NDOU J: The plaintiff
sued the defendant for divorce together with ancillary relief. The parties wee married to each other on 14
July 1989 and the marriage still subsists.
There is one minor child of the marriage, namely Marvin Mudenda born on
30 October 1992. The parties have met in
round table conferences in the presence of their respective legal practitioners
resulting in settlement of some of the issues.
The parties, just before the commencement of this trial, reduced their
settled issues into writing in the following manner:
“(1) A decree for divorce do issue in favour of
plaintiff.
(2)
Custody of the minor child of the marriage; namely
Marvin Mudenda born on the 30th October 1992 be and is hereby
awarded to plaintiff.
(3)
Defendant be and is hereby ordered to contribute US$250
[later reduced by consent to US$150,00] [per month] towards the maintenance of
the minor child aforementioned.
(4)
Stand number 3744 Bulawayo Township of Bulawayo
Township Lands, also known as number 3
Browning Road, Malindela shall be registered in
the names of the children of marriage in equal shares namely;
4.1 Marcel Mudenda born on the 23rd September, 1987;
4.2 Melanie Mudenda born on the 3rd of October, 1989;
4.3 Marvin Mudenda born on the 30th of October, 1992,
Provided that plaintiff shall have
exclusive usufruct of the property until she dies or remarries whichever first
occurs.
(5)
Plaintiff and defendant shall within, 7 days of this
order, sign all necessary papers for the transfer referred to above and
plaintiff's legal practitioners shall attend to the said transfer at the cost
of both parties in equal shares.
(6)
Plaintiff and defendant shall agree on the value of
stand number 12028 Bulawayo Township lands up to the slab level within 14 days
of this order failing which the parties' legal practitioners shall approach a
valuator to be paid by both parties in equal shares to give value to the said
stand up to slab level and in either event the defendant shall be given the
option to buy out the plaintiff of her share herein within 60 days of valuation
failing which property shall be sold and therefrom levied plaintiff's half
share of the property as expressed in the valuation or agreement as the case
may be.”
When the trial
started, the defendant, however, changed the above settled issues. Item (1) was made an issue, i.e. the
defendant now says the marriage has not irretrievably broken down. Under item 4.3, the defendant wants a
condition added to the effect that the property shall not be disposed of by the
children before the youngest child attains the age of 21 years. The plaintiff's position is that the legal
age of majority of 18 years should be used.
Finally, although the parties agreed that their company viz Asmara (Pvt) Ltd should be sold and the
proceeds shared equally, the plaintiff has proposed that she be allowed to buy
Asmara Clothing Factory. The defendant
is adamant that both parties must be given the option to buy the other out of
the entire company. In other words, the
defendant is opposed to the company being sold piecemeal. I propose to deal with these issues in turn.
(a) Irretrievable
break down of the marriage
In
her testimony the plaintiff said the marriage has broken down on account of the
defendant's conduct. She said that the
defendant has been unfaithful, lied to her and cheated on her. She said her 22 years of marriage to the
defendant has been largely unhappy. She
said the defendant has subjected her to emotional trauma. She said she understands that a marriage must
be based on love, trust, honesty and communications, all these are lacking in
their marriage. By way of illustration
of the above problems she said that the defendant was frequently away from home
or returned at odd hours around 3am to 4am without disclosing where he had
been. She received a telephone call from
one of his mistresses. She found unexplained
hotel bills and condoms. She said he
fathered a child with his former wife some years after she married him. She, at times, spent several days alone and
she felt neglected. He threatened to
have her deported when they quarreled.
[Plaintiff is of Austrian descent]
The cumulative effect of all these factors is a very unhappy
marriage. She said she eventually lost
all love for the defendant. There is no
chemistry between them and the marriage has, as a result, broken down
irretrievably. In her testimony she was
visibly bitter and emotionally charged.
I find that her testimony of unhappiness in the marriage is
credibly. I also find that her testimony
that she longer loves the defendant is credible. In any event, the defendant himself had
initially agreed that the marriage had broken down irretrievably. It is not clear to me why he is blowing hot
and cold on this issue. The court cannot
make the plaintiff love the defendant.
No matter how sympathetic this court maybe, it is not within its competence
to do so. It is trite that in reality it
is hardly possible for a court to find that there is a reasonable prospect of
reconciliation between the parties when one of them is determined to bring the
marriage to an end – Swart v Swart 1980(4) SA 364 (O) at 368; Levy v Levy 1991(3) SA 614 (A); Smit
v Smit 1982(4) SA 34 (O); Singh v Singh 1983 (1) SA 781 (C ) and Msimanga
v Msimanga HB-7-07. From the credible evidence, the marriage
relationship is not normal any more.
