MATHONSI J: The parties were married to each other out of community of property
on 21 September 1996 and that marriage was blessed with 1 child a boy by the
name of Adrien Andisa Manyathela, born on 14 July 1997. He is currently a pupil at Christian Brothers
College in Bulawayo. The plaintiff is a
former train driver at National Railways of Zimbabwe who retired from employment
on medical grounds in 2005 after 24 years of service. He is now a successful businessman running a
retail shop in Bulawayo and is now 52 years old.
The Defendant is a 42
year old former sales lady who took up a tailoring business sewing items after
receiving orders from customers. She
currently runs a flea market stand at Geddes Building in Bulawayo.
After 13 years of
marriage the plaintiff instituted divorce proceedings against the defendant in
June 2009. He says what prompted him to
do so is that she had obtained a protection order against him after he had
assaulted her. She contested the action.
At a conference of the
parties all the issues were resolved leaving only the distribution of the matrimonial
home, namely No. 6 Blasson Avenue North End, also known as stand 7184 Bulawayo
Township of Bulawayo Township Lands as the one to be determined at the
trial. The agreement of the parties is
recorded in the Joint Pre trial Conference Memorandum and it is their desire
that it be incorporated in this final order for divorce.
The Plaintiff's
evidence is to the effect that he was employed by National Railways of Zimbabwe
(NRZ) in 1982 and after completing his probation period he applied for and was
allocated rented company accommodation in 1985 being No. 36 Trout beck Road
Greenhill Bulawayo where he moved in with his wife Mellina to whom he had been
married in terms of the Customary Marriages Act, Chapter 5:07. That marriage was blessed with 2 children
both of whom are currently University Students the first one being 25 years old
while the 2nd one is 21 years old.
In 1995 he was involved in a head on train collision in Gwanda and
sustained certain injuries.
He divorced the first
wife in February 1996 and then applied for upgraded accommodation resulting in
him being allocated House No. 5 Ingram Road, North End Bulawayo (now No. 6
Blasson Avenue, North End, Bulawayo) by NRZ again as rented accommodation. He moved into that house with the defendant on
4 June 1996. They got married on 21
September 1996. He said he married her
because she was good in tailoring and also out of love.
He accepted that NRZ
may have precipitated the marriage because they had written letters to him
demanding that he vacates the North End house as it had been allocated to him
in error. The house was for married
employees and as he was then not married he had been requested to vacate the
house or risk having commercial rentals levied against him with effect from 1
September 1996. He was then allowed to
remain in the house courtesy of his marriage to the defendant.
He stated that
following successful negotiations between NRZ and employees unions the NRZ
offered its rented houses to sitting tenants at concessionary prices. He is one of those employees who participated
in that scheme and signed a memorandum of understanding, with NRZ in July 1999 for
the purchase of the house: In terms of that agreement deductions were being
made from his salary towards the payment of the purchase price, a discounted
rental and an administration fee.
According to him, the
defendant did not contribute anything towards the acquisition of the house, as
she was a mere house wife who had left employment in 1997 when she was
pregnant. She gave birth to the only
child of the marriage and continued looking after the child while he paid the
purchase price of the house in instalments at the same time providing for the
family without any input from the defendant.
He paid off the
purchase price of the house and then signed a sale agreement on 15 August
2001. Instructions were given by NZR for
the house to be transferred to his name.
At that stage he decided to register the house in the name of a company
he had formed with his 2 brothers called J. Manyathela Retailers (Pvt) Ltd
which was incorporated in 2001. The
house was transferred to this company on 4 July 2002 for the sole reason of
facilitating access to loans for the business.
He revealed that he and
his brothers had intended to operate a retain business at their rural home area
of Lupane in the name of that company.
They tried to start the business but failed and only one of his brothers
succeeded in starting a business in Lupane.
He later tried to say that they did start operating as J. Manyathela
Retailers (Pvt) Ltd in Lupane but this was contradictory.
Under cross examination
he conceded that when that company was formed he was a minority shareholder
holding only 5 000 issued shares, the same as his brother Fortune, while his
brother Nkululeko was the majority shareholder with 10 000 shares. He conceded that although the share
certificate which signifies the 5 000 shares held by the defendant is dated 18
October 2001, at that time the defendant had nothing to do with the
company. It was not until 27 March 2007 that
defendant was appointed director of the company and issued with 5 000 shares.
He also accepted that
he removed his brothers from the directorship of the company and took their
shares without paying them anything for those shares. Currently he holds 75% while she holds 25%
shares which were just donated to her.
