KAMOCHA J: The
parties in this matter agreed, at a pre-trial conference that their marriage
had irretrievably broken down, consequently a divorce be granted by
consent. They also had agreed that the
custody of the children would be shared between the parties during the school
holidays with the plaintiff continuing to meet all the children's expenses i.e.
payment of school fees and all related expenses. Before the full trial commenced the parties
further agreed to divide their household goods and effects between them and a
consent paper was filed of record, recording their agreement.
Three issues to be determined by
this court were these:
(a)
Whether or not both parties contributed to the
construction of the matrimonial home i.e. stand 499 Accacia Crescent – Victoria
Falls and the division thereof;
(b)
Whether or not plaintiff's companies form part
of the matrimonial estate and the division thereof; and
(c)
Whether or not the defendant is entitled to be
paid personal maintenance by plaintiff.
In his testimony the plaintiff told
this court that he was a business man of 11 years standing who was aged 45
years. He resides at the matrimonial
home 499 Accacia Crescent, Victoria Falls which he believed did not form part
of the matrimonial estate. His belief
was based on his claim that the funds that were used to purchase building
materials were drawn from his companies.
He stated that he got a piece of land and started building from
foundation with no contribution from the defendant. He alleged that she had not assisted in
building the house at all.
He used various contractors but the
main one was one called Kingstone which had a qualified builder who needed no
supervision to do his work. The
construction took about 3 years and when it was in progress the defendant was
running a business known as Mosi Flora Florist and Boutique. She was also running a chicken project at
Victoria Falls Airport and was cross border shopping for goods to be resold
back home.
When
the construction of the matrimonial home was completed the defendant started to
run a restaurant in the industrial area.
The restaurant was called Kwa Mai Raz Kitchen. She was assisted to set it up by plaintiff
who supplied the equipment, tables, chairs and even staff from his restaurant
known as Mama Africa which he used to run at the time. A chef from Mama Africa used to go there and
cook. He however, did not assist in
buying stock for the restaurant.
He also
allegedly assisted her in setting up Mosi Flora Florist and Boutique. He used to give her foreign currency as part
of her capital to buy stock for the boutique.
Most of the time he went out of the country on business trips he used to
travel with her either by road or by air.
He used to meet all expenses using funds drawn from his companies.
The
defendant never accounted to him for proceeds of the boutique. He did not even know what she did with the
money.
It was
his evidence that he assisted her in her initial cross border shopping
trips. He gave her money to assist her
to buy goods when she went to Dubai. He
provided a company vehicle when she made shopping trips to Botswana.
He also
assisted her in setting up the poultry business at Victoria Falls Airport. That chicken business was known as Rain
Forest Chickens.
The
background to that business was as follows.
Prior to 2000 he was involved in a partnership in a company called WILTI
(Pvt) Ltd. The company had a lease agreement with Hwange Rural District
Council. It is the company which set up
Rain Forest Poultry Project. Sometime in
2000 plaintiff and his partner decided to cede the project to Learmonth
Investments whose funds were used to construct the project to its current
position.
In 2004
the couple ran into marital problems.
The major concern from the wife's camp was that plaintiff did not
involve her into his businesses. In
order to cater for the concerns of his wife he allowed her to utilize the
facility for the purpose of rearing chicken.
She was allowed to use it as a fully fledged business.
The
business sits on a piece of land measuring 100m x 100m with a diamond mesh wire
around it and electrified. There is
approximately 90 metres of a building block which is subdivided. To the left is a cottage and next to it is a
storeroom. Thereafter it is partitioned
into fowl runs with a capacity to hold 3 000 chickens at any one time. On entering the premises of the project there
is a three bedroom farm house. There are
four mounted water tanks. The only
facility she put is a small open kitchen.
In
order to run that project smoothly he availed her use of Mazda B1800 truck and
fuel to do the 20 kilometre run from Victoria Falls town to the airport – 40
kilometres per day. The plaintiff took
care of the running costs of the motor vehicle id est fuel and maintenance through Binga Wild Life Safaris which
was one of his companies also known as Dingani Tours.
To
further support the project he instructed his kitchen Mama Africa to buy
chicken produce from her. All she did
was to buy the chicks and feed.
He
alleged that despite all the assistance he gave her in setting up her business
she never accounted to him what she did with the proceeds therefrom. He never knew what she did with whatever
money she realized from all her businesses.
Matrimonial home
It was
plaintiff's evidence that the funds for the construction of the house came from
Binga Wild Safaris trading as Dingani Tours and Delicacy Investments trading as
Mama Africa. Defendant did not
contribute towards the construction of the matrimonial home despite the fact
that she generated income from the businesses he helped her to set up. He believed that she could have been using
the money to buy clothes because she did not even look after her own parents or
plaintiff's parents. He had to provide for
them on monthly basis with allowances until he stopped doing so for her parents
at the beginning of 2008.
