The next time I saw him, he was in the dock of Courtroom B. As I said, I did not pay attention at first. I was at Rotten Row in one of those instances where fortune smiles on a lucky lawyer and showers him with the lucrative coincidence of two matters being set down on the same morning. It meant that I could bill both clients for the same hours. The first client was a woman, some small house from Borrowdale Brooke who had had sex with a mad man for ritual purposes. I had rather hoped for a long trial, but halfway through, she suddenly found Jesus and decided to plead guilty.
The second was a client on a traffic charge. He was one of those principled fellas who refused to pay twenty-dollar spot fines for minor offences, arguing that it was the principle of the matter that he was defending. The policeman had to go the office, sit down and draw up a summons, he said, he was paying no spot fine. He normally got away with it, what policeman ever wants to do work behind a desk when he can get fines on the road, but on this one day, he had run into the one policeman in the city who was willing to issue court summons instead of a spot fine. So the client had come to me, insisting that I defend him because it was the principle of the matter. The police, he said, had a duty to have their speed trap machines recalibrated every six months and he wanted to see reports that the machine that tested him was up to code.
On and on he went, he was a tedious fellow, meticulous to the point of annoyance, but I was happy enough to represent him because it meant I charged him the highest tariff that the Law Society allowed me to charge. These are the clients that every lawyer dreams of, the ones that ask you to pursue cases that could be avoided with just a quick admission of guilt. My client’s matter had been stood down to be heard after a series of bail applications. It was then that Piso’s name was called out as one of the bail applicants.
As I said, I did not realise that it was Piso at first. It was only when he spoke, denying the charges and asking for bail that I realised that it was him. The charge was engaging in immoral conduct in contravention of Section 77 of the Criminal Code. According to the charge read by the prosecutor, on or around 18 April 2010, at or around 11 p.m., on or near Josiah Chinamano Avenue, Comrade Piso had caused a public nuisance after refusing to pay for a hotel. He had also refused to pay the services of a woman called Manyara who claimed they had agreed a fee. Piso had then been attacked by the woman, he had retaliated, a public affray had ensued, and Piso had been arrested. He was charged with immoral conduct, causing a public disturbance and assault. When the charge was read, a woman who had been sitting in the dock stood up and said yes, he can’t get away with no paying, lock him up. She brandished a copy of Metropolitan newspaper in which Piso’s face was photographed in blurry tones and under the headline LAWYER FIGHTS HOOKER AFTER REFUSING TO PAY.
Without looking up from his papers, the magistrate directed that he apply for bail to the High Court. Still reeling from this unexpected turn in the life of Comrade Piso, I did not immediately hear it when my client’s case was called. I was not at Rotten Row on the day that Piso was sentenced to a year and a half, with six months suspended on condition that he did not commit the same crime for two years.
Apart from ending up in prison, the most serious consequence for him was that he was disbarred. Whatever whiff of suspicion had followed him after his previous scandals, he could not explain away his conviction for procuring the services of a prostitute, public affray and disorderly conduct. This was a far greater punishment than prison. Once the Law Society strikes you off, your life as a lawyer is finished. In the event, he served less than a year. The lucky beggar benefitted from the presidential amnesty after the election, an amnesty that cleared the prisons of all but the most hardened of the convicts.
Piso disappeared from Harare after that, and the next we heard, he had returned to live in Chipinge. Then he was in the headlines again, this time, for camping in a caravan on a tea estate that belonged to a white farming family. He paid a bunch of youths in Chipinge to terrorise and drive the farm manager out. It all worked out for him, the manager was found one day early in the morning, having hanged himself. Gwata, who I drank with from time to time, and who was the pathologist who examined the manager’s body, said he had never seen such a professional knot on a suicide.
After that, it should have come as no surprise to see that Piso had joined the ruling party. He devoted himself so slavishly to its service that in a matter of just four years, he went from an ordinary party member to provincial governor.
I saw him next on television, no longer just a joke Comrade, but a proper Comrade. As a proper Comrade, he not only had the party regalia with the president’s face on his shirt, he also had the requisite angry speech and the ruling party stomach to signal ruling party prosperity. As he delivered a speech denouncing the most recent ‘defecations’ from the ruling party and the ‘Nicodemus machinations that were nicodemusly carried under cover of the darkness’ and as he praised the president and his cabinet for ‘dying for this country’ which he declared would never be a ‘colon’ again, I realised that not only had Piso claimed his original voice, he was now speaking in an exaggerated parody of it.
Comrade Piso had come full circle.
In the Matter Between Goto and Goto
If there be a controversy between men, and they come unto judgement, that the judges may judge them; then they shall justify the righteous, and condemn the wicked.
