MUSAKWA
J:
One
usually expects that once a married couple agrees to end their
relationship premised on irretrievable breakdown, then they ought to
come to a settlement in respect of some if not all ancillary issues.
There appears to have been acrimony that militated against that in
the present matter, such that the court has to parcel out mundane
items like knives.
The
parties having agreed that the marriage relationship had
irretrievably broken down, the issues referred to trial were-
(a)
Who should be granted custody of the minor children.
(b)
Whether property listed in the plaintiff's declaration was acquired
during subsistence of the marriage and if so, whether it constitutes
matrimonial property.
(c)
What constitutes an equitable distribution of the matrimonial estate.
At
the commencement of trial the parties' legal practitioners agreed
that the following immovable property constitutes matrimonial
property-
(a)
27 Skymaster Drive, New Ridgeview, Belvedere.
(b)
4792 Dzivaresekwa Extension.
(c)
7782 Cold Comfort, Tynwald South.
(d)
22468 Unit L, Chitungwiza.
The
above properties are to be valuated and sold by private treaty, with
the parties sharing the proceeds equally.
What
remained in contention was 7859 Belvedere West, Harare and 1334
Norton Township, Galloway, Norton.
However,
if such property falls within the matrimonial domain, then it should
be treated like the first category.
The
other issue was whether the defendant is entitled to a half share in
Transelectrical (Private) Limited.
There
was also the issue of division of some movables. Some of the issues
regarding movables got resolved as the plaintiff testified.
The
plaintiff testified that he qualified as an electrical engineer in
1987. He then worked for several companies before he ventured into
private enterprise. This led to the incorporation of Transelectrical
(Private) Limited in 1995. At the time of trial the company was said
to have ceased operations owing to the prevailing economic
environment.
There
are two children born during the marriage, a girl now aged 13 years
and a boy aged 11 years. They were attending school at Louis Mt
Batten Primary School.
By
mutual consent of the parties the defendant went to the United
Kingdom in 2002. According to the plaintiff their daughter was then
four years whilst the boy was two years. He thus raised the children
on his own. He was assisted by his nephew and a maid. The defendant
was supposed to be away for six months but she only returned in 2006.
When
the defendant left the country the plaintiff was in the process of
building the Ridgeview house which had reached roof level. The
defendant was then contributing towards a scheme dubbed “Pay For
Your Own House.” The house in question is in Dzivaresekwa
Extension.
The
defendant moved out the Ridgeview home in 2008. She went away with
the children. The plaintiff said he had subsequently seen the
children only for one week during the first term of 2009.
The
defendant does cross-border trade whereby she travels to South Africa
and Mozambique. According to the plaintiff she is out of the country
for two weeks every month. In addition she was said to have a
Malawian and Zimbabwean passport. She was also said to have two birth
certificates relating to her which are in different names. In
essence, the plaintiff's contention was that this is proof of the
defendant's unreliability as a suitable custodian for their
children.
On
movables the plaintiff testified that there is a Nissan double cab
which is registered under Transelectrical (Private) Limited, a Toyota
Corolla, a Pajero and Ford Transit. The Toyota Corolla and Pajero are
with the defendant. He claimed that he be awarded the Toyota Corolla
whilst the defendant gets the Pajero. The Ford Transit should be sold
and the proceeds shared equally between them.
On
the household goods that are in contention, the plaintiff testified
that the electric stove was purchased before they got married. Under
cross-examination he agreed that it be awarded to the defendant. The
defendant later testified that the stove had only one functional
plate. She countered that it be awarded to the defendant who can
repair it since he is an electrical engineer.
There
is also a gas stove which the plaintiff claimed he purchased from
Makro despite the defendant's opposition. He said they had never
used it as the defendant did not like it.
On
generators, the plaintiff stated that they belong to Transelectrical.
He
agreed that the dstv decoder be awarded to the defendant. In fact he
agreed that the defendant be awarded two of the three decoders and a
14 inch color television set.
