UCHENA J:
In
1966 the plaintiff fell in love with the defendant. In 1967 they
started living together as husband and wife while the plaintiff was
paying lobola. When lobola had been paid to the satisfaction of the
in-laws they registered their customary law union in 1972. When the
parties got into the customary law union in 1967 the defendant had
just left school after attaining a Junior Certificate level of
education. The plaintiff was then employed as an extension officer by
Connex.
During the subsistence of the marriage he
rose in status and was able to first buy a house in Kambuzuma, then
Greendale and later Christon Bank. He eventually bought Wonder Valley
Farm the major property in dispute in this case.
The defendant was, in the early stages of
the marriage, a house wife. With the assistance of the plaintiff she
studied and passed 'O' levels, trained as a bookkeeper/secretary
and driver. She worked during the period 1980–1986. Her earnings,
compared to the plaintiff's, were insignificant. The plaintiff was
generous as he did not make demands on her earnings. He allowed her
to use her salary as she pleased. She said she used all her earnings
in the home. Plaintiff conceded that she would buy bread and milk
and give children pocket money.
The plaintiff initially moved to Wonder
Valley Farm on his own leaving his family in rented accommodation in
Marlborough, Harare. He said it was because his wife was against the
acquisition of the farm. She said it was because children had to wind
up their schooling at the schools they were attending before being
moved to boarding schools then she would join her husband at the
farm. She eventually left employment and joined him at Wonder Valley
Farm in 1987.
They stayed together at Wonder Valley
Farm from 1987 till October 2002 when plaintiff send his wife to
their eldest daughter for counselling. He subsequently send all her
personal belongings to her parents indicating that he no longer loved
her.
The plaintiff has now issued summons
seeking the following orders:-
(a) A decree of divorce.
(b) An order that the matrimonial
property be divided between the parties in terms of paragraphs 9 and
12.
(c) An order that defendant be awarded
maintenance in terms of paragraph 14.
(d) Each party bears their own costs.
In paragraph 9 of his declaration the
plaintiff offers the defendant all movable assets mentioned in
paragraph 7 and 8 except an Imperial upright freezer and a washing
machine.
In paragraph 12 the plaintiff sought to
be awarded the sole ownership of all shares in the company
controlling Wonder Valley Farm and that the defendant be awarded sole
and exclusive ownership of the poultry project on the farm.
In lieu of maintenance in the sum of
$600,000.00 per month he offered the defendant a B.M.W. motor
vehicle.
In reconvention the defendant seeks the
following orders:-
(a) a decree of divorce.
(b) Maintenance for herself in the sum of
$2,000,000.00 per month until she dies or remarries.
(c) 50% of the value of Wonder Valley
Farm.
(d) 50% of the Domboshawa house.
(e) 25% of the assets of the farm.
(f) 50% of the value of the movable
assets in her annexure B.
(g) That the movables be shared as
suggested by the plaintiff.
(h) That the plaintiff pays costs of
suit.
At the pre-trial conference the following
issues were agreed -
(1) Whether the breakdown of the marriage
relationship was at the instance of the defendant or the plaintiff.
(2) Whether the properties listed by the
parties were acquired during the subsistence of the marriage as
alleged or at all.
(3) Whether the property proven to have
been acquired during the subsistence of the marriage should be shared
as proposed by the plaintiff or as proposed by the defendant.
(4) Whether the defendant is entitled to
maintenance from the plaintiff. If so, the rate thereof.
I must at the outset say from the
evidence led this seems to have been a happy marriage which remained
so for 35 years. Four children were born to the marriage, two boys
and two girls. The children were educated at expensive multi-racial
schools and the girls have acquired high qualifications. The boys too
have achieved success in life. All the children are now adults. The
girls are now married. The elder one lives in Harare. The younger one
lives in Germany. The boys are twins. One is in the United Kingdom.
The other is in Harare and is currently staying with the defendant in
Vainona. He got married in 2002, at the time the parents' marriage
had landed on marital rocks. His wedding seems to have been the final
breaking point after the marriage had been severely tested by the
parents' disagreement on when to go and see their grandchild born
to their younger daughter living in Germany.
