The order in paragraph 3 directing the appellant to pay the respondent 25% of the value of the Mazda 626 registration No. 843-703 S and 25% of the value of the Domboshava House was appealed against on the ground that the learned Judge misdirected himself in treating these assets as “matrimonial property”.

The contention was that the appellant acquired the motor vehicle and completed the construction of the house long after the parties had separated.

The same argument was advanced in respect of Stand No.12 Lomagundi Road, Mount Pleasant.

It was argued, further, that the immovable property was registered in the name of a third party.

The effect of the contention was that the court, in the exercise of the broad discretion conferred on it under section 7(1) of the Matrimonial Causes Act [Chapter 5:13] should not have granted the respondent the right to a portion of the value of property purchased by the appellant when the parties were on separation.

The Mazda 626 motor vehicle was, indeed, purchased by the appellant and registered in his name in 2003. He completed the construction of the Domboshava House in 2004. The construction commenced when the parties were still living together. The intention had been to use the house as a matrimonial home whenever they visited the communal area.

Stand No.12 Lomagundi Road, Mount Pleasant was purchased in July 2004. He registered the property in the name of his new wife.

It was also common cause at the trial that in 1994 the appellant formed a company called Wonder Valley (Pvt) Ltd (“the company”). The company had four shares of $1= each which the appellant allotted to the respondent, two sons and himself.

The nominal shareholders did not pay for the shares.

The object of the company was to carry on farming business on Wonder Valley Farm (“the farm”). The farm was owned by the appellant, so were all the equipment and implements used at the farm. The appellant took full responsibility of managing the farming business which involved growing cotton and maize. The respondent joined her husband at the farm in March 1987. She, however, did not play an active role in the management of the farming business. She looked after the matrimonial house and the children. She started a poultry project and generated income which she used as she pleased.

The respondent claimed 25% of the value of the Mazda 626 and the immovable properties on the ground that the money used to purchase the assets in question came from the proceeds of the farming operations. The contention was that the money belonged to the company in which she had an interest. She said that the appellant had no other source of income besides the farming business.

The appellant did not deny that the money he used to purchase the assets in question came from the sale of farm produce.

The learned Judge found that the money used by the appellant to purchase the Mazda 626, Stand No.12 Lomagundi Road, Mount Pleasant and for the construction of the Domboshava house belonged to the company. On the basis that the respondent had an interest in the company he held that she was entitled to 25% of the value of each property.

Whilst counsel for the appellant argued that the learned judge misdirected himself in approaching the question of the apportionment of the proceeds used to purchase these assets on the basis that the respondent had a right to claim company property, he nonetheless confessed that he was unable to go so far as to contend that the resultant apportionment was in effect not just and equitable when viewed in a situation where the corporate veil has been lifted.

It is important to note that a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings.

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] provides that the court may make an Order with regard to the division, apportionment or distribution of “the assets of the spouses including an Order that any asset be transferred from one spouse to the other.”

The rights claimed by the spouses under section 7(1) of the Matrimonial Causes Act [Chapter 5:13] are dependent upon the exercise by the court of the broad discretion.

The terms used are the “assets of the spouses” and not “matrimonial property”.

It is important to bear in mind the concept used because the adoption of the concept “matrimonial property” often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are on separation should be excluded from the division, apportionment or distribution exercise. The concept “the assets of the spouses” is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.

To hold, as the court a quo did, that, as a matter of principle, assets acquired by a spouse during the period of separation are to be excluded from the division, apportionment or distribution a court is required to make under section 7(1) of the Matrimonial Causes Act is to introduce an unnecessary fetter to a very broad discretion, on the proper exercise of which the rights of the parties depend.

It must always be borne in mind that section 7(4) of the Matrimonial Causes Act requires the court, in making an order regarding the division, apportionment or distribution of the assets of the spouses, and therefore granting rights to one spouse over the assets of the other, to have regard to all the circumstances of the case.

The object of the exercise must be to place the spouses in the position they would have been in had a normal marriage relationship continued between them.

As was pointed out by LORD DENNING MR in Watchel v Watchel [1973] 3 ALL ER…,:

“In all these cases, it is necessary at the end to view the situation broadly and see if the proposals meet the justice of the case.”

Each case must depend on its own facts.

I accept the contention by counsel for the appellant that having found that the money used to purchase the Mazda 626, Stand No.12 Lomagundi Road, Mount Pleasant and for the construction of the Domboshava house belonged to the company, the learned Judge erred in holding that the respondent was entitled to make a claim to a share of company property.

A company, being a legal persona, owns its own property. Shareholders do not own company property.

Whilst accepting the principle that company property does not belong to the shareholders and that only officials duly authorized by resolutions can claim company property from third parties, counsel for the respondent argued that this was a proper case where the circumstances justified the lifting of the corporate veil in order that justice could be done in the apportionment of the assets in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13].

In other words, the court a quo was faced with the question whether the property rights, a proportion of the value of which was claimed by the respondent, in reality lay with the appellant or the company.

In Shipping Corp of India Ltd v Evdomon Corp & Anor 1994 (1) SA 550 (A)…, quoted with approval by SANDURA JA in Van Niekerk v Van Niekerk & Ors 1999 (1) ZLR 421 (S)…, CORBETT CJ said:

“It seems to me that, generally, it is of cardinal importance to keep distinct the property rights of a company and those of its shareholders, even where the latter is a single entity, and that the only permissible deviation from this rule known to our law, occurs in those (in practice) rare cases where the circumstances justify 'piercing' or 'lifting' the corporate veil…,. I do not find it necessary to consider, or attempt to define, the circumstances under which the court will pierce the corporate veil. Suffice it to say that they would generally have to include an element of fraud or other improper conduct in the establishment or use of the company or the conduct of its affairs.”

In Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 the husband used the company to claim an eviction of his wife from a matrimonial house leased by the company. It was found that the company was a “one man company”. The husband was its sole effective shareholder. The court was prepared to pierce the corporate veil to do justice to the wife.

BEADLE CJ said that the husband owned the company and its mind was his.

The learned CHIEF JUSTICE went on say…, that:

“In the circumstances of this particular case, it seems to me that the appellant company was nothing more than Veldman's alter ego, and that the appellant company possessed no greater rights to eject the respondent than Veldman himself possessed….,. I propose to examine this application on the basis that it was Veldman himself who brought the application because I cannot see, on the facts of this case, how it can be held that the appellant company could have any greater rights than Veldman himself possessed.”

Had the corporate veil not been lifted, Veldman would have succeeded in using the company to avoid the duty he owed to his wife to provide her with suitable alternative accommodation before evicting her from the matrimonial house.

In this case, the respondent did not take any active part in the administration of the affairs of the company. For all practical purposes the company was a “one-man company”. The appellant was the sole active director. He used his own land, implements and labour to generate the income which he used to purchase the properties, the proportion of the values of which the respondent claimed. The three assets which belonged to him constituted the income-producing assets. The share held by the respondent was not an income producing asset.

In other words, there was no share capital invested by the respondent in the company which contributed to the production of the money used to purchase the properties in question.

Stripped of the corporate veil, the proceeds from the farming operations belonged to the appellant. The company was nothing more than the appellant's alter ego. It had no greater right to the money than he possessed.

The question is whether, considering all the circumstances of the case, the apportionment of the values of these assets ordered by the court a quo produced a just and equitable result. In other words, did the apportionment achieve the main purpose of the exercise which is to place the parties in the position they would have been in had a normal marriage relationship continued.

I am proceeding on the basis that the proceeds from the farming operations belonged to the appellant and would have fallen within the category of the “assets of the spouses”.

The Mazda 626 motor vehicle and the Domboshava house belonged to the appellant at the time the court a quo made the Order with regard to the apportionment of their values. The fact that the assets were acquired or created during the period the spouses were on separation does not put them outside the category of the “assets of the spouses”.

Counsel for the appellant properly conceded the fact that when all the circumstances of the case are taken into account the granting to the respondent of the right to 25% of the value of each of these assets was a proper exercise of discretion by the court a quo.

The 25% share in the proceeds from the farming operations which came into the possession of the appellant before he used it to purchase Stand No.12 Lomagundi Road, Mount Pleasant would have been a benefit to which the respondent would have been entitled had a normal marriage relationship between the spouses continued. It is a benefit she lost as a result of the breakdown of the marriage.

Section 7(4)(f) of the Matrimonial Causes Act [Chapter 5:13] enjoins a court to have regard to the value of such a benefit.

To place the spouses in the position they would have been in had a normal marriage relationship continued, it was just and equitable to award the respondent 25% of the value of Stand No.12 Lomagundi Road, Mount Pleasant.

The real rights in the house vested in the new wife.

The respondent did not claim a share in the house. She claimed an amount of money equivalent to 25% of the value of the immovable property. The claim did not affect the interests of the new wife in the property. The value of the property is necessary only for the purpose of fixing the amount of money the appellant would be obliged to pay to the respondent. Since the respondent would have no right to enforce the order by executing against the immovable property owned by the third party, it was inappropriate for the learned Judge to give the appellant the right of option, in paragraph 8, to buy out the respondent in respect of Stand No.12 Lomagundi Road, Mount Pleasant.

The property does not belong to him.

The order in paragraph 8 must be read as excluding any reference to Stand No.12 Lomagundi Road, Mount Pleasant.

It is also necessary to extend the time within which the option to buy out the respondent in respect of the other assets referred to in paragraph 8 of the order may be exercised to 30 July 2009.

The appeal is otherwise dismissed with costs.

The plaintiff and defendant were joined in holy matrimony in terms of the Marriages Act [Chapter 5:11] on 8 January 1988 at Harare. Their marriage subsists.

Their marriage was blessed with two children who are now adults.

During the subsistence of the marriage they acquired both movable and immovable properties.

After many years of marriage, some irreconcilable differences arose which led to the plaintiff filing for divorce and other ancillary relief against the defendant. The plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent, that, there are no prospects of restoration of a normal marriage relationship in that:

(a) The parties do not have any meaningful communication resulting in each party living his/her own life.

(b) The plaintiff has lost love for the defendant.

(c) There is disharmony, distrust, and disrespect between the parties, and, as a result, there is no peace between the parties.

At the time of issuance of the summons, the children were still minors and so the plaintiff had asked to be granted custody of the minor children.

On immovable property, she asked for a 50% share in the matrimonial house; namely, 18 Normanton Close, Marlborough, Harare. She provided what she deemed an equitable distribution of the movable property.

The defendant initially contended, that, the marriage had not irretrievably broken down; he envisaged it could be salvaged.

He also made a counter claim in which he claimed custody of the minor children, and that the immovable property, 18 Normanton Close, be donated to the children of the marriage.

He later amended his claim to include that, in the alternative, he be declared the sole and absolute owner of Number 18 Normanton Close, Marlborough, Harare. This amendment came about because the plaintiff had categorically rejected the suggestion that the property be donated to the children.

At a pre-trial conference held on 13 September 2005, most of the issues were resolved. The major issue referred to trial pertained to the distribution of the immovable property.

On the date of trial, all issues, except on the immovable property, were confirmed as having been settled.

The two children were now adults and so any issue relating to children was no longer sustainable.

The parties had distributed the movable assets in terms of a document they tendered as exhibit 3.

Both had finally accepted that the marriage has irretrievably broken down.

The parties could not settle on the immovable property due to the fact, that, apart from the Marlborough house, the plaintiff had also bought Number 60 Garlands Ride, Mt Pleasant during the subsistence of the marriage.

They could not agree on how to treat that property.

The defendant wanted it to be considered in the division, apportionment, and distribution of the assets of the spouses whilst the plaintiff contended that it should not be considered as it was registered in the name of a company whose shareholding was 100% held by Garlands Trust.

The plaintiff gave evidence after which the defendant gave evidence.

From the evidence adduced, it is common cause that both parties had contributed financially to the purchase of the Marlborough house. That property is registered in their joint names and so joint ownership is not disputed.

It is common cause, that, after living in the Marlborough house for some time the couple moved to Number 60 Garland Ride, Mt Pleasant in 1993 which the plaintiff had bought that same year.

They have since been living in that house serve for a period of two years when they moved back to the Marlborough house.

The Mt Pleasant property was bought by the plaintiff and is registered in the name of a company, Linford Investment (Pvt) Ltd.

It is common cause that the couple lived in that property rent free.

The plaintiff's argument was to the effect, that, as the Mt Pleasant property was registered in the name of a company it should not be considered as matrimonial property. In any case, she is not a shareholder in that company. The entire shareholding is held by a trust - Garlands Trust of which she is one of the three Trustees. She formed that Trust for the benefit of the children, her parents, and her sister.

The plaintiff indicated that she and her daughter, Chiedza, were the directors in Linford Investment (Pvt) Ltd.

The plaintiff confirmed, that, she was the accounting officer of the company and that for all intents and purposes she controls the assets of Linford Investment (Pvt) Ltd. She is the one with the power to make decisions concerning the company. She does the annual returns which are then signed by herself and Chiedza.

It was clear that the plaintiff did not want this property considered in anyway in the distribution of assets of the spouses.

She contended, that, the only immovable property for sharing is the Marlborough house which she insisted must be shared equally.

On his part, the defendant contended, that, the Mt Pleasant house must be considered in the apportionment and distribution of the property. It is a property that was acquired during the subsistence of the marriage and the plaintiff still stands to gain from it by living in it rent-free.

Though registered in the name of a company, it is, for all intents and purposes, the plaintiff's property.

