GWAUNZA JA: This is an appeal
against part of the judgment of the High Court, Bulawayo, handed down on 27
October 2011.
The case was a contested divorce matter in which divorce was sought on the
grounds of irretrievable breakdown. The apportionment of some of the
parties' matrimonial assets, the divorce itself and the issue of custody of
their minor child, were not contested. However, the parties failed to reach
agreement on the apportionment of several of their major assets, acquired
during their thirteen (13) years of marriage.
In apportioning these assets between
the parties, the learned judge a quo properly took into account s 7(1)
of the Matrimonial Causes [Cap 5:13], as indicated in his judgment at pp
6 to 7, where he quoted the following dictum, to be found in the case of
Gonye v Gonye[1]
“It
is important to note that a court has an extremely wide discretion to
exercise regarding the granting of an order for the division, apportionment
or redistribution of the assets of the spouses in divorce proceedings. Sec 7(1)
of the Act provides that the court may make or order with regard to the
division, apportionment or distribution of the assets of the spouses,
including an order that any assets be transferred from one spouse to the other”
(emphasis added by the learned judge a quo)
The court also considered other
relevant authorities dealing with equitable division of assets between a
divorcing couple, in particular, the cases of Takafuma v Takafuma1
Mangwendeza v Mangwendeza2.
In his order, the learned judge a quo apportioned the assets in dispute
as follows:-
(1)
the 95 herd of cattle at Inyathi farm and their progeny be shared equally
between the parties,
(2)
the value of the improvements on the Inyathi Farm (leased from the State) be
shared equally between the parties after agreement on a valuer for this
purpose,
(3)
the remainder of Stand 615 Bulawayo Township, also referred to as 50 Josiah
Tongogara Street, Bulawayo, be shared equally between the parties,
(4)
the plaintiff (now respondent) be awarded 25% of the shares of Simpson
Electrical (Pvt) Ltd and the defendant (appellant) the remainder of the shares
and
(5)
the plaintiff be awarded 50% of the value of the immovable property known as
Downings Building, Robert Mugabe Way, Bulawayo, which was registered under the
name of Muntomuhle Investments (Pvt) Ltd and the defendant, the
remainder.
In his grounds of appeal, the
appellant lists nineteen (19) instances of alleged misdirection on the part of
the court a quo. He then prays:-
(a)
that the part of the judgment of the court a quo in which it apportioned
the assets listed above, be set aside and
(b)
for the following relief:-
(i)
that the appeal be allowed with costs.
(ii)
that stand 615 Bulawayo Township (50 Josiah Tongogara Street) be awarded to the
appellant as his sole and exclusive property and
(iii)
that the cattle at Inyathi Farm, less those
acquired
from the proceeds of the truck purchased by Nomalanga Sibanda, be ascertained
after which the respondent be awarded a 25% share thereof.
Taking into account the respective grounds of appeal, I will consider each of
the assets in dispute, as set out above, and the reasoning of the court a
quo in reaching the decision it did, on the apportionment thereof.
THE NINETY FIVE (95) HERD OF CATTLE
AT THE INYATHI FARM, AND THEIR PROGENY
The appellant claims that the court a
quo misdirected itself by apportioning 50% of the cattle to the respondent
“without any basis for such an award.” He further claims that in any case, most
of the cattle belonged to his daughter Nomalanga as they had been bought
following the sale/barter of trucks bought by her in the United Kingdom.
It was not in dispute that some of
the cattle were bought from proceeds of the sale of a truck or trucks (the
evidence is not too clear on how many), bought in the United Kingdom in the
name of Nomalanga. While she gave evidence for the appellant, the court a
quo was, however, not impressed by Nomalanga as a witness, and concluded
that she was being untruthful when she said that she had bought the cattle for
herself through her father. This, after she conceded in court that she
had no knowledge of how many cattle had been bought on her behalf, how such
acquisition was made nor how and to what extent some of the cattle had been
disposed of by the parties. She conceded that the appellant had slaughtered
some of the cattle and allowed his mistress to collect others and sell them,
without her, (Nomalanga's), knowledge. The court a quo found that
further doubt had been cast on Nomalanga's evidence that she had provided funds
for the purchase of the trucks that were eventually exchanged for cattle, by the
following facts, admitted by her, that;
i)
one of trucks was actually registered in the name of the
respondent;
ii)
it was the appellant who had, from his resources, paid customs duty to clear
the vehicles in Zimbabwe as well as procure local registration for them; and
iii)none
of the cattle were registered in her, Nomalanga's name.
