MATONGA v MATONGA (NEE DUBE) (32 of 2026) [2026] ZWHHC 21 (13 January 2026)

3 HH 32-26 HCH 228/24 MARSHALL ZVIRONZO MATONGA versus CHENGETAI MATONGA (NEE DUBE) HIGH COURT OF ZIMBABWE TSANGA J HARARE;29 October & 5 November 2025 & 13 January 2026 Matrimonial Action T Musvari, for Plaintiff VC Maramba, for Defendant TSANGA J: The parties married on 27 April 2017. They have been living apart from 2023 when the defendant moved out of the matrimonial home. They are agreed that their marriage has irretrievably broken down with no prospects of success. They are equally on the same page on the proprietary consequences arising from their marriage and pending divorce in that the immovable property acquired during their marriage, being stand No 20709 Muzambiringa Street , Zengeza 5 Chitungwiza, Harare, be sold and the proceeds shared equally between them. Whilst the defendant in her pleadings initially raised the issue of whether the plaintiff should pay her three months rental after the disposal of the said property over and above her 50% share that she is entitled to, this was not pursued at the hearing and neither was the issue of her own maintenance. What they still diverge on is the issue of custody. They have two children, boys aged 8 and 6 years old. Since the parties’ separation, the children’s custody has been with their mother, the defendant, from the time that the plaintiff moved out of the matrimonial home. When the plaintiff issued summons, he was initially content to have them remain with the mother, with him exercising access rights during three weeks of the holiday. He had also offered to pay maintenance at US$60.00 per child whilst the defendant wanted US$100.00 per child in her plea. When they could not agree on the access period, the plaintiff turned coat and amended his summons by seeking that he instead should have custody. At the time of the trial the defendant had obtained a very recent maintenance order from the children’s court for the sum of US$150.00. On why he should have custody of the children, the plaintiff’s evidence was as follows: The defendant, in discussions with their lawyers had mentioned that she was not in good health. Furthermore, he wanted to put the boys at a school near him where he could easily drop them and pick them up from school. In addition, the two of them were not in agreement as to the length of time he could have them during the holiday. His view was that since they were to stay with her she would have sufficient time to see them during term time. He also highlighted the fact that she had been asking for more maintenance than he could afford before they went to court. Also, at one time when he had visited the children he had observed that their nails were long and dirty. He had bought a nail cutter and trimmed them but was left with grave concerns for their health and proper care if the defendant could allow them to keep such long nails with the attendant hazards from such nails for trapping germs. He also spoke of his concerns that the defendant is more interested in money given that the problems they had together were financial. Even though he was the one who issued summons and proposed that their matrimonial home be sold, he told the court that he had expected her to insist on the property being put in a trust for the children. As for looking after the children, he told the court that his sister would help him take care of the children since he also looks after her children. Should help be needed he would also get her help. In cross examination, it was put to him that he had in fact seen the children sometime in October 2025 having last seen them in October 2024. His explanation was that he had attempted to see them in December 2024 but had been advised that they were with their maternal grandmother. He was further cross examined on his availability since his work would often take him away for two to four weeks at a stretch. His response was that his work was now fully restricted to the office as he had been moved to the help desk. On it being pointed out that he was in fact recently in arrears over school fees and had not been paying maintenance, his explanation was that he had met with hardship over a course of two or three months resulting in the lapses. On proof that his wife has health problems, his response was that she suffers from high blood pressure. He denied that he wanted custody to divest himself from financial responsibilities. The defendant’s evidence was as follows: She is a high school teacher who earns US$275.00 a month and ZIG 4000.00. Her payslip was admitted as exhibit 1. On why she should retain custody one of her reasons was that the defendant often comes home late due to the nature of his work and he would therefore not be able to assist with critical elements of custody in terms of ensuring that their needs are taken care of. He had also last come to see the children in October 2024 before resurfacing in October 2025. She explained that he could not access the children in December 2024 because she had already gone away on duty as an exams marker and had to make arrangements for the children. He had blocked her on his phone and she could therefore not communicate with him about these arrangements. He had then promised to take them over the April vacation in 2025 which he never did on account that he did not have money. Furthermore, although he had been supporting the children when they separated, he had stopped doing so. The parties had been agreed at their round table conference that he could bring groceries through his lawyer but he never did. During the course of this year, he had only paid US$100.00 in February leading her to approach the maintenance court at the end of June 2025. She was also concerned that when the children visited him in August 2024, they had come back with snuff in their pockets leading to grave concerns as to what he