Although
he confirmed that there are six cameras, he was willing to give the
defendant only one, an Olympus. The defendant was said to have taken
away the Technics radio whilst he remained with the Sony radio. He
also wants the defendant to return the dressing table as it is part
of the bedroom suite. On kitchen utensils the defendant was said to
have moved out with most of them.
In
respect of the immovable property the plaintiff testified that upon
the defendant's return they held a family meeting on 6 July 2006.
At that meeting the defendant admitted that she had purchased some
properties without the plaintiff's knowledge. These included the
Belvedere West Stand and the Norton Stand.
The
plaintiff stated that he was not even aware that the Belvedere West
stand had been disposed of.
He
also stated that the Unit 'L' property and the Norton stand were
acquired through the defendant's brother in whose names they are
registered. The defendant's brother is Munyaradzi Muguti. The
plaintiff was adamant that the plaintiff's brother could not afford
to purchase these properties as he was not employed. He further
contended that the defendant's share in the Ridgeview property
should be diminished proportionate to her interest in these two
properties.
The
plaintiff also stated that if he is not awarded custody he should be
granted access twice a month during weekends and during half of each
school holiday.
The
plaintiff's nephew, Noah Nyamupinda also testified. His testimony
corroborated that of the plaintiff regarding how he took care of the
children during the defendant's absence. Part of the evidence also
dwelt on the fights that he witnessed between the plaintiff and the
defendant.
The
defendant testified that she commenced residing with the plaintiff in
1995 before the marriage in 1996. When she went to the United Kingdom
the air ticket was funded by the plaintiff's friend. She
subsequently repaid the loan. She explained that the plaintiff
borrowed funds to complete roofing of the Ridgeview house. Upon
request from the plaintiff she remitted some funds for repaying the
loan. She explained that she would provide money to someone in the
United Kingdom and that person would transfer money in local currency
into the plaintiff's C.B.Z account. She also provided funds for the
family's subsistence.
She
confirmed that she took the children to her mother's house on
account of the differences she was experiencing with the plaintiff.
For example, she said eggs are kept in the bedroom by the plaintiff.
The mealie-meal was rationed out in a five litre container. Keys to
the pantry were kept by the plaintiff's niece.
Since
the time she moved out the plaintiff had not followed up on the
children. She had no problem if custody was granted to the plaintiff
although she claimed to be a better parent. She confirmed that she
goes out of the country once a month since she operates a stall at
Mupedzanhamo flea market. She sated that she realized about US$400
per week.
The
defendant also confirmed having differences with the plaintiff and
his niece. She obtained a Peace Order against the plaintiff. The
children's school performance was affected. She talked to the
deputy school head who suggested that they go for counseling. The
plaintiff was said to have declined to participate. As a result she
went to Connect. She produced a letter from Connect who recommended
that the children be enrolled at boarding school.
On
the movables the defendant claimed that the plaintiff locked away a
slow cooker, steamer, food processor, bread maker and electric frying
pan in the study. There were also two sets of stainless steel knives.
She wanted a set of stainless steel knives, the steamer, slow cooker
and food processor. On vehicles she wants the Pajero and Corolla as
she has been using them.
Regarding
cameras, the defendant stated that she wants three out of the six
available. Since the plaintiff was insisting on all bedroom items she
demanded to be awarded the dining room suite.
She
maintained that the Norton property belongs to her brother. She
further explained that she happened to have the building plan for the
property since the person who drew it was based in the United
Kingdom.
The
Belvedere West stand was purchased in 2003. She could not develop it
because of some legal dispute and she decided to sell it. She used
the proceeds for her sustenance and the balance to start her flea
market business.
Now,
in determining the issues it is well established that the best
interests of the child determine which parent can be awarded custody.
Counsel for the plaintiff cited the case of Zvorwadza
v Zvorwadza
1996 (1) Z.L.R 404 (SC).
In
that case the parties agreed to divorce as well as that custody of
one of the children be awarded to appellant. Custody of two other
children as well as other matters remained in contention. By the time
the matter went to trial one of the children had attained majority
age. Custody of the other child was then awarded to respondent. The
trial court had among other things reasoned that custody of older
boys should be awarded to the father. MUCHECHETERE J.A had this to
say at pp 409-410:
“The
learned judge misdirected himself on the matter. For it is proper to
canvass the views of the minor children on their preference when the
court is considering the best interests of the children. It would
have been much more preferable in a case such as the present one,
where the infant in question is of sufficient age and intelligence to
be questioned on the matter, and where both parents cannot be said to
be irresponsible.