He insisted that the matrimonial house should be divided between them in
that ratio. His main reason for saying
so is that the house represents an estate he should share with his 2 children
who are at Universities and 24 years of hard work at NRZ. It represents his pension from NRZ, the
injuries he sustained in 1995 in a train accident and at the age of 52 he is
unable to secure any loans from finance institutions to acquire another house,
while at 42 she still can secure loans.
Asked how he would pay
off the 25% he is offering her, he insisted that he would get a loan from a
finance house in clear contradiction with his earlier claims that he is unable
to do so because of his age.
The defendant also gave
evidence. She started living with him at
Emakhandeni Suburb where she was renting late in 1995. When he got NRZ accommodation in Northend,
they moved in together. NRZ soon
discovered it had issued the house to him in error because he was not married
and started proceedings to evict him from the house. A former workmate of hers was married to a
marriage officer and when this problem arose arrangements were made for him to
marry them.
She left formal employment
in 1996 and commenced her tailoring business from TV Bazaars in Bulawayo. She had got those premises through her former
workmate who knew the owner. She called
the owner Anratbhai Vallbhai Desai to confirm that story.
When she started that business
he was still employed full time at NRZ and would join her to run the front part
of the business which was usually manned by her sibling, when he was on night
duty. She made money from that business
which was used to cover some of the family expenses like the utility
bills. As his income was being wiped out
by the payments for the house, she was the mainstay of the family covering all
the other necessary expenses. He eventually
took over that business from her.
She was not consulted
when the house was registered in the name of the company as she only discovered
that when she saw bills coming in that name.
When she queried, he told her
that had been done to make it easy to secure loans for the business. She was never consulted when he took decisions
and when she questioned that he would end up assaulting her as shown by the
admission of guilt fines he paid at police stations. She produced proof of those fines.
She stated that on one
occasion in March 2007, he had so severely assaulted her that she was forced to
leave him returning to her parents' home.
He asked for forgiveness and as a sign of his good faith, he offered to
register her as one of the directors of the company. Her sister assisted in ensuring that her name
was added and she was issued with shares.
She was never involved in that company which had nothing to do with the
business they were running until recently.
In fact their own business of selling buttons, zips and cotton was known
as Dress Maker's Haven.
As far as she is concerned,
having been a working woman throughout the marriage, who contributed fully
towards the building of the matrimonial estate, she is entitled to an equal
share of the matrimonial house. This is
particularly so considering that when they acquired the house, it was a small 2
bedroomed house. Together they developed
it by adding a 3rd bedroom, ensuite bathroom, a garage and fitted
wardrobes.
The plaintiff did not
make a good witness. He prevaricated a
lot and his testimony was punctuated by exaggeration of his own contribution to
the matrimonial estate while under playing the role of the defendant to
complete insignificance. He tried
unsuccessfully to portray the defendant as a mere house wife who had no hand at
all in the acquisition of the matrimonial estate.
On a balance of
probabilities and the credibility of the witnesses, I find that the defendant's
version is more probable. There is no
doubt in my mind that she was not a mere house wife. She was a working woman throughout the
marriage and generated income for the good of the family. Even the plaintiff unwittingly conceded her
roll by saying that he married her well knowing she was good in tailoring.
I conclude that the
parties worked together in acquiring house No. 6 Blasson Avenue North End
Bulawayo. They moved in together as
tenants and later acquired it during the subsistence of the marriage. They developed it together to what it is
today. The defendant therefore had a
direct and indirect contribution towards its acquisition.
I reject the assertion
by the plaintiff that the house represents his pension from NRZ and that
because of his train accident injuries he should be treated differently from
the defendant. That train accident
occurred before the parties got married and acquired the house. He was to remain in employment for another 10
years before retiring. I tend to agree
with the defendant that his retirement was influenced more by the economic
situation prevailing then which reduced the value of his earnings.
The provisions of
section 7(2) of the Matrimonial Causes Act [Chapter 5:13] enjoin me to make an
order that operates fairly between the parties. Section 7 (4) gives me a very wide discretion
which must be exercised judicially having regard to all the factors mentioned
therein: Takafuma v Takafuma 1994 (2) ZLR 103 (S) at 106 B-C; Ncube
v Ncube 1993 (1) ZLR 39 (S) and Dube
v Dube HB 149/10 (unreported) at page 13.
Mr Tshuma for the
plaintiff has asked me to respect the legal
persona principle and give effect to the share holding of the parties in J.