could make them smoke. She also emphasised that the children are still young and need loving care and that she has been the one providing them with this. She disputes that she is of ill health or that she has inadequate time for the children, pointing out that her high blood pressure is under control. As to why she proposes two weeks for each parent over the vacation her explanation was that it would also allow her time to do activities that she would not normally do with them during school terms. She also highlighted that the plaintiff has been very erratic with paying the children’s school fees as evidenced by a letter from their school indicating fees owing. It was admitted as exhibit 2. At one time the children were not able to go to school because their fees had not been paid. He has never paid fees on time. Issues for Determination There are two issues for determination. Whether a change in primary physical custody is in the best interests of the children; andIf custody remains with the mother, what access and holiday arrangements best serve the children’s welfare and stability. Applicable Legal Principles and Factual Analysis Custody In Hackim v Hackim 1988 (2) ZLR 61 SC for example it was stated with respect to varying an existing order that all that a parent seeking to divest custody from another must do is to satisfy the court on a balance of probabilities that it is in the best interests of the child to make the variation rather than maintain the status quo. In other words, what outcome would benefit them most. The paramount consideration in all custody matters is in essence the best interests of the child, including: Stability and continuity of careEmotional and developmental needsExisting caregiving arrangementsEach parent’s demonstrated ability to meet the children’s needsThe importance of maintaining meaningful relationships with both parents In this instance, the mother assumed custodial rights upon separation. Section 10(2) of the Matrimonial Causes Act allows the court to commit the children into the custody of the parties as the court may deem best to have such custody. The principle is applicable here that a party seeking a change in primary custody bears the burden of demonstrating that such a change would materially improve the children’s welfare and outweigh the disruption caused by altering established living arrangements. The two boys have been living with their mother as the primary care taker. Whilst the plaintiff has pointed to the fact that the defendant suffers from high blood pressure there was no evidence placed before the court that this in any way prevents her from carrying out her child caring duties. In fact, from the evidence given it was manifest that she has had to bear the greater responsibility of looking after them both in terms of their day to day needs and financially as well. The close and beneficial relationship with a parent at this point has certainly been with the mother and not the father. It makes no sense to divest her of custody given the absence of any wrong doing and when there have been gaps in the plaintiff’s relationship with the children as the non-custodial parent. The evidence shows that the children have resided primarily with the mother and that this arrangement has provided them with continuity, routine, and stability. While the father expresses a desire to assume full custody, there is insufficient evidence that transferring primary physical custody would better serve the children’s interests at this time. Furthermore, the father’s past inconsistent involvement and irregular child support payments, though now subject to a court order, raise concerns regarding reliability and consistency of care. The Court finds no compelling basis to disturb the current custodial arrangement, which appears to be functioning adequately and in the children’s best interests. Accordingly, primary physical custody shall remain with the mother. Access and School Holidays In Kumirai v Kumirai 2006(1) ZLR 134 it was stated that where a non custodian parent is granted right of access to a minor child following divorce, access, should not, in the absence of good reason be confined to such an extent that it stultifies the nurturing of a meaningful relationship between the child and the non-custodian parent. Their difference is on the access period. The children need to have both parents play a role in their lives. Just as a child’s best interests determines custodial rights, a child’s best interests also determine access rights. Section 81 (d) of our Constitution lays out the principle that a child has a right to family and parental care. It is necessary to allow a non-custodial parent that parenting time which they do not adequately get as a non-custodial parent. The children would not just be visiting over the holiday but essentially he would also get to be a parent. In his summons the plaintiff asked for access every alternate weekend and half of the school holiday before he amended his pleadings to seek full custody. In the event of not getting the custody he seeks he would like to access them three weeks of the holiday whilst she offers him two weeks. The Court recognizes the importance of the children maintaining a meaningful and substantial relationship with the father. The mother’s position that school holidays represent critical bonding time is equally applicable to the father. The Court finds that maintaining the current custodial arrangement while expanding and regularizing the father’s access particularly during alternate weekends and a defined period over school holidays would best balance stability, fairness, and the children’s long-term welfare. Awarding each parent half of the school holidays, is reasonable and consistent with shared parental involvement. A graduated approach at two weeks during the school holiday would give him an opportunity to get accustomed to