Sukoluhle Thando Dlodlo v Molefe Rufaro Mthulisi Dlodlo

The parties married on 23 August 2008 under the Marriage Act Chapter 5:11 in Harare and had two minor sons aged 8 and 6 years. The marriage irretrievably broke down after the defendant engaged in an extra-marital affair with a former workmate with whom he had a child and proposed marriage. The defendant voluntarily left employment in July 2010 when plaintiff was expecting their first child, rendering plaintiff the sole breadwinner. Both parties resided and worked in South Africa. The plaintiff moved out of the matrimonial home in May 2017 with the children. The defendant had attempted to prevent the children's return to South Africa by withholding their passports and reporting the plaintiff to immigration authorities and her employer, causing disruption to the children's schooling. The parties owned immovable property in Johannesburg heavily encumbered with debt to Standard Bank, the City of Johannesburg, Home Owners Association, and allegedly to plaintiff's father. Most movable property had been sold in execution to settle debts. The plaintiff sought divorce, custody, maintenance, and orders regarding property division.

• Whether custody of the minor children should be awarded to the plaintiff mother or defendant father based on the best interests of the child principle
• What access rights should be granted to the non-custodian parent
• What amount of maintenance should the defendant contribute toward the minor children's upkeep
• How the immovable property and debts of the parties should be divided in a just and equitable manner

1. Decree of divorce granted on grounds of irretrievable breakdown; 2. Custody of both minor children granted to plaintiff with defendant to have access every alternate weekend and half of school holidays; 3. Defendant ordered to pay R7,500 per month per child as maintenance until age 18 or self-supporting; 4. Plaintiff awarded the Mazda 3 motor vehicle (registration BX 81 TV GP), suite in spare bedroom, stainless steel pots, and children's photographs; defendant awarded balance of available assets; 5. Immovable property at 26 Cedar Hills Estate, Johannesburg to be sold to best advantage with proceeds first applied to legitimate creditors, balance shared equally, with determination of legitimate creditors and sale modality deferred to South African High Court proceedings (case number 16715/18); 6. Defendant ordered to pay costs of suit.

In custody disputes, the best interests of the child as required by section 81(2) of the Constitution are paramount and override parental preferences. Courts must apply the comprehensive factors in McCall v McCall including the parent's ability to provide economic security, educational wellbeing, emotional and psychological development, and environmental stability. A mother will not be deprived of custody without good cause, particularly where she has consistently provided care, stability, and all material needs. Access arrangements should facilitate the child's adjustment to the new reality of divorced parents and not create confusion. In determining maintenance, courts may draw adverse inferences from a parent's failure to fully disclose income and contradictory evidence regarding financial capacity. Under section 7 of the Matrimonial Causes Act, courts have broad discretion to make just and equitable orders regarding matrimonial property, including deferring complex matters involving foreign property and multiple creditors to competent foreign courts where parties are already before such courts.

The court observed that custody hearings are not contests between parents' respective rights but focus on children's best interests, not the parties' feelings and protestations. The court noted that no person quite takes the place of a child's mother in providing security and comfort essential for normal psychological development, citing Myers v Leviton 1949 (1) SA 203. The court commented that defendant's plan to introduce young children (aged 6 and 7) to live with the woman who caused their parents' marriage breakdown would result in emotional and psychological conflicts detrimental to their wellbeing. The court noted that property sold in execution generally does not realize full market value, supporting the rationale for seeking court-supervised sale to best advantage. The court observed that the defendant's changing positions on whether plaintiff's father was a creditor (from admission in the plea, to claims of a gift, to claims of acknowledging debt due to societal norms, to claims of doing so to save the marriage) demonstrated unreliability and contradiction warranting rejection of his contentions.

This judgment reinforces the paramount importance of the best interests of the child principle in custody determinations under section 81(2) of the Zimbabwe Constitution (Amendment No. 20) Act 2013 and demonstrates the comprehensive application of the McCall v McCall factors in assessing parental suitability. The case illustrates that while courts recognize no rigid presumption favoring mothers, the practical provision of stability, economic security, legal residence status, and continuity of care are critical factors. It also demonstrates that courts will scrutinize income disclosure in maintenance cases and draw adverse inferences from contradictory evidence. The judgment shows the court's willingness to defer complex property and creditor issues to foreign competent courts where appropriate while maintaining supervisory jurisdiction, and confirms the broad discretion under section 7 of the Matrimonial Causes Act to make orders that are just and equitable in property division upon divorce.