MAWADZE J: I apologise
unreservedly to both parties involved in this matter for the obvious
inordinate delay in availing this judgment. Advocate Uriri as per the
written closing submissions explained the delay in submitting his
written closing submissions and apologised profusely to all the
parties concerned. This inordinate delay is explained as follows;
The trial commenced on 2 April
2012 and it was only concluded on 26 July 2013 when I interviewed the
perpetual minor in my chambers after the conclusion of hearing viva
voce evidence in court on 25 July 2013. It was agreed that the
plaintiff's closing written submissions would be submitted by 9
August 2013 and the defendant's closing written submissions by 30
August 2013. However, in plaintiff's closing written submissions
were submitted on 17 September 2013. The defendant only submitted the
closing written submissions on 5 June 2014 after which the plaintiff
filed the response on 17 July 2014. In view of the protracted nature
of the trial and the voluminous documentary evidence to be perused,
it also took me considerable time to prepare this judgment. The
apology by Advocate Uriri is extended the plaintiff and her counsel.
I now turn to the matter.
The plaintiff wife issued summons
out of this court on 5 August 2010 seeking a decree of divorce on the
grounds that the marriage relationship between her and the defendant
husband has irretrievably broken down. In her claim the plaintiff
wife sought an order in respect of the then two minor children,
maintenance in respect of those two minor children and herself and
the division or sharing of the assets of the parties.
The parties married each other in
terms of the Marriage Act [Cap 5:11] in Harare on 1 September 1990.
The marriage was blessed with three male children, being Murray John
Coumbis the eldest now an adult and the two who are twins Anton
Phillip Coumbis (Anton) and Julian Ronald Coumbis (Julian) born on 3
July 1994. They are now both 20 years old but Julian is a perpetual
minor on account of his mental state which fact is not in issue. At
the time the trial commenced on 2 April 2012 the plaintiff was now
seeking custody of Julian only as Anton is now a major.
In her declaration, the plaintiff
outlined a number of reasons as to why the marriage relationship
between the parties has irretrievably broken down placing all the
blame on defendant's shoulders. These reasons include the
following;
(i) That the defendant consumes
liquor to excess at the distress of the plaintiff.
(ii) That the defendant has
ill-treated the plaintiff in controlling, selfish, abusive,
belittling and humiliating manner both in private and public.
(iii) That the defendant has
neglected the plaintiff in favour of his own recreational pursuits to
the distress of the plaintiff.
(iv) That the defendant has acted
in improper and inappropriate manner with other women.
(v) That the parties have been
living separately from one another since February 2010 and that the
plaintiff has no intention of restoring cohabitation to the defendant
.
(vi) That the plaintiff believes
both parties have lost love affection and respect for each other and
that divorce is the only option.
In respect of maintenance for
Julian the plaintiff is claiming payment of the full school account
and an amount of US$2,000-00 per month.
The plaintiff also wishes to
reside at the matrimonial home No. 6 Northwood Rise, Mt Pleasant
Harare. In respect of the property matters, the plaintiff seeks half
share of the value of all the assets owned by the parties and seeks
to be declared the exclusive owner of the following assets
unencumbered;
1. No. 6 Northwood Rise, Mt
Pleasant, Harare.
2. No. 94 Matumi Sands, Lonehill
in South Africa.
3. No. 112 Matumi Sands, Lonehill
in South Africa.
4. No. 6 Rose Friars, Avondale
Harare.
5. Property known as Belgravia
House.
6. Cash in the sum of
US$1,000,000-00.
7. A motor vehicle Nissan Navara
Registration No ADB 6847.
8. An equal division by value of
all household, furniture, contents and effects.
9. Full repayment to the
plaintiff of an amount of inheritance funds totalling €10,400-00
together with interests thereto at the agreed rate of 8.5% per annum
with effect from September 2009.
10. An order declaring the
plaintiff as the sole and exclusive owner of all her personal items
including jewellery.
In his plea and counterclaim
filed on 5 October 2010 the defendant accepted that the marriage
relationship with plaintiff has irretrievably broken down but denied
that he is responsible. Instead he blamed the plaintiff and outlined
the following reasons.
(a) That throughout the marriage
the plaintiff has improperly associated with other men.
(b) That the plaintiff has failed
to treat the defendant with love, respect, support, intimacy,
companionship and friendship as is expected between husband and wife.
(c) That the plaintiff has been
very abusive both physically and emotionally towards both the
defendant and the children of the marriage to the extent that the
children do not want to be near her.
(d) That the plaintiff is in the
habit of snorting strong intoxicating drugs whose effects has
seriously affected the marriage.
The defendant disputes that
custody of the minor child Julian be awarded to plaintiff considering
plaintiff's alleged violent nature, carelessness and cruelty
towards the children. Instead the defendant seeks custody of Julian
and that plaintiff contributes 25% of the total cost of the
maintenance and upkeep of Julian.
The defendant is of the view that
the plaintiff is not entitled to maintenance after the divorce as she
has worked for her entire life and is currently running a successful
business hence she is a person of means. In relation to the claim of
€10 400-00 the defendant contends that this money was loaned to a
company and that plaintiff cannot claim it in terms of section 7(1)
of the Matrimonial Causes Act [Cap 5:13].
In respect of the immovable
property listed by the plaintiff the defendant stated as follows;
1. That No.6 Northwood Rise, Mt
Pleasant, Harare should be shared with each party getting a half
share and defendant being given the option to buy out the plaintiff.
2. That No. 94 Matumi Sands,
Lonehill in South Africa is not part of the matrimonial estate as 50%
is owned by a third party (who is not named) and that the defendant
is only a shareholder for Murray John Coumbis who would use his share
to fund his university education.
3. That No. 112 Matumi Sands,
Lonehill in South Africa is not part of the matrimonial estate as
half title and rights are legally registered in the name of
defendant's sister and that defendant is a nominee shareholder.
4. That Belgravia House is owned
by a company called Stircrazy in which the defendant is a 20%
shareholder. The defendant is offering the plaintiff 10% share in
this property.
5. That No.6 Rose Friars in
Avondale, Harare is not part of matrimonial estate and that the
defendant is not connected to it at all.
6. That the motor vehicle in
question, a Nissan Navara, which plaintiff claims is owned by a
company called Stircrazy and cannot be deemed to be an asset of the
parties.
In terms of the joint pretrial
conference minute dated 14 June 2011 the following issues were
referred to trial;
“The issues for trial were
agreed as follows:-
2.1 To whom should custody of the
minor children be awarded.
2.2 If plaintiff is awarded
custody of the minor children;
2.2.1 What is the proper level of
maintenance by defendant in respect of the minor children.
2.2.2 Should plaintiff be
permitted to reside with minor children in the former matrimonial
home.
2.3 Is defendant obliged to pay
personal maintenance to plaintiff, and, if so, to what extent and for
what period.
2.4 What constitutes the marital
estate.
2.5 What order should be made in
respect of the proprieritary matters.”
The following admissions were
made;
“4
ADMISIONS MADE
4.1 The marriage has
irretrievably broken down.
4.2 Plaintiff should be entitled
to have as her sole property all household movables, save that if
defendant is awarded custody of the minor children, that he shall
retain the remaining TV and stereo, and one of the 2 following items,
being a lounge suite and a dining room suite.”
The plaintiff gave evidence and
called the following witnesses:-
1. George Nyashanu.
2. Medeline Van Gruenen.
3. Desmond Thompson.
4. Sandra Dombo Zhuwawo.
5. Dr Dickson Chibanda.
The defendant who had indicated,
as per the joint pre-trial conference minute, that he would call 8
witnesses and had been directed to file supplementary summaries of
evidence to be given by the 8 witnesses he intended to call did not
call any witnesses after his testimony.
During the trial both the
plaintiff and the defendant produced the following bundle of
documents;
(a) For the plaintiff
Bundle 2.1 pp 1 - 159. Bundle 2.2
pp 160 - 302. Bundle 2.3 pp 303 – 469. Bundle 2.4 pp 470 – 831.
Bundle 2.5 pp 832 – 1116.
(b) For the defendant
Bundle 5.1 pp 1 – 310. Bundle
5.2 pp 311 – 659. Bundle 5.3 pp 660 – 874.
All these voluminous bundle of
documents contain various documents which include correspondence
between the parties or with other persons using various means,
documents relating to the properties allegedly owned by the parties
and other information relevant to various factual disputes. Both
parties made extensive reference to the documents in both their
evidence in chief and in cross examination. There is also reference
to these bundle of documents at specific pages by both counsel in the
closing written addresses. I have considered the relevant evidence in
the bundles and it is beyond the scope of this judgment to deal
extensively with the full contents of each bundle of documents.
The following exhibits were
produced by the parties;-
Exhibit 1 is the marriage
certificate which shows that the parties were married in terms of
[Cap 5:11] on 1 September 1990 when both of them were very young at
19 years of age.
Exhibit 2.1 to 2.5 are the
plaintiff's bundle of documents.
Exhibit 3 is a memorandum of
agreement between the Estate Late AMT Pendered (being the seller) and
R.J Coumbis the defendant (being the buyer) of an immovable property
dated October 2008 being 11 000 F class shares in Rosefriars
(Private) Ltd at a purchase price of $45 000-00 which was paid. The
share certificate and the share transfer forms of the shares were
attached.
What is important to note is that
the defendant, as per that agreement, purportedly represents an
unnamed third party to whom the transfer was to be effected. While
the plaintiff alleges that the property belongs to the defendant and
therefore should be distributed between the parties, the defendant
indicated that the property belongs to a third party Mr. Bret Lang.
Neither party was able to produce the current share certificate
relating to this property which is also referred as No. 6 Rosefriars
Avondale Harare.
Exhibit 4 is a schedule of the
alleged assets of the parties both in Zimbabwe and South Africa which
was prepared by one Desmond Tomlinson. It includes the following;
In South Africa:
(a) Unit 182 Shingara Sands (Pty)
Ltd which owns the property by the same name.
(b) Section 94 Matumi Sands (Pty)
Ltd which owns the property by the same name.
(c) Section 112 Matumi Sands
(Pty) Ltd which owns the property by the same name.
In Zimbabwe the following
property is listed;
(a) No.6 Northwood Rise, Mt
Pleasant, Harare which is the matrimonial home.
(b) The Right Investments (Pvt)
Ltd, a property owning company which owns property known as Belgravia
House.
(c) Opium Investments (Pvt) Ltd,
a property owning company which owns property known as No. 13 Bates
Street, Milton Park, Harare.
(d) No. 6 Rosefriars, Avondale
,Harare.
