NDOU
J: This
is an opposed divorce matter, in which, divorce is sought on grounds
of irretrievable break-down of the marriage.
The parties were married to
each other on 20 September 1996 and the marriage still subsists.
There is one minor child of the marriage, namely, Simpson Nqobizitha
Sibanda, a boy born on 11 March 1996.
The parties agreed to a decree
for divorce being granted at the commencement of the trial.
Also, at the commencement of
the trial the parties agreed to settle a number of issues relating to
the distribution, sharing or apportionment of some movable assets.
The agreement was captured in the memorandum signed by the parties in
the following terms:
“Now
therefore, the parties hereby agree as follows:
1.
That the terms of this agreement, may be incorporated in the final
order to be made by this honourable court in respect of those matters
where the parties have reached agreement;
2.
The parties have agreed:-
2.1 That the marriage between
them has irretrievably broken down to such an extent that there are
no reasonable prospects for the restoration of a normal marriage
relationship between them;
2.2 That the plaintiff shall
have custody of the minor child of their marriage Simpson Nqobizitha
Sibanda (born 11 March 1996);
2.3 That the defendant shall
have reasonable access to the minor child;
2.4 That the maintenance of
the child shall be in accordance with the order already in existence.
3. The plaintiff shall have
the following motor vehicles:
3.1 (a) Toyota Prado (Runner).
(b) Peugeot 406 registration
number AAA929 (non-runner).
(c) Isuzu Trooper
(non-runner).
(d) Toyota Dyna (runner).
3.2 The defendant shall have
the following motor vehicles:
(a) Isuzu KB 280.
(b) Mercedes Benz E320.
(c) Isuzu Bighorn.
4. That in respect of the
other movable assets:
4.1 The plaintiff shall have
the following property:
(a) 1 x fitted oven (kitchen).
(b) 1 x fitted stove
(kitchen).
(c) 1 x Daewoo frost free
fridge.
(d) 1 x deep freezer.
(e) Kitchen utensils in her
custody.
(f) 1 x Royal lounge suite
(pink with soft fabric).
(g) 1 x set of coffee table.
(h) 2 x lamp tables.
(i) 2 x brass tables.
(j) 1 x oak corner cabinet.
(k) 1 x Royal bedroom suite.
(l) 1 x double bed and
mattress (from cottage).
(m) 1 x Hi-fi system.
(n) 1 x television set.
(o) 1 x oak bar.
(p) Wall pictures and
ornaments.
(q) 1 x microwave.
(r) 1 x Vivid decoder.
(s) 1 x lamp shade.
(t) 1 x bread maker.
(u) 1 x deep frier.
(v) 1 x child's bedroom
suite.
(w) 1 x child's television
set.
(x) 1 x DVD player.
(y) 1 x set of green garden
chairs.
(z) Curtains in bar.
(aa) [deleted]
(bb) 2 x water tanks.
(cc) 1 x brick making machine.
(dd) 1 x water bowser on
trailer.
(ee) Wooden windows.
(ff) Half of the scaffoldings.
(gg) Half of the french
windows.
(hh) 1 x green lister engine.
(ii) Four wheel trailer.
(jj) 1 x small concrete mixer.
(kk) 1 x coal stove.
(ll) Caravan.
(mm) 1 x Ferguson tractor.
(nn) Steel tables with vices.
(oo) Blue water pump.
4.2 The defendant shall have
the following property:-
(a) 1 x small CD Hi-fi.
(b) 1 x pink leather suite.
(c) 1 x set coffee table (5
pieces).
(d) 6 bar stools.
(e) 10 piece Oak dining room
suite.
(f) 1 x room divider.
(g) 1 x double bedroom suite.
(h) 1 x bed.
(i) 1 x brass tables (5
pieces).
(j) 1 x home theatre.
(k) 1 x Sansui television set.
(l) 1 x Wiztech decoder.
(m) 1 x Elset decoder.
(n) Persian rugs.
(o) 1 x kist.
(p) 1 x 7 piece garden set.
