Tsitsi Sadomba v Wilbert Z Sadomba

### Preamble
1
HH 364-2012
HC 3063/07
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TSITSI SADOMBA

versus

WILBERT Z SADOMBA

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 9 July and 27 September 2012

FAMILY LAW COURT

Trial Cause

Mrs N C Magoge-Mashindi, for the plaintiff

The defendant in person

MAWADZE J:   The facts of this matter make very sad reading. In addition to that, the manner in which this matter was handled resulting in such an inordinate delay to bring it to finality compounds the problem.

The plaintiff and defendant are wife and husband respectively.

The defendant had all along been represented by Messrs Gula-Ndebele & Partners and he only turned up unrepresented on the trial date. By then the defendant had withdrawn his defence and the matter proceeded as an unopposed matter.

It is the manner in which the parties married which makes very sad reading. The plaintiff married the defendant firstly in terms of an unregistered customary law union in 1994. The plaintiff was only fourteen years old and the defendant thirty-five years old. Apparently the plaintiff’s father blessed this seemingly criminal act. The plaintiff’s uncontroverted story is that she and her brother had visited the defendant in Masvingo during school holidays in December 1994 on account of the fact that the defendant was related to their step-mother (that is their father’s wife). The plaintiff said the defendant prevailed upon her and became intimate with her at the tender age of fourteen years. When she reported this apparent sexual abuse her step-mother and father decided that the defendant should pay lobola for her and take her as a wife. The defendant was also ordered to pay her school fees from 1995 onwards and she was in form 3 in 1995. The plaintiff said their marriage was only solemnised in 1997 with the consent of her father and the delay was to allow her to reach an acceptable age. The fact that the plaintiff even at her current age narrates this story with such detail and passion suggests that she may not have fully recovered from this emotional trauma of being a wife at the tender age of fourteen years.

The parties are married in terms of the Marriage Act [Cap 5:11] which was solemnised on 20 July 1997. The marriage was blessed in 2001 with one child, a girl, Tamirirana Mazvita Sadomba now eleven years old. The parties have been husband and wife for eighteen years, three of which has been in terms of the customary law union.

Despite this sad background the plaintiff is a holder of a BSc and MSc degrees. She is currently working in South Africa for a company called ERM Brands, a meat processing company as a quality assurance and safety manager. The defendant is now based at his farm in Concession and is said to be a lecturer at the University of Zimbabwe.

The plaintiff issued summons out of this court some five years ago on 18 June 2007 seeking a degree of divorce on grounds of irretrievable breakdown of the marriage, an order for custody of the minor child, division of the assets of the parties and that each party bears its own costs.

In her declaration, which she later adopted as part of her evidence the plaintiff gave a plethora of reasons for the breakdown of the marriage. The plaintiff accuses the defendant of physical, emotional and verbally abuse. She said the relationship became further strained when the defendant’s son from his previous marriage raped the couple’s only child in 2007 and she reported to the police against the defendant’s advice who wanted to cover up the matter. As a result the plaintiff said the defendant accused her of disrespect and even threatened to kill her. The plaintiff claims that the defendant has systematically denied her conjugal rights and confessed to her that he has lost all the love and affection for her. In fact the plaintiff said in order to drive the point home the defendant smashed his wedding ring with a pair of pliers and threw it into the plaintiff’s face. She said the defendant destroyed the plaintiff’s portrait photographs displayed in the house and proceeded to cut out the plaintiff’s image on all wedding photographs. The plaintiff said her academic certificates, the ‘O’ and ‘A’ level certificates and the degree transcript were not spared and this delayed her in commencing her studies for the Master’s degree in 2003 as the defendant had also hidden her birth certificate and passport. The plaintiff said the reports she made to the police worsened the situation and the defendant would not eat any food she cooked alleging that the plaintiff wanted to bewitch him. The plaintiff said all her relatives have been barred from visiting the matrimonial home and that the intervention by relatives, church elders and pastors by providing counselling has not helped matters. She said the defendant had threatened to dispose of all matrimonial assets and she had to approach this court on an urgent basis to obtain an interdict. It appears what finally broke the camel’s back was when the defendant moved out of the matrimonial house in April 2007. The parties have since been separated (now for five years).