(e) Half share in a company
called Ramis Traders (Pvt) Ltd, a trading company.
(f) Patchbox Trading (Pvt) Ltd, a
trading company.
(g) Stircrazy Investments (Pvt)
Ltd, a trading company which also operates Hardware Shops under the
Mica franchise in Harare and Bulawayo.
(h) Polifax Trdaders (Pvt) Ltd, a
trading company dealing in furniture.
(i) Bywork Investments (Pvt) Ltd,
a trading company dealing in hardware stock.
This list, Exhibit 4, was the
basis of a bitter dispute between the parties throughout the trial.
The plaintiff's position is that all the property listed in Exhibit
4 belongs to the parties and is subject to distribution between the
parties. The defendant on the other hand alleges that the only asset
wholly owned by the parties in Exhibit 4 is the matrimonial home ,
No. 6 Northwood Rise, Mt Pleasant, Harare.
Exhibit 5 relates to the bundles
of documents 5.1 to 5.3 produced by defendant.
Exhibit 6 are 2 e-mails from the
plaintiff dated 7 July 2012 and 25 July 2012 to the defendant.
Exhibit 7 is an EEG Test report
dated 20 September 2010 for the plaintiff. It is further interpreted
in Exhibit 8.
Exhibit 8, dated 6 November 2010,
is a Psychiatric Evaluation Report for the plaintiff by Dr Dickson
Chibanda. This evaluation was done at the plaintiff's request due
to her inappropriate behaviour including outbursts of extreme
agitation triggered by external stimulation such as loud music,
repetitive noise or sounds, flashing lights or running water. Dr
Chibanda carried out an EEG test as per Exhibit 7 and concluded that
the plaintiff suffers from temporal lobe epilepsy. He prescribed
medicine to contain it. This condition was used by the defendant to
advance the argument that the plaintiff is an unfit mother and should
not be awarded custody of Julian.
Exhibit 9 (a) – (e) are e-mails
dated 28 January 2013 between the plaintiff and members of Triathlon
Club. They were produced by the plaintiff to rebut defendant's
allegation that the plaintiff drank beer and associated with various
men.
Exhibit 10 is a letter dated 23
November 2013 by the provisional liquidator to plaintiff's legal
practitioner explaining the difficulties encountered in the
provisional liquidation of Stircrazy Investments (Pvt) Ltd which
related to inability to trace the assets of the company and to access
the company records. This problem also confronted this court later in
dealing with the dispute relating to the assets owned by the parties.
Exhibit 11 is a probation
officer's report dealing with the dispute of the then two minor
children Julian and Anton. It was compiled at the behest of my sister
GUVAVA J (as she then was) on 8 March 2011, when she handled this
pre-trial conference in this matter. Although the probation officer
was not called later to testify the court nonetheless found the
report very useful. In that report the plaintiff outlined her reasons
as to why she should be awarded custody which include that she is the
biological mother of the children, that she has a strong bond with
the children, that she has time with children and Julian's mental
state requires her special care.
The defendant also gave his
reasons why he should be awarded custody which include that he has
the financial means to look after the children, that plaintiff is of
violent disposition and has been violent to the children, that
plaintiff behaves badly and has extra marital affairs and that
Julian's mental state requires defendant's special care.
The probation officer also
interviewed both children and at that time they both preferred to be
in defendant's custody. The probation officer also made findings
and recommendations whose main conclusion was that custody of the
then two minor children be awarded to the defendant. My sister GUVAVA
J (as she then was) was not able to persuade the parties on the
custody dispute hence this issue was referred to trial.
Exhibit 12 is a protection order
DV 489/10 dated 18 August 2010 granted against both parties by the
Magistrates Court. It simply reinforces the undisputed fact that the
marriage relationship between the parties has irretrievably broken
down.
I now turn to the issues to be
resolved by the court.
Breakdown of the Marriage
Both the plaintiff and the
defendant gave detailed evidence outlining the experiences they had
in their turbulent marriage. They married each other at the young age
of 19 years and initially they enjoyed a normal marriage relationship
characterised by love, care and affection. They complimented each
other in their business endeavours.
As time progressed, the parties
lost each other and they blame each other for the breakdown of the
marriage.
In her evidence, the plaintiff
alluded to the reasons outlined in the declaration for the breakdown
of the marriage. She testified that the defendant is a heavy drinker
since 2001 and generally would come home late hence playing no role
in the upbringing of the children. The plaintiff said the defendant
with time developed to be very inconsiderate, selfish and had no
respect for her views. She said defendant resorted to physical abuse
by assaulting her and showed no love or affection as he would
consistently rebuke her about her weight. According to the plaintiff
what broke the camel's back was the defendant's adulterous affair
with their employee one Tamara Forbes since 2009 to date. This
resulted in their separation in February 2010. The plaintiff is of
the view that there is no possibility of reconciliation at all.
Under cross examination the
plaintiff denied the allegations made against her by the defendant.
The plaintiff admitted being intimate with one Martin Midler a family
friend in June 2012, two years after her separation from the
defendant. She denied that she associated with any other men or that
she was intimate with Martin Midler during the marriage.
I agree with the plaintiff in
this regard because even on the evidence of the affair between
plaintiff and Martin Midler produced before the court relates to the
period after the separation. The plaintiff was very candid about her
character in her evidence. She admitted suffering from temporal lobe
epilepsy and that before the diagnosis and treatment she was of
violent disposition. She also admitted having smoked dagga about 4
times during the marriage just for fun with the defendant and denied
that it was in copius quantity or that she still smokes dagga. She
admitted having been convicted of assault after she had beaten up
Tamara Forbes for her adulterous affair with the defendant and that
she has fought defendant several times.
The plaintiff told the court that
her relations with the children are strained as Muray the eldest son
once assaulted her and that Julian has been very rude to her although
she believes this is because defendant has alienated her by being too
good to the children without exercising discipline over them.
The plaintiff described the
defendant's character as a swinging pendulum, at one time loving
and caring but at other times a monster to her. The plaintiff also
said Anton stole her mobile cell phone and gave it to defendant who
in turn went through her private text messages with Martin Midler in
January 2012 which further alienated her from Anton. The defendant
while blaming the plaintiff for the breakdown of the marriage between
the parties conceded that reconciliation is not possible. The
defendant accepted that he has been in an adulterous relationship
with Tamara Forbes although he says since 2010 and only became
intimate in 2011.
The plaintiff said this
relationship started in 2009 and was the main cause of the breakdown
of the marriage relationship between the parties. The defendant told
the court that he now wants to marry Tamara Forbes.
It is clear that the marriage
relationship between the parties has broken down to such an extent
that there is no reasonable prospect of the restoration of the normal
marital relationship. As was stated in Ncube v Ncube 1993 (1) ZLR 39
where parties are agreed that the marriage relationship cannot be
salvaged and are consenting to divorce it is not necessary for the
court to hear evidence in that regard in order to ascribe fault for
the breakdown of the marriage. I am inclined in this case to grant a
decree of divorce as provided for in section 5(1) of the Matrimonial
Causes Act [Cap 5:13].
CUSTODY OF JULIAN AND RELATED
MATTERS
The custody of the perpetual
minor child Julian has been contentious between the two parties who
are both claiming custody of Julian. In deciding the issue I have
considered the evidence of both plaintiff and defendant, the
probation officer's report which is part of the record and Julian's
views arising from the interview I had with him. According to both
parties Julian is a twin to Anton but he failed to thrive and
experienced a lot of seizures and heart failure in his early
childhood. He did not develop at the same pace with the other twin
Anton as he was physically weak, had poor muscle turn and had to
undergo speech therapy. Although he is now 20 years old he behaves at
times like an 8 year old. Julian's mental state is not in issue. He
cannot drive although he now can drive a golf car. He needs
supervision in a number of activities including dressing. He was
enrolled in a special class as he is mentally challenged. At the time
of the hearing Julian had finished school in the special class and
was enrolled at Sunshine Training Centre where he is learning some
trade skills according to the defendant.
I have already alluded to Exhibit
11 the probation officer's report whose recommendation is that
custody for Julian be awarded to the defendant.
I had an interview with Julian in
my chambers on 26 July 2013 in order to assess his level of
development and possible preference on the contentious issue of
custody. He was accompanied by Anton who did not take part in my
exchanges with Julian. I noticed that while Anton and Julian look
alike Julian is taller and thinner. While I am not at liberty to
disclose the full details of my discussion with Julian and his
preferences for the obvious reason of confidentiality I would
nonetheless consider his views taking into account his mental state.
I did put certain questions to Julian to test his mental capacity. He
was able to tell me that he was then 19 years old and was aware of
the date that day. He indicated that finished school in November 2012
and that he is employed at some place in Borrowdale. Julian was able
to explain that he stays with the defendant, Murray, Anton and Tamara
Forbes. He was not aware where the plaintiff currently stays. He was
not able to tell his level of education. Julian gave the impression
that he is very close to Anton whom he says picks him up from work,
ensures that he dresses properly and said makes him feel safe. He
said he regards Tamara Forbes as family and does not mind her. He
jokingly told me that he was looking for a girlfriend when I inquired
if he had a female friend. Julian was clear as to whom his custody
should be awarded and gave his reasons. Although Julian is mentally
challenged and a perpetual minor I got the impression that he is
sufficiently developed in respect of other aspects of life and how he
appreciates some basic issues.
It is common cause that when the
parties separated in 2010 Julian has been in defendant's custody
since March 2010 to date a period of about 4 years.
The plaintiff in her evidence
explained why she should be awarded Julian's custody and why
defendant should not be granted custody. According to the plaintiff
the defendant travels a lot due to business commitments hence he
cannot take care of Julian. As a result the plaintiff said this
burden is shouldered by Anton which is unfair to the other twin. The
plaintiff however conceded that there are employees who also look
after Julian. The plaintiff believes that Julian's closeness to
Tamara Forbes is engineered by the defendant and that it is
influenced with gifts and offers for holidays. She believes this can
be easily reversed once she is granted Julian's custody. The
plaintiff told this court that as the mother she is able to give
Julian all the care and attention he requires especially in relation
to his personal hygiene. Plaintiff believes defendant has been a bad
influence to Julian and other children as he has encouraged parental
alienation. She believes defendant's adulterous association with
Tamara Forbes is not good for Julian's upbringing. The plaintiff
tore into defendant's character. She accused him of reckless
behaviour with the children as he is not able to control the children
but showers them with expensive gifts, unlimited access to motor
vehicles, patronising parties and taking them to fishing trips. As a
result she said all the children have lost value of money and have
developed an unacceptable sense of entitlement. The plaintiff said
defendant is a habitual liar and that this bad habit is catching up
with the children including Julian. According to the plaintiff the
defendant pays very little attention to the children's health. As
an example she said defendant has refused to have all the children
checked for the possible neurological condition like the one she has
which she now manages through treatment.
