Divorce Action
CHITAKUNYE
J:
The
plaintiff and the first defendant married each other on 13 May 1976
in Botswana in terms of that country's civil marriage laws, the
Marriage Proclamation [Chapter 144]. The parties later relocated to
Zimbabwe and have been so domiciled. Their marriage was blessed with
four children who are now all adults.
The
second defendant is the first defendant's nephew, born of his blood
sister. He has been cited due to a property he purportedly purchased
from the first defendant which the plaintiff claims is matrimonial
property.
On
14 July 2005, the plaintiff sued the first defendant for a decree of
divorce and the apportionment and distribution of assets of the
spouses in terms of the Matrimonial Cause Act [Chapter 5:13]. The
plaintiff alleged that the marriage has irretrievably broken down to
such an extent that there are no reasonable prospects of restoration
of a normal marriage relationship between them in that the defendant:
1.
Deserted the plaintiff in or about 1998;
2.
Has sired children out of wedlock;
3.Has,
on diverse occasions, assaulted the plaintiff.
4.
Has expressed that he no longer has any love for the plaintiff.
5.
Has, through lack of sense of duty failed, neglected or refused to
provide plaintiff with maintenance.
The
plaintiff further alleged that during the subsistence of the marriage
they acquired movable assets and an immovable asset as outlined in
paragraph 8 of her declaration. She further alleged that the first
defendant wrongfully, unlawfully and maliciously registered the
immovable property, namely, Stand 24 Goromonzi Business Centre, in
the names of second defendant when in fact and in truth it was and is
still matrimonial property.
The
plaintiff sought an order:
1.
As against second defendant:-- an order declaring Stand 24 Goromonzi
Business Centre as matrimonial property as between plaintiff and
first defendant.
2.
As against first defendant:
(i)
A decree of divorce.
(ii)
A division of the property in equal shares, failing which payment of
the sum of Z$560,500,000.00 (being one half share of the value of the
property) with interest thereon at the prescribed rate calculated
from the date of issue of summons to the date of payment, both dates
inclusive.
3.
As against both defendants jointly, severally and in solidium, the
one paying the other to be absolved.
The
first defendant conceded that the marriage relationship has indeed
irretrievably broken down, albeit, not for the factors alluded to by
the plaintiff. The reasons he advanced for the breakdown included
that the Plaintiff, on diverse occasions during the subsistence of
the marriage, deserted the matrimonial home. She deserted the
matrimonial home for good on 11 August 1995 and never returned. He
also asserted that, through lack of sense of duty and in spite of a
maintenance order against her, the plaintiff failed, neglected and
refused to provide maintenance for the minor children of the
marriage.
The
first defendant also contended that as a consequence of the
plaintiff's failure to pay maintenance he sold the immovable
property, namely, Stand No. 24, to second defendant in 1995 in order
to meet the school fees and upkeep of the minor children of the
marriage. He denied that there was a cottage on this Stand but only a
house. He, however, admitted to the existence of the rest of the
property as stated in the plaintiff's declaration.
The
second defendant's plea was to the effect that he purchased Stand
No. 24 from the first defendant and obtained cession. He thus
contended that registration into his name was lawful. He also
contended that when he bought the property there was no cottage. He
is the one who built the three bed-roomed cottage after he had
purchased the property.
On
22 November 2007, a pre-trial conference was held at which the
following issues were referred to trial:
(a)
Whether it is just and equitable that matrimonial property listed in
paragraph 8 of the plaintiff's declaration be divided in equal
shares between plaintiff and first defendant.
(b)
Whether or not Stand No.24 Goromonzi Business Centre is matrimonial
property and what is the just and equitable manner of disposing the
property.
(c)
Whether or not 2nd
defendant purchased Stand No.24 Goromonzi Business Centre and whether
he made improvements as alleged or at all.
On
26 March 2008 both parties signed a document they termed Consent
Paper in which the plaintiff and the first defendant consented to the
dissolution of the marriage.
On
the trial date the plaintiff amended her summons with the consent of
the defendants. The amendment had the effect of substituting paras
2(b) of the summons and the prayer with the following:
“2(b)
division of movable assets listed under paragraph 8 of plaintiff's
declaration in equal shares, failing which, payment of 50% of the
value of the property by the first defendant.
