GUVAVA J: The parties
married on 13 December 1992 in terms of the Marriage Act [Cap
5:11]. Two children
were born of the marriage, Diana Musonza (born 24 March 1993) and
Tafadzwa Musonza (born 24 January 2000). The parties resided at
Number 3 Dunmore Avenue Queensdale.
The marriage was an unhappy one filled with physical and emotional
abuse. The plaintiff left home on numerous occasions but always
returned in the hope that the marriage would work. In October 2006
however things came to a head and plaintiff decided that she had had
enough. The plaintiff moved out of the matrimonial home and left the
two minor children in the care of the defendant. In February 2007
following an incident between the defendant and his daughter Diana
the plaintiff obtained custody of both children.
In June 2007 the plaintiff instituted summons seeking a decree of
divorce, custody and maintenance of the minor children and division
of the parties' matrimonial estate.
The defendant, whilst conceding that the marriage had broken down,
opposed the claim for custody, maintenance and the proposed division
of the estate. At a pre-trial conference held before a judge in
chambers the following issues were referred to trial:
1. Who should be awarded custody of the minor children?
2. If the plaintiff, how much maintenance should be paid by the
defendant for each child?
3. What constitutes a fair and equitable distribution of the
matrimonial estate?
At the commencement of the trial it appeared to me from the pleadings
that there was a further issue between the parties in that they were
not in agreement as to the constitution of the estate. With the
consent of both parties a fourth issue was introduced being what
constitutes the matrimonial estate.
Mr Debwe
also sought an amendment which was granted by consent of the
defendant to remove the claim for maintenance for the plaintiff and
change the claim for the minor children to US$280-00 per month per
child.
The plaintiff testified as follow:
She resides at 5649 New
Canaan, Highfield, Harare and is self employed as a cross- border
trader. She started living together with the defendant in November
1991 and registered their marriage on 13 December 2002. The marriage
was fraught with problems as the defendant started physically abusing
her when she was only eight months pregnant with their first child.
Her parents took her to the police but she later withdrew the charges
because she loved the defendant. He used to assault her about twice a
week whenever he was drunk. In 2002 the defendant brought home
another woman whom he introduced as his second wife. The plaintiff
moved out of the matrimonial home in 2006 and the woman in question
moved into the matrimonial home.
She is of the opinion that their marriage has irretrievably broken
down.
There are two children born out of the union and the plaintiff claims
custody of both children. The eldest child is a girl who is 16 years
old. It was the plaintiff's evidence that she requires her mother's
love and support during this period of puberty. Tafadzwa is aged nine
and needs his mother's love and attention. When she left the
matrimonial home she left the children with the defendant. The
defendant has shown that he cannot look after the children as she was
given the children at the police station after the defendant had been
convicted of assaulting Diana. She stated that when she took the
children she had to stay with her mother as she did not have suitable
accommodation. At that time Tafadzwa's grades went down as he changed
schools on no less than three occasions because the defendant would
steal him from school. She testified that the defendant was not a fit
and proper parent to be granted custody of the children. In March
2008 she received a phone call from a neighbor advising her that the
defendant was ill treating the children and had badly assaulted
Diana. She made a report to the police and the defendant paid an
admission of guilt fine.
She stated that she required maintenance for the children in the form
of school fees and transport costs. She stated that she could meet
the children's other expenses in terms of groceries, uniforms and
clothes. She produced a schedule which sets out the children's
requirements for the month. She stated that an amount of ZAR2,500-00
per month would meet the needs of the children.
She stated that she was abandoning the claim for maintenance for
herself.
In respect to the immovable property she testified that in 1995 they
were renting premises in Houghton Park when she saw an advertisement
in the daily press for the sale of a house. She went with the
defendant to view the property which was at 3 Dunmore Avenue in
Queensdale. The estate agents who were handling the property were not
very forthcoming and she advised the defendant to go and see the
owner of the property who was a Mr Finch who was a manager at Dynamos
Football Club.
Upon agreement they paid a deposit of $80,000-00. The purchase price
for the property was $215,000-00. Mr Finch allowed them to take up
occupation before transfer whilst they renovated it.
She stated that although the property was registered in the
defendant's name she had assisted him in acquiring it. She was
employed by the defendant's company and would not receive a salary
as all the money was used for renovating the property. She stated
that she was also cooking for the builders who were working on the
property.
She stated that she was entitled to 45% of the value of the property
because of her direct and indirect contributions.
She denied that Yolanda Madondo had contributed to the acquisition of
the property. She stated that Yolanda had never lived with them but
was living with her mother.
The plaintiff stated that they subsequently bought another property
in Glen View in 2004. The property was purchased as an undeveloped
Stand and is registered in both their names.
The plaintiff stated that she was claiming her 50% share in that
property.
She produced the Memorandum of Association for Mainland Business
Merchants (Pvt) Ltd which showed that they were both directors of the
company. The company's main business was commodity broking. They were
dealing in business machines. The property was purchased using
proceeds from this business.
