7
HH 281-23
HC 2467/21
SIMBA RUWODO
versus
TENDAI PORTIA MUZOZVIONA
HIGH COURT OF ZIMBABWE
MUCHAWA J
HARARE, 23 January 2023 & 10 May 2023
Civil Trial – Divorce
Mr A Masawi, for the plaintiff
Mr O Kondongwe, for the defendant
MUCHAWA J: The plaintiff and the defendant are husband and wife who were married on 31 July 2015, in Harare, in terms of the then Marriage Act [Chapter 5:11]. The marriage was blessed with two children being ETR (born on 8 February 2017) and AAR (born on 5 March 2021). The marriage relationship has fallen on unhappy times leading to the institution of these divorce proceedings.
The plaintiff avers that the marriage relationship has irretrievably broken down to the extent that there are no prospects of restoration of a normal marriage relationship as they have lost love and affection for each other and have not been living together from 15 September 2020. It is alleged too that they have developed irreconcilable differences due to differing values and beliefs and incidents of violence by the defendant.
Upon the granting of a decree of divorce, the plaintiff wants the defendant to continue having custody of the minor children of the marriage. His access claim was revised to having access two Saturdays per month during term and for two weeks during school holidays.
With respect to maintenance of the two children, the plaintiff offered to do the following:
Paying for all medical expenses of the two minor children
Payment of all school related fees and levies directly to the children’s learning institutions
Buying all the children’s uniforms
Providing the sum of US$ 20 or its equivalent in local currency at the prevailing official rate for each of the children, per month. This amount was reviewed upwards to US$50.
During the subsistence of the marriage, the parties acquired the following properties which plaintiff proposes be shared as follows:
For the two minor children:
An immovable property Stand number 28 Eyestone, Waterfalls, Harare allegedly fully funded by the plaintiff.
For the Plaintiff:
An Isuzu KB motor vehicle registration number ABG 4313
1 wardrobe
A Capri upright fridge
2 plate stove
1 gas tank
1 bed set
For the Defendant:
A Toyota IST motor vehicle registration number AFB 4328
1 wardrobe
A Capri deep freezer fridge
1 gas tank
2 bed sets
3-piece kitchen cupboard unit
Samsung home theatre system
Hisense 42-inch TV set
4 set couch set
4 plate stove
2 plate gas stove
Dresser
Headboard
The plaintiff’s prayer is for a decree of divorce and ancillary relief as laid out above.
The defendant lodged a counterclaim in which she was claiming that the parties had also acquired a rainbow 360 volts solar panel and 2 black Friday batteries which she was claiming in addition to the property proposed for her by the plaintiff. She also proposed that the immovable property be transferred into a trust created for the benefit of the children. She also claimed that she had developed gestational diabetes, a condition which persists to date and was claiming that the plaintiff contributes to her medical expenses. The offer of US$20 per child as maintenance was rejected and she counterclaimed for US$200 per month, per child. This was however reviewed down wards to US$100 per child per month.
At the initial date of commencement of trial on 9 November 2022, the defendant’s counsel advised that they were abandoning the claim for a solar panel and batteries. The claim for post-divorce spousal maintenance for medical expenses was also abandoned. There was no contestation on the granting of the decree of divorce. The issue of division of matrimonial property was also subsequently settled with the immovable property being put in the names of the defendant. Two issues remained unresolved and were referred to trial. These were the issue of access and maintenance of the children.
ACCESS
The plaintiff’s claim for access at the trial had been reduced to wanting to exercise access to the two minor children on two Saturdays per month during term and two weeks during the school holiday for the older child.
The defendant is not opposed to the proposed revised access terms but insists that it is in the best interests of the minor children that the plaintiff disclose his residential address to her.
The Evidence
The plaintiff stated that he wanted to maintain a relationship with his children hence his claim for access so that the children would have a balanced life. He said that even though the children are girls, and he is male, he was equipped to deal with his daughters as he had stayed with the older child for almost a month when she was 3 years old after moving out of the matrimonial home when the defendant was expecting the second child. That stint was said to have been smooth except for the interference by the defendant who was alleged to have come and caused havoc, but he would protect the child.