being a hands-on parent himself instead of lumping responsibility on his sister as he seemed to suggest. Also, a structured and predictable holiday schedule is in the children’s best interests and minimizes conflict. For completion, the order will also incorporate the proprietary consequences the parties are agreed to and ancillary issues as captured in the plaintiff’s summons. Accordingly, it is ordered as follows: A decree of divorce be and is hereby granted. Custody of two minor children namely EAM (born 18 February 2017) and EAM, (born 8 January 2019), is granted to the defendant.The plaintiff shall have reasonable and regular access to the children, which shall include: every alternate weekend and on special family gatherings.;Half of all school holidays, to be divided equally between the parties on an alternating or agreed schedule.Both parents are directed to act in good faith, to encourage the children’s relationship with the other parent, and to prioritize the children’s emotional well-being over personal disputes.The plaintiff shall continue to comply strictly with the existing child support court order under M1605/2025.In addition, the plaintiff shall meet all of the minor children’s academic needs and pay school fees up until they attain their tertiary qualifications, or become self-sufficient whichever comes first.The plaintiff shall also place the minor children on medical aid until they turn eighteen (18) or become self-sufficient, whichever occurs last.Stand number 20709 Muzambiringa Street, Zengeza 5, which is a property acquired during the subsistence of the parties’ marriage, shall be sold and both plaintiff and defendant shall get 50% share of the proceeds of the sale as per parties’ own agreement on property sharing. The parties shall agree on the value of Stand Number 20709 Muzambiringa Street, Zengeza 5 within 30 days of the date of this order failure of which they shall appoint a mutually agreed evaluator to do the evaluation of the property within 60 days of the date of this order. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his list of evaluators to evaluate the property. The parties shall share the costs of such evaluation in equal proportions. The plaintiff shall pay off defendant her share of the value within six (6) months of the date of receipt of the evaluation report unless the parties agree otherwise. Should the plaintiff fail to pay defendant’s share in full within the stipulated period the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds thereof shall be shared in the ratio 50:50. The defendant shall retain all the household movable property in her possession at the time of the divorce proceedings, with the plaintiff retaining a motor vehicle namely a Nissan Sunny Ex Saloon, registration number ACI 6242.There shall be no order as to costs. Tsanga J:………………………………………………………… Sithole James Legal Counsel: Defendant’s Legal Practitioners Maseko Law Chambers: Defendant’s Legal Practitioners 3 HH 32-26 HCH 228/24 3 HH 32-26 HCH 228/24 MARSHALL ZVIRONZO MATONGA versus CHENGETAI MATONGA (NEE DUBE) HIGH COURT OF ZIMBABWE TSANGA J HARARE;29 October & 5 November 2025 & 13 January 2026 Matrimonial Action T Musvari, for Plaintiff VC Maramba, for Defendant TSANGA J: The parties married on 27 April 2017. They have been living apart from 2023 when the defendant moved out of the matrimonial home. They are agreed that their marriage has irretrievably broken down with no prospects of success. They are equally on the same page on the proprietary consequences arising from their marriage and pending divorce in that the immovable property acquired during their marriage, being stand No 20709 Muzambiringa Street , Zengeza 5 Chitungwiza, Harare, be sold and the proceeds shared equally between them. Whilst the defendant in her pleadings initially raised the issue of whether the plaintiff should pay her three months rental after the disposal of the said property over and above her 50% share that she is entitled to, this was not pursued at the hearing and neither was the issue of her own maintenance. What they still diverge on is the issue of custody. They have two children, boys aged 8 and 6 years old. Since the parties’ separation, the children’s custody has been with their mother, the defendant, from the time that the plaintiff moved out of the matrimonial home. When the plaintiff issued summons, he was initially content to have them remain with the mother, with him exercising access rights during three weeks of the holiday. He had also offered to pay maintenance at US$60.00 per child whilst the defendant wanted US$100.00 per child in her plea. When they could not agree on the access period, the plaintiff turned coat and amended his summons by seeking that he instead should have custody. At the time of the trial the defendant had obtained a very recent maintenance order from the children’s court for the sum of US$150.00. On why he should have custody of the children, the plaintiff’s evidence was as follows: The defendant, in discussions with their lawyers had mentioned that she was not in good health. Furthermore, he wanted to put the boys at a school near him where he could easily drop them and pick them up from school. In addition, the two of them were not in agreement as to the length of time he could have them during the holiday. His view was that since they were to stay with her she would have sufficient time to see them during term time. He also highlighted the fact that she had been asking for more maintenance than he could afford before they went to court. Also, at one time when he had visited the children he had observed that their nails were long and dirty. He had bought a nail cutter and trimmed them but was left with grave concerns for their health and proper care if the defendant could allow them to keep such long nails with the attendant hazards from such nails for trapping germs. He