UCHENA
JA:
1.
This is an appeal against part of the judgment of the High Court,
upholding the respondent's claim of a 50% share of an immoveable
property registered in the appellant's name pursuant to the
distribution of property upon divorce.
THE
FACTS
2.
The appellant and respondent were married in 1970, in terms of an
unregistered customary law union. In 1971 they solemnised their
marriage in terms of the African Marriages Act [Chapter 105]. On 27
May 2005 they upgraded their marriage by solemnising it in terms of
the Marriage Act [Chapter 5:11].
The union was blessed with four children who are now adults.
3.
Sometime in 2010, the respondent issued summons for divorce in the
High Court seeking the following order:
“(a)
A decree of divorce.
(b)
Maintenance for the plaintiff.
(c)
Distribution of property as listed in paragraphs 10 and 11 of the
papers.
(d)
That each party bears his/her own costs."
4.
The respondent claimed that the marriage had irretrievably broken
down and there were no prospects of the restoration of a normal
marriage relationship. She alleged that the appellant was involved in
adulterous affairs with other women and bore children out of wedlock
whom he brought to the matrimonial home to be taken care of by her
among other factors.
5.
The appellant conceded that the marriage had indeed irretrievably
broken down. He argued that it was the respondent who was in fact
involved in adulterous affairs with other men and denied ever
committing adultery. The appellant admitted that he acquired House
Number 114 Lomagundi Road, Harare (hereinafter referred to as "the
immoveable property") during the subsistence of the marriage but
submitted that he did so without the respondent's direct
contribution. He, therefore, argued that there was no basis for the
proposed equal sharing of the immovable property.
6.
At the pre-trial conference the parties agreed that the following 2
issues be referred to trial:-
“1.
Whether or not the immovable property is matrimonial property?
2.
If it is matrimonial property, what is the equitable distribution
thereof?”
7.
At the trial before the court a
quo,
the respondent gave evidence to the following effect. That during the
subsistence of the marriage the parties acquired movable and
immovable property through joint and complementary efforts in that
although she was not gainfully employed, she took care of the family
as well as the children born out of wedlock by the appellant. She
told the court a
quo that
she used to sew clothes and chair backs to raise income which she
handed over to the appellant.
8.
She told the court a
quo
that they started off in Goromonzi where the appellant was employed
as a police officer. Thereafter, they moved to Ruware Park in
Marondera upon the appellant's promotion to the Criminal
Investigation Department. The appellant was again promoted and they
moved back to Harare and acquired a house in Cranborne.
9.
In 1982 the appellant took a second wife with whom they stayed
together at the Cranbone house before moving to the Lomagundi house.
The second wife bore three children to the appellant but divorced him
after 22 years. After the second wife left, the respondent took care
of her three children and two others born out of wedlock over and
above her four children with the appellant. Although she accepts
having been assisted by maids at various stages in her life, she
asserts that she remained the primary caregiver in the family. She
stood by the appellant when he was dismissed from employment, in 1985
fending for the family in the best way she could until the appellant
got a job at Sandawana in 1996.
10.
The second wife would buy groceries but she divorced the appellant
between 1990 and 1991 leaving the respondent to stand with the
appellant until he was employed by Sandawana in 1996. The respondent
told the court a
quo
that she was 65 years old.
11.
The appellant's former second wife, Viola Nyasha Nemaunga testified
on behalf of the respondent supporting the evidence she gave in the
court a
quo. The
appellant did not contest most of the evidence given by and for the
respondent save to say that the respondent was not entitled to a
share in the immovable property.
12.
He submitted that the respondent did not contribute financially
towards the acquisition of any of his immovable properties. He
insisted that since his marriage to the respondent was out of
community of property, he had no obligation to tell her what his
intentions were with his monies and this justified why he did not
tell her about the properties he bought during the subsistence of the
marriage. He disputed that the respondent took care of the children
and contributed towards the welfare of the family in any material
respects as he hired a maid to take care of the children when he was
not at home.
13.
The appellant further testified that although the respondent did a
cake making and sewing course, no income was realised from those
ventures as he stopped her from pursuing them. His evidence was
contradicted by his former second wife who told the court a
quo
that the respondent's ventures raised income which she surrendered to
the appellant.
14.
