[39] In giving judgement, this Court notes that it is trite law that persons subject to this jurisdiction who are of an African background have the unique privilege of choosing to be married under customary law and/or under civil law. Both these forms of marriage are equally valid legally. The choice of a civil law marriage is, not, however, without legal consequences.
[40] As confirmed most recently in Karimatsenga v Tsvangirai [2012], a customary law union is open to polygamy, but a civil law marriage is not. Once the parties proceed with a marriage under civil law, they are compelled to respect all aspects of civil law marriage, including the fact that it forecloses all polygamous unions. Any further civil law marriages can only be sequential and not contemporaneous. A man who marries under civil law can only marry another woman upon his divorce from the first. To contract a union when one is already married is considered bigamy.
[41] Indeed the Criminal Law (Codification and Reform) Act, in its Section 234, states that bigamy occurs when a man married under civil law to one woman contracts a customary union with another woman, or when a man married under customary law to one woman contracts a civil law union with another woman. The law is thus clear on the effects of a civil law marriage. By electing a civil law marriage, the parties opted to keep their marriage exclusive and monogamous.
[42] The civil law marriage between the parties took place half a year after their customary law marriage. Naboth Goto states that he opted for this marriage under duress. I am not persuaded that is the case.
[43] I, therefore, find that the purported union with Miss Mhlanga has no legal validity, and is a bigamous marriage. It is void at law and leaves Naboth Goto vulnerable to criminal sanctions.
[44] I make no comment on whether his prosecution for bigamy would be in the public interest, and comment only that the Public Prosecutor may well decide to prosecute this matter as such conduct is dismayingly common among men who choose to enter illegally into second marriages even after contracting marriages under the civil law.
[45] With respect to the cross-application made by Immaculate Goto, I conclude that I have no powers to compel Naboth Goto to remain married to Immaculate Goto. As with labour disputes where our courts are reluctant to enforce demands for specific performance, in a marriage where one party alleges a breakdown of a marriage, it is not possible to order such a party to remain married. Marriage is a contract whose full perfomance requires both parties to be willing to remain in it. The bedrock of marriage is consent.
[46] There is no question that, unlike labour and other contracts, marriage is a contract of great peculiarity as it has both a private and public character. In the cases of Wood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others [2000] the Court underpinned the importance of marriage as an institution.
[47] In the words of O’REGAN CJ, ‘Marriage and family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance.’
[48] This decision was cited recently by this court in Njodzi v Matione [2016], where MWAYERA J stated that: ‘Marriage and family remains the basic structure of our society, the preservation of which squarely lies on the couple and the nation as per our Constitution … The importance of the marriage and family social institutions cannot be underplayed, given that the relationship is not only significant to the individuals concerned but also for the public at large.’
[49] While the public significance of marriage is unquestionable, it is at heart a private contract between two individuals. That only one party to that contract is willing to remain in the union is by itself a sign that the marriage has irrevocably broken down to such degree that the only fair option is to sunder all relations. The marriage between the parties is of such a nature.
[50] I, therefore, grant the application for divorce on the grounds that the marriage between the Plaintiff and the Defendant has irretrievably broken down.
[51] As the core principle of our divorce laws is the principle of ‘no fault’, I find it unnecessary to attribute the breakdown of that marriage to either the Plaintiff or the Defendant.
[52] I find it unnecessary to consider the further contentions advanced by Immaculate Goto, namely, that no divorce petition that I grant can dissolve or sunder the marriage ties between her and Naboth Goto. While Immaculate Goto may believe that she and Naboth Goto remain married under the law of God, the law of this country declares their marriage hereby sundered.
[53] I also find it unnecessary to rule on the claim by Immaculate Goto that Miss Mhlanga should pay damages to her in the amount of $50,000 broken down into $30,000 for loss of consortium and $20,000 for contumelia.
[54] It is true that the proper party from which to recover adultery damages is the paramour concerned, and not the cheating spouse of the aggrieved party. This is because the aggrieved party has two remedies with respect to the cheating spouse: either to condone the adultery and continue the marriage or seek to dissolve the marriage through divorce.
[55] The basis for the application for adultery damages from the adultery paramour is the established principle that adultery occasions injury to the aggrieved spouse, who is entitled to recover damages. These damages are commonly understood to be damages for loss of a spouse’s consortium as well as any patrimonial loss suffered, and personal injury or contumelia suffered by the aggrieved spouse, including loss of the adulterous spouse’s comfort, society and services.
[56] Thus, while Immaculate Goto does indeed have a cause of action in law, her claim for damages is not properly before this court. If she wishes to pursue her claim for damages, she is best advised to bring separate legal proceedings against Miss Mhlanga.
[57] With respect to the distribution of the matrimonial assets, I order that the parties enter mediation to discuss an equitable share of the property, taking into account that they were married in community, and not out of community of property.