also spoke of his concerns that the defendant is more interested in money given that the problems they had together were financial. Even though he was the one who issued summons and proposed that their matrimonial home be sold, he told the court that he had expected her to insist on the property being put in a trust for the children. As for looking after the children, he told the court that his sister would help him take care of the children since he also looks after her children. Should help be needed he would also get her help. In cross examination, it was put to him that he had in fact seen the children sometime in October 2025 having last seen them in October 2024. His explanation was that he had attempted to see them in December 2024 but had been advised that they were with their maternal grandmother. He was further cross examined on his availability since his work would often take him away for two to four weeks at a stretch. His response was that his work was now fully restricted to the office as he had been moved to the help desk. On it being pointed out that he was in fact recently in arrears over school fees and had not been paying maintenance, his explanation was that he had met with hardship over a course of two or three months resulting in the lapses. On proof that his wife has health problems, his response was that she suffers from high blood pressure. He denied that he wanted custody to divest himself from financial responsibilities. The defendant’s evidence was as follows: She is a high school teacher who earns US$275.00 a month and ZIG 4000.00. Her payslip was admitted as exhibit 1. On why she should retain custody one of her reasons was that the defendant often comes home late due to the nature of his work and he would therefore not be able to assist with critical elements of custody in terms of ensuring that their needs are taken care of. He had also last come to see the children in October 2024 before resurfacing in October 2025. She explained that he could not access the children in December 2024 because she had already gone away on duty as an exams marker and had to make arrangements for the children. He had blocked her on his phone and she could therefore not communicate with him about these arrangements. He had then promised to take them over the April vacation in 2025 which he never did on account that he did not have money. Furthermore, although he had been supporting the children when they separated, he had stopped doing so. The parties had been agreed at their round table conference that he could bring groceries through his lawyer but he never did. During the course of this year, he had only paid US$100.00 in February leading her to approach the maintenance court at the end of June 2025. She was also concerned that when the children visited him in August 2024, they had come back with snuff in their pockets leading to grave concerns as to what he could make them smoke. She also emphasised that the children are still young and need loving care and that she has been the one providing them with this. She disputes that she is of ill health or that she has inadequate time for the children, pointing out that her high blood pressure is under control. As to why she proposes two weeks for each parent over the vacation her explanation was that it would also allow her time to do activities that she would not normally do with them during school terms. She also highlighted that the plaintiff has been very erratic with paying the children’s school fees as evidenced by a letter from their school indicating fees owing. It was admitted as exhibit 2. At one time the children were not able to go to school because their fees had not been paid. He has never paid fees on time. Issues for Determination There are two issues for determination. Whether a change in primary physical custody is in the best interests of the children; and If custody remains with the mother, what access and holiday arrangements best serve the children’s welfare and stability. Applicable Legal Principles and Factual Analysis Custody In Hackim v Hackim 1988 (2) ZLR 61 SC for example it was stated with respect to varying an existing order that all that a parent seeking to divest custody from another must do is to satisfy the court on a balance of probabilities that it is in the best interests of the child to make the variation rather than maintain the status quo. In other words, what outcome would benefit them most. The paramount consideration in all custody matters is in essence the best interests of the child, including: Stability and continuity of care Emotional and developmental needs Existing caregiving arrangements Each parent’s demonstrated ability to meet the children’s needs The importance of maintaining meaningful relationships with both parents In this instance, the mother assumed custodial rights upon separation. Section 10(2) of the Matrimonial Causes Act allows the court to commit the children into the custody of the parties as the court may deem best to have such custody. The principle is applicable here that a party seeking a change in primary custody bears the burden of demonstrating that such a change would materially improve the children’s welfare and outweigh the disruption caused by altering established living arrangements. The two boys have been living with their mother as the primary care taker. Whilst the plaintiff has pointed to the fact that the defendant suffers from high blood pressure there was no evidence placed before the court that this in any way prevents her from carrying out her child caring duties. In fact, from the evidence given it was manifest that she has had to bear the greater responsibility of looking after them both in terms of their day to day needs and financially as well. The close and beneficial relationship with a parent at this point has certainly been with the mother and not the father. It