The appellant told the court a
quo
that although he stays elsewhere, he still has an interest in the
immovable property and produced several receipts before the court a
quo
to prove that he was responsible for the maintenance of that
property.
15.
After hearing the testimonies of the parties and listening to
submissions by counsel, the court a
quo
held that taking into account the provisions of the Constitution
of Zimbabwe, 2013,
section 7(4) of the Matrimonial Causes Act [Chapter 5:13], and
international law, the respondent was entitled to a 50% share of the
Lomagundi house.
16.
It held that the interpretation of the Matrimonial Causes Act should
be in conformity with the Constitutional
provisions on gender equality. The court a
quo
also took into consideration the fact that the respondent was now 65
years old and had passed her prime age with no income. It held that
the respondent looked after nine children including five who were not
her own and had to endure the humiliation of having another wife
brought into the marriage.
17.
The court a
quo
held that although the appellant was 73 years old he was still
receiving his pension. It also took into consideration the fact that
the respondent's evidence on the indirect contributions she made
remained unchallenged. It was on the basis of these findings that the
respondent was awarded a 50% share in the immovable property.
18.
Aggrieved by the decision of the court a
quo,
the appellant appealed to this court on the following grounds:-
“1.
The court a
quo erred
in failing to find that the appellant was entitled to 100% or at
least 70% share of the immovable property taking into account his
direct and indirect contribution in the acquisition and maintenance
of the immovable property.
2.
The court a
quo erred
and grossly misdirected itself at law and fact in finding that
respondent was entitled to a 50% share in the immovable property
without giving due weight to the evidence placed before it.
3.
The court a
quo misdirected
itself by proceeding as if it was determining a gender equality issue
when the only issue before it was about the distribution of the
matrimonial asset purely on the weight of each party's contribution.”
The
appeal raises one issue for determination:
Whether
or not, the court a
quo
erred in awarding the respondent a 50% share of the immovable
property?
In
spite of the parties' not having contested the granting of a decree
of divorce the court a
quo inadvertently
omitted to grant such order. Its order reads as follows:-
“Accordingly,
it is ordered as follows:-
1.
The plaintiff be and is hereby awarded a 50% share of the immovable
property namely 114 Lomagundi Road Harare held under Deed of Transfer
5772/83 in the name of Govati Mhora.
2.
The defendant is awarded a 50% share in the said immovable property.
The immovable property shall be valued by an independent valuator
appointed by the Registrar of the High Court from the list of
valuators within 30 days of the date of this order.
3.
The parties shall meet the costs of valuation in equal proportions.
4.
Each party is hereby granted the option to buy out the other's share
in the immovable property within three months from the date of
receipt of the valuation report.
5.
In the event that the plaintiff fails to buy out the defendant or the
defendant fails to buy out the plaintiff within the three months or
such longer time as the parties may agree on in writing, the property
shall be sold to best advantage by an estate agent mutually agreed to
by the parties and in the event that they fail to agree, by one
appointed by the Registrar of the High Court.
6.
The net proceeds, after deducting the Real Estate Agents fees and
other attendant costs shall be deposited into the Trust Account of
Jessie Majome and Company Legal Practitioners or their successors in
title and thereafter shared between the parties in the ratio set out
above.
7.
The movable property is awarded as per the joint pre-trial conference
minute date stamped 13 October 2017.
8.
Each party shall bear their own costs."
19.
Contrary to the provisions of section 7(1) of the Matrimonial Causes
Act [Chapter 5:13] the order omitted to grant a decree of divorce
before distributing the parties matrimonial property.
Section
7(1)
provides as follows:-
“7(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;"
20.
The omission though not the basis of the appeal affected the validity
of the order granted by the court a
quo.
The order deals with the distribution of the parties' property
without a decree of divorce. Distribution of property is a
consequence of divorce. A court cannot therefore distribute the
divorcing spouses' property without first granting them a decree of
divorce.
21.
The issue of the omission not having been canvassed at the hearing of
the appeal the court agreed that the parties be given an opportunity
to make submissions on it. Counsel for both parties, in the presence
of their clients were on 14 February 2020 given an opportunity to
make submissions on the court a
quo's
failure to grant a decree of divorce before distributing matrimonial
property.
22.
