MUSAKWA
J: The parties in this matter had been married for a considerable period of
time until they started living apart in 2001. At the pre-trial conference stage
they agreed that the marriage relationship had irretrievably broken down. They
also agreed on the division of some movables.
Referred
for trial was the issue of what constitutes the matrimonial estate and how it
should be divided as well as whether the plaintiff should be ordered to provide
maintenance for the defendant. However, the parties, in their joint pre-trial
conference minute agreed that whatever the court holds to be matrimonial
property should be shared equally.
The
plaintiff testified that the parties married in 1970. However, they had
commenced living together in 1969. The plaintiff now resides at flat number 4 Inverurie
Court, 137 King George Road, Avondale, Harare. Initially, the plaintiff was
unemployed whilst the defendant was employed as a nursing sister at St Anne's
Hospital.
The
defendant secured a flat to rent in 1970 and the plaintiff subsequently moved in.
Later they rented a cottage in Ballantyne Park. The plaintiff had now secured a
job with Farmers Club. Both parties contributed towards rent and household
expenses although the defendant earned more than the plaintiff. They resided in
Ballantyne Park for several years until their first child was born.
The
plaintiff took over the bond in respect of 46 Glenara Avenue in the early
1970's from his parents. According to the plaintiff, he got the house as part
of his inheritance. Whilst he serviced the bond, the defendant contributed
towards household expenses. They stayed in this house until 1977.
In
1976 the plaintiff was offered a fishing concession in Darwendale. He purchased
Crebilly A farm from Mr Jock Kennedy for Z$14 000. The money was provided by
his parents. He claims he did not refund them as it was part of his
inheritance. He then secured a loan and established a factory.
The
Eastlea house was subsequently sold for Z$46 000 and the bond paid off. The plaintiff
still worked for Farmers Club whilst the defendant now worked at Dr Hamilton's
surgery. The plaintiff claimed he now earned more than the defendant as he did
military call-up duties. However, they combined their incomes.
The
parties moved to Darwendale in 1978. The defendant left employment then.
Commercial fishing had commenced in 1977. V&M Fisheries (Private) Limited
was established and run as a family business in which the defendant has a fifty
percent share.
When
the plaintiff's father fell ill he was allowed to withdraw money from his account.
Some of the money was deployed in the family business. The homestead at
Crebilly A farm was built from funds generated by V & M Fisheries. Crebilly
A farm is registered in the plaintiff's name. In 1989, using funds from V &
M Fisheries the parties purchased Riverside farm which is registered in the
defendant's name. Riverside farm was compulsorily acquired by the government in
2000. The improvements on that farm such as irrigation infrastructure,
boreholes and fencing were funded by V & M Fisheries as well.
V
& M Fisheries' fishing concession was cancelled in 2009. According to the
plaintiff the company no longer makes profit owing to competition from other
operators.
According
to the plaintiff the Lloyds account was opened in the 1980's after his parents
had died. The funds came from his inheritance. Some funds were deposited into
the Standard Bank, South Africa account. The account was opened when the
parties intended to settle in South Africa. There is also an account with ABSA
which he opened with funds from his inheritance. A third of the inherited funds
remained in Zimbabwe.
An
account with Standard Bank in the Isle of Man was opened in 2004. He opened it
with a deposit of 10 000 pounds withdrawn from the Lloyds account. The
plaintiff subsequently did some consultancy in South Africa for which he was
paid R1 000 000. Of this amount, the plaintiff transferred the equivalent of 83
000 pounds into the offshore account.
The
crocodile business was conducted under V & M Fisheries. They exported skins
and the proceeds thereof were deposited in a foreign currency account. This
money was used for V & M Fisheries business. According to the plaintiff in
2001 most farmers left the farms and there was a food and power deficit. He
sold 29 breeders. There were 559 hatchlings of which some died.
Jewellery
valued at 25 000 pounds was bequeathed to the defendant by the plaintiff's
mother. It was initially kept in a safe and subsequently exported to England.
Part of it was stolen and the agent's father paid a sum of 5 000 pounds which
was deposited in the Lloyds account.
Part
of the income generated by V & M Fisheries was used on holiday by the
family. They travelled to the United States of America, United Kingdom, South
Africa and Israel. He also paid for their son's university fees and purchased a
motor vehicle for him.
The
flat in which the plaintiff resides was purchased for between 23 000 pounds and
25 000 pounds. It was acquired from proceeds of the offshore account he opened
in the Isle of Man. It is registered under Showbel Investments of which the
plaintiff is the majority shareholder. The plaintiff also purchased a generator
and a Nissan double cab vehicle.
The
plaintiff also testified about setting up a company called Ultra Light
Aviation. He purchased the first plane using money from his inheritance. He
subsequently sold the company to his son. He also bought a yatch which he
subsequently sold. Under cross-examination the plaintiff conceded that as part
of her indirect contribution the defendant maintained the home and took the
children to school. She also maintained the company's records and took fish
deliveries to town. Both the plaintiff and the defendant visited Israel in 1985
where they learnt fish breeding.