In contrast to the evidence of
Nomalanga and the appellant, the court a quo found that the testimony of
the respondent on the issue of the cattle, was credible. The court accepted her
evidence that there initially were approximately two hundred and fifty (250)
herd of cattle at the couple's two leased farms at Shangani and Nyathi.
The majority of the cattle had thereafter been relocated from Shangani to the
Inyathi farm. The court a quo considered further evidence from the
respondent, who had “figures, dates and explanations as to where the cattle
were acquired, the disposal of some of the cattle, the multiplication of the
cattle” as well as the logistics of their removal from Shangani to
Inyathi. It then found that she had credibly established that all the
cattle, having been bought from family funds, were assets of the parties as
husband and wife, and that none belonged to Nomalanga. The court accepted that
the parties disposed of some of the cattle and used the proceeds for family
needs. This they did without reference to any of the children. The
appellant, according to the respondent, never told her that any of the cattle
had been bought for or by any of the children.
The court also accepted the
respondent's evidence, which in reality was not disputed, that when she checked
on their number in 2010 (three years after the parties' separation) she found
there were only ninety five (95) cattle left, out of the original two hundred
and fifty (250).
Regarding credibility of witnesses,
it is a settled principle of our law that the appeal court will not lightly
interfere with a trial court's findings on a witness' credibility. In
argument before us, the appellant's counsel urged this Court to depart from
this general principle and find that Nomalanga was a credible witness. Given
the shortcomings in Nomalanga's evidence, alluded to above, I am persuaded by
the submission made on behalf of the respondent that in casu, the level
required for interfering with the findings of the court a quo on the
credibility of Nomalanga, has not been met. Such level is eloquently
articulated in the case of Moses Chimbwanda[2]
v Irene Chimbwanda where the court, after re-stating the settled position
already outlined above, went on to say:
“the exception to this rule is where
there has been a misdirection or a mistake of fact or where the basis on which
the court a quo reached its decision was wrong”.
The trial court had the privilege of
observing and listening to the witnesses, including Nomalanga, giving their
evidence and being cross examined on it.Having considered the evidence placed
before the court a quo by Nomalanga and its assessment thereof, I do not
find that there was any mistake of fact, nor has the appellant alleged
one. I am also unable to find that there was any misdirection on the part
of the learned judge a quo in this respect.
I find therefore that there is no
cause to interfere with the court a quo's findings on, and its
assessment of, the credibility of Nomalanga as a witness.
While the learned judge a quo
awarded the respondent 50% of the remnant ninety five (95) cattle and their
progeny, the appellant argues she is entitled to only 25% of whatever number
would be left after Nomalanga's share has been deducted. As stated above,
the court a quo correctly dismissed Nomalanga's evidence regarding any
claim to the cattle or part thereof.
The court a quo accepted the
evidence that the respondent played an active role in the acquisition, upkeep
and general care of the two hundred and fifty (250) cattle. This included
alternating with the appellant to visit the farms every other weekend for this
purpose, and having cattle pens and other necessary infrastructure built. I
find, given this background, that there could be merit in the submission made
on behalf of the respondent, that the appellant in effect “came out the winner”
given the fact that the court awarded her only forty-seven (47) or so of the
cattle, out of an original two hundred and fifty (250). However, since
the respondent has not challenged this award through a cross appeal, the matter
will not further be considered.
I find, in the final analysis, that
no case has been proved for this court to interfere with the decision of the
court a quo on the apportionment of the cattle in question.
THE VALUE OF THE IMPROVEMENTS ON THE
INYATHI FARM
It is not in dispute that the Inyathi Farm, having been acquired by the State
for resettlement purposes in terms of 16 of the old Zimbabwean
Constitution, was allocated to the appellant for his occupation and use.
The judge a quo accepted the evidence of the parties regarding the
role they played in effecting improvements to and on the farm. He also
found it “beyond dispute” that as a result of the structures put up through the
joint effort of the parties, the value of the farm had been enhanced. The
appellant has not challenged the role and contribution of the respondent to the
improvements in question. In support of his argument that the she was not
entitled to any share of the value of these improvements, the appellant argues,
instead, that their value should not be determined separately from the land on
which they were located. Further, that the learned judge a quo
misdirected himself in relying on a principle which is applicable to
compensation claimable against an owner of property by a bona fide or mala
fide possessor for useful improvements, which principle “has no application
in a claim against a non-owner of the farm”.