See
Clark v Clark 1939 (1) PH B29 (SR) where, in a judicial separation,
Blakeway J awarded custody of the minor child to the husband. One of
the reasons why custody was granted to the husband was because the
minor child had said that he wanted to remain with his father and
that he was afraid of his mother.
In
Siyaya v Siyaya 1958 (2) PH B17 (C), where Rosenow J awarded custody
in accordance with the preference of the children, it was held that:
'The
interests of the children could not be measured purely in terms of
superior accommodation and amenities. A child required, above all,
care and affection. The court had been influenced particularly, in
coming to a decision, by the preference shown by the children
themselves. Although the applicant might not be able to offer as much
luxury and comfort as they would have with (the) respondent, there
was the evidence that she was able to look properly after them, and
the five youngest children themselves would be happier if in the
meantime they were allowed to remain in the care of the party for
whom they themselves had shown a preference ...'”
The
first thing to note in the present matter is that both parties may be
able to provide financially for the children. Both may also be able
to help with the children's school work. That the plaintiff was
able to take care of the children cannot be given more prominence
than other factors. It is common cause that the parties had agreed on
the defendant's sojourn in the diaspora although the plaintiff was
not happy with her extended stay. That the plaintiff is disabled is
not a factor as he was able to look after the children during the
defendant's four year absence.
One
other aspect worth considering is the plaintiff's attitude towards
the children as revealed by the evidence.
It
was stated by the defendant that he keeps some food items in the
bedroom and shares out the mealie-meal. When the defendant took away
the children the plaintiff did not follow up.
This
evidence was not challenged by the plaintiff.
The
defendant further stated that the children's school performance was
affected and she talked to the deputy head who recommended that the
parties seek counseling. The defendant went to Connect. The plaintiff
was said to have declined to avail himself for counseling. The
defendant appeared more forthcoming as she said she also wanted to
know where she was failing. Had the plaintiff availed himself for
counseling the court could have benefited from the report that would
have been prepared in as far as suitability of the parties as
custodians is concerned.
Much
was made of the defendant's unsuitability for custodianship on the
basis of her dishonesty. The copies of the defendant's birth
certificates produced by the plaintiff show that they were obtained
in 1968 and 1979. The births were registered by the defendant's
mother. In the circumstances one cannot make much of the issue.
The
defendant also did not deny using two different passports. She
explained that whilst she was in the United Kingdom she obtained a
Malawian passport in order to enhance her chances of securing more
jobs in order to boost her earnings. Whilst her conduct fell foul of
Zimbabwean law that cannot disqualify her from being awarded custody.
Her dishonest conduct does not make her an unfit parent. To the
contrary, her conduct on parenting since her return from abroad does
not exhibit any signs that might militate against an award of
custody.
On
the sharing of assets the starting point is to note the provisions of
the Matrimonial Causes Act [Cap
5:13]
of which section 7(1) provides 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)……………….”
However,
in making an order in terms of the above provision, the court is
enjoined to also take into consideration subsection (4) which states
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.”
At
the commencement of the proceedings both counsels confirmed that the
parties were contesting the division of some of the movables. These
turned out to be cameras, cutlery, furniture and some machinery. The
plaintiff made concessions in respect of some of the items although
he was adamant in respect of some. For example, he insisted that the
defendant was only entitled to one camera out of the six without
justifying that position.
In
making an award the court will take into account the provisions of
section 7(1) of the Act and use its discretion accordingly.
The
defendant also sought a division of assets belonging to
Transelectrical (Private) Limited.
The
plaintiff's evidence was that this company was incorporated in 1995
before he got married to the defendant. He has a fifty percent share.
Apart from the claim that the plaintiff used some of the company's
assets like the Nissan motor vehicle and generator, there was no
evidence on which the court could conclude that it is a family
business. The court was not urged to pierce the corporate veil in
order to determine whether the plaintiff was solely in control of the
company. No documentation was produced to show who the directors of
the company are.
