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 perpetual 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 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 authorized to sign all such documents.
11. The plaintiff's claim for cash, in the sum of US$100,000, 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;
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 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.
Counsel for the appellant 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.
Counsel for the appellant 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 in spite 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, counsel for the appellant 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
Counsel 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, counsel for the first respondent 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, counsel for the first respondent 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 dis-entitles 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 Assurance (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, counsel 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 Assurance (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 was correctly dismissed....,.
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) of the Constitution 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…, 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 SM on Principles of Family Law, (Third Edition, Sweet & Maxwell, London, 1979) cited with approval in Mackintosh (Nee Parkinson) v Mackintosh SC37-18 …, states…, 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)…, 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 perpetual minor.
There is therefore no compatibility between the appellant and the perpetual 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 perpetual 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 perpetual 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 perpetual 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 suppressed 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 the 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.
