CHITAKUNYE J.
The plaintiff and defendant were married in terms of the Marriages Act, [Cap 5:11] on 8 December 2000. They had
commenced living together as husband and wife in the year 1998 on a date they
were not agreed on. On 15 October 1998 they had married under customary law.
Their marriage
was not blessed with any child.
In October 2008 plaintiff brought
this action seeking a decree of divorce and an equitable distribution of assets
she alleged the couple had accumulated. She alleged that the marriage had
irretrievably broken down to an extent whereby there was no reasonable prospect
of its restoration to normalcy. She outlined the cause for the breakdown as
that: -
“1. The defendant has been having extra marital
affairs during the subsistence of
The marriage
2. The
defendant has been violent towards the plaintiff
3. Due
to the foregoing the plaintiff has lost all love and affection for the
defendant and as a result is approaching
this court for a decree of divorce.”
On the distribution of property
plaintiff proposed that it is just and equitable that the parties' matrimonial
assets be distributed as follows:
For plaintiff:
i)
Satellite dish and decoder,
ii)
10 cattle and
iii)
9 goats.
For defendant:
i)
DVD player,
ii)
1 blanket and bed cover and
iii)
4 cattle.
On immovable property:-
Plaintiff
to retain as her sole property the Goromonzi house and defendant to retain as
his sole property house number 3335
School Drive Glen View 4, Harare.
The defendant
conceded that the marriage had irretrievably broken down and it was just that a
decree of divorce be granted. He however disagreed on the manner of
distribution of their assets as suggested by plaintiff. In his plea defendant
contended that house number 3335 School Drive Glen view 4, Harare was not
matrimonial property but his sole property as he acquired it in 1979 whilst
married to his late wife. He also contended that the 14 cattle were not part of
the matrimonial property but his alone. He went on to suggest that the matrimonial
property be distributed as follows:-
For plaintiff-
i) 50% share of the Goromonzi property,
ii) 9 goats,
iii) 4 plate stove,
iv) Room Divider,
v)
Radio,
vi) Satellite Dish and Decoder,
vii) 2x 2-in-one Blankets;
viii) Refrigerator;
ix)
Kitchen Drawer;
x)
Bedroom Suite;
xi)
DVD Player.
For defendant-
i) 50% share of the Goromonzi property;
ii)
14 cattle;
iii)
Lounge suite
vi) Bedroom Suite
iv)
1 Blanket and bedcover.
At a pre-trial
conference the couple agreed that-
- The marriage had irretrievably broken down and that there were no prospects of
restoration to a normal marriage relationship
- That all the goats be awarded to plaintiff
- All household property/goods, including a 6 piece
Lounge suite be awarded to plaintiff.
The issues
referred for trial were as follows:-
1.
Whether or not House no. 105 Takadiyi Village,
Goromonzi was purchased and/ or constructed through the joint contribution of
the plaintiff and the Defendant and therefore is part of matrimonial estate;
and if so, what proportion did each party contribute?
2.
Whether or not the cattle form matrimonial property and
if so, in what proportion should it be divided between the parties?
3.
Whether or not plaintiff made improvements to the
Defendant's Glen View property (Stand No. 3335 Glen View) and if so, what were
the improvements and their value?
The plaintiff gave evidence after
which defendant testified and called one witness. From the evidence adduced
there was no denying that both parties were of the view that their marriage
cannot be restored to a normal marriage relationship. They both seemed to have
lost love and affection for each other. It was therefore clear that indeed the
marriage had irretrievably broken down.
On the contentious issues of the
immovable property and cattle both maintained their positions that they should
be awarded what they were claiming.
Section 7(1) (a)
of the Matrimonial Causes Act [Cap 5:13]
provides that:-
“Subject to this
section, in granting a decree of divorce, judicial separation or nullity of
marriage, or at any time thereafter, an appropriate court may make an order
with regard to the division of, apportionment or distribution of the assets of
the spouses including an order that any asset be transferred from one spouse to
the other.”
Section 7(4)
provides that in making the decision in subsection (i)
“…court shall
have regard to all the circumstances of the case.”
The
subsection goes on to enumerate some of the circumstances to be considered in
s.7 (4) (a)-(g). The subsection concludes by stating that-
“and in so doing the court shall endeavour as
far as is reasonable and practicable and, having regard to their conduct, is
just to do so, to place the spouses and children in the position they would have
been in had a normal marriage relationship continued between the parties.”