However, under cross examination,
the plaintiff conceded that she did not take custody of the minor
children and later of Julian when they separated as she believed they
were in a stable environment under defendant's care. She also
alluded to her lack of means despite that she subsequently claimed
maintenance for herself at the Magistrates Court after their
separation. The plaintiff admitted that since separation she has not
contributed to the welfare of all the children including Julian. The
plaintiff admitted under cross examination that her relations with
Julian are strained as she has labelled him a liar and vowed not to
forgive him. She admitted that Julian always lives with the twin
brother Anton and that separating them would adversely affect Julian.
The plaintiff while emphasising Julian's mental state conceded that
in some respects Julian behaves like an 8 year old, 12 year old or 18
year old depending with the topic one would be considering. As an
example she said Julian can operate a mobile cell phone although he
has no concept of value of money. Plaintiff said Julian would be able
to express his preference in respect of the issue of custody despite
his mental state.
The defendant in his evidence
told the court that he has been having the custody of Julian since
May 2010 when the parties separated and that there was no need to
change the environment as this would upset Julian. The defendant
disputed that he would not have time for Julian saying he takes time
to ride bikes with Julian and that he is ably helped by Murray, Anton
and Tamara Forbes. As an example defendant said he knows Julian's
schedule very well including the time he leaves from school, the time
he is collected from school and the role of domestic workers. The
defendant said when they separated in 2010 all what plaintiff did as
per Exh 5.2 at pp 99 313 was to apply for a protection order and her
maintenance without seeking Julian's custody which was vested with
the defendant which decision as per the case No DV 489/10 plaintiff
did not challenge. The defendant said plaintiff has not even
exercised her right of access in respect of Julian since 2010 and
that the only time plaintiff took Julian with her for some time
together was disastrous, a fact confirmed by the plaintiff. The
defendant insisted he is a responsible father who cares for the
welfare of Julian who is on medical aid. He said he has always
endeavoured to be available for Julian and made reference to Exh 5.1
at pp 24 which are pictures of defendant, Julian and the other
children enjoying themselves. He denies that he allows children to
smoke and drink alcohol. He said he ensures all the school fees is
paid.
The defendant said the plaintiff
is of violent disposition and prone to outbursts hence the children
are afraid of her.
Under cross examination the
defendant denied parental alienation or encouraging Anton to steal
plaintiff's mobile phone for him to snoop on the short message
texts between plaintiff and Martin Midler for use during this trial.
The defendant denied that he is dishonest and crooked and that he
hides stock, company records and even motor vehicles in pursuance of
his underhand business deals. He insisted that Julian should remain
in his custody and that despite his busy schedule he always have time
for Julian. The defendant conceded that plaintiff loves Julian but
that what alienates her from Julian and other children is her bad
temper.
Dr Dickson Chibanda a
psychiatrist testified in respect of Exh 8 which has a bearing on
plaintiff's suitability as a custodial parent. He told the court
that his examination of the plaintiff was at the plaintiff's behest
and he carried out the tests per Exh 7 and compiled the report Exh 8.
Dr Chibanda told the court that plaintiff responded well to treatment
and that her emotional outbursts are now minimal as she behaves
normally. Dr Chibanda said the plaintiff's mental condition cannot
be the basis to deny her custody. He said as long as plaintiff takes
the prescribed medication and attends to regular reviews by the
General medical practitioner she would be a normal parent.
I have no reason not to accept Dr
Chibanda's clear evidence and his professional opinion. The
plaintiff's mental condition is not a factor this court would use
against her in deciding the question of custody. It is a settled
principle of law that in dealing with the question of custody of a
minor child the court should be guided by the best interests of the
minor child. See Makuni v Makuni 2001 (1) ZLR 189 H at 192 A. The
question of what constitutes the best interests of the child has been
extensively considered in our jurisdiction. See Galante v Galante (3)
2002 (2) ZLR 408 (H) in which SMITH J referred to the celebrated case
of McCall v McCall 1994 (3) SA 201 (at 204-5) at pp 418-419. It is
therefore clear that what the court should consider are the best
interests of the minor child as the parents' interests are
secondary. See Jere v Chitsunge 2002 (1) ZLR 116 (H) at 118 C-E.
I shall therefore be guided by
these principles in deciding the question of custody in this matter.
After careful weighing all the
factors as per the evidence adduced, I am of the view that the scales
tilt in favour of the defendant as regards the custody of Julian.
Julian has been its defendant's custody since the separation of the
parties in 2010. There would be a good reason why the status quo
should be interfered with and none has been provided. The plaintiff
concedes that Julian is in a stable environment and this probably
explains why she had not sought his custody after separation. The
plaintiff just like the defendant admits that Julian is very close to
Anton his twin brother and that Anton remains dear to Julian. The
plaintiff also accepted that Anton prefers to stay with the
defendant. The plaintiff enjoys very bad relations with Anton and it
would appear the feeling is mutual. This would mean that if custody
of Julian is awarded to the plaintiff, Anton will remain with the
defendant. This would negatively impact on Julian who is said to
dislike change and would want to be with Anton. It is also clear
that the plaintiff does not enjoy good relations with Julian and even
with other children Murray and Anton.
While Julian's attitude may be
due to parental alienation, I believe the plaintiff has not helped
matters by labelling Julian a liar and vowing never to forgive him.
This probably explains why the plaintiff has not bothered to exercise
the access rights in respect of Julian since 2010.
While the plaintiff has raised a
number of factors on why the custody of Julian should not be awarded
to the defendant, I am not satisfied that these are sufficient
reasons to deny the defendant custody. Both the plaintiff and the
defendant have engaged in adulterous behaviour. While it may be true
that the defendant is a crooked business person, I have no doubt that
he, just like the plaintiff loves his children. The question of
parental alienation should be discouraged and granting the plaintiff
reasonable and generous access rights may help to maintain the bond
between Julian and the plaintiff. There is no evidence to suggest
that there is a risk of ill treatment of Julian by the defendant's
girlfriend Tamara Forbes. Considering Julian's mental state he
would suffer a considerable degree of emotional stress in the event
that he is separated from Anton and custody is awarded to the
plaintiff.
While it is not a principle of
law that a boy child should be placed in the custody of the father.
See Goto v Goto 2001 (1) ZLR 295; Hackim v Hackim 1988 (2) ZLR 61
(5), Goba v Muradzikura 1992 (1) ZLR 212 (S) at 214 BC, I am
satisfied that on the evidence led Julian is more closer to the
defendant than to the plaintiff. After considering all the evidence,
I am satisfied that the best interests of Julian are better served by
awarding custody to his father the defendant rather than the mother
the plaintiff. The plaintiff would be allowed generous and
reasonable access rights to ensure the bond between the mother and
the son is maintained.
The defendant has prayed for an
order that the plaintiff pays about 25% of Julian's needs if he is
awarded custody of Julian. The defendant has been providing for on
Julian's needs since separation. There is nothing placed before
the court to suggest that plaintiff has sufficient means to pay
contributory maintenance in respect of Julian. It is therefore, my
view that defendant should be solely responsible for the upkeep of
Julian.
MAINTENANCE IN RESPECT OF THE
PLAINTIFF
The plaintiff at the time of the
trial was receiving US$2,000-00 per month as maintenance which was
granted by the Magistrates Court upon separation of the parties in
2010. This has not been appealed against.
In her evidence, the plaintiff
pointed out that she is no longer involved in any of the family
businesses and deriving no benefit from these business enterprises.
The plaintiff indicated that she needs money for rentals as she is
not staying in the matrimonial home and some cash to ensure that she
maintains a reasonable living standard. The plaintiff told the court
that she runs a tuckshop at St Johns College realising an income of
about US$700-00 to $780-00 per month. The plaintiff indicated that
her total expenses per month include US$1,200-00 as rentals and food
at US$300-00.
Under cross examination the
plaintiff, who is 41 years old, accepted that she is able to work as
she is a hardworking woman. The plaintiff said she would therefore,
be able to maintain herself if she gets a fair share of the assets.
The plaintiff conceded that defendant pays the full school account
for all the children. In fact the plaintiff said she would accept
payment of maintenance after divorce for a minimum period of 6 months
and a maximum of 12 months.
On the other hand, the defendant
indicated that he is not able to pay post-divorce maintenance because
his business has collapsed, which is Stir Crazy (Pvt) Ltd in which he
has interests but is now under liquidation. The defendant said he
secured employment with an unnamed pharmaceutical company as from 1
February 2013 earning a salary of US$200000 per month. The defendant
indicated that he still needs to meet his expenses and that of the
children which include food, clothes, water and electricity bills,
salaries for domestic workers. It is defendant's belief that the
plaintiff who is able bodied and has worked throughout her life can
fend for herself moreso as she runs a tuckshop and is qualified in
Accounts, Bookkeeping and Secretarial work.
Under cross examination the
defendant was not able to produce proof of the contract for the new
job he said he secured. The defendant was not able to explain how he
has managed to survive after the so called collapse of his
businesses. The defendant's alleged penury was not supported by any
evidence. He conceded that he has been occupying the matrimonial
home since the divorce and that the plaintiff is not deriving any
benefit from the immovable properties in Zimbabwe and South Africa.
As would be shown later, the
defendant has not been candid with the court as regards his means and
the state of businesses in which he has interests.
It is difficult to accept the
defendant's assertion that he is now so impoverished to the extent
that he survives from handouts from well-wishers, none of whom was
called to testify. I am inclined to grant the plaintiff maintenance
at the current rate of US$2000-00 per month for 6 months from the
date of the granting of this decree of divorce. In my view this is
necessary to allow the plaintiff to start a new life independent from
the defendant and cushion her from the effects of the divorce.
HOUSEHOLD GOODS
In her declaration the plaintiff
sought an order for an equal division by value of all household,
furniture, contents and effects and that she be declared the sole and
exclusive owner of all her personal items including jewellery.
In his plea and counterclaim the
defendant seems to accept the position. However, at the Pre-Trial
Conference the parties managed to resolve this issue. It was agreed
that the plaintiff be entitled to have as her sole property all
household movables, save that if the defendant is awarded custody,
which is what has happened, the defendant shall retain the TV set,
the stereo and either one of these two items being a lounge suite or
dining room suite. Neither of the parties have since made a choice of
who should retain either the lounge suite or the dining room suite.
