MUSAKWA
J:
The
plaintiff issued summons claiming a decree of divorce, rights of
access to the minor child, a division of matrimonial assets and costs
of suit. The defendant also filed a counter-claim seeking similar
relief.
The
parties agreed that the marriage had irretrievably broken down.
They
had also settled on custody of the minor children as well as division
of most of the movable assets.
The
only outstanding issues are the distribution of two refrigerators,
two motor vehicles and two immovable properties.
The
plaintiff testified to the effect that he married the defendant under
customary law in 1990. The marriage was later solemnized in 1992.
The
plaintiff confirmed that Flat Number 3 Selmont Gardens, Belvedere was
purchased by the defendant through a loan facility granted by her
employer. They agreed that the mortgage would be serviced through the
defendant's salary whilst the plaintiff's income would be used to
maintain the family. The flat was registered in the defendant's
name. The parties resided in the flat for about three years. The
plaintiff contributed towards maintenance of the property, levies and
rates. He put his indirect contribution at fifty percent.
The
plaintiff told the court that he applied for Stand Number 17170
Borrowdale. They moved in prior to its completion in 1995. Around
that time he had secured a loan from the Reserve Bank of Zimbabwe
financed through the Credit Guarantee Company. He purchased a bus
from whose proceeds he constructed the house. He engaged a
contractor. The mortgage on the flat was still being serviced by the
defendant. According to the plaintiff, the defendant's contribution
towards the construction of the house equates to thirty percent.
According
to the plaintiff ninety percent of the house's construction was
done on a cash basis as he had disposable income and was operating a
transport business. He later secured a mortgage to complete the
house. By then he was an Assistant Manager with T.A. Motors.
The
main house was completed in 2000. In 2005 they made extensions
comprising lockable garages, second lounge and balcony. By the time
he left the matrimonial home the extensions had reached roof level.
The
plaintiff had no idea when the mortgage on the flat was repaid in
2003 as he had been transferred to Marondera.
On
vehicles the plaintiff stated that he preferred the Daihatsu Move. If
the vehicles cannot be shared then they should be sold with the
proceeds being shared equally.
Between
2005 and 2006 he purchased foreign currency amounting to US$7,000
from the Bank. The family then went to South Africa where they
purchased the Daihatsu and a Toyota Corolla. At the border the
plaintiff caused the Daihatsu to be registered in the defendant's
name whilst the Toyota Corolla was registered in his name. Within a
month he sold the Toyota Corolla and invested the proceeds in Unit
Trusts. The income thus earned was used to develop the Borrowdale
house.
Later
the defendant was offered to purchase a Nissan Ex Saloon by her
employer, Agribank. The deposit of ten percent that was required was
paid from the Unit Trust account.
In
respect of household goods the plaintiff testified that he only
claimed a stove and a refrigerator. The four plate stove was
non-functional. Since there are two stoves and two refrigerators, he
was only claiming one of each. Since the refrigerators are an upright
one and a freezer, the defendant could choose what she preferred. The
items were acquired by the defendant as family property after the
parties had consulted each other.
On
maintenance the plaintiff agreed that he would meet all the child's
needs. It may be noted that the elder child is now a major.
It
was put to the plaintiff that the deposit for the Borrowdale property
was provided by the Reserve Bank and he stated that he would need to
verify that. He also stated that he overlooked to disclose during his
evidence in-chief that the extensions to the house were funded from
money he served when he was seconded to Toyota South Africa.
Regarding duty for the imported vehicles, it was put to him that the
money had been provided by the defendant and the plaintiff replied
that he had reservations.
The
plaintiff also indicated that he was residing in a house provided by
his employer for which he paid some rent. He also insisted that he
was in a stronger financial position than the defendant as he now
held the post of Divisional Director whereas the defendant had
remained a Personal Assistant.
On
maintenance for the minor Denis he agreed to pay for his school fees
and to meet other needs.
The
defendant testified that between 1988 and 2004 she worked for The
Reserve Bank. Apart from basic salary she was entitled to vehicle
loans, personal loans and housing loans. In 1990 she purchased the
flat through a mortgage bond financed by the Reserve Bank. She was
then still single. She resided in the flat until 1991.
She
subsequently sold the flat and surrendered the proceeds to the
Reserve Bank. In 1995, following cancellation of the bond she
acquired Number 3 Selmont Gardens. The purchase price came from the
proceeds of the disposal of the flat. The plaintiff did not make any
direct contributions.