The division of assets, consequent to a divorce, is governed by section 7 of the Matrimonial Causes Act [Chapter 5:13] (herein after referred to as “the Act”).

Section 7(1)(a) of the Matrimonial Causes Act states that:

“Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment, or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

Subsection (4) of section 7 of the Matrimonial Causes Act then enjoins the appropriate court to consider all the circumstances of the case in the exercise of its discretion in this regard by stating that:-

“In making an order in terms of subsection (1), an appropriate court shall have regard to all the circumstances of the case including the following -

(a) The income-earning capacity, assets, and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) The standard of living of the family, including the manner in which any child was being educated or trained or is expected to be educated or trained;

(d) The age and physical and mental condition of each spouse and child;

(e) The direct or indirect contribution by each spouse to the family, including contributions made by looking after the house and caring for the family and any other domestic duties;

(f) The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g) The duration of the marriage;

and, in so doing, the court shall endeavour, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and the children in the position they would have been in had a normal marriage relationship continued between the spouses.”

As aptly noted by MALABA JA in Gonye v Gonye 2009 (1) ZLR 232…,:

“It is important to note, that, a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment, or distribution of the assets of the spouses in divorce proceedings.

Section 7(1) of the Act provides that the court may make an order with regard to the division, apportionment, or distribution of '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 s7(1) of the Act, are dependent upon the exercise by the court of broad discretion…,.

The terms used are the 'assets of the spouses' and not matrimonial property.

It is important to bear in mind the concept used, because the adoption of the concept 'matrimonial property' often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are separated should be excluded from the division, apportionment, or distribution exercise.

The concept 'assets of the spouses' is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regards to the division, apportionment, or distribution of such assets.”

The wide discretion must of course be exercised judicially taking into account the circumstances of each case. The object of the exercise must be to place the spouses in the position they would have been in had a normal marriage relationship continued between them.

In an effort to achieve this object, the court has demanded of spouses to be candid with the court in respect of their assets individually and jointly.

The question, in the instant case, is whether the Mt Pleasant house should be considered in assessing a fair and equitable manner in the division, apportionment, and distribution of assets of the spouses.

The plaintiff says it must not be considered because it is owned by a company. The defendant says it must be considered, as, for all intents and purposes, it is the plaintiff's property, or, at least, it is for her benefit.

It is important to examine the relationship between the plaintiff and the company in question.

In Sibanda & Anor v Sibanda 2005 (1) ZLR 97 (S), when the marriage failed, the wife obtained a decree of nullity. The parties were possessed of nine immovable properties, as well as numerous vehicles. Apart from one property and one car, all the property, movable and immovable, including the matrimonial home, was registered in the name of one or other company or nominee of the appellant. The directors of those companies were the appellant's parents and one of his girlfriends – but, the sole signatory on the various bank accounts was the appellant, who controlled all the companies. The trial judge awarded the wife a house which was registered in the name of one of the companies. That house had been the matrimonial home for ten years before the marriage was annulled. The husband contended, that, as the house was owned by a company wholly owned by the appellant, it did not constitute matrimonial property which fell to be divided in terms of the Matrimonial Causes Act.

The Supreme Court, at p103E-F, whilst acknowledging the fact that a company duly incorporated is indeed a distinct legal entity endowed with its own legal personality went on to state that:

“However, the veil of incorporation may be lifted, where necessary, in order to prove who determines or who is responsible for the activities, decisions, and control of a company.”

Upon finding that the appellant was the one who controlled the company, the court of appeal dismissed the appeal.

In Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H) NDOU J followed the above reasoning and considered property registered in the name of a company in the division, apportionment, and distribution of assets of the spouses.

Equally, in Gonye v Gonye 2009 (1) ZLR 232 …, the Supreme Court held that:

“Where the issue arises of whether the property rights, a proportion of the value of which is claimed by the one of the spouses, in reality lay with the other spouse or a company run by him, it is permissible to 'lift the corporate veil' in order that justice could be done in the apportionment of the assets in terms of s7(1) of the Act. Where the company can be said to be the spouse's alter ego, the company's assets and proceeds can be said to be the spouse's and thus can be subject of an order under s7(1).”

It is apparent that a primary consideration is on the relationship between the person seeking to distance the assets and the company or entity in whose name the property may be registered.

In casu, the plaintiff said that, in about 1993, she bought the house in question by buying shares in the company that previously owned the house. In 1992 she had created a Trust in which she is one of the three Trustees. She said the Trust is for the benefit of the couple's children, her parents, and her sister. The other trustees are apparently people of her choice. The directors of the company, herself and Chiedza, were apparently out of her choice as well.

As already alluded to above, it is common cause that the plaintiff has been the accounting officer for the company since its inception. She will continue to be so. There is no denying that she is the one in total control of the company. From her own evidence, it is clear, that, she is the one who has been and will continue to make decisions for the company. Other persons mentioned, even as Trustees, appear to be her nominees.

It is common cause, that, since the family started living at 60 Garland Ride, they have not been paying rent. The family has been living rent-free. The plaintiff will continue to live in the house in question rent free for as long as she desires.

Apparently, no one has the power to deny her of this.

It is my view, that, all this points to the fact that the plaintiff has more interests in the house in question than she would like the court to believe. The property is virtually hers as she has the mandate to do as she pleases with it.

In the circumstances, I am of the view, that, the property ought to be considered in the division, apportionment, and distribution of assets of the spouses.

The defendant's claim is not for a share in the Mt Pleasant house but that it be considered in determining his claim for an award of the Marlborough house since he needs a roof over his head. The plaintiff will have the Mt Pleasant house.

Taking into account the object of section 7(4) of the Matrimonial Causes Act, particularly the need to place the spouses in the position they would have been in had a normal marriage relationship continued, it is clear that each party would have remained entitled to live in the Mt Pleasant house rent-free at the determination of the plaintiff. The defendant would not be without a roof over his head.

It is only fair that whatever apportionment or distribution is done does not burden the defendant so much that he is left without accommodation.

Mention was made that the defendant has a farm which he can use.

Unfortunately, not much was said about this farm save to say it is far away and the defendant would not be able to commute thereto and from on a daily basis in order to run his business. Not much was said on the suitability of the accommodation at this farm for a husband who had been used to living in the Mt Pleasant house.

In deciding on the issue of how much to award the defendant as his share of the Marlborough house, I will also consider the fact, that, whilst in the Marlborough house, both parties contributed in its purchase; in the Mt Pleasant house, the defendant did not make a direct contribution towards its purchase.

The Marlborough house is registered in the joint names of the parties whilst the Mt Pleasant house is not.

Registration in joint names is prima facie proof of a 50:50 ownership in the property.

The question to be answered is whether the justice of the case requires that a spouse's share be awarded to the other, if so, how much of that share?

After a careful assessment of the parties contributions, needs, and other factors, as detailed in section 7(4) of the Matrimonial Causes Act, I am of the view this is a case where a part of the plaintiff's share should be transferred to the defendant to achieve a just and equitable distribution of the assets of the spouses. A deduction of 15% would, in my view, be appropriate in the circumstances. I thus conclude, that, the defendant deserves a 65% share in the Marlborough house and the plaintiff a 35% share.

The defendant will be granted the option to buy out the plaintiff's share within 120 days.

Accordingly, it is hereby ordered that:

1....,. 

2. The movable property be distributed in terms of exhibit 3, with the plaintiff being awarded items under annexure A and the defendant items under annexure B. The document, as agreed by the parties, is hereby attached as part of this order.

3. The plaintiff is hereby awarded a 35% share in the immovable property, namely, No.18 Normanton Close, Marlborough, Harare, also known as Stand 728 of Stand 558A Marlborough Township, Harare.

4. The parties shall agree on the value of the property within 14 days of the date of this order failing which they shall appoint a mutually agreed evaluator to evaluate the property within 30 days of the date of this order.

5. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint one from his list of independent evaluators to evaluate the property.

6. The parties shall share the cost of evaluation in the ratio 35:65 (as per their shares in the property). The defendant shall pay off the plaintiff her share within 120 days from the date of evaluation unless the parties agree on a longer period.

7. Should the defendant fail to pay or to make a payment plan acceptable to the plaintiff within the period stipulated in (6) above, the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds therefore shall be shared as per their respective shares in the property.

8. Each party shall bear their own costs of suit.

The plaintiff also testified that when he was employed by the Public Service he was allocated a three bed roomed flat, described as Number 91 Block 7, Francis Flats, Belvedere. 

At some stage, he contributed towards a housing scheme run by the then Ministry of Local Government and National Housing (now Ministry of Housing and Social Amenities). The contract with that Ministry entailed the provision of a Stand, a flat, or a house. He was allowed to occupy the flat until the contractual obligations of the Ministry were fulfilled. 

He, in turn, offered the defendant occupation of the flat and she declined....,.

Regarding the flat, it was the defendant's testimony that it is currently occupied by the plaintiff's sister. It appears there is a legal dispute regarding the flat. According to the defendant, every time an attempt has been made to remove the plaintiff's sister the plaintiff has had recourse to the courts. That is why she is not interested in the flat....,.

The plaintiff's evidence was that he contributed to a housing scheme called “Pay for Your Own Housing Scheme”. In terms of the contract, he was to be provided with a Stand, a house, or a flat. The Ministry of Housing and Social Amenities acknowledged its obligation and allowed him to retain occupation of the flat which he leased when he was employed in the Public Service. It is this flat he said he offered the defendant for her occupation and she declined.

No documentation was tendered to confirm the status of the property. On the evidence available, the Flat does not belong to the parties and cannot constitute matrimonial property. At most, the plaintiff is holding the flat as a lien....,.

It was the plaintiff's evidence that the defendant acquired a residential Stand through her employers. However, he could not give particulars of the Stand....,.

Although the plaintiff put it to the defendant that she owns a residential Stand, this was denied.

The plaintiff and the defendant married on 28 June 2002 in Finland. No children were born of this union. In December 2007 the plaintiff moved out of the matrimonial home, and, on 30 April 2008, he issued summons out of this court seeking a decree of divorce and other ancillary relief.

The defendant opposed the claim on the basis that the marriage had not broken down. She also claimed movable property and an immovable property known as Stand 9 Dorset Road, East Avondale, Harare.

At a pre trial conference held before a judge in chambers, the defendant applied to amend her plea by including four other immovable properties and a list of movable property for distribution. She also sought an amendment to her claim to Number 9 Dorset Road, East Avondale to an award of any of the properties.

This amendment was granted by consent at the pre-trial conference by KUDYA J on 6 February 2009.

At the hearing, it was conceded, by the defendant, that the marriage between the parties has irretrievably broken down. The issues which were thus before the court for determination were:

1. What constitutes the parties matrimonial estate; and

2. How the property should be distributed.

The issue of the assets was seriously contested and the parties did not agree on anything.

The plaintiff's position was that the property was not matrimonial property, and, in any event, the defendant had made no contribution towards their purchase. The defendant, on the other hand, took the view that the property was matrimonial property and she was entitled to a share.

The plaintiff testified that he married the defendant under customary law on 2 February 2002 and registered the marriage in June 2002. He stated that it was a short, unhappy marriage characterized by abuse, by the defendant, of his father and children. He had terminated his first marriage to Maseline Makani on 15 January 1999. He and his ex-wife purchased Number 9 Dorset Road for their daughter Diana. The property was purchased in May 2001 and registered in her name on 6 July 2001. This was well before he started dating the defendant.

When the plaintiff married the defendant he was living at Number 46 Masocha Ndhlovu Road, Hatfield. The property is registered in the name of Tarbell Trust which was established in 2001. The beneficiaries of the Trust are the defendant's children.

He denied that he owned a property at Number 9 Kirsten Borsch Mews in Josiah Chinamano Avenue. He stated that he tried to purchase it but the agreement fell through because he had insufficient funds.

Buckingham Gate was acquired in early 2002 and it is registered in the name of Tarbell Trust.

Stand 7740 Tynwald was acquired in 1999. He does not have title to the property though the Agreement of Sale was signed in 2000.

Stand 1120 Prospect Township was acquired by the plaintiff in 1997; he purchased it together with his first wife who is now late. It was transferred into his name in 1999.

He denied that any of these properties were purchased with the defendant, as, at that time, she was married to another person. It was the plaintiff's evidence that the property thus did not constitute matrimonial property and was not available to the defendant for distribution....,.

He stated that although he drives the Mercedes Benz it did not belong to him but to a company known as Linridge Trading (Pvt) Ltd. He produced the registration book for the motor vehicle. He stated that it is not part of the matrimonial property as he is not a shareholder of the company concerned. He stated that he merely does consulting work for the company and he drives the motor vehicle as part of his benefits.

The defendant testified that she met the plaintiff in 1996 and they started dating. He married her in accordance with African custom on 17 March 2001. She was living in Finland at the time and had come home on a visit. She returned to Finland on 17 March 2001. They were supposed to register the marriage in June 2001 but they failed to do so due to some problems. They eventually registered their marriage in June 2002.

In 2001, the plaintiff was staying in Hatfield. He then suggested that they purchase a house. At the time, she had received 50,000 Finnish marks which translated to about US$20,000. She gave the plaintiff US$10,000 towards the purchase of a house. When she returned to Zimbabwe, in January 2003, Number 9 Dorset Road had been purchased. She assumed that it had been purchased from some of the money she had given the plaintiff. She only learnt, later, that it was registered in the name of Diana his daughter.