makes no sense to divest her of custody given the absence of any wrong doing and when there have been gaps in the plaintiff’s relationship with the children as the non-custodial parent. The evidence shows that the children have resided primarily with the mother and that this arrangement has provided them with continuity, routine, and stability. While the father expresses a desire to assume full custody, there is insufficient evidence that transferring primary physical custody would better serve the children’s interests at this time. Furthermore, the father’s past inconsistent involvement and irregular child support payments, though now subject to a court order, raise concerns regarding reliability and consistency of care. The Court finds no compelling basis to disturb the current custodial arrangement, which appears to be functioning adequately and in the children’s best interests. Accordingly, primary physical custody shall remain with the mother. Access and School Holidays In Kumirai v Kumirai 2006(1) ZLR 134 it was stated that where a non custodian parent is granted right of access to a minor child following divorce, access, should not, in the absence of good reason be confined to such an extent that it stultifies the nurturing of a meaningful relationship between the child and the non-custodian parent. Their difference is on the access period. The children need to have both parents play a role in their lives. Just as a child’s best interests determines custodial rights, a child’s best interests also determine access rights. Section 81 (d) of our Constitution lays out the principle that a child has a right to family and parental care. It is necessary to allow a non-custodial parent that parenting time which they do not adequately get as a non-custodial parent. The children would not just be visiting over the holiday but essentially he would also get to be a parent. In his summons the plaintiff asked for access every alternate weekend and half of the school holiday before he amended his pleadings to seek full custody. In the event of not getting the custody he seeks he would like to access them three weeks of the holiday whilst she offers him two weeks. The Court recognizes the importance of the children maintaining a meaningful and substantial relationship with the father. The mother’s position that school holidays represent critical bonding time is equally applicable to the father. The Court finds that maintaining the current custodial arrangement while expanding and regularizing the father’s access particularly during alternate weekends and a defined period over school holidays would best balance stability, fairness, and the children’s long-term welfare. Awarding each parent half of the school holidays, is reasonable and consistent with shared parental involvement. A graduated approach at two weeks during the school holiday would give him an opportunity to get accustomed to being a hands-on parent himself instead of lumping responsibility on his sister as he seemed to suggest. Also, a structured and predictable holiday schedule is in the children’s best interests and minimizes conflict. For completion, the order will also incorporate the proprietary consequences the parties are agreed to and ancillary issues as captured in the plaintiff’s summons. Accordingly, it is ordered as follows: A decree of divorce be and is hereby granted. Custody of two minor children namely EAM (born 18 February 2017) and EAM, (born 8 January 2019), is granted to the defendant. The plaintiff shall have reasonable and regular access to the children, which shall include: every alternate weekend and on special family gatherings.; Half of all school holidays, to be divided equally between the parties on an alternating or agreed schedule. Both parents are directed to act in good faith, to encourage the children’s relationship with the other parent, and to prioritize the children’s emotional well-being over personal disputes. The plaintiff shall continue to comply strictly with the existing child support court order under M1605/2025. In addition, the plaintiff shall meet all of the minor children’s academic needs and pay school fees up until they attain their tertiary qualifications, or become self-sufficient whichever comes first. The plaintiff shall also place the minor children on medical aid until they turn eighteen (18) or become self-sufficient, whichever occurs last. Stand number 20709 Muzambiringa Street, Zengeza 5, which is a property acquired during the subsistence of the parties’ marriage, shall be sold and both plaintiff and defendant shall get 50% share of the proceeds of the sale as per parties’ own agreement on property sharing. The parties shall agree on the value of Stand Number 20709 Muzambiringa Street, Zengeza 5 within 30 days of the date of this order failure of which they shall appoint a mutually agreed evaluator to do the evaluation of the property within 60 days of the date of this order. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his list of evaluators to evaluate the property. The parties shall share the costs of such evaluation in equal proportions. The plaintiff shall pay off defendant her share of the value within six (6) months of the date of receipt of the evaluation report unless the parties agree otherwise. Should the plaintiff fail to pay defendant’s share in full within the stipulated period the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds thereof shall be shared in the ratio 50:50. The defendant shall retain all the household movable property in her possession at the time of the divorce proceedings, with the plaintiff retaining a motor vehicle namely a Nissan Sunny Ex Saloon, registration number ACI 6242. There shall be no order as to costs. Tsanga J:………………………………………………………… Sithole James Legal Counsel: Defendant’s Legal Practitioners Maseko Law Chambers: Defendant’s Legal Practitioners