They agreed that the court a
quo's
failure to grant a decree of divorce was a serious omission which has
to be attended to, or that the court a
quo's
order be set aside and the matter be remitted to the court a
quo for
it to decide on whether or not to correct the omission and grant a
decree of divorce and attendant relief.
23.
I agree that the order granted by the court a
quo
has to be attended to, but do not agree that it has to be set aside
and the matter be remitted to the court a
quo.
Setting aside the order and remitting the matter to the court a
quo
will have the effect of removing this appeal from this Court as an
appeal cannot be based on an order which has been set aside. It means
another appeal will have to be noted if the court a
quo
corrects its order by granting a decree of divorce.
24.
The setting aside of the court a quo's order and remittal is not
consistent with the provisions of section 22(1)(a) and (b)(ix) of the
Supreme Court Act [Chapter 7:13] which provides as follows:
“22(1)
Subject to any other enactment, on the hearing of a civil appeal the
Supreme Court -
(a)
shall have power to confirm, vary, amend or set aside the judgment
appealed against or give such judgment as the case may require;
(b)
may, if it thinks it necessary or expedient in the interests of
justice -
(i)----;
(ii)----;
(iii)---;
(iv)--;
(v)----;
(vi)
---;
(vii)---;
(ix)
take
any other course which may lead to the just, speedy and inexpensive
settlement of the case;"
(emphasis added)
25.
Section
22(1)(a)
empowers this Court to, on the hearing of an appeal, vary or amend,
the judgment appealed against or give such judgment as the case may
require. Section
22(1)(b)(ix)
empowers this Court to take any other course which may lead to the
just, speedy and inexpensive settlement of the case.
26.
Section
22(1)(b)(ix) gives
this court a wide discretion to take any other course to justly
speedily and inexpensively resolve issues which the court has to deal
with on appeal. Section
22(1)(b)(ix)
was commented on and relied on by this court in the cases of Eastern
Highlands Electrical (Pvt) Ltd v Gibson Investments (Pvt) Ltd
02-SC-026 at para 19 and page 7- 8;
Kambuzuma and Others v Athol Evans Hospital Home Complex
04-SC-118
at page 9-10; and Hwange
Colliery Company Ltd v Tendai Mukute & Another 16-SC-046 at
page10. See also the case of H
Jordan v The Bloemfontein Transitional Local Authority
& Another
Supreme Court of Appeal of South Africa Case
No 248/2002 at pages 5-6, where the South African Supreme Court
commented on the meaning of the words "take
any other course which may lead to the just, speedy and as much as
may be inexpensive settlement of the case.”
27.
In this case, the respondent instituted proceedings for divorce. The
appellant conceded that the marriage had irretrievable broken down.
The court by proceeding to distribute the parties' matrimonial
property can be assumed to have believed that it had granted a decree
of divorce. Setting aside the court a
quo's
order and remitting the matter to the court a
quo
is not in the interest of justice as it will delay the finalisation
of the dispute between the parties and increase the expenses they
have to incur in the hearing before the court a
quo
on remittal and the noting of and hearing of a fresh appeal if the
court a
quo
on remittal grants a decree of divorce and the order it had
previously granted.
28.
In my view a correction of the court a
quo's
order by adding a decree of divorce to it will result in a just,
speedy and inexpensive resolution of the court a quo's inadvertent
omission, to grant a decree of divorce.
29.
Accordingly the court a
quo's
order is corrected by prefixing it with the words:
“A
decree of divorce be and is hereby granted”
SUBMISSIONS
ON APPEAL
30.
Ms Majome for the appellant submitted that the court a
quo
erred in awarding the respondent a 50% share of the immovable
property. She argued that the respondent had not contributed anything
in the acquisition of the property hence the court a
quo
erred in not awarding the appellant 100% or at least a 70% share in
the property. Ms Majome contended that the court a
quo
diverted its attention to gender equality issues which were not
before the court. She submitted that the court a
quo
adopted the notion of equality narrowly and with bias as it based its
judgment on section 46(1) of the Bill of Rights in the Constitution.
31.
Counsel for the appellant further submitted that the value and
principle of justice outweighs equality but the court a
quo's
view was otherwise thus it erred in that regard. She further
contended that the court a
quo
ought to have considered other founding values and principles of the
Constitution
particularly the rule of law and the nation's diverse cultural,
religious and traditional values and not only focus on gender
equality.