She stated that the Tynwald property, and Stand 1120 Prospect, were purchased as undeveloped Stands. The properties were subsequently developed in 2003 - after the parties married. She stated that she assisted by delivering building materials to the Stands.

The property at Number 9 Kirsten Bosch Mews was purchased after they were married. She stated that at some stage they furnished the property as they were letting it out to a tenant. She was however unable to disprove the plaintiff's assertions that he did not eventually purchase the property.

Buckingham Gate was also purchased after they were married but she does not know when it was bought.

With respect to the movable property, she stated that they purchased household furniture together with the plaintiff. She stated that they purchased the washing machine, microwave oven, Technics Hifi, two leather lounge suites, two stoves, six television sets, a bedroom suite, three VCRs, a DVD player, Dual decoder, a dining room suite, a Prado, and a C200 Mercedes Benz.

She conceded that she had not contributed financially towards the purchase of these goods but they were purchased during the subsistence of the marriage....,.

It was apparent from the plaintiff's evidence that he has worked hard in his life and has accumulated considerable wealth. His prime pre-occupation appears to safeguard this property for his children. In order to achieve his purpose he established a Trust and he used this as a vehicle to own the immovable property that he has acquired....,.

The plaintiff submitted that all the movable and immovable property that the parties have was acquired before he married the defendant, and, therefore, does not constitute matrimonial property. He argues that it should therefore not be distributed upon divorce.

Section 7(3) of the Matrimonial Causes Act [Chapter 5:13] provides as follows:

"(3) The power of an appropriate court to make an order in terms of para (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage -

(a) By way of an inheritance; or

(b) In terms of any custom, and which, in accordance with such custom, are intended to be held by the spouse personally; or

(c) In any manner, and which have particular sentimental value to the spouse concerned.”

It seems to me that a proper interpretation of this provision allows a court, in making an award, to take into account all the property acquired by the parties whether before or during the marriage provided that it does not fall in the exceptions outlined in the section.

I take this view because section 7(4) of the Matrimonial Causes Act does not just look at the question of contributions when a court is called upon to distribute property upon divorce. The court is enjoined to take into account all the factors which are set out in subsection 4 and then make an equitable distribution.

Clearly, it was the intention of the legislature to include all the property owned by the parties.

The whole thrust of section 7 of the Matrimonial Causes Act is to place the parties, as far as is reasonable and practical, in the position they would have been had the marriage relationship continued between them.

A property may only be excluded from consideration if it was inherited, acquired in terms of custom, or it is of sentimental value to a party.

The plaintiff has not sought to rely on any of these exceptions. His only argument was that he acquired the property prior to his marriage to the defendant. That, in itself, is not, in my view, sufficient and all property proved to belong to the plaintiff would fall for distribution in terms of section 7 of the Matrimonial Causes Act.

It was apparent, from the evidence, that some of the immovable property claimed by the defendant did not belong to the plaintiff.

House number 9 Dorset Road, Avondale was purchased in May 2001. It is registered in the name of Diana Kumbirai Makani who is the plaintiff's daughter. Whilst the defendant was aware that the property was registered in Diana's name she did not seek to join her as a party to the proceedings. The defendant's evidence, in relation to how and when she gave the plaintiff the money for the purchase of this property, was not convincing and was totally unsubstantiated. I thus accept the plaintiff's evidence that this property does not constitute matrimonial property.

Stand 9 Kirsten Borsch Mews was allegedly purchased during the subsistence of the marriage. However, there was no evidence produced to show that this property exists. The defendant stated, in her discovery affidavit, that she had the title deeds to the property but she failed to produce them at the trial. During her evidence in chief the defendant persisted that the property was purchased and is still owned by the plaintiff. However, in cross examination she conceded that she had carried out a search at the Deeds registry and had failed to find the property registered either in the plaintiff's or the Trust's name. I thus accept the plaintiff's evidence that he had indeed tried to purchase the property but the negotiations had collapsed after the owner kept increasing the purchase price.

The flat at Buckingham Gate is owned by Tarball Trust. Although the defendant sought to argue that it belonged to the plaintiff there was overwhelming evidence that it was registered in the name of the Trust. There was no evidence that it was ever registered in the name of the plaintiff and that he had transferred ownership to the Trust merely to defeat a claim by the defendant. I thus find that this property does not constitute matrimonial property.

Stand 1120 Prospect Township of Subdivision C of Prospect situate in the District of Salisbury is registered in the name of the plaintiff. The plaintiff stated that he had purchased the property in 1997. He did not dispute the defendants evidence that it was an undeveloped Stand at that time and that it was only developed after he married her. In the absence of any evidence to the contrary, I accept the defendant's evidence that she had assisted during the development of this Stand. She told the court that she would purchase building material if the plaintiff was not present and supervise the builders. She worked as a dressmaker and brought an income into the household. She stated that although she did not contribute directly into the construction of the Stand she gave her time and labour.

Stand 7740 Tynwald was purchased in 1999.The plaintiff stated that he does not have title to this property but accepted that it was owned by him.

In my view, Stand 1120 Prospect Township, and Stand 7740 Tynwald, and all the movable property, would fall for distribution as these are all matrimonial property.

In her declaration, the plaintiff contended that Ronoe Enterprises (Pvt) Ltd had acquired, among other items, a Toyota Corolla and a Mazda B2200DX...,. 

The plaintiff's only desire was to be allocated a Toyota Corolla motor vehicle.

The defendant countered this by alleging that the motor vehicle claimed by the plaintiff had been “written off following a road accident during the month of February 2001.”…,.

The evidence which was led by the plaintiff, and which was canvassed at length both in her evidence-in-chief and under cross-examination, was to the effect that this vehicle was there and had been given to the defendant's mistress, Fiona Dick. The plaintiff checked with the City Council and confirmed that indeed this motor vehicle had been registered in the name of Fiona Dick.

The court accepts the evidence as told by the plaintiff. There is every indication that this vehicle was registered in a third party's name to ensure that the plaintiff would not be able to lay her hands on it. It was quite curious that having been served with the plaintiff's claim on the Toyota Corolla, the defendant would swiftly move to have the same motor vehicle registered in his mistress's name. 

It is only fair, in such circumstances, that the plaintiff be awarded the other vehicle that is there, that is, a Mazda B2200 bearing registration number 686-646D....,.

Through her declaration, the plaintiff expressed the desire to be awarded a..., 25% share of the value of the Flat, namely, Stand number 585 Bulawayo Township (Share 102 thereof)....,.

It is clear to the court that the defendant barricaded himself behind the corporate veil to register the Flat in the name of Josro Enterprises (Pvt) Ltd...,.

In the court's view, all these factors, taken cumulatively, demonstrated the defendant's stout effort to hide behind the corporate veil. All these efforts by the defendant were contrived to conceal the fact that all these assets are clearly matrimonial property....,.

I hold the view that the Flat was part of the joint matrimonial property and require to be distributed and apportioned between the parties. 

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

The Outstanding Movable Property

Agreement having been reached on all the other movable assets acquired by the parties, the only outstanding items on which this court is asked to make a determination would appear to be the five door frames and one window frame.

The plaintiff's position was that these items cannot be distributed by this court as they do not belong to either of them.

He said that the property was brought to their residence by his workmate and subordinate, one Simbarashe Matibenga, for safekeeping. He said that Simbarashe is constructing a house in Damofalls and comes to collect the items as and when they are needed. He said that Simbarashe had in fact initially brought five door frames and seven window frames but that, as at the time of trial, there were five door frames and one window frame left. He also said that Simbarashe's mother had recently died and Simbarashe had been granted seven days' compassionate leave to attend to his mother's burial in Zhombe. As a result, he could not call him to give evidence as he was consequently unavailable.

The defendant's position, on the other hand, was that she had purchased the five door frames and one window frame at Magaba in Mbare in 2002 for the development of a residential Stand which the parties had acquired in Waterfalls.

During cross-examination of the plaintiff, by the defendant's legal practitioner, it was also put to him that the defendant's contention was that there were four window frames which were in the carport since 2002 but that the plaintiff had since sold three of them.

It was at this juncture that the plaintiff stated that there were in fact seven window frames and five door frames that were brought by Simbarashe.

It is common cause that the defendant had earlier instituted proceedings in the Magistrates Court for the distribution of the property acquired during the subsistence of the parties' union. The Order made by the Magistrates Court, for the distribution of the property between the parties, was apparently appealed against by the plaintiff in the instant matter and subsequently nullified or set aside by this court. It is also common cause that in her claim in the Magistrates Court the defendant had not included these items.

When she was asked to explain why, her response was that she forgot to mention the said items.

As the defendant was the initiator of the proceedings in the Magistrates Court, it must be assumed that she obviously placed before the court that which she contended to be property available for distribution between the parties. She did not then include these items.

Similarly, in her pleadings in casu, she did not include these same items.

From the appeal case number, “CIV 'A' 534/06”, the appeal must have at least been noted in or around 2006. The defendant's counterclaim in the instant matter was filed in June 2009 - some three years later.

Had it not been for the appeal noted in that matter by the plaintiff in casu the said items would have remained undistributed.

No plausible reason has, in this court's view, been proffered why these items have only surfaced this very late after the filing and closing of pleadings by the parties.

In the circumstances, the plaintiff's explanation, as to the ownership of these items, appears more probable. The defendant's claim to them cannot be sustained and she therefore cannot succeed on this claim.

Since the death of the plaintiff's business partner, 59 Caledon Avenue, Prospect, has been distributed to the surviving spouses.

This was not disputed by the defendant.

As regards Number 3 Selmont Gardens, the starting point to note is that it was acquired during the subsistence of the marriage and therefore constitutes matrimonial property....,.

Although the defendant claimed that she is the one who purchased the two refrigerators it is not in dispute that they were acquired during the course of the marriage. Had the marriage subsisted, both parties would have continued to enjoy the use of the refrigerators jointly.

According to the plaintiff, the Lloyds account was opened in the 1980's after his parents had died. The funds came from his inheritance. Some funds were deposited into Standard Bank, South Africa account. The account was opened when the parties intended to settle in South Africa. There is also an account with ABSA which he opened with funds from his inheritance. A third of the inherited funds remained in Zimbabwe. An account with Standard Bank in the Isle of Man was opened in 2004. He opened it with a deposit of 10,000= pounds withdrawn from the Lloyds account...,.

Although the plaintiff claimed that the money that he used to open the Lloyds account came from his inheritance he was not able to specify exactly how much that was. In any event, the estate of his late father was wound up in local currency and it is not clear how he converted it to foreign currency and hence externalized the funds...,. The same applies to the export of crocodile skins. The proceeds appear to have been externalized...,. It seems money from the plaintiff's inheritance got mixed with earnings from the business and other sources. The distinction between what constitutes inherited funds and income from other sources is blurred as a result.

Jewellery valued at 25,000= pounds was bequeathed to the defendant by the plaintiff's mother. It was initially kept in safe but subsequently exported to England. Part of it was stolen and the agent's father paid a sum of 5,000= pounds which was deposited in the Lloyds account. Concerning the defendant's jewellery, the plaintiff testified that a total of 9,000= pounds was received and deposited in the Lloyds account.

In respect of the jewellery, the defendant stated that it was exported without her consent. It had been bequeathed to her by her late mother-in-law. The money earned from the jewellery was not accounted for.

On movables, the plaintiff testified that there is a Nissan double cab which is registered under Transelectrical (Private) Limited...,.

On generators, the plaintiff stated that they belong to Transelectrical (Private) Limited....,.

The plaintiff also stated that the Unit 'L' property and the Norton stand were acquired through the defendant's brother in whose names they are registered. The defendant's brother is Munyaradzi Muguti. The plaintiff was adamant that the plaintiff's brother could not afford to purchase these properties as he was not employed. He further contended that the defendant's share in the Ridgeview property should be diminished proportionate to her interest in these two properties....,.

The defendant maintained that the Norton property belongs to her brother. She further explained that she happened to have the building plan for the property since the person who drew it was based in the United Kingdom....,.

The defendant also sought a division of assets belonging to Transelectrical (Private) Limited.

The plaintiff's evidence was that this company was incorporated in 1995 before he got married to the defendant. He has a fifty percent share. Apart from the claim that the plaintiff used some of the company's assets, like the Nissan motor vehicle and generator, there was no evidence on which the court could conclude that it is a family business. The court was not urged to pierce the corporate veil in order to determine whether the plaintiff was solely in control of the company. No documentation was produced to show who the directors of the company are.

I will therefore proceed on the basis that the company is a separate legal entity and that assets that are registered in its name are not subject to distribution. That means the generators and the Nissan motor vehicle will not be shared between the parties.

At the time of trial, the plaintiff told the court that the company was not operating and that is why some of the company's assets were being kept at home.

I will therefore not consider whether the defendant is entitled to that portion of the plaintiff's shares in the company. In any event, no evidence was led on what the plaintiff's share in the dormant company amounted to....,.

It is common cause that out of the immovable properties, only the Ridgeview house is registered in the plaintiff's name. The rest of the properties are either in the defendant's name or that of her nominee or that transfer of title had not taken place.

It was not disputed that the defendant purchased all the immovable properties during the course of marriage without the plaintiff's knowledge....,.

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high. In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue. There was also evidence to the effect that the defendant was in possession of building plans for the Stand. The court was not furnished with proof of purchase of the Stand to show who purchased it.

To demonstrate the defendant's stealth, the plaintiff produced an Agreement of Sale in relation to Stand 22468 Unit 'L' Seke which was entered into by Munyaradzi Muguti on behalf of the defendant. Part of the agreement reads as follows:

“1. That the Stand No. 22468, Unit 'L', Seke, Chitungwiza shall be ceded to Munyaradzi Muguti as if he is the real owner (purchaser) thereof.