(q) 1 x 18 inch LCD television
set.
(r) Bar fridge.
(s) Curtains presently in
defendant's custody.
(t) 1 x brick making machine.
(u) Half of scaffolding
material.
(v) Half of french doors.
(w) 1 x heavy duty concrete
mixer.
(x) PVC pipes.
(y) 1 x Land in tractor and
trailer.
(z) 1 x water cart.
(aa) 1 x grinding mill.
(bb) 1 x blue solar cooker.
(cc) Wooden window frames.
(dd) 1 x Mercedes Benz E230
wreck.
(ee) 1 x Ford truck engine.
(ff) 3 x wheelbarrows.
(gg) 1 x 2 wheel trailer.
(hh) 1 x 4 wheel trailer.
(ii) Old tyres.
(jj) Wrecks of petrol
dispensing machines.
5. The parties failed to reach
agreement on the following matters which they hereby submit to trial
by this honourable court:
5.1 Whether the Sandford
leather brown lounge suite should be given to the plaintiff or the
defendant;
5.2 The number of cattle which
belong to the matrimonial estate and how they should be distributed;
5.3 Whether the plaintiff is
entitled to any share in respect of the value of the improvements on
Inyathi Farm;
5.4 [deleted]
5.5 How should the following
immovable properties be distributed between the parties:
(a) Plot 461 Old Esigodini
Road, Manningdale, Bulawayo;
(b) The remainder of Stand 615
Bulawayo Township, also known as 50 Josiah Tongogara Avenue,
Bulawayo;
(c) Number 15 Kilmanock Road,
Hillcrest, Bulawayo;
(d) Stand 12438 Bulawayo
Township of Bulawayo Township Lands also known as Number 9 Goodwood
Road, Woodlands, Bulawayo.
5.6 Whether the plaintiff is
entitled to any shares in Simpson Electrical (Private) Limited and,
if so, the percentage thereof;
5.7 Whether the plaintiff is
entitled to a share in the immovable property Stand 15053 Bulawayo
Township situate in the District of Bulawayo which is owned by
Muntomuhle Investments (Private) Limited.”
During the trial issue 5.1 was
disposed of as the defendant no longer wants to claim the Sandford
Leather brown lounge suite which must necessarily be awarded to the
plaintiff.
The
approach to the question of distribution of assets upon divorce is
set out in the celebrated case of Takafuma
& Takafuma
1994 (2) ZLR 103 (S) at 106B-E:
“The
duty of a court in terms of section 7 of the Matrimonial Causes Act
involves the exercise of a considerable discretion but it is a
discretion which must be exercised judicially. The court does not
simply lump all the property together and then hand it out as fair a
way as possible. It must begin, I would suggest, by sorting out the
property into three lost which I will term 'his', 'hers', and
'theirs'. Then it will concentrate on the third lot marked
'theirs'. It will apportion this lot using the criteria set out
in section 7(3) of the Act. Then it will allocate to the husband the
items marked 'his' plus the appropriate share of the items marked
'theirs' and the same to the wife.
That is the first stage.
Next it will look at the
overall result, again applying the criteria set out in section 7(3)
and consider whether the objective has been achieved, namely, 'as
far as is reasonable and practicable and having regard to their
conduct, it just to do so, to place the spouses in the position they
would have been in had a normal marriage relationship continued …'
Only at that stage I would
suggest should the court consider taking away from one or other of
the spouses which is actually 'his' or 'hers'.”
Further
in Gonye
v Gonye
SC15-09 the Supreme Court further clarified the meaning of section
7(1) in the following terms:-
“It
is important to note that a
court has an extremely wide discretion to exercise regarding
the granting of an order for the division, apportionment or
distribution of the assets of the spouses in divorce proceedings.
Section 7(1) of the Act provides that the court may make or order
with regard to the division, apportionment or distribution of “the
assets of the spouses including an order that any assets be
transferred from one spouse to the other.”