Part
of the funds for development of the Borrowdale property came from the
rentals received for the flat. The rentals from the flat used to be
deposited into the plaintiff's account but he sometimes squandered
it. She then caused the rentals to be deposited into her account with
Standard Chartered Bank. She uses the rentals to pay school fees for
the child who is at Heritage School.
She
further stated that she purchased the Stand for the Borrowdale house
after securing a loan from the Reserve Bank. She was adamant that the
plaintiff made no contribution. She also stated that she used to earn
more than the plaintiff as they used to receive frequent salary
increments at the Central Bank. She was able to tell the court
details about who drew the plan, where building materials were
sourced.
The
bus that was purchased by the plaintiff was a twenty-five seater. The
income derived from it was negligible as most of the money went for
loan repayment, wages and running costs. At some stage loan repayment
were in arrears and the defendant had to chip in. The bus was later
disposed of.
Extensions
to the house were the plaintiff's idea although he contributed
nothing. Most resources came from the defendant's retrenchment
package whose proceeds had been deposited into the Standard Chartered
account. She then deposited part of the money with Highveld Financial
Services.
Extensions
to the house comprised a guest bedroom with ensuite, guest toilet,
passage, double lock-up garage, balcony and a second lounge. She also
used proceeds from the retrenchment to purchase a 29 inch colour
television set, a television stand, 12 cubic feet single door
refrigerator, microwave oven and a four plate stove. Part of the
funds was used to purchase a Toyota Corolla motor vehicle which was
subsequently sold to a Mr. Khan. The money received from Mr. Khan was
initially deposited into the plaintiff's account and he later
transferred it into the Highveld account.
Regarding
the importation of vehicles from South Africa, it was the defendant's
evidence that she transferred money into the plaintiff's account
for the purchase of traveler's cheques. She also obtained R2,500
from Agribank for their subsistence and accommodation. Money for duty
in respect of the Daihatsu was withdrawn from the plaintiff's
Agribank account. The defendant then used her visa card to clear the
Toyota Corolla.
The
defendant indicated that she wants to retain the matrimonial home for
the sake of the children. She expressed her willingness to buy out
the plaintiff's share.
In
his submissions Mr. Guwuriro
cited section 7 of the Matrimonial Causes Act [Chapter
5:13]
as the provision that guides a court in apportioning matrimonial
assets. He further submitted that the provision is not specific on
what constitutes matrimonial property. He also cited the case of
Takafuma
v Takafuma
1994 (2) ZLR 103 (SC) as authority on how a court should divide
matrimonial assets.
In
respect of the movables Mr. Guwuriro
submitted that the established evidence was that the refrigerators
were purchased from proceeds of investments with Highveld Investment
Services. Therefore, the plaintiff should be awarded one of the
refrigerators.
Mr.
Guwuriro
further
submitted that there was evidence to show that the plaintiff
contributed towards maintenance of the Belvedere property. He also
submitted that the evidence shows that the plaintiff is the one who
acquired the Borrowdale stand and that both parties contributed
towards its development.
Overall,
he submitted that the plaintiff should be awarded fifty percent of
the Belvedere flat and seventy percent of the Borrowdale house. It
was also submitted that the plaintiff will be able to buy out the
defendant's share within thirty days.
On
the other hand Mr. Nkomo
submitted that the dispute between the parties centres on the
children whose custody was awarded to the defendant. In making an
award, he submitted that the court should take into account the
interests of the children who regard the Borrowdale house as home. In
this respect he cited section 7(4) of the Matrimonial Causes Act.
Mr
Nkomo
correctly submitted that since the Borrowdale property is jointly
owned by the parties, the starting point is that the parties own
equal shares.
The
next stage, according to Takafuma's
(supra) case is to take away from one party and awarding to the other
according to their respective contributions.
In
this respect, Mr. Nkomo
submitted that the plaintiff's evidence on the nature of his
contribution is unreliable as he did not provide any documentary
proof. He further attacked the plaintiff for not disclosing the
sources of his income during his evidence in-chief. In short, he
submitted that the plaintiff generalized his contributions in respect
of the Borrowdale property. In essence, he contended that the
evidence speaks for itself that the defendant made more contributions
than the plaintiff.
