view that both properties were acquired by him and therefore the point of variance is what percentage the defendant ought to be granted in respect of these properties given the circumstances of their acquisition.

At their Pre-Trial Conference the following issues were therefore referred to trial:

Whether or not the parties should have shared custody instead of the defendant getting custody.

What would be the reasonable access should one party is granted custody?

Whether or not the defendant is entitled to 50% share of the Zvishavane property and 30% share of the Bulawayo property.

How should the parties ‘movable property be distributed?

Plaintiff’s evidence

The plaintiff’s evidence on custody was as follows: The defendant left their matrimonial home in Zvishavane with the children during the April holidays of 2023 and started staying in Harare. She also changed their school to one which was of a lower level compared to that they had been attending in Zvishavane. Their standard of living had also changed. Concerned with this change in circumstances, the plaintiff had engaged the defendant and looked for a place at Whitestone boarding school which is an upmarket private education institution in Bulawayo. He is fully responsible for their fees at this school and pays USD 9 040.00 (Nine Thousand and forty United States Dollars) per term for both children. The school has boarding facilities to which the children are enrolled. Both children are said to be thriving according to their abilities. His son is excelling at sports whilst his daughter is shining academically.

Although he has a home in Bulawayo, he works in Zvishavane. Nonetheless, he is available for the children as he is able to travel to Bulawayo for the weekend from Thursday through to Monday. He is also able to be with them during their school exeat weekend. In the event that he cannot pick them himself during exeat weekends, his driver does so.

His desire is that the current arrangement of having the children in boarding school be not disturbed, more so as this is their third school in the course of this year. His vision for custody arrangements is that he exercises joint custody with the defendant during school holidays and that they alternate exeat weekends. He also highlighted his concern that when the defendant took the children for the December holidays in 2024, she had done so for the whole vacation without giving them a chance to be with him.

Regarding assets acquired during marriage, he explained that he acquired 1516 Platinum Park, Zvishavane through a mortgage from his employer, Mimosa Mining Company. Deductions had been made directly from his salary. To support his evidence, he produced a confirmation letter from his employer that the property was acquired through a mortgage facility and that the conveyancing fees were paid by his employer. He also gave evidence that he was the one responsible for the renovations of the property and he produced receipts to support his evidence. This property is now fully paid for.

As for 42 Percy Avenue, Hillside, Bulawayo, he said they had actually never stayed together in this property. He is, however, prepared to pay her 15% of the value of the mortgage payments he had made for five months when they were in fact still staying in Zvishavane. This property is under a 15-year mortgage which will only be paid up in 2037. To support his evidence, he produced a document showing that the property is under a mortgage and also bank statements showing that the payments on the property are being deducted from his salary. He asserted that he is solely responsible for the maintenance of the property as the defendant left their home in 2023.

Both houses are of sentimental value to him and his desire is to put both in a trust for the children. In the event that the defendant being unwilling to support the Trust idea, his offer on the Zvishavane property is 25% of the value of this property. This is on the basis that it was their matrimonial home. In his view, this would be a fair offer considering the circumstances whereby he contributed fully financially towards its direct purchase. He had also paid for the defendant’s education between 2019 and 2021.

Defendant’s Evidence

The defendant told the court that she currently stays in Cranborne suburb, Harare, with her mother and her brother since moving there in 2023. Indeed, she had taken the children for the school holidays to Harare after a public encounter with one of the plaintiff’s girlfriends in Zvishavane. She could not return the children when the holidays finished as she had been admitted in hospital sometime towards the opening of schools. That was when she had decided to look for schools in Harare and had found them a place at a group A Government School. It was also a school she could afford. She admitted that both of them had indeed thereafter taken the children to Whitestone for interviews although she had also told the plaintiff that she preferred a neutral school to which he refused on account that he would be settling in Bulawayo.