A reading of the plaintiff's closing submission para 7.4 suggests
that the plaintiff is unwilling to accept some of the household goods
on account of the fact that Tamara Forbes used them. Be that as it
may, I will grant all household movables to the plaintiff including
her personal items and jewellery. Both the lounge suite and the
dining suite would be awarded to the defendant.
THE MATRIMONIAL ESTATE AND ITS
DISTRIBUTION
The question of what constitutes
the marital estate and what order should be made in respect of these
proprietary matters has been very contentious.
In her declaration as already
stated the plaintiff seeks a half share of value of all assets owned
by the parties. In specific terms the plaintiff seeks to be declared
the exclusive owner of the matrimonial home No. 6 Northwood Rise, Mt.
Pleasant, Harare, the two properties in South Africa known as No. 94
and No. 112 Matumi Sands Lonehill; No. 6 Rose friars in Avondale,
Harare and property known as Belgravia House.
The plaintiff also seeks to be
paid US$100 000-00 and no further details for the basis of the claim
are given. I shall revert this later.
Lastly, the plaintiff seeks to be
awarded a Nissan Navara motor vehicle registration No. ADB 6847
presumably in her possession and payment of a loan of €10 400-00
together with interest at the rate of 8.5% per annum.
The defendant as per his plea
claims a half share of the matrimonial home No. 6 Northwood Rise Mt.
Pleasant, Harare and offers to buy out the plaintiff. In respect of
No. 94 Matumi Sands, Lonehill in South Africa the defendant claims
the property is owned by two parties, one who is not named and that
he is a nominee shareholder for his son Murray who owns the other
half share. The same goes for No. 112 Matumi Sands Lonehill in which
the defendant said his sister owns a half share and that the
defendant is a nominee shareholder of the remaining half share. As
regards Belgravia House the defendant alleged it is owned by a
company called Stir Crazy in which the defendant is only a 20%
shareholder of which he is prepared to offer the plaintiff 10% of his
shareholding. The defendant indicated that No.6 RosefriarsAvondale,
is not part of matrimonial estate but gives no further particulars.
The defendant said the motor vehicle the plaintiff claims is owned by
Stircrazy.
It is very clear to my mind that
the defendant from the time he entered his plea and counterclaim was
not willing to be candid with the court and to avail any relevant
information to enable this court to reach a just decision. The
defendant, in his plea, was not willing to mention who the other
shareholders in the properties were and to disclose the owner of No.
6 Rosefriars, Avondale. In my view this was a well calculated move
by the defendant to enable him to build up his case as the trial
progressed by conveniently providing relevant information as and when
it suits him. This, however, harmed his credibility as it later
turned out that his evidence is different from his plea.
I shall proceed to demonstrate
this.
The only immovable asset the
parties have agreed is owned by the parties is No.6 Northwood Rise,
Mt Pleasant, Harare the matrimonial home registered in their joining
names. The only problem is that the property is encumbered as it was
used to secure a loan from Kingdom Bank, which loan is outstanding.
The only aspect in which the defendant seems to agree with the
plaintiff is that they married both at 19 years of age and that
whatever they later acquired, it was acquired after the marriage. The
defendant was on Articles Clerk at Ernst and Young doing 'A'
Level by correspondence and the plaintiff on Articles Clerk at
Coopers and Lybrand. At least the defendant agrees that they formed
together the first company called Northwood Accounting Services a
consulting company selling services of accounting, bookkeeping,
computers, IT and tax consultation. The defendant admits that he and
the plaintiff were the sole shareholders. This company is no more.
The defendant also said that he and the plaintiff formed a company
called Blue Crane Services in which they were joint shareholders
which specialises in gate making, fencing and automating gates. It
seems this company is also no more. Both parties agreed that another
company called Patchbox (Pvt) Ltd was formed which was a trading
company, dealing in hardware. According to the plaintiff the
defendant had 99% shareholding and Nyashanu had 1%. The Directors
were the plaintiff, the defendant, Nyashanu and Rae Lindsay according
to the plaintiff. According to the plaintiff, Rae Lindsay later left
the company and the assets of Patch Box (Pvt) Ltd were transferred to
a new company called Stircrazy Investments (Pvt) Ltd. See Exh 2.4 pp
523.
The defendant gave a different
version in his evidence.
He said the shareholders for
Patchbox (Pvt) Ltd were himself, his sister Debra Banks and Rae
Lindsay who had 30% but never took the shareholding. The defendant
said he had problems with Rae Lindsay and he decided to form another
company Stircrazy Investments (Pvt) Ltd. According to the defendant
initially one Bret Lang had 100% shareholding in Stir-crazy
Investments (Pvt) Ltd (Stir-crazy) but he and his sister Debra Banks
later on took shareholding of 20% each. This contradicts what
Advocate Uriri put to the plaintiff in cross examination that one
Harvey and Nyashanu were shareholders in Stir-crazy and exposes
defendant's inconsistent story. I shall later deal with the aspect
of Stir crazy.
In his evidence the defendant now
disclosed that No. 6 Rosefriars, Avondale is allegedly owned by one
Bret Lang whom he said is a shareholder in Stir-crazy and that it is
the defendant who paid the purchase price allegedly on behalf of Bret
Lang. See Exh 3.
One wonders why the defendant did
not disclose the information in his plea.
The plaintiff alleges this
property No. 6 Rosefriars, Avondale is owned by the defendant.
However, neither the plaintiff nor the defendant was able to provide
proof of ownership of No.6 Rosefriar, Avondale even by way of current
share certificates. It remained contentious as to whether No.6
Rosefriars, Avondale can be deemed to be an asset of the parties.
In respect of the loan of €10
400-00 which formed part of the plaintiff's inheritance, the
defendant denied borrowing the money in his personal capacity but
that the loan was advanced to Stircrazy hence the plaintiff cannot
seek to receive this money under the auspices of section 7(1) of the
Matrimonial Causes Act [Cap 5:13] but to claim it as a debt owed by
Stircrazy. The plaintiff seems not to dispute this clear position.
In his evidence the defendant
changed his position and said Belgravia House is not owned by
Stir-crazy as per his plea but by a company called The Right
Investments (Pvt) Ltd. The defendant was not able to explain this
contradiction in his evidence.
He said one Bret Lang has 60%
shareholding with his sister Debra Banks and himself holding 20%
each. The defendant in his evidence offered the plaintiff 10% of his
shareholding in The Right Investments (Pvt) Ltd. It was also only in
his evidence that the defendant disclosed that there is another
property owning company called Opium Investments (Pvt) Ltd whose sole
asset is a property called No. 13 Bates Avenue in Milton Park. The
defendant said Bret Lang as usual has 60% shareholding while the
defendant and his sister Debra Bank has 20% each.
Just like in relation to other
companies defendant did not provide proof of this shareholding.
Again the defendant is not
consistent because as per Exh 5.1 p 155 during the maintenance
hearing between him and the plaintiff in the Magistrates Court the
defendant said Opium Investments (Pvt) Ltd is owned by Stircrazy.
Again he was not able to explain the contradiction.
Surprisingly the defendant said
he is prepared to offer the plaintiff that property holding company
Opium Investments (Pvt) Ltd and enable the plaintiff to take
ownership of No. 13 Bates Avenue, Milton Park. One wonders why this
is not part of the defendant's plea and how this is possible if the
defendant only owns 20% shares in Opium Investments (Pvt) Ltd.
Unlike what is stated in his plea
and counterclaim the defendant in his evidence revealed that there
are other companies in which he has interests. This was prompted by
the plaintiff's evidence. Let me list the companies and briefly
state what the defendant said.
(a) Northwood Accounting Services
(Pvt) Ltd
This is the only company in which
the defendant admits the plaintiff is a shareholder. The company has
ceased operations. According to the defendant it now only owns a
Mazda pick-up truck.
(b) Lighthouse Enterprises (Pvt)
Ltd
The defendant admitted forming
this company as a trading company but says it owns no assets as it
never took off the ground. This could first be one of the companies
formed by the defendant to cloud issues.
(c) Telelic Investments (Pvt) Ltd
According to the defendant Bret
Lang has 60% shareholding and as usual the defendant and his sister
Debra Banks have 20% shareholding each. The only asset owned by the
company according to the defendant is one motor vehicle.
(d) Natsburg Trading (Pvt) Ltd
According to the defendant the
trading company owns just one motor vehicle, a VW Caravan bus which
is used as a family motor vehicle.
(e) Pollifax Traders (Pvt) Ltd
The defendant said this trading
company has since folded and has no assets or stock.
(f) Ramis Traders (Pvt) Ltd
The defendant said this company
was formed as a partnership between Stir-crazy and another company in
order to run a hardware shop in Graniteside Harare on a 50%
shareholding each. The defendant said this company has since been
disposed of and proceeds of Stir crazy's shareholding was paid to
Stir-crazy. (g) Bywork Intermedian Investments
The defendant said this is an
Advertising Company owned by his girlfriend Tamara Forbes, Tendai
Mutseyekwa, the defendant's eldest son, Murray, Farai and one Sure
Kamhunga. This company was set up after separation between the
plaintiff and the defendant and divorce proceedings had commenced.
The defendant denied that he set up the company using money raised
from the sale of Ramis Traders (Pvt) Ltd. The defendant said he is
only the Chairman and Director of this company. The defendant also
admitted that Stircrazy sold some assets to Bywork Intermedia but
insisted that all the assets were paid for, for value.
The defendant was taken to task
on how his eldest son Murray would find himself soon after separation
of his parents owning three viable companies, Incvat, Big R Chain of
hardware shops and Bywork Intermedia when Stir-crazy was being
liquidated.
The plaintiff's view is that
the defendant registered these companies after separation in the
names of nominees in order to hide such assets and defeat the
plaintiff's claim.
(h) Incvat
This is another company formed
after the separation of the parties. The defendant however, insists
he has no interests to this company which is a trading company
running hardware shops under the Mica franchise in Bulawayo and
Harare at Boka, Belgravia, Newlands, and Mt Pleasant just like what
Stir-crazy used to do. It cannot be disputed that this company was
formed after Stir-crazy was facing serious challenges and imminent
collapse. The liquidator for Stircrazy believed there is an
incestuous relationship between Stircrazy and Incvat and the
plaintiff also believed this is designed to frustrate her claim. A
number of factors point to this, according to the liquidator;
(i) Incvat paid US900 000-00 to
Stircrazy.
(ii) Incvat and Stir-crazy share
the same resources from central store.
(iii) Bret Lang a shareholder is
Stir-crazy is alleged also to be a shareholder in Incvat with the
defendant's eldest son Murray whose ability to raise capital to buy
shares in Incvat is questionable when he is just a university
student.