32.
Ms Majome submitted that the net effect of the court a
quo's
judgment was to disregard the decision reached in Takafuma
v Takafuma
1994
(2) ZLR 103 (S)
to the effect that in distribution of property upon divorce, a party
is entitled to get what is his/hers first before getting a share in
jointly acquired property. She further argued that the immovable
property was acquired by the appellant and that had the court a
quo exercised
its discretion judiciously, it would have made a finding to that
effect.
33.
Counsel for the appellant submitted that the court a
quo's
construction of the conduct of parties with regard to section
7(4) of the Act
was against the "no-fault” concept in divorce matters and in
the distribution of property which was laid to rest in Ncube
v Ncube 1993
(1) ZLR 39 (S).
She submitted that the court a
quo
had considered the conduct of the appellant in the distribution of
property. Consequently, she prayed that the judgment of the court a
quo
be set aside as it had failed to use its discretion judiciously in
the distribution of property.
34.
Ms Damiso for the respondent, submitted that the court a
quo
judiciously exercised its discretion in terms of section 7 of the
Matrimonial Causes Act. She argued that a court's discretion can only
be interfered with if it is shown that it was grossly unreasonable
which in casu, the appellant failed to prove. Counsel for the
respondent contended that in exercising its discretion in
interpreting section
7 of the Act,
the court a
quo
had to be guided not only by precedent but also by the Constitution.
35.
Ms Damiso further submitted that the case of Shenje
v Shenje 01-HH-145-2001 (1) ZLR 160 (H) outlined
the principle which is applied in the distribution of property. She
stressed that the needs of the parties is the primary consideration
not their respective contributions. She submitted that the court a
quo
applied this principle as it considered that the respondent was 65
years old and had passed the prime of her life and was, unlikely to
remarry, that the appellant was receiving a pension, that the
respondent was sick and that the appellant had alternative
accommodation.
36.
Counsel for the respondent submitted that in terms of section
7 of the Act,
a court can take into account the conduct of parties in the
distribution of property and this was not necessarily a resuscitation
of the "no-fault” principle.
37.
In relation to the issue of gender equality, Ms Damiso submitted that
the court a
quo
took into account real and substantial considerations which point to
gender as a crucial factor in determining the needs and contributions
of the parties. She argued that taking into consideration all these
factors cumulatively justifies the awarding of a 50% share of the
immovable property hence the court a
quo
cannot be faulted for exercising its discretion in that regard.
DETERMINATION
OF THE APPEAL
38.
Section 26(c) and (d) of the Constitution provides that the State
must ensure that there is equality of rights and obligations of
spouses during marriage and at its dissolution and in the event of
dissolution, whether through death or divorce, provision must be made
for the necessary protection of spouses. Article
16
(1) of the Universal
Declaration of Human Rights (1948)
provides that men and women of full age are entitled to equal rights
as to marriage, during marriage and at its dissolution. This means
there must be a fair and equitable division and distribution of
property at the dissolution of marriage.
39.
The importance of gender equality in this era cannot be
overemphasized. The appellant's counsel can therefore not be correct
when she alleges that the court a
quo
turned this matter into a gender issue. The court a
quo
merely took into account gender equality as a crucial factor in
determining the needs and contributions of the parties as shall more
fully appear in the foregoing.
40.
The division and distribution of assets of the spouses at divorce are
governed by section
7 of the Act.
It is trite that in matters involving the distribution of property,
the court has to exercise its discretion in deciding what is a just
and equitable distribution of the parties property. As a result, a
lot of authorities, in construing the provisions of section
7
as a whole, refer to the need to achieve an equitable distribution of
the assets of the spouses consequent upon the grant of a decree of
divorce. This Court's view on the discretion of the trial court on
the distribution of assets of the parties was aptly stated in the
Ncube case, supra,
at p 41A where the court said:
"The
determination of the strict property rights of each spouse in such
circumstances, involving, as it may, factors that are not easily
quantifiable in terms of money, is invariably a theoretical exercise
for which the courts are indubitably
imbued with a wide discretion."
(my emphasis)
41.
The trial court's discretion was also commented on in Gonye
v Gonye
09-SC-015-2009 (1) ZLR 232 at para 14 and page 236H-237B, where
MALABA JA (as he then was) said:
"It
is important to note that a court has an extremely wide discretion
regarding the granting of an order for the division, apportionment or
division 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)
are dependent upon the exercise by the court of the broad
discretion".