The Irretrievable Breakdown of the
Marriage
The parties blamed each other for the
breakdown of the marriage.
According to the plaintiff it was because
the defendant went to Germany without his authority and thereafter
she influenced Ronald to go ahead with his wedding with or without
his blessing.
Evidence led reveals that the parties
should have gone to Germany together. They disagreed on when they
should have gone. The plaintiff said they should have gone after
harvesting. The defendant agrees that that was the issue they
disagreed on. She then opted to go alone. When she returned they did
not talk to each other. The tension in the home resulted in the
plaintiff calling a meeting at which the family discussed Ronald's
wedding. He asked Ronald to postpone the wedding. The defendant
objected and told Ronald to go ahead with the wedding with or without
the plaintiff's involvement. The plaintiff did not attend his son's
wedding as a result. He only sent him his wedding gift of
$1,000,000.00.
The plaintiff thereafter send the
defendant to their eldest daughter for counselling. She did not come
back and that marked the end of a marriage of 35 years.
The defendant, in evidence, said the
plaintiff's lack of love for the children and his infidelity caused
the breakdown of the marriage. She mentioned his not being in a hurry
to go and see their daughter and grandchild in Germany and ordering
the postponement of Ronald's wedding as examples. She mentioned his
being in love with other women.
The plaintiff gave his evidence well. He
struck me as a firm man who brooks no nonsense. I have no doubt that
his version is the truthful one as to what caused the breakdown of
the marriage. His evidence is supported by the defendant's on the
events leading to her being sent to their daughter for counselling.
While the plaintiff's reaction to the
defendant's apparent challenge on the two issues involving the
children may not depict him as a caring and loving father, the manner
in which he brought up his children certainly proves he is a loving
and responsible father.
The issue is simply what caused the
breakdown of the marriage?
In my view though the defendant had
suspicions that the plaintiff was not being faithful to her, that
certainly played no part in the breakdown of the marriage. It is
common cause that they had both gone for AIDS tests and they were
found to be negative. They continued to happily live together as
husband and wife until the issue of the Germany visit arose.
As already indicated trouble started on
the disagreement over the visit to Germany to see their younger
daughter and a grandchild and Ronald's wedding was the final
breaking point. It seems to me both were strong-headed and none was
prepared to defer to the other.
As the plaintiff's reasons for the
breakdown of the marriage have been confirmed by the defendant's
evidence, he will be granted the divorce he seeks.
Distribution of Assests
Though the couple started from humble
beginnings they ended up as prosperous farmers and owners of a farm,
a company which runs the farm and various farm and household movable
assets. Their standard of living and the involvement of a company
justified the hearing of their case by this court in spite of their
having been married in terms of customary law.
Among their assets there generated
disputes as to whether or not they are matrimonial assets.
The Domboshawa House
It is common cause that the defendant
left the matrimonial home in October 2002.
It is also common cause that the
plaintiff was, at that time, building a house in Domboshawa, the
couple's rural home.
The plaintiff said when the defendant
left the house was at foundation level. The defendant says it was at
roof level.
It is trite that property which was in
existence at the time defendant left the matrimonial home is
matrimonial property.
The
fact that the house was completed after she had left can merely
reduce her share of the value of the completed house. This is because
a spouse cannot have a share in what was acquired independently by
the other spouse after she or he had left. This position is supported
by the Supreme Court's decisions in the cases of Daniel
Mujuru v Daphine Mujuru
SC4/2000 and Ruth
Pasipanodya v Kosmas Mushoriwa
SC146/98 which I will deal with later in this judgment.
The defendant however alleges that after
she had left, the plaintiff used proceeds from their matrimonial
property to finance the building of the Domboshawa house. In
particular, she alleged he had no source of income other than that
from Wonder Valley (Pvt) Ltd a company in which she is a 25%
shareholder. I will resolve the issue later.
The Mazda 626 and No. 12 Lomagundi
Road
At
the end of the plaintiff's case, the defendant applied to amend her
counter claim by including a claim for a share in a Mazda 626 and No.