2. In the event that there is a dispute between Vivian and Munyaradzi resulting in Munyaradzi refusing to cede right, interests and title in this Stand to the real purchaser, namely, Vivian Mukomberanwa, Walter Makwili shall not be liable to Vivian Muguti in any way i.e. either to provide another property nor to refund the purchase price.”

Therefore, in making a distribution in terms of the Matrimonial Causes Act the court will take into account the defendant's interest in the Norton property...,.

Section 7(3) of the Matrimonial Causes Act [Chapter 5:13] provides for assets that the court may not consider in the exercise of its powers in terms of section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13]; these include assets acquired by inheritance, in terms of any custom and which in terms of that custom, are intended to be held by the spouse personally, or which have a sentimental value to the spouse concerned.

The Nissan Hardbody the defendant had alluded to was involved in a road traffic accident and was declared a write off. The only motor vehicles available are, therefore, the B1800 and the Opel Kadett.

Regarding Plot No.17 Lee Farm, it was put to the plaintiff that the defendant would say that he had given it to her at the same time that the lump sum payment of $73,200,000= was made and that he has no control over it as it is her property.

The plaintiff denied this.

The defendant said that it was also the plaintiff who demanded Plot 17 Lee Farm which she had been given as a gift by Chief Makoni. He said that it was, in fact, not a gift but that she had used her influence as she worked for Council, to secure the Plot. He then moved out of the Plot in 2005 leaving it under the control of the plaintiff while he relocated to a rural resettlement area in Kriste Mambo area where he got a two hectare plot.

Although he states that the plaintiff is already in control of Plot 17 Lee Farm and that it may be awarded to her, it was also the plaintiff's undisputed evidence that she has discovered that the said piece of land is now registered against another person's name and that this happened without her knowledge. She did not, however, say that the defendant was instrumental in this “dispossession.”

The fact is that this property is no longer within the realm of the matrimonial estate and it would thus not be competent for the court to now award it to either of the parties.

It was also put to the plaintiff that the defendant would say that they never owned a Mazda B1800 registration number AAM 1183.

The plaintiff said that they did own such a vehicle but that the defendant donated it to ZAOGA Church in Rusape without her consent. She did not, however, have any documents on her to prove such ownership and such donation.

It was put to the plaintiff that the defendant would deny owning a Mazda B1600 registration number AAM 1146.

She said, in response, that they bought the said vehicle together but the defendant had it registered in his brother's name without her consent. She said that she did not have, on her, the documentary proof to support her allegation.

The plaintiff also denied that a Toyota Dyna motor vehicle registration number AAJ 3536 is the property of Multimillionaire Investments. She said that they bought the vehicle in Nyanga and that it was thereafter registered in the defendant's name and not in the name of the company.

The defendant denied that they ever owned a Mazda B1800 as claimed by the plaintiff. However, they once owned a Mazda B1600 which the plaintiff sold some time in 2006 while they were still together but after they had both agreed to sell it. He was not involved in the sale transaction. The Toyota Dyna vehicle is owned by the company Multimillionaire Investments and it is still in the possession of the company.

The plaintiff's insistence that she specifically wants the Isuzu twin cab and not the Nissan Patrol to be given back to her is no longer capable of enforcement at this stage, the vehicles having been swapped.

Of the five vehicles listed in the joint pre-trial conference minute, the defendant has, by various explanations, placed then outside the realm of the matrimonial estate. It is not clear whether their inclusion in the dispute, presumably by the plaintiff was based on a misconception of prevailing facts or whether this is a case of the defendant trying to frustrate the plaintiff's bid to benefit from the matrimonial estate.

The plaintiff also denies the existence of livestock, as alleged by the defendant, saying that a lot of livestock died during long drought spells and that at present there are five (5) head of cattle and a calf, three (3) of which he inherited from his father.

He could not explain why only those survived the drought. 

Under cross examination he said there may be a couple of goats.

The defendant says they bought livestock and when she last visited the homestead, in June 2006, there were 15 head of cattle and 30 goats. Most of the goats were obtained from her own rural home in Manama. Some were given to them as gifts by her relatives while they used to buy some from Mtshabezi area each time they took their maid to her home area. The number of cattle mentioned by the defendant seems to tally with documentary evidence in the form of letters submitted belatedly by the plaintiff which he had addressed to Police Commissioner Chihuri. In a letter dated 24 July 2009, when this matter was already pending, the plaintiff complained that police in the area were not investigating cases of stock theft he had reported. For instance, he refers to 10 head of cattle stolen from his West Nicholson property in December 2005. He says between September and October 2008, 6 cattle were stolen. Some of these cattle were recovered.

In his evidence, the plaintiff had said cattle were wiped out by drought and never mentioned stock theft.

Clearly, therefore, quite a substantial number exists at the rural home…..,.

In the year 1995, the plaintiff married the defendant in terms of customary law. They had apparently commenced living together prior to the formalization of the union in terms of customary law. On 31 March 2000 their marriage was solemnized in terms of the Marriages Act Chapter 5:11]. The marriage still subsists. The marriage was not blessed with any child.

On 8 April 2008, the plaintiff filed a suit seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage had irretrievably broken down to such an extent that there were no reasonable prospects of the restoration of a normal marriage relationship between them. He went on to say that during the subsistence of the marriage the defendant has -

(a) Treated the plaintiff with cruelty and often assaulted the plaintiff: threatened to poison the plaintiff: attempted to take the plaintiff's life using a knife or an axe;

(b) Showed a very violent disposition to the plaintiff and his relatives, such as the plaintiff's mother, brother and sister who have vowed never to set foot at the plaintiff's house again;

(c) Accused the plaintiff of nursing an adulterous affair with a certain named woman, a workmate at Kwekwe Polytechnic. She ran berserk and assaulted her in front of the students and uttered vulgar words.

(d) The parties are incompatible;

(e) The plaintiff has lost all love and affectionate for the defendant.

Based on the above factors, the plaintiff believes that the marriage has irretrievably broken down....,.

In her plea, the defendant admitted that the marriage had irretrievably broken down and that there were no prospects of restoring a normal marriage relationship.

She however contended that the reasons for the breakdown were not as stated by the plaintiff. The reason for the breakdown was that the plaintiff was involved in an adulterous relationship with a named woman who she has since sued for adultery damages. That adulterous relationship has led to the plaintiff denying her love and affection, and, in fact, demeaning and stigmatizing her beyond endurance. As a result, she apparently no longer has any love and affection for the plaintiff. She would thus agree that a decree of divorce be granted....,.

At the pre-trial conference, the parties agreed on a number of issues:

The parties agreed that the marriage had irretrievably broken down and apparently neither party had the intention to restore normal marital relationship.

They also agreed on how the movable property was to be shared except the F13 motor vehicle.

Other issues agreed upon were that the plaintiff to pay maintenance to the defendant in the sum of US$20 per month until such time as she dies or re-marries and that each party was to pay their own costs.

The issues which the parties could not agree on, and which were referred to trial, were as follows -

(1) What is the equitable way in which the parties' immovable assets, and F13 pick up truck, should be distributed?

(2) Whether or not the vacant stand in Kwekwe - Marshlands should not be part of the matrimonial property?...,.

From the evidence adduced in court, the second issue, as to whether the vacant Stand in Kwekwe Marshlands should not be part of the matrimonial property, was not easy to comprehend.

It was clear from the evidence of both parties that that Stand was acquired during the subsistence of the marriage and there was nothing to distinguish it from the other properties save that it had a clause stipulating that it could not be sold before some development was effected on it.

I did not hear either of the parties to say that that clause affected the ownership of the Stand or their ability to redistribute the Stand as between themselves. In fact, the plaintiff clearly said he fully paid for that Stand, and, after that full payment, he was given a form which indicated that he now owned the Stand. Neither party, in their evidence, suggested that the Stand was not matrimonial property.

The point raised by the plaintiff was simply that the Stand could not be sold without any development being effected on it. Thus, in the event of distributing the Stands there should be no clause requiring this particular Stand to be sold, but, it is transferable as between the spouses.

In his plea, the defendant contended that House Number 3335 School Drive, Glen view 4, Harare was not matrimonial property but his sole property as he acquired it in 1979 whilst married to his late wife. He also contended that the 14 cattle were not part of the matrimonial property but his alone….,.

Evidence on the contentious issues

The plaintiff gave evidence on her contributions on the immovable properties…..,.

On the Goromonzi property, that is House No.105 Takadiyi Village, Goromonzi, the plaintiff's evidence was to the effect that she acquired that Stand on her own before she had married the defendant. In that regard, she tendered an Agreement of Sale showing that she bought the property as a Stand on 17 August 1998 for the sum of 15,000= Zimbabwe dollars. The Agreement was tendered as exhibit 2. She made payments for the Stand through cheques from two CABS accounts. The first cheque, for Z$5,000= was drawn on her CABS account and the second cheque, for Z$6,000= was drawn on the defendant's CABS account. These were paid on the date of the Agreement of Sale. Copies of the two cheques were tendered into evidence as exhibits 3(b) and 3(c). She paid the balance of Z$4,000= in cash and she tendered a receipt of that payment as exhibit 4. It was her evidence that the Z$6,000= from the defendant's account was a loan which she repaid within a month from the date of purchase.

It was her contention that since the Stand was purchased before both customary and civil rites marriages it should not be considered as matrimonial property.

The plaintiff went on to say that after the purchase she went on to fence the property. Apparently these are the only tasks she claimed to have done before the two got married.

The construction of the house occurred after they had been married. The plaintiff maintained that though they were now husband and wife she is the one who contributed the most in the construction of the house. According to plaintiff, the defendant's role was that he assisted her in securing the builders and he also assisted her in buying window frames and door frames. On the question of contributions towards the purchase of the window frames and door frames the plaintiff said they contributed equally. The defendant's contribution having been on the window frames and door frames only, the plaintiff felt he did not deserve much of a share in the property.

Under cross examination, the plaintiff maintained that the Z$6,000= from the defendant's CABS account was a loan and not his contribution towards the purchase of the Stand.

On the only movables in dispute, that is the cattle, the plaintiff's evidence was to the effect that as husband and wife they harvested their maize crop for the year 2002. They sold the maize and realized a sum of Z$30,000= which they agreed the defendant should buy cattle with. The defendant went to Zimstock Sales and bought a herd of 5 cattle at a total cost of 102,000= Zimbabwe dollars. The receipt for Z$102,000= by Zimstock Sales was tendered into evidence as exhibit 6 and is dated 12/6/02.

Under cross examination, the plaintiff admitted that according to the Zimstock Sales receipt the Z$30,000= was inadequate to buy a herd of 2 cattle. She accepted that of the Z$30,000= her share would have been Z$15,000= with the defendant retaining Z$15,000=. That meant, as at the time of the purchase of the cattle, she could, at most, claim only one beast. Her share was thus 20% of the cattle bought. She, however, could not accept such a share now because, according to her, she is the one who suggested that they buy cattle and when the cattle were bought they were kept at her place hence she believed she was entitled to 50% of the cattle.

The stock card was also in her name….,.

The defendant's evidence on House Number 3335 School Drive, Glen view 4, Harare was not disputed at all. The plaintiff withdrew her earlier claim for a share in that house. The defendant did not deny the plaintiff's evidence on the nature of improvements she did. He however disputed the value.

Pertaining to House No.105 Takadiyi Village, Goromonzi, the defendant's evidence was to the effect that as of 17 August 1998 they were staying together as husband and wife at his Glen View house. The plaintiff advised him that she had found a Stand to buy. The two of them made equal contributions of Z$7,500= each. He paid Z$6,000= by CABS cheque and Z$1,500= he paid cash to the plaintiff for her to go and pay. The plaintiff never repaid him the money as it was never a loan. As a co-purchaser, the defendant said after entering into the Agreement of Sale they were given a copy of the Agreement of Sale. That copy was kept by the plaintiff and is not the copy tendered by the plaintiff as exhibit 2. He, however, could not confirm with any certainty that on that Agreement of Sale he had, indeed, been included as a co-purchaser. This latter aspect of the defendant's evidence was contrary to the contents of his supplementary summary of evidence wherein he said that the Agreement of Sale was never reduced to writing.

Apart from paying the Z$7,500=. the defendant said he, thereafter, looked for builders and he is the one who paid the builders. After the first builders left, he later looked for other builders to complete the construction and, as before, he paid the builders.

To support this aspect he called Weston Masiyandima Musumire as his witness….,.

I am of the view that apart from taking the initiative to buy the Stand before they were married the plaintiff contributed more to the construction of the house on that Stand. Her share should therefore be greater than the defendant's share. A share of about 70% would meet the justice of the case. In arriving at that percentage I have also taken into account the value of improvements she made to the defendant's Glen View house of 100 United States dollars…..,.