The
house was initially registered in the plaintiff's name but was later
transferred into the name of a family trust known as Raz Dube Family Trust on 6
October 2006 which was set up in 1999 with the defendant's knowledge and
approval as the couple had no marital problems then.
The
trust was set up by plaintiff's accounting firm known as S.G. & Company led
by one Stanford Gwanzura. At the time
the idea of setting up a trust was being mooted by S G & Co, Gwanzura
allegedly travelled to Victoria Falls with the relevant documents in order to
explain them to the couple. It was
explained to them that a family trust would take care of their children in the
event of the parents' death. Their
assets would be transferred into the name of the trust. The main beneficiaries would be the couple's
children although all family members were income beneficiaries of the trust id est plaintiff Rezimosi Dube,
defendant Sandra Farai Dube, son Raz Wilson Dube and daughter Tadiwanashe Dube
also known as Rhoda Dube.
The
plaintiff filed of record the Raz Dube Family Trust Deed whose trustees were
Razimosi Dube, Stanford Gwanzura the plaintiff's accountant and Joseph Chanyu
Mahamba – plaintiff's lawyer who has since been replaced by Urayayi Mazengeza
another accountant. Plaintiff also
filed a deed of transfer reflecting that the matrimonial house was transferred
into the name of Raz Dube Family Trust.
Plaintiff saw no reason why it should be removed from the trust and
concluded by saying that he had no authority to sell the house.
Companies
The
plaintiff gave a detailed account of the genesis of the companies owned by
him. His evidence was that he had been
working in casinos but quit in June 1997 after he had obtained a licence from
National Parks to conduct leisure cruises in the upper Zambezi River. With that licence, he approached a friend of
his known as Gail van Jaarveldts who had an interest in seeing him in
business. He approached her so that she
could connect him with a partner. The partner
had to be a financier since he himself had no capital to start operating such a
business. He held a couple of meetings with her culminating in her taking
interest in going into a venture with him.
A
meeting was held at J D Kennedy where Stanford Gwanzura was a partner whereat
the directors of Binga Wild Safaris agreed to offer him 40% in Binga Wild
Safaris which was on loan account.
The
first operation started in December 1997.
Since his partners were not sure of his knowledge in the business of tourism
they made him go into partnership with another company known as Africa Eagle
Victoria Falls. But after trading for
about a year it turned out that he was pulling in more business than the
African Eagle partnership. Consequently,
he convinced his partners that they pull out of the African Eagle partnership.
The
assets then were a 56 seater boat cruiser, a kombi Toyota Haice, two Mazda
trucks – a B1800 and B2200. The business
was so successful that they were able to buy another 56 seater boat cruiser and
a Toyota Coaster bus which was much bigger than what they had before.
That
business boom was short lived as the tourism business hit a snag when tourist
arrival went down at the height of farm invasions. His partners who were white became insecure. Through the assistance of Gwanzura their
accountant in other companies the plaintiff clinched a deal to secure the other
60% to make it 100%. That came to
fruition in 2001 at a cost of six million Zimbabwe dollars which he had to pay
over a period of time. He then ran the
company on his own and acquired more buses and kombis.
Due to
the good working relationship that he had with Gail van Jaarveldts and a Mr
Konnot they offered him an opportunity to buy Delicacy Investment trading as
Mama Africa. Payment for that business
was as and when he got money as he operated it.
That
arrangement however, did not work well due to low purchases. He ran short of money to purchase the
business and even to run it. That state
of affairs compelled him to call Mr Stanford Gwanzura to run the company and
even to pay the plaintiff's domestic workers.
Gwanzura did so from year 2002 up to the year 2007 injecting in excess
of 2.5 billion Zimbabwe dollars.
Plaintiff did not know where Gwanzura got the funds from.
On realizing that it was not
possible for him to come out of the debt owed to Gwanzura he held a meeting
with him whereat it was agreed that Vivstan (Pvt) Ltd through the funds it had
injected could take 50% share holding in Learmonth (Pvt) Ltd. A further reason for giving 50% equity to
Vivstan (Pvt) Ltd was that the plaintiff felt it was only fair to do so due to
the long period he had worked with Gwanzura.
Initially
Learmonth (Pvt) Ltd was a shelf company but later became a trust holding
company for Binga Wild Safaris Trading as Dingani Tours, Delicacy Investments
trading as Mama Africa; and Rain Forest Chickens. The Raz Dube Family Trust held a 100% shareholding in Learmonth
(Pvt) Ltd. Following the above, the
current position is that The Raz Dube Family Trust and Vivstan (Pvt) Ltd have a
50% each share holding in Learmonth Investments (Pvt) Ltd which is the holder
of 100% share holding in Delicacy Investments (Pvt) Ltd and Binga Wildlife
Safaris (Pvt) Ltd. These two companies
generated foreign currency. Plaintiff
stressed that defendant was never involved in those companies. She never worked for them and was not a share
holder.
