The plaintiff gave evidence and tendered documentary
evidence in support of his claim. Thereafter, the defendant gave evidence and
tendered documentary evidence in support of her contention.
From the evidence adduced, it is common cause that when the
parties entered into an unregistered marriage union in 1999, the defendant
owned an undeveloped Stand No.3376 Tynwald, Harare. She had acquired it through
a mortgage bond from her then employer, Old Mutual, and she was still servicing
the mortgage bond.
When the customary law marriage rites were performed she
moved in to live with the plaintiff in Warren Park. The plaintiff was a tenant
at that house and he was staying with some of his relatives.
Whilst in that rented accommodation, a structure was built
on the defendant's Stand 3376 Tynwald, Harare. The plaintiff alleged that he is
the one who built that structure from his income. The defendant, on the other
hand, contended she built that structure on her own without the plaintiff's
contribution. When that structure was habitable they moved to the defendant's Stand.
After staying at the Stand for some time, that Stand was
sold and Stand Number 3611, Tynwald was bought. Stand 3376 had been bought for
Z$78,000=, and, after the erection of a structure, was sold for Z$300,000=.
Stand 3611 was bought using a mortgage bond from the
defendant's employer. A structure was built, partly from proceeds from Stand
3376.
Stand 3611 was later sold for Z$7,500,000= and Stand
No.3641, Tynwald bought. A 4-bedroomed house was built on this Stand. Later,
this property was also sold for Z$180,000,000=. It was then that the Stand in
question, Stand 151 Monavale, was bought for $55,000,000=. On this Stand, a 4 bedroomed
house was built.
It is common cause that all the Stands were registered in
the defendant's name except Stand 151 Monavale which is registered in the joint
names of the parties.
It is also pertinent to note that whilst the parties agreed
that Stand 151, Monavale was the cumulation of a series of events in which un-developed
Stands were bought, partially developed and sold, they are in serious
disagreement on their respective contributions in the acquisition, development,
and selling of the Stands.
It is accepted that the Stands that were sold had been
bought through mortgage bonds obtained by the defendant from her employer. The
properties bought using mortgage bonds were all registered in the defendant's
name. It is only Stand 151 Monavale that was not bought using a mortgage bond.
That property is registered in the parties' joint names and it happens to be
the last property in the series of buying and selling.
The plaintiff's evidence was to the effect that when the
parties started living together, indeed, the defendant had a Stand, namely,
Stand 3376, Tynwald. He indicated that the loan deductions on the defendant's
salary were such that she remained with little money. He is, therefore, the one
who financed the construction of a 2-bedroomed cottage at this Stand. They sold
this property and used part of the proceeds to pay off the bond. The defendant
obtained another bond to purchase Stand No. 3611. This was again an undeveloped
Stand. They used the balance of the proceeds from Stand 3376 to start
construction on this new Stand. He also put his own resources to augment. This Stand
was sold and the parties bought Stand 3641. The Old Mutual bond was cleared and
the parties used some of the proceeds to start developing this Stand.
The defendant obtained a retrenchment package, and part of
that money was used in the construction. After building a 4-bedroomed house,
the couple sold Stand 3641 and used the proceeds to buy Stand 151 Monavale. As
this was bought on cash basis, they registered it in their joint names. On
previous Stands they had not registered the Stands in their joint names due to
loan requirements by the defendant's employer as this was tied to her
employment.
In an effort to prove his contribution in the development
of the Stands, the plaintiff referred to several invoices and receipts that are
in his name.
The defendant, on the other hand, contended that the
plaintiff did not make any direct financial contribution towards the purchase
and development of the Stands. She is the one who solely acquired the Stands
and financed the improvements on those Stands. To confirm this, she referred to
the fact that all Stands acquired prior to 151 Monavale were all in her name.
She contended that Stand 151 was registered in their joint names, not because
the plaintiff had made any direct financial contribution, but in order to
secure their children's' inheritance. She had been persuaded by the plaintiff
that if the property was registered in her sole name, in the event of her
demise, her relatives may turn out to be greedy and grab the property to the
detriment of the children's interest. He thus persuaded her that if the
property was in their joint names her relatives would not find it easy to
deprive the children of their inheritance.