2(c)
division of Stand No. 24 Goromonzi Business Centre, Goromonzi in
equal shares, failing which, payment of 50% of the value of the
property, which value shall be determined by a valuator from the
Master's list of valuators.”
The
issues as outlined above pertain to the availability and distribution
of the movable and immovable assets of the spouses.
The
plaintiff gave evidence after which each of the two defendants
testified.
From
the plaintiff's evidence and that of the 1st
defendant, it is common cause that after the two of them married in
Botswana they later were deported from that country and came to
Zimbabwe where they first settled in Kwekwe. Whilst in Kwekwe the
plaintiff was employed by the Town Council as a secretary whilst the
1st
defendant was drawing plans for people - as self employment.
As
a secretary, the plaintiff would also do typing work for her husband.
Later, they moved to Harare where they had secured a property in
Greendale. In Harare, the plaintiff was employed by Scanlen and
Holderness whilst he was employed by the Grain Marketing Board. The
Greendale property was acquired through a mortgage bond and the money
raised in Kwekwe was used to pay the requisite deposit. As both
parties were in employment they serviced the bond together.
Later,
they sold the Greendale property and used proceeds there from to
acquire a small holding in Ruwa. They both worked on the small
holding for the benefit of the family. As things turned out they were
still not satisfied with the small holding and opted to acquire Stand
24 Goromonzi Business Centre.
Whilst
the parties were not agreed as to how the Stand was acquired, it was
nevertheless agreed that Stand 24 Goromonzi was intended to be the
parties' matrimonial property and it was so till their separation.
After
acquiring that Stand, a 4 bedroomed house was built on it and that
was their matrimonial house. They lived in that house till
separation. It was thus common cause that from the time of relocating
to Zimbabwe both the plaintiff and the first defendant were gainfully
employed or engaged in income generating activities. Neither could be
said to have been merely seated at home. It is also clear that the
property (both movable and immovable) in question was acquired during
that period of living together.
The
plaintiff further testified that besides the main house, they were
also in the process of constructing a cottage. At the time of their
separation the cottage had reached window level. The first defendant,
on the other hand, contended that at the time of separation no
cottage was under construction. It is further common cause that after
separation in August 1995, the first defendant purported to have sold
the matrimonial house to second defendant between October and
December 1995 - that is within a few months after plaintiff had left.
He also claimed to have sold the movable assets in para 8 of the
plaintiff's declaration within a few months after the plaintiff had
left and soon after he had delivered what he deemed kitchen property
for a wife upon divorce in terms of customary law.
The
first defendant claimed to have delivered three truckloads of such
customary law items - also known as Mawoko/Umai property.
When
asked to list the items that filled three truckloads, the first
defendant was at a loss.
The
plaintiff later tendered a list of items she received which list the
first defendant agreed to. That list could not by any stretch of
imagination fill up three truckloads. Somehow the first defendant
insisted it filled three truckloads and the truck was in fact driven
by the second defendant.
If,
as the first defendant stated, he believed the plaintiff was entitled
to kitchen utensils only at the dissolution of the marriage then he
was gravely mistaken. The era were at the dissolution of a marriage a
woman was only entitled to Mawoko/Umai property is long gone and it
is unfortunate that husbands of the mould of the first defendant
continue haunting these courts with the ghost of that era. The
injustice that was endured in the past should not haunt us in a
modern democratic state where equality and justice are the
watchwords.
I
am thus of the view that the arbitrary division and apportionment of
the movable property done by the first defendant was unjust and
cannot stand.
In
coming to this conclusion I am mindful of the reasons he gave as his
understanding of culture and what he deemed his own contributions.
The movable property ought to have been divided equitably taking into
account all the circumstances of the case as envisaged in section
7(4) of the Matrimonial Causes Act.
The
fact that Stand No. 24 Goromonzi was acquired as matrimonial property
is common cause. The first defendant, however, contended that he
disposed of the property after separation and that it is no longer
available for consideration.
The
plaintiff alleged that the so-called sale was in effect not a sale
but a ruse to deprive the plaintiff of her rightful and just share in
the property.
