Sukoluhle Thando Dlodlo v Molefe Rufaro Mthulisi Dlodlo

The parties married in terms of the Marriage Act Chapter 5:11 on 23 August 2008 in Harare. They have two minor sons aged 8 and 6 years. The marriage broke down irretrievably due to defendant's extra-marital affair with a former workmate with whom he had a child. Plaintiff filed for divorce seeking custody of the minor children, maintenance, and division of matrimonial property. The matrimonial home is located in Johannesburg, South Africa. Defendant voluntarily left employment in July 2010 when plaintiff was expecting their first son, and plaintiff became the sole breadwinner. The parties are heavily indebted to creditors including Standard Bank (mortgagee), Home Owners Association, City of Johannesburg, and plaintiff's father. Plaintiff moved out of the matrimonial home in May 2017 with the children and has been living with them in South Africa where she is employed and the children attend school. Defendant interfered with plaintiff's work permit renewal and contacted her employer and the children's school alleging she was in South Africa illegally. At the time of trial, plaintiff had regularized her status and the children were attending Heron Bridge College in Johannesburg.

• Who should be awarded custody of the minor children?
• What access rights should be granted to the non-custodian parent?
• What amount should defendant contribute towards maintenance of the children?
• What is the just and equitable manner of dealing with the immovable property of the parties?

1. Divorce decree granted on grounds of irretrievable breakdown. 2. Custody of the two minor children granted to plaintiff (mother). 3. Defendant granted access every alternate weekend and half of school holidays. 4. Defendant ordered to pay maintenance of R7,500 per month per child until they attain 18 years or become self-supporting. 5. Plaintiff awarded the Mazda 3 motor vehicle, spare bedroom suite, stainless steel pots, and photographs of the children; defendant awarded balance of available assets. 6. Immovable property in Johannesburg to be sold to best advantage with proceeds first going to legitimate creditors, balance shared equally between parties, with determination of legitimate creditors and modality to be decided by the South African High Court proceedings under case number 16715/18. 7. Defendant to pay costs of suit.

1. In custody matters, the best interests of the child are paramount and take precedence over parental rights (section 81(2) of Constitution of Zimbabwe). 2. The welfare principle requires courts not to readily deprive a mother of custody without good cause being shown. 3. In determining best interests, courts must consider the McCall factors including: ability to provide creature comforts and economic security; educational well-being; emotional and psychological development; stability of existing environment; and maintenance of status quo. 4. Economic stability, lawful residence status, and continuity of care are material factors in custody determinations, particularly in cross-border family situations. 5. A parent who has been financially dependent and lacks lawful residence in the jurisdiction where children are settled cannot provide the stability required for custody. 6. Access rights should maintain continuity with established arrangements that serve the children's interests. 7. Courts may draw adverse inferences regarding income where a party fails to make full disclosure or provides contradictory evidence. 8. Under section 7 of the Matrimonial Causes Act, courts have wide discretion to make orders regarding matrimonial property that are just and equitable, including deferring to foreign court proceedings for cross-border assets.

TAKUVA J emphasized that custody hearings are "not a contest" between parties' respective rights but must focus on the best interests of minor children, not parents' feelings and protestations. The court observed that defendant's prevarication about his income sources rendered his evidence incredible and unreliable, noting contradictions between portraying himself as a successful businessman with operations in multiple countries when seeking custody, but claiming poverty when maintenance was discussed. The court quoted with approval the dictum from Myers v Leviton: "there is no person who quite takes the place of a child's mother. There is no person whose presence and natural affection can give a child the sense of security and comfort that the child derives from its own mother - an important factor in the normal psychological development of a healthy child." The court noted that defendant's attempted murder charge against plaintiff appeared to be a sensation without substance as there had been no court appearance to his knowledge.

This case affirms the application of the welfare principle in Zimbabwean custody matters, emphasizing that the best interests of the child are paramount as provided in section 81(2) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, and articles 3 and 4 of international conventions (UN Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child). The case demonstrates comprehensive application of the McCall v McCall factors for assessing best interests. It reiterates that courts will not readily deprive a mother of custody without good cause (Moore Richardson, Nugent v Nugent, Demontille v Demontille). The judgment also illustrates the court's broad discretion under section 7 of the Matrimonial Causes Act to make orders that are just and equitable regarding matrimonial property, including deferring to foreign court proceedings where appropriate for cross-border assets and liabilities.