However,
in the year 2004 the couple's marriage ran into problems as the wife felt that
her husband did not involve her into his business activities. As a compromise he listed her as a director
for both Binga Wild Life Safaris trading as Dingani Tours and Delicacy
Investment trading as Mama Africa. He
further permitted her to use the Rain Forest facilities – the chicken project
at the Victoria Falls Airport. The
plaintiff told the court that he went further and bought his wife a RAV4 motor
vehicle worth US$7 000 and registered it in her name. He also bought her a Nissan truck in
2007. All that was done in order to
accommodate the defendant and save the marriage.
Plaintiff
alleged that it was made clear to the defendant as one of the directors of the
two companies that the companies belonged to the Raz Dube Family Trust.
It was
his testimony that they ran separate estates.
While he ran the companies mentioned above, she for instance ran a
company known as Mosi Flora Florist & Boutique (Pvt) Ltd whose directors
appointed on 19 November 1998, were the defendant herself Sandra Farai Dube,
the couple's children – the son Raz Wilson Dube and daughter Tadiwanashe Rhoda
Dube. Defendant was the principal
director. He contended that although
defendant had been made one of the directors of Learmonth Investments (Private)
Limited as far back as 18 March 1999 the company did not have anything
then. It only became active after the
Raz Dube Family Trust was formed as the Trust assets had to be loaded into
it. Hence Learmonth Investments (Pvt)
ltd is owned by the family trust.
After
the parties had separated in 2008 he discovered that defendant had tempered
with documents relating to Learmonth Investment. The CR14 had been altered to reflect that he
had resigned from Learmonth as a director.
It also reflected that S. G & Company had resigned as secretary of
the company and Sandra Dube the defendant had been appointed as secretary. The couple's son Raz Wilson Dube was
appointed director replacing his father the plaintiff.
The
plaintiff reported the matter to the Criminal Investigation Department (CID)
Bulawayo. The defendant and her accountant
were facing criminal charges.
Defendant's claim
for personal maintenance
During
the subsistence of the marriage he never used to give the defendant money for
her personal maintenance. He only used
to give her money for the household groceries.
He always paid the children's fees from crèche to date without any
assistance from the defendant. The
defendant used to maintain herself from proceeds from her flourishing
businesses which she still ran. She was,
therefore, not entitled to any personal maintenance. She has all proceeds from her businesses to
herself alone.
The
plaintiff was cross-examined at some great length. He reiterated that the defendant did not need
any personal maintenance since she had the capacity through her flourishing
businesses to enjoy all the luxuries that she was used to during the
subsistence of the marriage. It came out
under cross-examination that she had moved out of the matrimonial home in 2008
and had never returned. She left the
children with the plaintiff. He denied
ever pooling resources with her for the purpose of constructing the matrimonial
home. Neither did she meet part of the
household expenditure. He emphasized
that he never knew what she did with the money she generated from her
businesses including cross-border trips as she was never accountable to him.
Plaintiff
vehemently denied the suggestion that the couple ran a joint estate. Instead he told the court the two invested
separately as each of them ran his or her businesses. He asserted that through their actions it was
clear that there was an element of wanting to be independent by each party and
that they did not want to be accountable to each other. They never sat down as a couple to discuss
how resources from their business empires were going to be utilized. They ran separate bank accounts with various
banks.
He
reiterated under cross-examination that the trust was set up for the purposes
of securing property for the family as a whole especially for the
children. Although the defendant was not
consulted when it was being set up she was fully informed about what was going
on. She was given documents relating to
the setting up of the trust. The
documents were fully explained to her and she appended her signature without
demur. Knowing her as he did she would
not sign a document she did not understand and agreed with.
While
denying that the defendant made any form of contribution direct or indirect
towards the construction of the house he conceded it was the couple's
matrimonial home. When asked by this
court what his offer to her in the matrimonial home would be he offered 20%.
When it
was suggested to him that the defendant should continue running the chicken
project at the airport after the divorce his response was that she could not
benefit from the trust after the divorce.
The sad
picture that came out of cross-examination was that the plaintiff was never the
head of his family. The defendant had a
superiority complex because she was a holder of a bachelor's degree while
plaintiff was only 'O' levels. Right
from the beginning of their marriage she made it known to him that he should
realize that she was more educated than he was.
When he
told her that he was not happy with her employment at United Touring Company
the answer he got was that she had come to Victoria Falls to work not to be
told what to do by a man. When she went
into partnership with a Mr Chiwandire, he queried that but was told that he was
jealous of her success. Further her
cross border activities date back early into their marriage. Despite the fact that he had indicated his
displeasure of such activities due to the moral reputation attached to them,
she insisted and continued to undertake the trips. His disapproval of the trips was of no
consequence to her. He had no control
over her during the subsistence of the marriage. She did her own thing while he did his. He concluded by saying that he stayed into
the marriage for 18 years just for the sake of the couple's two children.