(Emphasis added)
The rights claimed by the
spouses under section 7(1) of the Act are dependent upon the exercise
by the court of the broad discretion.
The terms used are the 'assets
of the spouses 'and not 'matrimonial property.'
It
is important to bear in mind the concept used because the adoption of
the
concept 'matrimonial property' often leads to the erroneous view
that assets acquired by one spouse before marriage or when the
parties are on separation should be excluded from the division,
apportionment or distribution exercise. The concept 'the assets of
the spouse' is clearly intended to have assets owned by the spouses
individually (his or hers) or jointly (theirs) at the time of the
dissolution of the marriage by the court considered when an order is
made with regard to the division, apportionment or distribution of
such assets.
To
hold that as a matter of principle assets acquired by a spouse during
the period of separation are to be excluded from the division,
apportionment or distribution a court is required to make under
section 7(1) of the Act is to introduce an unnecessary fetter to a
very broad discretion, on the proper exercise of which the rights of
the parties depend.
It
must always be borne in mind that section 7(4) of the Act requires
the court in making an order regarding the division, apportionment or
distribution of the assets of the spouses and therefore granting
rights to one spouse over the assets of the other, to have regard to
all the circumstances of the case. The
object of the exercise must be to place the spouses in the position
they would have been had a normal marriage relationship continued
between them.
As
was pointed out by Lord DENNING
MR in Watchel
v Watchel
[1973] 3 ALL ER 829 at p 842:
'In
all these cases it is necessary at the end to view the situation
broadly and see if the proposals meet the justice of the case. Each
case must depend on its own fact'.
See
Mangwendeza
v Mangwendeza
2007 (1) ZLR 216 (H).”
With this background I now
propose to deal with the outstanding issues in turn.
(a)
Cattle at the farm in Inyathi
It is the plaintiff's case
that at the time the parties separated there were approximately 250
herd of cattle at the Shangani Farm (which was rented) and the
Inyathi Farm.
The stock record book produced
during the trial showed that the cattle belonged to the parties or
were at best registered under the name of the defendant. It is
beyond dispute that some of the cattle were acquired through the
disposal of a truck. The truck was bought in the United Kingdom in
the name of the defendant's daughter (from a previous marriage) one
Nomalanga.
The plaintiff's evidence is
that this was done for convenience as Nomalanga was resident in the
United Kingdom. She said the resources used to buy the truck were
from the parties. She said that explains why the cattle were not
registered in the names of Nomalanga. The plaintiff had facts,
figures, dates and explanation as to where the cattle were acquired,
the disposal of some of the cattle, the multiplication of the cattle
and their subsequent removal from the Shangani Farm to Inyathi Farm.
She
testified that when they started renting the Shangani Farm, she used
to go there almost every Saturday alternating with the defendant to
attend to the cattle. Even when they sold the cattle, they would use
the proceeds for family needs. She was also involved in the
relocation of the cattle from Shangani to Inyathi Farm.
The parties were both involved
in the relocation and the construction of cattle pens and water
tanks. They also purchased other cows from some farms in the
neighbourhood. The money for such purchases came from the family
business.
Before
the parties separated she said that the defendant never told her of
his children having been bought cattle on the farm. She said the
defendant only raised this issue after their separation in 2007 and
this issue was informed by the divorce proceedings. According to her
assessment from the records the head count of the cattle was 250.
When she checked on 15 January 2010 there were only 95 head of cattle
left at Inyathi Farm. When they left Shangani Farm, they left behind
22 head of cattle which had become too wild to transport. Some of
the cattle were collected by the defendant's mistress MaNdlovu.
The plaintiff has credibly
established that these cattle are assets of the parties as husband
and wife. She is therefore entitled to a share.
She has also shown that when
their marriage started having serious challenges, the defendant
started disposing the cattle to the extent that he allowed his
mistress MaNdlovu to have a free hand to dispose the cattle.
I find all the above testimony
of the plaintiff credible.
Because of the role she played
in the acquisition and rearing of the cattle evinced above, I
consider that an award of 50% of the cattle as fair and reasonable.