12 Lomagundi Road which were acquired by the plaintiff at the end of
2003 and 2004 respectively. The defendant had left the matrimonial
home on the 7th
of October 2002.
It is conceded that the Mazda 626 and No.
12 Lomagundi Road were acquired by the plaintiff after the defendant
had left the matrimonial home.
Mr
Chihambakwe
for the defendant's argument was that the plaintiff had no other
source of income besides their company's farming operations at
Wonder Valley Farm, so the two were bought from proceeds of the
farming operations and are therefore matrimonial property.
The law on whether or not property
acquired after separation forms part of a matrimonial estate is
clear.
In
the case of
Ruth
Pasipanodya
v Kosmas Mushoriwa
SC146/98 at page 4 of the cyclostyled judgment KORSAH AJA said:-
“It
would be setting a dangerous precedent if a spouse, several years
after the breakdown of the marriage, were allowed to claim a half
share of property acquired by the other spouse after such breakdown
and which was
not in existence during the period
of their co-habitation.” (emphasis added)
The parties had separated before the
purchase of a house they were renting. After the appellant had left,
the respondent, on his own, bought the house. The appellant, after
summons had been issued, made an unsolicited payment for the house to
the Building Society which had funded the respondent in purchasing
the house. The court found the house was not matrimonial property and
that the unsolicited contribution did not make it part of the
couple's matrimonial property. The appellant was refunded the money
she had deposited into the Building Society's Account. The house
was held to belong to the respondent.
In the present case, this could have
applied to the Mazda 626 and No.12 Lomagundi Road if there was no
allegation that these assets were bought using funds from Wonder
Valley (Pvt) Ltd's operations as the plaintiff has no other source
of income.
Mr
Chihambakwe
also
submitted that since company money was used to acquire the assets
they belong to the company and defendant being a shareholder is
entitled to a share of their value. I will deal with that later.
In
the case of Daniel
Mujuru v Daphine Mujuru
SC4/2000 at pages 1 – 2 of the cyclostyled judgment McNALLY JA
said:-
“But
the property in Dzivaresekwa was not dealt with in the order because
the learned judge was satisfied that it did not fall into the
matrimonial estate. It was her separate property acquired with
financial help from her mother at a time when she had fled the
matrimonial house and had nowhere to house her children. The husband
in fact did not even know about this property until shortly before
the court proceedings began........
I see no reason to disbelieve her on
these matters. The learned judge found her to be credible. Mr Kawonde
sought to suggest, on no basis at all except hypothesis, that she
might have saved up enough from the allowance her husband gave her to
accumulate the $6,500.00 which was the initial payment of the
Dzivaresekwa property. I must confess I find this submission fanciful
in the extreme.....”
This case again puts beyond doubt that
property acquired by a spouse after the breakdown of a marriage is
not matrimonial property.
The issue in this case is what happens if
proceeds of the matrimonial estate are used to buy property after the
other spouse has left. Does property bought using such proceeds fall
into the matrimonial estate?
In my view it should and I will
illustrate from the following example.
Assuming a couple owns 100 head of cattle
on separation and the departing spouse leaves the herd with the
remaining spouse. It is clear that he or she is entitled to a share
of the 100 herd of cattle. In fact, he or she will also be entitled
to a share of calves born to the herd which belong to the undivided
matrimonial estate. If the spouse in charge of the cattle were to
sell some of the claves and buy a house; the house would be
matrimonial property.
The reason why the calves and proceeds of
their sale are matrimonial property is because they can be traced to
have come directly from what is clearly matrimonial property.
In cases where the property in issue
cannot be directly traced and be linked to matrimonial property such
a finding is not possible.
A further example will demonstrate this.
Assuming the 100 herd of cattle was left
in circumstances where it was known which cow, ox or bull belonged to
which spouse it can, in such circumstances, be proved which calf
belong to which spouse. Evidence would have to be led as to which cow
gave birth to the calf before the spouse who departed can claim it.
If the spouse in charge of the cattle sells calves which are his, the
other spouse cannot claim what he bought with such proceeds as the
proceeds cannot be traced back to their matrimonial property.
In the present case the facts are closer
to the first example.
