MAKONI
JA:
On
27 September 2017, the High Court rendered judgment in HC979/15
whereby it dissolved the parties' marriage and awarded ancillary
relief which included distribution of the assets of the parties. The
relevant part of the order, distributing the assets of the parties,
reads as follows;
“F.
The matrimonial estate of the parties shall be divided and
distributed in accordance with section 7(1(a) of the Matrimonial
Causes Act (Chapter 5:13) as follows:
(i)
The defendant shall, subject to sub paragraph (ii) below, at his
expense transfer to, or cause to be transferred to, the plaintiff the
two immovable properties situated at 10 Redhill Road, Highlands,
Harare; 22 Aboynne Drive, Highlands, Harare.
(ii)
Any liability in respect of capital gains tax arising from the
transfer of any of the aforesaid properties to the plaintiff shall be
shared equally between the plaintiff and the defendant;
(iii)
The defendant shall, at his expense, cause registered in the name of
the plaintiff the Prado motor vehicle, registration number AAR5574;
(iv)
The defendant shall pay the plaintiff into an account nominated by
her, and subject to any exchange control laws applicable in Zimbabwe,
the sum of US$575,000. The parties shall agree on a payment plan for
this amount within 30 days from the date of this order; (sic)
(v)
The Plaintiff shall retain as her personal property all movable
property presently in her possession; and
(vi)
The defendant shall retain as his personal property all other
property of the matrimonial estate.”
Aggrieved
by this part of the order of the High Court, the appellant noted the
present appeal.
He
specifically appealed against para F(i), (ii) and (iv) wherein the
immovable property and monetary assets were distributed. His grounds
of appeal are as set out below:-
“(1)
The court a quo erred at law and in fact in not finding that No. 6
Valyonga Land was paid for by the defendant prior to the marriage,
and as a consequence of such error included Valyonga Land as part of
the matrimonial estate, subject to distribution in terms of section
7(1) of the Matrimonial Causes Act [Chapter 5:13], when in actual
fact No. 6 Valyonga Land fell outside the matrimonial estate.
(2)
The court a quo erred at law and fact in including the US$160,000.00
compensation, from the compulsory acquisition of Leyland Farm, as
part of the matrimonial estate, when the plaintiff (herein
respondent), actually conceded that the farm and by extension any
compensation for the same, was inherited by appellant and this could
not form part of the matrimonial estate.
(3)
The learned judge in the court a quo erred in refusing, (sic) the
appellant to call a witness to establish that the immovable
properties (the distribution of which the respondent sought) were
trust property, on the basis that the witness's name did not
feature in the pre-trial conference minutes and by holding that in
such circumstances respondent's consent to the calling of the
witness by appellant was necessary.
(4)
The learned judge in the court a quo erred in awarding the plaintiff
US$575,000.00 as cash balance, without seeking to detail how such a
figure was arrived at or what considerations were taken into
account.” (sic)
THE
APPLICATION
Pending
the determination of the appeal and on 11 April 2018 the appellant
filed in this Court, an application for leave to adduce further
evidence on appeal in terms of Rule 39(4) of the Supreme Court Rules,
2018 (the Rules).
The
basis of the application was that in dealing with the distribution of
No. 6 Valyonga, the Judge a quo found against him on the ground that
he had made bald assertions in claiming that the property was bought
before the marriage. It further found that there was no written
agreement confirming that position. He had now managed to locate the
agreement and intended to produce it.
The
application was opposed on mainly two grounds;
(a)
Firstly, the respondent averred that the appellant delayed in
bringing the application and had not explained the cause for such
delay.
(b)
Secondly, the production of the agreement of sale would not take the
applicant's case any further. The document in question reflects
that what existed prior to the marriage was, at best, a personal
right to shares in a company which, at the time, had no real value as
the shares represented no real property. The property, described in
the agreement, was only transferred to the company a year after the
marriage.
At
the hearing of the matter, the court first heard argument in respect
of the application in terms of Rule 39(4) of the Rules.
Mr
Tivadar, for the appellant submitted that the documents only surfaced
after the High Court had ceased to deal with the matter and that if
admitted, would demonstrate that during the trial, the appellant was
telling the truth, that the Valyonga land was paid for by the
appellant prior to the marriage. He contended that he bought shares
in a company that had already purchased the land in question. There
was no challenge that the document was not authentic. He further
submitted that the issue of any prejudice to the respondent will be
addressed as the appellant seeks that the matter be remitted to the
High Court for determination on the basis of the additional evidence.
The Respondent can then have an opportunity to relate to the
document.