The
plaintiff called his accountant Mr Stanford Gwanzura – “Gwanzura” to testify in
support of his story. Gwanzura has been
a chartered accountant for over 20 years and runs an accounting firm called
S.G. & Company.
The
circumstances in which he met the plaintiff were that the plaintiff was dealing
with his clients who owned Binga Wild Life Safaris. In order to protect the interests of his
clients Gwanzura encouraged the plaintiff to set up the Raz Dube Family Trust. He alleged that the setting up of the trust
would also benefit the plaintiff as follows:
- Minimization
of income tax;
- Less
interference in the event of the death of the settlor;
- To ensure
that in the event of the death of both husband and wife the children could
be looked after by the trust;
- The settlor
would get instant advice from the trustees who are normally professionals;
- It was also
easy to attract other investors as shareholders because of its security id
est being run by professionals;
- It also
minimized death duties; and
- At death
ones estate remains intact. It is
not fragmented.
The deed of trust was set up for estate
planning purposes. Hence in the event of
the plaintiff's death the defendant would be appointed settlor in his
place. He explained fully in 1999 to
both plaintiff and the defendant the nature and purpose of the trust and how it
works when they purchased Learmonth (Pvt) Ltd which was to be the holding
company for the trust. It was the
holding company which was to do the trading as the trust itself was not allowed
to trade. RAZ Family Trust had a 100% share
holding in Learmonth (Pvt)Ltd whose directors were Rezimosi Dube and Sandra
Farai Dube in 1999 but were joined by Stanford Gwanzura in 2002. They appended their signatures on the share
certificate as directors on 6 April 1999 in Gwanzura's office.
The
first asset for the trust was a donation from the settlor in the sum of $5
000. Presently the trust holds two
assets namely Learmonth Investment (Pvt) Ltd and the matrimonial home of the
couple 499 Accacia Crescent. The house
was registered under the family trust on the advice of Gwanzura.
The witness detailed the involvement of the
plaintiff in Learmonth Investments. It
was his evidence that plaintiff initially got 40% for which he did not have
cash. He, however, had a boat trading
licence while Gwanzura's clients had a boat, mini bus and a truck but had no
trading licence. He then negotiated that
the plaintiff be given 40% of the company in exchange of the trading
licence. The balance was put on a loan
account.
According to Gwanzura the balance was supposed
to have been paid through trading. It
was, however, never paid as it was written off because the plaintiff brought
value to Gwanzura's clients. He did not
disclose to the plaintiff that the balance had been written off as the
plaintiff did not even know how much value he had brought to Gwanzura's
clients. His clients who owned shares in
Binga Wild Life Safaris are Gail Christine van Jaarsvedlt, Kevin Richard van
Jaarsvedlt and Harley Knoth. They became
nervous about keeping businesses in this country. At the height of farm invasions during the
years 2001 and 2002 they thought businesses would not be spared and started
making arrangements outside the country.
Harley Knoth actually lost a farm in Chiredzi. They sold most of their assets and retained
only three companies. Gwanzura persuaded
them not to liquidate Binga Wild Life Safaris.
Thereafter he persuaded the plaintiff to make an offer in respect of
Binga Wild Life Safaris. He, too, was
nervous but only did so after being assured by Gwanzura that he (Gwanzura)
would remain the accountant of the company.
[His clients finally left the country as the tourism industry in
Victoria Falls was no longer
viable]. He persuaded the plaintiff by
assuring him that he would assist the business by injecting funds on a monthly
basis into it for running it. He did so
from 2002 up to 2007 and filed of record a document reflecting funds injected
into Binga Wild Life Safaris by Vivstan (Private) Limited which is a company
owned by his trust S. Gwanzura Family Trust owning 50% of Learmonth Investments
(Pvt) Ltd after the parties had agreed at an Annual General Meeting of
Learnmonth Investments (Private) Limited that Binga Wild Life Safaris and Mama
Africa were unable to repay the funds injected into them by Vivstan (Private)
Limited it should take 50% shareholding in Learmonth. Gwanzura told the court that his involvement
in the plaintiff's business was investment.
Gwanzura found it very difficult to
understand the suggestion that defendant had not met him in 1999 because she
was employed by his clients in one of their companies as a shop manager from 9
January 1999 on the strength that plaintiff was a director in Binga Wild Life
Safaris. He emphasized that defendant
had never been a shareholder in Binga Wild Life Safaris, Delicacy and
Learmonth.
Finally, the witness said he was aware of
the case wherein defendant allegedly tempered with company documents which was
pending in the courts and the trial had been scheduled for 10 June 2009. The tempered documents reflect Gwanzura and
plaintiff having been resigned from the holding company and appointed the son
who was a minor as a director. That was
not proper as directors can only be removed through death, resignation or
shareholders removing them. But none of
that happened in this case. Gwanzura
claimed to have warned plaintiff about under invoicing and externalizing of
funds. He made sure that the plaintiff
did not use the money from the under invoicing for his personal use. The externalized funds had to come back in
the form of assets such as boats and motor vehicles which were bought outside
the country and brought in. Building
materials were also brought into the country.