(iv) The liquidator was unable to
tell which motor vehicles are owned by Incvat and those by Stircrazy
as there was an admission that Stircrazy sold motor vehicles to
Incvat after separation of the defendant and the plaintiff.
(v) Incvat uses Belgravia House
the same premises Stircrazy used.
No one was willing to disclose as
to when Incvat was formed, when it started to use Belgravia House or
when it started to share assets with Stircrazy.
The defendant denied that Incvat
is just Stircrazy in another form despite all this being put to him.
(i) South African Properties
The defendant said the three
immovable properties in South Africa were bought through mortgage
finance by the three companies which now own the properties in the
same names. The defendant said he was assisted by a friend one Mr
Bean a South African who qualified to apply for mortgage finance and
bought the following properties;
(a) 182 Shingara Sands (Pty) Ltd
which owns the property known as 182 Shingara Sands (182 Shingara).
The defendant says this property is owned by his son Murray who has
50% shares and his sister Debra Banks 50%.
(b) 94 Matumi Sands (Pyt) Ltd
which owns 94 Matumi Sands (94 Matumi).
The defendants said his sister
Debra Banks own 50% shares and that the defendant owns the other 50%
on behalf of his son Julian.
(c) 112 Matumi Sands (Pty) Ltd
which owns No. 112 Matumi Sands (112 Matumi).
Again the defendant said his
sister Debra Banks owns 50% shares and the defendant the other 50% on
behalf of Anton.
The defendant's version in
respect of the properties in South Africa is again difficult to
appreciate. He provided no proof of the shareholding he referred to
in respect of the three property owning companies. He did not call
his son Murray or his sister Debra Banks to confirm that they indeed
owned shares in these companies as alleged, moreso as the plaintiff
had hotly disputed this.
A document prepared by one
Desmond Tomilson. See Exh 2.4 at pp 729-735 which outlines the
defendant and the plaintiff's assets includes these properties.
All the defendant could say is that Desmond Tomilson was mistaken.
No evidence was provided that the
defendant's sister Debra Banks paid for the properties. The same
goes in respect of Murray. The bottom line is that no share
registers or share certificates in respect of the South African
property owning companies have been availed. The defendant's
explanation for such an omission is that he does not see the need to
do so. In other words he expects the court to take his word for it.
(d) Stircrazy
According to the defendant, the
plaintiff was never a shareholder of Stir-crazy. The defendant was
not able to avail any proof of the shareholders of Stir-crazy,
including the share register or copies of share certificates. His
explanation for not doing so is difficult to appreciate as he said he
has never seen such company records.
It is common cause that Stircrazy
is a trading company running hardware shops under the Mica Franchise
and had about 12 shops in Mt. Pleasant, Sam Levy (3 shops) Newlands,
Ruwa, Fife Avenue, Speke Avenue, Avondale and a shop in Bulawayo.
The defendant was cagey and
guarded when he gave evidence in respect of Stir-crazy. He said there
was no asset register of Stircrazy hence he was not able to tell the
number of vehicles owned by Stircrazy. All what defendant was willing
to say is that Stircrazy then was under provisional liquidation (now
its liquidation) and was unable to disclose its assets or financial
status.
The defendant conceded that he
had sold Stir-crazy branches in Speke Avenue and Newlands during
provisional liquidation and pleads ignorance of the law.
The defendant painted a gloomy
picture for Stircrazy. He said all its assets were attached and are
awaiting auctioning due to its inability to pay the debts. He said
Stircrazy is heavily indebted as it owes Kingdom Bank US$1 million
and US$550,000-00 to Ronald Marikano. The defendant denied being
responsible for Stircrazy's dire financial situation and blames the
current liquidity challenges and low sales volumes. He denied that he
has deliberately destroyed Stir-crazy and invested in Buywork
Intermedia Investments and Incvat. The defendant said he is prepared
to offer the plaintiff half of his 20% shareholding in Stir-crazy.
He, however, said Stir-crazy should be valued as the loan of $1
million was borrowed by Stir-crazy from Kingdom Bank resulting in the
encumbering of the Belgravia House, No. 6 Northwood Rise, Mt.
Pleasant and No. 13 Bates Street Milton Park.
The defendant could not explain
why the plaintiff who owns a half share in the matrimonial house No.
6 Northwood Rise, Mt Pleasant would agree to use the same property to
secure a loan from Kingdom Bank to prop up the fortunes of
Stir-crazy, a company she has no interests moreso after the parties
had separated.
It became clear under cross
examination that the defendant's version of events in respect of
the properties in issue is not only improbable but possibly false.
The defendant was not able to
explain why the major shareholder in most of the properties the
plaintiff lays claim to one Bret Lang is not mentioned in the
defendant's plea and counterclaim only to feature prominently in
his evidence in court. The defendant was not able to explain why Bret
Lang would later give the defendant 60% shares in Stir-crazy when the
defendant had failed to keep Stir-crazy afloat, a company Bret Lang
was a major shareholder. The defendant was not able to explain why
another alleged shareholder Nyashanu would not know Bret Lang.
Under intense cross examination
the defendant admitted that he lied in the Magistrates Court during
maintenance hearing when he said Stir-crazy had five shareholders.
The most amazing aspect of the
defendant's evidence is that despite being an astute businessman he
does not have any form of proof of ownership of all these companies
in which he has vast interests and was involved in. There are no
share agreements or share certificates.
One would have expected both his
sister Debra Banks and Bret Lang to at least give the defendant
documentary evidence to prove their interests in the said companies
moreso as the plaintiff was alleging otherwise. All the defendant
could say is all the relevant documents are either in the Company
Secretary's files or were taken or stolen by the plaintiff. This
is so despite that in his discovery affidavit dated 30 March 2012 in
items 99, 109 to 114 he listed some of these company documents being
in his possession.
Again all the defendant could do
was to blame his legal practitioner whom he said included this false
information in the affidavit and that he just signed it without
reading.
The question therefore, is why
did the defendant lie in pleadings that he has company documents and
that he would avail them at trial? He has not availed the company
documents and his explanation for this failure is clearly not
plausible.
It is amazing that the defendant
could not avail any single correspondence, in all these voluminous
exhibits from either his sister Debra Banks or Bret Lang showing any
form of interests in all these companies or properties the defendant
alleges they are shareholders.
My assessment is that the
defendant was a very poor witness who seemed to have chosen not to
take this court into his confidence. He clearly fits the description
given by KUDYA J in Beckford v Beckford 2006 (2) ZLR 377 (H) at 389 B
in which the learned judge described the plaintiff husband as
follows:-
“It seemed to me that the
plaintiff was evasive and dishonest witness. He simply was not
prepared to disclose his assets fully. I agree with Mr Anderson that
the plaintiff was an utter liar who manipulated the situation and
avoided producing documents such as completion statements. He
appeared bent on denying the defendant her entitlement.”
I entirely agree with Advocate
Mpofu's assessment of the defendant's credibility as detailed in
his closing written submissions. (especially in paras 4.9 to 5.5).
The best I can do is to describe the defendant as a witness on whose
tongue the truth would sit with much discomfort.
Be that as it may, the question
remains as to whether the plaintiff has proved her case in relation
to the matrimonial estate.
The plaintiff conceded that other
than in matrimonial home, No. 6 Northwood Rise, Mt Pleasant, Harare
all the so called matrimonial assets are registered in company names.
The plaintiff did not avail shareholding agreements relevant to all
these companies from which she claims half share by value. All she
could say is she and the defendant own equal shares in these
companies and that she was a Director in all the property owning
companies and in Stircrazy until her resignation on 4 March 2010.
The plaintiff said the defendant deliberately did not complete
shareholding certificates and that he should be awarded the trading
companies and the plaintiff the property owning companies.
Let me turn to her evidence in
respect of the companies.
(a) Patchbox Trading (Pvt) Ltd
The plaintiff said this is the
first hardware trading company she owned with the defendant and that
it was no longer trading. She however said the shareholding was later
changed to give the defendant 99% and one Nyashanu 1%. She said the
Directors were the plaintiff, the defendant, Nyashanu and Rae
Lindsay. The plaintiff did not provide evidence of the shareholding
in this company but said all its assets were transferred to
Stir-crazy. See Exh 2.4 p 523.
(b) Stir-crazy
According to the plaintiff, the
shareholding in Stir-crazy is 50% for the defendant, 49% for the
plaintiff and 1% for Nyashanu. The plaintiff said share certificates
for the company were never completed and that she resigned as a
Director in March 2010. The plaintiff said Nyashanu did not make any
financial contribution and not paid anything when he resigned. She
said one Pillay the company's legal advisor and one Harvey the
accountant are no longer part of the company but the defendant would
not update company records to reflect this. The plaintiff vehemently
denied that the defendant only owns 20% shares in Stircrazy which is
a trading company running hardware shops under the Mica Franchise and
known as Big R Mica. See Exh 2.4 at p 597.
While the plaintiff was not able
to prove ,through documentary evidence, the shareholding of Stircrazy
she insisted that only the defendant and herself were the
shareholders.
She said she invested her
inheritance amounting to €10 400-00 as a loan to Stircrazy which
she now claims. Under cross examination the plaintiff said Stir-crazy
is the alter ego of the defendant and that all the names put to her
by Advocate Uriri, Brat Lang, George Nyashanu, Harvey and Debra Banks
are not shareholders of the company. She demanded proof of such
shareholding. The plaintiff said the court can award Stircrazy to the
defendant as he has destroyed it since their separation and stripped
it of all assets which she said the defendant has now moved to new
companies he formed Incvat and Buyworth Intermedia.
The plaintiff said Stir-crazy
owns several motor vehicles but that the defendant deliberately does
not keep an asset register for the company. In fact the plaintiff
said it would extremely be difficult if not impossible to carry out a
forensic audit of Stircrazy and other companies as defendant has
never declared anything to Zimra from Stir-crazy in form of tax
returns, that the defendant is a master in under declaring sales and
hiding transactions and that no asset registers are kept. The
plaintiff said she has never seen the share registers of all the
companies including Stir-crazy or the memoranda subscribing the
shares.
The plaintiff told the court that
the liabilities incurred by the company were incurred after she had
separated from the defendant and that this should not affect her
award.
It is important to note that when
the plaintiff testified evidence had not been placed before this
court that Stir-crazy was now under provisional liquidation (which
was later confirmed). See Advocate Uriri's closing written
submissions.)
