UCHENA J: The plaintiff is the defendant's wife
married to him in terms of the Marriages Act [Cap 5:11]. They were
married at Harare on 18 June 2003. She sued him for a decree of divorce
and ancillary relief on the basis that their marriage has irretrievably broken
down. The defendant agrees that their marriage has irretrievable break down.
They at their pre-trial conference agreed on all issues
except the distribution of their immovable properties namely the matrimonial
home at stand No 293 Vainona Township of Vainona and Stand No 3505 Dhonza Close
Budiriro 2 Harare and a generator. In her claim the plaintiff wants the
immovable property to be sold and shared equally, when their youngest child
attains the age of majority. She in evidence said the generator is used to
electrify the matrimonial home during Zesa's load shadings therefore it should
not be distributed until the youngest child attains the age of majority.
In his amended plea the defendant wants the immovable
properties to be distributed in two alternative ways;
1.
That they be sold on divorce and the proceeds be shared equally between the
parties. Alternatively,
2.
That the Vainona property be subdivided with the developed part being awarded
to the plaintiff and the undeveloped party on which there is a two bed roomed
cottage being awarded to him together with the Budiriro house.
The plaintiff replicated setting the stage for a trial on
the parameters created by their pleadings. When the plaintiff took to the
wittiness stand, she wasted no time but tactfully sought to closethe litigation
by accepting the defendant's alternative option. She told the court that she
accepts the subdividing of the Vainona property, and an award to her of the
developed portion, with the defendant taking the undeveloped portion and the
Budiriro house. She said this would insure that their children will not have to
move away from the house and environment they are used to. They would
continue to enjoy the standard of life they are used to.
The defendant refused to accept, the plaintiff's
pre-emptive measure. He opened his defence case and testified that it would be
unjust for the plaintiff to be awarded the developed portion while he takes the
undeveloped portion and the Budiriro house. He explained that the Vainona house
is a 20 roomed double story house on 5378 square meters. The developed stand
was to be 2500 square meters in extend, with the 20 roomed double story house.
The undeveloped stand was to be 2878 square meters in extend, with the two bed
roomed cottage. He told the court that the whole Vainona property is valued at
about US$ 500 000-00, while the undeveloped portion would be valued at about
US$60 000-00. The Budiriro house is valued at about US$40 000-00, giving him a
total of US$100 000-00, from their immovable properties against the plaintiff's
net value of about US$ 440 000-00 from their immovable properties. He argued
that such distribution of their immovable properties will not be equitable. He
urged the court to distribute their immovable properties in terms of his main
option, in terms of which both properties should be sold on the granting of
divorce and be shared equally between him and the plaintiff.He though he had
not mentioned this in his pleadings offered to accommodate the plaintiff and
his children in alternative rented accommodation in Vainona.
In his address Mr Mpofu for the plaintiff
submitted that the defendant in his amended plea committed himself to the two
options he gave, and cannot resile from any of them the plaintiff chooses to
accept. He submitted that the plaintiff's acceptance of the defendant's
alternative option left no dispute on which the court has to make a
determination. He referred the court to the case of,Shill v Milner 1937 AD 101
at 105 where DE VILLERS J.A said;
“The object of pleading is to
define the issues; and parties will be kept strictly to their pleas where any
departure would cause prejudice or would, prevent full inquiry”.
He also referred the court to the case of Robinson v
Randfontein Estates G.M. COLTD1925 AD 173 at 198 where INNES C.J made
the same observation. Mr Mpofu stressed that the parties where locked into and
confined to the parameters created by their pleadings and should be kept
strictly to their pleas. He submitted that the plaintiff's replication did not
reject or put in issue the defendant's offers as in it she merely said, “The
plaintiff denies each and every allegations of fact or law in the defendant's
plea and joins issues for pre-trial conference”. He submitted that the
defendant's offered options are not allegations of fact or law so they remained
available for the plaintiff to accept as long as they remained un-withdrawn. He
submitted that once an admission is made it remains in existence until it is
withdrawn by leave of the court on an application to amend or withdraw it. He
referred to rule 189 of the High Court Rules which provides as follows;
“The court may at any time allow any party, to amend, or
withdraw any admission so made on such terms as may be just”.
It is true that the defendant did not withdraw,or amend his
amended plea in which he gave the two options. That means he
can be held to his options but only if the legal principles
enunciated in the cases referred to by Mr Mpofu justifies that
approach.
Mr Simango for the defendant did not challenge the
authority of the cases referred to by Mr Mpofu but sought to rely on
the quoted passages allowing departure, where departure will not cause
prejudice. He submitted that taking the defendant's main option or the
plaintiff's own option will not cause prejudice to the plaintiff. He also
argued that, the effect of pleadings also binds the plaintiff to her suggested
manner of distributing the parties' immovable properties. The case can if
possible, be resolved on the basis of there being no prejudice to the plaintiff
if the defendant's main option,or her own option is used.