Manyathela Retailers (Pvt) Ltd and award them their shares as contained
therein. I do not agree. In my view that entity was the alter ego of the plaintiff. At the time that the house was registered in
its name, it existed only on paper and for the sole reason of taking transfer
of the house to the exclusion of the defendant.
It is for that reason
that the plaintiff could dish out shares to his brothers and take them away as
he pleased for no consideration at all. He tried to link it with a retail store run by
his brother in Lupane but this could not work as it never traded there. He tried to link it to the business in
Bulawayo but it was clear that it had nothing to do with it either. He may have started using that name now but
that does not detract from the fact that the house was not bought for the
business but the matrimony.
The plaintiff certainly
did not deal with the court with candour as he tried to throw in the issue of
his brothers and the company to cloud an otherwise straight forward matrimonial
dispute. Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H) at 217 F. In that case, Ndou J stated at 218 E as
follows:
''It is trite that a company
duly incorporated is a distinct legal entity (endowed) with its own legal
personality. Salomon v Salomon & Company Ltd [1897] AC 22. However, the veil of incorporation may be
lifted where necessary in order to prove who determines or who is responsible
for the activities, decision and control of a company.''
I am in agreement with the learned
judge. It has been accepted that the
house was registered in the name of the company to provide a vehicle to access
loans for the business of the parties. It had nothing to do with the running of
that business, which at the time was not being conducted in the name of J.
Manyathela Retailers (Pvt) Ltd but in the name of Dress Maker's Haven, a
business started by the defendant herself.
The plaintiff only joined later as confirmed by Mr Desai.
The house itself was the
matrimonial home of the parties for 13 years.
They acquired it and developed it together for their joint benefit: Sibanda
v Sibanda 2005 (1) ZLR 97 (S) at 103 B-C.
All the circumstances of this
case point to an equal sharing of the matrimonial home. For the plaintiff to say that the defendant
should take 25% of the value of the matrimonial house and use it to purchase a
small house in the high density suburbs leaving him to enjoy the comfort of the
house in the low density suburbs, is an indication that he has never regarded
the defendant as an equal in their relationship. For him to suggest that he should get 75% of
the house because he wants to share it with his 25 year and 21 year old
children from a previous marriage who are now university students, is simply
arrogant and selfish. It is
unsustainable especially in a case as this where there is evidence that the
marriage relationship broke down because the plaintiff repeatedly assaulted the
defendant and it was her decision to protect herself by obtaining a peace order
which forced the plaintiff to file for divorce presumably not happy with being
prevented from perpetuating further assaults on the defendant: Marimba v Marimba 1999 (1) ZLR 87 (H) at 98A.
None of the parties advanced
argument regarding costs and in my view this is a case where each party should
bear its own costs. In the result I make
the following order:
It is ordered that:
1. A decree of divorce be and is
hereby granted.
2. The custody of the minor child
Adrien Andisa Manyathela, born on 14 July 1997, is awarded to the defendant
with the plaintiff enjoying reasonable access.
3. The plaintiff shall pay
maintenance for the minor child to the defendant in terms of the maintenance
order registered at the Maintenance Court Bulawayo under Case number M29/2010.
4. The plaintiff is awarded the 4
plate stove, phone table, lounge suite, multichoice decorder, home theatre,
black tv stand, Sansui tv, radio and the Nissan Hardbody Pick up Registration
number ABF 7694 as his sole and absolute property.
5. The defendant is awarded the
kitchen table with chairs, deep freezer, dinning room suite, panasonic tv,
wiztech decorder corner stand, silver tv stand, bed and mattress in main
bedroom, bedroom suite, DVD player,bed and mattress in son's bed room, computer,
computer stand, telefunken tv and Toyota Camry motor vehicle registration
number ABD 7781 as her sole and absolute property.
6(a) The matrimonial home being No. 6 Blasson Avenue, Northend Bulawayo
also known as stand No. 7184 Bulawayo Township of Bulawayo Township Lands shall
be valued by estate agents agreed upon between the parties to determine its
current market value after which the plaintiff shall pay to the defendant 50%
of that value in settlement of the defendant's entitlement to that house within
3 months of the date of such valuation.
(b) In the event of the plaintiff's failure to pay the defendant in
terms of paragraph 6 (a) above, then the said house should be sold to best
advantage and the proceeds shared equally between the parties.
7. Each party shall bear its own costs.
WEBB, LOW & BARRY
Incorporating BEN BARON & PARTNERS, Plaintiff's Legal
Practitioners
Calderwood, Bryce Hendrie
& Partners, Defendant's Legal Practitioners