In relation to the movable property the plaintiff stated that she was
entitled to the property claimed in her declaration. She denied that
she had included property which had been left by the defendant's
first wife. She also denied that some of the property had been bought
by Yolanda. The plaintiff and the defendant owned four motor vehicles
during the subsistence of their marriage. The plaintiff claimed the
Mercedes Benz and the Honda Prelude. She claimed that the two
Cressidas should be awarded to the defendant.
She stated that all the motor vehicles are registered in the
defendant's name.
She stated that the defendant purchased the Mercedes Benz for her as
she was a pastor at their church. She also stated that they had gone
to Messina in South Africa with the children to collect the Hyundai
Prelude which had also been purchased for her.
With regards to the companies, the plaintiff stated that she did not
know whether or not they were still operating but she was claiming
her 50% share in Mainland Business Merchants where she was a director
and shareholder.
The defendant also gave evidence and told the court as follows:
He is domiciled in Zimbabwe. Although their marriage still exists it
has broken down to such an extent that it cannot be resuscitated.
When the plaintiff left him he continued to look after the children
with the assistance of his young brother and son from a previous
relationship. Diana was attending school at Roosevelt High School
whilst Tafadzwa was at David Livingstone Primary School. He denied
that he had ever ill treated the children. He however admitted that
he had paid an admission of guilt fine at Police Braeside after he
had assaulted Diana with a belt. He stated that he had assaulted her
because she had lied to him.
He produced a custody order from the Magistrates' Court awarding
him custody of the two minor children.
The defendant challenged the plaintiff's claim for US$300-00 per
month for groceries for the two minor children and said it was too
excessive. He told the court that in the event that custody of the
children is awarded to the plaintiff he would pay US$100-00 for both
children. He also stated that Diana's fees were too excessive as fees
for Government schools were only US$40-00 per term. He stated that he
was happy to pay Tafadzwa's fees at any Government primary school.
He stated that his company was not doing well and he was evicted from
where he was operating from because he could not pay the rent. He
stated that he would not be able to pay the money claimed by the
plaintiff.
He told the court that he purchased the Queensdale property in 1991
and registered it in 1995. He produced the agreement of sale and the
acknowledgment of receipt of the deposit of $80,000-00. He finished
paying the purchase price in 1992. He however could not take transfer
of the property because it was not in the seller's name. He confirmed
that he purchased the property from Mr Finch. He started renovating
the property in 1993 by putting up a wall around the property. He
would get the money to effect developments from Mediocre (Pvt) Ltd.
He denied that the plaintiff was involved in the renovations. He also
denied that the plaintiff was employed by that company in any
capacity at all.
He stated that the Glenview property belongs to the City Council as
he has no title over it. He purchased it using funds from Mediocre in
2001. He confirmed that according to the Council documents the
purchasers of the Stand were the plaintiff and himself. He stated
that he has developed the Stand extensively with no help at all from
the plaintiff. The development took place after the plaintiff had
left the home. In his view she would be entitled to a 15-20% share.
The defendant confirmed that Yolanda was his "wife" and she
started living with him in the matrimonial home in 2007. He stated
that she also contributed towards the development of both properties
and any award that the court will make should take this into account.
Turning to the motor vehicles he stated that the Mercedes Benz was
purchased in 2001 by Mediocre as a company asset. He denied that he
purchased it for the plaintiff as the plaintiff has never taken a
driver's license.
The Hyundai Prelude was acquired in 1997 from Japan. He stated that
he purchased it through the internet and then contracted a company to
have it delivered at his offices in Harare. He produced all the
documents relating to the purchase and shipment of the Hyundai
Prelude. He denied that he had gone to Messina with the plaintiff to
collect it. He stated that prior to 1997 the plaintiff did not have a
passport and could not have travelled to South Africa.
The two Cressidas were acquired in 1987 and 1991. The defendant
stated that they were acquired as company assets. He produced a
business statement dated 1999 which listed the two Cressidas and the
Hyundai as company property.
He further testified that part of the movable property claimed by the
plaintiff was not owned by him but by other people and some had been
stolen.
In support of this averment he produced a stolen property list which
was reported at the local police station. He also produced a number
of lists which put the property in various categories depending on
the owner. He produced a cash sale invoice for Tonum Investments and
indicated that whilst he was in possession of the property it did not
belong to him and he was keeping it for the owner. He also produced a
cash sale invoice for Redport (Pvt) Ltd and stated that he took
possession of the listed property because the owner owed him some
money. He stated that the money has not yet been repaid and he cannot
find the owner.
Turning to the company the defendant stated that Mainland Business
Merchants is a shelf company which has never operated since it was
registered. The directors of the company are the defendant's
children. He and the plaintiff were never directors of the company.
He stated that the only company which ever operated was Mediocre
Business Merchants (Pvt) Ltd. He also said that the plaintiff did not
have any shareholding in that company.
The defendant also called Nicholas Musonza.