[58] I would also caution Naboth Goto that should Immaculate Goto seek to press charges against him, he is extremely vulnerable to a prosecution for rape. While he believes that the act of forcing himself on his wife was nothing more than taking what was his by conjugal right, the law of this land sees the matter entirely differently.
[59] The presumption that a man cannot rape his wife, which was a part of Roman-Dutch common law for far too long in this jurisdiction, was overturned by Parliament in the Criminal Law (Codification and Reform) Act of 2004.
[60] Section 68 of that Act removes from our law the presumption that a man cannot rape his wife. Section 68(a) makes it very clear that ‘it shall not be a defence to a charge of rape, aggravated indecent assault or indecent assault … that the female person was the spouse of the accused person at the time of any sexual intercourse or other act that forms the subject of the charge.’
[61] This court is not a criminal court however, and I will comment no further on this aspect of the case.
[62] I also find it unnecessary to enter into the findings of a detective hired by Immaculate Goto who has concluded that Miss Mhlanga, the woman who claims to be the mother of Naboth Goto’s child and pregnant with a second, is in receipt of maintenance from two different men in respect of the child that Mr Goto claims is his.
[63] I have, however, conferred with the Registrar of the High Court and can confirm that this court made an order of maintenance in respect of a Mr Fortune Mpande, formerly an employee of the Zimbabwe Broadcasting Corporation, who has also been claimed as the father of Miss Mhlanga’s first child, supported by proof of a paternity test. The or
der has not been served. Mr Mpande fled this court’s jurisdiction and is reported to have sought political asylum in the United Kingdom.
[64] While I can make no further comment on this matter, I would caution Mr Goto not to disturb his life unduly without absolute certainty that he is indeed, the father of the first child and the author of Miss Mhlanga’s second pregnancy.
[65] I appreciate that this information may come as a considerable shock to Mr Goto who appears to have been unaware of this state of affairs.
[66] As to the legal costs of this matter, I order each party to pay their own costs. This may be somewhat new territory for Naboth Goto, who has never had to pay his own way, but when it comes to learning new skills, there is never a time like the present.
____________
ANTONIA D. DENDERE
JUDGE
The Lament of Hester Muponda
Doth God pervert judgement? Or doth the Almighty pervert justice?
– The Book of Job –
Ko Mnari ungakanganisa pakutonga here? Wamasimba ose ungakanganisa zakarurama here?
– Buku yaJobo –
After Hester Muponda’s first child died in a national bus disaster that made the front page of all four daily newspapers and the regional versions of the main Sunday paper, she turned her face to the heavens to pour out her grief, but her church people said to her, find your strength in God, they said. After the second child died with fifteen others on an overcrowded boat on a school trip to Darwendale Dam and the men responsible paid a three-hundred-dollar bribe to a prosecutor and another three to a magistrate, and thus escaped conviction and imprisonment, she wept deep sobs into the folds of her zambiya wrapping cloth. The Lord gives and He takes away, blessed be His name today, Hester Muponda’s church women said.
Then her third child, her last child, was killed by the car of a man who had been drinking to celebrate the financial success of his public-listed company. On the night of that last child’s wake, she lifted him from his coffin and laid him in the second bedroom, and would not let anyone in until they forced the door open. It took five men to prise her off him.
‘He does not give us more than we can bear,’ Hester Muponda’s church people said to her. And her church woman MaiNgwerume whispered to her friend MaiMutero something about Hester Muponda’s midnight ways and MaiMutero said to MaiNgwerume, ‘A mad chicken eats its own eggs, but shush now, she might hear,’ and MaiNgwerume said something about a payment in blood.
Hester Muponda stayed in her room for six nights and five days and when she opened the door again, she had the beginning of a beard on the chin of her disappearing face. Only women with evil tempers grow beards, her husband’s paternal aunts said.
Her husband Peter Muponda woke up in the night and, reaching across the pillows, brushed his hand across her chin. He moved to the spare bedroom, and the day after the memorial service of their last child, he moved out of the house and Haig Park altogether and moved in with Gertrude Chinakira, his small house in Sunridge who had no beard or grief stench but smelt of Angel perfume and the Takatala sauce in which she marinated all their food.
Hester Muponda took up her large pots, her black pots she took up, the funeral pots in which had been cooked the meals that fed the mourners that cried her children away. She took up her pots and lit three three-stone fires, a fire for sadza, one for chicken and a third for vegetables, three fires she lit at the corner of Clavering and Cotswold Way next to Gift Chauke who sold individual cigarettes and Buddie airtime cards and the Financial Gazette on Thursdays, the Independent on Fridays, and the Daily News, Newsday and the Herald on every day but Sunday when he sold the Standard and the Sunday Mail.
In her pots she made sadza, thick and white, and chicken stew and vegetables that she sold to Gift Chauke and to the drivers and to the hwindis in the kombis that passed her every day. And even though her cooking smells reached into the neighbouring houses along with her pain, Edgar Jones, the only white person left in Haig Park, did not complain about property values as he had when his neighbours first started to grow maize in gardens meant for flowers and to park the heads of long-distance haulage trucks on the narrow strips of lawn outside their houses.