The respondent on the other hand argues that while the Government of Zimbabwe
owns all acquired land, it does not
own the improvements thereof. This,
it is argued, is emphasized by the fact that the former (white) farmers whose
land was appropriated under the law are legally entitled to compensation for
improvements only. See s 16A (2) (c) and 16B (2) (b) of the old
Constitution.
The Inyathi farm was barren land
when the parties took occupation thereof. There is no dispute as to
either the fact of improvements having been effected on the farm, or their
nature. That being the case I am not persuaded by the appellant's
argument that the value of such improvements could, or should, not be
determined separately from the land on which they were located. It
appears to me, on a purely practical basis, that a professional valuer can
accomplish this task with no difficulty at all. Nor has the appellant
pointed us to any law that specifically forbids such a determination.
Equally, I find no merit in the appellant's argument that the learned judge a
quo, in apportioning the value of the improvements as he did, improperly
used a principle applicable to compensation claimable against an owner of
property by a bona fide ormala fide possessorfor useful
improvements.
The respondent did not claim a share
of these improvements on the basis of any notion of compensation. She
claimed it on the basis of contribution as assessed in terms of the provisions
of s 7 of the Matrimonial Causes Act. Indeed I did not understand the
respondent to challenge the specific share of 50% that was awarded to the
respondent. He does not dispute that for the thirteen (13) years the
parties were married, they worked together to generate income and accumulate
assets. By the appellant's own admission, the improvements effected on
the Inyathi Farm were financed from family resources jointly acquired by the
parties.
Having said
that, it is in my view pertinent to consider the nature of the improvements
effected on the Nyathi Farm. The appellant in his evidence referred to
“very nice” chalets, a granary and a big storeroom. He stated that the
improvements were put up by the respondent, albeit using family
resources. The respondent, in her evidence, added to the list of such improvements.
She mentioned water tanks, concrete cattle pens, maize bans, flushable toilets
and a gated fence around the whole property. She also mentioned other
assets such as goats, chickens and bans filled with harvested maize.
These improvements, in my view,
therefore rightly belonged to the parties, separately and distinctly from the
land on which they were located. I do not believe that this reality is
negated by the fact that the improvements happen to have been effected on land
acquired through the peculiar medium of the land reform programme. The
appellant, however, has an advantage over the respondent, in that the land was
allocated to him personally, under the land reform programme. He will
most likely have continued access to, and use of, the land in question, and
indeed, the very improvements that are now in dispute, for a very long time, if
not the rest of his life. It should be noted that the offer letter generally
offers very long leases.
By contrast, the respondent would
have, but for the law regarding sharing of property on divorce, walked away
from the improvements that she, in her capacity as a wife working together with
her husband, contributed in acquiring and/or effecting on the farm. It is
my view that such a result could not have been in the contemplation of the law.
The improvements in question should, therefore, rightly be subject to
apportionment between the parties, on the same principle of law as applies to
their other assets. To deny the respondent a share of these improvements,
on the basis argued for the appellant as referred to above, would clearly not
only visit substantial injustice on her, it would also result in the unjust
enrichment of the appellant. More to the point, it would offend against the
letter and spirit of s 7(3) of the Matrimonial Causes Act (Cap 5:13), whichis
to the effect that the court should endeavour, in determining how to apportion
matrimonial assets:-
“...as far as is reasonable and
practicable, and having regard to their conduct, and is just to do so, to place
the spouses in the position they would have been in had a normal relationship
continued...”
There can be no doubt that the court
a quo would have failed to bring this objective about, had it not
granted a share of these improvements, or their value, to the respondent.
As for unjust enrichment, and given
the circumstances surrounding the acquisition and erection of the improvements
in question, I am satisfied that the respondent would have been impoverished
and the appellant unjustly enriched, had the courta quo not apportioned
the value thereof between the parties. Contrary to any positive rule of
law refusing any action to the impoverished person, the whole tenor of the
Matrimonial Causes Act is to ensure equity, fairness and justice in the apportionment
of matrimonial assets, between a divorcing couple.
The point has already been
made that the judge a quo had wide discretion in terms of the Act, and
in view of the evidence before him, to determine what share to award to either
party. Since I can find no fault with his reasoning and conclusions in
this respect I would therefore dismiss this particular ground of appeal.