In her prayer, other than seeking a decree of divorce the plaintiff also sought an award of custody in her favour with the defendant having access to the child every first two weeks, division of the parties’ assets as per annexture ‘A’ to the summons in which the movable assets and the two immovable properties are shared with the plaintiff being awarded the property number 2 Langtree Lane Chadcombe Hatfield, Harare and the defendant number 5924 Hillview, Hillside, Masvingo. The plaintiff also indicates that the defendant should be awarded the Mvuradona farm but she later on abandoned this as it turned out that the farm is not owned by the defendant.

The defendant entered the appearance to defend on 25 July 2007 and filed his plea on 31 July 2007. The only issue in which the parties were on the same page was that their marriage relationship has irretrievably broken down to such an extent that it cannot be salvaged. They however differ on the reasons thereof as they blamed each other. A protracted battle then ensued between the parties in respect of custody of the minor child, division of the parties’ assets and spousal maintenance. The plaintiff filed the replication on 4 September 2007. It was after the closure of pleadings that the inordinate delays started.

On 7 November 2007 the plaintiff applied for a pre-trial conference date and filed all relevant documents. The defendant responded by filing his pre-trial conference documents on 3 March 2008 for the pre-trial conference set down for 5 March 2008. It is not clear as to what happened on 5 March 2008 but on 1 April 2008 the defendant made an application to amend his plea at the pre-trial conference. Apparently this was not opposed and the defendant filed an amended plea. This necessitated the filing of supplementary pre-trial conference documents by the plaintiff.

On 27 May 2009 the parties, before MUSAKWA J seemed to have found each other at the pre-trial conference as they filed a signed deed of settlement in which the parties acknowledged partial settlement in respect of custody and maintenance of the child and sharing the movable property. The terms of the deed of settlement were as follows:

Joint custody of the child by having the child each alternate school holiday or term, and that this to be reviewed after two years (which meant by May 2011);

Parties to share the obligation to provide maintenance for the minor child; and

Division of movable assets as per the deed of settlement.

The issues referred to trial were the division of the two immovable properties being the house in Masvingo and the other in Harare. The second issue was whether the irrigation pipes and the water bowser are matrimonial property and is so how they should be shared between the parties.

The matter was then first set down for trial before MAVANGIRA J on 27 July 2009 and for reasons which are not apparent from the record it was postponed sine die.

The matter was then reset down during the week commencing 1 February 2010 to 19 February 2010 and was dealt with by MAVANGIRA J on 4 February 2010. The trial could not proceed and the matter was referred back to the pre-trial conference stage. The parties were directed to approach the Registrar in order to be allocated the date for the pre-trial conference.

After many aborted attempts to hold the pre-trial conference before GUVAVA J the parties finally filed a signed joint pre-trial conference minute and the matter was referred back to trial on 1 March 2011. The issues referred to trial were almost the same as per the pre-trial conference held before MUSAKWA J except for the dispute relating to the sharing of cattle at the couple’s farm.

The matter was allocated to me and I proceeded to set the matter down for trial on 10 May 2011. The trial could not proceed on that day as the plaintiff’s legal practitioner advised that she was unable to contact the plaintiff for trial as the plaintiff was now based in South Africa. A request was made and granted to postpone the matter sine die to allow for the plaintiff’s availability.