She is mad, Hester Muponda’s church women and neighbours said. They crossed the street when they saw her coming. Mad, mad, echoed the kombi drivers and the hwindi and Gift Chauke as their teeth tore into the chicken that she cooked in just a little oil, along with onions and tomatoes, and seasoned with just the right amount of salt. And when Hester Muponda was hit by a speeding kombi and she took up the blanket that covered her in the darkness that her children had found before her, the only people who felt her loss were those drivers and hwindis who missed the firm but soft sadza and the chicken and vegetables that she cooked at the corner of Clavering and Cotswold Way.
A Small House in Borrowdale Brooke
Now faith is the substance of things hoped for, the evidence of things not seen.
– The Epistle to the Hebrews –
Zino kutenda ndirwo rusimbiso rwezinhu zatinotarira, neciratidzo cezinhu zatisingavoni.
– Nwadi kuvaHeberu –.
Everything that happened to her, her trial and imprisonment, losing her man, her job and the sight in one eye, arose from her lack of curiosity about the nature of his psychosis. That term and all that was behind it did not come within her knowledge. This is not to say that she was a stupid woman. If anything, her tragedy was that she was both educated and ignorant.
Like many others before and after her, she had imbibed and absorbed into her core the simple message that the purpose of learning was to get to the next school grade or form terminating in passing exams. The point of passing exams was to get a good job, a good job was essential to getting a promotion, getting a promotion was necessary to getting an even better job. Education was not about knowledge or enhancing her understanding of the world and her place in it, or expanding the mind. It was primarily to enable the accumulation of material things.
Reading was what she did to pass the exams, it was what she did in her job, it was what she did to her beloved True Love and Destiny magazines, to Home and Garden and African Interiors. It was what she did to Dish, the magazine that came with her DStv subscription. It was what she did to the Bible, to the messages on her phone and occasionally, to the lifestyle sections of newspapers.
She believed in sorcery. She believed that herbs and animals had magical properties, and that these were not just psychedelic effects, but heart- and mind-altering properties. There were roots that made you fall in love, and out again. There were incantations that made you lucky, and unlucky again. Evil was all around: it lived in snakes, and in dark things. It lived in chameleons and bushbabies and owls.
The opening up of horizons offered by television, by films and other books beyond that one Book, all this was closed to her. Her favourite films were from Nigeria’s Nollywood, two- or three-part films with linear stories and gratifying outcomes. Women with impossible hairstyles and facial skin lighter than the rest of their bodies battled evil and overcame it, men of poverty and ambition battled fate and conquered it. Any psychosis there was simply called madness. She watched pastors on television cast out, with spittle and verve, the demons of poverty and illness and want.
So there was nothing in her life, no foreknowledge that could have equipped her to appreciate that the damaged mind can be dangerous. The only thing she knew was that she needed a mad man, and when she found the right one, she saw only a man who was mad in circumstances where a mad man was what she needed.
She had watched to see which of them would do. For two weeks she had watched the homeless until she knew them well, the street children aged between four and seventeen, the blind women led by their children, the blind old man who was always led by a young boy who wore shirts and shorts belonging to two different school uniforms. The street kids, reed-thin saplings just sprouting into manhood, she dismissed almost at once. They looked after cars and begged for money. They
drank broncho strong cough mixtures to get high and caused fights, all activities that required a degree of sentience, of awareness.
The prescription was clear: she needed the essence of someone who was out of his senses. In the semi-darkness of the half-lit room in Seke, children’s laughing voices reaching in from outside, she had not questioned why it was necessary that it be such a person, what it was about the alchemy of this person’s essence that made it a powerful restorative of the affections of her man. She knew only that it was vital. It was necessary. Without it, her man would cease to be her man.
She called him her husband but he was not that at all, he was not even fully hers. She might have been exclusively his, but he was not exclusively hers. She was a small house, meaning she was not a proper wife but an official mistress and more elevated than a girlfriend.
She was by nature an exhibitionist. She liked things, and she wanted to shout out her love, but the constrictions imposed by her secret life meant that she was reduced to writing cryptic posts on Facebook referring to first, second, third anniversaries without ever declaring who her man was. He had given her this house in Borrowdale Brooke, she could post about the house, but not how she got it. He had paid for their holidays to Mauritius and Dubai; she could post picture after picture as long as his face did not appear in them.
The most she could do was to post pictures of their feet next to each other on a beach in Mauritius, or black-and-white and sepia-toned photos of their intertwined hands. Luckily, her married man has no burns, scars or other distinguishing features on his hands and feet, he had nothing that marked him out; his were just the ordinary hands and feet of a common-or-garden variety cheating married man.
In contrast, deep in the heart of the golden triangle, his real wife posted picture after picture of her handsome and amazing husband, the award-winning human rights activist, declaring in each one what a gift God had given her, and the country, in him. His wife’s claim on him and his position in society meant that theirs was a love that dared not speak its name.
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