The
witness was cross-examined but was not shaken.
He said the suggestion that defendant only met him in 2004 could not
possibly be true unless she was denying that she had been employed as a shop
manager by his clients from 9 January 1999.
It emerged in cross examination that
although the defendant had documents to reflect that plaintiff and Gwanzura had
resigned she had not tempered with the shareholding.
In
relation to the trust deed the witness was asked why he did not have an input
from the defendant. His reply was that
there was no input from her because she was just an income beneficiary the
input only came from the settlor who is the plaintiff. He did not consult beneficiaries when setting
up deeds of trust but only consulted settlors.
He
emphasized the three trustees were in control of the trust. To that extent, therefore, it was not
possible for one trustee to dispose of trust property without the consent of
the other trustees. The property can
only be disposed of for the benefit of the family. He went on to tell the court that the two
children were the capital beneficials of the trust as the property belongs to
them in the end.
When
asked in re-examination, to explain why he only took instructions from the
settlor his explanation was that when forming a trust the holder of the assets
is the settlor who donated those assets into the trust for his benefit and the
benefit of his loved ones. He always
looked at it as an open will of the settlor.
The plaintiff donated $5 000 Zimbabwe dollars and 40% of Binga Wild Life
Safaris shareholding. The plaintiff's
case was closed after the evidence of this witness.
Defendant's case
The
defendant had no witnesses to call in support of her story which was as
follows. She told the court that she was
39 years old and had been married to the plaintiff for 18 years having been
married on 9 August 1991 at Marondera Magistrates' Court. It was her evidence that she did not agree
with the testimony of the plaintiff in many respects which she needed to
correct. She alleged that there was no
truth in the suggestion that they did not work together as a family throughout
the subsistence of the marriage which was 17 years old at the time summons was
issued. Her assertion was that plaintiff
was in fact the head of the family. They
planned things together and acquired property together. Their matrimonial estate was a joint
estate. When they got married in 1991
they did not have businesses and matrimonial home but these were acquired
during the subsistence of the marriage.
Matrimonial house
She
testified that she regarded the house at number 499 Accacia Crescent – “the
house” as their matrimonial home as they built it together during the
subsistence of the marriage.
There
is a cottage on the property which was constructed between 1995 and 1997. She contributed towards the construction of
the cottage. She was a cross border
trader and was running a company known as Mosi Flora Florist and Boutique. She was also employed by the United Touring
Company. The plaintiff was working in
the casino as a croupier. She was
therefore bringing in more income than plaintiff.
It
was her evidence that the main house was built in stages but she could not
recall when the slab was done but proper construction took place in 2004. During that period she was running the
chicken project supplying chicken and eggs to most hotels in Victoria Falls
such as Elephant Hills, Victoria Falls Hotel and Victoria Falls Safari
Lodge. She also supplied the Spar Kasane
in Botswana and various supermarkets in Victoria Falls and Hwange with eggs.
She
alleged that her businesses were doing very well and claimed that she gave the
proceeds therefrom to her husband. The
two then sat down as husband and wife to decide on what to do with the money
some of which was channeled towards the construction of the house. The money was used to buy plumbing material
and cement from Victoria Falls. Tiles,
bath tabs and sinks were bought from South Africa. Some of the money was used for fuel.
She
dismissed the suggestion by plaintiff that all her money was used to buy
clothing and other luxuries as sheer exaggeration.
As
far as she was concerned the house was matrimonial property not trust
property. She alleged that she had been
contributing towards the house for all her working life. She complained that plaintiff should have
consulted her before registering the house under the name of the trust since
the house was jointly owned. She should
have been told. She was allegedly
shocked and believed that plaintiff had something sinister when he registered
the house under a trust deed without her knowledge. She was not even aware as at 30 March 2008
that the house was registered under the trust deed. She then suggested that upon divorce either
(1) she be allowed to stay in the house with the children; or (2) the house be
sold and each party receives 50% of the net proceeds.
The
defendant told the court that she did all her usual domestic chores. She prepared food for her husband. They had a maid who she supervised. The maid used to prepare lunch for him but
defendant always prepared supper for him.
Maintenance
Defendant
was claiming a total of $1 290,00 as personal maintenance which she alleged was
in fact inadequate to meet all her requirements. She said the amount did not
include transport and clothing. She said
she also needed to support her parents whom plaintiff had been looking after
but had since stopped due to these divorce proceedings.
She
averred that plaintiff looked after her financial needs as his wife. It was not proper for him to now say she does
not deserve any maintenance more so when she looked after him when he did not
have any money during 1997 and 1998 when he was servicing his loan after going
into business with Van Jaarsvedlt.