The plaintiff’s legal practitioners as was directed advised on 24 June 2011 that they had contacted the plaintiff and requested that the matter be set down for trial. I proceeded to set down the matter for trial for 25 July 2011. However on 15 July 2011 the plaintiff’s legal practitioners wrote a letter advising that Mrs Magoge-Mashindi was unavailable on the date set for trial on 25 July 2011 as she was booked for an operation. A request was made to have the matter set down for the third term in 2011. On 25 July 2011 the trial could not proceed on account of the absence of the plaintiff’s legal practitioner. The plaintiff however appeared in person and in the presence of the defendant and his legal practitioner I postponed the matter and directed that the matter be reset down on the continuous roll between 29 September 2011 and 14 October 2011.

On 3 October 2011 all parties were in attendance. The trial could not proceed because of the challenges which arose from the deed of settlement dated 27 May 2009, which did not deal in a permanent way with the issue of custody of the minor child and other related issues thereto. It also did not address the issue of spousal maintenance claimed by the defendant. I believe these are the same challenges which should have prompted MAVANGIRA J on 4 February 2010 to refer the matter back for pre-trial conference stage to have those issues ventilated. Unfortunately the joint pre-trial conference filed by the parties later on 1 March 2011 still did not address those challenges. The deed of settlement as per agreement had not been reviewed after two years in May 2011 by the parties. Consequently I advised the parties that I could not defer the matter to another date but sought to include these additional issues to the joint pre-trial conference filed on 4 February 2010. The parties agreed and this meant that in addition to the dispute regarding the two immovable properties, the irrigation pipes, the bowser and cattle there was now the issue of the custody of the minor child, quantum of maintenance to be paid for the child, nature of non-custodial parent’s access rights. After agreeing on all the issues to be resolved during the trial both parties indicated that they were still not ready to proceed with the trial on that day 3 October 2011 on account of the fact that they wanted to both file additional documents to deal with the additional issues and to prepare for trial on those additional issues. I reluctantly acceded to this request and postponed the matter sine die. I further instructed that both parties were to revert back to this court as soon as possible for the trial to commence within the same period between 26 September and 14 October 2011.

On 4 October 2011 the plaintiff’s legal practitioner wrote to the Registrar indicating that the parties no longer wish to proceed with the matter by way of trial as the defendant wanted the matter to proceed by consent. The plaintiff’s legal practitioner indicated in this letter that their parties would file a draft consent paper by 6 October 2011 to enable the court to deal with the matter.

On 6 October 2011 the promised consent papers were not filed. However on 7 October 2011 the defendant filed a notice of withdrawal and in that notice the defendant withdrew his defence to the plaintiff’s claim. The relevant consent papers were still not filed.

On 26 October 2011 the plaintiff’s legal practitioners wrote to the defendant’s legal practitioners (in an apparent reference to a letter written by the defendant’s legal practitioners on 25 October 2011) protesting the manner in which the defendant was allegedly constantly changing the goal posts, buying time and creating confusion on how the matter should proceed. The plaintiff’s legal practitioners indicated that contrary to what was earlier on agreed, the tone of the defendant’s letter seemed to suggest that there was no settlement between the parties and that the matter should proceed to trial on the basis of the agreed issues on 3 October 2011. The dispute seems to have been centred on some movable property which the parties had earlier on indicated they had resolved.

I realised that thereafter there was no progress in the matter and on 5 March 2012 I summoned both counsel for the parties to my chambers for an explanation for lack of progress in the matter. On 5 March 2012 both counsel attended and indicated that they had resolved to have the parties sign the consent papers and have the matter referred to the unopposed roll. I implored both counsel to resolve this as soon as possible and that if no agreement is reached again I should be advised before the second term in 2012.

On 12 April 2012 the plaintiff’s legal practitioner wrote the Registrar requesting to have the matter placed on the unopposed roll. The draft consent which we had agreed was a pre-requisite to have the matter referred to the unopposed roll had not been filed as had been promised by both counsel on 5 March 2012. I realised that referring the matter to the unopposed roll without such a commitment may delay the matter further as in the past the parties seemed not to honour their so called agreements. I directed the Registrar to wait for the relevant papers to be filed before I could refer the matter to the unopposed roll.