With regards to the custody and access of the two minor children, the defendant indicated that it is in the best interests of the children for her to be awarded custody as she already stays with them when they come back from boarding school. She alleged that the plaintiff has less time with the children as he is employed in Zvishavane, whilst the children reside in Bulawayo often with a maid. He also purportedly already has a new “wife and child”.

In essence, she disputed his “hands-on” characterisation of his parenting style as a father. She stated that the plaintiff only supports the children financially but has generally never been involved in any of his children’s extra-curricular activities. The defendant stated that she travels from Harare to Bulawayo to pack and prepare for the children when they go to school at the beginning of every term. She also indicated that the children are more open to her than the plaintiff, and her son has confirmed that the plaintiff has another child and that he is living with another woman as well as that woman’s own three children.

Against the backdrop of the above concerns, the defendant therefore felt strongly about being awarded custody of her children, more so when the plaintiff no longer permits her to set foot at the Bulawayo house. She had had to drop the children at the gate during their last holiday. She highlighted that shared custody would be problem, as she keeps meeting with his girlfriend. Further, when she visits the children in Bulawayo, she has to rely on being accommodated by a parent of another child. She stated that if she is awarded custody, the Plaintiff can always be granted access for the times that he is available to be with the children. She also stated, however, that her son has no problems with being in boarding school and prefers it that way given the relationship between the parents though she stated that he would rather prefer going to Peterhouse or going to Hellenic. (Presumably these desires are for his secondary schooling). Her own preference is for her daughter to be a day scholar at a school in Harare such as the Dominican Convent, which she highlighted in being cross examined. She submitted in her evidence in chief that her daughter is facing bullying at school on racial grounds but there was no evidence of any report or complaint having been made to the matron or any school authority.

As regards the matrimonial assets, during her marriage to the plaintiff from 2012, she has contributed directly and indirectly to the marital estate. She indicated that before the plaintiff got a permanent job in Zvishavane, she was gainfully employed in Bindura, but she sacrificed her employment when her husband got a job with Mimosa Mine in Zvishavane. In Zvishavane they were staying in a mine house, which was later sold to the plaintiff. She considered the Zvishavane house as their matrimonial home where she had overseen all renovations , looked after the family and did everything that was expected of a wife.

They had cleared the amount owing on the Zvishavane house when the currency was changed in 2019 on a basis of 1:1 to the United States dollar. They had converted some US dollars into local currency. She stated that the money had come from their company funds from earnings from a company called TEECEE Investments, in which she is a co-Director with the plaintiff. However, in cross examination it was shown that this could not have been the case as the company was only registered in 2021. Her explanation was that they had other bank accounts.

During their marriage, she had also helped the plaintiff in building a rural home in Rusape and in this regard the funds from the sale of a house they owned in Bindura (which sold for US$12 000.00), and a stand (which sold for US$5000.00), had partly been channelled towards this endeavour. She testified that she contributed indirectly to the purchase of the Bulawayo property as she took responsibility for household duties and care of the children. The defendant proposed that the court should award her a 50% share of the Zvishavane property and 30% share of the Bulawayo property or alternatively, she be awarded the Zvishavane property in its entirety.

Legal Submissions

The gist of plaintiff’s submissions on property sharing was that the defendant did not make any direct contributions towards the acquisition of both properties. Her contribution was indirect. 25% share of the total value of the Zvishavane property and 15% of the funds that were paid from the time the mortgage started to run to the time the Defendant left the matrimonial home will meet the justice of the case especially looking at the period she has stayed in the marriage. Since the defendant is unwilling to share the mortgage obligation with the plaintiff, the case of Usayi v Usayi 2003 (1) ZLR 864, was cited as one where the Court had awarded a 50% share to the other spouse but on the basis that both would share the obligation to pay the outstanding amount of the mortgage. Under the circumstances where the defendant is not contributing to the mortgage, the plaintiff buttressed his argument that it is only just, fair and equitable that the defendant be awarded just 15% of the amount he paid from the time the mortgage commenced to the time she left the matrimonial home. In any event the Bulawayo property was said not to belong to any of the parties as yet because it is still under mortgage. Mr Hatinahama also emphasised, citing Coumbis vs Coumbis SC 130/21, with reference to the principles set out in the Matrimonial Causes Act, in sharing property on divorce, that:

