CIVIL
TRIAL – FAMILY LAW
CHIRAWU-MUGOMBA
J:
The
famed Nigerian author, feminist and motivational speaker Chimamanda
Ngozie Adichie in one of her TED talks discussed an interesting topic
titled, “The dangers of a single story”. She talked about how she
was initially shaped by one narrative on life but she later realised
how dangerous such a trajectory is.
This
matter epitomises such dangers when one party is so adamant that
during the subsistence of the marriage, only one narrative matters
and in the process completely misses the tenets of the Matrimonial
Causes Act [Chapter
5:13].
The
plaintiff issued summons for divorce and ancillary relief in 2010
seeking the following order:-
(a)
A decree of divorce.
(b)
Post-divorce spousal maintenance.
(c)
Distribution of movable and immovable property. In respect of the
house, she sought that it be sold with both parties getting 50% of
the net value.
(d)
That each party bears its own costs.
The
defendant in his plea conceded that the marriage had irretrievably
broken down due to the plaintiff's alleged adulterous relationships
with other men. He contended that the plaintiff was not entitled to
maintenance. He stated that the immovable property namely 114
Lomagundi Road, Harare was acquired through his individual effort and
he single-handedly raised the payment for the said house. He
therefore averred that there was no basis for the proposed sharing
and sale of the property. He was in agreement with the proposed
sharing of the movable property.
The
defendant did not file any counter-claim.
At
a pre-trial conference held before GUVAVA J (as she then was), the
plaintiff and the defendant agreed on the sharing of the movable
property. The plaintiff reserved the right to claim maintenance. The
two issues recorded as outstanding were the following:-
(a)
Whether or not the immovable property (hereinafter the property) is
matrimonial property?
(b)
If it is matrimonial property, what is the equitable distribution
thereof?
At
the trial, the plaintiff gave evidence as follows:-
That
she is aged 65 years. She and the defendant started staying together
in 1970 and in 1971, the union was solemnised in terms of the then
African Marriages Act [Chapter
105]
(now the Customary Marriages Act [Chapter
5:07].
On the 27th
of May 2005, the marriage was “upgraded” to [Chapter
5:11].
The
defendant was at that time employed as a police officer and they
started off by staying in Goromonzi before moving to Ruware Park in
Marondera after the defendant was promoted. They then moved to
Cranborne Park in Harare and later on to 114 Lomagundi Road in
Harare. The plaintiff was under the belief that they were renting the
house in Marondera. For the Cranborne house, the defendant got a
grant to buy the house which he subsequently sold to buy the
Lomagundi Road property.
In
1982, the defendant 'married' another wife in terms of [Chapter
5:11]
even though their customary law marriage was still in subsistence.
Plaintiff, defendant and this 'wife' stayed together in Cranborne
before moving together to Lomagundi Road house.
The
plaintiff never formally worked in her life though at some stage she
sold chair-backs and gave defendant some of the money. She did not
contribute financially to the acquisition of the immovable
properties.
Plaintiff
and the defendant had four children together. The defendant and his
other 'wife' had three children.
The
plaintiff stated that she dedicated her whole married life to the
defendant. This included performing perceived wifely duties such as
ensuring that the defendant was presentable, doing household chores
and looking after the defendant's children that he had with his
other 'wife' and she also ended up looking after other children
of the defendants' who were born to two other women who are sisters
to each other. Apart from household chores she also performed
gardening. At various stages she was assisted by maids.
The
defendant at some stage was dismissed from the police force and he
successfully challenged the dismissal in court. He was then given his
terminal benefits which he used to pay off the mortgage for the
property to CABS. In or about 1996, the defendant started working at
Sandawana Mine as a Chief Security Officer. Due to the fact that one
of the children was still going to day school, the plaintiff would be
at Sandawana for certain periods every month and every school holiday
still performing the perceived wifely duties.
In
plaintiff's view, the fact that she performed all these duties
meant that the defendant was free to work.
The
plaintiff stated that she now suffers from glaucoma, blood pressure
and backache. At 65 years, she has no prospects of remarriage or
employment.