On the receipts and invoices tendered by the plaintiff, the
defendant indicated that that did not prove the source of the money. The
plaintiff had more time to run around buying building materials but he was
using money provided by the defendant. As for the receipts and invoices for
dates after the year 2005, the defendant contended that these did not relate to
Stand 151 Monavale as no construction was done after 2005. She argued that the
invoices and receipts, after 2005, may in fact be for building materials bought
by the plaintiff for his young brother's house. That brother is based in
Namibia and was sending money for the plaintiff to attend to the construction
of that brother's house.
From the evidence adduced, it is clear the parties were so
much engrossed in establishing their direct financial contributions to the
detriment of other factors that the court is enjoined to consider in the
distribution of assets of the spouses.
Section 7(4) of the Matrimonial Causes Act [Chapter 5:13]
provides that:-
“In making an order in terms of subsection (1), an
appropriate court shall have regard to all the circumstances of the case
including the following:-
(a) The income–earning capacity, assets, and other
financial resources which each spouse and child has or is likely to have in the
foreseeable future;
(b) The financial needs, obligations, and responsibilities
which each spouse and child has or is likely to have in the foreseeable future;
(c) The standard of living of the family, including in
which any child was being educated or trained or is expected to be educated or
trained;
(d) The age and physical and mental condition of each
spouse or child;
(e) The direct or indirect contribution by each spouse to
the family, including contributions made by looking after the house and caring
for the family and any other domestic duties;
(f) The value to either of the spouses or to any child of
any benefit, including a pension or gratuity, which such spouse or child will
lose as a result of the dissolution of the marriage;
(g) The duration of the marriage;
And, in so doing, the court shall endeavor, as far as is
reasonable and practicable, and, having regard to their conduct, is just to do
so, to place the spouses and the children in the position they would have been
in had a normal marriage relationship continued between the spouses.”
It is apparent from the above provisions, and various court
pronouncements, that the court has wide discretion in the distribution of the
assets.
Section 7(1)(a) of the Matrimonial Causes Act [Chapter
5:13] gives the court power to transfer assets from one spouse to the other in
the exercise of such discretion in stating that:-
“Subject to this section, in granting a decree of divorce,
judicial separation or nullity of marriage, or at any time thereafter, an
appropriate court may make an order with regard to the division, apportionment
or distribution of the assets of the spouses, including an order that any asset
be transferred from one spouse to the other.”
Even where the court finds that an asset is owned by one of
the spouses that does not stop the court from awarding that asset, or part
thereof, to the other spouse.
What is of paramount importance is a consideration of all
the circumstances of the case and arriving at a decision that places the
spouses, and children, in the position they would have been had a normal
marriage relationship continued. See Kanoyangwa v Kanoyangwa 2011 (1) ZLR 90
(H).
In casu, it is common cause that Stand 151 Monavale is
registered in the joint names of the parties. Where a property is registered in
the names of two parties, the presumption is that such property is jointly
owned with each party owning a 50% share in the property. It is for the party
alleging that the property is not so owned to rebut that presumption.
In Lafontant v Kennedy 2000 (2) ZLR 280 (S)…, McNALLY JA
alluded to the need for a party to lay a solid foundation for the transfer of
another spouse's share when he said that:-
“The court cannot move from that position on mere grounds
of equity. It cannot give away A's property to B on the mere grounds that it
would be fair and reasonable, or just and equitable to do so. There must be a
more solid foundation in law than that.”
Some of the instances where such solid foundation was found
to exist include where the other party was found to have been a mere nominee of
an undisclosed principal. In Lafontant v Kennedy 2000 (2) ZLR 280 (S), McNALLY
JA went on to say that:-
“I think, by claiming and proving that she alone paid for
the property, it must necessarily follow, if it was registered in their joint
names, that she effectively gave him the half share as her nominee, for
convenience. By instituting action she is terminating that nomination.”
The Court thus found that a case had been made to transfer
part of another spouse's property to the other.
In Kanoyangwa v Kanoyangwa 2011 (1) ZLR 90 (H), the circumstances
were such that though the property was registered in the joint names of the
parties, the entire purchase price and transfer fees were paid from the
plaintiff's retrenchment package and the defendant had not contributed anything
in that regard. I found that as a case where the defendant's share could be
tampered with in favour of the plaintiff.