– The Book of Deuteronomy –
Kana vanhu vakaita nharo, vakavuya kutongerwa, vatongi vakavatongera, vanofanira kururamisira wakarurama, nokupa mhosa munhu wakatadza
– Buku yecishanu yaMosesi inonzi Deuteronomio –
In the High Court of Zimbabwe
Reportable
Case No 667/2016
IN THE MATTER BETWEEN:
Naboth Tapfumaneyi Goto PLAINTIFF
and
Immaculate Avila Goto DEFENDANT
S Bwanya, for the Petitioner
T Mafukidze, for the Respondent
JUDGEMENT
[1] It is no exaggeration to say that the two parties to these proceedings are living in what can only be called a state of competitive unhappiness. The Plaintiff, Mr Naboth Tapfumaneyi Goto, is an unhappy man. The Defendant, Mrs Immaculate Avila Goto, his wife, is an equally unhappy woman. Each party claims to be more miserable than the other, and each accuses the other of being the source of that misery.
[2] My ruling will satisfy neither completely. It will certainly not accord them the essential happiness that they seek. The most that this court can do is to give each party, according to the merits of each party’s case, succour of a legal nature.
[3] On 15 January 2016, the Plaintiff, Naboth Goto, issued a summons in which he seeks a divorce from his wife, Immaculate Goto, on the grounds that his marriage has broken down irretrievably because of his wife’s unreasonable behaviour.
[4] In response to that summons, the Defendant, in Heads of Argument filed on 29 January 2016, refuses to grant the divorce and instead brings her own summons to compel her husband to uphold, in her words, ‘the sacred vows that he undertook by entering into the sacrament of marriage in accordance with the tenets of the Roman Catholic Church.’
[5] Immaculate Goto also seeks an order to compel the removal from the matrimonial home of a Miss Benevolence Mhlanga, whom she describes in her sworn affidavit as the ‘concubine’ or ‘small house’ of her husband, and as a ‘loose harlot’ and ‘painted Jezebel.’ Moreover, Immaculate Goto makes a claim of adultery damages against Miss Mhlanga in the amount of $50,000 broken down into $30,000 for loss of consortium and $20,000 for contumelia.
[6] The facts of the matter are simple enough.
[7] In May 2005, Immaculate Avila Chatidonhe, a spinster of Kwekwe, aged 24 years of age, was married to Naboth Tapfumaneyi Goto, a bachelor of Gweru, aged 34. Miss Chatidonhe, as she then was, was studying articles with an international accounting firm. Naboth Goto did not then have fixed employment, and describes himself now as he did then as a ‘commodity brok
er’. His wife dismisses this description and states that it is a more sophisticated way of saying that her husband is, was, and has always been, a ‘wastrel’ and a ‘dealer’.
[8] They married again six months later, on 10 December 2005.
[9] The first marriage between the parties was a customary law union contracted under African customary law and registered in accordance with the then African Marriages Act, Chapter 238. The form of such marriages is well known. The bride receiving family, through an emissary called a munyai, approaches the bride giving family to enter into negotiations on the amount of the bride wealth, variously called fuma, roora or lobola.
[10] Negotiations are then concluded to the satisfaction of the bride giving family, and, with no further ado, the couple is considered married by their families, the wider community, and under the law of Zimbabwe.
[11] There is a long line of cases stretching as far back as Chiutsu v Garira [1969] and Jirira v Jirira [1976] that have upheld the legal validity of marriages contracted in accordance with African customary law.
[12] According to Naboth Goto, he had only given in to the second marriage, contracted under civil law, because his wife refused to live with him after the first marriage as she was willing to do so only after a marriage blessed in the Roman Catholic Church.
[13] Immaculate Goto has herself attested that she is a devout adherent of the Roman Catholic faith. It was a point of honour and faith for her that she and her husband consummate the marriage only after they had solemnised their marriage though an exchange of wedding vows in church. Indeed, so seriously did Immaculate Goto take her chastity that, after the consummation of that marriage, she insisted that a chimandamanda, or mombe yechimanda be purchased by her husband’s family to send as a gift to her own family. It is established under custom that the giving of this cow is an indication from the family of the groom that they are satisfied that the bride has known no man other than her new husband.
[14] The second marriage between the parties was a more elaborate affair. It involved a white wedding dress, a marquee, a towering cake, and expensive catering for four hundred guests. Both parties have shown this court a video of the wedding. From the speeches and dances and the smiling approbation of both families, it was a happy occasion. Both parties signed the marriage register in accordance with the then Civil Marriages Act, Chapter 37.
[15] The marriage produced no issue, that is, there are no children born to the couple.
[16] Some ten years after the second marriage, Immaculate Goto was summarily informed by her husband that as she had provided him with no children, he had chosen to take another woman as a wife. He informed her that he had, in fact, fathered a child with the aforementioned woman.
[17] The mother of the child that Naboth Goto says is his is the Miss Benevolence Mhlanga, aged 28, who has been described by Immaculate Goto in the colourful terms above. On the same occasion, Naboth Goto also informed his wife that Miss Mhlanga was presently expecting his second child and that he wished to live with her as man and wife. Indeed, Naboth Goto declared, he had already taken her as a wife as he had negotiated bride wealth with her family and had thus contracted a second customary law union of marriage.