The
plaintiff also confirmed that Crebilly A farm was not acquired by the state. He
conceded that compensation in respect of acquisition of Riverside farm be paid
to the defendant. Concerning the defendant's jewellery he testified that a
total of 9 000 pounds was received and deposited in the Lloyds account. He also
offered the defendant US$5 000 by way of a lump sum.
On
the other hand the defendant testified that she now resides with her daughter
and son in-law. She helps her son in-law with his business and also helps with
the grandchildren. She quit nursing in 1978.
She
disputed that the Eastlea house was inherited by the plaintiff. Rather, it was
a donation to them to help them get started in life. The bond was serviced from
their salaries. The money to purchase Crebilly A Farm was borrowed from the plaintiff's
parents. She was very much involved in the fishery business. They purchased
Riverside farm for the family although it was registered in her name. They
leased the farm and the proceeds went to V & M Fisheries. When the
plaintiff was involved with Ultra Light Aviation she looked after their
business at the farm.
The
defendant confirmed that money from property inherited by the plaintiff was
ploughed into the fishery business, Riverside farm and the crocodile business.
She was involved in the crocodile business between 1994 and 2002. The last records
regarding the crocodiles were prepared by their son and she confirmed them. According
to the defendant the breeders laid between 500 and 600 eggs and they sold about
400 crocodiles yearly. She was not consulted when the crocodiles were sold. She
thus claims half the value of the crocodiles.
In
respect of the jewellery the defendant stated that it was exported without her
consent. It had been bequeathed to her by her late mother in-law. The money
earned from the jewellery was not accounted for.
Basically
the defendant was of the view that after thirty years of marriage she deserves
more than the US$5 000 that was offered by the plaintiff. She prefers the flat
and the plaintiff can retain Crebilly A farm. Regarding her maintenance she
could not come up with a figure as she said she wanted to think about it.
Gelen
Michael Moroney who is a son of the parties testified on behalf of the
defendant. He grew up at Crebilly A farm. After attending university in South Africa
he returned in 1991 and resided at Riverside farm until 2000. He assisted in
farming operations until the formation of Ultra Light Aviation. After leaving
Riverside farm he went to Crebilly A farm for two months which he would
subsequently visit from Victoria Falls. It was also his evidence that between
2002 and 2004 he introduced the plaintiff to a representative of De Veres &
Partners. This was in connection with the opening of an account into which
proceeds from the crocodile business would be deposited.
Glen
Michael Moroney further stated under cross-examination that between 2000 and
2004 he worked at Crebilly “A” Farm. Between 400 and 600 crocodiles were sold
per year. Up to 2000 crocodiles were sold to a company called Niloticas. In
2004 some hatchlings were sold to a buyer in Banket whilst some breeders were
sold to Mr Nesbitt. He also stated that crocodiles can be fed once in two
months, hence there would not be many fatalities.
In
determining this matter I will take into account that the parties are agreed
that the household effects at Crebilly “A” Farm should be shared equally. The
plaintiff also undertook to maintain the defendant on a suitable medical and
dental aid scheme and to meet related shortfalls until she remarries or dies. The
plaintiff did not dispute that the defendant should claim the entire
compensation on improvements made to Riverside Farm. The parties also agreed
that V & M Fisheries be wound up and the proceeds shared equally.
I
will also take note that although maintenance for the defendant was made an
issue by virtue of her plea she did not lead sufficient evidence on which a
determination can be made. It is not sufficient to state that she is no longer
employed and that she has no prospects of ever being employed as a nurse. In
short, no evidence was led regarding what her basic needs amount to. In
addition she claimed to have sustained impaired vision as a result of a traffic
accident but she did not lead evidence on the extent of such disability.
The
defendant also sought to be awarded the value of her jewellery that the
plaintiff allegedly exported to the United Kingdom without her consent. This
issue only arose during trial. There was an attempt to seek an amendment to the
defendant's plea by making a counter-claim by the defendant's counsel in her
written submissions. I agree with the plaintiff's counsel's submissions that
this is impermissible. Whilst the issue was dealt with during the course of
trial, an amendment to pleadings cannot be made by way of closing submissions.
The
plaintiff's counsel cited the well known case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC) as authority on the
approach to be made in making an award on assets following a divorce. In that
case McNALLY JA had this to say at p 106 –
“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".
Using
the above approach, the following property falls under the category of 'his';
Crebilly 'A' Farm, flat number 4 Inverurie Court, King George Road, Avondale,
Kipor generator and Nissan double cab vehicle. Riverside Farm constitutes 'hers'
(the defendant). Then V& M Fisheries (Private) Limited constitutes 'theirs'
as both parties have equal shares in the company.
