MUSAKWA
J: The plaintiff instituted action for a decree of divorce and other ancillary
relief. The defendant in turn counter-claimed for a decree of divorce and other
ancillary relief.
The
parties married in 1981 and four children were born of the marriage and they
are all adults. The parties have been on separation since 1987 when the
plaintiff left the matrimonial home. The defendant has been living in the United Kingdom
since 1999. All the children are residing in the United Kingdom as well.
It
is agreed between the parties that the marriage relationship has irretrievably
broken down. In contention is what constitutes the matrimonial estate and how
it should be divided as well as a counter-claim for arrear maintenance in
respect of two of the children of the marriage. From the evidence led the
estate comprises lot 1 of Lot 75 Chisipite Township of Chisipite also known as
number 9 Harare Drive, Chisipite, stand number 3471 Warren Park Township of
stand 2372 Warren Park Township of Warren Park, stand number 11817(980g) also
known as number 16 Maruta Crescent, Beatrice Road Cottages, Mbare, Lot 3 of 99
Block C of Hatfield Estate and two business entities, Crovis Agencies (Private)
Limited and Selfast Industries (Private) Limited.
Despite having initially
claimed to be awarded number 9 Harare
Drive, Chisipite as his sole property the
plaintiff later conceded and offered his half share to the defendant. He also
confirmed that his half shares in stand number 3471 Warren Park and number 16
Maruta Crescent, Beatrice Road Cottages, Mbare be awarded to the defendant. In
view of the concession by plaintiff it has to be determined whether the overall
result would place the parties in the same position they would have been had a
normal marriage relationship subsisted. In respect of the matrimonial estate
what has to be determined is whether defendant should have shares in Crovis
Agencies (Private) Limited and Selfast Industries (Private) Limited.
Before I delve into the issues there is one aspect that needs to be
disposed of. At the commencement of the proceedings counsel for defendant
sought an amendment of the counter-claim. The effect of the amendment was that
in distributing the matrimonial estate the court should take into account
plaintiff's conduct in deserting the family. In other words, it sought to
introduce the issue of gross marital misconduct perpetrated by plaintiff and
that he should be penalized in the distribution of the matrimonial estate. This
was opposed by counsel for plaintiff as being out of time. It is noted that
during the pre-trial conference stage it was directed that defendant was to
file the amendment by 31st October, 2008. The notice of amendment
was only filed on 3rd June, 2009 and no condonation was sought. I
therefore hold that the purported amendment was filed out of time. In
anticipation of this issue evidence was also led on the gross marital
misconduct perpetrated by plaintiff and will accordingly be disregarded. In any
event the parties had agreed that the marriage had irretrievably broken down.
S 7 of the Matrimonial Causes Act [Chapter
5:13] provides that-
(1)
Subject to this section, in granting a decree of divorce, judicial separation
or nullity of marriage, or at any
time
thereafter, an appropriate court may make an order with regard to-
(a)
the division, apportionment or distribution of the assets of the spouses,
including an order that any asset be
transferred
from one spouse to the other;
(b)
the payment of maintenance, whether by way of a lump sum or by way of
periodical payments, in favour of
one
or other of the spouses or of any child of the marriage.
(2)
An order made in terms of subsection (1) may contain such consequential and
supplementary provisions as
the
appropriate court thinks necessary or expedient for the purpose of giving
effect to the order or for the purpose of
securing
that the order operates fairly as between the spouses and may in particular,
but without prejudice to the
generality
of this subsection-
(a)
order any person who holds any property which forms part of the property of one
or other of the spouses to
make
such payment or transfer of such property as may be specified in the order;
(b)
confer on any trustees of any property which is the subject of the order such
powers as appear to the appropriate
court
to be necessary or expedient.
(3)
The power of an appropriate court to make an order in terms of paragraph (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.
(4)
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
expected to be educated or trained;
(d)
the age and physical and mental condition of each spouse and child;
(e)
the direct or indirect contribution made by each spouse to the family,
including contributions made by
looking
after the home and caring for the family and any other domestic duties;
(f)
the value to either of the spouses or to any child of any benefit, including a
pension or gratuity, which such
spouse
or child will lose as a result of the dissolution of the marriage;
(g)
the duration of the marriage;
and
in so doing the court shall endeavour as far as is reasonable and practicable
and, having regard to their conduct,
is
just to do so, to place the spouses and children in the position they would
have been in had a normal marriage
relationship
continued between the spouses.