In
this regard she alluded to the fact that second defendant was a
nephew they had looked after from when he was of tender age (2 years)
up to the time he did his apprenticeship at Mike Appel. To her
knowledge he could not have raised money to buy the property as an
apprentice in 1995. As far as she is concerned the first defendant
simply ceded the property to second defendant in order to defeat her
cause.
The
first defendant's evidence on the other hand was to the effect that
he disposed of the property to second defendant for value and the
sale was not wrongful or unlawful.
It
is trite that an owner of a property has the right to dispose of
their property in a manner they desire. In cases of husband and wife
relationships the same has been said. In Isaac Sithole v Lucia
Sithole HH674/14 at p 9 of the cyclostyled judgment I reiterated
that:
“It
is trite law that a wife cannot bar her husband from selling assets
registered in his name moreso when no divorce action requiring the
distribution of those assets is instituted. However, court can
intervene where a sale is not genuine but is meant to defeat the
wife's cause.”
Equally
in Muswere v Makanza 2004 (2) ZLR 262, MAKARAU J (as she then was)
had occasion to deal with a situation where a husband had disposed of
the house that the wife believed she had a share in. The wife had
argued that the husband should not have disposed it without her
consent. The learned judge at p 266 D-E stated that:
“The
position in our law is therefore that a wife cannot even stop her
husband from selling the matrimonial home or any other immovable
property registered in his sole name but forming the joint
matrimonial estate: see Muzanenhamo's case supra. There must be
some evidence that, in disposing the property, the husband is
disposing it at under value and to a scoundrel.….Mere knowledge
that the seller of the property is a married man who does not have
the consent of the wife to dispose of the property is not enough:..”
A
husband has a right to sell a house forming part of the matrimonial
estate but registered in the sole name of the husband without the
wife's consent. There are, however, some instances where court may
intervene such as when the sale is intended to defeat the wife's
just rights. In this regard the spouse seeking court's interference
in the disposal must show the lack of bona fides in the disposal and
that the sale was a sham or simply intended to defeat her just cause.
In
Muzanenhamo & Another v Katanga and Others 1991(1) ZLR 182 (S)
the court held inter alia, that:
“the
rights as between the spouses are personal inter se and do not affect
third parties, regardless of whether the latter are aware of the
dispute.”
And
further that:
“a
wife cannot prevent her husband from disposing of assets unless he is
thereby attempting to defeat her just rights and that….”
Clearly,
therefore, the existence of a dispute between spouses per se would
not be adequate to interfere with the disposal to the third party. If
a spouse is to succeed, he/she has to show that the third party is
guilty of fraudulent intent and there was intention to defeat the
spouse's just rights.
In
Muganga v Sakupwanya 1996 (1) ZLR 217 (S) at 220 F-G MCNALLY JA
re-stated the point in these words:
“The
possibility must exist that no money actually changed hands. And even
if some improvements were effected after the date of transfer (and
for all we know they may have been paid by Mr. Sakupwanya)… I am
satisfied on all the evidence that the learned judge was entirely
correct in coming to the conclusion that Mr Sakupwanya and Miss
Muganga conspired in a scheme to ensure that the Homefield property
should be theirs after the divorce. They deliberately entered into a
transaction designed to deprive Mrs Sakupwanya of the chance to claim
a share in the property.”
In
casu, it was incumbent upon the plaintiff to show that the alleged
sale of the properties was not genuine but was a ruse to deprive her
of her just claim.
The
plaintiff testified that their marriage was characterised by physical
abuse by the first defendant. This had apparently led to her leaving
home on a number of occasions escaping from the abuse. On 11 August
1995 she again left home due to severe assault by the first
defendant. The first defendant later delivered to her some kitchen
items she listed in the list admitted to by first defendant in about
the next month after she had left. That appeared to have been her
share of the matrimonial assets as the first defendant retained the
other property and purported to dispose of it. According to the
plaintiff, the first defendant, by delivering the kitchen items to
her, acknowledged that divorce proceedings were now inevitable. In
anticipation of the divorce he then distributed the assets as he did
which was highly unfair to her cause.