I
will therefore proceed on the basis that the company is a separate
legal entity and that assets that are registered in its name are not
subject to distribution. That means the generators and the Nissan
motor vehicle will not be shared between the parties.
At
the time of trial the plaintiff told the court that the company was
not operating and that is why some of the company's assets were
being kept at home.
I
will therefore not consider whether the defendant is entitled to that
portion of the plaintiff's shares in the company. In any event no
evidence was led on what the plaintiff's share in the dormant
company amounted to.
Regarding
motor vehicles, if one disregards the Nissan Hardbody that is
registered in Transelectrical (Private) Limited there are three motor
vehicles for distribution. In my view it would be fair that the
defendant retains the Mitsubishi Pajero whilst the plaintiff gets the
Toyota Corolla. The Ford Transit shall be sold, with the parties
sharing the proceeds equally.
As
regards the immovable properties, the proper approach is to apply
what was stated in Takafuma
v Takafuma
1994 (2) ZLR 103 (SC). In that case McNALLY JA had this to say at pp
105-106:
“The
duty of a court in terms of section 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 section 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 section 7(3) and consider whether the objective has been
achieved, namely, "as the registration of rights in immovable
property in terms of the Deeds Registries Act [Chapter 139] is not a
mere matter of form. Nor is it simply a device to confound creditors
or the tax authorities. It is a matter of substance. It conveys real
rights upon those in whose name the property is registered. See the
definition of 'real right' in section 2 of the Act. The real
right of ownership, or jus in re propria, is 'the sum total of all
the possible rights in a thing' - see Wille's Principles of South
African Law 8ed p 255.
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". 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 ..."
It
is common cause that out of the immovable properties, only the
Ridgeview house is registered in the plaintiff's name. The rest of
the properties are either in the defendant's name or that of her
nominee or that transfer of title had not taken place.
It
was not disputed that the defendant purchased all the immovable
properties during the course of marriage without the plaintiff's
knowledge.
In
2003 she purchased Stand 7859 Belvedere West which she subsequently
sold without the plaintiff's knowledge. She admitted in evidence
that she used part of the proceeds to start her business.
Although
the defendant claimed that the Norton stand belongs to her brother,
the probabilities that she used her brother as a front are very high.
In the first place the brother unaccountably failed to attend court
to testify as the defendant's witness on the issue. There was also
evidence to the effect that the defendant was in possession of
building plans for the Stand. The court was not furnished with proof
of purchase of the Stand to show who purchased it.
To
demonstrate the defendant's stealth the plaintiff produced an
agreement of sale in relation to Stand 22468 Unit 'L' Seke which
was entered into by Munyaradzi Muguti on behalf of the defendant.
Part of the agreement reads as follows:
“1.
That the Stand No. 22468, Unit 'L', Seke, Chitungwiza shall be
ceded to Munyaradzi Muguti as if he is the real owner (purchaser)
thereof.
2.
In the event that there is a dispute between Vivian and Munyaradzi
resulting in Munyaradzi refusing to cede right, interests and title
in this Stand to the real purchaser namely Vivian Mukomberanwa,
Walter Makwili shall not be liable to Vivian Muguti in any way i.e.
either to provide another property nor to refund the purchase price.”
Therefore
in making a distribution in terms of the Act the court will take into
account the defendant's interest in the Norton property as well as
the admitted fact that she benefited from the disposal of the
Belvedere property to the detriment of the plaintiff.
In
support of the contention that the court should take into account
property that has been disposed of the plaintiff's counsel cited
the case of Muganya
v Sakupwanya
1996 (1) ZLR 217 (S).