He confirmed that the parties married in accordance with customary
law in December 1992 after the plaintiff had eloped. He was working
at Mediocre Business Merchants (Pvt) Ltd at the time. He denied that
the plaintiff ever worked at the company. He stated that the
matrimonial home was purchased in 1991. He explained that at some
stage during the time that the property was purchased Mr Finch would
phone the office and on one occasion came looking for the defendant.
He identified exhibit 8 as a copy of the letter that he was asked to
give to the defendant.
Yolanda Madondo also gave evidence before the court.
She testified that she married the defendant under customary law in
1993 during the subsistence of the plaintiff's marriage. She said
that they have always had a good relationship and would travel
together to their communal home with their children. She stated that
she contributed in the construction of the Glen View house as the
defendant had told her that she would live there. She stated that
prior to moving to Queensdale she had lived in rented accommodation
which was paid for by the defendant. She stated that she contributed
towards the construction of the chalets at the matrimonial home. She
purchased the rocks that built the chalets and the grass for the
thatching.
In relation to the Glen View property she stated that she paid for
the water to mold the panels for the wall and cooked for the
builders.
She also claimed some movable property which she said she purchased.
She produced a receipt as proof of purchase. She explained that the
property was being kept at the matrimonial home as she had nowhere to
keep it.
The plaintiff gave her evidence in an honest and forthright manner.
Her demeanor was good and although she was subjected to a lengthy and
detailed cross examination she did not get angry or lose patience.
She stuck to her story and answered questions put to her politely.
She was candid with the court and made concessions which were against
her interests. For instance she admitted that Tafadzwa's grades at
some point were very low and that was because their living conditions
were not good. When testifying about the distribution of the property
she conceded that defendant deserved a greater share as he had
contributed more. I have no difficulty in accepting her evidence over
that of the defendant's wherever there is a material conflict.
It was apparent to the court that the defendant was not being honest
with the court. The truth had to be forcibly prised out of him. For
instance he insisted that Yolanda was his wife and denied that he was
committing adultery when he was quite aware that he was married in
terms of a law which only allowed him to have one wife. He denied
that he had been convicted of an assault on Diana until the plaintiff
produced the admission of guilt fine receipt which he paid at the
police station. He was also asked if the plaintiff was a director and
shareholder of Mainland Business Merchant and he denied this only to
change his story when the counsel for the plaintiff referred him to
the relevant exhibits which show that she was indeed a director and
shareholder of the company. He further stated that the matrimonial
home was purchased in 1991 and yet he could not explain why during
that period he moved his family on no less than three occasions going
into rented accommodation when he owned the house. At some stage he
even rented the property next door to the matrimonial home.
It was also pertinent to note that during this period Mr Finch was
not the owner of the property as he only became an owner in February
1995 before he transferred it into the defendant's name.
The defense witnesses in my view did not take his case any further.
Nicholas's evidence was only relevant in so far as he corroborated
the defendants evidence that plaintiff was not an employee of
Mediocre Business Merchants and Yolanda's evidence merely to prove
her claim to some of the movable property.
Taking into account the findings I have made on the credibility of
the witnesses I will now deal with each of the issues which were
referred to trial in turn.
DIVORCE
The issue of the breakdown of the
marriage was strictly not an issue before the court. It is not in
dispute that the marriage between the plaintiff and the defendant has
indeed broken down. They have been living apart for a period in
excess of three years. The defendant has moved on with his life and
is now living with Yolanda as husband and wife. The parties both told
the court that they do not love each other any more and would want
the marriage to be dissolved. However, section 5 of the Matrimonial
Causes Act [Cap 5:13]
requires that the court must be satisfied that a marriage has indeed
irretrievably broken down before it can grant a decree of divorce.
It was apparent from the evidence before me that the parties have
indeed lost love and affection for each other.
In the case of Marimba
v Marimba 1999 (1) ZLR
87 (H) the court held that fault and misconduct were not relevant to
the existence of grounds for divorce. Once there is evidence which
establishes irretrievable breakdown of marriage that is sufficient.
It is not necessary for the court to delve into the general issue of
marital misconduct. I thus have no hesitation in finding that the
marriage between the two has indeed broken down. The plaintiff is
thus entitled to the relief that she seeks.
CUSTODY, ACCESS AND MAINTENANCE OF THE MINOR CHILDREN
In this case there are two minor children. Both parents are claiming
custody of the children. In any case where the court is asked to
determine the issue of custody the court is enjoined to consider the
best interests of the children.
In the case of Zvorwadza
v
Zvorwadza 1996 (1) ZLR
404 (S) it was held that the court must take into account the
following factors in determining the best interests of the children:
age, health, educational and religious needs, social and financial
position of each parent, sex of the child and each parent's
character and past behavior towards the children. I will take these
factors into consideration in determining this case.
Diana at 16 years of age is now a
young woman who will be confronted by the challenges of teen hood. In
my view at that age she would need the love and care of a mother to
assist her to get through this period. In the case of Goba
v Muradzikwa
1992 (1) ZLR 212 (S) it was held that there is a presumption that the
interest of a female child will be best served by placing her in the
custody of her mother.