Evidence
on the contentious issues
The plaintiff
gave evidence on her contributions on the immovable properties
The plaintiff
abandoned her initial inclusion of house no. 3335 School Drive Glen View as
matrimonial estate when in her amended declaration she excluded it. In her
evidence she now only claimed the value of the improvements she said she made
to that property. These improvements comprised 3 door screens, a veranda screen
and a toilet seat. She valued all the improvements she effected at 100 United States
dollars. She thus wished to be reimbursed that sum alternatively that the sum
be offset with any claim defendant may have on the Goromonzi property. I did
not hear defendant to deny that plaintiff did effect the improvements in
question.
On the Goromonzi property, that is
house no. 105 Takadiyi village, Goromonzi, plaintiff's evidence was to the
effect that she acquired that stand on her own before she had married defendant.
In that regard she tendered an agreement of sale showing that she bought the
property as a stand on 17 August 1998 for the sum of 15 000 Zimbabwe dollars. The agreement was
tendered as exhibits 2. She made payments for the stand through cheques from
two Cabs accounts. The first cheque for
Z$5000 was drawn on her Cabs account and the second cheque for Z$6000 was drawn
on Defendant's Cabs account. These were paid on the date of agreement of sale.
Copies of the two cheques were tendered into evidence as exhibits 3(b) and
3(c). She paid the balance of Z$4000 in cash and she tendered a receipt of that
payment as exhibit 4.
It was her evidence that the Z$6000
from defendant's account was a loan which she repaid within a month from the
date of purchase. It was her contention that since the stand was purchased
before both customary and civil rites marriage it should not be considered as
matrimonial property. Plaintiff went on to say that after the purchase she went
on to fence the property. Apparently these are the only tasks she claimed to
have done before the two got married.
The construction of the house
occurred after they had been married. The plaintiff maintained that though they
were now husband and wife she is the one who contributed the most in the
construction of the house. According to plaintiff defendant's role was that he
assisted her in securing the builders and he also assisted her in buying window
frames and door frames. On the question of contributions towards the purchase
of the window frames and door frames plaintiff said they contributed equally.
The defendant's contribution having been on the window frames and door frames
only plaintiff felt he did not deserve much of a share in the property.
Under cross examination plaintiff
maintained that the Z$6000 from defendant's Cabs Account was a loan and not his
contribution towards the purchase of the stand.
On the only
movables in dispute, that is the cattle, plaintiff's evidence was to the effect
that as husband and wife they harvested their maize crop for the year 2002.
They sold the maize and realized a sum of Z$30 000 which they agreed defendant
should buy cattle with. Defendant went to Zimstock Sales and bought a herd of 5
cattle at a total cost of 102 000 Zimbabwe dollars. The receipt for
Z$102 000 by Zimstock Sales was tendered into evidence as exhibit 6 and is
dated 12/6/02.
Under
cross examination plaintiff admitted that according to the Zimstock Sales
receipt the Z$30 000 was inadequate to buy a herd of 2 cattle. She accepted
that of the Z$30 000 her share would have been Z$15000 with defendant retaining
Z$15000. That meant as at the time of the purchase of the cattle she could at
most claim only one beast. Her share was thus 20% of the cattle bought. She
however could not accept such a share now because, according to her, she is the
one who suggested that they buy cattle and when the cattle were bought they
were kept at her place hence she believed she was entitled to 50% of the
cattle. The stock card was also in her name.
The plaintiff's
evidence was generally well given. She readily accepted that the Glen View
house was not for sharing as it was defendant's sole property. On the other
aspects her evidence has to be weighed against that of the defendant.
The defendant's
evidence on house no. 3335 School
Avenue was not disputed at all. Plaintiff withdrew
her earlier claim for a share in that house. Defendant did not deny the
plaintiff's evidence on the nature of improvements she did. He however disputed
the value.
Pertaining to house no 105 Takadiyi
Village Goromonzi, Defendant's evidence was to the effect that as of 17 August
1998, they were staying together as husband and wife at his Glen View house.
The plaintiff advised him that she had found a stand to buy. The two of them
made equal contributions of Z$7500 each. He paid Z$6000 by Cabs cheque and
Z$1500 he paid cash to plaintiff for her to go and pay. The plaintiff never
repaid him the money as it was never a loan. As a co-purchaser defendant said
after entering into the agreement of sale they were given a copy of the
agreement of sale. That copy was kept by plaintiff and is not the copy tendered
by plaintiff as exhibit 2. He however could not confirm with any certainty that
on that Agreement of Sale he had indeed been included as a co-purchaser. This
latter aspect of defendant's evidence was contrary to the contents of his
supplementary summary of evidence wherein he said that the Agreement of Sale
was never reduced to writing.