(c) Bywork Intermedia
The plaintiff told the court that
she had very little information about this company which was
incorporated after their separation on 19 May 2010. See Exh 2.4 at p
637. She said she does not even know the Directors of this company
nor the shareholders but believes it's a company formed by the
defendant for his girlfriend Tamara Forbes who is now a shareholder.
The plaintiff claims no share in this company but that it be taken as
accused's asset and be awarded to him.
(d) The Right Investments (Pvt)
Ltd
This is a property owning company
which owns Belgravia House. See Deed of Transfer in exh 2.4 p 644.
The plaintiff told the court that on 12 March 2009 soon after
dollarization she and the defendant as Directors of the company
borrowed US$200,000-00 from Stanbic Bank and as the two Directors
they registered a Deed of Hypothecation against the Belgravia House.
She denied that the Directors listed in Exh 2.4 at p 690 being the
defendant, George Nyashanu Mare Pillay and Harvey are Directors of
the company.
The plaintiff in her evidence
distanced herself from a loan of about US$1 million obtained from
Kingdom Bank by Stircrazy in which a surety mortgage bond was
registered against Belgravia House. The plaintiff insisted that she
and the defendant are the only shareholders of this property owning
company. She however, could not avail proof of such ownership.
On how this should be
distributed, the plaintiff claims 50% share in the company
unencumbered.
(e) Opuim Investments (Pvt) Ltd
This is a property owning company
and owns No. 13 Bates Street, Milton Park Harare. See Exh 2.4 p 693.
According to the plaintiff she and the defendant are the shareholders
of the company although the defendant as usual kept the share
certificates blank. She said she and the defendant bought this
company and registered it as a shelf company in order to register the
immovable property in its name. As of now she said No.13 Bates Avenue
is unoccupied and that the defendant normally uses these premises to
hide stock or assets from the Sheriff or Messenger of Court. The
plaintiff said the defendant used to rent out the property at
US$2000-00 per month which he used to pay her maintenance as per the
Magistrates Court order. She claims a 50% share to the property as
per her evidence although in her declaration she seemed not to have
made reference to this property.
(f) No 6 RosefriarsAvondale
Harare
According to the plaintiff, the
flat constitutes matrimonial estate. She said they bought the flat
and that it is being occupied by one Medeline Van Gruenen a former
employee of Star crazy. The plaintiff in her evidence seems not to
lay claim to this immovable property, but insists the part of the
matrimonial estate.
(g) Incvat Enterprises Pvt Ltd
The plaintiff said she had
problems in obtaining details of the company from the Registrar of
Companies as it was purportedly registered on 3 June 2008 and the
Directors are said to be one Emmanuel Kagoma and David Nyajera. See
exh 2.4 at p711. The plaintiff said she got some insight into the
company in an advertisement placed in the Newsday dated 6 December
2011 which is a notice for applying for a shopping licence for Incvat
Enterprises trading as Big Mica Hardware and gives the address as
Belgravia House. The applicant was F. Marenzva who is defendant's
messenger.
She also made reference to an
advertisement in H Metro dated 9 January 2012 in which a number of
shops trading under Big R Mica from Belgravia House are listed most
of which were used to be owned by Stir crazy.
According to the plaintiff this
shows the connection involving Stir Crazy, The Right Investments and
Incvat and shows that defendant is a master of obfuscation.
The plaintiff disputes that the
shareholders for Incvat are Bret Lang 75% and her eldest son Murray
25%. Under cross examination the plaintiff said that Murray is just a
21 year old boy at University and cannot get money to finance a big
and viable company like Incvat. The plaintiff denied that Bret Lang
is a majority shareholder in both Stir Crazy and Incvat. The
plaintiff scoffed at suggestion that one F. Marenzva the defendant's
messenger who lives at their cottage at No.6 Northwood Rise, Mt
Pleasant Harare would have the capacity to own a shop at Belgravia
House. The plaintiff believes all these are machinations by the
defendant to ensure that she is denied of her entitlement.
(h) Lighthouse Enterprises Pvt
Ltd
The plaintiff said this is just
one of the shelf companies registered by the defendant but it does
not conduct any business.
(i) Telehec Investments Pvt Ltd
According to the plaintiff this
is a property owning company which only owns one motor vehicle, a
Mercedes Benz E200 AAD 9922 and does not trade in anything. See Exh
2.5 at p 839.
(j) Natsburg Trading (Pvt) Ltd
The plaintiff said they
registered the company for the purposes of owning a VW Caronell Micro
bus. Reference was made to Exh 2.5 at p 840.
(k) Motor Vehicles
Although the plaintiff is
claiming only one motor vehicle she said she and the defendant own a
number of motor vehicles but they are not registered in their names
but in various companies. She was unable to tell in which companies
are the particulars motor vehicles registered. She listed the motor
vehicles as T35 truck, 5 or 6 Nissan MP 300 truck, short Toyota
Hilux, Cream Diesel truck, Nissan Navara, Mercedes Benz E300, VW
Caravell, Honda CRV, 2 Isuzu twin cabs, 2 Toyota Prados, 4 Mazda 323,
Volvo 1225, Isuzu Single cab, BMW, 6 or 7 motor bikes, 3 scrambling
motor bikes for recreation and a boat.
The plaintiff said all these
motor vehicles are under the defendant's direct control. No
documentary evidence pertaining to all these motor vehicles were
produced like Registration books.
(l) Properties in South Africa
As already discussed there are 3
properties in South Africa being 182 Shingara, 94 Matumi Sands and
112 Matumi Sands.
Contrary to the defendant's
evidence the plaintiff said all these 3 properties were bought and
paid for by the defendant who runs them although she said the
defendant at times uses a fictitious name JOE BLOGGS. See exh 2.5 at
p 846. The plaintiff denied that the defendant only own part of the
shares in these properties in South Africa. She said both 94 and 112
Matumi Sands are being rented out to generate income for the
defendant. The plaintiff said they used to regard No.182 Shingara as
family house while in South Africa although she alleged that it is
now being used by the defendant's girlfriend Tamara Forbes when she
is in South Africa. As evidence of the defendant's involvement with
the three properties in South Africa the plaintiff provided the
following:-
(i) An e-mail in exh 2.5 at p 870
relating to 112 Matumi Sands by the defendant to a tenant one Joe
Haefele pp 860 to 868.
(ii) That Mr Bean did not buy
shares in the 3 properties but simply helped the defendant who did
not qualify for mortgage finance in South Africa to obtain such
finance after which Mr Bean signed as if he had purchased 50% shares.
See e-mail on pp849-50 in which Mr Bean is a nominee shareholder and
was requesting to buy shares in both 94 and 112 Matumi Sands. This
was turned down by the defendant and the plaintiff said there is no
way Mr Bean would ask to buy shares if already he was a shareholder.
(iii) That in a letter dated 17
August 2009, See exh 2.5 pp 1005-1007 Mr Bean by way of letters
discarded all pretensions and resigned as a Director in all the three
property owning companies which own the three properties.
(iv) That a tax invoice in exh
2.5 at p 953 clearly shows that the defendant sourced goods in South
Africa using the company Shingara Sands (Pyt) Ltd importing them to
Zimbabwe to Stir Crazy which according to the plaintiff is proof that
the defendant own both companies. The plaintiff said their then
Accountant Desmond Tomlinson who has since left work did a
comprehensive list of all assets in Zimbabwe owned by the plaintiff
and the defendant as per the schedule in Exh 2.4 at pp 728735. The
list includes:-
No. 6 Northwood Rise Mt Pleasant;
an unspecified number of motor vehicles valued at US$123,911; shares
in the following companies:
(a) Patchbox 10% shareholding.
See p 730
(b) Stir Crazy 100% shareholding.
See p 731
(c) Pollifax Traders (Pvt) Ltd
50% shareholding p 732
(d) Ramis Traders Pvt Ltd 50%
shareholding. See p 733
(e) The Right Investments 100%
shareholding. See p 735
According to the plaintiff this
list shows the correct shareholding in the companies in issue.
The plaintiff told the court that
after she had separated with the defendant in 2010 the defendant
asked one Marc Pillay to put an offer to the plaintiff on the divorce
settlement and that the offer was written to her on 26 March 2010.
See Exh 2.4 p 752. As per that letter the defendant made the
following officer:
(a) that the plaintiff would be
awarded No. 6 Northwood Rise, Mt Pleasant, No. 13 Bates, Avenue
Milton Park and the South African properties.
(b) that the defendant would get
Belgravia House and the shareholding in Stircrazy.
(c) that parties would enjoy
joint custody of Julian and Anton who was also a minor.
The plaintiff said the offer by
the defendant clearly shows that the plaintiff and the defendant are
the shareholders of the said companies and that it is not true that
the defendant's half-sister Debra Banks and one Bret Lang are
shareholders in these companies.
The plaintiff also told the court
that she runs a tuckshop business at St Johns School which she
started after separation. The defendant lays no claim to this small
business venture although his view was that it shows that the
plaintiff is a person of means who do not deserve to be maintained
after divorce and should contribute towards the upkeep of Julian. I
have already addressed these issues.
The plaintiff was extensively
cross examined by AdvUriri and she remained calm and collected
throughout despite the obvious emotional stress this dispute had
caused her. She was able to answer in a clear and straightforward
manner all questions put to her. Where possible she extensively
referred to the voluminous exhibits to buttress her assertions. I did
not get the impression that the plaintiff was trying to mislead the
court. She endeavoured in the circumstances to place before the court
what she perceived to constitute the matrimonial estate. Her
demeanour was good.
Under cross examination the
plaintiff accepted the offer of being awarded all household goods at
No. 6 Northwood Rise, Mt Pleasant, Harare. The plaintiff insisted
that she should be awarded property owning companies unencumbered
because in her view the defendant should take responsibility for all
the loans obtained after separation. She even alleged that the
defendant forged her signature to obtain a loan from Kingdom Bank in
which he used the matrimonial home to secure the loan. Despite her
valiant efforts the plaintiff said she would not be able to unearth
all the assets owned by the defendant mainly due to the defendant's
conduct after separation.
The plaintiff called a number of
witnesses in support of her case. Let me deal with their evidence.
GEORGE NYASHANU
(NYASHANU)
Nyashanu is the Chief Executive
Officer of TN Bank and a family friend of both the plaintiff and the
defendant whom he said he get to know them when he bought a house
from them in Malbereign, Harare and their background as Accountants
in Ernest and Young. Initially Nyashanu said both the plaintiff and
the defendant invited him to be a non-executive board member of their
Accounting firm. Later he was appointed a non-executive director of
Stircrazy and some related companies he could not easily recall.
Nyashanu said he never sat in any
meetings and resigned in 2011 because of his position in the Bank.