The
court engaged Mr Tivadar on the relevance of the document in view of
the fact that in terms of the document, the appellant could only
have, at best, acquired shares in a company and not the land. The
land did not exist at that time as there was a process of subdivision
going on. Any agreement of sale entered into in respect of that land
would have fallen foul of the provisions of the Regional, Town and
Country Planning Act [Chapter 29:12].
Mr
Tivadar, after a spirited fight, later conceded the point and
indicated that his client would no longer pursue the application. In
the end the application, with the consent of both parties, was
dismissed with costs on the ordinary scale.
THE
APPEAL
I
must, at the outset, say that I agree with the observations made by
Mr de Bourbon in para 3 of the respondent's heads of argument where
it is stated;
“It
is also noted that although the relief granted in paragraph (f)(i) of
the order of the High Court is challenged, no ground of appeal is
directed against the award of two immovable properties directed to be
transferred by the appellant to the respondent. It is also to be
noted that although the appellant purports to appeal against the
issue of capital gains tax as set out in paragraph (F)(ii) of the
order of the High Court, no ground of appeal is directed to that
finding (sic). In essence it is submitted that grounds (a), (b) and
(d) of the Notice of Appeal are directed in reality at the relief
granted in para (F)(iv) of the order of the High Court only.
It
is submitted that the Appellant must be held bound to his Notice of
Appeal.”
In
essence, this means that the appellant has only appealed against the
relief granted in para F(iv) of the order of the High Court.
The
dismissal of the application to lead further evidence would have
marked the death knell to the appellant's first ground of appeal if
it had been properly before the court. As I have already alluded to
above, the issue of No.6 Valyonga, mentioned in ground number one of
the Notice of Appeal, does not feature in paragraph F(i) of the order
which the applicant appealed against.
Before
dealing with the grounds of appeal I consider it necessary to deal
with a pertinent issue which runs through from the proceedings before
the court a quo to the present proceedings which is, what was the
essence of the dispute between the parties.
The
issue arose from the manner in which the parties couched their
pleadings.
Mr
Tivadar submitted that the respondent, in her summons, had prayed for
the distribution of “the matrimonial assets.” The appellant
requested that the respondent particularize the “matrimonial
assets” referred to by her in the summons and the division thereof
sought. The respondent refused to supply the particulars on the basis
that the appellant did not require them to enable him to plead.
In
his plea, the appellant consented to the prayer for the “matrimonial
estate” to be divided equally between the parties.
The
respondent, in her summary of evidence makes reference to “assets
acquired by the parties” during the course of their marriage.
Counsel
argued that in view of the manner in which the respondent pleaded her
cause, the court a quo was asked to distribute 50 percent of the
“assets” that the parties acquired during the course of their
marriage i.e. the “matrimonial estate”. The composition of the
matrimonial estate, and not the assets of the spouses was agreed as
the relevant issue for trial.
It
would have been open to the respondent to seek a division of all the
assets of the parties if she so desired. Mr De Bourbon, on the other
hand, submitted that what was sought by the respondent, in para 8 of
her declaration, was an order in terms of section 7 of the
Matrimonial Causes Act [Chapter 5.13], (the Act) for the equal
distribution between the parties of their matrimonial assets. He
further submitted that the appellant, in his plea, agreed that the
matrimonial estate be divided equally between the parties.
If
he intended to draw a distinction between 'assets of the parties',
'the matrimonial assets' or 'matrimonial estate', he did not
make that clear.
He
argued that the use of the term “matrimonial estate” is
synonymous with “the assets of parties.”
He
further submitted that in the Joint Pre-Trial Conference minute both
parties agreed to relate to the matrimonial estate, that is, what
constituted the estate and how it was to be equally divided between
the parties.
It
was not an issue, neither was it an agreed position that the trial
would consider only matrimonial assets and not the assets of the
spouses. He further submitted that the parties accepted that the
trial would be concerned with the distribution to be made in terms of
section 7(1)(a) of the Act. This was made clear in the opening
address of the respondent.
It
was on the basis of the above that the Judge a quo issued an order
that the matrimonial estate shall be divided and distributed in
accordance with section 7(1)(a) of the Act. The court a quo dealt
with the dispute as follows:
“Issue
2.2 was the real dispute throughout the trial. It can be noted
throughout the pleadings, the parties were referring to “matrimonial
assets” in para 8 of the summons; “matrimonial estate” in para
6 of the plea and “matrimonial estate” in para 2.2 of the joint
Pre Trial Conference minute.
This
points to the fact that the parties were looking to the assets they
acquired during their marriage. These are the assets which they
agreed to distribute 50/50.
In
my view, there is no conflict between the parties' desire to look
to what they acquired during their marriage and the provisions of
section 7 of the Matrimonial Causes Act (Chapter 5.13) which refers
to the assets of the spouses.