I am however of the view that the case of Shill v Milner
(supra) was quoted out of context. DE VILLERS J.A actually said;
“The importance of
pleadings should not be unduly magnified. The object of pleading is to define
the issues; and parties will be kept strictly to their pleas where any
departure would cause prejudice or would, preventfull inquiry. But within those
limits the court has wide discretion. For pleadings are made for the
Court, not the Court for pleadings. Where a party has had every facility to
place all the facts before the trial Court and the investigation into all the
circumstances has been as thorough and as patient as in this instance, there is
no justification for interference by an appellate tribunal merely because the
pleading of the opponent has not been as explicit as it might have been.”
Robinson v Randfontein Estates G. M. Co. , Ltd 1925 AD. 198). In another case, Wynberg
Municipality v Dreyer (1920) A. D. 443), an attempt was made to
confine the issue on appeal strictly to the pleadings, but it was pointed out
by INNES , C.J., that the issue had been widened in the court below, by both
parties. “The position should have been regularised of course”said he, “by
an amendment of the pleadings; but the defendant cannot now claim to confine
the issue within limits which he assisted to enlarge.”(emphasis added)
The decision starts by admonishing against unduly
magnifying the importance of pleadings which are made for the Court and not the
Court for the pleadings. It then clearly states that the Court has a wide
discretion,which it judiciously exercises guarding against causing prejudice or
preventing full inquiry. The Court should also be guided by whether or not the
parties have, enlarged, the inquiry from that strictly necessitated by the
pleadings. The plaintiff could have simply accepted the alternative option
without replicating. She chose to replicate leading to the trial which could have
enlarged the confines within which the parties' dispute can be resolved, but
for her accepting the defendant's alternative option on taking to the
wittiness's stand. The plaintiff's Counsel extensively cross-examined, the
defendant on his options inviting from him the reason why he was reneging from
the alternative option he had sanely and freely given. That cannot be termed an
enlargement of the issues as the cross examination concentrated on the accepted
option. I must therefore carefully consider the effect of the defendant's
resistance to the plaintiff's acceptance of his alternative option.
The defendant's alternative option may as already explained
in the defendant's evidence, result in giving the plaintiff an unfair advantage
in the distribution of the immovable's which they acquired through equal
contributions. The reason for its being belatedly embraced by the plaintiff and
belatedly abandoned by the defendant seems obvious. It may unduly give an
advantage to the plaintiff at the defendant's expense. That however has not
been substantiated by an evaluation of the properties and the proposed
subdivisions. It must also be considered that the defendant at his own
initiative proposed that option with his eyes wide-open. He may well have
made that offer appreciating the cost of accommodating his children till the
youngest attained the age majority as put to him by Mr Mpofu for the
plaintiff. He appeared to have appreciated that responsibility as demonstrated
by his offering to accommodate them in alternative accommodation in the Vainona
area if his main option was accepted.
The defendant was made aware of the effect of his
admission. He did not apply to withdraw it. In view of the need to hear the
parties on the real dispute and to avoid preventing a full inquiry, if the
defendant had made an application to withdraw the admission,I would have been
inclined togrant it. In the case of DD Transport (PVT) LTD v Abbot
1988 (2) ZLR 92 (SC) @ 98 F to 99 A to BGUBBAY CJ commenting on when a
Court can grant a withdrawal of an admission said;
“The general and broad approach
to be adopted by the court in determining whether to allow the withdrawal of an
admission, and one which has been followed time without number over
the past seventy years or so, is that enunciated by WESSELS J in Whittaker v
Roos & Anor 1911 TPD 1092 at 1102-1103:
"This Court has the
greatest latitude in granting amendments, and it is very necessary that it
should have. The object of the Court is to do justice between the parties. It
is not a game we are playing, in which, if some mistake is made, the forfeit is
claimed. We are here for the purpose of seeing that we have a true account of
what actually took place, and we are not going to give a decision upon what we
know to be wrong facts. it is presumed that when a defendant pleads to a
declaration he knows what he is doing, and that, when there is a
certain allegation in the declaration, he knows that he ought to deny it, and
that, if he does not do so, he is taken to admit it. but we all know, at the
same time, that mistakes are made in pleadings, and it would be a very grave
injustice, if for a slip of the pen, or error of judgment, or the misreading of
a paragraph in pleadings by counsel, litigants were to be mulcted in heavy
costs. That would be a gross scandal. Therefore, the Court will not look to
technicalities, but will see what the real position is between the
parties."
These, then, are the principles
to be applied by a court concerned with an application to amend a plea which
would, if granted, have the effect of withdrawing an admission.”
The defendant chose to lead evidence on why his alternative
option should not be accepted. The Court tried to guide his counsel to the
effect of the plaintiff's acceptance of his client's alternative option to the
distribution of the Vainona property. Counsel for the defendant persisted
in leading evidence against his client's admission.That is not permissible. In
the case of DD Transport (supra),GUBBAY CJ at page 97 G to 98 A- B
said;
“The effect of a formal admission made in pleadings was
underscored in Gordon v Tarnow 1947 (3) SA 525 (AD) where DAVIS AJA at 531-532
said:
"But this admission in the
plea is of the greatest importance, for it is what Wigmore (paras 2588-2590)
calls a 'judicial admission' (of the confessiojudicialis of Voet
(42.2.6)) which is conclusive, rendering it unnecessary for the other
party to adduce evidence to prove the admitted fact, and incompetent for the
party making it to adduce evidence to contradict it. (See also H Phipson
7 ed p 18)).Wigmoreloccit, speaking of judicial admissions in general, refers
to the Court's discretion to relieve a party from the consequences of an
admission made in error.It does not seem to me that such a discretion
could be exercised,in a case where the admission has been made in a pleading,
in any other way than by granting an amendment of that pleading."
