UCHENA
JA: This
is an appeal and cross-appeal against parts of the judgment of the
High Court dated 4 September 2014 granting a decree of divorce and
ancillary relief for and against the appellant (the plaintiff in the
court a
quo
and
the appellant in this appeal)
and the cross-appellant (the defendant in the court a
quo
and
first
respondent in this appeal).
FACTUAL
BACKGROUND
The
facts of the case can be summarised as follows:
On
1 September 1990 the appellant and the first
respondent
were married in terms of the then Marriages Act [Chapter
37].
During
the subsistence of the marriage, the parties were blessed with three
children namely Murray John Coumbis, who was already an adult at the
commencement of divorce proceedings, and the twins Julian Ronald
Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when
divorce proceedings were instituted.
They
are now adults but Julian remains a perpertual minor on account of
his mental incapacity.
On
5 August 2010, the appellant instituted divorce proceedings against
the first respondent. As Julian and Anton were minors the appellant
claimed their custody and maintenance. She also claimed personal
maintenance and a share of the assets of the parties. The appellant
also claimed €10,400 from the respondent which she had advanced as
a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that
the money was part of her inheritance. She claimed to have loaned it
to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the
money from him alleging that the aforementioned company was an alter
ego
of
the first respondent.
The
first respondent opposed the appellant's claims and made a claim in
reconvention wherein he claimed the custody of the minor children and
their maintenance. He contested the appellant's claim for personal
maintenance and matrimonial property. He alleged that some of the
properties claimed by the appellant did not form part of their
matrimonial estate.
The
matter proceeded to a joint pre-trial conference where the following
issues were identified and referred to trial:
“(a)
The custody of Julian and Anton;
(b)
What amount of maintenance was to be paid to the plaintiff if custody
is awarded to her;
(c)
Whether the plaintiff could be awarded the right to reside in the
matrimonial home until both children became self-supporting;
(d)
Whether the defendant was obliged to pay personal maintenance to the
plaintiff;
(e)
Which properties constituted the matrimonial estate;
(f)
What appropriate order the High Court was supposed to make for the
sharing of property.”
PROCEEDINGS
IN THE HIGH COURT
When
the trial commenced, Julian and Anton were no longer minors. However,
the parties agreed that Julian was to be treated as a perpetual minor
due to his mental incapacity. The parties' claim for custody and
maintenance, therefore, only related to Julian. The parties adduced a
lot of documentary evidence to support their respective claims.
During
examination-in-chief, the appellant admitted that she had a broken
relationship with Julian. She admitted that she had exchanged nasty
emails with him. The appellant also admitted to smoking marijuana.
The fact that she smokes marijuana was confirmed by Dr Chibanda who
pointed out its adverse effect on her health and especially on her
recovery from temporal lobe epilepsy.
After
hearing the evidence, the judge a
quo
interviewed
Julian in his chambers.
The
court a
quo
found that Julian was closer to the first respondent and took into
consideration the fact that the two had been staying together after
the parties separation.
It
also found that the appellant needed to start a new life independent
from the first respondent but still needed financial assistance to
cushion her from the effects of the divorce.
The
court a
quo
found
that the first respondent was dishonest and not credible in respect
of evidence relating to the matrimonial estate.
The
order granted by the court a
quo,
quoted
verbatim,
reads as follows:
“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$2,000-00 per month as per the order granted by the
Magistrate's 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 the TV set, dinning suite and
lounge suite 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 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 encumberances,
mortgages or other obligations duly existing or registered by law
over the said property.
9.
The defendant shall transfer all shares of OPIUM INVESTMENTS (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 responsible for any encumberancies 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 to
sign all relevant documents to effect such transfer, failure of which
the Sheriff is authorised to sign all such documents.
11.
The plaintiff's claim for cash in the sum of US$100,000-00 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.
(f)
Theright Investments (Pvt) Ltd.
(g)
Stir Crazy (Pvt) Ltd.
(h)
Incavat Enterprises (Pvt) Ltd.
(i)
Telehic Investments (Pvt) Ltd.
(j)
Natsbury Trading (Pvt) Ltd.
(k)
Plaintiff's claim of £10,400.
13.
The defendant shall bear the costs of suit.”
Aggrieved
by parts of the court a
quo's
decision, the appellant and the first respondent noted the present
appeal and cross-appeal respectively.
GROUNDS
OF APPEAL
The
appeal involved an appeal and a cross-appeal, but the cross-appeal
was withdrawn during the hearing of the appeal.
The
appellant's grounds of appeal attack the court a
quo's
decision on the following issues:
1.
custody and maintenance of Julian the perpetual minor;
2.
her claim for inheritance money loaned to a company from the
respondent;
3.
the propriety or otherwise of the decision handed down by the court a
quo
concerning
the distribution of the assets of the parties;
4.
her claim for a lump sum maintenance payment in the sum of
US$100,000-00;
5.
the granting of absolution from the instance mero
motu
by
the court a
quo
at
the end of the defence case; and
6.
whether or not the respondent should be heard in view of his
contemptuous conduct against proceedings in this Court, the court a
quo
and its orders.
APPLICATION
BY THE APPELLANT
In
September 2018, the appellant made an application to adduce further
evidence to prove that the respondent had, pending the determination
of the appeal, interfered with and defied the High Court's orders.
We,
in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act
[Chapter
7:13],
ordered that the matter be remitted to MAWADZE J (the trial judge),
for him to conduct an enquiry into the appellant's allegations and
submit a report to us.
On
3 April 2019, after holding an enquiry in compliance with our order,
MAWADZE J submitted to us his report in which he made the following
factual findings:
FINDINGS
OF FACT MADE BY MAWADZE J
“1(a)
The perpetual minor Julian Ronald Coumbis (born on 3 July 1994) was
removed from Zimbabwe by the respondent and taken to South Africa in
2013 well before the judgment of the court on 4 September 2014.
(b)
The respondent has not placed any credible evidence before this Court
for such conduct.
(c)
Julian remains in South Africa to date.
(d)
The appellant Philippa has not been able to exercise any access
rights in respect of Julian (the perpetual minor) as awarded to her
in terms of para 3 of this Court's order.
2(a)
The respondent sold two immovable properties in South Africa being
No.94 Matumi Sands and No.112 Matumi Sands and transferred them to
third parties.
(b)
The only available immovable property in South Africa is No.182
Shingara against which the appellant successfully placed a caveat.