As regards the material issue
Nyashanu denied that he was ever a shareholder of any of the
companies including Stircrazy. He said the defendant made him such an
offer but he never took it up. He categorically denied owning 20%
shares in Stir Crazy as was put to the plaintiff by Adv.Uriri.
Nyashanu said he was a non-executive director of The Right
Investments Pvt Ltd which owns Belgravia House and Opium Investments
(Pvt) Ltd which owns 13 Bates Street, Milton Park but was never a
shareholder in these companies.
Under cross-examination Nyashanu
said he always held the view that Stir Crazy and related companies
were family run businesses by the plaintiff and the defendant and he
was not aware of any shareholding agreements for Stir Crazy. He said
he did not take shareholding in Stir Crazy as he had no funds and
also due to his position in the Bank. He said he knew one Harvey as
responsible for finances at Stir Crazy and one Pillay as the company
secretary for Stir Crazy. Before he resigned Nyashanu said he only
attended one management meeting for Stir Crazy dealing with poor cash
flow and servicing of Kingdom Bank loan. Nyashanu gave his evidence
well and his evidence was not put into issue. In fact if the
defendant had been candid with the court from the beginning there
would have been no need to call Nyashanu. The defendant had alleged
(as per the cross examination of the plaintiff) that Nyashanu was a
shareholder in Stir Crazy only to somersault later in his evidence
alleging that one Bret Lang and his sister Debra Banks are the
shareholders.
MEDELINE VAN GRUENEN
(MEDELINE)
Medeline told the court that she
was employed by the plaintiff and the defendant in 2008 to work as a
bookkeeper at Stir Crazy, a company she said is owned by the
plaintiff and the defendant. She said the defendant using funds from
Stir Crazy bought a flat No. 6 Rosefriars in Avondale for her use and
promised to pass transfer to her if she served Stir Crazy for a
period of between 5 -15 years.
This contradicts defendant's
evidence that he simply acted on behalf of Bret Lang in acquiring No.
6 Rosefriars Avondale.
It would be improbable for the
defendant to make such an offer if he had no interest in the
property. In fact Medeline said up to the time she left employment in
January 2012 the said flat bought with funds from Stir Crazy was
still registered in the name of the seller one Mr Wood as the
defendant did not bother to change ownership.
Again one wonders why the
defendant would buy the flat (even or behalf of Bret Lang) and fail
to change ownership.
Medeline also gave her version on
how Incvat was set up by the defendant who made his messenger
Marenzwa and his son Murray the Directors of Incvat. On how Incvat
was set up she said stock from Stircrazy was simply transferred to
Incvat. Medeline said while Incvat on paper is a stand-alone company
it is just Stir Crazy by another name and that the defendant manages
it.
She confirmed that the defendant
used his companies in South Africa to source goods for his companies
in Zimbabwe and that the Zimbabwean companies would pay. As the
practice Medeline said all salaries were paid in cash and employee's
payslips would only reflect bonuses and loan recovery only.
The evidence of Medeline was not
materially challenged. I find no reason not to accept it.
DESMOND THOMPSON (DESMOND)
Desmond told the court that he
was employed by the plaintiff and defendant as Financial Manager for
their companies between 2005 to 2008 a period of 3 years. He said the
companies included Patchbox (Pvt) Ltd, Stircrazy and other property
owning companies and that there was no holding company. He confirmed
that he compiled a schedule of assets of the plaintiff and the
defendant as per Exh 2.4 p 729 which are in Zimbabwe and South
Africa. Desmond insisted that all the assets listed therein are owned
by the plaintiff and defendant and that the companies listed therein
are owned by the plaintiff and defendant. He denied that one Bret
Lang owned shares in Stir Crazy.
Under cross examination Desmond
said he also acted as the Company Secretary and later handed over
that responsibility to one Pillay. He conceded that he never saw any
evidence of share allotment or share certificates for the various
companies and believed the plaintiff and defendant are the
shareholders. He said the defendant for some reason did not keep
company documents up to date although the defendant managed the
companies.
The testimony of Desmond was
again not seriously challenged. As the Finance Manager and acting
Company Secretary he had a useful insight into how these companies
were managed.
SANDRA DOMBO ZHUWAWO (SANDRA)
She is a manager with Kingdom
Bank in Harare responsible for loans. She was called to shed more
light on the loan advanced to Stir Crazy of about US$1 million by
Kingdom Bank. She said for any amount dis-imbursed as a loan the bank
requires security which is 1 and half times more than the loan
amount. She confirmed advancing a loan of US$1 million to Stir Crazy
in 2010 which was secured by a number of properties being No. 6
Northwood Rise Mt Pleasant, Belgravia House and others. She further
told the court that no payments have been made on this loan and she
has since referred it to their Credit Department.
She also confirmed that the
plaintiff approached the bank protesting that her signature was
forged to facilitate the use of the matrimonial home No. 6 Northwood
Rise Mt Pleasant as security for the loan.
All in all Sandra said that the
special power of attorney to pass mortgage bond over the Mt Pleasant
property No. 6 Northwood was on the face of it signed by both the
plaintiff and defendant despite the plaintiff's protestations.
The evidence of Sandra confirms
that the following properties No. 6 Northwood Rise Mt Pleasant,
Belgravia House and No. 13 Bates Street Milton Park Harare were used
to secure the loan from Kingdom Bank hence these properties are
currently encumbered.
While the plaintiff gave her
evidence very well she has not in my view managed to answer the
critical questions to deal with the shareholding structure of the
various companies I have alluded to at length. Section 7(1)(a) of
the Matrimonial Cause Act [Cap 5:13] provides as follows:-
“7
Division of assets and maintenance orders
(i) 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 –
(a) 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;” (emphasis
is my own).
It is clear to my mind that
before the court can grant an order with regard to the division,
distribution or apportionment of the so called matrimonial estate it
should be satisfied, on the evidence given that the estate consists
of the assets of the parties.
This is a critical issue which I
believe the parties in casu failed to adequately deal with in their
pleadings and subsequently in their evidence especially with regards
to the plaintiff on whose shoulders the burden of proof lies.
Let me deal first with the
belated offer made by the defendant in the closing written
submissions. I find merit in that offer.
The defendant while accepting
that the matrimonial home No. 6 Northwood Rise Mt Pleasant is jointly
owned by the parties also submitted that it should be awarded to him
if the custody of Julian is also awarded to him. The persuasive point
made by the defendant is that this is the only house Julian has known
and it would be in his interests to remain in that house. The
matrimonial house is presently encumbered and the defendant has
accepted to carry the full burden of the encumbrance. I have awarded
custody of Julian to the defendant. I shall therefore award the
matrimonial house No. 6 Northwood Rise Mt Pleasant to the defendant
together with all the encumbrances on this property. This would
ensure that Julian remains in the environment he is accustomed to as
sudden change is not in his best interests.
The plaintiff is not living in
this matrimonial house and has not taken residence in any of the
properties in issue. While in her claim she had not claimed property
known as No. 13 Bates Street Milton Park in Harare which is owned by
Opium Investments (Pvt) Ltd the defendant, despite his evidence on
the shareholding of Opium Investments (Pvt) Ltd has now conceded in
the final submissions that he has within his power the procurement of
the transfer of the entire shareholding of Opium Investments (Pvt)
Ltd to the plaintiff. In my view the option would enable the
plaintiff to own an immovable property within the shortest period of
time and avoid paying rentals for accommodation. If the said property
is encumbered the defendant should be ordered to do all such things
necessary to procure the transfer of the entire shareholding in Opium
Investments (Pvt) Ltd to the plaintiff and should also be ordered to
carry the burden of the encumbrance to enable the plaintiff to own
and occupy the said house.
This leads me to No 6. Rosefriars
Avondale. In his counterclaim the defendant stated that to the best
of his knowledge No. 6 Rosefriars Avondale is not part of the
matrimonial estate and that he is not connected to it in any way. It
was only later during the trial that exh 3 was produced and the
defendant alleged the property is owned by Bret Lang. There is no
explanation as to why the defendant did not disclose this fact which
should have been known to him at the time of filing the defendant's
plea and counterclaim. Medeline's evidence which I have no reason
not to accept is very clear on how the defendant played a key role in
the acquisition of No. 6 Rosefriars Avondale and clearly shows that
the defendant has not been candid with the court but keen to pursue
his scheme of obfuscation.
I am unable to read much into the
fact that the agreement of sale Exh 3 refers to an unnamed third
party moreso when the reference to that third party was only endorsed
clearly belatedly by the defendant in a different shade of ink
different from the rest of the agreement. Other than Accused's word
that No 6 Rosefriars is owned by Bret Lang there is no evidence to
support that. There is no reason as to why Bret Lang has not taken
ownership of the flat or place any evidence to show that he owns this
flat. The inference which I should rightly make is that No. 6
Rosefriers is an asset of the parties and should be distributed.
I would award it to the plaintiff
and order the defendant to take all steps to ensure the property is
transferred to the plaintiff within a specified period. The plaintiff
in this instance should meet costs of transfer. This decision is
informed by the findings I shall make in respect of the other claims
or properties.
In respect of the claim of a cash
amount of US$100 000 as per para 10.6 of the plaintiff's
declaration no further particulars are given by the plaintiff.
Adv. Mpofu submitted that I
should award this claim on the basis that the defendant has not
disputed the claim or referred to it is his claim in reconvention.
According to Adv.Mpofu this amounts to an admission and reliance was
placed upon the case of DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR
92 (S).
I am not persuaded by this
submission.
While it is correct that the
defendant did not refer to this claim in his claim in reconvention it
is not correct that he did not dispute it in his plea. Ad per para 6
of the defendant's plea the defendant stated as follows:
“6 Ad paragraphs 9-10 Denied –
the plaintiff is put to the strict proof of her claim otherwise the
defendant refers to the claim in reconvention”.
As per the joint pre-trial
conference minute the claim of US$100,000 was not considered as one
of the issues which was either referred to trial or upon which an
admission was sought or and made. The plaintiff in her very detailed
testimony did not explain the basis of the claim of cash payment of
US$100 000. I am therefore on that basis inclined not to grant the
claim of a cash amount in the sum of US$100 000.
In relation to the claim of
£10,400 both parties from the evidence led are agreed that this
amount which was part of the plaintiff's inherited funds was loaned
to Stir Crazy and the parties had agreed that it would accumulate an
interest at the rate of 8.5% per annum with effect from September
2009. It is therefore clear that this amount was not loaned to the
defendant in his personal capacity but to a company called Stir
Crazy.