Furthermore, the plaintiff related an incident in which he had custody of the older child and took her to his rural home during the Christmas holidays after informing the defendant of this. The defendant would call the minor child and in one incident she was told that there was another mum and she drove to Mutare to take the child. He explained that the other mum was a relative, an aunt who would be called a mum in our culture. The plaintiff averred that when the defendant went to the rural home, she went with a mob and was violent to the extent of breaking windows. He claimed that wherever he has stayed, the defendant has caused malicious damage to property. He however has never made any police report for all the alleged incidents and plaintiff said for the Mutare incident, it was in fact the defendant who made a police report.
As far as the plaintiff is concerned, upon the granting of the divorce, he will not be concerned about the defendant’s address daily if the children are safe. He said that as a father, he would trust the mother of the children to cater for their safety and best interests.
Under cross examination, the plaintiff denied that he was living with another woman now. He denied that the child was distressed and crying when she was talking to the defendant on the phone when she was in Mutare. The plaintiff’s concern is the alleged violent nature of the defendant and all he wants is peace. He said he stays with a brother and uncle who are around 26 years old.
The defendant insisted that the plaintiff should disclose his residential address to the defendant so that she can monitor the condition of the children whilst they are with him. She confirmed that the plaintiff had been exercising access rights over the older child even when she was 3 years old during weekends, (Friday to Sunday) and holidays. She said that this had stopped when the other woman had come on the scene. Her discontent was with the alleged Mutare incident when she claims the child was crying over having to call another woman “mum” and she had to drive all the way to Mutare to collect the child. She denied having broken any windows nor going there with a mob and said she was accompanied by the chief, a neighbour, and police. As far as she is concerned, the plaintiff had a girlfriend in Mutare who was pregnant by him whose name matches that on the birth certificate tendered by the plaintiff as his additional child. This woman was said to be staying with the plaintiff. The defendant said that she is uncomfortable to give another woman her children to look after when she is there. The plaintiff was challenged to produce proof of the alleged violent incidents by the defendant. On her part, the defendant produced a subpoena in a criminal matter in which the plaintiff was charged of physical abuse on the defendant which allegedly occurred on 6 December 2020.
The defendant further said that she wants the plaintiff’s address because he said that he stays with an uncle and brother and her daughter will be in the custody of three males and yet she does not know the sleeping arrangement nor the set up of the home and this will expose the child to abuse as these people would take advantage of the fact that she does not know the address. She said that in the event of any abuse happening, she would not even have the address to give to the police.
From the evidence given, the real issue pushing the defendant to insist on a disclosure of the plaintiff’s address is her expressed dislike of having her children in another woman’s care. As she said that before the “other mum” incident, the plaintiff would exercise access and take the older child even when she was 3 years old. She believes that the plaintiff is living with the woman she blames for the breakdown of her marriage whom she said she knows as she has met face to face, she has her contact numbers, but she has been blocked now. She even confronted the mother of the other woman. She explains that she confronted them to tell them that the plaintiff was her husband, and they should not have received bride price from him in December 2021. Does she intend on making unannounced visits to monitor the condition of her children when plaintiff is exercising access? I think that the defendant has unfinished business with the other woman. She came across as someone who is holding onto bitterness despite consenting to the granting of the decree of divorce.
On his part, the plaintiff was evasive and unclear on his living arrangements. He claimed to live with an uncle and brother in justifying his expenses, tendered a birth certificate for a new child but forgot to tell the court the amount of maintenance he pays for this child. The conclusion which I reached when I put a question to him is that he most likely stays with this child and the mother therefore as assumed by the defendant. He knows that as the marriage still subsists, he cannot do so lawfully hence the lack of clarity. He is guarding his address ferociously to avoid future altercations with the defendant. All this just shows the level of acrimony between the parties.
The Law on Access
Access matters are to be decided by considering all the facts to a matter having regard to the best interest of the child. In Bottger v Bottger HC-H 405-82, at p 7, it was held as follows:
“The object of access is to nurture the affection and companionship between non-custodian parent and child, and while on the one hand it should not be of such frequency as to trespass on the control and direction of the child’s daily life that is vested in the custodian parent, on the other it should not be so confined as to stultify the continuing link between child and non- custodian parent.”