3.
The respondent removed all movable household goods which had been
awarded to the appellant Philippa in terms of para 6 of this Court's
order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to
South Africa without the appellant's knowledge or consent.
The
respondent has not explained his conduct.
4.
The motor vehicle, a Nissan Navara Registration Number ABD 6847
awarded to the appellant Philippa in terms of para 7 of this Court's
order was taken by the Vehicle Theft Squad as it was deemed to be
subject to criminal investigations for which the respondent is
allegedly accountable.
5.
The respondent has not done anything to remove the encumbrances on
immovable properties either awarded to him or the appellant as per
this Court's order.
6.
After the order of this Court the respondent transferred about
USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises
(Pvt) Ltd.
7.
The respondent has not complied with the maintenance order granted in
favour of the appellant Phillipa in terms of para 5 of this Court's
order and has not paid a single cent.
8.
Lastly, the following assets are still available;
(a)
No.6 Northwood Rise Mt Pleasant, Harare Zimbabwe but is still
encumbered.
(b)
Belgravia House, Harare but is still encumbered.
(c)
No.6 Rosefrias, Avondale, Harare Zimbabwe.
(d)
No.13 Bates Street, Milton Park, Harare but is still encumbered.
(e)
No.182 Shingara in South Africa.”
APPELLANT'S
SUBMISSIONS ON APPEAL
In
submissions before this Court, counsel for the appellant, Mr Mpofu,
argued that the report to the Supreme Court following due inquiry by
Mawadze
J dated 3 April 2019 confirmed that the first respondent was in
contempt of the court a quo's order. He further submitted that such
disobedience went to the root of the matter.
Mr
Mpofu
further
submitted
that the court a
quo's
decision on custody was influenced by the first respondent's
alienation of Julian against the appellant and that the decision does
not promote a bond between the appellant and the perpetual minor.
Counsel
for the appellant submitted that from 4 September 2014 to the last
date of the hearing, the appellant had not enjoyed access to the
perpetual minor because he had been removed from the jurisdiction of
this court. He submitted that it was in the best interests of the
perpetual minor that he be in the custody of the appellant.
In
respect of the court a
quo
granting
the first respondent absolution from the instance mero
motu,
counsel for the appellant submitted that the court a
quo
erred in view of the fact that the first respondent had made offers
which were equivalent to an admission. He also submitted that the
first respondent had given evidence of his shareholding in some
of the companies which could have enabled the court a
quo
to distribute those shares between the parties.
Mr
Mpofu
submitted that the distribution of the matrimonial assets was limited
to three properties. He contended that evidence led before the court
a
quo
on these assets established that the assets belonged to companies
owned by the parties. He further submitted that the properties had
been encumbered by the first respondent and consequently the
appellant was disabled from acquiring any title in them inspite of
their having been awarded to her by the court a
quo.
In
relation to the appellant's inheritance funds loaned to Stir Crazy
(Pvt) Ltd, Mr Mpofu
argued that the latter, being the respondent's alter
ego,
they had to be returned to the appellant by the first respondent. He
prayed that the appeal succeeds with costs.
THE
FIRST RESPONDENT'S SUBMISSIONS ON APPEAL
Mr.
Tivadar,
for the first respondent, submitted that even though the first
respondent had breached the order of the court a
quo,
he had a right to be heard in terms of section 69 of the Constitution
of Zimbabwe 2013 (the Constitution). Counsel for the first respondent
argued that it was in the best interest of the perpetual minor that
the first respondent be heard.
He
contended that, even if it was found that the first respondent had no
right of audience before this court, there were no documents relating
to the companies proving that the court a
quo
was handicapped in making its determination.
Regarding
the issue of the court a
quo
granting absolution from the instance mero
motu,
Mr Tivadar
argued
that the court a
quo
came
to that conclusion because there was no evidence on the ownership of
the companies as the appellant failed to present it to the court a
quo.
In
concluding his submissions, Mr Tivadar submitted that the first
respondent was withdrawing his cross-appeal.
APPELLANT'S
RESPONSE
In
response, counsel for the appellant contended that the enjoyment of
the constitutional right to be heard comes with an obligation to obey
court orders. He argued that the first respondent is in court to
protect something yet he disobeys court orders. Counsel further
argued that the court has inherent jurisdiction in terms of section
176 of the Constitution to determine who can or cannot be heard.
He
submitted that the perpetual minor's best interests remained with
the court as the first respondent's contempt disentitles him from
saying anything that benefits him. Counsel for the appellant
submitted that an appellate court does not only deal with the direct
dictates of the judgment but also deals with its effects.
FURTHER
SUBMISSIONS
By
letter dated 31 January 2020, Musekiwa and Associates Legal
Practitioners for Doves Funeral Assuarance (Pvt) Ltd, informed the
Registrar of this Court that its client had bought a half share of
No.6 Northwood
Rise, Mt Pleasant, Harare (the
matrimonial home) from a sale in execution conducted by the Sheriff
and that that half share of the property had been transferred to
their client on 20 February 2019.
As
a result of this information, which had not been placed before us
when we heard the appeal on 23 January 2020, parties were invited to
appear before us on 24 June 2020 to give them an opportunity to
address us on this issue. At that hearing we granted the following
order:
“IT
IS ORDERED BY CONSENT THAT:
1.
Doves Funeral Assurance be and is hereby joined as a party to these
proceedings as 2nd
Respondent with Ronald John Coumbis becoming the 1st
Respondent.
2.
Mr Musekiwa for Doves Funeral Assurance is to avail documentation
confirming the transfer of the half share in the property to itself
and file heads of argument in connection therewith by the 30th
June 2020 and serve the same immediately on the appellant and first
respondent's legal practitioners.
3.
Advocate Mpofu is to file additional heads of argument in response to
the heads of argument filed by Doves Funeral Assurance by Friday 3rd
July 2020.
4.
Mr Ndlovu, for the 1st
Respondent Ronald John Coumbis is to file his additional heads of
argument if any, by Wednesday 8 July 2020.”
In
his additional heads of argument Mr Mpofu,
for the appellant, submitted that the matrimonial home which was
jointly owned by the appellant and the first respondent be awarded to
the appellant who will thereafter institute proceedings in the High
Court to claim back the half share sold to Doves Funeral Assurance
(Pvt) Ltd. He submitted that Doves Funeral Assurance (Pvt) Ltd took a
risk when it bought the half share without the consent of the
appellant.