I am unable to appreciate why the
plaintiff has decided to make such a claim under the auspices of
section 7(1) of the Matrimonial Causes Act [Cap 5:13]. I hold the
view that such a claim cannot be made in terms of section 7(1) of the
Matrimonial Cause Act [Cap 5:13]. The relevant company Stir Crazy is
not cited in these proceedings. The plaintiff is at liberty to make
such a claim against Stir Crazy.
I am therefore not inclined to
grant the claim of payment of £10,400.
The plaintiff seeks to be awarded
a motor vehicle namely Nissan Navara Registration No. ABD 6847 which
she is currently driving and that the defendant be ordered to procure
its registration into the plaintiff's name as her exclusive
property at the defendant's cost.
In his plea the defendant as per
para 6(vi) of the claim in reconvention stated that the said motor
vehicle is owned by Stir Crazy and therefore is not an asset of the
parties. However during his evidence the defendant was now singing a
different tune. He said he is not able to tell the motor vehicles
owned by Stir Crazy or their number. He did not comment on the
specific allegation that this motor vehicle has been in the
plaintiff's possession since their separation to date.
As already said the defendant was
not keen to place before the court the relevant evidence to enable
this court to make an informed decision. It is clear that the
defendant misled the court as regards this motor vehicle and I should
not reward him for that but to draw an adverse inference.
The plaintiff gave a very long
list of the motor vehicles she believed form part of the matrimonial
estate. The defendant gave none. I would therefore award the Nissan
Navara to the plaintiff as this is the motor vehicle she has been
using since the separation of the parties.
I now turn lastly to the
following immovable properties;
(a) No. 94 Matumi Sands Lonehill
South Africa.
(b) No. 112 Matumi Sands Lonehill
South Africa.
(c) Belgravia House.
The above mentioned immovable
properties are not registered in the names of the plaintiff or the
defendant. The two properties in South Africa, No. 94 Matumi and 112
Matumi including a third one No. 182 Shingara are owned by South
African companies with the same names. Belgravia House in Zimbabwe is
owned by a company called The Right Investments (Pvt) Ltd.
I have also alluded to the
various companies in which the plaintiff did not lay any claim but
were alleged to be owned by the defendant and that I should consider
that fact in the distribution of the assets of the parties. These
include: -
(i) Telehec Investments (Pvt)
Ltd.
(ii) Natsbury Trading (Pvt) Ltd.
(iii) Bywork Intermedia.
(iv) Incvat.
(v) Stircrazy.
In respect of all the above
properties inclusive of the companies I am inclined to grant
absolution from the instance.
I have already alluded to the
fact that neither the plaintiff nor the defendant have been able to
place evidence before the court to show the shareholding of these
companies I have dealt at length with the evidence of the parties and
explained why I believed the defendant is an untruthful and
incredible witness. I however hold the view that the plaintiff has
not been able to make out a case in respect of these assets. I am
also persuaded to grant absolution from the instance because of the
fact that as the trial commenced but before its completion Stir Crazy
was placed under provisional liquidation and is currently under
liquidation.
The test to be applied in granting absolution
from the instance is settled in our jurisdiction. See United Air
Charters (Pvt) Ltd v Jarman 1994 (2) 341 (S) at 343, Walker v
Industrial Equity Ltd 1995 (1) ZLR 87 (S) at 94.
The test is simply whether there
is evidence adduced upon which this court directing its mind
reasonably to such evidence could find that the properties in issue
are assets of the parties. It would be unjust in my view to dismiss
the plaintiff's claim even at this stage. As I have said I have no
doubt that the defendant has interests in all these companies,
whether trading companies or property owning companies. It is the
extent of his interests or shareholding which is unclear. In making
an order in respect of the distribution of the assets in terms of
section 7(1)(a) of the Matrimonial Cause Act [Cap 5:13], I am
enjoined to take into account the factors outlined in section 7(4)(a)
to (g) of the same Act.
I am unable to meaningfully apply
these factors without establishing the full extent of the defendant's
interests in these companies. While I have no difficulty in finding
that the defendant has not been a useful and truthful witness and
therefore dismiss his evidence, the plaintiff has not provided the
court with proof of shareholding in these companies which could be
Memoranda and Articles of Association bearing the names of the
subscribers and the designated shares they are taking up,
shareholders agreements or share certificates (as proof of title).
These are important facts which cannot be wished away by simply
alleging that the defendant is an untruthful witness.
It is trite that a company duly
incorporated is a distinct legal entity endowed with its own legal
personality. See Salomon v Salomon & Co Ltd [1897] AC 22.
This means that both the property
owning companies and the trading companies enjoy distinct legal
persona from the plaintiff and the defendant. This court in terms of
section 7(1) of the Matrimonial Cause Act [Cap 5:13] can only
distribute or apportion each party's interests or shares in the
said companies.
While they are instances in which
the court may pierce or uplift the corporate veil, see Mangwendeza v
Mangwendeza 2007 (1) ZLR 216 (H) at 218 E; Van Niekerk v Van Niekerk
& Ors 1999 (1) ZLR 421 (S) at 427 G - H 428 A; Deputy Sheriff v
Trinpac Investments (Pvt) Ltd & Anor 2011 (1) ZLR 548 (H) at 551
D-H to 552 A-C, I do not believe that a case has been made for such
an approach.
As already said it is a fact that
Stir Crazy has been placed in final liquidation. I am unable to
ignore that fact which has a bearing on the value to be placed on
this company. Absolution from the instance would enable the
plaintiff, if she so desires to deal with the defendant's interests
in Stir Crazy and other related companies after a full public
inquiry. The plaintiff would also be in position to cite properly on
the relevant companies. The only viable and just option is to leave
the door open for the plaintiff to approach the court after a decree
of divorce is granted, if she wishes, with sufficient evidence on the
shareholding of both the trading and property owning companies in
Zimbabwe and South Africa.
Section 7(1) of the Matrimonial
Cause Act [Cap 5:13] allows the court to consider such matters after
divorce has been granted and other issues dealt with. Since evidence
had been led in respect of these companies I cannot leave the matter
hanging but to grant absolution from the instance.
Lastly, while the defendant in
his evidence made reference to the plaintiff's tuckshop business I
do not believe that I should be detained by this issue as it is not
part of the pleadings. The tuckshop business therefore remains the
plaintiff's sole and exclusive property.
I now deal with the issue of
costs.
I have no doubt that this was a
very lengthy and protracted trial. Both the plaintiff and defendant
have met with mixed fortunes as regards the outcome of this trial.
Advocate Uriri for the defendant did not make submissions as regards
costs despite the fact that the plaintiff is seeking costs on a high
scale. While the defendant was clearly an untruthful witness I do not
believe that this alone warrants a punitive order of costs I would
order the defendant to bear the costs on the ordinary scale.
Accordingly it is ordered as
follows:-
1. A decree of divorce be and is
hereby granted.
2. Custody of the perpetual minor
child JULIAN RONALD COUMBIS, born on 3 July 1994 be and is hereby
awarded to the defendant.
3. The plaintiff be and is hereby
granted reasonable access rights to the said perpetual minor child
which shall be exercised as follows:
3.1 She shall have the right to
stay with the said perpetual minor child on alternate weekends.
3.2 She shall have the perpetual
minor child on any other special occasions including but not limited
to each alternate Easter holidays and Christmas holidays.
4. The defendant shall solely be
responsible for the upkeep of the said perpetual minor child.
5. The defendant shall pay
maintenance in respect of the plaintiff in the sum of US$2000-00 per
month as per the order granted by the Magistrates Court for a period
of six (6) months from the date of granting of this order inclusive
of the month of September 2014.
5.1 Payments shall be made
directly into the plaintiff's Bank Account whose details shall be
provided forthwith to the defendant by the plaintiff.
6. The plaintiff is awarded as
her sole and exclusive property all household, furniture, contents
and effects inclusive of all her personal items and jewellery, at the
matrimonial house No. 6 Northwood Rise, Mt Pleasant, Harare,
excluding TV set, stereo, dinning suite and lounge suit which are
awarded to the defendant.
7. The defendant shall transfer
into the plaintiff's name a motor vehicle Nissan Navara
Registration Number ABD 6847 presently being used by the plaintiff at
his sole cost within thirty (30) days of the grant of this order.
8. The defendant is awarded as
his sole and exclusive property, immovable property known as No. 6
Northwood Rise , Mt Pleasant, Harare currently registered in the
names of the plaintiff and the defendant.
8.1 The defendant shall transfer
against payment by him of all transfer costs the said property into
his names and the plaintiff shall sign all the relevant papers to
effect such transfer within 30 days of being requested, failure of
which the Sheriff shall sign all the documents.
8.2 The defendant shall be solely
responsible for any encumbrances, mortgages or other obligations duly
existing or registered by law over the said property.
9. The defendant shall transfer
all shares of OPIUM INVESMENTS (PVT) LTD, a property owning company
whose sole asset is an immovable property known as No. 13 Bates
Street Milton Park Harare, to the plaintiff within thirty (30) days
of the grant of this order at his cost.
9.1 The defendant shall be solely
be responsible of any encumbrances or obligations duly existing or
duly registered by law over the said property.
9.2 The defendant shall sign all
the relevant documents to effect such transfer failure of which the
Sheriff is authorised to sign all such documents.
10. The plaintiff is awarded as
her sole and exclusive property, an immovable property known as No. 6
Rosefriars, Avondale, Harare.
10.1 The plaintiff shall transfer
against payment by her of all transfer costs the rights title and
interest in the said property No. 6 Rosefriars, Avondale, Harare.
10.2 The defendant shall within
thirty (30) days of being requested sign all the relevant documents
to effect such transfer, failure of which the Sheriff is authorised
to sign all the relevant documents to effect such transfer.
11. The plaintiff's claim for
cash in the sum of US$100 00-00 be and is hereby dismissed.
12. Absolution from the instance
be and is hereby granted in respect of the distribution of the
following assets:-
(a) 94 Matumi Sands Lonehill
(Pty) Ltd.
(b) 112 Matumi Sands, Lonehill
(Pty) Ltd.
(c) 182 Shingara (Pty) Ltd.
(d) The Right Investments (Pvt)
Ltd.
(e) Stir Crazy (Pvt) Ltd.
(f) Incvat Enterprises (Pvt) Ltd.
(g) Telehic Investments (Pvt)
Ltd.
(h) Natsbury Trading (Pvt) Ltd.
(i) Plaintiff's claim of £10,
400.
13. The defendant shall bear the
costs of suit.
Atherstone & Cook, the plaintiff's legal practitioners
Mtetwa & Nyambirai, defendant's legal practitioners