42.
The exercise of discretion by an appropriate court as required in
terms of section
7 of the Act
has been the subject of scrutiny by the courts within this
jurisdiction. It is trite that in giving effect to the broad
discretion bestowed on it by section
7(1) of the Act,
the court must have regard to the factors set out in section
7(4)
which are:-
(a)
the
income-earning
capacity, assets and
other financial
resources which each spouse and child has or is likely to
have in the foreseeable future:
(b)
the
financial needs, obligations and responsibilities which each spouse
and child has
or
is likely to have in the foreseeable future;
(c)
the standard of living of the family, including the manner in which
any child was being educated or trained or expected to be educated or
trained;
(d)
the
age and physical and mental condition of each spouse
and child;
(e)
the
direct or indirect contribution made by each spouse to the family,
including contributions made by looking after the home and caring for
the family and any other domestic duties;
(f)
the value to either of the spouses or to any child of any benefit,
including
a pension or
gratuity, which such spouse or child will lose as a result of the
dissolution of
the
marriage;
(g)
the
duration of the marriage;
and
in so doing the court shall endeavour as far as is reasonable and
practicable and, having regard to their conduct, is
just to do so, to place the spouses and children in the position they
would have been in had a normal marriage relationship continued
between the spouses." (my
emphasis)
43.
It is trite that in matters involving the exercise of discretion by a
lower court the Appellate Court cannot interfere unless the trial
court misdirects itself, acts on a wrong principle, allows itself to
make its decision on extraneous or irrelevant matters or does not
take into account some relevant consideration. It can only do so in
extraordinary circumstances where there is evidence of gross
misdirection, unreasonableness and illogicality. The position was
clarified in the case of Barros
& Anor v Chimphonda 99-SC-001-1999 (1) ZLR 58 (S) at
para 10-11 and 625-63A where the court said:
"These
grounds are firmly entrenched. It is not enough that the Appellate
Court considers that if it had been in the position of the primary
court, it would have taken a different course. It must appear that
some error has been made in exercising the discretion. If the primary
court acts upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it does not take into
account some relevant consideration then, its determination should be
reviewed and the Appellate Court may exercise its own discretion in
substitution provided always it has the materials for doing so. In
short, this court is not imbued with the same broad discretion as
enjoyed by the Trial Court."
See
also The Civil Practice of the Supreme Court of South Africa
(Herbstain and van Winsen) 4th ed by L Van Winson, AC Cilliers and C
Loots at pages 918-9; Tjospomie Boedey (Pvt) Ltd v Drakensberg
Bottliers (Pvt) Ltd & Anor 1989
(4) SA 31 (T) at 40A-J;
and Ex-parte Neethling & Anor 1951
(4) SA 331A.
44.
In
casu,
the appellant did not properly challenge the decision of the court a
quo
in that regard as no gross misdirection, illogicality and
unreasonableness has been alleged in the appellant's grounds of
appeal. It is not enough for the appellant to seek to impugn the
decision of the lower court on an exercise of discretion without
showing that such discretion was not exercised judiciously.
45.
The nub of the matter is whether or not the court a
quo
erred in distributing the immovable property equally between the
parties. The appellant alleges that the court a
quo did
not take into consideration the fact that the immovable property was
acquired by the appellant without any direct contribution from the
respondent. On the other hand, the respondent did not dispute that
she did not contribute financially towards the acquisition of the
immovable property. She however gave evidence on how she looked after
and brought up the appellant's
three
children with his second wife and two born out of wedlock over and
above their four children.
46.
That in my view is outstanding indirect contribution which entitles
her to a share higher than that deserved by a wife of longstanding
who contributed through looking after her husband and their own
children.
47.
In the case of Shenje supra,
GILLESPIE J at para 15-16 and pages 1636 to 164A commenting on what
should be considered in the division and distribution of property in
terms of section
7(4) of the Act
upon divorce said:-
“The
factors listed in the subsection deserve fresh comment. One might
form the impression from the decisions of the courts that the crucial
consideration is that of the respective contributions of the parties.
That would be an error. The matter of the contributions made to the
family is the fifth listed of seven considerations.