Viola
Nyasha Nemaunga, the defendant's former 'wife' gave evidence on
behalf of the plaintiff to the following effect:-
That
she stayed with the plaintiff and defendant in Cranborne before
moving to the Lomagundi Road property. The marriage between herself
and the defendant was dissolved in 2004. When she moved out around
1989, she took her three children with her but after sometime, the
children requested to go back to their father the defendant. At that
time they were all in primary school including the last born who was
about to start Grade One. Although they used to have maids, it was
the plaintiff who was running the household since she (the witness)
was employed. During their stay together, she used to give her
earnings to the defendant. She also witnessed the plaintiff give her
earnings from the chair-back business to the defendant.
The
defendant's evidence in many respects was similar to that of the
plaintiff and her witness except that he insisted that the plaintiff
was not entitled to a share in the Lomagundi Road property.
He
averred that the 2005 [Chapter 5:11] marriage was at the insistence
of the plaintiff who wanted 'status'.
He
confirmed that the plaintiff never contributed financially to the
acquisition of the immovable properties. He saw the acquisition of
these properties as an investment. At law he could do as he pleased
with his money since his marriage was out of community of property.
He
did not disclose to the plaintiff that he had actually purchased the
house in Marondera in 1976 and so she was under the mistaken belief
that it was rented.
Apart
from the Marondera house, he also owned another house in Highfield
which he has since disposed of and the plaintiff was not aware of the
existence of this house.
He
recounted how he went on to purchase the house in Cranborne in 1979
and then Lomagundi Road in 1983 without any assistance from the
plaintiff.
He
confirmed as stated by the plaintiff that he paid off the mortgage
after receiving his terminal benefits from the police force. He was
at one time employed by the CCJP and also offered services to various
organizations and people due to his experience as a police officer.
He disputed the fact that his children with his second 'wife'
came to stay with him and the plaintiff whilst they were still young.
He averred that the plaintiff ill-treated his other two children born
out of wedlock and as a result, he hired a maid to look after them.
He
stated that the plaintiff did a course in cake making and dress
making but no income was realised and he put a stop to this ventures
after six months. He denied ever receiving income from the plaintiff.
He
moved out of the main bedroom after summons were issued and moved his
bed into the extra bedroom. Although he stays elsewhere, he insisted
that he is still resident at the Lomagundi road property. He produced
some receipts to indicate that he is the one who is maintaining the
house.
Given
the evidence led by the parties, the court is left with the two
pertinent issues relating to whether or not the property is
matrimonial property and if so, how should it be shared.
The
plaintiff wants 50% and the defendant wants 100%. These issues are by
no means new to the courts as the rate of divorce continues to soar.
The
Sixth Schedule, Part Four of the 2013 Constitution states as
follows:-
“10.
Continuation of existing laws
Subject
to this Schedule, all existing laws continue in force but must be
construed in conformity with this Constitution.”
This
essentially means that the Matrimonial Causes Act that governs the
distribution of property at divorce must be interpreted to conform to
the Constitution.
Section
3(1)(g) of the Constitution under founding values and principles
states that Zimbabwe is founded on among other values and principles
that of gender equality.
In
section 26(c) and (d) the State is called upon to take appropriate
measures to ensure that there is equality of rights and obligations
of spouses during marriage and at its dissolution and that in the
event of dissolution of a marriage, whether through death or divorce,
provision is made for the necessary protection of any children and
spouses.
Under
the Declaration of Rights in Chapter Four;-
“46
Interpretation of Chapter 4
(1)
When interpreting this Chapter, a court, tribunal, forum or body -
(a)
must give full effect to the rights and freedoms enshrined in this
Chapter;
(b)
must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality
and freedom, and in particular, the values and principles set out in
section 3;
(c)
must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
(d)
must pay due regard to all the provisions of this Constitution, in
particular the principles and objectives set out in Chapter 2; and
(e)
may consider relevant foreign law;
in
addition to considering all other relevant factors that are to be
taken into account in the interpretation of a Constitution.
(2)
When interpreting an enactment, and when developing the common law
and customary law, every court, tribunal, forum or body must promote
and be guided by the spirit and objectives of this Chapter.”
