The
sole issue which was referred for determination was the distribution of the
parties' immovable property being Stand Number 3629 Mainway Meadows, Waterfalls,
Harare.
The
plaintiff, in the summons, claims a 50% share of the property whilst the
defendant submits that he is not entitled to more than 13, 5% to 18, 5%. It was
common cause that the property in question was acquired during the duration of
the marriage in 2007.
The
property is registered in the parties' joint names.
The
plaintiff opened his case by giving evidence in connection with the purchase of
the immovable property. He stated that he paid Z$1.5 billion whilst the
defendant contributed Z$300 million. The property was purchased as an undeveloped
Stand. He stated that, at the time, he was working as a car dealer and
operating from Analaby House. He was last formally employed in 1993 and
thereafter he was running his own business. At the time, his wife, the
defendant, was employed as a nurse aid at Medicare. Payment for the property
was made in two batches. The first payment was for Z$1,5 billion and the
balance of Z$300 million was paid later. The defendant made the payments as he
was busy. She was accompanied by his brother's son. The plaintiff stated that
he had paid the bulk of the money which he had raised from his car sales
business and the defendant paid Z$300 million. It took them a month to raise
the money as they had not saved for it. The Agreement was only signed after
they had finished paying for the property. He stated that he was entitled to
50% share of the property as he had paid the bulk of the purchase price. The
plaintiff submitted that he wanted his share immediately and could not wait
until the youngest child attained the age of 18 years.
In
cross examination, the plaintiff conceded that he may have made a mistake with
regards to the actual purchase price of the property when he was shown the
receipts. They showed that the property had cost Z$1,968 billion. He also
confirmed that the defendant was staying at the property with the minor
children. When asked where they would live if the property is sold, the
plaintiff stated that he would provide alternative accommodation. He, however,
conceded that he has not been paying maintenance for the children but providing
whenever he could. He was unaware of the improvements that have been effected
on the property by the defendant and had not contributed to such improvements.
The
defendant testified that she is employed by a nursing agency called BE MED. She
explained that at the time she joined the agency, in 1999, it was called
MEDCARE and it changed its name 5 years ago. She stated that she has been
married to the plaintiff for 19 years. At the time they got married, the
plaintiff was employed by National Carpets. After that, they had their own
company called Jackson Carpets but it got broke after a year. During the
marriage, they acquired both movable and immovable property. They purchased
three motor vehicles and household goods and the immovable property in
Waterfalls. The defendant stated that she purchased the immovable property on
her own after she changed some foreign currency that she had saved. She stated
that they had initially bought a Stand in Norton which they sold and shared the
purchase price equally. She changed her share into foreign currency whilst she
did not know what the plaintiff had used his money for. She further explained
that as a nurse aide when a patient whom they have been looking after dies the
relatives give a token of appreciation. She would convert the money she
received and save it as foreign currency. She did not tell the plaintiff of her
savings as he was in the habit of selling household goods but kept the money
hidden under her mattress. She only told him of the Stand after she had
purchased it. She denied that the plaintiff had given her any money for the
purchase of the Stand. She stated that when she told him of the Stand he was
not happy and the dispute was only resolved when she agreed to include him as a
co-purchaser on the Agreement of Sale. She produced, as exhibit, the receipts
for the purchase of the Stand which showed that she had, in fact, paid Z$1,9
billion and not Z$1,8 as testified by the plaintiff.
She
testified that the plaintiff left home in August 2010 and she has been
struggling on her own with the children. She stated that the plaintiff has not
been maintaining the children and she was of the opinion that he would not be
able to maintain them even after the divorce and he received a share of the
property. She stated that she was happy to buy out the plaintiff his share of
the property so that she can remain on the Stand with the minor children. She
offered US$1,500= to the plaintiff as his share which she changed to US$2,000=.
When questioned by the court, the defendant stated that the Stand was valued at
about US$12,000= and she would be able to pay the plaintiff 35-40% of that
amount with the help of her employer.
The
plaintiff stated, in his closing submissions, that the court should apply the
principles that were set out in the case of Takapfuma v
Takapfuma 1994 (2) ZLR 103. It was
argued on his behalf that as the property is jointly owned by the parties the
court should make an award of 50% share of the immovable property to each of the
parties. The defendant, on the other hand, contended that the court should
apply the principles which are set out in the Matrimonial Causes Act [Chapter
5:13]. It was submitted for the defendant that if a proper application of
the principles is made the defendant should get a higher percentage of the
immovable property than the plaintiff.