THE REMAINDER OF STAND 615 BULAWAYO
TOWNSHIP, ALSO REFERRED TO AS 50 JOSIAH TONGOGARA STREET and NO. 15 KILMANOC
ROAD, HILLCREST
The court a quo ordered that the first property referred to above, or
its value, be shared equally between the parties. The court also ordered
that another of the parties' assets, i.e. 15 Kilmanock Road, Hillcrest, be
shared equally between the parties. It is common cause that the appellant
presently occupies 50 Josiah Tongogara Street, while the respondent occupies 15
Kilmanock Road, Hillcrest. Nor is it disputed that the two properties are
equal in value. The appellant submitted that it would be just and
equitable if each party was awarded the property in their respective control,
as their sole and exclusive property. At the hearing of this appeal, the
respondent conceded it would indeed be just and equitable for the two
properties to be awarded to the parties in the manner suggested by the
appellant. I am satisfied this concession is properly made and
accordingly an order to that effect will issue.
SIMPSON ELECTRICAL (PVT) LTD
The court a quo awarded the respondent 25% of the shares in Simpson
Electrical (Pvt) Ltd, while the appellant was awarded the rest. The
appellant is disgruntled at this order and prays that the award of 25% to the
respondent be set aside.
It is not disputed that Simpson Electrical was incorporated in 1989, before the
parties' marriage. At the time there were only two directors of the
company, that is the appellant and his (now) late brother. The appellant
however avers that following donation of his shares to his children from a
previous marriage, he was no longer a shareholder in the company. This
evidence, as indicated later in this judgment, was later contradicted by the
appellant himself. The donation, according to share certificates dated 3
December 1995, was effected almost a year before the parties' marriage.
The court accepted as a trite principle of the law, that a company duly
incorporated has a distinct legal persona, separate from its
shareholders. The court also considered that the veil of incorporation of
that company may be lifted where necessary in order to prove who determines or
who is responsible for, the company's activities. Based on what the court
a quo referred to as the credible evidence of the respondent, the court
was of the view that in this case, a lifting of the veil of incorporation of
Simpson Electrical (Pvt) Ltd was justified. The 'credible' evidence was
to the effect that:-
i)
at the time of the parties' marriage, Simpson Electrical was in fact a small
shop which the parties then moved into bigger premises in Pioneer House;
ii)
the new premises having proved too big for the available stock, the parties
sold their cars to raise capital to buy more stock for the shop;
iii)
with both parties contributing to the running of the business, it grew in
“leaps and bounds”;
iv)
from the substantial income realised, the parties were able to carry out
extensive renovations to their property in Woodlands;
v)
from the same proceeds, they were able to buy the Hillcrest property as well as
buy and develop two other stands in Pumula South;
vi)
from the still substantial disposable income, the parties bought an industrial
stand in Donnington West;
vii)
the respondent also sold her house in Paddonhurst and ploughed the proceeds
into Simpson Electrical by way of purchasing stock; and
viii)
the appellant gave her (respondent) 25% shares in Simpson Electrical
while the rest remained with the appellant and his children.
While it is accepted that there are
no hard and fast rules on the circumstances that justify the lifting or
piercing of the corporate veil, with each case generally having to depend on
its own facts and merits, I find thisdictum from the case ofMkombachoto
v Commercial Bank of Zimbabwe & Anor[3]
to be apposite;
“In
my view the court has no general discretion to disregard the company's separate
legal personality whenever it considers it just to do so. The court may 'lift
the veil' only where otherwise as a result of its existence fraud would exist
or manifest justice would be denied.” (my emphasis)
From the 'credible' evidence listed
above, it is evident, as indicated below, that the appellant admitted he had
given the respondent a 25% share in Simpson Electrical. Secondly and
flowing from this, the respondent, accepting that she owned the 25%
shareholding, offered to hand the shares over in return for their fair market
value. The appellant, in an about turn, then denied he ever gave the
respondent the 25% shares. Further, in contradiction to what he had earlier
stated, the appellant averred that the shares still belonged to him and his
children. Overriding all this was the undisputed fact that the company
had grown substantially from the time the parties got married, and that the
respondent had made significant contribution to such growth. The
contribution had resulted in the family earning so much income they were able
to buy and develop several other properties.
The evidence of both the appellant
and the respondent does not suggest that the other shareholders, to wit,
the appellant's and one of the parties' children, made any contribution to the
capital or other assets of the company, nor in any other manner. The
relationships which lay behind the corporate veil are clearly revealed as
between the appellant and the respondent. It is evident that the parties
themselves were the administrators, controllers and contributors to the growth
of Simpson Electrical. Had the veil not been lifted, such a relationship would
not have been revealed, to the ultimate detriment of the respondent.