The
assets of the spouses, in this instance would be limited to the
assets which the spouses acquired during the marriage; while they
were spouses in the marriage, because that was the intention of the
parties as indicated in the summons, plea, and joint PTC Minute.
While
the legal position as given in Ncube v Ncube 1993 (1) ZLR 39 (SC) and
Gonye v Gonye 2009 (1) ZLR 232 is correct, what distinguishes the
current case is the specific intention of the parties to limit their
50/50 distribution to matrimonial assets.
This
means that if the defendant is able to prove that an asset was
acquired before the marriage, or is exempt in terms of the law, then
such an asset shall be excluded in view of plaintiff's claim in the
summons.
Although
the legal position is settled as argued by plaintiff's counsel, it
is the plaintiff who chose to limit herself in her claim and
pleadings. She cannot abandon that position in the absence of
appropriate amendments to her pleadings.”
The
question that arises from the above discourse is what is it that is
distributed in terms of section 7(1) of the Act?
This
position is settled in our law. The starting point being section
7(1)(a) of the Act which provides:
“7
Division of assets and maintenance orders
(1)
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;” (my emphasis)
The
import of the above section was made clear in Gonye (supra) where the
following was stated;
“It
is important to note that a court has an extremely wide discretion to
exercise regarding the granting of an order for the division,
apportionment or distribution of the assets of the spouses in divorce
proceedings.
Section
7(1) of the Act provides that the court may make an order with regard
to the division, apportionment or distribution of 'the assets of
the spouses including an order that any asset be transferred from one
spouse to the other'.
The
rights claimed by the spouses under section 7(1) of the Act are
dependent upon the exercise by the court of the broad discretion. The
terms used are the 'assets of the spouses' and not 'matrimonial
property'. It is important to bear in mind the concept used,
because the adoption of the concept 'matrimonial property' often
leads to the erroneous view that assets acquired by one before
marriage or when the parties are separated should be excluded from
the division, apportionment or distribution exercise.
The
concept 'the assets of the spouses' is clearly intended to have
assets owned by the spouses individually (his or hers) or jointly
(theirs) at the time of the dissolution of the marriage by the court
considered when an order is made with regard to the division,
apportionment or distribution of such assets.
To
hold, as the court a quo did, that as a matter of principle assets
acquired by a spouse during the period of separation are to be
excluded from the division, apportionment or distribution a court is
required to make under section 7(1) of the Act is to introduce an
unnecessary fetter to a very broad discretion, on the proper exercise
of which the rights of the parties depend.”
Such
a wide discretion was bestowed on the High Court to cure the mischief
that existed prior to 1986 where the court had no power within its
inherent jurisdiction, to make a distribution order upon the
dissolution of a marriage. In particular, it could not order the
transfer from one spouse to the other of any property.
The
learned author W Ncube in Family Law in Zimbabwe Legal Resources
Foundation WO 41/84 at p173 had this to say on this point;
“The
most important point to note is that the courts now have the power to
order the transfer of property from one spouse to another when
dissolving a marriage or separating spouses from each other. The
provisions of the Matrimonial Causes Act, 1985 apply equally to all
valid marriages under both customary and general law...These powers
are extensive.
A
court may make any order it deems fit for the division,
apportionment, distribution or transfer of property from one spouse
to another when granting a decree of divorce, judicial separation, or
nullity of marriage, or at any time thereafter.
In
addition, the court may make maintenance orders either by way of a
lump sum or periodical payments.”
As
a result, courts had to resort to considering the parties' way of
life and transactions between them and many wives resorted to using
the concepts of universal partnership or a partnership in a
particular venture in order to obtain an equitable share of the
matrimonial estate. Such an approach had its own challenges. See
Jirira v Jirira 1976 (1) RLR 7; Chikomo v Katsidzira 1981 ZLR at 418;
and Chapeyama v Matende 2000 (2) ZLR 356 (S).
It
was only after the introduction of section 7 of the Act in February
1986 that the court was conferred with jurisdiction to transfer
property by way of a distribution order. See Ncube (supra) and
Takafuma v Takafuma 1994 (2) ZLR 103 (S).
As
this is power conferred by statute rather than common law, in any
claim brought before the High Court in terms of section 7 of the Act,
the court can only deal with the “assets of the spouses”.
Nothing,
including an agreement by the parties, can limit the exercise of the
judicial discretion that section 7(1)(a) creates. Parties may agree
on the distribution of their matrimonial assets, however the High
Court is still entitled, in the breath of its discretion, to make a
distribution order relating to the assets of the spouses if for some
reason it does not agree with the parties position.