Further, there is no reasonable prospect of the restoration of a normal
marriage relationship – Schwartz v Schwartz 1984(4) SA 467 (A) at 473 and Coetzee v Coetzee 1991(4) SA 702 (C).
There is a serious violation of consortium, inter alia, loyalty, love, affection, comfort and mutual services,
which characterize a normal marriage relationship – Naidoo v Naidoo 1985(1)
366(T) and Msimanga v Msimanga, supra. There is no prospect
of the restoration of a normal marriage relationship and the defendant has to
accept this unfortunate reality. It is
time for a clean break.
(b) Whether stand number 3744 Bulawayo of
Bulawayo Township Lands [Number 3 Browning Road, Malindela should be donated to
the parties' three children subject to a condition that it shall be sold upon
attainment of the age of 21 of the youngest child
The
issue here is whether we should follow the legal age of majority of 18 years or
not. The defendant feels that at 18 the
youngest child would still be immature.
The basis of such an assertion is his 'feeling' as a father. I am not convinced that there is a reason to
depart from the legal age of majority.
The parties have to trust the judgment of the youngest child when he
attains majority.
(c) Should the Asmara
Clothing Factory be sold separately (to the plaintiff) from the other assets of
Asmara (Pvt)
Ltd?
The
plaintiff passionately testified why she should be sold Asmara Clothing factory
separately. She said she was the
hands-on director who also managed the factory.
She has been in the clothing industry for about 18 years. She was previously a factory manager at
Sunjet Clothing. Her grandfather is a
tailor. She was teaching “Fashion and
Fabrics” at ordinary level when she was still a teacher. She said she is familiar with all production
aspects in the clothing industry. She
said she pioneered most of school sports-wear used by private schools in this
region. She has invested a lot of time
and other resources in this factory.
She, however, conceded that she could still achieve her objective even
if she bought the entire Asmara
(Pvt) Ltd Company. The only issue being
that of cost. I am in agreement with the
defendant's position that it will be fair to both parties if the company is not
sold piecemeal. An equitable and fair
exercise of each parties' right of first refusal would be achieved when the
party is offered the entire company.
Accordingly,
it is hereby ordered as follows:
(1) A decree for divorce be granted.
(2)
Custody of the minor child of the marriage; namely
Marvin Mudenda born on the 30th October 1992 be awarded to plaintiff
with defendant enjoying reasonable access to the minor.
(3)
It is ordered that defendant contributes towards the
maintenance of the said minor child at the rate of US$150 per month until the
minor child attains the age of 18 years or becomes sell supporting whichever
occurs first.
(4)
That stand number 3744 Bulawayo Township,
of Bulawayo Township Lands, also known as number 3 Browning Road, Malindela shall be
registered in the names of the children of marriage in equal shares namely;
4.1 Marcel Mudenda born on the 23rd
September, 1987;
4.2 Melanie Mudenda born on the 3rd
of October, 1989;
4.3 Marvin Mudenda born on the 30th of October, 1992,
Provided that
plaintiff shall have exclusive usufruct of the property until she dies or
remarries whichever first occurs.
(5)
The plaintiff and the defendant shall within 7 days of
this order, sign all necessary papers for the transfer referred to above in
paragraph (4), and the plaintiff's legal practitioners shall attend to the said
transfer at the cost of both parties in equal shares.
(6)
The plaintiff and defendant shall agree on the value of
stand number 12028 Bulawayo Township Lands up to the slab level within 14 days
of this order failing which the parties' legal practitioners shall approach a
valuator to be paid by both parties in equal shares to give value to the said
stand up to slab level and in either event the defendant shall be given the
option to buy out the plaintiff of her share herein within 60 days of valuation
failing which property shall be sold and therefrom levied plaintiff's half
share of the property as expressed in the valuation or agreement as the case
may be.
(7)
The plaintiff and the defendant shall within 14 days of
this order agree on the inventory of the assets as well as the value of these
assets, failing which the parties shall cause within a further 14 days an
instruction of the valuation of the inventory by a firm of chartered accountants
to be nominated by the parties' legal practitioners.
(8)
On agreement or valuation pursuant to paragraph (7)
above, the assets shall be sold to best advantage and the proceeds thereof
shared equally between the parties. The
plaintiff is granted an option to buy out the defendant within 60 days of the
agreement or valuation, failing which, the defendant is granted the same
option.
(9)
Each party to pay its own costs.
Hwalima, Moyo and
Associates, plaintiff's legal practitioners
Marondedze, Mukuku
& Ndove & Partners, defendant's legal
practitioners