In
my view, the plaintiff correctly submitted that the court should apply the
principles set out in the case of Takapfuma v
Takapfuma 1994 (2) ZLR 103. However, it
is apparent from a proper reading of the case that the award of his and her
share is only the starting point when the court makes a distribution of
matrimonial property. In dealing with the distribution of matrimonial property,
the court is always enjoined to take into account section 7 of the Matrimonial
Causes Act [Chapter 5:13] in order to come up with an equitable share of the
property of the parties. Section 7(4) of the Matrimonial Causes Act [Chapter
5:13] sets out the factors that the court should take into account when
considering such an award and these include some of the following: income-earning
capacity of the parties, financial needs, obligations and responsibilities of
the parties, and their direct or indirect contributions.
It
was apparent from the evidence led by the parties that they were focusing on
the direct and indirect contributions of the parties in seeking an award. The
plaintiff was at pains to show that he had contributed most of the purchase
price whilst the defendant was also trying to show the same. It was apparent
from the evidence that the plaintiff and the defendant were both bringing an
income into the home. I did not believe the plaintiff when he stated that he
had raised Z$1,5 billion of the purchase price. Indeed, it was apparent during
cross examination that he did not know what the purchase price of the property
was. In the same vein, the defendant exaggerated when she stated that she had
raised the whole purchase price on her own. It was not in dispute that in 2005,
that is, prior to the purchase of the property, the family's financial position
was in a very bad way. At some stage, the plaintiff had to go to the communal
home to sell an ox to feed the family. In my view, it was highly unlikely
that the defendant would have kept money hidden in her mattress when the family
was literally starving. It seems to me that the parties did both contribute to
the best of their abilities to the purchase price of the property.
However,
when one applies the factors which I outlined above it was apparent that the
defendant would be entitled to a bigger share than the 50%...,. Section 7(4)(b)
of the Matrimonial Causes Act [Chapter 5:13] also provides that the court
should take into account the financial needs, obligations and responsibilities
which each spouse and child has or is likely to have in the foreseeable future.
It seems to me that if the plaintiff was in a position to look after the minor
children the appropriate award would have been to give each of the parties a
50% share of the property. However, in view of what has been stated…., the
plaintiff should get a lesser share as his obligations are mainly to himself.
The
defendant has effected some improvements on the property since the plaintiff
left in 2007. She has built a more permanent structure and put up a wall around
the property. The difference in the award will also take that into account.
The
defendant stated, in response to questions from the court, that she would be
able to pay out the plaintiff 35 to 40% share of the value of the property.
Taking into account that the defendant is going to bear the responsibility of
taking care of the children she should get a slightly higher share than that of
the plaintiff. Although the defendant had submitted that she was offering to
buy out the plaintiff over a period of six months it is my view that this
period is too long. The plaintiff stated that he would like to move on with his
life. He cannot do so until he has received his share of the immovable
property. The defendant is employed, and with the assistance of her employer,
she can pay him off. The plaintiff indicated in his evidence that he was not
opposed to the defendant buying him out as long as he received his share
without waiting until the youngest child attains the age of eighteen.
In
view of these factors, it seems to me that the defendant should get the
opportunity to buy out the plaintiff.
In
the result, I make the following order:
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6.
The plaintiff is hereby awarded a 40% share and the defendant a 60% share of
the immovable property known as Stand 3629 Mainway Meadows, Waterfalls.
a)
The defendant is hereby awarded the right to buy out the plaintiff his share of
the property.
b)
The property shall be valued by an estate agent appointed by the Registrar from
his list within 30 days of this Order.
c)
The defendant shall pay the plaintiff his 40% share in the property within
three (3) months of the date of valuation of the property.
d)
In the event that the defendant fails to buy out the plaintiff in terms of this
Order the property shall be sold at best advantage through a registered estate agent
and the parties shall be paid out their shares from the net proceeds.
e)
The plaintiff shall pay 40 % of the cost of the evaluation and the defendant
shall pay 60%.
Each party shall bear their own costs.