The
first respondent, whose conduct caused the sale of his half share to
Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.
In
their heads Musekiwa & Associates, for Doves Funeral Assuarance
(Pvt) Ltd, submitted that it bought the respondent's half share
through the Sheriff's sale in execution after due notice had been
given to the appellant. They submitted that the half share is no
longer part of the appellant and first respondent's matrimonial
assets and is no longer available for distribution to either of them.
ISSUES
FOR DETERMINATION BY THIS COURT
The
appellant raised several grounds of appeal but the material issues
for determination are as follows:
1.
Whether or not the first respondent should be heard in view of his
contempt of proceedings of the court
a
quo
and
its orders and proceedings before this Court.
2.
Whether or not the court a
quo
erred in awarding custody of Julian to the first respondent.
3.
Whether or not the court a
quo
erred in granting absolution from the instance against part of the
appellant's claims.
4.
Whether or not the appellant is entitled to claim her monetary
inheritance from the first respondent.
5.
Whether or not the court a
quo
erred
in distributing the immovable property without taking into account
the value of the properties.
6.
Whether or not the distribution of the immovable property was fair.
7.
Whether or not the appellant's claim for a lump sum maintenance
payment in the sum of US$100,000-00 was correctly dismissed.
APPLICATION
OF THE LAW TO THE FACTS
Whether
or not the first respondent should be heard in view of his contempt
of this Court and court a
quo's
proceedings
and the orders of the court a
quo
MAWADZE
J, in his report subsequent to the remittal of the matter for him to
inquire into the first respondent's alleged contempt against its
orders, found that the perpetual minor who the appellant was granted
access to, had been removed from Zimbabwe and taken to South Africa
without the appellant's knowledge or consent resulting in the
appellant not being able to exercise her rights of access.
He
also found that all movable household goods at No.6 Northwood Rise,
Mt Pleasant, Harare awarded to the appellant in terms of para 6 of
the court a
quo's
order had been removed from the house by the first respondent and
taken to South Africa without the appellant's knowledge or consent.
The
first respondent did not explain his conduct.
It
has also been established that a half share of No.6 Northwood Rise,
Mount Pleasant the whole of which had been awarded to the first
respondent but was one of the issues raised in this appeal, had been
sold and transferred to Doves Funeral Assuarance (Pvt) Ltd because of
the first respondent's indebtedness which led to his half share
being sold in execution.
MAWADZE
J also found that the first respondent had sold two immovable
properties in South Africa being No.94 Matumi Sands Lonehill (Pty)
Ltd and No.112 Matumi Sands Lonehil (Pty) Ltd in which he had fifty
percent shareholdings in both and that he had thereafter transferred
them to third parties without the appellant's knowledge or consent,
at a time when their distribution was pending before the court a
quo.
The
motor vehicle, a Nissan Navara, Registration Number ABD 6847 awarded
to the appellant in terms of para 7 of the court a
quo's
order had been taken by the Vehicle Theft Squad as it was deemed to
be subject to criminal investigations for which the first respondent
was allegedly accountable.
The
judge also found that the first respondent had not done anything to
remove encumbrances from immovable properties awarded to the
appellant in terms of the court a
quo's
order.
He
further found that the first respondent caused the transfer of
USD$2.8 million from Stir Crazy (Pvt) Ltd, a company jointly owned by
the parties, to Incavat (Pvt) Ltd, a company incorporated after the
separation of the parties in spite of the pending appeal.
Further
the first respondent had not complied with the maintenance order
granted in favour of the appellant in terms of para 5 of the court a
quo's
order.
In
light of the first respondent's contemptuous conduct, conceded by
his legal practitioner, my considered view is that he has no right to
be heard by this Court.
It
is settled law that a litigant with dirty hands cannot be entertained
by the courts. Contempt of court is seriously viewed by the courts
and disentitles a party from being afforded a hearing by the courts
until he or she has purged the contempt.
The
first respondent cannot violate a court order on one hand and seek
relief from the same court on the other. One cannot be allowed to do
so with impunity.
It
is important to acknowledge the well-known canon that the
Constitution is the supreme law and that the rule of law is a
founding principle of our nation. The quintessence of the rule of law
is this, and simply this, that where there is a law it must be
complied with and when courts grant orders they must be obeyed.
The
Constitution under section 164(3) provides as follows:
“An
order or decision of a court binds
the State and all
persons
and government institutions and agencies to which
it applies, and must be obeyed by them”
(emphasis added)
In
In
Re: Prosecutor-General of Zimbabwe
on
his constitutional independence and protection from direction and
control CCZ13/17 at p 13, the court made the following pertinent
remarks:
“The
simple fact of the matter is that the applicant has not complied with
the orders in question and has proffered no explanation whatsoever
for such non-compliance. He has for some reason seen it fit to
disregard court orders; and yet he expects this Court to overlook his
wanton and cavalier nonchalance. For the applicant to refuse to obey
court orders, and then to avoid answering the critical question as to
why he has not, is tantamount to exhibiting flagrant contempt for
this Court. This type of contempt in
facie curiae
cannot be countenanced by the Court. We have a duty to protect our
processes from abuse and scandalous impunity.”
The
gravity and consequences of such contempt were articulately spelt out
in Associated
Newspapers of Zimbabwe (Private) Limited v The Minister of State for
Information and Publicity in the President's Office & Others
SC20/03
at p11,
where
the court held that:
“The
Court will not grant relief to a litigant with dirty hands in the
absence of good cause being shown or until such defiance or contempt
has been purged… This Court is a court of law, and as such, cannot
connive at or condone the applicant's open defiance of the law.
Citizens are obliged to obey the law of the land and argue
afterwards… In the absence of an explanation as to why this course
was not followed, the inference of a disdain for the law becomes
inescapable.”
In
casu,
the first respondent has shown a flagrant disregard of court
proceedings of the court a
quo
and this Court.
He has not purged his contempt nor explained his conduct.
In
respect of some of the terms of the court a
quo's
orders, he remains in continuous contempt. Such conduct cannot be
countenanced by this Court.
It
is my considered view that he has no right to be heard. Consequently
the submissions made on his behalf by Mr Tivadar
will
be ignored and not be taken into account in determining this appeal.