The parties are agreed on the need for the plaintiff, as the non- custodian parent to enjoy access to nurture the affection and companionship that should be cultivated between him and his daughters. The defendant is putting in a condition, which as I have found out, is spurred by her bitterness and failure to let go. She appears to want to confine the plaintiff’s exercise of access by swooping on him unannounced to monitor the condition of the children. This is undesirable as it would only serve to stultify the continuing link between the children and their father. It appears there is acrimony between the parties.
It is fitting to warn the parties in line with what Honourable Munangati-Manongwa J said in the case of Machacha v Mhlanga HH 185/23. She said that warring parents should not be oblivious of the best interests of the children and hold and use them as pawns for their selfish ends or to settle scores or score some victory.
I find no legal basis to order the plaintiff to divulge his physical address as a precondition to exercise his access rights. The demand by the defendant is therefore dismissed.
MAINTENANCE
The issue, which in my opinion should never have come to trial, is whether the plaintiff should pay US$50 or US$100 per month, per child in maintenance.
The Evidence
The plaintiff testified that he is already providing for the two children’s maintenance in the following respects:
All school requirements including school fees, school uniforms and school trips.
Medical aid facilities covering all aspects including consultation, treatment, examinations, operations and other procedures, medicines, and all ancillary items.
He handed over the matrimonial home to the defendant to make sure that the children have a roof over their head and there is no rental cost incurred by the defendant.
He told the court that he earns RTGS 423 287.35 as net pay. He also gets a further RTGS 450 840.10 from EcoCash earnings. In addition, the plaintiff said he gets discretional non contractual earnings in the sum of US$500 as fees allowances and another US$500 as fuel allowances. The EcoCash earnings and the allowances were said to be discretionary as they are not included in the employment contract and could therefore cease at any time. He said that the defendant is employed by the same employer, and she also gets the same discretional EcoCash RTGS allowance and fuel and fees allowances.
It was the plaintiff’s evidence that his monthly expenses are US$200 for rent, US$60 for transport, US$150 for groceries bringing total expenses to US$410. He claimed that he stays with two adult males, a brother, and an uncle hence the cost of groceries stated. He also claimed to be responsible for paying the caretaker and providing groceries for him at his aunt’s rural home. The plaintiff tendered a birth certificate which shows that he now has another child born on 13 May 2022 whom he must also maintain.
In her evidence, the defendant said that US$50 per child per moth would be inadequate as her expenses for the children come to US$358 and she is prepared to meet half of these. The breakdown was given as US$20 for diapers for the 2-year-old child. The rest is for food, water, gas, and other groceries. Whilst acknowledging that the plaintiff would indeed pay school fees, the defendant said she also meets the school run costs which are US$60 per month and therefore US$180 per month. Though medical aid is covered by the plaintiff, the defendant said that she would be responsible for taking the children to the doctor and nursing the child and meeting whatever is not covered by medical aid. Whilst the plaintiff covers purchase of school uniforms once a year, the defendant said she buys clothes for both children, something the plaintiff was not doing seriously as he had only bought the younger child only a short and shirt. She pointed too to her own medical expenses for her diabetic condition wherein she has to buy two types of insulin, one at US$43 per pen set per month and the other requires 3 pen sets at US$13 per pen set.
The defendant questioned the plaintiff’s alleged transport costs and said he has been working from home. She also contended that if the plaintiff can afford to care for his extended family needs and another child, then he should be able to pay US$100 per month per child.
In terms of earnings, the plaintiff said that she earns RTGS 220 000 meaning that the plaintiff earns double what she earns as he is in a higher grade. Her allowances were said to be US$400 for fuel and US$500 as fees allowances. Despite directing the defendant to file with the court by 25 January 2023 a supplementary bundle of documents including her payslip, subpoena and EcoCash earnings confirmation, she did not file the EcoCash confirmation.
