Please assign a menu to the primary menu location under menu

Crime & CourtsLove & Scandals

High Court Dismiss Claim For Payment of Outstanding Lobola

High Court of Zim
1.22KViews
lobola

~~~Wife committed adultery with multiple partners ranging from the respondentā€™s brothers, nephews and the herd boy
~~~ if he has paid lobola in full he is entitled to a refund of the lobola from the in laws.

Full Judgement Below

CHIKUDZA FANUEL MANGWENDE versus LIBERTY MACHODO

MWAYERA J: At the conclusion of the trial of this matter, the court a quo dismissed the claim for payment of the outstanding lobola.

The court found that there was material breach of the very tenants of lobola.

The court concluded that the appellant was not entitled to payment of the balance of lobola because his daughter who was married to the respondent committed adultery with multiple partners ranging from the respondentā€™s brothers, nephews and the herd boy.

The court also found that customarily a husband is allowed to divorce an adulterous wife and then if he has paid lobola in full he is entitled to a refund of the lobola from the in laws.

The appellant approached this court seeking to have the dismissal of his claim for payment of lobola set aside.

The grounds of appeal as outlined by the appellant are as follows: 1

(a) That the appellantā€™s daughter was acting on the respondentā€™s, that is her husbandā€™s instructions and was safeguarding her husbandā€™s cultural values.

(b) That it was not the duty of the appellantā€™s daughter to research on the truth of her husbandā€™s cultural values but only to do so as per husbandā€™s instructions and demands as a respectful wife.

(c) That the appellantā€™s daughter was forced to confess under duress from the respondent and his relatives.

(d) That the child of the appellantā€™s daughter did not breast feed after confession but only after they had both visited a prophet. 2 HH 755-15 CIV ā€˜Aā€™ 386/14

(e) That the appellantā€™s daughter was not in wilful wrong doing this is evidenced by her not being in any other affair with outsiders

2. That the learned magistrate erred in dismissing the appellantā€™s claim when it was clear that the parties had engaged into a lobola agreement which was not completely paid off.

3. That the trial court misdirected itself in dismissing this claim when the averments by the appellant that his daughter and respondentā€™s brothers had never been to any court for adultery claims.

The facts of the matter as discerned from the record of proceedings and submissions by the parties can be summarised as follows: The appellantā€™s daughter was customarily married to the respondent.

The respondent and his wife the appellantā€™s daughter had a misunderstanding after the birth of their child. Central to the dispute is the fact that the newly born was not breast feeding.

Evidence adduced from the respondent and respondentā€™s wife is to the effect that the child started to breast feed after a confession by the respondentā€™s wife.

The confession which was uncontroverted evidence in the court a quo was to the effect that the respondentā€™s wife had during the subsistence of the marriage to the respondent been intimate with the respondentā€™s elder, younger brothers, nephew and herd boy.

It was after evidence of intimate relations between the respondentā€™s wife and multiple partners that the respondent took his wife back to her parents.

Irked by this move the appellant then approached the court a quo claiming for the balance of outstanding lobola. The magistrateā€™s court, basing on the evidence before it concluded that the confession by the appellantā€™s daughter was voluntarily given.

Further the appellant and his daughter did not dispute that the daughter had intimate relations with multiple partners.

The appellant sought to argue unsuccessfully that his daughter was wayward in line with respondentā€™s family custom. The herd boy and nephew were not the respondentā€™s brothers.

In any event other than the appellantā€™s mere say so there was no evidence to confirm the promiscuous conduct by the respondent was in accordance with custom. No one else in the respondentā€™s family had been subjected to such custom according to the appellantā€™s daughter.

It was with this background that the trial magistrate concluded that the appellantā€™s daughter engaged in adulterous relationship with multiple partners and that she by so doing breached the marriage relationship.

This conduct was ruled as not entitling the appellant to payment of the outstanding lobola. The court a quo properly spelt out that under customary 3 HH 755-15 CIV ā€˜Aā€™ 386/14 law a man who would have paid lobola is entitled to a refund if the wife engages in adultery.

Further the court a quo stated that parents whose child would have committed adultery are not entitled to payment of the balances of lobola. The very purpose of lobola is what was flouted by the appellantā€™s daughter thereby severing the marriage relationship.

The respondent did not choose to condone the adultery but to divorce his wife for the gross misconduct. In coming up with the disposition of the matter whereby the court a quo dismissed the claim for the balance of lobola the trial magistrate properly exercised his discretion and we find no fault in his findings.

Accordingly the appeal lacks merit and must fail. It is ordered that the appeal be and is hereby dismissed with costs.

Robert Tapfumaneyi