“Case law authorities, in construing the provisions of s7 as a whole refer to the need to achieve an equitable distribution of the assets of the spouse’s consequent upon the grant of a decree of divorce. Equitable distribution does not mean equal division but a fair division in relation to the circumstances of the case. The court may consider such factors as the extent of a party’s contribution to the accumulation of the property, the market and emotional value of the assets, the duration of the marriage, the economic consequences of the distribution, the parties ‘needs and any other factors relevant to an equitable outcome. Fairness is the prevailing guideline the court must use.”

Defendant’s 30% claim on the Bulawayo property was also said to be not justified against the backdrop where the plaintiff is literally paying everything for the minor children.

On custody of the children, the principle of the best interests of the child was emphasised as being paramount. Further, Mr Hatinahama stressed that moving them from the school they are currently enrolled would mean it will be their fourth school at primary level. This, he argued, would clearly not be in the best interests of the minor children. Reliance was also placed on Goto v Goto 2000 (1) ZLR 257 (H) where Chinhengo J as he then was said:

“In determining which parent should have custody of a child following divorce there is no binding principle that girls should be placed in the custody of their mothers”

Mr Mudhara on behalf of the defendant underlined the court’s discretion in deciding what is fair and just, highlighting the difficulties of quantifying indirect contributions as stated in Ncube v Ncube 1993 (1) ZLR 39(S) at 40H - 41A where Korsah Ja had this to say in relation to the provisions of s 7 of the Matrimonial Causes Act [Chapter 5:13]:

“The above provisions, to my mind, do more than furnish broad guidelines for deciding what is a fair order in all circumstances, adjusting property rights if need be, under the wide powers bestowed on the court. The determination of the strict property rights of each spouse in such circumstances, involving, as it may, factors that are not easily quantifiable in terms of money, is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion”

He also drew on Shenje v Shenje 2001 (2) ZLR 160 (H) where Gilespie J at 163F accentuated the following on the exercise of the court’s discretion:

“The decision as to property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieving a reasonable, practical and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantages, to the extent they are not inevitable, of becoming divorced”

He too, emphasized the best interests of the children principle, but argued that the plaintiff‘s work circumstances, where he has to commute to Zvishavane actually do not leave him sufficient time for the children. He stressed that the defendant is the more “hands-on” parent and that she is by far the parent who is able to promote and ensure the physical, moral, emotional and spiritual welfare of the children.

ANALYSIS

Whether or not the parties should have shared custody instead of the Defendant getting custody

Since the parties have not been living together since 2023, disagreements on what is best for the children have been high. Since the children are in boarding school, what the plaintiff seeks is joint physical custody to be exercised in a manner where the children spend time with each parent on a shared basis during vacations. What the defendant seeks in contrast is the traditional sole custody arrangement where the other parent, the father in this case, would exercise access rights. As the principal custodian, she would get to decide where the children stay and where they go to school.

Custody, in general, is largely granted in the children’s best interests to the parent who plays the primary caretaker role. The tasks incumbent on that primary caretaker role include meal planning and preparation; ensuring that the children are well groomed and hygienic; undertaking visits to doctors when needed; supervising children’s homework; disciplining the children; ensuring that bed times are adhered to, among other roles. The plaintiff did not challenge the defendant’s assertion that during their marriage she was the one responsible for the care taker role. However, in this instance, since the parties separated, both children are in boarding school. This means that neither parent currently has that primary care taker role on a day-to-day basis. With the children in boarding school, it is in reality the school authorities that are presently entrusted with the primary care taker role for the greater part of the year.