Mr
Matinenga
for the plaintiff submitted that as the defendant was alleging that
her share was used she should have led evidence to prove it.
The
issue is not simply that of proving that her share was used. In my
view, the defendant's allegation is supported by the law. A company
is a separate legal persona.
It therefore enjoys its own separate legal existence apart from its
shareholders. It also has legal ways of distributing dividends to its
shareholders.
In the present case, Mr Gonye did not
allege that he was paid a dividend or salary by the company and that
he used such monies to buy the Mazda 626 and No. 12 Lomagundi Road.
It is common cause that he had no other source of income besides that
from Wonder Valley (Private) Ltd. In the absence of proof that he
used money other than that from Wonder Valley (Pvt) Ltd's
undeclared dividends I am satisfied that the defendant has proved her
claim to the Mazda 626 and No.12 Lomagundi Road as they were bought
with proceeds from Wonder Valley (Private) Limited a company in which
she is a shareholder.
It must be noted that there are 4
shareholders each holding 25%. Therefore only 50% of the value of
the Mazda 626 and No. 12 Lomagundi Road belongs to the matrimonial
estate. The other 50% belongs to Ronald and Donald who were not
involved in these proceedings. There is no reason why the property
should not be distributed in terms of the parties shareholding in the
company.
In the result, I would award the
defendant 25% of the value of the Mazda 626 and No.12 Lomagundi Road.
Coming back to the Domboshawa house, the
evidence led is that part of the house was built after the defendant
had left. If the plaintiff had means distinguishable from that of the
matrimonial estate the defendant would not have been entitled to a
share of the whole house as she would not have contributed to what
was built after she had left.
As to the extent of development at the
time she left I will accept the plaintiff's version to the
defendant's. This is because I found the plaintiff to be an honest
witness. He was prepared to concede details against his interest if
that was the truth. He admitted his being challenged by his wife
about the alleged affair with Eunice. He admitted that they had to go
for an AIDS test. He struck me as a man who does not avoid the truth.
On the other hand, though the defendant
was generally truthful she was not as forthright as the plaintiff.
On this aspect the defendant was relying
on what she heard as she never set foot on the Domboshawa house. The
plaintiff was in charge of the construction and was therefore better
placed to know the stage of development at the time his wife left the
matrimonial home.
I have already found that Mr Gonye used
proceeds of Wonder Valley (Private) Ltd as he had no other source of
income according to the common cause evidence. When he left
employment he ploughed all they had into Wonder Valley Farm. He is
not employed elsewhere. Therefore, his only source of income is
Wonder Valley Farm which is operated by the company Wonder Valley
(Pvt) Ltd. All proceeds of the farming operations accrue to Wonder
Valley (Pvt) Ltd. They can only be accessed in terms of company law.
Mr Gonye did not explain how he accessed
the money he used to build the house from Wonder Valley (Pvt) Ltd.
There is therefore merit in the defendant's allegation that he used
company money to build the house.
Therefore, the defendant's evidence
that he used company funds to build the house is sufficient to bring
the whole Domboshawa house into the matrimonial estate. The defendant
is therefore entitled to a share of the whole house even though part
of it was built after she had left.
Even if Wonder Valley Farm was not
operated by a company I would have arrived at the same conclusion but
with different percentages for the parties. This would have been
based on the use by the plaintiff of the proceeds of the undivided
matrimonial estate.
Before the defendant left they were, by
virtue of their being married to each other, joint owners of Wonder
Valley Farm - and they still are. Mr Gonye has no other means of
raising income besides farming on the matrimonial farm using
matrimonial assets. What he earned would have been proceeds of an
undivided matrimonial estate. He would have been awarded a higher
percentage because of his higher contribution in the farming
operations when defendant's contribution would have been diminished
by her absence from the farm and her not participating in the farming
operations.
I must now consider what share of the
Domboshawa house the defendant is entitled to.
Her contributions to the matrimonial
estate was mainly indirect while the plaintiff's was direct. She
looked after the house, children and the plaintiff. It is common
cause that the plaintiff's hard work landed the couple on the
fortune they are now in court to share. Defendant described the
plaintiff as a very hard working man. He got to the extent of
personally ploughing fields for a fee to raise income to buy Wonder
Valley Farm. On her part the defendant bore him children, two sons
and two daughters, who were, through their joint effort, raised to be
prosperous adults in their own right.