(5)
In granting a decree of divorce, judicial separation or nullity of marriage an
appropriate court may, in accordance
with
a written agreement between the parties, make an order with regard to the
matters referred to in paragraphs (a) and (b) of subsection (1).
In applying section 7 of the
Act McNALLY J.A. had this to say in the case of Takafuma v Takafuma 1994 (2) ZLR 103 at 106 (S)-
The duty of a court in terms of s 7
of the Matrimonial Causes Act involves the exercise of a considerable
discretion, but it is a discretion which must be exercised judicially. The
court does not simply lump all the property together and then hand it out in as
fair a way as possible. It must begin, I would suggest, by sorting out the
property into three lots, which I will term "his", "hers",
and "theirs". Then it will concentrate on the third lot marked
"theirs". It will apportion this lot using the criteria set out in s
7(3) of the Act. Then it will allocate to the husband the items marked
"his", plus the appropriate share of the items marked
"theirs". And the same to the wife. That is the first stage.
Next it will look at the overall
result, again applying the criteria set out in s 7(3) and consider whether the
objective has been achieved, namely, "as far as is reasonable and
practicable and, having regard to their conduct, is just to do so, to place the
spouses ... in the position they would have been in had a normal marriage
relationship continued ...".
Only at that stage, I would suggest,
should the court consider taking away from one or other of the spouses
something which is actually "his" or "hers".
The
parties hold in equal shares the following property-lot 1/75 Chisipite Township
of Chisipite also known as number 9 Harare Drive, Chisipite, stand number 3471
Warren Park Township of stand 2372 Warren Park Township of Warren Park, stand
number 11817(9809) also known as number 16 Maruta Crescent, Beatrice Road
Cottages, Mbare. This is the property in which plaintiff under oath conceded
that his half shares be awarded to defendant. That is no longer in issue as
plaintiff has relinquished his claim. I will take into account that the Beatrice Road
property is undeveloped. The Warren Park property is a commercial premise which
from the defendant's evidence is leased at US$250 per month. Prior to the
introduction of multiple currencies the proceeds went to defendant.
In
as far as the residential properties are concerned defendant will be awarded a
greater share as defendant only remains with lot 3 of lot 99 of Block C of
Hatfield Estate. This is the three bedroomed house that he acquired in 1999
after separation with defendant. This compares well with the Chisipite property
although it may well be that the Chisipite property is more valuable by virtue
of its location.
Crovis
Agencies (Private) Limited at its inception dealt in motor spares. It was
defendant's testimony that she contributed towards the establishment of the
business. She used to negotiate sales with Nissan Clover Leaf where plaintiff's
late partner Steven Madovi was employed. In addition, it was defendant's
testimony that Crovis Agencies (Private) Limited was established from capital
that was generated from Shambidzo Investments. Crovis Agencies (Private)
Limited subsequently acquired two properties, namely what is commonly described
as 66 Seke Road
where Selfast Industries (Private) Limited trading as Mega Bricks operates from
and 59 Caledon Avenue,
Prospect.
Since
the death of plaintiff's business partner 59 Caledon Avenue has been distributed to
the surviving spouses. This was not disputed by defendant. Therefore the claim
in respect of 59 Caledon Avenue
falls away.
What
remains in contention is 66 Seke
Road where plaintiff is involved in the business of
manufacturing cement bricks. This was the business that was incorporated in
1988. Plaintiff's contention is that this was not a family business as he
formed it in partnership with the late Steven Madovi after he and defendant
separated. On the other hand defendant's contention is that the business
evolved from Shambidzo Investments.
In
his written submissions Mr. Mutizwa
contended that the assets owned by Selfast Industries (Private) Limited are
separate from plaintiff. He further contended that it cannot be said plaintiff
is the alter ego of the company as he was a co-director together with the late
Steven Madovi. What cannot be denied is that if the Caledon Avenue business was distributed
to the late Steven Madovi's spouses, plaintiff remained in sole control of the 66 Seke Road
business. Plaintiff did not lead any evidence to show the nature of the
shareholding since the death of Steven Madovi, or alternatively to show that
additional directors were appointed. In fact he admitted during
cross-examination that he remained in control of the brick making business.
Mrs.