Awarding the mother her previous primary care taker role would almost certainly result in their change of schools as she indicated she would like to do. Sole custody embodies the right and duty to provide a home for the child as well as the right to make day to day decisions during that time when the parent has custody. The children would be where she lives or at least nearer in comparison to the current setup. Granted, she mentioned that the children are struggling with their parents’ divorce. In reality, neither sole custody nor joint custody will spare the children the pain of their parents’ divorce. Counselling may be needed for the children to cope with their parents’ divorce, regardless of the form of custody arrangement.

Under the totality of the factual circumstances, there is no justification for moving the children from their current boarding school other than the inconvenience to the mother as outlined by herself. Both children as stated in evidence are doing well at their school. As noted there was also no evidence of any complaint by the mother that the girl child was being racially bullied. I do agree that it would be highly disruptive to move them yet again to a new school. Their son has a very short time left at this school whilst their daughter will be done with primary school in another three years. Stability is important. What the parents really ought to be thinking about as mature, considerate adults is where the children should go for their High School. They also ought to consider what the challenges have been realistically in making those decisions.

Whilst the plaintiff denied having moved on and having formed a new relationship, I did not get the impression that he was being candid with the court. He was aware that he is still married and that this would not put him in good light. Indeed, values of honesty and integrity are important. It is unlikely that his older child would have reported imaginings. If he does have another child it is strange that a father would under oath deny his own child’s existence. The reality is that both parties are young and will most likely forge new relationships, so it is also inevitable that the children will have to adjust to any parent’s new spouse along the way.

In my view, what is at stake in essence is how physical custody of the children should be shared especially during school holidays and during exeat weekends during term time. This is to ensure that the children have a meaningful relationship with each parent. In a setting where both parents will now be divorced, the aim is to ensure that there is a measure of continuity in the children’s relationship with both parents. Some of the inconveniences can be remedied, such as the difficulties of preparing the children for their return to school at the end of the school holiday if they are with the plaintiff, by timing access such that the defendant has them during the second half the school holiday.

The parties shall therefore share access during the school holidays, with the plaintiff getting the first two weeks and the defendant getting the remainder of the school holiday regardless of it being in excess of two weeks. As the parent responsible for ensuring that all is in order for the start of each term, she most certainly needs that extra time if any.

Whether or not the Defendant is entitled to 50% share of the Zvishavane property and 30% share of the Bulawayo property.

The assets accumulated by the parties as at the time of their divorce as stated include 1516 Platinum Park, Zvishavane and 42 Percy Avenue, Hillside, Bulawayo,. They had disposed of the properties previously acquired in Bindura in the course of their marriage. The Zvishavane property to which the defendant wants a 50% if not the entire share, and, to which the plaintiff is prepared to pay 25% was principally the parties’ matrimonial home. It matters not that it is registered in the plaintiff’s name since the court, on divorce, is not principally concerned with the name that the property is held. (Fadzai Usayi (Nee Magara) v Leonard Usayi SC 22/24)

In distributing assets between spouses on divorce, what the court is enjoined by section 7 (4) of the Matrimonial Causes Act to have regard to are all the circumstances of the case. These include factors such as income-earning capacity, assets and other financial resources; financial needs, obligations and responsibilities of each spouse; 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; age and physical and mental condition of each spouse; direct and indirect contribution made by each spouse to the family and any other domestic duties; and the duration of the marriage among others.

At the heart of plaintiff’s objections to giving the defendant a 30% share of the Zvishavane property is that he made direct financial contributions whilst hers were merely indirect. This argument is a tired one and has been traversed by the courts that have recognised that roles that the parties play in a marriage may be different but no less significant. The view that indirect contributions account for less may not hold water when the totality for the circumstances are looked at by the court in exercising its very wide discretion. (see Mhora v Mhora SC 89/20) The Zvishavane home, even if acquired by the plaintiff through his work channels, became essentially their matrimonial home in which they lived during their marriage. In Fadzai Usayi (Nee Magara) v Leonard Usayi SC 22/24, where the property was registered in the husband’s name and acquired through his work channels, still the court found that there would have to be compelling reasons why a 50-50 sharing of the matrimonial home should not be ordered. It found none. As aptly stated therein;

“The sooner married couples realise that marriage is not a business arrangement where they come together in matrimony for convenience to acquire property separately while keeping receipts and other documents for future use in court, the better for everyone.  The courts recognise that parties come together in Holy Matrimony for their common good and the good of their children.  It is both the direct and indirect input of the spouses which leads to property acquisition.”