The defendant sought to rebut this presumption by averring that the
plaintiff was not a caring mother as she failed to ensure that Diana
went to school.
I did not believe the defendant's story when he said Diana ran away
from him to evade attending school. I accepted the plaintiff's
evidence that the child ran away because she was afraid that her
father would force her to go and live with him. This was something
that had happened to Tafadzwa and as a result of changing schools he
did not even have a school uniform.
It seems to me that the defendant has failed to rebut the presumption
in this case.
Tafadzwa is nine years old. In my view he is still young and requires
the love and care of a mother. Whilst a father's firmness and control
are required to mold him into manhood it seems to me that the
defendant can still exercise this role when he has access to the
children. In the order that I will make I will try and ensure that
the children are able to be with their father as often as is
practicable taking into account their school work.
It was apparent from the evidence that the defendant was convicted of
an assault on Diana and he paid an admission of guilt fine at the
police station in 2007. Whilst he initially denied that this had
happened he later conceded the point after the plaintiff obtained
proof of the payment. It was also clear that it was on that occasion
that the plaintiff took custody of the children whom she had left
with the defendant when she left the matrimonial home. She explained
that she had left the children because she had nowhere to go and had
stayed with a friend.
The defendant submitted that the plaintiff should not be granted
custody of the children as she could not take care of them. He cited
an incident when he drove to the plaintiff's house on a school day
and saw Diana at home during school hours. He also produced a medical
report showing that Tafadzwa at some stage had suffered from
ringworms as he was not properly cared for. His marks were also low
and his teacher had called the defendant to register her concern.
It was not in dispute that both
children have been living with the plaintiff from February 2007. It
is not in dispute that the defendant had a court order granting him
custody of the children but the plaintiff had de
facto custody after
they were handed over to her at the police station following the
assault. It was also apparent that their living arrangements have not
been very comfortable as the plaintiff does not earn enough to look
after the children on her own. This situation can however be
rectified by making a suitable award of maintenance if the facts show
that it is in the best interest of the children that they be with the
plaintiff.
The court had an opportunity to interview the children and ascertain
their views with regards to custody. Whilst their views are not
binding upon the court they are very persuasive particularly when the
children are not very young.
In this case Diana is 16 years old. She will be a major in a few
years time and her views will be considered seriously by the court.
It was apparent in talking to the children that they love both their
parents very much and did not wish to choose between them. Given a
choice they would have wanted their parents to remain together but
they accepted that it was best for their parents to be apart. In my
view both children showed particular maturity and were able to
explain their circumstances clearly. In making the award that I will
make I will take into account their views.
It seems to me that having regard to the children's age, sex, the
character of their parents and their past behavior towards the
children that their best interest would be served by awarding their
custody to the plaintiff. I will also make a suitable award of access
to the defendant so that he continues to see his children.
The court's power to award
maintenance is in terms of the Maintenance Act [Cap
5:09].
The claim for the children's
maintenance in the sum of $280-00 per month per child by the
plaintiff was in my view excessive and not fully supported by
evidence. The plaintiff merely claimed a blanket amount of $300-00
for groceries without setting out exactly what she required. It was
only after the court had enquired as to what she would buy that she
told the court the items. These items did not have a cost to them at
all and appeared to be exaggerated For instance she was claiming 12,5
kg of flour per month, 10 bars of washing soap, 12,5 kg of sugar for
just the two minor children. I do not believe that they would require
these quantities. In the case of Mutenure
v
Mutenure HH300-90 the
court stated as follows:
"…court proceedings are not a game where one inflates one's
claim in order to allow for an element of reduction. Claims must be
genuine, realistic and substantiated in order that the court can make
a proper assessment of the claim…."
See also Lindsay
v Lindsay 1992
(1) ZLR 332 (H).
On the other hand the offer by the defendant of $100-00 per month for
both children appeared rather low.
The defendant is a businessman
operating a company. Although he stated that business was low he did
not confide with the court the extent of the income generated by his
business. He could have done so by the mere production of his Bank
statement. I thus take the view that the business is generating
considerably more than the amount he told the court. Even if I take
into account that he would also meet the full cost of the children's
fees, the children would need money for bus fares and lunches.
The plaintiff accepted that both parents have an obligation to look
after the children. To that end she stated that she would pay for the
children's uniforms and clothing. She also undertook to pay the maid
and meet all the utility bills as well as her share of the rent.
Taking into account the means of both parties and the needs of the
children it is my view that the defendant should pay maintenance in
the sum of US$100-00 per month per child until each child attains the
age of eighteen or is self supporting whichever occurs earlier.
DIVISION OF ASSETS
The division of matrimonial
assets is governed by section 7 of the Matrimonial Causes Act [Cap
5:13].
The plaintiff claimed a 45% share in the Queensdale property and 50%
share in the Glen View property. The defendant on the other hand has
offered her a 20% share in the Glen View property arguing that the
plaintiff made no contribution into the acquisition of both
properties and that in any event the Queensdale property was bought
before the marriage and was thus not matrimonial property.
