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 the 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 shortlived as the tourism business hit a snag when tourist arrivals went down at the height of farm invasions. His partners, who were white, became insecure. Through the assistance of Stanford 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. Stanford Gwanzura did so from the year 2002 up to the year 2007 injecting in excess of 2.5 billion Zimbabwe dollars. The plaintiff did not know where Stanford Gwanzura got the funds from. On realizing that it was not possible for him to come out of the debt owed to Stanford Gwanzura he held a meeting with him whereat it was agreed that Vivstan (Pvt) Ltd, through the funds it had injected, could take 50% shareholding 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 Stanford 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 shareholding in Learmonth Investments (Pvt) Ltd which is the holder of 100% shareholding in Delicacy Investments (Pvt) Ltd and Binga Wildlife Safaris (Pvt) Ltd. These two companies generated foreign currency.
The plaintiff stressed that the defendant was never involved in those companies. She never worked for them and was not a shareholder.
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 WildLife 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.
The 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. The defendant was the principal Director. He contended that although the 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 the defendant had tempered with documents relating to Learmonth Investments (Private) Limited. The CR14 had been altered to reflect that he had resigned from Learmonth Investments (Private) Limited 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….,.
The 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 agree with…,.
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 the 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 Trust
The defendant complained bitterly about the Raz Dube Family Trust. In the first place, she alleged that she was not consulted when the family trust was initiated. Stanford 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 the 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 the 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 the plaintiff.
Companies
Rain Forest Chicken Project
The 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 (Pvt) Ltd as reflected in the lease agreement entered into with Hwange Rural District Council filed of record…,. 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 Investments (Pvt) Ltd 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 the 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 Wildlife Safaris and Delicacy Investments (Private) Limited
The 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…,. 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 the 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 the plaintiff was not made a 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 CL51492 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, the defendant had no witnesses to call and closed her case….,.
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 Wildlife Safaris (Pvt) Ltd 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 the plaintiff and the defendant appeared as Directors in 1999. It is common cause that the plaintiff assisted the 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 the defendant and neither was she to those ran by the 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 Wildlife Safaris (Pvt) Ltd. 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 the defendant would want the companies run by the 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 the 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….,.
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, moreso 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 the 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:-
1. The consent paper signed by both parties on 29 May 2009 becomes an order of this court, in its entirety;
2. 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;
3. Each party shall keep its companies and businesses id est plaintiff shall keep Learmonth Investments, Binga Wildlife Safaris trading as Dingani Tours and Delicacy Investments trading as Mama Africa Restaurant and the Rain Forest Chicken project while the defendant shall keep Kwa Mai Raz Restaurant, Mosi Flora Florist and Boutique and her cross border trading;
4. 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;
5. …,.;
6. Each party shall bear its own costs.