Although
the evidence in respect of the flat shows that it was acquired solely
from the defendant's resources, Mr. Nkomo
did point out that the defendant conceded that the plaintiff
contributed towards its maintenance.
In
accordance with the case of Takafuma
v Takafuma (supra),
the starting point is that the Borrowdale property is jointly owned
by the parties.
Although
the plaintiff claimed a greater share on account of a greater
contribution, he did not proffer evidence to prove that.
Each
party testified on the nature of contributions they made in respect
of the development of the Stand without tendering actual receipts on
the payments made.
The
court's overall assessment is that none of the parties is entitled
to a greater share than the other. Therefore this property will be
apportioned equally to both parties, with the defendant being given
the right to remain in occupation until the younger child attains
majority status. Thereafter the defendant shall buy out the
plaintiff's share failing which that option will be given to the
plaintiff.
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. However, its acquisition was
solely financed by the defendant albeit from the proceeds of an
earlier property. It is in fact registered in the defendant's name
and would fall in the category of “hers”.
The
plaintiff claims a share of the property on the basis of his
contribution towards its maintenance. This was basically in the form
of rates, levies and telephone bills. The amount involved was not
stated. The parties only stayed in the property for about three
years. I would hold that the plaintiff is entitled to a share albeit
it would be very negligible on account of his small indirect
contribution. This is in accordance with section 7(1)(a) of the
Matrimonial Causes Act which provides that -
“(1)
Subject to this section, in granting a decree of divorce, judicial
separation or nullity of marriage, or at anytime 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)
…………………….”
Therefore,
although the flat belongs to the defendant it can be subject to
division by virtue of the above provision. However, in making such a
decision the court must take into account the provisions of section
7(4) which provide 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 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.”
In
the court's discretion, the plaintiff will be awarded a five
percent share in the flat.
As
regards the movables, the documentary evidence before the court shows
that the Nissan Sunny vehicle was acquired by the defendant through a
loan from her employer. It would not constitute her property until
the loan was discharged. It is therefore not subject to distribution.
As
for the Daihatsu Move, the documentary evidence shows that the
defendant received a substantial retrenchment package from the
Reserve Bank in 2004. She invested the money with Highveld Financial
Services. She subsequently applied for holiday travel allowance. When
the vehicle was imported, she paid for the duty from funds from her
Agribank account and in this case she accessed the account through
the Agribank branch at Beitbridge.
Taking
into account that the defendant played a more significant role in the
vehicle's acquisition and the fact that she is going to be awarded
custody of the minor child, it is only fair that the Daihatsu Move be
awarded to her.
In
respect of household goods the only contested items are the two
refrigerators.
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. To
award both of them to the defendant would result in an unequal
division taking into account the purpose of the Act.
Therefore
the defendant will be given the option to choose one of them and hand
over the other to the plaintiff. In reaching this decision I have
taken into account that the defendant is being awarded the bulk of
the movables.
Accordingly,
it is ordered that -
1.
A decree of divorce be and is hereby granted.
2.
Custody of the minor child Dennis Tawanda Simango is granted to the
defendant with the plaintiff exercising access during alternative
weekends and half of each school holiday.
3.
The plaintiff shall pay school fees for Anna Sibahle Simango based on
the Monte Casino Girls High School scale.
4.
The plaintiff shall be responsible for the payment of Dennis Tawanda
Simango's school fees including all other school requirements.
5.
In respect of Flat Number 3 Selmont Gardens, the plaintiff is awarded
a five percent share whilst the defendant is awarded a share of
ninety five percent.
6.
Both parties are awarded equal shares in Stand Number 17170 Sable
Street, Borrowdale.
7.
The defendant is given the right to remain in occupation of Stand
Number 17170 Sable Street, Borrowdale until Dennis Tawanda Simango
attains the age of eighteen years. Upon Dennis Tawanda Simango
attaining the age of eighteen years the defendant shall buy out the
plaintiff's share failing which the plaintiff is given that option.
8.
All the movable assets including the Daihatsu Move vehicle are
awarded to the defendant save that the defendant shall choose one of
the functional refrigerators and hand over the other to the
plaintiff.
9.
Each party shall bear their own costs.
T.
K. Hove and Partners,
the plaintiff's legal practitioners
Mtetwa
and Nyambirai,
the defendant's legal practitioners