The
plaintiff testified that the first defendant registered the immovable
property in the name of second defendant in an effort to distance the
immovable property from distribution. In a bid to demonstrate that
the registration was fraudulent, the plaintiff alluded to a number of
anomalies such as the speed with which the purported sale was done
and the lack of a good reason for the disposal of the property. She
further argued that the first defendant's assertion that he sold
the property because he had fallen on hard times was not true as, to
her knowledge, the first defendant was employed and had the use of a
company car. The use of a company car was prima facie proof of
employment. In any case, as the wife, she knew he was employed in the
company owned by his former workmate.
The
first defendant, on his part, maintained that he had fallen on hard
times hence he had to sell the property in order to pay school fees
for the children and for family needs.
A
careful analysis of the manner in which the immovable property was
purportedly disposed off does indeed raise eyebrows.
The
first defendant did not dispute that he had the use of a company car
at the time the plaintiff left. He however could not explain why, if
he was not employed by that company, he had use of that company's
car.
The
plaintiff's argument that he was still employed is more probable.
According
to the first defendant, he sold the Stand between October and
December 1995. Both first defendant and second defendant gave that
same time frame giving the impression that neither knew when the
Agreement of Sale was entered into. Such is not the norm in the sale
of valuable property whereby both seller and buyer are not clear on
the date of the sale transaction. The defendants indicated that there
was no written Agreement of Sale. This was just a verbal agreement
between uncle and nephew with no witness to the transaction. The only
person who knew about the sale, not as a witness, was second
defendant's late grandmother. So, not only was the sale secretive
but it was also not recorded anywhere.
When
confronted with such unusual aspects for a sale of an immovable
property, the first defendant had no better explanation serve to
insist that the agreement was not in writing.
According
to the defendants, the purchase price was Z$25,000-00 of which
Z$17,000-00 was to offset a debt the first defendant already owed
second defendant. The balance was to be paid in bits by second
defendant paying for Allan's school fees and giving Allan some
pocket money. The balance he was to send it to South Africa where the
first defendant was relocating to as of December 1995.
Under
cross examination, whilst both defendants maintained that the first
defendant owed second defendant Z$17,000-00, they contradicted each
other materially on the period of accrual of this debt. Under cross
examination, the first defendant said that the debt had accrued over
a period of 5 to 6 months. Calculating the months backwards, it meant
that the debt accrued in 1995. Second defendant, on the other hand,
upon being cross examined as to the period the Z$17,000-00 had
accrued stated that it started accruing from early 1994 to mid 1996.
Upon being asked how he had come to know that it had accrued to a
figure of Z$17,000-00 since they were not recording the borrowings,
second defendant, for the first time, stated that he had been
recording the borrowings in a diary. This diary was apparently not
available.
Clearly
this was an afterthought.
Another
point of inconsistency is that whilst in their evidence the
defendants were in unison that second defendant had loaned the first
defendant a total of Z$17,000-00 and so most of the purchase price
went towards offsetting that loan, neither of them had mentioned this
aspect of a loan and offsetting of the loan using the property in
their pleadings; instead, they had just stated that the property was
sold as the first defendant was hard pressed for money.
The
aspect of being hard pressed for money to meet school fees and other
needs was again not in tandem with the so-called sale as no money was
in fact exchanged at the time of the sale by which the first
defendant could have paid for these needs. It was not the first
defendant's position that he was hard pressed to repay second
defendant's debt but to pay school fees and upkeep costs of the
minor children as the plaintiff was not contributing towards their
maintenance.
It
may also be noted that the loose arrangement the defendants alluded
to left a lot to be desired as a bona fide sale. Neither could be
certain that the full purchase price had been paid as some of the
money was to be paid into a CABS account for school fees for Allan,
some to be paid as pocket money and no record of such was kept, and
the other portion was to be sent to South Africa; and again neither
could say how much was sent to South Africa as no record was kept.
Another
aspect of inconsistency pertains to the cottage.
The
plaintiff testified that as of August 1995 when she left, the cottage
at Stand 24 Goromonzi Business Centre had been built up to window
level. The two defendants, on the other hand, contended that no
cottage had been built to any level.
Second
defendant seemed to suggest that he only started building the cottage
after the approval of the building plan in 2005. Neither defendant
could explain why the plaintiff would insist on this cottage if it
had not been there in1995. The issue of the cottage would not have
been material but for inconsistencies revealed by evidence on it.
