Gift Tendai Gova v Martha Gova (née Mukwambo)

### Preamble
1
HH 240/13
HC 6231/10
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GIFT TENDAI GOVA

versus

MARTHA GOVA (nee MUKWAMBO)

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 17, 18 and 19 July 2013

FAMILY LAW COURT

Trial Cause

Ms L Chiperesa, for the plaintiff

Ms B Makuvise, for the defendant

MAWADZE J:  The plaintiff and defendant are husband and wife respectively. They married each other at Harare on 27 June 2006 in terms of the Marriage Act [Cap 5:11]. The marriage was blessed with one minor child Tafadzwa Gova, a male, born on 25 October 2007.

On 7 September 2010 the plaintiff issued summons out of this court seeking a decree of divorce on the basis of irretrievable breakdown of the marriage, custody of the minor child, an order of maintenance for the minor child, sharing of movable assets of the persons and costs of suit.

In his declaration the plaintiff outlined the reasons for the breakdown of the marriage relationship between the parties. The plaintiff gave the reasons as follows:

that the defendant committed  adultery with other men;

that the defendant has treated the plaintiff with such cruelty inconsistent with a normal marital relationship in that she has neglected her chores as a married woman, denied the plaintiff his conjugal rights and chased him out of the matrimonial home; and

that she openly confessed to the plaintiff that she has lost all love and affection for the plaintiff.

In respect of custody of the minor child, the plaintiff seeks to be awarded custody with the defendant exercising reasonable access to the minor child. The plaintiff seeks an order of maintenance in the sum of US$150-00 per month for the minor child and an order for sharing of the movable assets of the parties in terms of para(s) 9 (a) and (b) of the declaration.

The defendant in her plea while admitting that the marriage relationship between the parties has irretrievably broken down disputed the reasons given by the plaintiff. Instead she said it is the plaintiff who moved out of the matrimonial home in May 2010 resulting in the parties living apart. The defendant said the plaintiff’s conduct is clear that he is no longer interested in the marriage. The defendant said it is the plaintiff who is quarrelsome, paranoid and falsely accuses her of being adulterous.

The defendant filed a counter claim claiming custody of the minor child, with the plaintiff exercising reasonable rights of access, an order of maintenance for the minor child in the sum of US$200-00 per month, payment of school fees, education expenses and medical expenses and sharing of the movable assets of the parties in terms of para 3 of her counter claim.

It would appear that the issues of whether the marriage relationship between the parties has irretrievably broken down and the sharing of movable property was resolved at the pre-trial conference.

In terms of the joint pre-trial conference minute the following issues were referred to trial:

Which party should be awarded custody of the minor child namely Tafadzwa Gova (born on 25 October 2001);

What kind of access to the minor child should the non-custodial parent have; and

How much maintenance should the non-custodial parent contribute towards the minor child’s upkeep.

During the trial both the plaintiff and the defendant gave evidence and did not call any witnesses.

Breakdown of the Marriage

From the evidence led by both parties the parties accept the fact that their marriage relationship has broken down and that it is now beyond resuscitation. They however differ on the reasons thereof and blame each other for the breakdown of the marriage.

The plaintiff in his evidence emphasised the fact that what broke the camel’s back was the defendant’s infidelity. He said on the first occasion he discussed the defendant’s infidelity with her parents and resolved the issue. He however said that when he discovered that the defendant was in another adulterous relationship, the defendant was arrogant, unrepentant, harsh and uncooperative. He said the defendant was even openly defiant arriving home from work at 10.00 pm or even after midnight. The plaintiff said the plaintiff rubbed salt on the wound by refusing to perform household chores and rendering him conjugal rights.

The defendant in her evidence on the other hand dismissed the allegations of infidelity as false and accuses the plaintiff of being paranoid and jealous. She denied ever admitting being adulterous. The defendant said she works in a predominantly male environment and that the nature of the work has no fixed starting time and knock off time. As a result she said when she put in long working hours to earn more money as she is paid on commission the plaintiff who was unemployed would falsely accuse her of having boyfriends. The defendant said the plaintiff was not even truthful about his employment status until it was apparent that he was unable to contribute financially to the welfare of the family. As a result the defendant said the parties quarrelled frequently on the inadequacy of their finances. She said the plaintiff was not even appreciating her efforts in that when she worked hard to bring food on the table for the family with no contribution from the plaintiff and that the plaintiff would instead verbally abuse her saying that she was feeding the family from the proceeds of prostitution.