In spite of all this, the Domboshawa
house has to be shared on the basis that the defendant is a
shareholder of Wonder Valley (Pvt) Ltd whose proceeds were used to
build the house. She is a 25% shareholder and he is a 25%
shareholder, therefore only 50% of the house falls into the
matrimonial estate. The other 50% belongs to shareholders who are not
before me. There is no reason why each party should not be awarded
what is due to him or her in terms of the company's shareholding
structure. The defendant is therefore awarded 25% of the value of the
Domboshawa house.
The Household Movables
The couple has many movables. The
plaintiff is prepared to give most of them to the defendant. He only
wants an Imperial upright freezer and a washing machine.
The defendant only wants 50% of the
movables but reluctantly accepts the plaintiff's offer. The
plaintiff had sought to trade in the movables for the shares as he
wanted all the shares of Wonder Valley (Pvt) Ltd. I refer to
paragraph 12 of the plaintiff's declaration.
I must point out that the plaintiff's
request in paragraph 12 cannot be granted. Only 50% of the shares can
be dealt with. That which belongs to him and his wife. I cannot deal
with their two sons' shares as that is not part of the matrimonial
estate and the claim is against persons who are not parties to the
case before me.
I will therefore award the defendant all
the household movables except the Imperial upright freezer and the
washing machine. My decision is based on the plaintiff's offer and
defendant's reluctant acceptance of more than half of the movables.
As a wife who used those movables she is entitled to them. In fact
she will suffer no harm by being given more than she asked for.
The Shares
As regards the shares evidence led proves
each party holds 25% of the company's shares. The plaintiff sort
to be granted all the shares. I have already said that cannot be done
as their two sons hold 50% of the issued shares. In my view there is
no need to temper with the percentages of the parties. The plaintiff
gave his wife and children shares in the company. I see no reason why
any of her shares should be taken from her and be given to him.
However I appreciate that the parties want a complete break from each
other. She does not wish to remain a shareholder in the company and
he does not wish to remain associated with her through the company.
To achieve that he has to buy her out. He has to pay her 25% of the
net value of the company as at the date of divorce.
The Farm, Farm Equipment and Farm
Movables
The
plaintiff told the court that the farm, equipment and cattle now
belong to the company. He produced a balance sheet prepared for
presentation to a Bank to which they were applying for a loan as
proof that the farm belongs to the company. Only one such document
was produced.
In evidence, the plaintiff, being a man
who does not avoid the truth, conceded that he could not say whether
or not the farm was company property by virtue of Exhibit 6. He
conceded that according to the title deeds he is still the owner of
the farm. He could not produce proof showing that the farm was bought
by the company. He conceded that he was not paid by the company for
the farm. There is no company resolution in which the sale of the
farm is dealt with.
The defendant said the company was formed
so that they could borrow money and protect the farm and assets
against execution in the case of failure to repay loans or death.
I
found the defendant's explanation consistent with the truth and the
probabilities raised by comparing the value or authenticity of what
is stated in the title deeds and a balance sheet prepared for
purposes of obtaining a loan. I find that the title deeds contain the
correct position on the ownership of the farm. The fact that the
assets are also said to be company property when they have not been
purchased by the company from the plaintiff leads me to the
conclusion that they too still belong to the plaintiff and the
defendant. They are matrimonial property.
I have already found that the defendant's
contribution was mainly indirect in respect of all movable assets. It
was also indirect in respect of the farm. As regards the farm, the
plaintiff said she had to be persuaded to agree to go to the farm and
that while at the farm she refused to do the farm books. She said she
remained in Harare pending their putting the children in boarding
school. On refusing to do the books she said she could not do them.
I
found her version unreliable as she should have attempted to do the
books to the extent she could instead of taking the stance she did.
After considering that the plaintiff was the direct contributor and
hard worker and that the defendant was initially reluctant as regards
the farm and that she only contributed indirectly in its purchase and
that of the farm implements I would grant the plaintiff 70% of the
value of the farm, farm movables and the farm equipment and defendant
30%.