The respondent was actively involved
in moving the Simpson Electrical Shop to bigger premises and responsible for
stocking the expanded shop, for which purpose she travelled back and forth
between Zimbabwe and South Africa in order to source such stock. As a
result the shop, in other words, Simpson Electrical, “grew in leaps and
bounds”. Her contribution, as the court a quo found, was substantial. By
arguing that no case has been made to pierce the corporate veil of Simpson
Electrical, the appellant in other words is suggesting that all the assets
including the share acquired through the contribution of the respondent, should
remain the property of Simpson Electrical. That effectively, the
respondent must walk away without anything from Simpson Electrical. I do not
doubt that denying the respondent any share of this company would result in
manifest injustice.
I am satisfied, given the evidence on this matter, that the learned judge a
quo properly lifted the veil of incorporation of Simpson Electrical (Pvt)
Ltd.
The appellant further submitted that
in awarding the 25% share to the respondent, the court a quo erred in
making an order mero motu, “which neither of the parties had asked for.”
This
argument in my view lacks merit. The learned judge a quo found
that the respondent's assertion that she had been given and therefore owned 25%
of the shares therein was confirmed by the appellant's own legal practitioners,
in a letter written to the respondent's legal practitioners of record.
He, however, went on (in my view correctly), to determine the matter on the
basis of contribution. Having assessed the credibility of the witnesses
and the evidence they gave in relation to Simpson Electrical, the court found
as follows and I quote from p 12 of his judgment:
“The evidence points to a major
contribution by the plaintiff (respondent) in the growth of Simpson Electrical.
After the plaintiff got involved in the running of Simpson Electrical, there was
fundamental expansion, thanks to the joint effort of both parties.”
The appellant, in para 13 of his
Heads of Argument, states that the respondent's evidence was basically to the
effect that she had contributed to the working capital of Simpson Electrical
and was therefore entitled to a share. I do not find that position to
contradict the respondent's submission that she owned 25% of shares in Simpson
electrical and would give those over to the appellant on payment of their
market value. Even though she did not state so specifically, and given
the context in which her reference to 25% was made, the probabilities clearly
favour a finding that she claimed the 25% share or regarded it as hers, on the
basis of her contribution. The court a quo found that such
contribution had been credibly established.
I am satisfied the court properly
reached this decision and would accordingly dismiss this ground of appeal.
MUNTOHUHLE INVESTMENTS (PVT) LIMITED
The court a quo lifted the
veil of incorporation of Muntomuhle Investments (Pvt) Limited and awarded a 50%
share to each of the parties, in the property known as Downings Building,
Robert Mugabe Way, Bulawayo. This building was registered under the name
of this company and constituted its main asset.
The appellant challenged both
decisions, and charged, among other grounds, that the court erred in taking
away the property of the shareholders of the company without giving them an
opportunity to be heard. The shareholders referred to were his children,
including one whose mother was the respondent.
Having considered the evidence
placed before the court a quo as well as the judge's assessment thereof,
I do not find that there is any merit in the appellant's arguments.
The learned judge a quo found
that the appellant was not only running the show at Muntomuhle, he and the
company had become one. Nomalanga, one of the alleged “shareholders,” in
Muntomuhle, put the correctness of the conclusion of the court a quo
that the appellant was its alter ego beyond doubt when, in her evidence,
she indicated that:
i)
the Muntomuhle company never had an annual general meeting or director's
meeting.
ii)
The “shareholders” had never been paid dividends.
iii)
They were never (as “shareholders”) made aware of the donation to them of
shares or company affairs and
iv)
As far as she was aware, Muntomuhle was the
appellant's project and he could do with it as he wished or
liked.
The learned judge a quo
further found that Muntomuhle was actually an invention of the appellant,
created solely for the dissipation of the assets of Simpson Electrical in order
to defeat the respondent's claim. The appellant, according to the
evidence of the respondent, which was found to be more credible than that of
the appellant, not only incorporated Muntomuhle Investments without her
knowledge, he proceeded, again without her knowledge, to register the building
in question in the name of Muntomuhle Investments.
Against this background, I find that
the inference of an attempt by the appellant to deceive, if not defraud,
the respondent, is difficult to escape. There is case authority to
the effect that conduct of this nature justifies the piercing of the corporate
veil. In Cape Pacific Ltd v Lubrier Controlling Investments
(Pty) Ltd & Ors, the court had this to say:
“...when the corporation is the mere
alter ego or business conduit of a person, it may be disregarded.
This rule has been adopted by the courts in those cases where the idea of the
corporate entity has been used as a subterfuge and to observe it would work
injustice.”