I
have had to divert from the main issues in this matter because of the
use of an incorrect description of the assets to be distributed
employed by the respondent in her declaration. She sought the
distribution of matrimonial assets in terms of section 7(1) of the
Act. The appellant compounded matters by agreeing to the proposed
distribution but describing them as the matrimonial estate. This
continued through to the Pre-Trial Conference minute.
My
view is that once a party pitches its claim on section 7 of the Act,
the wording used in the pleadings is neither here nor there. The
court would have been asked and is required as a matter of law to
consider what constitutes the assets of the spouses and how, applying
its discretion and the general guidelines in section 7(4) of the Act,
those assets were to be divided, distributed and apportioned.
All
the above discourse would have been avoided if care had been taken by
the legal practitioners in this matter to make reference to the
relevant statute first before drafting their pleadings.
I
would go further to say that this problem would have been resolved at
the Pre-Trial Conference stage if the presiding Judge had exercised
due diligence. It did not matter that the parties had agreed to a
50-50 distribution. The question would be 50-50 distribution of what.
The answer would then be found in section 7 of the Act.
In
casu the court a quo was conscious of the fact that it was dealing
with a claim in terms of section 7 of the Act and it exercised its
discretion and issued an order in terms of that section.
GROUND
OF APPEAL NO. 2
The
appellant's argument, in its Heads of Argument, was that the
appellant had inherited Laylands farm which was subsequently acquired
by the State. In 2011 and during the subsistence of the marriage, he
received compensation from the State in the sum of US160,000 for
improvements on the farm. This amount should have been considered as
inheritance and deducted from the matrimonial estate.
During
the hearing Mr Tivadar conceded that the compensation received, from
the State, was not an inheritance and should be considered for
distribution. He proposed that the amount be dealt with as was
suggested by Mr de Bourbon. Mr de Bourbon had suggested, although not
conceding the point, that half of the amount of US$160.000 be
excluded from the amount of US$575,000 awarded to the respondent in
terms of para F(iv).
In
view of the concession made by the appellant the ground of appeal has
no merit. However, the court will deal with the issue as was proposed
by the respondent.
GROUND
OF APPEAL NO. 3
The
appellant's contention was that he was denied permission to call a
witness on the basis that the witness's name was not on the
appellant's summary of evidence.
The
court a quo suggested that he seek the consent of the respondent to
call the witness. The respondent did not consent to the calling of
the witness.
He
therefore prayed that justice would be served by rectifying the
procedural shortcoming. He did not suggest how this could be done.
On
the other hand, the respondent contended that there is nothing in the
record to support the contention that the appellant was not allowed
to call a relevant witness.
I
find merit with the submission made by the respondent. There is
nothing, on record, to show that the appellant made an application
for a postponement of the trial to allow him to call the witness and
that it was refused. Nor, that the witness was available and was not
permitted to take the witness stand. Put differently there is no
factual basis set out for the allegation that the court a quo refused
to allow the appellant to call a relevant witness. This ground of
appeal is devoid of merit and must fail.
GROUND
OF APPEAL NO. 4
Regarding
this ground the following is what was submitted on behalf of the
appellant in his heads of argument;
“The
Learned Judge awarded a cash payment of US$575,000.00 to the
respondent in addition to immovable and movable assets. How these
figures were arrived at was not explained by the court a quo.
Further, the amount awarded is inexplicable in the light of the
evidence that was before the Learned Judge.”
I
am persuaded by the respondent's contention that this ground of
appeal, “advanced without any great enthusiasm or conviction” is
devoid of merit.
To
the contrary the court a quo explains how it arrived at that figure.
No
details were given of what is alleged to be that evidence that was
before the court a quo that was not taken into account. The amount
awarded in para (F)(vi) will therefore be adjusted, as was proposed
by the respondent as discussed earlier on, and conceded to by Mr de
Bourbon which is in the sum of US$80,000-00.
As
a result, the appeal succeeds in part and, in that event it is only
fair that the appellant pays respondent's wasted costs.
In
the result I make the following order -
1.
The appeal succeeds in part.
2.
Paragraph F(iv) of the judgement of the court a quo is set aside and
substituted with the following;
“The
defendant shall pay the plaintiff, into an account nominated by her,
the sum of US$495,000. Such payment shall be and subject to any
exchange control laws applicable in Zimbabwe. The parties shall agree
on a payment plan for this amount within 30 days from the date of
this order;”
3.
The appellant shall pay the respondents costs.
GOWORA
JA: I agree
BHUNU
JA: I agree
Gill,
Godlonton & Gerrans, appellant's legal practitioners
Messrs
Atherstone & Cook, respondent's legal practitioners