According to the defendant's supplementary summary of evidence, David Mukuruva was charged a herd of 8 cattle as part of lobola for the defendant's sister, Eunice Nyahada. He paid a herd of 2 cattle leaving a balance of 6. On 25 June 2002 David Mukuruva paid a sum of Z$120,000= in lieu of the remaining six cattle to the defendant. The defendant used that money to buy cattle from an auction. These are the cattle the defendant seemed to contend were the subject in this case. Unfortunately for the defendant, the Zimstock Sales receipt, which he did not dispute, shows that the cattle were bought on 12 June 2002 - which was almost two weeks before the date the defendant said he was paid by David Mukuruva. Apparently, faced with such contradiction and highly unlikely story, in his viva voce evidence in court, the defendant now said that he used his income from employment to purchase the cattle in dispute. This new version was given without any apology or explanation on its contradiction with his earlier version. I am of the view that had the defendant acquired the cattle on his own he would not have presented two contradictory stories on how he acquired the cattle. It is clear to me that the cattle were acquired in the manner stated by the plaintiff, that is Z$30,000= from the sale of their maize crop and the balance was contributed by the defendant. It would appear that from the manner in which the cattle were bought the parties agreed that the cattle be in the name of the plaintiff on the stock card and the cattle were being kept at the plaintiff's place from the time of purchase. It was admitted that the defendant used to pay for the herdsman on some occasions.

Based on the contributions towards the purchase price of the seed 5 cattle, I have already shown that the plaintiff would be entitled to about 20%. However, as was shown from the evidence that she, thereafter, contributed in looking after the cattle to their present number of 17. Her percentage share would obviously need to be adjusted. I am of the view that an increase of her share to about 35% would be fair and just in the circumstances.

Accordingly it is hereby ordered that:

1. …,.

2. The plaintiff is awarded the following movable assets-

i) 35% share of the current number of herd of cattle.

ii) All goats.

iii) All house hold property including a 6-piece lounge suite.

3. On immovable property -

70% share of House No.105 Takadiyi Village, Goromonzi.

4. Defendant is awarded the following movable assets -

i) 65% share of the current number of herd of cattle.

5. On immovable property -

i) He is to retain House No.3335 School Drive, Glen View 4, Harare, as his sole and exclusive property since this was never part of the matrimonial assets.

ii) 30% share of house No. 105 Takadiyi Village, Goromonzi.

6. The parties shall agree on the value of the 105 Takadiyi Village, Goromonzi, within 30 days of the date of this order failure of which they shall appoint a mutually agreed evaluator to do the evaluation of the property within 60 days of the date of this order. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his list of evaluators to evaluate the property. The parties shall share the costs of such evaluation in equal proportions.

7. The plaintiff shall pay off the defendant his share of the value within six (6) months of the date of receipt of the evaluation report unless the parties agree otherwise. Should the plaintiff fail to pay the defendant's share in full within the stipulated period the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds thereof shall be shared in the ratio 70:30.

Matrimonial home

It was the plaintiff's evidence that the funds for the construction of the house came from Binga Wild Safaris trading as Dingani Tours and Delicacy Investments trading as Mama Africa. The defendant did not contribute towards the construction of the matrimonial home despite the fact that she generated income from the businesses he helped her to set up. He believed that she could have been using the money to buy clothes because she did not even look after her own parents or the plaintiff's parents. He had to provide for them on a monthly basis with allowances until he stopped doing so for her parents at the beginning of 2008.

The house was initially registered in the plaintiff's name but was later transferred into the name of a family trust known as Raz Dube Family Trust on 6 October 2006 which was set up in 1999 with the defendant's knowledge and approval as the couple had no marital problems then.

The Trust was set up by the plaintiff's accounting firm known as S.G. & Company led by one Stanford Gwanzura. At the time the idea of setting up a Trust was being mooted by S G & Co, Stanford Gwanzura allegedly travelled to Victoria Falls with the relevant documents in order to explain to them to the couple. It was explained to them that a family trust would take care of their children in the event of the parents' death. Their assets would be transferred into the name of the Trust. The main beneficiaries would be the couple's children although all family members were income beneficiaries of the Trust id est the plaintiff, Rezimosi Dube, the defendant, Sandra Farai Dube, son, Raz Wilson Dube, and daughter, Tadiwanashe Dube also known as Rhoda Dube.

The plaintiff filed of record the Raz Dube Family Trust Deed whose trustees were Razimosi Dube, Stanford Gwanzura the plaintiff's accountant and Joseph Chanyu Mahamba – the plaintiff's lawyer who has since been replaced by Urayayi Mazengeza another accountant.  The plaintiff also filed a Deed of Transfer reflecting that the matrimonial house was transferred into the name of the Raz Dube Family Trust.The plaintiff saw no reason why it should be removed from the Trust and concluded by saying that he had no authority to sell the house….,.

Matrimonial house

The defendant testified that she regarded the house at Number 499 Accacia Crescent as their matrimonial home as they built it together during the subsistence of the marriage. There is a cottage on the property which was constructed between 1995 and 1997. She contributed towards the construction of the cottage. She was a cross border trader and was running a company known as Mosi Flora Florist and Boutique. She was also employed by the United Touring Company. The plaintiff was working in the casino as a croupier. She was therefore bringing in more income than the plaintiff. It was her evidence that the main house was built in stages but she could not recall when the slab was done but proper construction took place in 2004. During that period, she was running the chicken project supplying chicken and eggs to most hotels in Victoria Falls such as Elephant Hills, Victoria Falls Hotel and Victoria Falls Safari Lodge. She also supplied the Spar Kasane in Botswana and various supermarkets in Victoria Falls and Hwange with eggs. She alleged that her businesses were doing very well and claimed that she gave the proceeds therefrom to her husband. The two then sat down as husband and wife to decide on what to do with the money, some of which was channeled towards the construction of the house. The money was used to buy plumbing material and cement from Victoria Falls. Tiles, bath tubs and sinks were bought from South Africa. Some of the money was used for fuel.

She dismissed the suggestion by the plaintiff that all her money was used to buy clothing and other luxuries as sheer exaggeration.

As far as she was concerned, the house was matrimonial property not trust property. She alleged that she had been contributing towards the house for all her working life. She complained that the plaintiff should have consulted her before registering the house under the name of the Trust since the house was jointly owned. She should have been told. She was allegedly shocked and believed that the plaintiff had something sinister when he registered the house under a Trust Deed without her knowledge. She was not even aware, as at 30 March 2008, that the house was registered under the Trust Deed. She then suggested that upon divorce either (1) she be allowed to stay in the house with the children; or (2) the house be sold and each party receives 50% of the net proceeds.

The defendant told the court that she did all her usual domestic chores. She prepared food for her husband. They had a maid who she supervised. The maid used to prepare lunch for him but the defendant always prepared supper for him….,.

While denying that the defendant made any form of contribution, direct or indirect, towards the construction of the house, he conceded it was the couple's matrimonial home. When asked by this court what his offer to her in the matrimonial home would be he offered 20%....,.

The matrimonial house

The parties own house Number 499 Accacia Crescent, Victoria Falls was built during the subsistence of their marriage. They started living on the property when there was only a cottage. The main house was constructed while they lived on the property. The main house is a double story building and has all the features of a modern house. The parties have lived on the property for the entire 18 years of their marriage. They each consider it their matrimonial home.

Their point of disagreement is on the level of contribution each one made towards the construction of the house.

The plaintiff's stance was that the defendant made no contribution at all towards its construction. He challenged her to produce proof of her contribution. The defendant, on the other hand, told the court that using money realized from her businesses she purchased materials such as tiles, bath tubs, cement, special bricks and many other things. While the plaintiff would want this court to believe that he constructed it single handedly he also did not produce proof to show that that was the case.

Apart from the direct contribution that she made there was, of course indirect contribution made by her. When asked by the court how much he was prepared to offer her for her contribution he came up with 20%. Although the property had initially been registered in his name before it was transferred to the trust his 20% is far from being fair and equitable. It seems to me that there is no reason to disentitle her a 50% share in the property. 

The plaintiff in this matter told the court that he had two immovable properties in Beitbridge in Dulivhadzimu Township. He said he had acquired House Number 61 Dulivhadzimu Township before he married the defendant. He had started staying in the house in 1983. He, however, only got an occupier's lease agreement two years later on 4 July 1985. In 1987 he got a loan from his employers to purchase the said property. The loan was for $500= and was approved on 20 May, 1987 and repayments were to commence on 25 June 1987 at $50= per month and would be repaid by 30 March 1988.

He produced the lease agreement, a letter approving his loan and a receipt of payment of $500=45 to Mwenezi-Beitbridge Rural Council. The documents were filed of record in his bundle of documents.

The plaintiff contended that the house was not matrimonial property. He said the house was initially occupied by his nephew. When he went to live there, the house was used as a family house. He alleged that the defendant only started living with him as boyfriend and girlfriend in 1987.

It is observed that that was the year the plaintiff obtained a loan from his employers to purchase the house….,.

Under cross examination, it was established that House Number 61 Dulivhadzimu Township, which had only two rooms when it was bought, had five more rooms added to make it a seven roomed house in 1988.  The plaintiff prevaricated and was evasive when asked when he started to live with the defendant as husband and wife. He wanted the court to believe that although he had paid lobola for the defendant in 1987 she remained his girlfriend until he solemnized his marriage in 1994. The correct position, even according to his own story, would be that the parties were married customarily in 1987 when he paid the bride price. His suggestion that she only became his wife on 30 October 1994 is clearly baseless and must be rejected.

He accepted, under cross examination, that the defendant did make some contribution. It also came out, under cross examination, that he wanted to give House Number 61 Dulivhadzimu Township to a daughter he sired with another woman.

The plaintiff had contended, in his evidence, that he was offering the defendant a share of 25% from the proceeds of House Number 1936 Dulivhadzimu because she had been collecting rentals from the house but did not tell the court that he also was collecting rentals from House Number 61 Dulivhadzimu Township until he was probed in cross examination. It was established that he lived in a company house and letting out House Number 61 Dulivhadzimu Township. He does not want that house to be sold so that the proceeds could be shared between the parties. He wants to keep that house for himself and have the other house sold so that he could get a 75% share for himself. 

That is a selfish attitude.

The defendant's story was that she was currently living in House Number 1936 Dulivhadzimu Township, Beitbridge since the parties started living separately. She stated that the parties started living together as husband and wife since 1984. The plaintiff paid lobola in 1984 and the parties got customarily married that year. They started to live in House Number 61 Dulivhadzimu Township that year. She produced a document filed of record showing that she was the wife of the plaintiff and was listed as his dependent in 1984. Accordingly, she averred that the plaintiff's suggestion that the parties were only married in 1994 was false.

There is merit in her assertions as the story of the plaintiff that he had paid lobola but the defendant remained his girlfriend until he married her in 1994 is devoid of any merit.

There is also merit in her story that House Number 61 Dulivhadzimu Township was bought after the parties had got married. The parties started staying in the house in 1984 but the plaintiff only bought it in 1987. While the money used to purchase it was borrowed from the plaintiff's employers the defendant also made a contribution by supplementing the plaintiff's salary. She did that through cross-border trading. She said she was buying and selling goods. She told the court that she borrowed $150= from her sister as capital to start that business. It was her evidence that the money she realized from that business was used to buy building materials such as window frames to extend the house from a 2 roomed house to a 7 roomed one.  The extensions were done during 1987 and 1988. The work on the extensions to the house was complete by the time the parties upgraded their marriage.

It was her testimony, in conclusion, that when the parties separated the plaintiff left her in House Number 1936 Dulivhadzimu Township, Beitbridge while he went to stay at House Number 61 Dulivhadzimu Township. She therefore requested that she be awarded House Number 1936 Dulivhadzimu Township, Beitbridge while the plaintiff keeps House Number 61 Dulivhadzimu Township….,.

In the result, I would issue the following order:

It is ordered that:-

1. ..,.

2. The plaintiff be and is awarded as sole owner of the property known as House Number 61 Dulivhadzimu Township, Beitbridge;

3. The defendant be and is hereby awarded as the sole owner of the property known as House Number 1936 Dulivhadzimu Township, Beitbridge;

3. Whether or not plaintiff is entitled to the motor vehicles as per paragraph 10 of her declaration

In paragraph 10 of her declaration, the plaintiff asked to be awarded the following motor vehicles -

(i) Toyota Prado.

(ii) Toyota Hilux vehicle.

(iii) Volvo motor vehicle.

(iv) Toyota Camry Motor vehicle.

In his plea, the defendant stated that the plaintiff can have the Toyota Prado as it is a family vehicle; the Toyota Hilux truck belongs to the farm and so she cannot have it, the Volvo motor vehicle is a company vehicle used by the Commercial Director, the defendant uses the Toyota Camry as his personal car.

The evidence led in court showed that the plaintiff had sold the Toyota Prado for her benefit and so it is no longer in issue. The defendant now stated that the Toyota Hilux was now for his personal use; the Toyota Camry, which he had originally said was his personal car for use was now said to have been allocated to a company employee on a vehicle purchase scheme. The Volvo and VW Polo vehicles were still allocated to company employees. A Mazda Rustler was said to be a family car.

It was common cause from the evidence that all the motor vehicles, including those the plaintiff said the defendant could retain, were registered in the defendant's name and not in the company's name. The defendant said that this was because he had a contract to import vehicles with Kheng Keng Auto Company of Singapore. The vehicles were thus imported in his name. It is important to note that whilst he may have such a contract, I did not hear it argued that the contract forbade him from changing the vehicles into the names of the company once imported. A couple of years have passed since the vehicles were imported but the vehicles are still in the defendant's name. It is clear to me that the defendant was not being truthful on the ownership of the motor vehicles. Yes, the company may have paid for the purchase of the vehicles but they were meant for the defendant. This is why, for instance, the defendant was able to turn the farm vehicle, Toyota Hilux, for his personal use and the Toyota Camry, which had been for his use, to an employee. He was in a position to do as he pleased with the motor vehicles because they were in his name.