The
first four listed considerations all address the needs of the parties
rather than their duties. Perhaps, it is time to recognise that the
legislative intent, and the objective of the courts, is more weighted
in favour of ensuring that the parties' needs are met rather than
that their contributions are recouped."
(my emphasis)
48.
The needs of the parties are an important consideration because
section
7(4)
ends by requiring the court to after taking all factors into
consideration place the spouses and children in the position they
would have been in had a normal marriage relationship continued
between the spouses. The normal family life the court should use as a
standard does not depend on contributions but provision for the
family out of parental and spousal love and care. The actual words
used by the Legislature are:
"and
in so doing the court shall endeavour as far as is reasonable and
practicable and, having regard to their conduct,
is just to do so, to place the spouses and children in the position
they would have been in had a normal marriage relationship continued
between the spouses." (my emphasis)
49.
The use of the words “shall endeavour" means the court must in
balancing the seven factors of section
7(4)
ask its self whether its decision will put the divorcing spouses and
their children in a position they would have been in if a normal
marriage had continued. The use of the words "shall endeavour"
also means the court must try very hard to come up with a decision
which places the spouses and children in the position they would have
been in had a normal marriage relationship continued between the
spouses. Such an endeavour calls upon the court search beyond mere
contributions in arriving at a decision which places the spouses and
their children in the position they would have been in had a normal
marriage relationship continued.
50.
It requires the court to look into the family's standard of life and
needs after which the court's orders must be made with a view to
maintaining that standard of life and meeting the divorcing spouses'
family's needs.
51.
Further, the approach which a court should adopt in apportioning the
assets of parties following the dissolution of a marriage was set out
in the famous case of Takafuma
v Takafuma
1994
(2) ZLR 103 (S).
In that case, the court at p106 B-E said:
“The
duty of a court in terms of section 7 of the Matrimonial Causes Act
involves the exercise of a considerable discretion, but it is a
discretion which must be exercised judicially. The court does not
simply lump all the property together and then hand it out in as fair
a way as possible.
It
must begin, I would suggest, by sorting out the property into three
lots, which I will term 'his', 'hers' and 'theirs'. Then
it will concentrate on the third lot marked 'theirs'. It will
apportion this lot using the criteria set out in section
7(3) of the Act.
52.
Then it will allocate to the husband the items marked 'his', plus
the appropriate share of the items marked 'theirs'. And the same
to the wife. This is the first stage. Next it will look at the
overall result, again applying the criteria set out in section
7(3)
and consider whether the objective has been achieved, namely, 'as
far as is reasonable and practicable and, having regard to their
conduct, is just to do so, to place the spouses... in the position
they would have been had a normal relationship continued'
... Only at that stage, I would suggest, should the court consider
taking away from one or other of the spouses something which is
actually 'his' or 'hers'." See also Masiwa
v Masiwa
06-SC-074-2006 (1) ZLR (S). (emphasis added)
53.
The appellant's main argument was that the respondent was not
entitled to a 50%share of the property but 30 per cent as he had
acquired it by himself without a direct financial contribution from
the respondent. That a wife's indirect contribution to the family
cannot be disregarded is beyond question as illustrated by GOWORA JA
in Muzongondi v Muzongondi SC66/17.
It is evident that the court a quo was aware of the weight to be
placed on such contribution in considering the apportionment of the
assets of the parties. The court had regard to the dicta by ZIYAMBI
JA in
Usayi v Usayi
03-SC-011-2003 (1) ZLR 684 (S) wherein at para 13-14 and page 688A-D,
she said:
"The
Act speaks of direct and indirect contributions how can one quantify
in monetary terms the contribution of a wife and mother who for 39
years faithfully performed her duties as wife, mother, counsellor,
domestic worker, house keeper, day and night nurse for
her husband and
children? How can one place a monetary value on the love,
thoughtfulness
and attention to detail that she puts into all the routine and
sometimes
boring duties attendant on keeping a household running smoothly and a
husband and children happy? How can
one measure in monetary
terms the creation of a
home and therein an atmosphere from which both husband and children
can function to the best of their ability? In the light of these many
and various duties how can one say as is often remarked: 'throughout
the marriage she was a housewife. She never worked?' In my
judgment, it is precisely because no monetary value can be placed on
the performance of
these duties that the Act speaks of the 'direct or indirect
contribution made by each spouse
to the family, including contributions made by looking after the home
and caring for
the family and any other domestic duties.