Whether
or not the court a
quo
erred in awarding custody of Julian to the first respondent
The
court a
quo
granted custody of the perpetual minor to the first respondent. The
appellant's complaint on appeal was that custody ought to have been
awarded to her.
It
is trite that the awarding of custody of a minor to either of the
parents by a court is governed by the best interests of the minor.
Therefore
the parent who will be granted custody must satisfy the requirements
of the best interests of the child. Section
81(2) of the Constitution has codified this position and provides
that, in every matter concerning a child, it is the child's best
interests that are paramount and that minor children are entitled to
protection of the courts, particularly by the High Court as the upper
guardian of the rights of children. Section 81(2) and (3) reads:
“(2)
A child's best interests are paramount in every matter concerning
the child.
(3)
Children are entitled to adequate protection by the courts, in
particular by the High Court as their upper guardian.”
This
position was aptly illustrated in Mackintosh
(Nee Parkinson) v Mackintosh
SC37/18 at p15 para 33, where this court held that:
“A
court, such as the court a
quo,
must always keep in mind that the interests of the minor children are
always paramount. In considering those interests, the court should
not allow itself to be misled by the appearances that the parties
give. It must, in addition to any evidence given, be guided by its
own experiences and sense of what is fair…”
Cretney
S M on Principles of Family Law,
(Third Edition, Sweet & Maxwell, London, 1979) cited with
approval in the Mackintosh
case, supra,
states at p493 that:
“It
has traditionally been stressed that the law is not that the welfare
of the child is the sole consideration. There may, for instance, be
cases where the public interest overrides the welfare of a particular
child. But the requirement to treat the child's welfare as the
'first and paramount' consideration means 'more than that [it]
is to be treated as the top item in a list of items relevant to the
matter in question. [The words] connote a process whereby, when all
the relevant facts, relationships, claims and wishes of parents,
risks, choices and other circumstances are taken into account and
weighed, the course to be followed will be that which is most in the
interests of the child's welfare as that term has now to be
understood. That is the first consideration because it is of first
importance and the paramount consideration because it rules upon or
determines the course to be followed.”
In
McCall
v McCall
1994 (3) SA 201 (C) at 204-205, the court provided a guideline which
can be used in determining the best interests of the child. It is not
exhaustive but covers many factors which have been considered in many
jurisdictions. It remarked thus:
“In
determining what is in the best interests of the child, the Court
must decide which of the parents is better able to promote and ensure
his physical, moral, emotional and spiritual welfare. This can be
assessed by reference to certain factors or criteria which are set
out hereunder, not in order of importance, and also bearing in mind
that there is a measure of unavoidable overlapping and that some of
the listed criteria may differ only as to nuance. The criteria are
the following:
(a)
the love, affection and other emotional ties which exist between
parent and child and the parent's compatibility with the child;
(b)
the capabilities, character and temperament of the parent and the
impact thereof on the child's needs and desires;
(c)
the ability of the parent to communicate with the child and the
parent's insight into, understanding of and sensitivity to the
child's feelings;
(d)
The capacity and disposition of the parent to give the child the
guidance which he requires;
(e)
the ability of the parent to provide for the basic physical needs of
the child, the so-called 'creature comforts' such as food, clothing,
housing and the other material needs - generally speaking, the
provision of economic security;
(f)
the ability of the parent to provide for the educational well-being
and security of the child, both religious and secular;
(g)
the ability of the parent to provide for the child's emotional,
psychological, cultural and environmental development;
(h)
the mental and physical health and moral fitness of the parent;
(i)
the stability or otherwise of the child's existing environment,
having regard to the desirability of maintaining the status
quo;
(j)
the desirability or otherwise of keeping siblings together;
(k)
the child's preference, if the Court is satisfied that in the
particular circumstances the child's preference should be taken into
consideration;
(l)
the desirability or otherwise of applying the doctrine of same-sex
matching; and
(m)
any other factor which is relevant to the particular case with which
the Court is concerned.”
The
court a
quo
took into account the strained relationship between the appellant and
the perpetual minor, evident from emails exchanged between them. On
the same note, the appellant also confessed that there was friction
between her and the perpertual minor. There is therefore no
compatibility between the appellant and the perpertual minor. It
would therefore be against the best interests of the perpertual minor
to place him in the custody of a parent with whom he has a hostile
relationship.
The
court a
quo
considered
that the perpertual minor is male and the appellant female.
Although
this should not ordinarily matter, evidence led established that the
perpetual minor needs assistance in dressing himself starting from
the first garment he has to wear. The inevitable question arising
from this is whether the appellant can give him that assistance in
view of the age of the perpertual minor and his sex.
It
is my considered view that the doctrine of same-sex matching is
applicable in these circumstances.
According
to the best interests of the perpetual minor, it is important that he
be given this essential assistance by a male he is close to. It
would, in my view, be inappropriate to award the appellant custody of
the perpetual minor in these circumstances.
The
record of proceedings establishes that Anton, the perpetual minor's
twin brother who stays with the first respondent, assists Julian to
dress up.
Awarding
custody to the appellant would result in separating the perpetual
minor from his twin brother and would entail the appellant taking
over Anton's role in the life of the perpertual minor.
Separating
minors from siblings is undesirable though it can be done under
exceptional circumstances.
The
record establishes that Anton's relationship with the appellant is
more strained compared to that of the appellant and the perpetual
minor. He is unlikely to agree to go and stay with the appellant. He,
being an adult, cannot be forced to live with the appellant if she is
awarded custody of Julian.
In
casu,
taking into cognisance the pivotal role Anton plays in the perpetual
minor's life it is, in my view, in the best interest of the
perpetual minor that he is not separated from his twin brother.
Evidence
on record establishes that the first respondent is a better custodian
parent than the appellant.
The
appellant herself commented on his ability to switch from business to
family affairs.
The
record shows that the first respondent has a good relationship with
the perpetual minor as compared to the appellant. As already said
there is no compatibility between the appellant and the perpetual
minor.
The
court a
quo
interviewed the perpetual minor after which it granted custody to the
first respondent. This indicates the minor's preference as a
consideration to his best interests.
The
record establishes that the appellant suffers from temporal lobe
epilepsy which she and her doctor said triggers her outbursts of
anger which affects her relationship with members of her family.
Dr
Chibanda, testifying for the appellant, told the court a
quo
that the condition can be supressed by taking medication.
However,
the appellant has been under treatment for some time but there is no
evidence that she has overcome the ailment.