I am of the view that in order to do justice in the distribution of the assets of the spouses, the motor vehicles must be viewed as the defendant's. If the vehicles belonged to a third party, nothing would have stopped that party from claiming such ownership. Indeed, the defendant could easily have called those he said were the owners to come and testify. It is the defendant who contended that though the vehicles were registered in his name they were not his and so it was upon him to call the entity or persons he claimed owned the vehicles. I thus conclude that the plaintiff is entitled to a distribution of the vehicles as per her claim. Should the vehicles not be available at the time of this order, the defendant must provide similar vehicles or their value, as assessed by a motor vehicle dealer mutually agreed to by the parties or one appointed by the Registrar of the High Court….,.

1….,.

2….,.

3.1 The plaintiff is hereby awarded the following motor vehicles or their equivalent value as shall be assessed by a mutually agreed motor vehicle dealer/car sales agent, or, failing such agreement, one appointed by the Registrar of the High Court:-

(i) Toyota Prado (which she already took and disposed off).

(ii) Toyota Hilux truck.

(iii) Volvo motor vehicle.

(iv) Toyota Camry Motor vehicle.

3.2 Should the motor vehicles not be available at the time of this order, the defendant shall provide similar vehicles or their value as assessed in clause 3.1 above within a period of 30 days from the date of receipt of the assessment/valuation report.

The Nyatsime Stand

The appellant submitted that the court a quo erred when it found that he owns the Nyatsime Stand.

The respondent insisted that he does but could not produce any proof because she said the appellant left the matrimonial home with all the documents on their ownership of various Stands.

In arriving at her decision, the magistrate…, said;

“I thus afforded the defendant an opportunity to go and seek evidence of other properties that the parties had acquired and she came with a letter showing the Stand in Nyatsime is registered in plaintiff's name though plaintiff stated that the property was not his as he had failed to raise the money required for the stated property. I find plaintiff's explanation hard to comprehend as the relevant authorities would not give a real right to a person not entitled to same thus for the purposes of these proceedings I will consider the stipulated piece of land.”

The magistrate's reasoning is supported by what the appellant said on page 89 where he said the “Stand is just an allocation, I have not yet received title deeds or a right. I have only paid US$100= and I am yet to pay $2,200= to have a right to the Stand. The Nyatsime stands are not yet available that is why I am reluctant to finish payments.”

The appellant's own account proves that he was allocated the Nyatsime Stand for which he has made part payments. Once that was established, the magistrate was entitled to take that Stand into consideration and award it to the appellant as he did. She did not misdirect herself….,.

The house was purchased by the plaintiff long before their marriage, and, as such, would not normally be part of the matrimonial circumstances…,.

The remaining contentious issue pertained to whether or not the parties acquired any immovable property, and, if so, how such should be shared.

The plaintiff alleged that the parties never acquired any immovable property and so there is nothing to share.

The defendant, on the other hand, contended that the plaintiff acquired three immovable properties but he registered the properties in the names of third parties. These comprised Flat 315, Chinamano Heights, Harare; No. 6 Angela Close, Chisipite, Harare; and Stand 373 Uplands Township, Waterfalls, Harare.

The defendant contended that the flat was bought by her husband whilst they were in the United Kingdom. She was surprised when she came to live in the flat to find that it had been registered in the plaintiff's sister's name, a Mrs. Majaji. She nevertheless lived in the flat without paying any rentals. After some time the plaintiff told her they were to move to No. 6 Angela Close, Chisipite, Harare. She also believed this property had been bought by her husband whilst they were in the United Kingdom. In this regard, she had heard the plaintiff talking about it and had, in fact, seen the plaintiff with documents pertaining to the purchase of this property. As is common cause, this property was registered in the name of the plaintiff's mother. The defendant, again, said when they were about to move to this house she is the one who went and gave notice to the tenants who were in the house. To her knowledge, the plaintiff's mother could not have the money to purchase that property. She also disputed the plaintiff's assertion that his other siblings paid for the house in addition to what the mother had paid. In any event, the mother resided in the rural areas. It was not disputed that it is only the plaintiff who has resided in this house since they moved in and no other sibling.

In spite of having indicated that he would call oral evidence and tender documentary evidence on how this house was acquired, the plaintiff did not do so. It thus remained his unsubstantiated word that the house was bought by his mother from her inheritance and contributions from the plaintiff's siblings in the United Kingdom. I am inclined to believe the defendant's version that it is the plaintiff who bought this house and opted to register it in his mother's name for his own convenience.

The evidence on Stand 373, Midlands Township 3 of Uplands sub-division of A of Waterfalls, exposed the plaintiff as not credible at all.

The plaintiff alleged that the property was acquired by Python Security - a company of which he is not part of. This company was formed by his brother, Zivanai Emmanuel Katsande, and his sister, Angela Majaji (nee Katsande). In this regard, when the Agreement of Sale was entered into Zivanai was not present and so he asked the defendant to sign the document. In his summary of evidence he indicated he will tender documentary evidence to prove this point. Unfortunately, in his viva voce evidence such documentary evidence was not forthcoming despite the fact that up to the close of the plaintiff's case he was legally represented.

When confronted with the Agreement of Sale, under cross-examination, the plaintiff could not explain away the fact that the Agreement of Sale cites the defendant as the purchaser represented by Zivanai Emmanuel Katsande. Thus, according to this agreement, Zivanayi was present and not as the plaintiff had stated that Zivanai was not present hence the defendant signed the document. The company which the plaintiff said was in fact the purchaser is no where stated in that Agreement of Sale. If the property was being bought by the company surely such should have been stated. The plaintiff could not explain why Zivanai Katsande, as owner of Python Security Company, could make the mistake of endorsing the defendant as purchaser of the property when the true purchaser was his company. As it is, even the seller, Mrs Muyengwa, professed ignorance of Python Security being the purchaser. She categorically stated in her evidence that the purchaser was the defendant as is amply stated on the document.

The plaintiff referred to a Deed of Cession as proof that the property belonged to the company.

The circumstance under which that Deed of Cession was signed by the defendant was clearly explained by the defendant in her evidence. She alluded to the fact of being forced by the plaintiff to sign the document. It is apparent that the plaintiff knew that the property had been bought in the defendant's name hence the need for the defendant to cede her rights and interest in the property to Python Security Company.

The Deed of Cession was only entered into on the 28^th February 2005 whereas the Agreement of Sale had been entered into on 19^th November 2002. If at all a mistake had been made in reflecting the defendant as purchaser instead of Python Security, one would expect such a mistake to have been corrected much earlier. As the plaintiff conceded, under cross examination, the so-called Deed of Cession is a fake document not reflecting the truth on the purchaser of the property. What is apparent to me is that the plaintiff would use any means to deny the defendant a share in the immovable property.

As with evidence on other properties, the plaintiff had intimated that Zivanai Emmanuel Katsande would be called to testify on the purchase of this property but he was never called. So it remained the plaintiff's story against the defendant and the seller's story. I am again inclined to believe the defendant's version as she was consistent and steadfast in her evidence.

From the tenure of the evidence by the parties I got the distinct impression that it is true that the plaintiff had been very secretive about his transactions and it is probable he did not want his wife to know about his acquisitions. Unfortunately for him he could not successfully hide away the Uplands property.

I am of the view that Stand 373, Midlands Township 3 of Uplands sub-division of A of Waterfalls be awarded to the defendant. The plaintiff conceded as much on this point under cross examination….,.

1….,.

2….,.

3….,.

4….,.

5….,.

6. Immovable property

Defendant is hereby awarded Stand 373 Midlands Township 3 of Uplands sub-division of A of Waterfalls as her sole and exclusive property. The plaintiff shall bear the necessary costs of transfer of the property from the seller to the defendant within 7 days from date of demand.

The plaintiff alleged that during the subsistence of the marriage the parties acquired..., one immovable property, namely, Stand No.7027 Shana Street, Chitepo Extension, Marondera....,.

The defendant indicated, in her plea, that the parties acquired more than one immovable property during the subsistence of the marriage. Other properties acquired but which the plaintiff left out included -

(a) Stand No.323 Nyazema, Macheke;

(b) Stand No.16 Park Road, Macheke; and

(c) House No.88 Tatenda Street, Macheke....,.

In his replication, the plaintiff, inter alia, insisted that the parties did not acquire any other immovable properties during the subsistence of the marriage, or at any other time, besides Stand No.7027 Shana Street, Chitepo Extension, Marondera.

Thus, as at the close of pleadings the plaintiff was adamant that no other immovable property was acquired whilst the defendant was insistent that other immovable properties were acquired.

As confirmed in evidence, at the pre-trial conference, the defendant was tasked with bringing forth evidence of the existence of other immovable properties. In this regard, a letter was obtained from Murewa Rural District Council confirming the existence of two other immovable properties registered in the plaintiff's name….,.

It was…, common cause that Stand numbers 323 Nyazema, Macheke and 16 Park Road, Macheke are registered in the plaintiff's name….,.

The plaintiff's evidence on the acquisition of the properties is however contradictory. Firstly, in the summons and declaration he categorically stated that no other immovable property was acquired during the subsistence of the marriage, or at any time after separation, apart from Stand 7027 Shana Street, Chitepo Extension, Marondera.

The plaintiff only conceded to the existence of some of the properties after the defendant had obtained a letter from Murewa Rural District Council confirming that two of the Stands were registered in the plaintiff's names....,.

The plaintiff argued that the defendant should not get any share in the following immovable properties:

(i) Stand 323 Nyazema Township, Macheke which he said he acquired before marriage in 1999 as a business Stand. He developed that Stand in late 2005 to 2006 together with a business partner, Joshua Mhlanga. At the time this Stand was developed they had separated with the defendant and so the defendant had no contribution.

(ii) He and his business partner also acquired and developed Stand number 16 Park Road, Springfield, Macheke from their business proceeds.

Secondly, in response to the defendant's allegation that she has been excluded from the family company, Wiseluck Enterprises (Pvt) Ltd, which company traded as Zvakanaka 1 and Zvakanaka 2, on premises bought by the business, the plaintiff argued that that company ceased to exist in 2004 when the parties had marital problems. He stated, in his replication, that Zvakanaka 1 and Zvakanaka 2 are in fact owned by the plaintiff and three other directors, to the exclusion of the defendant, through a company incorporated in 2006 known as Checkcast Enterprises (Private) Ltd. He said this new company took over Wiseluck Enterprises operations and the defendant has no stake in it.

It is pertinent to note that in his viva voce evidence the plaintiff contradicted himself further when he now said that the businesses were in fact operated by himself and one Joshua Mhlanga. These two were the owners of Checkcast Enterprises (Pvt) Ltd; it was no longer the plaintiff and three other directors.

I am of the view that the plaintiff was simply not being truthful. The properties, namely, Stand number 323 Nyazema Township, Macheke and Stand number16 Park Road, Macheke, were acquired by the plaintiff.

This is also confirmed by exhibit 26 which is a letter from Murewa Rural District Council. Mr. James Muza, of Murewa Rural District Council, gave evidence and confirmed that according to Council records the two Stands are registered in the name of the plaintiff.

In a bid to distance the properties from distribution, the plaintiff further testified that the Stands were in fact sold and so are no longer available for distribution. In that bid, he tendered an Agreement of Sale between himself, as seller, and Daniel Masaiti and Chipiwa Masaiti as purchasers in respect of Stand Number 16 Park Road, Macheke dated 10^th October 2010 (exhibit 2). He also tendered a Memorandum of Agreement of Sale between himself, as seller, and Judith Takaringofa, as purchaser, in respect of Stand 323 Nyazema Township, Macheke dated 31^st January 2011 (exhibit 4).

Though the agreements of sale were intended to show that the properties in question had been disposed, the agreements also served to confirm that the properties belonged to the plaintiff and not to Checkcast Enterprises (Pvt) Ltd. This further confirmed that the plaintiff was not being truthful from inception when he denied ever acquiring any other property during the subsistence of the marriage.

The defendant's evidence on the acquisition and development of the Stands was to the effect that as a married couple they were allocated Stand 7027 Shana Street, Chitepo Extension, Marondera. It was an undeveloped Stand. In the year 2000, which was soon after the allocation, they started developing the Stand. In that same year, the plaintiff enrolled at Kushinga Phikhelela Agriculture College. Whilst the plaintiff was at college she would go and assist him in his agricultural project at the college by tending the crops he planted and the pigs he was rearing. She was managing the family business in his absence. She also built a house at Stand 7027 from proceeds from the family business.

The defendant indicated that Stands 323 Nyazema and 16 Park Road, Macheke were acquired and developed using proceeds from the family business. As far as she was concerned the Stands were developed when the couple was still together and with proceeds from the family business. She further narrated her role in the development and operation of the family business. She categorically denied that they separated in 2005, and, instead, contended they separated in 2010.

This aspect is, in my view, not pivotal in as far as it is accepted that assets acquired during separation are subject to distribution together with assets acquired before separation.

From the evidence adduced, it is clear that Stands 323 Nyazema and 16 Park Road, Macheke were acquired during the subsistence of the marriage. These properties were acquired from proceeds from the family business which the defendant participated in.

Regarding House Number 88 Tatenda Street, Macheke, the plaintiff argued that it was not his property hence it should not be considered in the distribution....,.

As regards House Number 88 Tatenda Street and House Number 596 Springfield, Macheke no credible evidence was adduced to confirm that they were acquired by the plaintiff.

The defendant's evidence was to the effect that they acquired 88 Tatenda Street in 2005.