The Queensdale property was acquired, according to the defendant, in
1991. He produced as exhibit 8 a document acknowledging receipt of
$80,000-00 from Mr Finch as a deposit for the Queensdale property.
The document was dated 20 December 1991.
This document was disputed by the plaintiff who alleged that it was a
forgery and challenged the defendant to produce the original document
which he failed to do.
The plaintiff produced a copy of the title deeds showing that
transfer was effected in 1995. She also showed that this property was
only transferred into Mr Finch's name in February 1995.
It seems to me that the plaintiff's story is more probable than that
of the defendant. Mr Finch could not possibly have sold a house which
he did not own in 1991. It also seems highly unlikely that after
having purchased the house in 1991 the defendant would continue
living the life of a tenant and moving from one house to the next
when he owned his own home. I also do not believe that he would even
rent a property next door to the house he had purchased instead of
exercising his rights of ownership of the house.
I thus find that the property was
purchased after the parties were married. Even if I am wrong in this
finding I take comfort in the fact that this property would still
constitute matrimonial property as it is trite that matrimonial
property includes all property purchased whether before or during the
marriage and includes property acquired after separation unless it is
specifically excluded in terms of section 7(3) of the Matrimonial
Causes Act. See Ncube v
Ncube 1993 (1) ZLR 39
(S).
The defendant's evidence did not seek to show that the property falls
under any of the exceptions set out in the Act.
The plaintiff and the defendant went to great lengths to show the
extent of their contributions in the purchase and development of both
the Queensdale and Glen View properties. Whilst it was apparent from
the evidence that the plaintiff was not employed as a secretary at
Mediocre Business Merchants (Pvt) Ltd it was conceded that even if
she had been so employed her contribution would not have been as high
as that of the defendant who was also a director and shareholder in
the company.
The plaintiff is however a co-owner of the Glen View stand.
It is now settled that in order
for the court to achieve an equitable distribution it must take into
account all the factors that are set out in section 7(4) of the
Matrimonial Causes Act. In making the award the court must endeavor
to place the parties in the position they would have been had if the
marriage continued. In Shenje
v
Shenje 2001 (2) ZLR
180 (H) GILLESPIE J stated that the court must consider all the
factors set out in section 7(4) of the Matrimonial Causes Act. He
stated as follows at p163 G-164 A of the judgment:
"The factors listed in the subsection deserve a fresh comment.
One might form the impression from the decisions of the courts that
the crucial consideration is that of the respective contributions of
the parties. That would be an error. The matter of the contributions
made to the family is the fifth listed of seven considerations. The
first four listed considerations all address the needs of the parties
rather than their dues. Perhaps, it is time to recognize that the
legislative intent and the objective of the courts, is more weighted
in favour of ensuring that the parties needs are met rather than that
their contributions are recouped."
There can be no doubt that all contributions are important in a
marriage whether they be material or otherwise. Some contributions
are not even tangible as they relate to the moral support given to a
husband as he goes about his work and ensuring that he comes home to
a comfortable and happy home. Although such contributions cannot be
quantified in any monetary terms they are no doubt important in the
building of a happy home.
In Hatendi
v
Hatendi 2001 (2) ZLR
530 (S) the Supreme Court emphasized the wide discretion accorded to
the court in the division of matrimonial assets and stated that the
court may take into account factors that are not easily quantified.
Section 7(4) of the Matrimonial Causes Act obliges the court to look
at the financial needs, obligations and responsibilities which each
spouse and child has or is likely to have in the foreseeable future.
In making an award of the immovable property in this case I will take
into account the fact that the parties were married for a period of
16 years. This is by no means a short period. The plaintiff and the
minor children will need a suitable house for their accommodation
following divorce. They require a house in a good area as that is
what the plaintiff and the children are accustomed to.
I have also been asked by the plaintiff's counsel, in his closing
submissions, to take into account the fact that there was gross
marital misconduct on the part of the defendant which led to the
breakdown of the marriage.
He submitted that the defendant was in an adulterous relationship for
the greater part of the marriage to the plaintiff. The defendant
called Yolanda Madondo as his witness and she testified that they had
been together since 1993 and have two children.
The power of the court to take
into account the conduct of the parties in making an award of
property is set out in section 7(4) of the Act which provides as
follows:
"the court is enjoined to endeavour as far as is reasonably and
practically possible and, having regard to their conduct, is just to
do so, to place the spouses….in the position they would have been
had a normal marriage relationship continued…."
In deciding when a court should apply this principle it should be
mindful that it is not merely allowing the reintroduction of the
fault principle which was removed by the Matrimonial Causes Act
through the back door.
In Marimba
v Marimba (supra)
GILLESPIE J said at page 92 B;
"…The related principle is more difficult to formulate when it
is suggested that the conduct of a party is such that it should have
a bearing on a property distribution order. Mindful of the move away
from the fault system of divorce, judges in this jurisdiction have
set their faces against any invitation to delve into the 'minutiae
of ancient domestic grievances'. They have declined to permit
counsel to 'resurrect the old spectre of guilt and innocence and
drag the judge to hear their mutual recriminations and go into their
petty squabbles of days on end'.”