I find that Nomalanga Sibanda
was being untruthful when she alleged that she bought the cattle
through her father. She was merely being used by the defendant to
defeat the just claim by the plaintiff. She conceded that she was
not sure about most aspects as the acquisition and disposal of the
cattle. She did not even know how many cattle were purchased. The
defendant would slaughter or sell the cattle without her knowledge.
Even MaNdlovu would collect the cattle and sell them without her
knowledge. This is a clear indication that she did not own cattle.
I propose to share equally the 95 head of cattle which are still on
the farm plus progeny if any.
(b)
Claim: Value of improvements on Inyathi Farm
In this instance, the
plaintiff is claiming improvements on the Inyathi Farm. She is not
claiming the ground or “vacant” land which belongs to the
Government of Zimbabwe.
It
is trite that the measure of the compensation would be the value by
which the property (the farm) was enhanced or the actual amount spent
on the materials used in putting up the structures, whichever of the
two is lesser – Van der Merwe & de Waal – The
Law of Things and Servitudes, page
95.
In
casu,
it is beyond dispute that as a result of the structures put up by the
joint effort of the parties the Inyathi Farm has been improved. The
court should determine the value of the “add on” structures and
share the same between the parties. Looking at the credible
testimony of the role played by the parties I am satisfied that the
value of the improvements should be shared equally.
(c)
Sharing of the immovable properties
These
properties have to be shared in terms of section 7 of the Matrimonial
Causes Act, supra, and the principles articulated in Takafuma v
Takafuma, supra; Gonye v Gonye, supra, and Mangwendeza v Mangwendeza,
supra.
(i)
Stand 461 Essexvale Road, Manningdale, Bulawayo
This property is registered in
the name of the plaintiff.
According
to evidence, this property is not in a prime residential area. The
original Stand was acquired partially with some proceeds from some
property that plaintiff inherited from her parents. She also
received some assistance from her children in the development of the
property. The property is not complete as evinced by two estate
evaluators called by the parties i.e. Oswald Nyakunika and Mpumelelo
Ndlovu. The defendant contributed some floor tiles which he later
peeled off and the police had to be called to stop him from
vandalizing the property in the process. Both parties agree that
this property should go to the plaintiff.
I
agree with this sharing in terms of section 7, supra.
(ii)
Stand 12438 Bulawayo Township a.k.a 9 Goodwood Drive, Woodlands,
Bulawayo
It is common cause that the
original property was acquired by the defendant prior to his marriage
to the plaintiff. It is registered in the name of the defendant.
But there is credible evidence
to the effect that the property was developed substantially during
the subsistence of the parties' marriage.
The property was developed
into a double storey with more parking, paving and rooms. Both
parties contributed towards these extensions. These extensions were
accepted and not disputed in court.
The property we are dealing
with here is not the same as the original one acquired by the
defendant. This property has had its size and character changed
materially and substantially during the course of the marriage of the
parties. Its value has been substantially enhanced by these
developments and extensions. Surely the defendant cannot possible
get these improvements free.
This
property is in prime residential area and far more valuable than
Stand 461 Essexvale Road, supra.
Because of the above improvement, it is up-market property. The
parties lived in this property as their matrimonial home for several
years before the challenges surfaced in their marriage. This
property, according to credible evidence by Mr Nyakunika of Knight
Frank Estate Agents is substantially higher in value than the
Manningdale property. This property has to be taken into account in
terms of section 7(4), supra,
in placing the spouses “in the position they would have been in if
a normal marriage relationship continued between them”.
But,
having acquired the original Stand with improvements and having
participated in the above-mentioned extensions, the defendant's
share should, in my view be substantially higher than the plaintiff's
in this property. Accordingly I award this property to defendant.
The extra value of the property is accounted for by the fact that it
was purchased prior to the marriage.
(iii)
The Remainder of Stand 615 Bulawayo Township a.k.a 50 Josiah
Tongogara Street, Bulawayo
This property is registered in
the names of the defendant.