Section
56(1) guarantees equality before the law and the right to equal
protection and benefit of the law. In section 56(3) discrimination on
grounds of sex and gender among others is prohibited.
Therefore
it becomes imperative to apply the provisions of section 7(4) of the
Matrimonial Causes Act from a constitutional perspective. Put
differently, the Constitution informs the discretion that courts rely
upon in cases of this nature.
Zimbabwe
is a signatory to many regional and international instruments which
include the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), the Protocol to the African
Charter on Human and People's Rights on the Rights of Women in
Africa (The Maputo Protocol) and the SADC Protocol on Gender and
Development as revised to meet 2030 targets.
All
these instruments address equal protection of women's rights at
divorce.
All
these become relevant when regard is had to the fact that the
Constitution states that courts must take into account international
law and all treaties to which Zimbabwe is a signatory to.
Article
7(d) of the Maputo Protocol states that, “in case of separation,
divorce or annulment of marriage, women and men shall have the right
to an equitable sharing of the joint property deriving from the
marriage”.
The
locus
classicus on
the definition of matrimonial assets is the Gonye
v
Gonye
SC15/09
decision.
The Supreme Court was unequivocal in its definition of the terms
assets of the spouses as follows:-
“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 spouse before marriage or
when the parties are on separation 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.”
This
therefore puts paid to the defendant's assertion that the Lomagundi
property is not part of the matrimonial estate. It is clear that the
property was acquired during the subsistence of the marriage and as
such became a matrimonial asset upon its acquisition.
The
courts have also on numerous occasions dealt with the exercise of the
discretion set out in section 7(4) of the Matrimonial Causes Act.
In
Shenje
v
Shenje
2001 (1) ZLR 160 (H) at 163E–164A GILLESPIE J had this to say on
the issue:
“In
deciding what is reasonable, practical and just in any division, the
court is enjoined to have regard to all the circumstances of the
case. A number of the more important, and more usual, circumstances
are listed in the subsection. The list is not complete. It is not
possible to give a complete list of all the possible relevant
factors. The decision as to a property division order is an exercise
of judicial discretion, based on all relevant factors, aimed at
achieving a reasonable, practical and just division which secures for
each party the advantage they can fairly expect from having been
married to one another, and avoids the disadvantage, to the extent
they are not inevitable, of becoming divorced.
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 dues. 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.”
The
defendant was at pains to emphasise that the plaintiff never
contributed financially to the acquisition of all immovable property.
In his view, the plaintiff is a schemer who wanted to get married
under [Chapter
5:11]
so that she could claim the house. He averred that it was actually
the plaintiff who went to complete the documents required for the
solemnisation of the marriage.
Whether
it was the plaintiff or the defendant who went to complete the
documents is immaterial. And therein lies the danger of a single
story.
Even
with a customary law marriage, the plaintiff could still approach the
court for a decree of divorce and sharing of matrimonial assets.
He
sought to minimise the plaintiff's role in looking after not only
her own children but even those from the second 'marriage' and
those born out of wedlock. He claimed that the major looking after of
the house and running of the household was done and continues to be
done by maids whom he pays. He even claimed that his two other
children who stay with the plaintiff are looked after “by a maid”
in his absence.
The
defendant produced a bundle of receipts showing purchases of various
items but he never led evidence in relation to the use of the
materials in respect of the immovable property and from an
evidentiary perspective they remain just that – a bunch of receipts
with no link to the alleged maintenance of the property.
The
state of his mind and his insistence that the plaintiff should get
nothing is reflected on the endorsement that he made on the bunch of
receipts exhibit number 8 – 114
House, Improvements singularly achieved by G Mhora.
On
the other hand, the plaintiff did not seek to exaggerate her
contribution as she was very forthright in stating that she never
contributed financially to the acquisition of any immovable property.
The
defendant even went to the extent of misleading the plaintiff that
the house in Marondera was a rented one and yet it was actually his
property. He withheld information about the Highfield house.
The
issue of sharing of property thus became a gendered issue as the
perception of the defendant was all about dollars and cents and the
need to do ' as he pleased' during the subsistence of the
marriage with 'his money'. The defendant epitomises wide-held
beliefs that women marry for property and that wives should not be
involved in issues of immovable property.
