A reader of this unusual judgment is given early, clear warning that there could be unexpected developments in the case: the magistrate, Peter Kandulu, spends some initial paragraphs on the question of perjury, its meaning and its possible punishments, including fines and a prison sentence.
Kandulu’s likely findings become even more clear when he points out that Nicholas Dausi and his legal representative are both members of Malawi’s national assembly. The court respects their office, says Kandulu, and would not expect members of that assembly ‘to tell [the] court lies in order to defeat … justice’ especially when they are ‘fully aware of the consequences of the offence of perjury’.
The case concerns Dausi and V who had been married for 12 years. They had three children. V was particularly concerned that Dausi did not allow her to access the children for visits and she has not seen them since 2016. She was willing to leave custody of the children with their father, but wanted to be able to see them from time to time.
In addition to visitation rights, she wanted the court to distribute the matrimonial properties acquired during the years of their marriage.
She listed a number of properties (houses), a number of vehicles and more than 100 cows that she said should be considered at distribution.
In response, Dausi gave the court a brief history of his career in politics and political administration. He said that V was wrong to say they had acquired all the properties she listed during the marriage. He also testified that most of the property she had listed belonged to Dausi’s son, Mwai Dausi.
He claimed that when she left the matrimonial home, V had taken a number of things with her including four mahogany queen size beds, with mattresses and linen for the beds. He knew that she had taken them because when he returned from abroad ‘he did not find them at home’.
Kandulu spelled out the issues before him, including whether someone who did not work outside the home was entitled to a share of the matrimonial property. He quoted the constitution and various previous judgments to the effect that if a party did not work outside the home, he or she was still entitled to a share of the matrimonial property. ‘If our laws had intended that non-working spouses should never benefit from their matrimonial properties, the laws would have expressly said so.’
At the time of their marriage, Dausi had not been working, and had lost his job thanks to a change in government, but he later found a position. It therefore would be wrong to claim that V should not get a share of matrimonial property on the basis that Dausi had had properties at the time of their marriage, said Kandulu.
During the marriage Dausi became an MP, then a deputy minister, and director general of the National Intelligence Service. During that period, V ‘was part of the success story’ of Dausi, ‘since she was the one who was cooking and doing all household chores at the home’.
To claim at this stage that she ‘did not contribute anything’ to the acquisition of their matrimonial property for the entire 12 years of the marriage because ‘she was not working in the formal sector and was only a housewife’ would be unreasonable, unjustified and not supported by Malawi law.
What about the conflicting claims on the disputed matrimonial property? The court ordered a detective to investigate the list of goods said by Dausi to have been taken by V at the end of their marriage. The detective searched V’s home to see if any of the goods listed by Dausi were there. What he found was ‘so shocking’, said the magistrate. There was a ‘dilapidated wooden bed’ without a proper mattress and not a single chair in the house.
It was unfair and humiliating, said Kandulu. Why would V be sleeping on a broken bed, without a mattress if she had in fact taken all the goods listed by Dausi as ‘missing’? The magistrate concluded that Dausi ‘told the court lies’ when he said that V had taken items from their matrimonial home, without producing any evidence to this effect.
The magistrate also pointed out that since Dausi had been director general of the National Intelligence Service at the time V left the matrimonial home, there was an assumption that there would have been security staff on site who would not have allowed her to make off with the long list of goods submitted by Dausi.
The court also asked an official of the road traffic directorate to establish what motor vehicles were registered in Dausi’s name. He provided a list of 21 vehicles, in the name of Dausi senior, and none in the name of his son.
Again, this exercise led the court to conclude that Dausi ‘had told the court lies’ and that he had done so to ensure judgment against V. Kandulu said that the state, via a police investigation, could decide whether to bring charges against Dausi and ‘allow him to defend himself on why he should not be committed to prison for telling the court lies under oath.’
The court took a similar approach to the dispute about fixed property. In response to V’s claim about the five houses that were acquired during their marriage, Dausi said he owned only one and that he had acquired it before marrying V. Although he claimed that the ‘other houses belong to his son’, he offered no documentary evidence to support that claim.
No evidence of the son's contribution to construct the disputed houses was put up. Without any evidence to show that the son owned the properties, the court concluded that three houses in Mwanza formed part of the matrimonial property. Dausi claimed that he rented another house listed by V, and was not in fact the owner. The magistrate found, however, that if this were so, Dausi would have brought the landlord to court to testify as much, or would at least have produced the rental agreement.
There was also no evidence by way of bank statements to show that the son had sent money for Dausi to buy property on his behalf or to show that the cows belonged to the son, as Dausi claimed. The court therefore found that the 105 cows were also part of the matrimonial property.
Kandulu said Dausi believed that V should not benefit from property acquired during their marriage, because she ‘was not working’ and thus did not contribute to the acquisition of property. The magistrate commented, ‘A housewife is entitled to a share of matrimonial property at the dissolution of marriage. Her contribution can be quantified as cooking, washing, cleaning the house, looking after the husband and children among others. The same applies to a jobless man as against a working wife.’
It could not be that during the 12 years of the marriage, V contributed nothing to the acquisition of matrimonial property. Rather, it had to be that she has ‘contributed through many avenues’.
Taking into account that Dausi did not have ‘control’ over all the vehicles, the court awarded him five motor vehicles while V was to get four of them. Of the five houses, V is to get two and Dausi the remaining three. Of the 105 cows, V should be given 30 while Dausi gets the balance.
As to the question of the children and visitation, the court ordered that the children must be free to visit their mother during school holidays and that Dausi should be responsible for their maintenance while they are visiting her.
Apart from the personalities involved – Dausi is well known enough to spark considerable interest on that ground alone – the judgment is likely to prove significant because of the court’s strong line on the requirement of fairness when a marriage ends. And because of the potential of a perjury charge being brought against such a high-profile personality.
The parties had a fortnight to appeal to the high court. While V is likely to be content with the outcome, it is not clear whether Dausi has noted an appeal. One Malawian media outlet has, however, reported that the dispute was now at the Mzuzu high court, after Dausi ignored the magistrate’s orders.