The
appellant admitted to smoking marijuana which the doctor said
complicates her condition. According to the appellant and the doctor,
it is that ailment that caused her outbursts and strained
relationships with the children and others. The doctor testified that
the appellant might have to take medication for life.
These
circumstances do not make her a suitable custodian of the perpetual
minor.
In
light of the foregoing, it is my view that custody should remain with
the first respondent taking into account the best interests of the
perpetual minor. In the event of there being changes in appellant's
circumstances, she can apply for variation of the custody order as
the court a
quo's
decision is based on the current circumstances.
In
light of the above, it is my view that the court a
quo
took into consideration the best interests of the perpetual minor in
awarding custody to the first respondent. The court a
quo's
decision in that regard is unassailable and I respectfully associate
myself with it.
Whether
or not the court a
quo
erred in granting absolution from the instance against part of the
appellant's claims
The
court a
quo
granted
the first respondent absolution from the instance in respect of the
appellant's claims, to a share in the South African properties
namely 94
Matumi Sands, Lonehill (Pty) Ltd, 112 Matumi Sands, Lonehill (Pty)
Ltd and 182 Shingara (Pty) Ltd
as well as a number of Zimbabwean assets.
The
court a
quo
stated:
“…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)
Incavat Enterprises (Pvt) Ltd;
(v)
Stir
Crazy (Pvt) Ltd;
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…
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
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…
Since
evidence had been led in respect of these companies I cannot leave
the matter hanging but to grant absolution from the instance...”
(emphasis added)
The
first respondent made offers to the appellant in respect of some of
the properties included in the order of absolution from the instance
and disclosed his shareholding in some of the companies.
Evidence
on record established that the first respondent offered the appellant
10 percent of the Belgravia House owned by Stir Crazy (Pvt) Ltd; 10
per cent of Theright Investments (Pvt) Ltd; 20 per cent shareholding
in Stir Crazy (Pvt) Ltd.
The
first respondent further confirmed some of these offers during oral
evidence before the court a
quo
where he had the following exchange with the court a
quo:
“Q.
I am not worried about that document you are talking about, I am
worried (sic) the list of all these companies we have dealt with. You
know what proof can be placed at any forum to prove ownership of a
company?
A.
And yet I have offered 40 percent to her my Lord.”
(emphasis
added)
During
the same oral evidence the first respondent conceded that he owns 80
percent shares in Stir Crazy (Pvt) Ltd; 80 percent shares in Opium
Investments (Pvt) Ltd; 80 percent shares in the Theright Investments
(Pvt) Ltd; 50 percent shares in 112 Matumi Sands Lonehill (Pty) Ltd;
and 50 percent shares in 94 Matumi Sands Lonehill (Pty) Ltd.
It
is trite that when insufficient evidence is led when the plaintiff
closes his case, or when there is insufficient evidence at the end of
a full trial the court can grant the defendant absolution from the
instance.
Absolution
from the instance in both these instances simply means the defendant
is freed from being held liable under that litigation but the
plaintiff remains free to pursue his/her suit against the defendant
through another suit on a subsequent occasion.
The
factors to be considered in an application for absolution from the
instance were discussed in the case of Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1 (A) at 5D-E where it was held that:
“At
the close of the case for the plaintiff, therefore, the question
which arises for the consideration of the court is: is there evidence
upon which a reasonable man might find for the plaintiff? The
question therefore is, at the close of the case for the plaintiff,
was
there a prima
facie
case against the defendant…
In other words, was there such evidence before the court upon which a
reasonable man might, not should, give judgment against the
defendant?” (emphasis added)
Further,
in United
Air Charters (Pvt) Ltd v Jarman
1994 (2) ZLR 341 (S) at p343, it was held that:
“The
test in deciding an application for absolution from the instance is
well settled in this jurisdiction. A plaintiff will successfully
withstand such an application if, at the close of his case, there
is evidence upon which a court, directing its mind reasonably to such
evidence, could or might (not should or ought to) find for him.”
(emphasis added)
In
casu,
though absolution was granted by the court a
quo mero motu
after a full trial, the test of whether or not there was evidence to
justify granting it still applies.
Absolution
should not be granted if there is evidence on which the court can
find for the plaintiff. Absolution from the instance can be granted
by a court at the close of the case for the defendant. That this is
the position at law is confirmed by Herbstein
& Van Winsen's, The Civil Practice of The High Courts of South
Africa, Fifth Edition, Vol 1,
at page 924 where they say:
“Although
there is no express provision in Rule 39 for an order of absolution
from the instance at the conclusion of the whole case, the practise
to grant absolution when a plaintiff has not established the facts in
support of his case to the satisfaction of the court, has been
extended to cases in which evidence for the defendant had also been
given.”
In
this case there was an offer upon which a court, exercising its mind
reasonably, could find for the appellant.
The
offers made by the first respondent to the appellant are sufficient
evidence to justify such a finding.
When
these offers were made, it became apparent that what was offered
could be awarded to the appellant. It also became clear that the
appellant had a case against the respondent in respect of the offered
assets and that absolution from the instance could not be granted in
cases where there was evidence of first respondent's ownership of
shares in companies the appellant had made claims against.
While
it is not permissible to claim distribution of assets of companies,
it is permissible to claim shares owned by a spouse in a company.
An
offer is a form of an admission. The thing offered need not be proved
by leading evidence.
In
Mining
Industry Pension Fund v DAB Marketing (Pvt) Ltd
SC25/12 at pages 8-9,it was held that:
“A
formal admission made in pleadings cannot be ignored by the Court
before whom it is made. Unless withdrawn, it prevents the leading of
any further evidence to prove or disprove the admitted facts. It
becomes conclusive of the issue or facts admitted. Thus where
liability in full, as
in
casu,
is admitted, no evidence is permissible to prove or disprove the
defendant's admitted liability.
The
importance of the admission is that it is thus seen as limiting or
curtailing the procedures before the Court in that where it is not
withdrawn, it is binding on the Court and the Court cannot allow any
party to lead or call for evidence to prove the facts that have been
admitted.”
See
also Rance
v Union Mercantile Co Ltd
1922 AD 312; Gordon
v Tarnow
1947 (3) SA 525 (AD);
Van
Deventer v De Villiers
1953 (4) SA 72 (C);
Moresby-White
v Moresby-White
1972
(1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224; DD
Transport (Private) Limited v Abbot
1988 (2) ZLR 98; and Liquidator
of M & C Holdings (Pty) Ltd v Guard Alert (Pty) Ltd
1993 (2) ZLR 299 (HC).”