Maintenance
The defendant applied for maintenance in
the sum of $2,000,000.00 per month.
The
plaintiff does not dispute that she is entitled to maintenance. He is
in fact currently paying her maintenance in the sum of $600,000.00
per month as ordered by the Magistrates Court. In this case, he has
offered her the BMW in lieu of maintenance.
The defendant turned down the offer and
insisted that she wants to be maintained.
In my view, the only issue to be
determined is the quantum of maintenance as the BMW has already been
shared under farm equipment and movables.
In
evidence, the plaintiff did not dispute most of the defendant's
expenses. All he sort to do was to give the plaintiff the BMW so that
she could sell it and use the proceeds to start her own business from
which she would earn an income and cease to be his dependant.
The defendant insisted on maintenance and
even sought an amount exceeding $2,000,000.00. Her counsel reminded
her that the application was for $2,000,000.00 and that there had
been no amendment to the amount claimed.
The defendant's evidence on the
breakdown of expenses is satisfactory. In view of the effect of
inflation, her claim for maintenance in the sum of $2,000,000.00
cannot be said to be exaggerated. It is in fact on the lower side. I
would therefore find that the defendant is entitled to the amount
claimed. The plaintiff is clearly a man of means. He is, in my view,
well able to pay to his wife maintenance in the sum of $2,000,000.00
per month. An award to that effect will be granted.
Valuation
Both parties have had the properties in
dispute, except the Mazda 626 and No.12 Lomagundi Road, valued. The
plaintiff's valuation is earlier than that of the defendant.
Neither party was able to challenge the valuation of the other. In
addressing the court, counsels for both parties agreed that in
respect of each property the value to be relied on be the average
obtained by adding the plaintiff and defendant's valuation and
dividing that figure by two. I am satisfied that this is a
satisfactory way of arriving at the value of the matrimonial estate.
Acquisition of Wonder Valley Farm
by Government
At the end of these proceedings counsels
for both parties undertook to advise the court on whether or not the
farm was being acquired by Government.
They have not written to the court as
they had promised to do. They could have easily verified this fact by
making inquiries with the Ministry of Lands.
The issue can however be resolved from
the evidence.
All the plaintiff said was that
Government at some stage had shown interest in the farm. The
defendant said Government clearly has no interest in the farm and
that Wonder Valley Farm (Pvt) Ltd is continuing with its farming
operations unhindered.
This seems to be the situation on the
ground.
The plaintiff did not say Government took
any further steps to acquire the farm. In the circumstances I find
that the farm is still matrimonial property and will be distributed
between the plaintiff and the defendant as has already been
indicated.
In the result it is ordered as follows:-
1.
That a decree of divorce be and is hereby granted in terms of the
plaintiff's claim.
2.
That the defendant be awarded all the household movable assets except
the Imperial upright freezer and a washing machine which are awarded
to the plaintiff.
3.
That the defendant be awarded:
(a) 25% of the value of the Mazda 626 and
No.12 Lomagundi Road which shall be valued by a valuer from the
Master's Office's list of valuers.
(b)
That defendant be awarded 25% of the value of the Domboshava House.
4.
That the farm (Wonder Valley Farm), the farm equipment, farm movables
including the herd of cattle be shared at the rate of 70% for the
plaintiff and 30% for the defendant.
5.
That the defendant is awarded 25% of the value of Wonder Valley (Pvt)
Ltd.
6.
That the value of the assets to be shared under 3(b), 4 and 5 shall
be obtained by adding the plaintiff's and defendant's valuations
and dividing that figure by two.
7.
That the plaintiff shall maintain the defendant at the rate of
$2,000,000.00 per month until she dies or remarries.
8.
That the plaintiff is granted the option to buy out the defendant in
respect of orders 3, 4 and 5 by not later than the 30th
July 2006.
9.
That the plaintiff shall pay the defendant's costs.
Messrs Scanlen & Holderness,
the plaintiff's legal practitioners
Messrs Chihambakwe, Mutizwa &
Partners, the defendant's
legal practitioners