These dicta were approved by
MACDONALD ACJ (as he then was) in Moresby-White v Moresby-WhiteB
1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224.” (emphasis
added).
The defendant's evidence as to why he wants to resile from
his option to subdivide the Vainona property was therefore given in
circumstances where it should not have been given as a litigant cannot lead
evidence against his own admission without first amending it or withdrawing it.
The plaintiff was entitled to accept the defendant's option for as long as it
remained un-withdrawn. An admission as already demonstrated through the case of
DD Transport (supra), can only be withdrawn through an application for
amendment of the pleading. The defendant despite being guided towards that
route chose to lead evidence against his own admission.
In the result the dispute between the parties on the
distribution of the immovables, was extinguished by the plaintiff's acceptance
of the defendant'salternative option.
It is common cause that the generator is required to
electrify the premises on which the parties and their children will be staying.
It is however clear that once the Vainona property is distributed and
subsequently subdivided each party will become an independent owner of the
subdivided properties. In view of most of the movables having been given to the
plaintiff and the plaintiff getting the developed part of the Vainona property
it is only fair that the generator be awarded to the defendant. The Budiriro house, will as per the
defendant's alternative option be granted to him together with the undeveloped
portion of the Vainona property. He will however be entitled to live on
his portion of the Vainona property which has on it a two bed roomed cottage.
The defendant gave the extend of each subdivision as 2500 square meters for the
portion on which there is the 20 roomed double storey house for the plaintiff,
and 2878 square meters on which there is a two bed roomed cottage for himself.
I am aware that the parties will have to apply for a
subdivision permit to the local authority, but once the decree of divorce is
granted each party cancommence to live on his or her proposed subdivision.
In the result it is ordered as follows;
1. That a decree
of divorce be and is hereby granted.
2. That custody of the minor
childrenGracious Mauro, born on 8th February 2001 and Ngonidzashe
Mauro born on 30th June 2oo6, be awarded to the plaintiff.
3. That defendant shall have
access to the minor children on alternative weekends (and shall collect
the children not later than 6pm from the Plaintiff's residence as given and
returning them at 8am on the following Monday by dropping them at home during
holidays or at their respective schools in full uniform, well groomed and
intact, with the provision for break and lunch for the day).
4. (i) The defendant
shall pay the sum of US$ 125-00 ( One hundred and Twenty five
United States
Dollars) per child per month as maintenance.
(ii) Each party
shall contribute 50% towards the school fees, levies and other charges
related to tuition
outside the school curriculum for the minor children.
(iii) Defendant
shall buy all school uniforms in triplicate for each child and deliver the
same to the
plaintiff at the very least five clear days before the opening of the 1st
term of the year,
and in case of winter uniforms five clear days before the
opening of the
second term.
(iv)The parties
shall contribute 50% towards sports and educational trips as the
children may from
time to time prefer to participate in.
(v) Plaintiff
shall buy all sport uniforms for the minor children.
(vi) Defendant
shall maintain the minor children on the current medical insurance
package.
(vii) Defendant
shall provide children with social clothing at least two times a year
until each child
attains the age of majority.
5 The Plaintiff
shall retain as her sole and exclusive property the following;
(i) Toyota Corolla Registration No AAT 9793.
(i)
All the household movable property acquired during the subsistence of the
marriage.
The Defendant shall retain as
his sole and exclusive property the following;
(i)
Mazda B1600 Registration No AAM 1973
(ii)
Toyota Camry Registration No ABG 3047.
(iii)
Motor spares building materials and tools.
(iv)
A bed.
6
Leerage Haulage Private Limited is awarded to the defendant whilst Plaintiff
gets
Leereg fashions Boutique
7. The generator be and is hereby awarded
to the defendant, as his sole and exclusive property.
8. Stand No 3505
Dhonza Close, Budiriro 2, Harare, be and is hereby awarded to the
defendant as his sole and exclusive property.
9. Stand No 293 Vainona
Township of Vainona shall be subdivided into two properties
as follows;
9.1 A subdivision measuring 2500 square
meters on which there is a 20 roomed double
storeyhouse, which is hereby awarded to the plaintiff
as her sole and exclusive
property.9.2 A subdivision measuring 2878
square meters on which there is a two bed roomed
cottage, which, is hereby awarded to the defendant as
his sole and exclusive property.
9.3 The parties shall equally contribute towards the cost of
applying for a subdivision permit.
10. Each party shall bear his or her own costs.
Messers Eureka Ndhlovu Attorneys, Plaintiff's Legal Practitioners.
Messers
Nyikadzino, Simango & Associate,Defendant's
Legal Practitioners.