[18] In accordance with the Rules of Procedure of the High Court of Zimbabwe, petitions for divorce are normally determined on the basis of the papers filed by the parties. The procedures do however allow the parties to appear in person before the court. Immaculate Goto asked to see me in person. I acceded to this request. I also reminded both parties that they also had the option to proceed by way of a court action, and could thus go to a pre-trial-conference followed by a full trial.
[19] In this case, in a communication to the Court, Mrs Goto indicated that she did not want a full trial, but only wished to appear before me to reiterate certain points in her sworn affidavit.
[20] The maxim audi alteram partem, which compels that both parties to a dispute be given an equal and fair hearing, is a core principle not only of our legal system but of natural justice generally. In fairness to all the parties, I also agreed to see Naboth Goto in my chambers, who came in the company of Miss Mhlanga.
[21] Immaculate Goto struck me as a woman in the grip of an intense emotion. Whatever that emotion may be, it seems to me that it is not love. It seems clear to me that Mrs Goto has no affection at all for her husband. From her testimony, he has done everything possible to kill whatever affection she retained for him. Yet she still wishes to remain married to him.
[22] I do not accept that Immaculate Goto’s intransigence in this matter is motivated by religious scruples alone. I would recommend that she seek urgent counselling before it enters her mind to pursue other actions.
[23] Naboth Goto, for his part, struck me as a man impossible to love. His insistence on bringing Miss Mhlanga into these proceedings was an unnecessarily aggressive and provocative act. It is regrettable that I had to suspend proceedings while the High Court security officers separated the two women and rearranged the furniture in my chambers.
[24] According to his testimony in chambers, Naboth Goto considers himself to be the victim of a fraudulent transaction. In his view, his first marriage is void ab initio because it did not produce issue.
[25] The plaintiff submits that the fuma that he paid to the Chatidonhe family on marrying his wife was on the understanding that his wife would bear him children, and especially, sons to continue his name, and daughters who would in turn bring their own bride wealth into the family. As his wife has not borne him children, she has not honoured the contract between them. Mr Goto thus considers his first, customary law marriage to be more valid than the second, civil law marriage.
[26] Immaculate Goto responds that Naboth Goto has infected her with at least three different strains of venereal disease. It was after the third infection that she closed her bedroom door against him. Naboth Goto uses this as an example of her unreasonable behaviour.
[27] He also claims that she acted unreasonably when he told her that he had married another woman. Using the traditional mode of resolving disputes between married couples, Immaculate Goto consulted her family, who, in turn consulted his. There were attempts at family counselling. The families then both decided that the only option available to preserve the marriage was for Immaculate Goto to accept the role of senior wife to her husband, while Miss Mhlanga would become her husband’s second wife.
[28] Naboth Goto was prepared to accept this compromise, as long as Immaculate Goto was willing to live with Miss Mhlanga in the matrimonial home.
[29] Immaculate Goto testified that the information about the children came to her with considerable shock and distress. She wrestled with her conscience about the children and came to the conclusion that though they might be the children of God and were unable to help their birth, they were still, in her terms, ‘my husband’s bastards’.
[30] She also averred that in the last four years, she had undergone medical investigations to investigate the source of her infertility. None of the specialists that she consulted saw any reason she could not conceive a child.
[31] It was suggested to Mr Goto that he also undergo fertility testing. He declared this to be unnecessary, and used the children he authored with Miss Mhlanga as evidence of his own fertility. He suggested that his wife should stop consulting what he termed ‘Western doctors’ and, rather, focus her efforts on divining the reason for her infertility through traditional means.
[32] Immaculate Goto declared, however, that she was unwilling to compromise her faith as far as visiting traditional healers. She had even fewer kind words for such practices, calling them ‘heathenish’ and ‘devilish’. She then pleaded with her husband to respect his marriage vows and abandon Miss Mhlanga. She grudgingly conceded that he could continue to pay maintenance for the children, but he had sworn before a priest, she said, that he promised to be true to her in good times and in bad, in sickness and in health, to love her and honour her all the days of their lives.
; [33] Her husband was unmoved. He declared that she had forfeited her right to be his wife by reason of her infertilty.
[34] When the parties reached a stalemate, Naboth Goto moved Miss Mhlanga and her minor child into the matrimonial home. Immaculate Goto refused to vacate the home. She put a lock on the fridge and turned off the electricity every time she left the house. Tensions escalated because Immaculate Goto stated that Miss Mhlanga would scream particularly loudly when she enjoyed the conjugal visits that she considered her lawful right.
[35] Naboth Goto for his part states that he would have willingly satisfied both his wives conjugally but Immaculate had locked the bedroom door against him. Immaculate Goto responds that as he had given her venereal diseases on at least three occasions, she was unwilling to entertain his advances any further.
[36] As I have already stated, Mr Goto uses that statement as evidence of his wife’s unreasonable behaviour. He states further that on at least five occasions, he managed to force the door open and, as he says, ‘take his due rights’ over his ‘own wife’.
[37] The parties thus continued to live in this state of attrition.
[38] These, then, are the facts that provide the background to this petition.
Rotten Row Page 23