In
light of the above, I find that the court a
quo
erred in granting absolution from the instance when the respondent
had made offers to settle in respect of some of the companies and
when there was evidence of first respondent's shareholding in some
companies which could be used to distribute those shares between the
parties.
It
was not correct for it to hold that the appellant had failed to prove
her case in properties in respect of which the first respondent had
made offers and there was evidence of the first respondent's
shareholding.
The
court a
quo's
decision on the affected assets should be set aside as it was
premised on a misdirection.
As
there is evidence on record in the form of the first respondent's
offer to the appellant and the first respondent's admitted
ownership of shares in those companies, this Court is able to
distribute the assets of the parties in respect of which offers were
made. This Court can distribute between the parties assets and
shareholdings offered by the first respondent and his admitted
shareholding in the stated companies.
In
respect of Stir Crazy (Pvt) Ltd, the court a
quo
granted absolution because it had, while the trial was in progress,
been placed under provisional liquidation and was subsequently placed
under liquidation.
In
my view the court a
quo
correctly granted absolution from the instance inspite of the first
respondent having led evidence to the effect that he held 80 percent
of that company's shares and had offered to the appellant 10
percent of a property owned by it as well as 20 percent of his
shareholding in it, because liquidation placed it under the control
of a Liquidator who was entitled to make decisions in respect of that
company.
Distributing
assets of a company in liquidation would be contrary to the
provisions of the then section 213 of the Companies Act [Chapter
24:03]
which provided as follows:
“213
Action stayed and avoidance of certain attachments, executions and
dispositions and alteration of status
In
a winding up by the court —
(a)
no action or proceeding shall be proceeded with or commenced against
the company except by leave of the court and subject to such terms as
the court may impose;
(b)
any attachment or execution put in force against the assets of the
company after the commencement of the winding up shall be void;
(c)
every disposition of the property, including rights of action, of the
company and every transfer of shares or alteration in the status of
its members, made after the commencement of the winding up, shall,
unless the court otherwise orders, be void.” (emphasis
added)
The
court a
quo
was therefore correct when it said:
“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
court a
quo
therefore correctly granted absolution from the instance against the
appellant's claim on shares and assets owned by Stir Crazy (Pvt)
Ltd.
It
also correctly ordered absolution from the instance in respect of
properties where no offers had been made and in respect of companies
in which there was no evidence of the parties shareholding.
No.182
Shingara should remain on the list of properties against which
absolution from the instance was granted because it is alleged to
belong to a third party (Murray the parties first child). It can
therefore only be distributed between the parties if it is proved to
be an asset of the parties.
Whether
or not the appellant is entitled to claim her inheritance money from
the first respondent
The
appellant contends that she advanced a loan of €10,400 which was
part of her inheritance to the first respondent through a company
called Stir Crazy (Pvt) Ltd.
She
claimed the money from the first respondent alleging that the
aforementioned company was his alter
ego.
The
first respondent disputed that he borrowed the money in his personal
capacity and argued that the loan was advanced to Stir Crazy (Pvt)
Ltd hence the appellant cannot seek to recover this money pursuant to
section 7(1)(a) of the Matrimonial Causes Act but has to claim it as
a debt owed by Stir Crazy (Pvt) Ltd.
The
appellant did not dispute this clear position of the law.
In
his submissions before us, Mr Mpofu
for the appellant, did not persist with this ground of appeal. He
infact submitted that the value of the claim was not worth pursuing
as it has been affected by this Court's decision in Zambezi
Gas Limited v NR Barber (Pvt) Ltd & Another
SC 3/20.
The
evidence on record does not prove that Stir Crazy (Pvt) Ltd was an
alter
ego
of the first respondent.
In
evidence the appellant claimed that she used to hold 49 percent
shares in that company.
It
is trite that a company duly incorporated is a separate legal entity
endowed with its own legal personality. The acts of a company are
attributable to it, and not to any one else, as a company is a
separate legal persona
with
a separate existence from its shareholders. It can sue or be sued in
its own right. See Salomon
v Salomon & Co Ltd
[1897] AC 22.
While
there are instances in which the court may pierce or lift the
corporate veil as held in Van
Niekerk v Van Niekerk & Ors
1999 (1) ZLR 421 (S) at 427G-H & 428A, I do not believe that a
case has been made for such an approach as the appellant did not give
evidence in that regard. The appellant should claim her money from
Stir Crazy (Pvt) Ltd as it is a distinct and separate legal entity
which can sue and be sued in its own right.
The
court a
quo
therefore
correctly granted absolution from the instance against the
appellant's claim on this issue.
Whether
or not the court a
quo
erred by not awarding the appellant a lump sum maintenance payment in
the sum of US$100, 000 which was not opposed
In
his heads Mr Mpofu,
for the appellant, submitted that the court a
quo
erred when it did not grant the appellant's claim for a lump sum
maintenance payment which had not been opposed by the first
respondent.
He
submitted that because the claim had not been opposed, it is deemed
to have been admitted.
A
reading of the record establishes that the appellant's claim was
opposed by the first respondent.
The
appellant claimed it under paragraph 10.6 as “a cash amount of
US$100,000”. In his plea the first respondent in para 6 said:
“Ad
paragraphs 9-10, Denied. Plaintiff is put to the strict proof of her
claim. Otherwise the Defendant refers to the claim in reconvention”.
In
para 5.2 of his claim in reconvention, the first respondent said:
“Defendant
denies that the plaintiff is entitled to maintenance since she is a
person of means”.
It
is therefore clear that the appellant's claim for a maintence cash
payment of US$100,000-00 was opposed. The court a
quo
did not therefore err when it dismissed that claim. The claim was not
proved by the appellant in her evidence.
Whether
or not the court a
quo
erred
in distributing immovable properties without taking into account
their values
The
appellant contends that the court a
quo
erred in distributing some of the immovable property without taking
into consideration the values testified to by the appellant.
A
perusal of the record establishes that the first respondent was
awarded as his sole and exclusive property, the immovable property
known as No.6 Northwood Rise, Mt Pleasant, Harare. The appellant was
awarded as her sole and exclusive property, the immovable property
known as No.6 Rosefriars, a Flat in Avondale, Harare. She was also
awarded No.13
Bates Street, Milton Park, Harare which is owned by Opium Investments
(Pvt) Ltd in which the respondent admitted that he holds 80 percent
of its shares.