It seems to me therefore that a court should not easily permit the
use of marital misconduct when making an award of division of
property upon divorce. The difficulty appears to be in defining when
it would be just to permit misconduct to influence the award of
property. Thus judges in this jurisdiction while emphasizing the
reserve and caution that must affect any decision to permit the
misconduct of a spouse to affect any apportionment on the grounds of
misconduct, have merely been bound to acknowledge the possibility of
doing so in a proper case.
GILLESPIE J goes on to say the following at page 93F – 94C of his
judgment:
"It seems to me that just such a principle emerges. The relevant
legislation entrusts to the court a wide discretion to achieve a just
result in the division of the assets of the spouses and the
maintenance of a spouse or a child. That discretion is a judicial
discretion to be exercised upon a proper consideration of all
relevant factors. The aim is expressly to place the parties in the
position they would have been in had a normal marriage relationship
persisted. This aim is qualified by considerations of reasonableness,
practicality and justice. The overall desideratum of justice,
however, is itself expressly related by the clear words of the Act to
the conduct of the parties.
The principle may thus be stated: in its overall effort to order a
fair division of assets or of maintenance, the court may permit
considerations of the conduct of the parties to affect the final
order to the extent to which that would be just. What is just in any
case is left to the judicial discretion of the court. It may
generally be said, however, that it is never just to penalise a
person for an unhappy marriage. Only serious cases of predominantly
one-sided misbehaviour will be permitted to influence the order that
would otherwise have been made based on considerations excluding the
question of misconduct."
The question which arises is whether this is a proper case upon which
the court may exercise its discretion and permit the evidence of
misconduct to influence the division of assets?
While in my view, it is clearly
wrong for a man to marry a woman under a law which obliges him to
have only one wife and to thereafter proceed to marry another under
customary law and proceed to live with both of them in a polygamous
setting the plaintiff in this case did nothing about it for almost 14
years. The law allows parties to a marriage to make an election with
regards the type of marriage they wish to enter into. Once one has
elected to marry under the Marriages Act [Cap
5:11] one cannot
thereafter marry another in terms of customary law as the defendant
did.
However the plaintiff seemed to have condoned the affair as her only
complaint during her testimony was that Yolanda had moved into the
matrimonial home after she left. She does not allege in her pleadings
nor in her evidence that the defendants conduct with Yolanda was the
major cause of the breakdown. She merely refers to the defendant
having 'committed acts of adultery and is now staying with another
woman which plaintiff regards as incompatible with the continuation
of a normal marriage relationship".
In my view where a plaintiff wishes to rely on marital misconduct for
the purpose of influencing a decision of the assets this must be
specifically pleaded in the declaration so that it is apparent that
it is an issue at trial.
In this case the submission that the court should take into account
gross marital misconduct was merely made in the plaintiff's closing
submissions and in response to the fact that defendant had called
Yolanda as a witness before the court.
During the trial only evidence relating generally to the breakdown of
the marriage was led by the plaintiff. Most of her evidence related
to the parties contributions to the acquisition of the assets of the
marriage. It thus seems to me that this is not a proper case in which
the court should take into account marital misconduct in the division
of assets as insufficient evidence was led to make the finding that
this was the conduct that led to the breakdown of the marriage.
Yolanda Madondo in her evidence told the court that she contributed
in the development of the Glen View stand and the Queensdale
property.
I did not believe her and merely saw it as a ploy by the defendant to
defeat the plaintiff's claim in that property as the property is in
the name of the plaintiff and the defendant. In my view if she did
make any contributions she did so in the clear knowledge that the
defendant was married to another woman in terms of a civil marriage
and she could have no claim to their joint estate.
I now turn to the movable assets.
The defendant denied that all the property claimed by the plaintiff
was matrimonial property. He essentially divided the movable assets
into three categories that is; those owned by the parties, those
owned by third parties and those that do not exist. The defendant
produced as exhibit 14 items which he stated were acquired by the
parties during their marriage.
It was interesting to note that the list did not include a bed where
the parties slept or any kitchen utensils.
The defendant challenged Annexure "A" to the plaintiff's
declaration which was a list of the movable assets. He indicated to
the court that most of the property does not exist. However, some of
the property was listed in exhibit 14 (which were on the defendant's
list of property acquired during the marriage); in his plea (which
was property which should be awarded to the plaintiff) and in exhibit
19 the list of stolen property. I was thus able to make a specific
finding that some of the property did exist.
Of the property which was challenged by the defendant as none
existent the plaintiff was unable to show any proof of the properties
existence. I was therefore unable to make any finding in respect to
that property. The property which was stolen was not capable of
division as it was no longer in existence.
The defendant produced as exhibit 15 a list of property which he
stated belonged to Mildred Shata, his sister, Viola Edith Musonza and
Yolanda Madondo.