Unfortunately, she could neither produce evidence of such purchase nor call witnesses, such as the seller, to confirm that indeed the property was bought by the couple.

As for House Number 596 Springfield, the defendant had virtually nothing to say on its acquisition.

In the absence of credible evidence that these two immovable properties were acquired by the parties it cannot be held that they are subject to distribution.

Among their assets, there generated disputes as to whether or not they are matrimonial assets.

The Domboshawa House

It is common cause that the defendant left the matrimonial home in October 2002. It is also common cause that the plaintiff was, at that time, building a house in Domboshawa, the couple's rural home. The plaintiff said when the defendant left the house was at foundation level. The defendant says it was at roof level.

It is trite that property which was in existence at the time the defendant left the matrimonial home is matrimonial property.

The fact that the house was completed after she had left can merely reduce her share of the value of the completed house. This is because a spouse cannot have a share in what was acquired independently by the other spouse after she or he had left. This position is supported by the Supreme Court's decisions in the cases of Daniel Mujuru v Daphine Mujuru SC04-00 and Ruth Pasipanodya v Kosmas Mushoriwa SC146-98…,.

The defendant, however, alleges that after she had left, the plaintiff used proceeds from their matrimonial property to finance the building of the Domboshawa house. In particular, she alleged he had no source of income other than that from Wonder Valley (Pvt) Ltd, a company in which she is a 25% shareholder….,.

The Mazda 626 and No.12 Lomagundi Road

At the end of the plaintiff's case, the defendant applied to amend her counter claim by including a claim for a share in a Mazda 626 and No.12 Lomagundi Road which were acquired by the plaintiff at the end of 2003 and 2004 respectively. The defendant had left the matrimonial home on the 7^th of October 2002.

It is conceded that the Mazda 626 and No.12 Lomagundi Road were acquired by the plaintiff after the defendant had left the matrimonial home.

Counsel for the defendant's argument was that the plaintiff had no other source of income besides their company's farming operations at Wonder Valley Farm, so the two were bought from proceeds of the farming operations and are therefore matrimonial property.

The law on whether or not property acquired after separation forms part of a matrimonial estate is clear.

In the case of Ruth Pasipanodya v Kosmas Mushoriwa SC146-98…, KORSAH AJA said:-

“It would be setting a dangerous precedent if a spouse, several years after the breakdown of the marriage, were allowed to claim a half share of property acquired by the other spouse after such breakdown and which was not in existence during the period of their co-habitation.”…,.

The parties had separated before the purchase of a house they were renting. After the appellant had left, the respondent, on his own, bought the house. The appellant, after summons had been issued, made an unsolicited payment for the house to the Building Society which had funded the respondent in purchasing the house. The court found the house was not matrimonial property and that the un-solicited contribution did not make it part of the couple's matrimonial property. The appellant was refunded the money she had deposited into the Building Society's Account. The house was held to belong to the respondent.

In the present case, this could have applied to the Mazda 626 and No.12 Lomagundi Road if there was no allegation that these assets were bought using funds from Wonder Valley (Pvt) Ltd's operations as the plaintiff has no other source of income….,.

In the case of Daniel Mujuru v Daphine Mujuru SC4/2000…, McNALLY JA said:-

“But the property in Dzivaresekwa was not dealt with in the order because the learned judge was satisfied that it did not fall into the matrimonial estate. It was her separate property acquired with financial help from her mother at a time when she had fled the matrimonial house and had nowhere to house her children. The husband, in fact, did not even know about this property until shortly before the court proceedings began…,.

I see no reason to disbelieve her on these matters. The learned judge found her to be credible. Mr Kawonde sought to suggest, on no basis at all except hypothesis, that she might have saved up enough from the allowance her husband gave her to accumulate the $6,500= which was the initial payment of the Dzivaresekwa property. I must confess, I find this submission fanciful in the extreme…,.”

This case, again, puts beyond doubt that property acquired by a spouse after the breakdown of a marriage is not matrimonial property.

The issue in this case is what happens if proceeds of the matrimonial estate are used to buy property after the other spouse has left. Does property bought using such proceeds fall into the matrimonial estate?

In my view, it should, and I will illustrate from the following example.

Assuming a couple owns 100 head of cattle on separation and the departing spouse leaves the herd with the remaining spouse. It is clear that he or she is entitled to a share of the 100 herd of cattle. In fact, he or she will also be entitled to a share of calves born to the herd which belong to the undivided matrimonial estate. If the spouse in charge of the cattle were to sell some of the claves and buy a house; the house would be matrimonial property.

The reason why the calves and proceeds of their sale are matrimonial property is because they can be traced to have come directly from what is clearly matrimonial property. In cases where the property in issue cannot be directly traced and be linked to matrimonial property such a finding is not possible.

A further example will demonstrate this.

Assuming the 100 herd of cattle was left in circumstances where it was known which cow, ox, or bull belonged to which spouse it can, in such circumstances, be proved which calf belong to which spouse. Evidence would have to be led as to which cow gave birth to the calf before the spouse who departed can claim it. If the spouse in charge of the cattle sells calves which are his, the other spouse cannot claim what he bought with such proceeds as the proceeds cannot be traced back to their matrimonial property.

In the present case, the facts are closer to the first example.

Counsel for the plaintiff submitted that as the defendant was alleging that her share was used she should have led evidence to prove it.

The issue is not simply that of proving that her share was used. In my view, the defendant's allegation is supported by the law. A company is a separate legal persona. It therefore enjoys its own separate legal existence apart from its shareholders. It also has legal ways of distributing dividends to its shareholders.

In the present case, Mr Gonye did not allege that he was paid a dividend or salary by the company and that he used such monies to buy the Mazda 626 and No.12 Lomagundi Road.

It is common cause that he had no other source of income besides that from Wonder Valley (Private) Ltd. In the absence of proof that he used money, other than that from Wonder Valley (Pvt) Ltd's undeclared dividends, I am satisfied that the defendant has proved her claim to the Mazda 626 and No.12 Lomagundi Road as they were bought with proceeds from Wonder Valley (Private) Limited - a company in which she is a shareholder.

It must be noted that there are four (4) shareholders each holding 25%. Therefore, only 50% of the value of the Mazda 626 and No.12 Lomagundi Road belongs to the matrimonial estate. The other 50% belongs to Ronald and Donald who were not involved in these proceedings. There is no reason why the property should not be distributed in terms of the parties shareholding in the company.

In the result, I would award the defendant 25% of the value of the Mazda 626 and No.12 Lomagundi Road.

Coming back to the Domboshawa house, the evidence led is that part of the house was built after the defendant had left. If the plaintiff had means distinguishable from that of the matrimonial estate the defendant would not have been entitled to a share of the whole house as she would not have contributed to what was built after she had left.

As to the extent of development at the time she left I will accept the plaintiff's version to the defendant's. This is because I found the plaintiff to be an honest witness. He was prepared to concede details against his interest if that was the truth. He admitted his being challenged by his wife about the alleged affair with Eunice. He admitted that they had to go for an AIDS test. He struck me as a man who does not avoid the truth.

On the other hand, though the defendant was generally truthful, she was not as forthright as the plaintiff.

On this aspect, the defendant was relying on what she heard as she never set foot on the Domboshawa house. The plaintiff was in charge of the construction and was therefore better placed to know the stage of development at the time his wife left the matrimonial home.

I have already found that Mr Gonye used proceeds of Wonder Valley (Private) Ltd as he had no other source of income according to the common cause evidence. When he left employment he ploughed all they had into Wonder Valley Farm. He is not employed elsewhere. Therefore, his only source of income is Wonder Valley Farm which is operated by the company, Wonder Valley (Pvt) Ltd. All proceeds of the farming operations accrue to Wonder Valley (Pvt) Ltd. They can only be accessed in terms of Company Law.

Mr Gonye did not explain how he accessed the money he used to build the house from Wonder Valley (Pvt) Ltd. There is, therefore, merit in the defendant's allegation that he used company money to build the house.

Therefore, the defendant's evidence that he used company funds to build the house is sufficient to bring the whole Domboshawa house into the matrimonial estate. The defendant is therefore entitled to a share of the whole house even though part of it was built after she had left.

Even if Wonder Valley Farm was not operated by a company I would have arrived at the same conclusion but with different percentages for the parties. This would have been based on the use by the plaintiff of the proceeds of the undivided matrimonial estate.

Before the defendant left they were, by virtue of their being married to each other, joint owners of Wonder Valley Farm - and they still are. Mr Gonye has no other means of raising income besides farming on the matrimonial farm, using matrimonial assets. What he earned would have been proceeds of an undivided matrimonial estate. He would have been awarded a higher percentage because of his higher contribution in the farming operations when the defendant's contribution would have been diminished by her absence from the farm and her not participating in the farming operations.

I must now consider what share of the Domboshawa house the defendant is entitled to.

Her contributions to the matrimonial estate was mainly indirect while the plaintiff's was direct. She looked after the house, children, and the plaintiff. It is common cause that the plaintiff's hard work landed the couple on the fortune they are now in court to share.

The defendant described the plaintiff as a very hardworking man. He got to the extent of personally ploughing fields for a fee to raise income to buy Wonder Valley Farm. On her part, the defendant bore him children, two sons and two daughters, who were, through their joint effort, raised to be prosperous adults in their own right.

In spite of all this, the Domboshawa house has to be shared on the basis that the defendant is a shareholder of Wonder Valley (Pvt) Ltd whose proceeds were used to build the house. She is a 25% shareholder and he is a 25% shareholder, therefore, only 50% of the house falls into the matrimonial estate. The other 50% belongs to shareholders who are not before me.

There is no reason why each party should not be awarded what is due to him or her in terms of the company's shareholding structure. The defendant is therefore awarded 25% of the value of the Domboshawa house….,.

The Farm, Farm Equipment and Farm Movables

The plaintiff told the court that the farm, equipment and cattle now belong to the company.

He produced a balance sheet prepared for presentation to a Bank to which they were applying for a loan as proof that the farm belongs to the company. Only one such document was produced.

In evidence, the plaintiff, being a man who does not avoid the truth, conceded that he could not say whether or not the farm was company property by virtue of exhibit 6. He conceded that according to the title deeds he is still the owner of the farm. He could not produce proof showing that the farm was bought by the company. He conceded that he was not paid by the company for the farm. There is no company resolution in which the sale of the farm is dealt with.

The defendant said the company was formed so that they could borrow money and protect the farm and assets against execution in the case of failure to repay loans or death.

I found the defendant's explanation consistent with the truth and the probabilities raised by comparing the value or authenticity of what is stated in the title deeds and a balance sheet prepared for purposes of obtaining a loan. I find that the title deeds contain the correct position on the ownership of the farm. The fact that the assets are also said to be company property, when they have not been purchased by the company from the plaintiff, leads me to the conclusion that they too still belong to the plaintiff and the defendant.

They are matrimonial property.

I have already found that the defendant's contribution was mainly indirect in respect of all movable assets. It was also indirect in respect of the farm. As regards the farm, the plaintiff said she had to be persuaded to agree to go to the farm and that while at the farm she refused to do the farm books. She said she remained in Harare pending their putting the children in boarding school. On refusing to do the books she said she could not do them.

I found her version unreliable as she should have attempted to do the books to the extent she could instead of taking the stance she did. After considering that the plaintiff was the direct contributor and hard worker and that the defendant was initially reluctant as regards the farm and that she only contributed indirectly in its purchase and that of the farm implements I would grant the plaintiff 70% of the value of the farm, farm movables and the farm equipment and the defendant 30%.

Valuation

Both parties have had the properties in dispute, except the Mazda 626 and No.12 Lomagundi Road, valued. The plaintiff's valuation is earlier than that of the defendant. Neither party was able to challenge the valuation of the other. In addressing the court, counsels for both parties agreed that in respect of each property the value to be relied on be the average obtained by adding the plaintiff and defendant's valuation and dividing that figure by two. I am satisfied that this is a satisfactory way of arriving at the value of the matrimonial estate….,.

1….,.

2….,.

3. That the defendant be awarded:

(a) 25% of the value of the Mazda 626 and No.12 Lomagundi Road which shall be valued by a valuer from the Master's Office's list of valuers.

(b) That defendant be awarded 25% of the value of the Domboshava House.

4. That the farm (Wonder Valley Farm), the farm equipment, farm movables including the herd of cattle, be shared at the rate of 70% for the plaintiff and 30% for the defendant.

5…,.

6. That the value of the assets to be shared under 3(b) and 4…, shall be obtained by adding the plaintiff's and defendant's valuations and dividing that figure by two.

7….,.

8. That the plaintiff is granted the option to buy out the defendant in respect of orders 3 and 4 by not later than the 30^th July 2006.

9. That the plaintiff shall pay the defendant's costs.

The plaintiff called a number of witnesses in support of her case. Let me deal with their evidence.

GEORGE NYASHANU (NYASHANU)

George Nyashanu is the Chief Executive Officer of TN Bank and a family friend of both the plaintiff and the defendant whom he said he got to know them when he bought a house from them in Malbereign, Harare and their background as Accountants in Ernest and Young. Initially, George Nyashanu said both the plaintiff and the defendant invited him to be a non-executive board member of their accounting firm. Later, he was appointed a non-executive director of Stircrazy Investments (Pvt) Ltd and some related companies he could not easily recall.

George Nyashanu said he never sat in any meetings and resigned in 2011 because of his position in the Bank.