I
am inclined to agree with the appellant that the court a
quo
erred in proceeding to distribute immovable properties without the
benefit of a valuation because one immovable property of high value
can be equal to several immovable properties of lower value.
It
is therefore essential to distribute properties in terms of their
values to achieve an equitable distribution of the assets of the
parties.
In
Gonye
v Gonye
2009
(1) ZLR 232, at 236H-237B, Malaba
JA (as he then was) remarked:
“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”.
It
must however be added that the court's wide discretion can only be
exercised on the basis of the evidence led by the parties.
In
exercising its wide discretion a court must determine the proportions
on which it intends to distribute the assets to the parties. It
should thereafter rely on the values of the assets to ensure that
each party is awarded assets equal to the ratio it will have
allocated to him or her. If, for example, the court allocates each
party a 50 percent share of the value of the assets of the parties,
it will then use the value of the assets to distribute them at the
determined ratio.
It
is settled law that, in matters which involve the exercise of
discretion by a lower court, the appellate court should not be quick
to interfere with such an order. It can only do so in extraordinary
circumstances where there is evidence of gross misdirection,
unreasonableness and illogicality.
The
position was enunciated in the case of Barros
& Anor v Chimphonda
1999
(1) ZLR 58 (S) at 62G-63A,
where
the court stated as follows:
“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;
TjospomieBoedey
(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.”
(emphasis added)
It
is my respectful view that overlooking the values of properties in
the distribution of matrimonial property is an improper exercise of
discretion which warrants interference by this Court. This is because
it goes against the principle of equitable distribution upon divorce
envisaged in the Constitution and the Matrimonial Causes Act.
The
Constitution under section 26(c) and (d) 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.
This
means there must be a fair division and distribution of property
which is just and equitable in the circumstances.
The
division and distribution of assets of the spouses at divorce is
governed by section 7(1)(a) of the Matrimonial Causes Act.
It
is trite that in matters involving the distribution of property, the
court has to exercise its discretion to reach a decision which can be
deemed to be a just and equitable distribution between the parties.
Case
law 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. Equitable distribution does not mean equal division but a
fair division in relation to the circumstances of the case.
The
court may consider such factors as the extent of a party's
contribution to the accumulation of the property, the market and
emotional value of the assets, the duration of the marriage, the
economic consequences of the distribution, the parties needs and any
other factors relevant to an equitable outcome.
Fairness
is the prevailing guideline the court must use.
In
Chombo
v Chombo
SC41/18 at p8, commenting on the role of values of property in the
distribution of matrimonial assets the court held:
“…In
terms of section 7(4)(f), the court is entitled to consider the value
of 'any benefit' a spouse will lose on divorce in distributing
the matrimonial property of the spouses. The
court a
quo failed
to consider and distribute the value of
the benefits which flow from a registered long lease which confers
real rights. It
is the value of those benefits and advantages which are distributable
in terms of section 7(4) of the Matrimonial Causes Act…”(emphasis
added)
In
casu,
it is my respectful view that the court a
quo
erred by improperly exercising its discretion without taking into
consideration the values of the properties it distributed.
It
is important to note that shares of different companies cannot be of
the same value hence the need to value all shares where more than one
company is involved, to enable the court to effect an equitable
distribution of the assets of the parties.
What
is required is a fair distribution of the shares.
This
Court can exercise its own discretion in view of the misdirections of
the court a
quo
as there is evidence it can exercise its discretion on the issues.
According
to the report by MAWADZE J the only properties left are No.6
Northwood Rise Mt Pleasant, Harare Zimbabwe, the Belgravia House,
Harare owned by Stir Crazy (Pvt) Ltd, (which is also still encumbered
and is affected by the liquidation of the company), No.6 Rosefrias,
Avondale, Harare, No.13 Bates Street, Milton Park, Harare owned by
Opium Investments (Pvt) Ltd and is still encumbered and No.182
Shingara in South Africa.
According
to evidence on record No.182 Shingara is alleged to be owned by
Murray, the parties first born child.
As
already indicated properties owned by companies in which the spouses
have interests whose shareholding has not been disclosed, cannot be
distributed in terms of section 7(1)(a) of the Matrimonial Causes Act
which authorises the distribution of assets of the parties.
It
is therefore not possible for this Court to distribute the houses
owned by companies in which the parties shareholding is unknown.
In
view of the court a
quo's
distribution of the assets of the parties without taking into
consideration their values, the affected orders must be set aside and
substituted with orders distributing their shares in companies where
the parties shareholding in the companies is on record.
This
will however not affect No. 6 Northwood Rise Mt Pleasant in which it
has become clear that the parties had a half share each.
It
will also not affect the order of the Court a
quo
that the respondent transfer all his shares in Opium Investments
(Pvt) Ltd which owns No.13 Bates Street Milton Park as the
distribution of shares owned by one of the parties is legally
competent.
It
is also lawful to order the transfer of a spouse's propety to the
other spouse.
The
award of No.6 Rosefriers which is an asset of the parties not owned
by any of their companies will also not be affected.
No.6
Northwood Rise Mount Pleasant, Harare, is no longer fully available
because the first respondent caused the sale of his half share in it.
A half share of this property now belongs to Doves Funeral Assurance
(Pvt) Ltd the second respondent under Deed No. 909/2019.
Mr
Mpofu,
for the appellant, in his additional heads, urged this Court to award
the whole property to the appellant who intends to thereafter
litigate over the respondent's sold half share in the High Court.
It
is my view that the issue of the said half share should be left to
the appellant to take whatever action she deems appropriate as this
Court cannot, on appeal, make a decision on an issue the court a
quo
did not consider as it was not raised before it.
The
court a
quo
awarded the matrimonial home to the first respondent because it had
granted him custody of the perpetual minor (Julian). It was therefore
for the convenience of the perpetual minor that the matrimonial home
was awarded to him.
The
circumstances have changed.
The
minor was taken out of the country and no longer needs the use of
that house. The first respondent and the rest of the family also left
the matrimonial home and now live in South Africa.
The
first respondent demonstrated lack of interest in that property
because inspite of his apparent means, he did not save his half share
in it from being sold in execution.