A
fair approach is that set out by Professor Ncube in his book 'Family
Law in Zimbabwe'. At p178 he said:-
'Our
courts, when formulating a legal approach to the re-allocation of
property on divorce, should
not attempt to attach a monetary value to the intangible and
unquantifiable domestic contributions of a housewife.'"(my
emphasis)
54.
This case establishes the factors which constitutes indirect
contributions. Indirect contributions encompasses much more than the
performance of domestic duties. It encompasses all aspects of a
spouse's role in the life of the other spouse and their children in
the day to day running of a family.
55.
In this case the court a
quo
considered the respondent's indirect contributions and came to the
conclusion that she should be awarded a 50% share of the immovable
property. In my view the court a
quo properly
exercised its wide discretion on such matters. The ambit of the Act
as a whole is to leave the parties in a position they would have been
in had a normal marriage relationship continued.
56.
The court a
quo
took into consideration the indirect contribution made by the
respondent in taking care of the family and the household through the
non-financial means for a period of close to 5 decades. It also took
into consideration the fact that the respondent also took care of
three children of the appellant and the other wife and two of the
appellant's children born out of wedlock. The court considered the 47
years of marriage and the indirect contributions and expectations
flowing from such a long marriage.
57.
It also took into account the age of the respondent (65 years) and
that she was past her prime age and there was no possibility of
remarriage. It also factored in the various ailments that the
respondent is suffering from and the attendant needs arising from
such ailments. Her evidence on such ailments was not challenged by
the appellant.
58.
The court a
quo also
considered that although the appellant was 73 years old, he was
receiving his pension and had alternative accommodation at a house he
said belonged to his former employer Sandawana.
59.
In my view, taking into consideration all these circumstances, the
court a
quo
correctly awarded the respondent a 50% share of Number 114 Lomagundi
Road. The respondent deserved a share which is commensurate with the
duration of the marriage of close to five (5) decades and her
indirect contributions which included looking after the appellant's
three
children from the second marriage and two born out of wedlock over
and above their four children.
60.
The court a
quo
considered all factors upon which such an enquiry should be made. It
therefore properly exercised its discretion. The court a
quo also
took into consideration the conduct of the appellant in the
distribution of property as provided under section
7(4) of the Act.
The appellant took issue with that approach and alleged that it was a
resuscitation of the fault principle in divorce matters which was
laid to rest in the Ncube
case,
supra.
61.
Section
7(4) of the Act
provides that in the distribution of property upon divorce, the court
shall endeavour as far as is reasonable and practicable and, having
regard to "their
conduct”.
62.
The appellant mistook this conduct to be that which leads to the
breakdown of the marriage. A contextual reading of section
7(4)
makes it clear that this is not the conduct envisaged in the Act but
that which has a bearing on the distribution of property.
63.
I am of the view that the conduct envisaged in section
7(4) of the Act
is that which seeks to hinder or frustrate a proper consideration of
what consequential orders can be made upon divorce. The repercussions
of such conduct are aptly illustrated in the Shenje
case, supra,
at para 11 and at 163A-C where GILLESPIE J had this to say:-
"The
task of assessing a fair division of property can be difficult enough
when appropriate evidence is led of the wealth, assets and means of
the parties. It
is potentially much more difficult when a party seeks to conceal his
circumstances. The various suggested approaches to a division ('a
one-third rule' or a 'his, hers, theirs.' approach) are
rendered useless where one does not have any clear idea of what is
available for distribution."
(my emphasis)
64.
In
casu,
the appellant confessed that he used to conceal information about
properties he acquired during the subsistence of the marriage from
the respondent. He lied to the respondent that they were renting the
house in Marondera which he had bought. Apart from the Marondera
house, the appellant also owned another house in Highfield which he
disposed of when the respondent was not aware of its existence. There
is therefore a possibility that the appellant may have other
properties the respondent did not claim due to ignorance of their
existence as information on such properties was being deliberately
concealed from her.
65.
The appellant's contention is that he acquired these properties on
his own and the respondent was not entitled to them and/or any
knowledge about them. This is, however, not correct in view of the
importance of indirect contributions in marriage as reiterated in the
Usayi
case,
supra.