The defendant's explanation that he and the plaintiff had used the
bed left by his second wife Mildred Shata did not ring true. He
separated from Mildred Shata in 1989. They have been separated for
eighteen years and she now lives in Canada. It seems to me that if
this was truly her property she would have taken it by now. She did
not come to court to testify in relation to the property nor did she
produce proof of ownership. I thus do not accept the defendant's
evidence that this property belongs to his first wife and his sister.
In my view he was clearly using their names to hide matrimonial
assets from the court. I thus find that the property listed as
belonging to Mildred Shata and Viola Edith Musonza is matrimonial
property which is available for distribution between the parties.
Yolanda Madondo in her testimony claimed property which was set out
in exhibit 21 which was an invoice setting out property which she
purchased at Anisha Nadat on 17 April 1998. She stated that when she
purchased the property she did not have anywhere to put it as the
place she was renting was small. The property was thus held in
storage at Queensdale. The plaintiff did not really challenge her
claim to this property in cross examination and as such I will not
make an award in respect to this property.
The defendant also produced two cash sale invoices in the name of
Redport (Pvt) Ltd setting out property purchased by that company. The
property was purchased in 2003 and he is keeping the property. The
cash sale invoices appear to be authentic documents and in the
absence of other evidence to show that the property does not belong
to them I am inclined to find that the property does not belong to
the parties.
Exhibit 16 shows a pro-forma invoice issued by ABC Auctions to Tonum
Investments in July 2003. There is no evidence that the property was
indeed bought by this company or by the defendant. In the absence of
such proof it is my view that the property belongs to the parties. I
will thus also award this property between the parties using the
principles already stated.
Exhibit 19 was a list of property
which was alleged to have been stolen in April 2007. It lists the
Panasonic VCD player, Pioneer 3 CD changer HI FI, Superior turn table
and Panasonic HI FI speakers. The defendant stated that although the
property was being claimed by the plaintiff it had been stolen and
never recovered.
The plaintiff denied that the property was stolen and stated that it
was still at their matrimonial home. She however could not explain
how the items would be on the stolen property list provided to the
police. In my view therefore this property was stolen and is no
longer available for distribution.
In making an award for the
movable property I will distribute this property as fairly as I can
taking into account the principles set out in section 7 of the
Matrimonial Causes Act.
I will distribute the property set out in the defendant's plea, the
property in exhibit 15 under the names of Mildred Shata and Viola
Edith Musonza, the property listed in exhibit 14 and exhibit 16. This
in my view was property which was in existence from the evidence and
is matrimonial property.
I now turn to the motor vehicles.
The plaintiff claimed the Mercedes Benz and the Honda Prelude and
offered the two Toyota Cressidas to the defendant.
It was clear from the evidence that all the motor vehicles were
purchased during the duration of the marriage. The defendant in his
evidence testified that the motor vehicles were bought by Mediocre
Business Merchants. He produced as exhibit 13 a document entitled
Business Statement dated 1999 which showed that the two Cressidas and
the Honda Prelude were listed as business assets. However, in cross
examination, he conceded that the motor vehicles were registered in
his name and not the company name. It seems to me that the defendant
has sought to hide behind the company at his convenience. If the
motor vehicles were indeed company assets they would have been
registered in the name of the company. In my view therefore the motor
vehicles are matrimonial property and are available for distribution.
The plaintiff asked the court to award to her the Mercedes Benz and
the Honda Prelude. She stated that the Mercedes Benz was bought for
her by the defendant and she would use it to go church. However, when
it was put to her that the defendant could not have bought the car
for her as she did not have a driver's license she was evasive in
her response. It was apparent to me that these were all family assets
which were bought for the enjoyment of the family. Whilst the
defendant argued that the plaintiff should not be awarded a motor
vehicle at all in his testimony he, however, stated in his
submissions that the plaintiff could be awarded a Cressida.
It seems to me however that such
a distribution would be clearly against the principles set out in
section 7 which require that the distribution should be equitable and
just and ensure that the parties continue to live as they would have
had the marriage continued.
In this case if the marriage had continued the plaintiff would have
continued to have a motor vehicle at her disposal with or without a
license. I thus take the view that she is entitled to at least one
motor vehicle. The two Cressidas were bought soon after their
marriage and the Honda Prelude and Mercedes Benz a little later. In
my view an award of the Honda Prelude to the plaintiff would meet the
justice of this case.
The plaintiff also claimed a share in the two companies which were in
existence during the duration of the marriage.
The plaintiff stated that she did not know whether or not they were
still operating. The defendant stated that in relation to Mediocre
Business Merchants, he had been evicted from the premises where he
had operated from for a long time and the company was doing very
little business. He also stated that Mainland Business Merchants was
a shelf company which had never operated at all.
No evidence was led as to the assets, if any which are owned by the
companies.
In my view the plaintiff did not
lead sufficient evidence for the court to make a finding on the
issue. Even in the plaintiff's submissions no further claim was
made on the companies. I will thus not make an order in relation to
the companies as the plaintiff being a director and shareholder in
one of them will be in a position to proceed in terms of the
Companies Act [Cap24:03].