He
sold two South African properties No.94 Matumi Sands Lonehill (Pty)
Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd in each of which he
held 50 percent of the shares, when their distribution was pending
before the court a
quo
as they were part of the appellant's claim.
He,
in defiance of the court a
quo's
order, took the household property which had been awarded to the
appellant to South Africa without her knowledge or consent.
He
clearly demonstrated an intention to frustrate the distribution of
their assets by the courts.
In
view of the circumstances discussed above, the respondent's
unlawful and contemptuous interference with court processes and
orders does not entitle him to retain the appellant's half share in
No.6 Northwood Rise Mt Pleasant.
The
appellant's appeal should succeed in part in respect of the
remaining half share of that property.
The
report by MAWADZE J proves that the first respondent has resorted to
self-help.
He
has made it impossible for the court to effect an equitable
distribution of their property. He sold the two properties in South
Africa. He has not done anything to remove encumbrances on immovable
properties awarded to the appellant. He has stripped assets of Stir
Crazy (Pvt) Ltd by transferring US$2.8 million from it to Incavat
Enterprises (Pvt) Ltd.
It
must be emphasised that, where a spouse acts in contempt of court
orders distributing their assets, hides some of the assets, lies
about his or her ownership of some of the property and deliberately
resorts to self help, the court is entitled to award to the other
spouse the remaining property proved to be assets of the spouses.
It
is my view that the properties in which the first respondent has
disclosed his shareholding should be awarded to the appellant on the
basis of his ownership of those shares.
It
is also important to note that the first respondent's sale and
stripping of assets during the pendency of this appeal in defiance of
the court a
quo's
order entitles the appellant to compensation for the loses she has
suffered as a result of the respondent's conduct.
In
the circumstances of this case, the court must endeavour to do
justice between the parties. The appellant must be awarded what is
left of the properties since most of them have been disposed of by
the respondent. The appellant must be awarded shares of property
holding companies in respect of which the respondent's shareholding
is on record.
Stir
Crazy (Pvt) Ltd which owns the Belgravia house cannot be distributed
on account of it having been liquidated and there is no evidence of
its current status.
The
appellant should be awarded the respondent's 80 percent shares in
Theright Investments (Pvt) Ltd.
The
respondent must remove all encumbrances on the properties awarded to
the appellant.
It
has been established that the respondent held 50 percent shares in
No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands
Lonehill (Pty) Ltd. The court a
quo
could therefore have used that evidence to distribute the shares
between the parties.
The
properties were sold to third parties by the respondent.
The
appellant is entitled to a portion of the proceeds.
The
portion she is entitled to cannot be established without leading
evidence on the purchase price and how it relates to the respondnet's
50 percent shares in each property.
This
Court does not therefore have material to enable it to make an order
substituting the court a
quo's
order of absolution.
It
is, in my view, in the interest of the appellant to uphold the court
a
quo's
order to enable her to, through subsequent litigation, pursue her
interests in these properties.
The
court a
quo's
decision of absolution from the instance in respect of properties on
which there was no evidence should be upheld.
No.94
Matumi Sands Lonehill and No.112 Matumi Sands Lonehill should remain
on the list of properties in respect of which absolution was granted
for the reasons stated above.
The
properties and claims to remain on the list of cases for which
absolution from the instance was granted are as follows:
(a)
No.94 Matumi Sands Lonehill (Pty) Ltd;
(b)
No.112 Matumi Sands Lonehill (Pty) Ltd;
(c)
182 Shingara (Pty) Ltd;
(d)
Stir Crazy (Pvt) Ltd;
(e)
Incavat Enterprises (Pvt) Ltd;
(f)
Telehic Investments (Pvt) Ltd;
(g)
Natsbury Trading (Pvt) Ltd; and
(h)
Plaintiff's claim of £10,400.
DISPOSITION
I
find that the appellant's appeal has merit on the following issues:
(a)
the respondent's lack of the right of audience due to his being in
contempt of court.
(b)
the erroneous granting of absolution from the instance by the court a
quo
in respect of properties in respect of which the first respondent had
made offers and properties on which the first respondent had given
evidence on his shareholding in specified companies.
(c)
the court a
quo's
distribution
of properties without taking into consideration their values and the
parties shareholding in some companies.
The
court a
quo
correctly found that the appellant should claim her inheritance money
from the company she loaned it to.
The
court a
quo
correctly granted custody of the perpetual minor to the first
respondent as this was in the best interests of the perpetual minor.
The
appellant's claim for a once-off payment of maintenance in the sum
of US$100,000-00 was correctly dismissed by the court a
quo.
The
appellant is entitled to an award of costs on the higher scale
against the respondent, who is responsible for the prolonged hearing
of the appeal due to his contempt of court, which resulted in an
enquiry by MAWADZE J being ordered and the re-hearing of the parties
in respect of his having caused the sale of his half share of the
matrimonial home.
It
is accordingly ordered as follows:
1.
The appeal against the court a
quo's
decision
on the perpetual minor's custody, the appellant's claim for
inheritance money she loaned to Stir Crazy (Pvt) Ltd from the first
respondent and her claim for a lump sum maintenance payment of
USD$100,000-00, be and is hereby dismissed.
2.
The appeal against the awarding of the matrimonial home to the
respondent partially succeeds to the following extent:
Paragraph
8 of the court a
quo's
order be and is hereby set aside and is substituted as follows:
“8.
The plaintiff's half share in the matrimonial home No.6
Northwood Rise, Mt Pleasant, Harare
be
and is hereby awarded to the plaintiff”.
3.
The appeal against the court a
quo's
order of absolution from the instance on the distribution of
immovable properties partially succeeds to the following extent:
3.1
Paragraph 12(d) of the court a
quo's
order is amended by the deletion therefrom of the words “Theright
Investments (Pvt) Ltd”.
3.2
“The respondent shall transfer his 80 percent shareholding in the
“Theright Investments (Pvt) Ltd” to the plaintiff and sign all
relevant documents to effect transfer of his shares to the plaintiff
within 30 days of this order failing which the Sheriff be and is
hereby authorised to sign such documents”.
4.
The first respondent shall pay the appellant's costs at the legal
practitioner and client scale.
GARWE
JA: I
agree
GOWORA
JA:
I agree
Atherstone &
Cook, appellant's legal practitioners
Gill,
Godlonton & Gerrans, respondent's legal practitioners