In
that case the house that was the subject of division during divorce
proceedings had been purchased by the husband. At the time of hearing
it was disclosed by the husband that he had sold the house. The wife
successfully sought the joinder of the purchaser who happened to be
the husband's girlfriend. Apart from the fact that the sale was
fraudulent McNALLY J.A at p 219 had this to say about the wife's
rights:
“It
seems to me that the relief sought by Mrs Sakupwanya against her
former husband and Miss Muganga was soundly based in law. Her rights
against Mr Sakupwanya flow from section 7 of the Matrimonial Causes
Act [Chapter 5:13]. Her rights against Miss Muganga are based on the
allegation that the latter knowingly collaborated in a scheme to
deprive her of her rights under the Act. If the facts are proved, the
case falls squarely within the terms of the exception set out in
Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S),
where I said at the foot of p186 leading on to 187:
'I
do not believe that a wife can raise such a claim (ie to stop him
selling the matrimonial home) just because the husband is disposing
of an asset. There must be some evidence that he is disposing of the
asset at under-value to a scoundrel, the accomplice of the husband
(Chhokar v Chhokar 1984 FLR 313) or that in some way he is attempting
to defeat her just rights. In England, under their far more complex
and comprehensive legislation, the test is; Am I satisfied that the
disposition was made with the intention of defeating the wife's claim
for financial relief?'
See
also Ferris v Weaven [1952] 2 All ER 237 (QB).”
The
only unsatisfactory feature of the present matter is that no endeavor
was made to quantify the direct and indirect contributions of the
parties towards the acquisition of the properties.
As
regards the Ridgeview house evidence was that when the plaintiff went
to the United Kingdom it had been built to window level. The
defendant testified that she remitted funds for servicing the loan
procured by the plaintiff for roofing the house. She also said she
remitted funds that were used for the family's subsistence. No
figures were mentioned. It puts the court in a difficult position to
quantify the defendant's contribution.
On
the other hand the same applies to the plaintiff's indirect
contribution towards the acquisition of the various properties by the
defendant. No figures were given regarding what he expended on the
upkeep of the family so as to reconcile it with the values of the
properties. To make matters worse, none of the parties made an
attempt to have the properties valuated. Everything was left for the
court to determine.
However,
what is clear is that the Ridgeview property is more valuable than
any one of the other properties.
No
proper evidence was led regarding the state of the Unit 'L',
Tynwald South as well as Dzivaresekwa Extension properties. The court
does not know whether the Tynwald South and Unit 'L' properties
are developed or undeveloped stands. That notwithstanding, one might
hazard to say the combined value of the three properties that are
registered in the defendant's name may not exceed that of the
Ridgeview property.
In
this respect it will be proper that each party retains what is in
their names.
In
reaching such decision I have taken into account that the defendant
benefited from the disposal of the Belvedere stand and that in all
probabilities she has interest in the Norton stand. This way, any
interest in the Ridgeview property is thereby extinguished.
In
the result it is ordered as follows -
(a)
That a decree of divorce be and is hereby granted.
(b)
That custody of the minor children Chiedza Muokomberanwa (born on 2
July 1997) and Tinotenda Mukomberanwa (born on 20 April 1999) be
awarded to the defendant with the plaintiff having access during two
weekends each month and during half of each school holiday.
(c)
That the parties shall keep as their sole possessions any of the
movable assets they agreed to share before trial.
(d)
That in respect of the contested movables the plaintiff is awarded
the following;
(i)
Toyota Corolla vehicle, bedroom suite, gas stove, three cameras, one
set of stainless steel knives, bread maker and electric frying pan.
(e)
That in respect of the contested movables the defendant is awarded
the following;
(i)
Three decoders, four plate stove, dining room suite, one set of
stainless steel knives, Mitsubishi Pajero, steamer, slow cooker and
food processor.
(f)
The Ford Transit vehicle shall be sold with the parties sharing the
proceeds equally.
(g)
That the plaintiff be awarded Number 27 Skymaster Drive, New
Ridgeview, Belvedere as his sole property.
(h)
That the defendant be awarded the following as her sole property -
(i)
4792 Dzivaresekwa Extension;
(ii)
7782 Cold Comfort, Tynwald South; and
(iii)
22468 Unit L, Chitungwiza.
(i)
That each party shall bear their own costs.
Mhiribidi,
Ngarava & Moyo,
the plaintiff's legal practitioners
Antonio
Mlotshwa & Company,
the defendant's legal practitioners