The plaintiff told the court in his evidence that the marital relationship between the parties worsened when the defendant became violent threatening to kill him. As a result he said in May 2010 he decided to move out of the matrimonial home and went to stay with his elder brother in Acturus. The defendant on the other hand denied in her evidence acting in any violent manner. Instead she said it is the plaintiff who walked out on her as he seemed no longer interested in the marriage.

It is clear from the evidence adduced from both parties that the marriage relationship between the parties has irretrievably broken down. It matters not that neither party is willing to take blame for the breakdown of the marriage relationship. What remains as a fact is that the parties no longer trust each other, the normal lines of communication expected between husband and wife are broken down and above all they have lost love and affection for each other.

In terms of s 5(1) of the Matrimonial Causes Act [Cap 5:13] the court may grant a decree of divorce on the grounds of irretrievable breakdown of the marriage if it is satisfied on evidence adduced that the marriage relationship between the parties has broken down to such an extent that they are no reasonable prospects of the restoration of a normal marriage relationship between the parties. I am satisfied that on the evidence led from both parties a decree of divorce should be granted in the circumstances.

The main contentious issue between the parties remained in respect of which parent should be awarded custody of the minor child. In principle both parties in their evidence agreed that the non-custodial parent should enjoy reasonable access right to the minor child

The plaintiff in his evidence said if he is awarded custody he would allow the defendant right of access on each school holiday, public holidays and on any other special occasions. The defendant said she is willing to grant the plaintiff access to the minor child on every two weeks of each school holiday and on any other special occasion. The question of access rights of the non-custodial parent is therefore not in issue.

The same can be said in relation to the payment of maintenance for the minor child by the non-custodial parent. The plaintiff offered to pay US$100-00 per month as maintenance for the minor child if custody is awarded to the defendant. The defendant while unable to accept that custody may be awarded to the plaintiff grudgingly offered US$20-00 to US$30-00 per month as maintenance for the minor child. At the end of the day the court in determining the quantum of maintenance to be paid by the non-custodial parent would consider the needs of the child and the means of the parties.

The parties have agreed on how the movable property acquired by the parties during the subsistence of the marriage should be shared between them upon the grant of the decree of divorce. The parties have filed signed copies of the schedule of movable property indicating what items should be awarded to each party. I shall incorporate this schedule in the divorce order to be granted.

I now turn to the contentious issue of which party should be awarded custody of the minor child Tafadzwa Gova.

Custody of the minor child

The minor child Tafadzwa Gova was born on 25 October 2001 and is now 12 years old. He is in Grade 6 at Budiriro Primary School in Harare. The impression given in court is that he is a very intelligent boy who is always in the top three in his class. Both parents indicated that he is a keen footballer already attached to an academy called Royal Academy and that he would not miss a football match on television even at night. Tafadzwa should also be a well behaved boy as he was made a prefect at the school since Grade 5.

It is common cause that when the plaintiff left the matrimonial home he left the minor child in custody of the defendant. This is in line with the provisions of s 5 (1) of the Guardianship of Minors Act [Cap 5:08]. This was in May 2010. However as per his evidence the plaintiff had second thoughts and he returned few days later and stealthily took the child away in the absence of the defendant. The plaintiff testified that he managed to get a transfer letter for the child from Budiriro Primary School to Acturus. The defendant immediately followed the next day, took the child back into her custody and enrolled him back at Budiriro Primary School. It is therefore common cause that for the past three years since the parties have been on separation the defendant has had custody of the minor child.

It is trite law that in dealing with the question of custody of minor children the court should be guided by the best interest of the children. In the case of Makuni v Makuni 2001(1) ZLR 189 (H) at 192 A GOWORA J (as she then was) made this point when she said:

“In approaching a problem of this nature, the court is, of course primarily concerned with the welfare of the children, that is the paramount consideration. Just as in custody cases, so also in disputes arising out of custody orders, the welfare of the children is in predominant consideration which should weigh with the court. (Shazin v Laufer 1968 (4) SA 657 at 662 G-H).”

See also McCall v McCall 1994 (3) SA 201 at 204-05

In the case of Galante v Galante (3) 2002 (2) ZLR 408 (H) at 418-19 SMITH J outlined some of the factors which constitute the best interests of the child:

“In determining what is in the best interests of the child, the court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;

the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;

the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;

the capacity and disposition of the parent to give the child the guidance which he requires;

the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’ such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;

the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;

the mental and physical health and moral fitness of the parent;

the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;

the desirability or otherwise of keeping siblings together;

the child’s preference, if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;

the desirability or otherwise of applying the doctrine of some sex matching particularly here, whether a boy of 12 (and Rowan is almost 12) should be placed in the custody of his father; and

any other factor which is relevant to the particular case with which the court is concerned.”