The appellant's inclination towards hiding information about
properties was a bid to frustrate a proper distribution of the same,
which conduct the Act requires to be taken into consideration.
66.
Such conduct must be held against the perpetrator in the distribution
of property. I am of the view that the court a
quo
correctly deliberated on such conduct in this context which amongst
other factors, consequently justified its decision of a 50% share of
the property to the respondent. In the Shenje
case, supra,
at para 30 and 167A-B the court had this to say in making a
determination on the distribution of property:-
“In
this case, I find merit and justice to be heavily weighed on the
defendant's side. Although there is no clear indication that the
plaintiff at this minute has the means to afford it, I propose to
order in her favour a substantial capital settlement and maintenance
for a limited period until that settlement is paid in full. The
justification for doing so is that the plaintiff has, until
relatively recently, had access to funds sufficient to meet the
amount.
It
is, moreover, my conviction that he retains these funds hidden
elsewhere than
in the amounts disclosed." (my emphasis)
67.
For these reasons I do not agree with the appellant's counsel's
construction of section
7(4) of the Act
in relation to conduct. It does not relate to conduct which led to
the breakdown of the marriage as I have alluded to above. I
respectfully agree with the court a
quo's construction
and approach of the same in this regard.
68.
Courts have, over the years, awarded considerable shares in immovable
property to spouses who did not make a direct contribution to their
acquisition. However, it must be noted that each case is dealt with
according to its circumstances and merit.
69.
In Mufunani
v Mufunani
16-HH-032
a case which is almost on all fours with this case a wife who was not
formally employed but contributed indirectly to the needs of the
family and had been a devoted housewife for over forty years was
awarded a 50% share of the immovable property. The court took into
consideration all the factors under section
7 of the Act
and also highlighted that: “The fact that the plaintiff may not
have made a direct financial contribution is outweighed by the
indirect contribution she made over the four decades of marriage.”
70.
In Mutizhe
v Mutizhe
18-HH-483,
a wife who had no formal training for any job and had been a
housewife for over 20 years was awarded a 35% share of the immovable
property to which she had made no direct financial contribution.
71.
In Sithole
v Sithole & Anor
94-HB-014
the court held that even if a wife made only indirect contributions
she cannot leave empty-handed merely because she did not contribute
financially towards the acquisition and development of the
matrimonial home. The indirect contributions in the long marriage of
10 years could not be overlooked. The wife in that case was awarded a
40% share of the immovable property.
72.
In the Usayi
case, supra,
this Court upheld a High Court decision to award a 50% share to a
non-working 60 year old housewife of 35 years giving weight to her
indirect contribution to the family for over 3 decades.
73.
In Muteke
v Muteke
94-SC-088
the wife made no direct financial contribution except as a housewife
but the court awarded her a house in Kambuzuma, a house in
Chitungwiza and $23,000-00 being her share of the sale of a house in
Southerton. Her contribution had been through looking after the
household, her husband and a child. The marriage had lasted for 32
years. The court in that case mainly considered her indirect
contributions, needs, and expectations which is what the court a quo
did in
casu.
74.
After a careful analysis of the cases referred to above, I am of the
view that the longer the duration of the marriage, the lesser the
weight to be attached to direct contributions as the value of
indirect contribution increases as the duration of the marriage
increases.
75.
However, it must be borne in mind that each case must be dealt with
according to its own circumstances and merit.
I
am of the view that the circumstances of this case justify the
awarding of a 50% share of the immovable property to the respondent.
COSTS
There
is no reason why the award of costs in this case should not follow
the result of the appeal.
DISPOSITION
The
order of the court a
quo should
be amended by prefixing it with an order granting a decree of
divorce.
After
considering the evidence led before the court a
quo and
the law applicable in the distribution of the assets of the parties
on divorce, I find that the appellant's appeal has no merit.
In
the result, it is ordered as follows:-
1.
The order granted by the court a
quo is
amended by prefixing it with the following:
"A
decree of divorce be and is hereby granted.”
2.
The appeal is dismissed with costs.
HLATSHWAYO
JA: I
agree
BHUNU
JA: I
agree
Jesse
Majome & Co,
appellant's legal practitioners
Zimbabwe
Women
Lawyers
Association,
respondent's legal practitioners