Herein, the parties were together for over a decade during which time the defendant played her part in the way she could at the time. Both parties are working and are able to look after themselves. They are both thirty-nine years old and have a future ahead of them. She will need to start afresh. Whilst he has the Bulawayo property which was acquired just five months before they separated and were living in Zvishavane. Having separated early on in its acquisition, there are no indirect contributions that the defendant has had to make to this property which is still heavily encumbered. It is also not disputed that the plaintiff has been paying the mortgage instalments from inception, and throughout their separation to date. That mortgage has a long way to go and will only be paid up in 2037. The defendant’s claim for 30% of this particular property is in my view without a basis under this factual context. The plaintiff’s offer of 15% of the value of the five months mortgage repayments is also not much as it will give her approximately US$1500.00 if one takes the figure of US$2000.00 as his monthly repayments.

What she is entitled to in my view is a fair share of the matrimonial home which they acquired and was fully paid up during their time as husband and wife. This is the Zvishavane property. She is entitled to 50% of that house. I do not think she is entitled to the entire house just because the plaintiff acquired the Bulawayo property. As highlighted, the mortgage payments have a long way to go and if he falters he would lose the house. She did not offer to contribute to the mortgage repayments. Significantly, in terms of financial needs, obligations and responsibilities, there is no doubt that plaintiff is the one lumbered with the primary responsibilities in the foreseeable future. The children’s school fees and school needs are his responsibility, as are the expenses for their basic needs. They are yet to go to high school let alone University, all of which he will assume responsibility for. He ought to be entitled to his 50% of the Zvishavane property.

As regards movables, the plaintiff laid claim to a set of sofas which was not disputed by the Defendant. The plaintiff is prepared to let her have the rest of the movables. There is therefore no dispute as regards the movables.

In the result:

A decree of divorce be and is hereby granted.

Custody of the two minor children, namely, Mukudzei Nyazaya born 27th April 2013 and Matifadza Nyazaya born 12th June 2015 shall be exercised jointly since both children are in boarding school.

2.1 The plaintiff shall, in general, exercise his custody over the first two weeks whilst  the plaintiff shall have them over the remaining two weeks or whatever duration of that school holiday until they return to school. During term time, the parties shall alternate getting the children over exeat weekends.

2.2 The parties may, by mutual agreement, alternate having the children during public holidays.

2.3 The plaintiff shall remain responsible for the children’s school fees, school needs, medical expenses and basic maintenance.

Save for one set of sofas and one television set, the defendant shall be awarded all the movable assets and kitchen utensils as claimed.

Each party is awarded 50% share of the value of house number 1516 Platinum Park, Zvishavane. This property shall be valued by an Estate Agent appointed by the Registrar of the High Court within fourteen days of this order.

The Estate Agent so appointed shall value the properties within a further period of two months from the date of appointment.

The costs of valuation shall be shared equally between the parties.

The plaintiff is granted six months from the date the valuation report is availed to buy out the defendant’s fifty percent share of the value of the property.

In the event of the plaintiff’s failure to exercise the option granted to him in paragraph 7 above, the defendant is granted an option to buy out the plaintiff’s fifty percent share of the value of this property within a further period of six months.

Should both parties fail to exercise the options granted in paragraphs 7 and 8 above respectively, then the property shall be sold to best value by an Estate Agent appointed by the Registrar of the High Court and the proceeds shared equally between the parties after deducting the costs of sale

Tsanga J: ………………………………………………………...

Hatinahama & Associates, plaintiff’s legal practitioners

Mundia & Mudhara, defendant’s legal practitioners