She
painted a good picture of how plaintiff used to look after her. He gave her whatever she wanted. Whenever she wanted something she would ask
for it and would get it.
She
told the court that she and her husband went for holiday on several
occasions. They toured Europe in January
2006. In August 2007 they went on
shopping trips to Dubai and he gave her US$2 000 to spend. They visited South Africa several times and
also Namibia. All visits and tours and
spending money were sponsored by the plaintiff.
She
complained that she was now living in a 2 roomed house which was not the type
of accommodation she used to enjoy with her husband. She had been reduced in
status and the $1 290 although inadequate would be of some assistance in
maintaining the standard of life she had been accustomed to. The figure was broken down like this.
Breakdown of maintenance
expenses for dependent
USD
Maid $60,00
Gardner $60,00
Security guard $200,00
Groceries $200,00
DSTV subscription $70,00
Airtime $100,00
Upkeep
allowance (pedicure, manicure,
massage, hair dressing) $100,00
Rent $500,00
Total $1 290,00
She
contended that if the plaintiff could pay her the above amount and allow her to
run the poultry project at Victoria Falls Airport, she would resuscitate her
businesses which had closed down. The
$500 for rent would be sufficient to find suitable accommodation for her and
the two children.
The Trust
The
defendant complained bitterly about the Raz Dube Family Trust – “the
trust”. In the first place she alleged
that she was not consulted when the family trust was initiated. Gwanzura did not explain the trust to her in
1999 which she felt was no way in her favour.
It is to benefit the settlor and the children. She had never received any income from the
trust as an income beneficiary of the trust.
Secondly
she said plaintiff was a self confessed externalizer of money by doctoring
figures, hence her lack of faith in the figures coming from the company.
Thirdly
Stanford Gwanzura who is one of the trustees was involved in the formation of
the trust and is also a business partner with plaintiff. Both have interests in the company and
accordingly the trust is biased against her.
In the event of a divorce the settlor can change the trust deed to
whatever he wants. In that event she
would not get any benefit as an income beneficiary. She alleged that she would never be given the
correct figures reflecting the company performance. Her expectation was a once off payment to
avoid her going back to plaintiff.
Companies
Rain Forest Chicken Project
Defendant's
testimony was that she started running that project in 2003 and had made
structural improvements to it. She built
a kitchen and eating area for the workers.
She furnished the servants quarters.
She acknowledged the fact that it was the plaintiff who had started
building it. When she started running
the project the plaintiff allegedly gave her certain documents and said the
project was under Learmonth Investments as reflected in the lease agreement
entered into with Hwange Rural District Council filed of record at page 19 of
her bundle of documents. She also filed
a letter by the Chief Executive officer of Hwange Rural District Council dated
19 June 2000 addressed to the Ministry of Local Government, Rural and Urban Development
requesting the lease document for WILTI Private Limited to be amended to
Learmonth Investments (Pvt) Ltd.
She
denied that Learmonth was a holding company for other companies. As far as she
was concerned it was the company for her chicken project which she said was the
only income generating and viable project at the moment and would like to
continue running it. She offered to
reimburse the US$600 paid by plaintiff to Hwange Rural District Council.
Mosi
Flora Florist & Boutique (Private) Limited was not operational. She alleged that she had lost a lot of
equipment to thieves who had broken in twice.
The rentals had also shot up. She
felt insecure because of the burglaries to her business. She stopped running the kitchen known as Kwa
Mai Raz because socially she could not live in Victoria Falls. A friend of hers was now running it.
Binga Wild Life Safaris and Delicacy Investments (Private) Limited
Defendant
told the court that she was entitled to a share in each of the above companies
because of the contribution she made.
She allegedly helped him to set up the businesses. Her contribution was to ensure that food was
available at the table and she clothed everybody in the family. Further when she first met the Van
Jaarsveldts on the boat cruise belonging to her employers United Touring
Company she promised them that she would help her husband to run Binga Wild
Life Safaris. It is on that basis that
she felt she was entitled to a share in that business.
Under
cross-examination she told the court that she was an independent person who had
been in business well before she was married to the plaintiff. Her business was cross border trading and a
hair salon. She contended that cross
border trading was a profitable business which she was still engaged in and
alleged that the proceeds from there were ploughed into the construction of the
matrimonial home. When asked why she
wanted money for personal maintenance when cross border business was profitable
she said plaintiff used to give her money when she was doing it she saw no
reason why he should not continue to do so now.
She
denied that her husband did not approve of her cross border trips. She also denied that her husband did not like
her to work for United Touring Company.
It
was her evidence under cross-examination that Mosi Flora Florist and Boutique
and the cross border business had the same bank account while Kwa Mai Raz and
the Rain Forest Chicken business had no bank accounts. The plaintiff was not a signatory to the bank
account although she claimed the businesses belong to the joint estate. Her explanation for that was that plaintiff
did not make an issue of that as long as the money was accounted for.