According to the plaintiff,
this property was acquired during the subsistence of the marriage.
When it was acquired it was an old house needing renovations. It was
indeed renovated, painted and walled. The property was acquired
through funds from the family. The property was rented out and
rentals were paid into the family.
Apart from the fact that the
property is registered in his sole name, there is nothing in the
evidence that shows that the defendant was solely responsible for the
acquisition of this property. There is no evidence that he
contributed more than the plaintiff.
The property should,
therefore, be shared equally.
(iv)
Stand 8053 Bulawayo Township, Bulawayo, a.k.a 15 Kilmanock Road,
Hillcrest, Bulawayo
This property is registered in
the names of both parties. Both parties agree that it should be
shared equally.
(d)
Simpson Electrical (Pvt) Ltd and Muntomuhle Investments (Pvt) Ltd
The
plaintiff wants to be given twenty-five (25%) percent of the shares
in Simpson Electrical (Private) Ltd and fifty percent (50%) of the
value of the immovable property owned by Muntomuhle Investments (Pvt)
Ltd.
Simpson
Electrical was incorporated in 1989 before the defendant met the
plaintiff. The defendant and his late brother were the only
shareholders when it was incorporated. It is the defendant's case
that he is no longer a shareholder of Simpson Electrical having
donated his shares to his children from a previous marriage as per
share certificates dated 3 December 1995. That is almost a year
before the parties were married.
The
courts have accepted as trite the principle that a company duly
incorporated is a distinct legal entity endowed with its own legal
personality. It is equally trite that the veil of incorporation may
be lifted were necessary in order to prove who determines or who is
responsible for its activities, decisions and control of the company
– Sibanda
& Anor
v Sibanda
2005 (1) ZLR 97 (S) at 103E-F and Mangwendeza
v Mangwendeza,
supra,
at 218D-F.
In
my view, this is a case that requires the lifting of the veil of
incorporation because of the reasons that will be explained
hereinunder.
According
to the credible testimony of the plaintiff when she got married to
defendant, Simpson Electrical was situated in Robert Mugabe Way
between 14th
and 15th
Avenue. It was a small shop. They moved the shop into bigger
premises in Pioneer House. The latter premises proved too big for
the level of their trading. More stock was required. The
defendant's resources proved inadequate for stocking a shop of that
magnitude. They sold their cars to raise capital for the business.
She also put in her funds. She was the one doing the buying of stock
for the business. This involved her travelling up and down to South
Africa.
She
was told that the business was registered under the names of the
defendant and his late brother.
The
business grew in leaps and bounds. The family benefitted a lot from
the growth of the business. They were able to carry out extensive
extensions of the Woodlands property as alluded to above. Because
the business was flourishing they acquired the Hillcrest property and
two Stands in Pumula South built houses thereon.
These
latter houses were registered in the names of the family members.
The
business had some substantial disposable income even after these
investments. They decided to expand the business further. According
to the plaintiff they then approached her uncle (who was in the
employ of the Bulawayo City Council). Through her said uncle, they
were offered an industrial Stand in Donnington West. They used money
from the business to pay for the industrial Stand.
When
the defendant went to pay for the Stand he registered it in his name.
She
said they toiled to build a factory i.e. double storey structure.
They sent their children abroad. She also said that she sold her
Paddonhurst house to the defendant's cousin and ploughed the
proceeds thereof to Simpson Electrical by way of purchasing stock.
This factory was massive. They rented it out to a company known as
Setex. The tenants developed interest in the factory and offered to
purchase it. The parties agreed to sell it. The proceeds of the
sale of the factory were used to buy and reconstruct the building in
129-130 Robert Mugabe Way, which is the major asset of Muntomuhle
Investments.
This
fact is admitted by the defendant as evinced by his letter dated 5
March 2007 in the bundle of documents. In the same letter drafted by
his legal practitioners of record, the defendant concedes that the
plaintiff is a shareholder of Simpson Electrical holding 25% shares.