I find this dictum to be
eminently apposite given the facts of this matter.
Having in addition considered the
respondent's immense contribution towards the main asset of Muntomuhle, the
learned judge a quo, in the result, concluded that he had no option but
to unmask Muntomuhle and declare the plaintiff owner of 50% of the net value of
the building in question. I do not find fault with this decision.
As for the need to hear Muntomuhle's
other shareholders, I am persuaded that the court's finding that the company
was in fact the alter ego of the appellant, rendered it unnecessary to
consider any other “shareholders” in the administration and control of the
company. This, I find, is a consequence that is anticipated in the
following passage by C Nkala and TJ Nyapadi in their book, ”Company Law in
Zimbabwe”, 1995 ed at p 8;
“...When the courts or legislature lift the veil of separate legal persona
they disregard the corporate entity and look to the relationships which lie
behind the corporate form...”
In any event at no stage did the other shareholders take any action to protect
their interest in the property, even though they were aware that the company
was to be the subject of litigation in matrimonial proceedings.
I therefore find that the learned
judge a quo correctly, and without reference to its other alleged
shareholders, disregarded the corporate entity of Montumuhle Investments that
the appellant and his daughter Nomalanga alleged
existed.
The appellant challenges the court a
quo's award of 50% of Downings Building to the respondent, on another
ground. In his Heads of Argument he concedes that the building in dispute was
acquired through income originally drawn from Simpson Electrical (Pvt)
Ltd. He however, argues that, having awarded her only 25% shareholding in
Simpson Electrical, the source of the funds, the court a quo should not
have awarded the respondent a 50% share of Downings Building. My
understanding of this argument is that if the court was to award the respondent
any share of the building, it should not have been more than 25%, a share that
would reflect her shareholding in Simpson Electrical.
The evidence before the court
suggests there was no direct link between the funds drawn from Simpson
Electrical, and those eventually used to purchase the building which is the
main asset of Muntomuhle Investments.
The judge a quo made this
clear when he said the following regarding the acquisition of the main asset of
this company, i.e. Downings Building;
“
They used money from the business (Simpson Electrical) to pay for an industrial
stand. When the defendant (appellant) went to pay for the stand, he
registered it in his name... they toiled to build a factory i.e. a double
storey structure. The factory was massive. They rented it out to a
company known as Stex. The tenants developed interest in the factory and
offered to purchase it. The parties agreed to sell it. The proceeds
of the sale of the factory were used to buy and re-construct the building in
129-130 Robert Mugabe Way, which is the major asset of Muntomuhle
Investments. This fact is admitted by the defendant as evinced by his
letter dated 5 March 2007 in the bundle of documents”.
In short, the funds from Simpson
Electrical were used to purchase a commercial stand, on which a factory was
then built. The factory was initially rented out and later sold to the
sitting tenants. Funds realised from these latter endeavours were then
used to buy the building in question. In all these developments, there
was nothing to suggest that the parties' perception of the share of their
entitlement in Simpson Electrical in any way determined or defined the extent
of their contribution to the eventual acquisition of the building in question.
Instead of engaging in the type of
mathematical calculations that the appellant argues for, the judge went on to
use his discretion, as required by the law, in assessing the awards that he
made. I do not find that such discretion was improperly
exercised.
I would, therefore, dismiss this
ground of appeal as having no merit.
In the result, I make the following
order.
1.
The appeal succeeds only in part.
2.
The order of the courta quo in relation
to the two
properties
referred to as the Hillcrest and the Tongogara Street properties, is set aside
and substituted with the following order by consent:
(i)
Stand number 8053 Bulawayo Township, also known as 15 Kilmanock Road,
Hillcrest, Bulawayo, be and is hereby awarded to the respondent as her sole and
exclusive property; and
(ii)
The remainder of Stand 615 Bulawayo Township, also known as Josiah Tongogara
Street, Bulawayo, be and is hereby awarded to the appellant as his sole and
exclusive property.
3.
The appeal in relation to the assets and property referred to in paragraphs
6,7,12 and 13 of the order of the court a quo, is dismissed.
4.
The appellant shall pay the costs of this appeal.
GARWE
JA: I
agree
GOWORA
JA: I agree
Webb Low & Barry, appellant's legal practitioners
Cheda & Partners, respondents' legal practitioners
[1]1994 (2)
ZLR 103 (SC)
22007 (1) ZLR 216 (HC))
[2]SC 28/02
at page 4
[3]2002
(1) ZLR (4) at p 268-c