When
asked to produce proof for payment towards the construction of the matrimonial
home she merely said she gave money to her husband and went on to state that
she was shocked to hear her husband telling the court that they ran separate
estates. When it was put to her that it
was not true that she was shocked because the husband said so from the onset as
reflected in paragraph 8 of his declaration her response was that he was merely
trying to run away from the idea that the couple acquired assets together. Moreover, when they got married they never
discussed whether or not they were going to run businesses separately. That was never an issue. They did not have any assets before they got
married. All assets were acquired during
the 18 years of marriage.
Although
she admitted that plaintiff was not made director of any of her companies and
was not a signatory of any of her accounts and neither did she sign on any of
his accounts she still claimed that they ran joint estates and he was happy
with that type of arrangement. It was,
however, clear that she had no shares in the plaintiff's companies and neither
did he hold shares in her companies.
She
was unable to furnish a satisfactory explanation why her companies did not use
S. G. & Company (Pvt) Ltd as their accountant if they ran a joint estate
because the companies ran by the plaintiff used that accounting firm.
She
admitted that Witli (Pvt) Ltd ceded all its rights, title and interest in lease
number CL 51492 at Lupinyu Township, Hwange District to Learmonth Investments
(Private) Limited in which she held no shares.
She contradicted herself on whether or not the trust was explained to
her. Initially she had said the trust
was only explained in 2004 but changed in cross-examination and denied that it
was ever explained to her.
After
her testimony defendant had no witnesses to call and closed her case.
Personal maintenance
The
court finds as a fact that the defendant is an independent modern business
woman who has been in business before she got married to the plaintiff. She continued with her businesses during the
subsistence of the marriage. She is more
sophisticated than the plaintiff as she is a holder of a Bachelor of Arts
degree. It was her evidence that her
businesses were doing so well that she raised enough money to contribute in the
region of 50% towards the construction of the matrimonial house. She no longer has small children to look
after. Both children are at colleges
i.e. Falcon and Girls College respectively.
She and the plaintiff are not very old.
She is 41 years while plaintiff if 47 years. She is able to re-marry after the
divorce. As was stated in Chiomba v Chiomba 1992(2) ZLR 197 at 197F-198B.
“Marriage
can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of
maintenance after the marriage has been dissolved.
Young
women who worked before marriage are able to work and support themselves after
divorce will not be awarded maintenance if they have no young children. If a young woman has given up work she will
be awarded short term maintenance to take her over until she finds a new job.
Middle
aged women who have devoted themselves for years to the management of the
household and care of the children should be given “rehabilitative” maintenance
for a period long enough to enable them to be trained or retrained for a job or
profession.
Elderly
women who have been married for a long time and are too old to now go out and
earn a living and are unlikely to remarry will require permanent maintenance.”
The
defendant in the present case is a middle aged independent modern business
woman who at one time ran no less than four flourishing businesses. She admitted that two were still
flourishing. The plaintiff has taken the
responsibility of all the children's education requirements and other related
expenses. In the result it seems to me
that the defendant does not require any personal maintenance for herself.
Joint estate
What
is common ground from the evidence adduced in this court is that the defendant
ran four businesses during the course of the marriage namely (a) the cross
border trading; (b) Kwa Mai Raz restaurant; (c) The Rain Forest Chicken
Project; and (d) Mosi Flora Florist and Boutique. The plaintiff runs Binga Wild Life Safaris
trading as Dingani Tours and Delicacy Investments trading as Mama Africa
Restaurant. Learmonth Investments
(Private) Limited was introduced into the picture and family for purposes of
the trust and both plaintiff and defendant appeared as directors in 1999.
It
is common cause that the plaintiff assisted defendant in setting up the chicken
project at Victoria Falls Airport despite the fact that she was an independent
modern business woman. He supported all
her businesses. He gave her foreign
currency for her cross border purchases.
He helped to equip her restaurant.
He ordered one of his companies to buy chickens and chicken products
from her chicken project.
It
is clear that the parties went into serious business simultaneously both
leaving formal employment. They each ran
their companies separately. Neither of
the parties was a shareholder in the other's companies. The plaintiff was not a signatory to any of
the company accounts of companies ran by defendant and neither was she to those
ran by plaintiff. She did not even make
him a director to any of her companies.
The plaintiff, however, in 2004 instructed his accountants to make her
an honorary director to both his companies – Delicacy Investments and Binga
Wild Life Safaris. The sole reason for
doing so was to save their marriage.
There was no other reason for so doing other than make the defendant
feel secure. The plaintiff's evidence
was uncontroverted in that regard.