However,
the above distribution would not be equitable in the circumstances as the
defendant would not be placed in the same position she would have been had a
normal marriage relationship continued. In apportioning these assets the court
has to take into account the provisions of s 7 (4) of the Matrimonial Causes
Act [Chapter 5:13] which read that-
“(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”.
Although
both parties are no longer employed, it is not in doubt that the plaintiff has
better resources. Although he claimed that the money that he used to open the
Lloyds account came from his inheritance, he was not able to specify exactly
how much that was. In any event, the estate of his late father was wound up in
local currency and it is not clear how he converted it to foreign currency and
hence externalized the funds. The same applies to the export of crocodile
skins. The proceeds appear to have been externalized. Although he claimed that
proceeds from the export of crocodile skins were ploughed back into the
business, no specific breakdown of these transactions were given. The plaintiff
appears to have been quite capable of maintaining records of his transactions
as evidenced by his bundle of documents which for some reason do not reflect
the earnings from the crocodile business. It seems money from the plaintiff's
inheritance got mixed with earnings from the business and other sources. The
distinction between what constitutes inherited funds and income from other
sources is blurred as a result.
The
financial needs of the parties are balanced in favour of the plaintiff if one
takes into account the resources available to them. The court will have to
consider what to take away from the plaintiff and award to the defendant. This
is in accordance with ss (1) of s 7 of the Act which states that-
“Subject
to this section, in granting a decree of divorce, judicial separation or
nullity of marriage, or at any
time
thereafter, an appropriate court may make an order with regard to—
(a)
the division, apportionment or distribution of the assets of the spouses,
including an order that any asset be
transferred
from one spouse to the other;
(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”.
In
making an order in terms of ss (1) the court is enjoined to take into account
the provisions of ss (4). Going by the ages stated in the marriage certificate,
the plaintiff and the defendant are now 63 years and 64 years respectively.
They would be pensioners now. I have already pointed out that the plaintiff has
better financial resources and it will be equitable, in the court's discretion
to order that part of those resources be transferred to the defendant. It is
also noted that in his testimony the plaintiff offered the defendant US$5 000. He
has about 61 000 pounds in his offshore account in the Isle of Man. The
Standard Bank account South African account has a balance of R11 500 whilst
there is about 3 000 pounds in the Lloyds TSB account.
The
court will also take into account the duration of the marriage which in this
case lasted thirty one years before they separated. There is no doubt that the
defendant made considerable indirect contributions to the development of
Crebilly 'A' Farm during the course of the marriage. In the first place she
quit her nursing job to devote to the fishing operations and family
commitments. Prior to that they used to pool their earnings together in order
to meet their financial obligations and household needs. Whilst the plaintiff
claimed that the money used to set up the farm came from her parents for free, the
defendant stated that it was in fact a loan which they repaid in the first few
months. The defendant's testimony on this aspect was not challenged. The
plaintiff also testified that he used part of his inheritance to develop the
farm without giving a breakdown of any specific funds. If he did use part of
his inheritance for that purpose it was for the benefit of the entire family.
In any event Crebilly 'A' Farm homestead was developed from funds generated by
V & M Fisheries in which both parties have equal shares.
Taking
into account the duration of the marriage and the defendant's indirect
contribution to Crebilly 'A' Farm it is equitable that she be awarded a fifty
percent share. This takes care of the fact that she is only getting
compensation in respect of improvements to Riverside Farm which was acquired by
the state. In addition, the defendant has no home to retire to in her old age.
I have taken into account that the flat was acquired by the plaintiff after the
parties had separated.
In
the result it is ordered as follows-
a) That
a decree of divorce be and is hereby granted.
b) That
compensation for improvements to Riverside Farm shall be payable to the
defendant.
c) That
the plaintiff be awarded flat number 4 Inverurie Court as his sole property.
d) That
V & M Fisheries (Private) Limited be wound up with the proceeds being
shared equally between the plaintiff and the defendant.
e) The
Kipor generator is awarded to the plaintiff.
f) The
parties shall keep the motor vehicles and any other movables in their
respective possession as their sole property.
g) The
defendant is awarded a fifty percent share in of Crebilly 'A' Farm.
h) The
movable property in Crebilly 'A' homestead shall be shared equally between the
parties.
i)
The plaintiff shall maintain the
defendant at his cost on a suitable medical and dental aid scheme and pay all
shortfalls until the latter remarries or dies.
j)
The amounts in the following bank
accounts shall be shared equally between the parties- Standard Bank, South
Africa, ABSA and Lloyds Bank.
k) Within
three months of the granting of this order the plaintiff shall pay the
defendant an amount of 10 000 pounds.
l)
Each party shall bear their own costs.
Muringi Legal Practitioners, for the
plaintiff
Atherstone
& Cook, the defendant's
legal practitioners.