This
can be traced to the colonial era where women could only own mavoko
property
and despite strides made in gender equality, such beliefs are still
prevalent.
It
thus becomes critical to note that the 2013 Constitution is
unequivocal in advancing gender equality and this is not about taking
away what men have but ensuring a level playing field. The
defendants' assertions totally ignore the factors set out in
section 7(4) of the Matrimonial Causes Act which have been repeated
over and over but still remain relevant that:-
“In
making an order in terms of subsection (1) an appropriate court shall
have regard to all the circumstances of the case including the
following:-
(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 in which any child
was being educated or trained or is expected to be educated or
trained;
(d)
The age and physical and mental condition of each spouse or child;
(e)
The direct or indirect contribution by each spouse to the family,
including contributions made by looking after the house 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
the children in the position they would have been in had a normal
marriage relationship continued between the spouses. (The statutory
target) (My emphasis).”
The
plaintiff unlike the defendant is not receiving any income. At the
age of 65 she has passed the prime of her age. Although the defendant
is aged 73, he is at least receiving a pension. The evidence by the
plaintiff that she suffers from various ailments was not challenged.
Her evidence on indirect contributions was corroborated by the
defendant's former 'spouse' and was unchallenged in many
material respects.
Instead
the suggestion put to her was that she equated a marriage with a
house.
The
plaintiff will lose out on the defendant's pension once a decree of
divorce is granted since she will no longer be a spouse.
The
observations in the Shenje
decision
(supra) become relevant that the first four considerations are based
on needs of the parties.
The
plaintiff stated that she never envisaged that she would divorce and
thus became committed to the marriage.
The
defendant was not forthcoming on the status of the place that he is
staying in. On one hand he claims to be a pensioner and on the other
he claims that this house belongs to ZMDC who were once his
employers. He did not explain how a pensioner can be allowed to
occupy immovable property. Given his admission that he misled the
plaintiff on two occasions about immovable properties, an inference
can be drawn that he actually has a place to stay.
Even
before the 2013 Constitution was in place, the courts have recognised
also that it is not possible to put a value on the indirect
contributions of a woman who has been in a marriage for a long time.
In
Usayi
v
Usayi SC11-03,
ZIYAMBI JA (as she then was) made a critical observation as follows:-
“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 and
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'.”
The
plaintiff has been married to the defendant for forty-seven years.
She performed what she perceived as her wifely duties to the best of
her ability. Her evidence that she stood by the defendant even when
the chips were down when he was arrested went unchallenged. She
looked after nine children including five who were not her own. Even
at the time of the trial, she was still living with some of the
defendant's children by other women. She had to endure the
humiliation of having another 'wife' brought into the marriage
and 'forced' to accept it. She did not leave the defendant.
Perhaps
this is a classic case of the Stockholm syndrome when one gets
attached to an abuser. The defendant's argument that she never
worked in her life and thus should walk away empty handed in respect
of the matrimonial home becomes fallacious. Plaintiff's claim to a
50% share of the net proceeds of the immovable property cannot be
faulted. She did not seek to punish the defendant but to ask for a
50% share whilst on the other hand the defendant offered nothing. The
50% share is in keeping with the tenets of the Constitution as well
as international law and is based squarely on the discretion in
section 7(4) of the Matrimonial Causes Act.
Accordingly,
it is ordered as follows:
1.
The plaintiff be and is hereby awarded a 50 percent share of the
immovable property namely 114 Lomagundi Road, Harare held under Deed
of Transfer 5772/83 in the name Govati Mhora.
2.
The defendant is awarded 50 percent share in the said immovable
property.
3.
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.
4.
The parties' shall meet the costs of valuation in equal
proportions.
5.
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.
6.
In the event that 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 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.
7.
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.
8.
The movable property is awarded as per the joint pre-trial conference
minute date stamped the 13th
of October 2017.
9.
Each party shall bear their own costs.
Zimbabwe
Women Lawyers Association, plaintiff's
legal practitioners
Jessie
Majome and Company, defendant's
legal practitioners