The
parties' marriage seems to have had problems at an early stage because when the
man attempted to assert his authority as the head of the family by telling her
to stop some of her activities she told him in his face that she had gone to
Victoria Falls to work and make money and not to be told what to do by a
man. The plaintiff had suggested that
she should give up her job at United Touring Company. The plaintiff did not approve of her cross
border trading but had to accept it. She
was at liberty to choose her own accountant for her businesses despite the fact
that there was a family accountant.
While
defendant would want companies run by plaintiff to be declared part of the joint
estate she does not want the same to happen to those she runs. Apart from her honorary status as a director
in the companies of the plaintiff she had no direct involvement or
participation in the decision making process.
She had no idea of what plaintiff was doing except what he told
her. There would be no basis for
treating the plaintiff's two companies as part of the joint estate of the
parties in the light of the evidence before the court. What is just and equitable is for the
plaintiff to keep what he worked for and for the defendant to do the same. The Rain Forest Chicken project belonged to
the plaintiff although he had allowed the defendant to use it during the
subsistence of the marriage. It must go
back to the companies under the direct control of the plaintiff.
The matrimonial house
The
parties own house number 499 Accacia Crescent, Victoria Falls which was built
during the subsistence of their marriage.
They started living on the property when there was only a cottage. The main house was constructed while they
lived on the property. The main house is
a double story building and has all the features of a modern house. The parties have lived on the property for
the entire 18 years of their marriage.
They each consider it their matrimonial home.
Their
point of disagreement is on the level of contribution each one made towards the
construction of the house. The
plaintiff's stance was that the defendant made no contribution at all towards
its construction. He challenged her to
produce proof of her contribution.
Defendant
on the other hand told the court that using money realized from her businesses
she purchased materials such as tiles, bath tubs, cement, special bricks and
many other things. While plaintiff would
want this court to believe that he constructed it single handedly he also did
not produce proof to show that that was the case.
Apart
from the direct contribution that she made there was of course indirect
contribution made by her. When asked by
the court how much he was prepared to offer her for her contribution he came up
with 20%. Although the property had
initially been registered in his name before it was transferred to the trust
his 20% is far from being fair and equitable.
It seems to me, that there is no reason to disentitle her a 50% share in
the property. I accordingly hold that
the defendant is entitled to a 50% share in the property known as 499 Acacia
Crescent, Victoria Falls.
Having
made a finding that the matrimonial house was jointly built by the parties and
belongs to them jointly it follows that before it was transferred to the trust
both parties had to be in agreement to do so.
The defendant told this court that she was not even consulted when that
was being done let alone being in agreement.
The plaintiff's attitude was that he did not need to consult her or seek
her consent as he felt she had nothing to do with it. He fell into error.
The
court finds that the plaintiff transferred to the trust an asset which was
jointly built and jointly owned by both parties unilaterally. It ought to be transferred out of the trust
so that the parties can receive their respective 50% shares in it.
The Trust
In
the light of the finding that the matrimonial home should be transferred out of
the trust the assets remain in it are those previously owned by the plaintiff
which the court has held that he can keep.
The
defendant's testimony was that the trust did not benefit her in any way. She even believed that it had been set up to
disinherit her as she had not been consulted when the selection of trustees was
being made. One of the trustees was
Stanford Gwanzura a business associate of the plaintiff and his
accountant. She said she could not rely
on the benevolence of such trustee to protect her interests more so when as
settlor the plaintiff said he could dissolve the trust as and when he
pleased. She complained that in order to
disentitle her of the matrimonial assets she was made an income beneficiary but
had never received any income from the trust since its formation in 1999
despite the fact that the companies had been generating externalized funds.
In
the light of the foregoing it seems to me that plaintiff would be at liberty to
continue with the trust after transferring out of it the matrimonial home
number 499 Accacia Crescent, Victoria Falls or after paying her 50% share of
the property.
In
the result the order of this court is as follows:-
- The consent paper signed by both parties on
29 may 2009 becomes an order of this court, in its entirety;
- The matrimonial home house number 499
Accacia Crescent, Victoria Falls shall be transferred out of the trust and
each party shall be awarded a 50% share in it with any of the parties
being allowed to buy out the other within 3 months of the date of this
order;
- Each party shall keep its companies and
businesses id est plaintiff
shall keep Learmonth Investments, Binga Wild Life Safaris trading as
Dingani Tours and Delicacy Investments trading as Mama Africa restaurant
and the Rain Forest Chicken project while defendant shall keep Kwa Mai Raz
Restaurant, Mosi Flora Florist and Boutique and her cross border trading;
- The plaintiff shall keep the trust after
transferring out of it matrimonial house number 499 Accacia Crescent,
Victoria Falls for the parties to receive their 50% shares as stipulated
in paragraph 2 supra;
- There shall be no order for personal
maintenance for the defendant; and
- Each party shall bear its own costs.
Lazarus & Sarif plaintiff's legal practitioners
Mtombeni, Mukwesha, Muzawazi & Associates,
defendant's legal practitioners