See also Jere v Chitsunge 2003 (1) ZLR 116 (H) at 118 C – E per CHEDA J.

Useful guidance should also be placed on the provisions of the Children’s Act of South Africa 2005 s 7 (1)(a) – (n) which gives specific bench marks of what constitutes the best interests of the child.

I shall bear in mind these principles of law in dealing with the dispute of custody of the minor child in this case.

The plaintiff in his evidence told the court that he should be awarded custody of the minor child on account of the fact that he is a better custodial parent who can look after the best interests of the minor child. In his evidence the plaintiff said the minor child is a male child now reaching adolescence and would need guidance from him as the father rather than from the mother. In terms of discipline and character moulding the plaintiff believes he is better suited to discharge this responsibility. He was however not able to substantiate this assertion. It is the plaintiff’s evidence that the defendant’s nature of employment as a hair dresser in a saloon at Magamba Mbare where the defendant has no proper working hours every day negatively impacts on the best interests of the child. The plaintiff said the defendant leaves home early in the morning and only returns late at night hence she does not have quality time with the child, is unable to timeously cook for the child and assist with his homework. In his testimony the plaintiff said he learnt from communication with the child that the defendant is not concerned with the day to day welfare of the child especially during weekends when he realised that the defendant thought the minor child was having extra lessons when in fact the minor child was playing soccer. The plaintiff believes the defendant lacks interests in supervising the child.

The plaintiff is currently unemployed. In fact he has not been employed since 2010 except for a brief period of eight months with Windmill (Pvt) Ltd in 2012. He told the court that he has no steady income although he now survives on farming with his elder brother in Banket. He said he grows vegetable and maize seasonably realising an income of about US$100-00 – US$150-00 per month.

The plaintiff conceded that since 2011 the defendant had allowed him access to the minor child on each school holiday. He said he takes the child to Acturus and that the farm at Banket is not a habitable place. The plaintiff confirmed that he has no place of his own. However he said if granted custody he would look for his own lodgings preferably in Budiriro so as not to disrupt the child’s education. The plaintiff believes he has means to afford rentals for one room for his and the child’s lodgings.

Under cross examination the plaintiff denied that he last exercised his right to access in August 2012 but said it was during the December 2012 to January 2013 school holidays. He said this is also the time he can contribute to the maintenance of the child as he normally buys the child’s school uniform, clothes, books and gives him school fees.

Under cross examination the plaintiff conceded that he had not maintained the child and that he last assisted in January 2013. The plaintiff conceded that he had no evidence to show that the defendant’s conduct has compromised the child’s performance at school. The plaintiff admitted that since the separation he had not visited the child’s school to assess the child’s school work and performance. He conceded that he had no evidence to support his belief that the child is unsafe and unsupervised while in the defendant’s hands. Lastly the plaintiff to his credit admitted that the defendant is a good and responsible mother and that nothing adverse has happened to the child. Surprisingly he still insisted that the defendant does not love the child although he grudgingly accepted the defendant has to work in order to fend for the child.

The defendant is employed as a hair dresser at the family business premises at Magaba in Mbare. She occupies two rooms in Budiriro Harare which she shares with the minor child. Her evidence was that the plaintiff first met her when she was working at Magaba and he was working at Agrifoods. She said she stopped working after marrying the plaintiff but resumed work when it was clear that the plaintiff was not earning enough to fend for the family and later when he was unemployed.

The defendant conceded that the nature of her work demands that she works for long hours as she earns on commission and her income is determined by firstly the availability of clients and secondly the number she is able to able to attend. In her evidence she told the court that her daily routine entails working up at 0400 hours to do household chores, cook for the child and prepare the child to go to school. The child leaves for school first and she goes to work at about 0800 hours and normally returns home at between 1900 hours – 2000 hours after which she attends to the child’s needs and assist in his homework. The defendant said her working conditions have improved as at now as she now works for two weeks and would be off duty for the following two weeks.

The defendant told the court that her monthly income is not static but on average she earns US$180-00 to US200-00 per month. Her monthly expenses are:

Rentals including water and electricity US$180-00

School fees US$40-00 per term (US$10-00 per month)

Food US$100-00 per month

Extra lessons US$12 per month

The defendant’s monthly expenses are US$300-00 per month. She however said she is willing to accept the plaintiff’s offer of US$100-00 per month as maintenance for the minor child.

Under cross examination the defendant denied that the nature of her job impacts negatively on the interests of the child. She maintained that she has always acted in the best interests of the minor child and that she has done all she can possibly do to provide for the basic needs of the child at home as well as at school without any help or with very little help from the plaintiff. The defendant said the minor child has done well under her care alone as he is always top of the class and is a prefect. She said she has always attended all school functions and prize giving ceremonies alone without the plaintiff.