The plaintiff claimed costs against the defendant on a higher scale.
In my view there was no basis for such a claim. The defendant was
entitled to call Yolanda Madondo so that she could claim her
property. I do not consider that to have been an unnecessary witness.
The plaintiff has been largely successful in her claim and the cost
must thus follow the cause.
Having taken all the factors in this case into consideration I thus
make the following order:
1. A decree of divorce is hereby
granted.
2. That custody of the minor
children Diana Musonza (born 24 March 1993) and Tafadzwa Musonza
(born 24 January 2000) is hereby awarded to the plaintiff.
3. That the defendant shall pay
maintenance for the two minor children in the sum of US$100-00 per
month per child until each attains the age of 18 or become self
supporting whichever occurs sooner.
4. The defendant is hereby
ordered to pay the children's entire school account including school
fees, uniforms and books.
5. The defendant is hereby
awarded access to the minor children every alternative weekend and
half of every school holiday. The arrangements for picking up and
dropping off the minor children shall be arranged in consultation
with the plaintiff.
6. The plaintiff is hereby
awarded the movable property set out in annexure A attached to this
order.
7. The defendant is hereby
awarded the movable property set out in annexure B attached to this
order.
8. The plaintiff is hereby
awarded a 45% share of the immovable property being Stand 5654
Salisbury Township, situate in the district of Salisbury measuring
2,057 square metres also known as No.3 Dunmore Avenue, Queensdale,
Harare.
9. The plaintiff is hereby
awarded a 50% share in Stand 11571 Glenview Township, Harare.
10. The defendant is hereby
granted the option to buy out the plaintiff her share in each of the
properties set out in paragraphs 8 and 9 of this Order.
(a) The properties shall be
valued by a registered estate agent appointed by the Master of the
High Court from his list of valuers within thirty days of this Order.
(b) The defendant shall pay the
plaintiff her share of each of the properties set out in paragraphs 8
and 9 of this Order within ninety days of service of the valuation
report.
(c) The cost of the valuation of
the properties shall be met by both parties equally.
2. In the event that the
defendant fails to pay out the plaintiff her share in each of the
properties set out in paragraphs 8 and 9 of this Order in accordance
with paragraph 10 the properties shall be sold at best advantage and
the plaintiff awarded her share of the net proceeds.
3. The defendant shall pay the
plaintiff's costs of suit.
Debwe & Partners, plaintiff's legal practitioners
Magwaliba & Kwirira, defendants legal practitioners
ANNEXURE "A"
ONE DOUBLE BED
TWO SINGLE BEDS
ONE WARDROBE
ONE EXECUTIVE HEADBOARD
ONE SET OF SOFAS
ONE REFRIDGERATOR (ELECTROLUS)
ONE 24" COLOUR TELEVISION (PHILLIPS)
ONE BLACK AND WHITE TELEVISION
TWO HEADBOARDS
TWO SHOE RACKS
TWO SMALL COFFEE TABLES
TWO CORNER STANDS
FOUR PIECE KITCHEN TABLE
TWO VASE STANDS
ONE TOASTER
KITCHEN UTENSILS
ONE BIG WATCH
ONE MAROON FOOT STAND
ONE JEWLERY BOX
ONE HOME THEATRE
ONE SMALL FISH TANK
ONE PRESSURE COOKER (ORANGE)
ONE TWO PLATE STOVE WITH WARMER
FIVE BLANKETS
ONE STRIPPED CARPET RED AND BLACK
ONE TELEVISION STAND
ONE SET KITCHEN CUPBOARDS
ONE SATELITE DISH (MANHATEN)
ONE TELEPHONE TABLE (BLACK)
ONE BATHROOM SCALE
ONE SET FOOT MATS
ONE SET FRILL CURTAINS (GREEN AND WHITE)
ONE HONDA PRELUDE
TWO WOODEN DOORS
THREE STABLE DOORS PAIRS
TWO COTTAGE DOORS WOODEN
ANNEXURE "B"
THREE PAIRS OF SOFAS
ONE UPRIGHT FRIDGE
ONE COLOR TELEVISION
ONE BLACK AND WHITE TELEVISION
ONE KITCHEN TABLE
TWO HEADBOARDS
TWO CORNER STANDS
ONE RUG CARPET
KITCHEN UTENSILS
ONE TOASTER
ONE SUMMIT IRON
TWO ELECTRIC SEWING MACHINES
SET OF SOFAS
BIG SUITCASE WIT BLANKETS AND CURTAINS
ONE SONY 24 " TELEVISION
ONE NU-CHEF PLATE STOVE (BLACK)
ONE SINGLE BED
ONE SET BAR AND STOOLS
ONE SET FOOT MATS
ONE TELEVISION STAND
ONE KNITTED GARDEN TABLE
ONE SHOE RACK
ONE MERCEDES BENZ
TWO TOYOTA CRESSIDA
THREE WOODEN DOORS
THREE STABLE DOORS PAIRS
THREE COTTAGE DOORS WOODEN
BOX ASS H/WARE
BLINDS