After
the acquisition of the Robert Mugabe Way property she fell ill. She
was away for three months. She was first hospitalized and operated
at Mater Dei Hospital and later at St Annes Hospital, Harare where
she was further operated. When she recovered she approached the
defendant for the title deeds of the property and he refused to show
her. She said she was not amused and accused him of trying to make
her “his slave”. They eventually decided to go separate ways.
The
defendant offered her 25% of this property saying the other shares
belonged to his children and himself (i.e. 25% and 50% respectively).
She
said that she was later surprised to be told that the same building
belongs to Muntomuhle Investments. It is her case that this company
was incorporated to cheat her.
I
am in agreement with this testimony.
The
evidence points to a major contribution by the plaintiff in growth of
Simpson Electrical. After plaintiff got involved in the running of
Simpson Electrical there was fundamental expansion, thanks to the
joint effort of both parties.
As
far as Muntomuhle is concerned it is a creature of the defendant for
the dissipation of the assets of Simpson Electrical in order to
defeat the plaintiff's just claims. Even the defendant's own
witness Nomalanga Sibanda, conceded that Muntomuhle was a family
project. More importantly she evinced that -
(a)
Muntomuhle company never had an annual general meeting or directors'
meeting;
(b)
The shareholders had never been paid dividends;
(c)
They were never (as shareholders) made aware of the donation of the
shares or the company affairs;
(d)
And that as far as she was aware Muntomuhle was the defendant's
project and he could do as he wished or liked with the company or the
shares.
The defendant was, therefore,
the alter ego of Muntomuhle. He was not only running the show at
Muntomuhle, he and Muntomuhle have become one.
In
light of the plaintiff's immense contribution towards the main
asset of Muntomuhle as explained above, this court has no option but
unmask Muntomuhle and declare plaintiff an owner of 50% of the market
value of the building owned by Muntomuhle Investments (Pvt) Ltd known
as Downings Buildings, Robert Mugabe Way, Bulawayo.
Accordingly, I make the
following order:-
It is hereby ordered that:-
1.
A decree of divorce be granted;
2.
Custody of the minor child of the marriage, namely, Simpson
Nqobizitha Sibanda (a boy, born 11 March 1996) be awarded the
plaintiff with the defendant enjoying reasonable rights of access to
the minor child;
3.
The maintenance of the minor child shall be in accordance with order
already in existence;
4.
The movable assets be awarded to the parties in terms of paragraphs 3
and 4 of Memorandum of Agreement signed by parties at the
commencement of trial as articulated above;
5.
The Sandford leather brown lounge suite be awarded to the plaintiff
as her sole and exclusive property;
6.
The 95 head of cattle and their progeny be shared equally between the
parties;
7.
The value of the improvements on the Inyathi Farm be shared equally
between the parties. The parties to agree on the valuer for this
purpose failing which, the Deputy Registrar of this court to appoint
one;
8.
Stand 461 Essexvale Road, Manningdale, Bulawayo be awarded to the
plaintiff as her sole and exclusive property;
9.
Stand 12438 Bulawayo Township a.k.a 9 Goodwood Drive, Woodlands,
Bulawayo be awarded to defendant as his sole and exclusive property;
10.
The remainder of Stand 615 Bulawayo Township a.k.a. 50 Josiah
Tongogara Street, Bulawayo to be shared equally between the parties;
11.
Stand number 8053 Bulawayo Township a.k.a. 15 Kilmanock Road,
Hillcrest, Bulawayo to be shared equally between the parties;
12.
The plaintiff is awarded 25% of the shares of Simpson Electrical
(Pvt) Ltd and the defendant the remainder of the shares;
13.
The plaintiff is awarded 50% of the value of the immovable property
known as Downings Building, Robert Mugabe Way, Bulawayo registered
under the name of Muntomuhle Investments (Pvt) Ltd and the defendant
the remainder;
14.
Each party is to bear its own costs.
Cheda
& Partners, plaintiff's legal practitioners
Webb,
Low & Barry, defendant's legal practitioners