This concealing of crucial information, which the plaintiff was able to supply, does not augur well for the defendant. An analysis of the defendant’s payslip shows that though the net salary is reflected as RTGS 222 072.49, a sum of RTGS 130 345.90 was a deduction related to salary advanced to her. A further RTGS 52 289.80 was diverted to Steward Bank. Without such deductions, the defendant’s salary would be in the region of RTGS 404 708.19. She would further be in receipt of the EcoCash payment whose amount she has not disclosed. In her evidence she disclosed that she gets US$400 and US$500 as fuel and educational allowances respectively.
The plaintiff’s payslip shows that his nett pay for January 2023 was RTGS 332 472.72. He too had RTGS 173 214.61 diverted to Steward Bank and salary advance of RTGS 169 314.90 deducted. This means that without these, his nett salary would be RTGS 675 002.23. This indicates that he therefore earns more than the defendant.
The Law
The amount of maintenance payable by each parent is determined by their respective means and resources. In computing the actual figure, the court must make a value judgment based on the income and assets of the parties. See Barrass v Barrass 1978 RLR 384.
Both parties must furnish the court with information regarding earnings, income, savings, other resources, together with their monthly expenses. The court then must balance these and assess the amount of maintenance payable. Section 6(4) of the Maintenance Act [Chapter 5:09] enjoins a court to have regard to the general standard of living of the responsible person and the dependant, including their social status; the means of the responsible person and the dependant; the number of persons to be supported; and whether the dependant or any of his parents are able to wok and if so whether it is desirable that they should do so.
The plaintiff sought to argue that the maintenance order should not be based on an amount which includes the discretionary allowances which were only introduced during Covid and can be withdrawn at any time. The law however provides for assessment to be done based on the current earnings. If they are then withdrawn, he can always apply for variation of the order granted in terms of Section 8 of the Maintenance Act. The basis of a variation is that the income of the responsible person has increased or decreased.
Since the defendant did not furnish the court with her EcoCash Earnings, I am assuming that she gets the same amount as the plaintiff which would be around RTGS 450 000. To maintain the children’s standard of living and the higher means of the plaintiff and noting too that the plaintiff is already catering for many aspects of the maintenance of the children. He has three children to maintain. The rest of the extended family are not his primary responsibility. The defendant on her part is also shouldering a bit of the children’s needs as she is the one who lives with them. An order of maintenance of US$75 per month per child would meet the justice of this case.
Accordingly, I order as follows:
A decree of divorce be and is hereby granted.
Custody of the minor children, ETR (born on 8 February 2017) and Alayna AAR (born on 5 March 2021) be and is hereby granted to the defendant.
The plaintiff is granted access to the minor children two Saturdays per month from 9am to 5pm and for two weeks of the school holiday for ETR (born on 8 February 2017). Access for two weeks of the school holiday will be extended to AAR (born on 5 March 2021) when she is of school going age, or earlier as per agreement of the parties.
The plaintiff is awarded the following property as his sole and exclusive property:
An Isuzu KB motor vehicle registration number ABG 4313
1 wardrobe
A Capri upright fridge
2 plate stove
1 gas tank
1 bed set
The defendant is awarded the following as her sole and exclusive property:
An immovable property Stand number 28 Eyestone, Waterfalls, Harare
A Toyota IST motor vehicle registration number AFB 4328
1 wardrobe
A Capri deep freezer fridge
1 gas tank
2 bed sets
3-piece kitchen cupboard unit
Samsung home theatre system
Hisense 42-inch TV set
4 set couch
4 plate stove
2 plate gas stove
Dresser
Headboard
The plaintiff is ordered to pay the following as maintenance for ETR (born on 8 February 2017) and AAT (born on 5 March 2021) until each attains the age of 18 years or becomes self-supporting:
Paying for all medical expenses for the children.
Paying all school related fees and levies directly to the children’s learning institutions and costs of school trips
Buying all the children’s school uniforms
Providing US$75 or its equivalent in local currency at the prevailing official rate for each of the two minors per month for their other day to day needs through the Defendant’s bank or mobile money account.
Each party to bear its own costs.
Mafuka and Associates, plaintiff’s legal practitioners
Messrs Dube, Manikai & Hwacha, defendant’s legal practitioners