Under cross examination the defendant told the court that the plaintiff had last exercised his rights to access in August 2012 and that he has not been maintaining the child. The plaintiff believes the status quo should be maintained as she is a better custodial parent compared to the plaintiff who has no place of his own and is and being looked after by his elder brother in Acturus.

In assessing the evidence I believe both parties have been very open and candid with the court. Maybe this is so because there are very few issues which are in dispute. There is very little to choose between the evidence of both the plaintiff and the defendant besides the fact that each tried to portray the other in bad light without being able to substantiate such a view.

I am satisfied that both the plaintiff and the defendant are loving and responsible parents. There is no doubt that they have the best interests of the minor child at heart. While the plaintiff has not been frequently exercising his rights to access and not maintaining the child sight should not be lost of the fact that he has no means and he is unemployed.

I do not believe that the plaintiff has made a good case for custody of the minor child to be awarded to him. It is not a principle of law that a boy child should be placed in the custody of the father. See Hackim v Hackim 1988 (2) ZLR 61 (S); Goba v Muradzikwa 1992 (1) ZLR 212 (S) at 214 B-C; Goto v Goto 2000 (1) ZLR 275 (H).

The minor child has been in the sole custody of the defendant for three years since 2010. The plaintiff has not shown that there is any reason to interfere with the stability or otherwise of the minor child’s existing environment. The need to maintain the status quo is in the best interest of the child. The child has decent accommodation which the plaintiff is unable to and has no means to provide. The child is doing well at school and pursuing his hobby of soccer. It is not in the interest of the child to uproot him from the stable environment believing that the plaintiff would in the short term miraculously find means to provide for himself and the child. I believe the plaintiff can be granted generous and reasonable access rights which would enable him to give guidance to his son. It is the defendant who has been and is still being able to provide for the physical needs of the child such as food, money, school fees, and economic security which the plaintiff is not able to meaningfully provide. I am not persuaded that the nature of the defendant’s employment negatively impacts on the interests of the minor child. It is a fact that the current economic environment has left a large number of our people outside formal employment. Many people are now in the informal sector or self-employed. The defendant is a professional hair dresser and the nature of her work is not out of the ordinary. This cannot be used to attack her suitability as a custodial parent. In my view the defendant has shown that she is a hard worker and has done the best in the circumstances to fend for the child and generally provide for the child’s emotional, psychological and physical needs. I am satisfied that of the two parents the scale tips in favour of the defendant as a better custodial parent.

Accordingly, it is ordered as follows:

A decree of divorce be and is hereby granted.

Custody of the minor child Tafadzwa Gova (born on 25 October 2007) be and is hereby awarded to the defendant.

The plaintiff is hereby granted reasonable access right to the said minor child which shall be exercised as follows:

He shall have the minor child during the first two weeks of each school holiday;

He shall have the minor child on any other special occasions as the parties may agree from time to time;  and

The access shall be exercised in consultation with the defendant.

The plaintiff be and is hereby ordered to pay US$100-00 per month as maintenance for the minor child with effect from 1 August 2013 which amount should be deposited in the defendant’s bank account at the beginning of each succeeding month until the minor child attains 18 years or becomes self-supporting whichever occurs sooner.

4.1	The defendant shall provide her banking account details to the plaintiff through his legal practitioners within seven (7) days of this order.

Each party be and is hereby awarded the following movable property as his or her sole and exclusive property:

5.1.	For the plaintiff:

Computer and its desk and office swivel chair

Capri Refrigerator (two door)

1 marron carpet

Full tool box

Iron

Half of the total blankets

Ironing board

Half of all kitchen utensils

Half of curtains

Wardrobe

Panasonic 5 CD Changer

5.2.	For the defendant

Executive bedroom suite and wardrobe

Single bed

Four piece lounge suite

Brass Coffee table

Room Divider

JVL 24 Inch television set

Kenwood 3 CD Changer radio

Four plate princess stove

Galanz microwave

Finesse sewing machine

Finese over locking machine

Double bed

Samsung 3 C changer

3 piece metal kitchen unit

Kitchen table and four chairs

Ecco mini kitchen stove

Half of the kitchen utensils

Half of the blankets

Ironing board

Half of Curtains

Iron

1 maroon carpet

Imperial two door refrigerator

Each party be and is hereby ordered to bear its own costs.

Mkuhlani Chiperesa, plaintiff’s legal practitioners

Legal Aid Directorate, defendant’s legal practitioners