Instead of conceding the obvious, second defendant went on to produce
a building plan as confirmation that he only started the construction
of the cottage after the approval of that plan. Unfortunately, there
are unexplained anomalies on that plan that can only point to it
being a doctored document.
A
careful examination of that plan shows that the Stand for which it
was drawn is a 50m by 50m Stand which implies a 2,500 square metres
Stand. Second defendant, on the other hand, stated that Stand 24
Goromonzi is 2,000 square metres in size. That anomaly in the size of
the Stand was not explained. Further, the Stand number on the upper
and lower sides of the site layout plan is deleted and a new number
'24' endorsed. However, on the right hand side of the site lay
out plan the number '154' is endorsed. It would appear that the
deleted Stand number was in fact 154 throughout and in the process of
deleting the correct number, whoever was deleting the original number
and replacing it with 24, inadvertently omitted to delete the Stand
number on the right hand side.
I
did not hear the defendants to state that Stand 24 was originally
154.
I
am of the view that the authenticity of this plan is questionable.
The anomalies point to a document that was clearly tampered with.
Another
aspect not consistent with the defendants' case is that the summons
was issued on 14 July 2005 and the plan they tendered is dated 11
August 2005 and 11 August 2006. This would imply that the plan was
submitted and/or approved after the summons had been issued.
If
the cottage was only constructed after the approval of the plan, how
did the plaintiff know that such a cottage was in the offing so as to
include it in the summons as something that was there when she left
the Stand?
It
was clear to me that the defendants concocted the story of the
cottage not having been there at the time the plaintiff left the
matrimonial home. The only reasonable inference that can be drawn
from such conduct is that the two defendants were colluding to deny
the plaintiff what is justly due to her.
The
net effect of the above anomalies is that the claim by the defendants
that Stand 24 was sold in a bona fide sale transaction is not
credible. The defendants, as uncle and nephew, simply colluded to
ensure the Stand was registered in the name of second defendant as
soon as plaintiff had been given what the first defendant deemed she
culturally deserved as a wife at the dissolution of a marriage so as
to distance it from any possible claim by the plaintiff. It was in
that same spirit that the first defendant claimed to have sold the
other movable assets within a few months after the plaintiff had
left.
I
am of the view that the fact that the assets were alleged to have
been disposed off soon after the separation should not deprive the
plaintiff of a meaningful share thereof.
Indeed
the first defendant tendered documents of court cases he brought
before the courts of law claiming custody and maintenance, but in my
view those may not have much relevance. The issue of custody was in
1990 after plaintiff had left due to marital problems. The issue of
maintenance was after the plaintiff had now left for good in 1995. If
this was meant to buttress the assertion that he was hard pressed for
money to look after the children, this only arose after he had
already disposed the property. If he had disposed the property for
value, he ought to have used these proceeds for the children but,
alas, he did not.
The
maintenance order is dated 27 October 1995, a period he was already
busy disposing the property according to his story.
Having
concluded that plaintiff is entitled to a meaningful share the issue
becomes what is the just and equitable distribution of the assets and
in what manner.
In
terms of her amended claim, the plaintiff's claim in respect of the
movable property was for a division of movable assets listed under
paragraph 8 of her declaration in equal shares, failing which,
payment of 50% of the value of the property by the first defendant.
In
respect of Stand 24 Goromonzi her claim was couched as follows:
Division
of Stand No. 24 Goromonzi Business Centre, Goromonzi in equal shares,
failure of which payment of 50% of the value of the property, which
value shall be determined by a valuator from the Master's list of
Valuators.
The
distribution of assets of the spouses at the dissolution of a
marriage is governed by section 7 of the Matrimonial Causes Act
[Chapter 5:13]. In the exercise of the powers bestowed on it, an
appropriate court exercises wide discretion.
It
terms of setion 7(4) of the Act court is enjoined to consider all the
circumstances of the case and to endeavour as far as is reasonable
and practicable to place the spouses and the children in the position
they would have been in had a normal marriage relationship continued
between the spouses.