Apart from paying the Z$7500
defendant said he thereafter looked for builders and he is the one who paid the
builders. After the first builders left, he later looked for other builders to
complete the construction and, as before, he paid the builders.
To support this aspect he called
Weston Masiyandima Musumire as his witness. The testimony by this witness was
to the effect that he is the builder who was engaged by defendant to complete
the construction of the house. In his evidence in chief he maintained
throughout that he was being paid by defendant at each stage of the
construction.
Under cross examination it became
clear that it is plaintiff who handed-over money to him after each stage. When
asked how in those circumstances he was able to say he was being paid by
defendant Weston said he assumed that the money was coming from defendant as it
was defendant who had engaged him and defendant would make follow ups to confirm that he had been paid.
It was also Weston's evidence that when he needed to buy building material
plaintiff is the one he would go with and she would pay for the material.
Somehow he still believed the money came from defendant. The difficulty with
Weston's evidence is that he did not sound original in his testimony. He gave
me the impression of someone who had been co-opted to merely come and confirm a
given version and nothing more.
I am of the view that apart from
taking the initiative to buy the stand before they were married plaintiff
contributed more to the construction of the house on that stand. Her share
should therefore be greater than defendant's share. A share of about 70 % would
meet the justice of the case. In arriving at that percentage I have also taken
into account the value of improvements she made to defendant's Glen View house
of 100 United States
dollars.
The defendant's evidence on the
cattle was rather contradictory. In his
plea he demanded that all the cattle be awarded to him without stating any
reason for such. It was only in the supplementary summary of evidence that it
emerged that he was claiming that the cattle were paid to him as lobola by his
sister's husband. In that regard the sister's husband was expected to come and
testify to that effect. Unfortunately that witness was not called to testify
for unexplained reasons. According to that supplementary summary of evidence
David Mukuruva was charged a herd of 8 cattle as part of lobola for defendant's
sister, Eunice Nyahada. He paid a herd of 2 cattle leaving a balance of 6. On
25 June 2002 David paid a sum of Z$120 000 in
lieu of the remaining six cattle to the defendant. The defendant used that
money to buy cattle from an auction. These are the cattle defendant seemed to
contend were the subject in this case. Unfortunately for defendant the Zimstock
Sales receipt, which he did not dispute, shows that the cattle were bought on
12 June 2002, which was almost two weeks before the date defendant said he was
paid by David Mukuruva. Apparently faced with such contradiction and highly
unlikely story, in his viva voce evidence
in court the defendant now said that he used his income from employment to
purchase the cattle in dispute. This new version was given without any apology
or explanation on its contradiction with his earlier version. I am of the view
that had defendant acquired the cattle on his own he would not have presented
two contradictory stories on how he acquired the cattle. It is clear to me that
the cattle were acquired in the manner stated by plaintiff, that is Z$30 000
from the sale of their maize crop and the balance was contributed by defendant.
It would appear that from the manner in which the cattle were bought the
parties agreed that the cattle be in the name of the plaintiff on the stock
card and the cattle were being kept at plaintiff's place from the time of
purchase. It was admitted that defendant used to pay for the herdsman on some
occasions.
Based on the contributions towards
the purchase price of the seed 5 cattle, I have already shown that plaintiff
would be entitled to about 20%. However as was shown from the evidence she
thereafter contributed in looking after the cattle to their present number of
17. Her percentage share would obviously need to be adjusted. I am of the view
that an increase of her share to about 35% would be fair and just in the
circumstances.
Accordingly it is hereby ordered
that:
1.
A decree of divorce be and is hereby granted
2.
The plaintiff is awarded the following movable assets-
i)
35% share of the current number of herd of cattle
ii)
All goats
iii)
All house hold
property including a 6 piece lounge suite.
3.
On immovable property-
70% share of house no 105 Takadiyi
Village, Goromonzi
4.
Defendant is awarded the following movable assets-
i) 65% share of the current number
of herd of cattle.
5.
On immovable property-
i)
He is to retain house no 3335 School Drive Glen View 4, Harare, as his
sole and exclusive
property since this was never part of the matrimonial
assets.
ii) 30% share of house No. 105 Takadiyi Village,
Goromonzi.
6.
The parties shall agree on the value of the 105 Takadiyi Village,
Goromonzi,
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.
7.
The plaintiff shall pay off defendant his 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 70:30.
8.
Each party is to pay their own costs of suit.
P. Takawadiyi & Associates, Plaintiff's Legal Practitioners
Gunje &
Chasakara, Defendant's Legal Practitioners