On or about 7 June 2012 I was pleasantly surprised to receive by courier service a letter personally addressed to me by the plaintiff from South Africa. The method of service used was to ensure that the letter would not be channelled through the formal way but delivered to me in my personal capacity. I was obviously put in an invidious position because it was only after I had opened this “personal letter” that I realised from the contents that it related to a matter before me. The letter is dated 1 June 2012. The plaintiff seemed to appreciate the impropriety of such conduct as she, in her introductory remarks in the letter, apologised for writing a letter directly to me. In the letter the plaintiff complained about the delay to finalise the matter and blamed her legal practitioner for the delay. She chronicled her version of events relating to the history of the matter and how this has prejudiced her as she has been unable to move on with her life since filing for divorce in 2007. The plaintiff indicated that the defendant had simply refused to sign consent papers at the last minute. I later learnt during the trial (when I brought this to the attention of Mrs Magoge-Mashindi) that the plaintiff had not advised her legal practitioner about the letter.

On 12 June 2012 I confirmed with the Registrar that no further documents had been filed by the parties. I then directed that the matter be set down for trial on 9 July 2012 and advised both parties.

The plaintiff’s legal practitioner five days before the trial date, on 4 July 2012 wrote a letter to the Registrar inquiring why the matter has been set down on the continuous roll and sought directions on how to proceed. The plaintiff’s legal practitioner also indicated that she had been unable to ensure the plaintiff’s attendance on 9 July 2012. I advised the plaintiff’s legal practitioner through the Registrar on 5 July 2012 as follows:

That I had set the matter down on the continuous roll despite the filing of notice of withdrawal by the defendant because the parties have failed to move the matter forward as per promises made.

That the trial would proceed on the basis of the stage and the state of the matter which was common cause between both parties.

That the plaintiff should attend without fail more-so as I was in receipt of the plaintiff’s letter of complaint about the delays in the matter.

That the plaintiff’s legal practitioner should act as directed by serving the defendant with notice of set down which was dated 13 June 2012 (for 9 July 2012) which notice the plaintiff’s legal practitioner had received from the Registrar on 14 June 2012. I emphasised I was surprised that the plaintiff’s legal practitioner who had received the notice of set down on 14 June 2012 would only write to the Registrar five days before trial raising these concerns.

The plaintiff’s legal practitioner acted as was directed. The defendant was served and the plaintiff was in attendance on 9 July 2012.

I chronicled the sequence of events in this matter for the simple reason that there has been an inordinate delay of five years to bring this matter to finality. I am also of the view that in such a case the reasons for the delay should be articulated and put into proper perspective.

I now turn to the resolution of the matter.

When the trial commenced on 9 July 2012 the defendant indicated that he was now a self-actor and that the matter should proceed.

It is important to note that when the trial resumed the defendant had withdrawn his defence and had not sought to reinstate the same. The matter therefore proceeded as an uncontested matter.

The plaintiff gave evidence in relation to the breakdown of the marriage relationship between the parties. She adopted the averments made in her declaration and I have dealt with that at length. On the basis of her evidence I am satisfied that the decree of divorce should be granted. The reasons for the breakdown of the marriage relationship between the parties have not been challenged. The parties have been living separately for five years. The claim for a decree of divorce is not contested by the defendant. As already said I am satisfied that in terms of s 5 (1) of the Matrimonial Causes Act [Cap 5:13] the marriage relationship between the plaintiff and defendant has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship.

I now turn to the division of the assets of the parties in terms of s 7 of the Matrimonial Causes Act [Cap 5:13].

The plaintiff conceded that she cannot lay a claim to the Mamvuradona/Concession farm on account of the fact that it is State owned land and not an asset of the parties.