Mtetwa cited the case of Masiyiwa Cleopas Gonye v Stella Maris Gonye
S C 15/09 in support of the contention that it is necessary to pierce the
corporate veil in order to do justice to the matter. In that case the appellant
formed a company in which he and the respondent and two sons were the
shareholders. The respondent did not play any active role in the management of
the company's affairs. In dismissing the appeal MALABA J.A (as he then was) for
all practical purposes the company was a one man company in which the appellant
was the sole active director. The share held by respondent was not an income
generating asset. The learned judge of appeal went on to say at p 10 of the
cyclostyled judgment-
"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."
In the present matter I would
therefore hold that the defendant is entitled to a share in Selfast Industries
(Private) Limited. It is immaterial that the business was commenced after the
parties had separated. In making this decision I take into account that s 7 (1)
of the Matrimonial Causes Act provides that-
(1) Subject to this section, in granting a
decree of divorce, judicial separation or nullity of marriage, or at any
time
thereafter, an appropriate court may make an order with regard to-
(a)
the division, apportionment or distribution of the assets of the spouses,
including an order that any asset be
transferred
from one spouse to the other;
It is not stated that the
court may distribute matrimonial assets, but rather it distributes the assets
of the spouses. In this regard a court has a wide discretion. However, in
making the award I will take into account that the business was formed after
the parties had separated and that defendant did not make any contribution. Had
a normal marriage relationship continued she would have benefited from the
business. However, taking into account that she is going to be awarded the bulk
of the immovable properties I will only award he fifteen percent of the share.
On the issue of arrear
maintenance defendant testified that when plaintiff moved out of the
matrimonial home plaintiff neglected to give her financial support. She
confirmed though that he paid the children's school fees. Having endured
financial hardships she decided to move to the United Kingdom. She did not
challenge plaintiff's evidence that he is the one who proved money for her air
ticket. In 2000 plaintiff also paid for the two children's air tickets when
they visited defendant during the holidays and when they eventually went to
join her.
According to defendant her
regular salary was not enough and she had to engage in agency work. She also
had to apply for overdraft facility with her bank. Although she did not pay
school fees she had to pay for the children's college fees which she had to
borrow. She produced a bank statement showing debits for rent, telephone
charges, gas and car loan. She claimed defendant never offered to assist with
the children's fees and upkeep.
Defendant is no longer
working as she retired from her nursing job on medical grounds. She now lives
with her daughter and son in-law. She stated that she has no other means of
earning a living apart from rentals from Shambidzo Investments.
It is quite evident that
defendant failed to prove the claim for arrear maintenance. For example, in her
counter-claim she prayed for an order for reimbursement of all expenses
incurred in respect of the children until they became adults or
self-supporting. No evidence was led regarding when the children became
self-supporting. No evidence was led on the total expenses she incurred. The
bank statement only covers the period between 17 April, 2002 and 14 June, 2002.
Defendant also sought an
order for plaintiff to account for rentals in respect of the Chisipite
property. However, it is not clear which period defendant wanted plaintiff to
account for. If it is the period prior to February 2009 before the introduction
of multiple currencies, Plaintff's evidence was that he used to receive rent in
Zimbabwean dollars. It was further his evidence that he deposited defendant's
share with Kingdom and that the money became worthless due to hyperinflation.
It appeared from the evidence led that for the period after February 2009
plaintiff had already paid part of defendant's share.
On costs, none of the
parties has been completely successful in their respective claims. It will only
be proper that each party be ordered to pay their own costs.
Accordingly, it is ordered
as follows-
- That a decree for divorce
be and is ordered.
- That plaintiff be awarded
lot 3 of Lot 99 Block C of Hatfield as his sole property.
- That plaintiff is awarded
85% of Selfast Industries (Private) Limited trading as Mega Bricks.
- That within two months of
the granting of this order plaintiff shall transfer his 50% share in the
following properties; lot 1 of Lot 75 Chisipite Township of Chisipite also
known as number 9 Harare Drive, Chisipite, stand number 3471 Warren Park
Township of stand 2372 Warren Park Township of Warren Park, stand number
11817(980g) also known as number 16 Maruta Crescent, Beatrice Road
Cottages, Mbare to defendant.
- That plaintiff shall
within two months of the granting of this order pay defendant 15% of the
value of Selfast Industries (Private) Limited trading as Mega Bricks.
- The counter-claim for
arrear maintenance is dismissed.
- The counter-claim for plaintiff
to account for rent in respect of 9 Harare Drive, Chisipite is
dismissed.
- That each party shall bear
their own costs.
Chihambakwe, Mutizwa & Partners, plaintiff's legal
practitioners
Mtetwa &
Nyambirai, defendant's legal practitioners