As regards the material issue, George Nyashanu denied that he was ever a shareholder of any of the companies - including Stircrazy Investments (Pvt) Ltd. He said the defendant made him such an offer but he never took it up. He categorically denied owning 20% shares in Stir Crazy Investments (Pvt) Ltd as was put to the plaintiff by counsel for the defendant. George Nyashanu said he was a non-executive director of The Right Investments (Pvt) Ltd, which owns Belgravia House, and Opium Investments (Pvt) Ltd, which owns 13 Bates Street, Milton Park, but was never a shareholder in these companies.

Under cross-examination, George Nyashanu said he always held the view that Stir Crazy Investments (Pvt) Ltd, and related companies, were family run businesses by the plaintiff and the defendant and he was not aware of any shareholding agreements for Stir-Crazy Investments. He said he did not take shareholding in Stir Crazy Investments as he had no funds and also due to his position in the Bank. He said he knew one Harvey as responsible for finances at Stir Crazy Investments and one Pillay as the Company Secretary for Stir Crazy Investments. Before he resigned, George Nyashanu said he only attended one management meeting for Stir Crazy Investments dealing with poor cash flow and servicing of Kingdom Bank loan.

George Nyashanu gave his evidence well and his evidence was not put into issue.

In fact, if the defendant had been candid with the court from the beginning there would have been no need to call George Nyashanu. The defendant had alleged (as per the cross examination of the plaintiff) that George Nyashanu was a shareholder in Stircrazy Investments (Pvt) Ltd only to somersault later in his evidence alleging that one Bret Lang and his sister, Debra Banks, are the shareholders.

MEDELINE VAN GRUENEN (MEDELINE)

Medeline told the court that she was employed by the plaintiff and the defendant in 2008 to work as a Bookkeeper at Stir Crazy Investments (Pvt) Ltd, a company she said is owned by the plaintiff and the defendant. She said the defendant, using funds from Stircrazy Investments, bought a flat, No.6 Rosefriars in Avondale for her use and promised to pass transfer to her if she served Stir Crazy Investments for a period of between 5 -15 years.

This contradicts the defendant's evidence that he simply acted on behalf of Bret Lang in acquiring No. 6 Rosefriars, Avondale.

It would be improbable for the defendant to make such an offer if he had no interest in the property. In fact, Medeline Van Gruenen said up to the time she left employment, in January 2012, the said flat, bought with funds from Stir-crazy Investments, was still registered in the name of the seller, one Mr Wood, as the defendant did not bother to change ownership.

Again, one wonders why the defendant would buy the flat (even or behalf of Bret Lang) and fail to change ownership.

Medeline also gave her version on how Incvat Enterprises was set up by the defendant who made his messenger, Marenzwa, and his son, Murray, the Directors of Incvat Enterprises. On how Incvat Enterprises was set up she said stock from Stircrazy Investments was simply transferred to Incvat Enterprises. Medeline said while Incvat Enterprises, on paper, is a stand-alone company, it is just Stir Crazy Investments by another name and that the defendant manages it.

She confirmed that the defendant used his companies in South Africa to source goods for his companies in Zimbabwe and that the Zimbabwean companies would pay. As the practice, Medeline said all salaries were paid in cash and employee's payslips would only reflect bonuses and loan recovery only.

The evidence of Medeline Van Gruenen was not materially challenged. I find no reason not to accept it.

DESMOND THOMPSON (DESMOND)

Desmond told the court that he was employed by the plaintiff and the defendant as Financial Manager for their companies between 2005 to 2008 - a period of three (3) years. He said the companies included Patchbox (Pvt) Ltd, Stircrazy Investments (Pvt) Ltd and other property-owning companies and that there was no holding company. He confirmed that he compiled a schedule of assets of the plaintiff and the defendant as per exhibit 2.4…, which are in Zimbabwe and South Africa. Desmond insisted that all the assets listed therein are owned by the plaintiff and the defendant and that the companies listed therein are owned by the plaintiff and the defendant. He denied that one Bret Lang owned shares in Stir Crazy Investments (Pvt) Ltd.

Under cross-examination, Desmond Thompson said he also acted as the Company Secretary, and, later, handed over that responsibility to one Pillay. He conceded that he never saw any evidence of share allotment or share certificates for the various companies and believed the plaintiff and the defendant are the shareholders. He said the defendant, for some reason, did not keep company documents up to date although the defendant managed the companies.

The testimony of Desmond Thompson was, again, not seriously challenged. As the Finance Manager and acting Company Secretary he had a useful insight into how these companies were managed.

SANDRA DOMBO ZHUWAWO (SANDRA)

She is a manager with Kingdom Bank in Harare responsible for loans. She was called to shed more light on the loan advanced to Stircrazy Investments (Pvt) Ltd of about US$1 million by Kingdom Bank. She said for any amount dis-imbursed as a loan the bank requires security which is one and half times more than the loan amount. She confirmed advancing a loan of US$1 million to Stir-crazy Investments in 2010 which was secured by a number of properties, being No.6 Northwood Rise, Mt Pleasant; Belgravia House and others. She further told the court that no payments have been made on this loan and she has since referred it to their Credit Department.

She also confirmed that the plaintiff approached the Bank protesting that her signature was forged to facilitate the use of the matrimonial home, No.6 Northwood Rise, Mt Pleasant as security for the loan. All in all Sandra said that the special power of attorney to pass mortgage bond over the Mt Pleasant property, No.6 Northwood Rise, Mt Pleasant was, on the face of it, signed by both the plaintiff and the defendant despite the plaintiff's protestations.

The evidence of Sandra Dombo Zhuwawo confirms that the following properties, No.6 Northwood Rise, Mt Pleasant, Belgravia House, and No.13 Bates Street, Milton Park, Harare were used to secure the loan from Kingdom Bank hence these properties are currently encumbered.

While the plaintiff gave her evidence very well she has not, in my view, managed to answer the critical questions to deal with the shareholding structure of the various companies I have alluded to at length.

Section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13] provides as follows:-

“7 Division of assets and maintenance orders

(i) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to –

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”…,.

It is clear to my mind that before the court can grant an order with regard to the division, distribution or apportionment of the so-called matrimonial estate it should be satisfied, on the evidence given, that the estate consists of the assets of the parties.

This is a critical issue which I believe the parties in casu failed to adequately deal with in their pleadings, and, subsequently, in their evidence especially with regards to the plaintiff on whose shoulders the burden of proof lies….,.

This leads me to No.6 Rose Friars, Avondale.

In his counter-claim, the defendant stated that to the best of his knowledge No.6 Rosefriars, Avondale is not part of the matrimonial estate and that he is not connected to it in any way. It was only later during the trial that exhibit 3 was produced and the defendant alleged the property is owned by Bret Lang. There is no explanation as to why the defendant did not disclose this fact which should have been known to him at the time of filing the defendant's plea and counterclaim. Medeline Van Gruenen's evidence, which I have no reason not to accept, is very clear on how the defendant played a key role in the acquisition of No. 6 Rosefriars, Avondale and clearly shows that the defendant has not been candid with the court but keen to pursue his scheme of obfuscation.

I am unable to read much into the fact that the Agreement of Sale, exhibit 3, refers to an un-named third party moreso when the reference to that third party was only endorsed, clearly belatedly, by the defendant, in a different shade of ink different from the rest of the agreement. Other than the defendant's word that No.6 Rosefriars is owned by Bret Lang there is no evidence to support that. There is no reason as to why Bret Lang has not taken ownership of the flat or place any evidence to show that he owns this flat. The inference which I should rightly make is that No.6 Rosefriers is an asset of the parties and should be distributed.

I would award it to the plaintiff and order the defendant to take all steps to ensure the property is transferred to the plaintiff within a specified period. The plaintiff, in this instance, should meet costs of transfer. This decision is informed by the findings I shall make in respect of the other claims or properties.

In respect of the claim of a cash amount of US$100,000=, as per paragraph 10.6 of the plaintiff's declaration, no further particulars are given by the plaintiff.

Counsel for the plaintiff submitted that I should award this claim on the basis that the defendant has not disputed the claim or referred to it is his claim in reconvention. According to counsel for the plaintiff this amounts to an admission and reliance was placed upon the case of DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S).

I am not persuaded by this submission.

While it is correct that the defendant did not refer to this claim in his claim in reconvention it is not correct that he did not dispute it in his plea. Ad per paragraph 6 of the defendant's plea the defendant stated as follows:

“6 Ad paragraphs 9-10 Denied – the plaintiff is put to the strict proof of her claim otherwise the defendant refers to the claim in reconvention.”

As per the joint pre-trial conference minute, the claim of US$100,000= was not considered as one of the issues which was either referred to trial or upon which an admission was sought or/and made. The plaintiff, in her very detailed testimony, did not explain the basis of the claim of cash payment of US$100,000=. I am therefore, on that basis, inclined not to grant the claim of a cash amount in the sum of US$100,000=….,.

The plaintiff seeks to be awarded a motor vehicle, namely, Nissan Navara Registration No. ABD 6847, which she is currently driving and that the defendant be ordered to procure its registration into the plaintiff's name as her exclusive property at the defendant's cost.

In his plea, the defendant, as per paragraph 6(vi) of the claim in reconvention, stated that the said motor vehicle is owned by Stir Crazy Investments (Pvt) Ltd, and, therefore, is not an asset of the parties. However, during his evidence, the defendant was now singing a different tune. He said he is not able to tell the motor vehicles owned by Stircrazy Investments or their number. He did not comment on the specific allegation that this motor vehicle has been in the plaintiff's possession since their separation to date.

As already said, the defendant was not keen to place before the court the relevant evidence to enable this court to make an informed decision. It is clear that the defendant misled the court as regards this motor vehicle and I should not reward him for that but to draw an adverse inference.

The plaintiff gave a very long list of the motor vehicles she believed form part of the matrimonial estate. The defendant gave none. I would therefore award the Nissan Navara to the plaintiff as this is the motor vehicle she has been using since the separation of the parties.

I now turn, lastly, to the following immovable properties;

(a) No.94 Matumi Sands, Lonehill, South Africa.

(b) No.112 Matumi Sands, Lonehill, South Africa.

(c) Belgravia House.

The abovementioned immovable properties are not registered in the names of the plaintiff or the defendant. The two properties in South Africa, No.94 Matumi and 112 Matumi, including a third one, No. 182 Shingara are owned by South African companies with the same names. Belgravia House, in Zimbabwe, is owned by a company called The Right Investments (Pvt) Ltd.

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) Incvat Enterprises.

(v) Stircrazy Investments (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 Investments (Pvt) Ltd was placed under provisional liquidation and is currently under liquidation.

The test to be applied in granting absolution from the instance is settled in our jurisdiction. See United Air Charters (Pvt) Ltd v Jarman 1994 (2) 341 (S)…,.; Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.

The test is simply whether there is evidence adduced upon which this court, directing its mind reasonably to such evidence, could find that the properties in issue are assets of the parties. It would be unjust, in my view, to dismiss the plaintiff's claim even at this stage. As I have said, I have no doubt that the defendant has interests in all these companies, whether trading companies or property-owning companies. It is the extent of his interests or shareholding which is unclear.

In making an order in respect of the distribution of the assets, in terms of section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13], I am enjoined to take into account the factors outlined in section 7(4)(a) to (g) of the Matrimonial Causes Act.

I am unable to meaningfully apply these factors without establishing the full extent of the defendant's interests in these companies. While I have no difficulty in finding that the defendant has not been a useful and truthful witness and therefore dismiss his evidence, the plaintiff has not provided the court with proof of shareholding in these companies which could be the Memoranda and Articles of Association bearing the names of the subscribers and the designated shares they are taking up, Shareholders Agreements or share certificates (as proof of title). These are important facts which cannot be wished away by simply alleging that the defendant is an untruthful witness.

It is trite that a company duly incorporated is a distinct legal entity endowed with its own legal personality. See Salomon v Salomon & Co Ltd [1897] AC 22. This means that both the property-owning companies and the trading companies enjoy distinct legal persona from the plaintiff and the defendant. This court, in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13], can only distribute or apportion each party's interests or shares in the said companies.

While there are instances in which the court may pierce or uplift the corporate veil, see Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H)…,.; Van Niekerk v Van Niekerk & Ors 1999 (1) ZLR 421 (S)…,; Deputy Sheriff v Trinpac Investments (Pvt) Ltd & Anor 2011 (1) ZLR 548 (H)…, I do not believe that a case has been made for such an approach.

As already said, it is a fact that Stir Crazy Investments (Pvt) Ltd has been placed in final liquidation. I am unable to ignore that fact which has a bearing on the value to be placed on this company. Absolution from the instance would enable the plaintiff, if she so desires, to deal with the defendant's interests in Stircrazy Investments, and other related companies, after a full public inquiry. The plaintiff would also be in position to cite, properly, on the relevant companies. 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.

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] allows the court to consider such matters after divorce has been granted and other issues dealt with. Since evidence had been led in respect of these companies I cannot leave the matter hanging but to grant absolution from the instance.

Lastly, while the defendant, in his evidence, made reference to the plaintiff's tuckshop business I do not believe that I should be detained by this issue as it is not part of the pleadings. The tuckshop business therefore remains the plaintiff's sole and exclusive property….,.

1….,.

2….,.

3….,.

4….,.

5….,.

6….,.

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….,.

9….,.

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, sign all the relevant documents to effect such transfer, failure of which the Sheriff is authorised to sign all the relevant documents to effect such transfer.

11. The plaintiff's claim for cash in the sum of US$100,000= be and is hereby dismissed.