Moreblessings Makosa v Patrick Makosa

The plaintiff and defendant were married on 23 April 1994 in terms of the Marriages Act [Cap 5:11]. The marriage produced three children, two of whom were born before the marriage and had reached majority by the time of trial; the third child, Tinotenda Patrick Makosa, was born on 29 June 1994 and was a minor. On 19 December 2008, the plaintiff sued for divorce, division of matrimonial property, and custody of the minor child, alleging the marriage had irretrievably broken down because the parties had not lived together since April 2001, had lost love and affection for each other, the defendant had formed improper relationships with other women, and had married another woman who was residing at the matrimonial home. The defendant admitted the marriage had irretrievably broken down and filed a counter-claim, alleging the plaintiff had deserted the matrimonial home in 2001 and left Zimbabwe for the diaspora (initially the United States, later Canada), and the parties had not lived together since. The plaintiff failed to attend the pre-trial conference despite multiple postponements and failed to attend trial on 15 March 2010 and 22 March 2010, claiming she lacked valid travel documents from Canada. Her legal practitioner renounced agency after the plaintiff insisted on a postponement sine die.

• Whether the marriage had irretrievably broken down with no reasonable prospect of restoration
• Whether a default judgment should be granted against the plaintiff for failure to attend trial
• How custody of the minor child should be determined in the plaintiff's absence
• How the matrimonial property, both movable and immovable, should be divided between the parties

1. A decree of divorce was granted. 2. Custody of the minor child Tinotenda Patrick Makosa was awarded to the defendant. 3. The plaintiff was ordered to pay all school fees and expenses for the child's schooling, while the defendant would take care of daily needs. 4. The plaintiff was granted reasonable rights of access over weekends and holidays when in Zimbabwe. 5. The defendant was awarded the Ford Telstar motor vehicle (registration 523-510G) and household goods in the matrimonial house as his sole and exclusive property. 6. The immovable property (Stand 506 Hatfield Township, number 3 Cawood Close, Hatfield, Harare) was to be valued by an estate agent appointed by the registrar, after which the defendant was to pay the plaintiff 20% of the net value within six months, retaining 80% for himself.

Where a plaintiff in matrimonial proceedings fails to attend trial despite adequate notice and opportunity, having instituted the action themselves, the court may dismiss the plaintiff's claim and strike out their defence to a counter-claim, granting default judgment to the defendant. In determining custody of minor children, the court will consider the de facto custodian arrangements and the best interests of the child, including stability and continuity of care. Both parents have a duty to contribute to the upbringing of their children, which may be apportioned according to their respective means and the child's needs. In dividing matrimonial property, even where property is registered in joint names, the court may order unequal division based on the actual contributions of the parties and principles of equity, rather than applying an automatic 50/50 division.

The court noted that the plaintiff had instituted the action in 2008 but failed to obtain valid travel documents to return to Zimbabwe for trial, despite knowing she would be required. The court observed that repeated postponements at the plaintiff's request while she claimed to be arranging travel documents, without any concrete progress, served no useful purpose and prejudiced the defendant. The judgment reflects the court's view that a party who institutes proceedings has a responsibility to prosecute their claim diligently and cannot indefinitely delay proceedings by seeking postponements sine die without demonstrating genuine efforts to attend.

This case illustrates the consequences of a plaintiff's failure to prosecute their own claim in matrimonial proceedings in Zimbabwe. It demonstrates the court's approach to default judgments in divorce matters where one party repeatedly fails to attend proceedings despite adequate notice. The case also shows the court's discretion in determining custody and property division based on uncontested evidence, including consideration of the de facto custodian parent and equitable (though not necessarily equal) division of matrimonial property acquired during marriage but registered in joint names. The case reinforces that property registered in joint names during marriage may still be divided unequally based on actual contributions and equity.