In relation to the movable property the plaintiff’s evidence was to the effect that each party should be declared the sole and exclusive owner of the property in his or her possession except for the personal books in the plaintiff’s custody which she should surrender to the defendant. The plaintiff indicated that she was now abandoning her claim to the movable property at the farm in particular in respect of the irrigation pipes, water bowser and the cattle. Her reason was that due to lapse of time she is unable to give the court a meaningful inventory of the movable property at the farm.

In relation to the two immovable properties number 5924 Hillview, Hillside, Masvingo (“Masvingo property”) and number 2 Langtree Chadcombe, Hatifield Harare (“Harare property”) the plaintiff indicated that she should be awarded the Harare property. She testified that when the parties separated in 2007 she remained occupying the Harare property and the defendant moved to the farm. She has therefore been always staying at the Harare property since the time they moved to Harare. She said even now when she is working in South Africa she always returns to Zimbabwe to stay at the Harare property.

The plaintiff told the court that when she married the defendant firstly customarily the defendant had already built the Masvingo property although it was not complete. Further improvements were done to the Masvingo property when the parties were staying together. They include the plastering of the house, extensions to the veranda and dining room and fencing the premises. In relation to the Harare property the plaintiff said when the parties got married the defendant had acquired an undeveloped stand for the Harare property. The Harare property was built when the parties were already married.

In view of the fact that there are only two immovable properties it is fair and just to award each of the properties to the parties. The plaintiff has given her reasons for preferring the Harare property which is registered in the defendant’s name. She offered to pay the transfer fees and I find no reason not to award her the property. The defendant would retain the Masvingo property in his name and can benefit from that house as he stays at the farm in Concession.

In relation to spousal maintenance, the plaintiff makes no claim for post-divorce maintenance.

Lastly, the plaintiff gave evidence in respect of custody of the minor child and related issues. The plaintiff is now housed in South Africa and is in custody of the minor child. The plaintiff indicates that she would not at this stage claim contributory maintenance in respect of the minor child from the defendant on account of the logistical problems involved. The child is now in Grade 7 equivalent in South Africa and she is currently taking care of the day to day needs of the eleven year old girl. She said she however reserves the right to claim maintenance in future. As regards access, the plaintiff highlighted that the child is based in South Africa hence the defendant would enjoy access as and when the child is in Zimbabwe and in terms of arrangements the parties would have made.

In view of the fact that the matter proceeded finally as an unopposed matter and the inordinate delay involved I shall order each part to bear his or her own costs.

Accordingly, it is ordered as follows:

A decree of divorce is hereby granted.

The custody of the minor child Tamirirana Mazvita Sadomba (born on 20 September 2001) is awarded to the plaintiff.

No maintenance order is made in respect of the minor child and the plaintiff reserves the right to institute such a claim in future.

The defendant shall enjoy reasonable access to the minor child whenever the child is in Zimbabwe or any other occasions with prior arrangements and in consultation with the plaintiff.

Each party is awarded as his or her sole exclusive property the movable property in his or her possession except in relation to the defendant’s books which are at the Harare property that should be surrendered to the defendant as soon as possible upon request by the defendant.

The plaintiff is awarded the immovable property number 2 Langtree Lane, Chadcombe, Hatfield, Harare registered in the defendant’s name as her sole and exclusive property.

The plaintiff shall pay for all the transfer costs of the said property number 2 Langtree Lane, Chadcombe, Hatfield Harare.

The defendant shall sign all relevant papers to effect transfer within thirty days of being notified by the plaintiff failure of which the Deputy Sheriff is authorised to sign all relevant papers to effect transfer of the property number 2 Langtree Lane, Chadcombe, Hatfield, Harare into the plaintiff’s name.

The defendant is awarded as his sole and exclusive property the immovable property number 5924 Hillview, Hillside, Masvingo registered in his name.

Each party shall bear his or her own costs.

Magoge-Mashindi & Muzenda Attorneys, plaintiff’s legal practitioners