In
casu, it is common cause that both parties were in gainful
engagements and thus directly and indirectly contributing towards
their matrimonial estate. It is also a fact that their marriage was
saddled with marital problems such that the plaintiff ran away from
the matrimonial home on a number of occasions. Though the first
defendant wanted to use the running away as evidence that the
plaintiff did not contribute much and did not care much for the
children, he could not succeed because he conceded that the
plaintiff's absences from home were a result of violence in the
home. Under cross examination he indicated that the plaintiff had
deserted the family about 10 times. He, however, could not with
certainty count the 10 times. It was, nevertheless, put to him that
the cause for the plaintiff to run away from was his physical abuse
of her and his response was that:
“It
takes two to tangle. When you say can I have a glass of water and she
says forsake.”
This
was an admission of the constant violence in the home as the cause
for the plaintiff to run away from home.
When
she ran away on 11 August 1995 it was to be for good.
In
terms of the Matrimonial Causes Act the assets to be considered in
the distribution are assets owned or held by the spouses individually
or jointly as at the time of the dissolution of the marriage.
In
casu, though the first defendant alleged that he had disposed the
movable assets I ruled that that was intended to deprive the
plaintiff of her just share. Whilst the plaintiff, on her part,
delayed in instituting divorce proceedings for a period of 10 years,
that should not prejudice her.
If
at all the assets in paragraph 8 are no longer available to be valued
the first defendant must still be ordered to pay plaintiff some value
in lieu of her share in those assets.
Accepting
that just because defendant said the property is no longer available
and therefore plaintiff should lose out would only work to encourage
persons in the mould of the first defendant to quickly dispose
matrimonial assets and plead that the assets are no longer available
for distribution as soon as spouses go on separation.
The
values plaintiff had given in the summons were in Zimbabwean currency
and those are of no relevancy now. No effort was made to ascertain
the values of the items after dollarization. I will thus indicate
which items plaintiff should be awarded and whose value she should be
paid if the first defendant is unable to deliver the assets.
On
the immovable property, that is still available and can be valued.
I
am of the view that taking into account all the factors including,
the needs of the spouses, the direct and indirect contribution by the
plaintiff to the marital estate and the duration of the marriage, it
is only just and equitable that plaintiff be awarded a 35 percent
share of the value of the property; Stand 24 Goromonzi Business
Centre.
The
plaintiff did not seek the disposal of the property but that she be
paid her just share. It is thus upon the first defendant to pay the
35 percent share.
Accordingly
it is hereby ordered that:
1.
A decree of divorce be and is hereby granted.
2.
In addition to the property already in her possession, the plaintiff
is hereby awarded the following movable property:
(i)
Kelvinator Stove;
(ii)
Fridge.
(iii)
Double bed and headboard.
(iv)
Dining room suite (8 seater table and chairs and two side boards).
The
first defendant is awarded the rest of the movable property as his
sole and exclusive property.
Of
the movable property awarded to the plaintiff, should the first
defendant fail to deliver such within 30 days from the date of this
order, the plaintiff shall be entitled to the replacement value of
the items in question in their second hand state. The parties shall
agree on comparable items and have such valued by a dealer in second
hand items of such a nature. Should the parties fail to agree on such
a dealer one shall be appointed for them by the Registrar of the High
Court.
3.
The plaintiff be and is hereby awarded a 35 % share in the immovable
property, namely, Stand number 24 Goromonzi Business Centre,
Goromonzi whilst the defendant retains 65% share.
4.
The parties shall appoint a mutually agreed valuator within 30 days
of this order failing which the Registrar of the High Court is hereby
directed to appoint a valuator from his list of independent valuators
to value the property.
5.
The defendant shall bear the costs of valuation.
6.
The first defendant shall pay plaintiff the 35% value of the property
within 6 months from the date of receipt of the valuation report, or
within such longer period as the parties may agree.
7.
Should the defendant fail to buy out plaintiff within the period
stated in clause (6) above, the property shall be sold to best
advantage by an estate agent mutually agreed by the parties. Should
the parties fail to agree on an estate agent, one shall be appointed
for them by the Registrar of the High Court from his list of Estate
Agents.
8.
The net proceeds from the sale shall be distributed in terms of the
sharing ratio of 35:65 as between the parties.
9.
Each party shall bear their own costs of suit.
Chihambakwe
Mutizwa & Partners, plaintiff's legal practitioners
H.
Mukonoweshuro & Partners, defendants' legal practitioners