In Ncube v Ncube SC06-93, the property was registered in
the joint names of the parties and the husband wanted the wife to be treated
not as owner on the basis that she had not contributed towards the purchase
price. KORSAH JA had this to say…, -
“It is incorrect to say that Appellant, as a registered
joint owner, is not entitled to a half share of the value of the Napier Avenue
property because she did not contribute money, or money's worth, towards the
acquisition of the property. As a registered joint-owner, she is, in law,
entitled to a half share of the value of that property. The proper approach is
to accord her share of that property, and then, taking into account all the
assets of both spouses, to endeavor, as far as is reasonable and practicable
and is just to do so, to place the spouses in the position they would have been
in had a normal marriage relationship continued between them. In the performance
of this duty, a court is empowered, in the exercise of its discretion, to order
that any asset be transferred from one spouse to the other.”
In casu, the question is whether the defendant has laid a
solid foundation for this court to interfere with the plaintiff's half share in
the property?
The defendant's stance was that she, alone, bought the
initial Stand, built an illegal structure on it and sold it. She did the same
for subsequent Stands. She contended that the plaintiff's contribution was insignificant
as it consisted mostly of running around getting quotations and buying material
using money she will have sourced.
It is common cause the Stands were being acquired as un-developed
Stands. The funds to purchase the Stands came through mortgage bonds obtained
by the defendant in her name. The issue is, however, on the developments made
after the purchase of the un-developed Stands. There is no doubt that whatever
development that was an improvement which enhanced the value of the property.
Thus, when disposing such property, the value realised included value for the
improvements.
It is common cause, from the evidence adduced, that for the
most part of their union both parties were employed. Each thus earned an income
they were expected to contribute towards their family needs. It is my view that
each contributed according to their means to the family. It may have been a
situation of the defendant earning more than the plaintiff but that is no just
cause to say he never contributed. I am inclined to accept that the plaintiff
did contribute, both directly and indirectly, towards the developments on the
properties the parties acquired. The contributions were so intertwined that it
was not easy to disengage a party's contribution from the other.
I am therefore of the view that a 50:50 share would have
been appropriate but for other factors that must be considered.
The defendant, as the party to retain custody of the minor
children, deserves such share as would enable her to acquire another property.
She is going out of the marriage with an onerous responsibility of ensuring she
has shelter for the children. It is a long way before all the children reach
the age of majority. I am of the view that taking into account the needs and
responsibilities of the parties, their financial positions and expectations,
the defendant deserves a 60% share and the plaintiff a 40% per cent share.
The defendant will be granted the option to buy out the
plaintiff….,.
1….,.
2….,.
3....,.
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5….,.
6. The plaintiff is hereby awarded a 40 per cent share in
the matrimonial home, namely, Stand 151 Monavale Township of Mayfield Estate, Harare also known as No.151 Monavale Township, Monavale, Harare.
7. The defendant is hereby awarded a 60 per cent share in
the above-cited immovable property, being No.151 Monavale Township, Monavale,
Harare.
8. The parties shall agree on the value of the property
within 14 days of the date of this order failing which they shall, within 14
days, appoint a mutually agreed valuer to do the valuation. Should the parties
fail to agree on a valuer, the Registrar of the High Court shall appoint such
valuer within 14 days of the parties' failure to do so.
9. The parties shall share the cost of valuation according
to their pro-rata shares in the property.
10. The net proceeds shall be shared between the parties at
the rate of 40% for the plaintiff and 60% for the defendant.
11. The defendant is hereby granted the option to buy-out
the plaintiff in respect of his share in the property. Such option shall be
exercised within 6 months from the date of receipt of the report of valuation
or date of agreeing on the value, whichever is earlier.
12. Should the defendant fail to exercise the
above option within the period stated, or such longer time as the parties may
mutually agree, the property shall be sold by an Estate Agent to be mutually
appointed by the parties within 14 days of the defendant's failure. In the
event that the parties fail to agree on an Estate Agent, the Registrar of the
High Court shall, within 14 days of such failure, appoint an Estate Agent to
conduct the sale. The costs in this regard shall be met by the parties
according to their pro-rata shares in the property.
