GARWE JA:
After hearing argument from counsel, this Court dismissed the appeal with costs
and indicated that the reasons for such dismissal would follow in due
course. What follows are the reasons for that order.
The appellant and the respondent were husband and wife. Owing to
irreconcilable differences during the marriage, the respondent issued summons
claiming a decree of divorce and various other ancillary relief. At the
hearing of the matter before the High Court various issues were resolved by the
parties and the only issue that remained was the distribution of the immovable
properties acquired during the subsistence of the marriage.
There were two properties at the centre of the dispute. These were number
18 Normarton Close, Marlborough, registered in the names of both parties and 60
Garlands Ride, Mount Pleasant, registered in the name of a company, Lilford
Investments Private Limited, whose entire shareholding was held by the Garlands
Trust. For purposes of this judgment these will be referred to as “the
Marlborough property” and “the Mount Pleasant property” respectively. The
court a quo found that, although registered in the name of a company,
the Mount Pleasant property was controlled entirely by the respondent and that
it was in fact the respondent's alter ego. On that basis, the court a
quo found it proper to pierce the corporate veil and include that property
as part of the matrimonial estate. Indeed the appellant, whilst accepting
that he had not contributed in any way to the acquisition of that property, had
urged the court a quo to treat the property as part of the matrimonial
property. The court also took into consideration that the appellant “had”
a farm whose full details had not been disclosed.
Having taken into account the provisions of s 7 of the Matrimonial
Causes Act, [Chapter 5:13] (“The Act”), the court a quo
decided to award the appellant sixty five per cent of the Marlborough property
and the respondent the remaining thirty five per cent. Although he did
not say so specifically, the learned trial Judge allowed the respondent to
retain whatever rights she had in the Mount Pleasant property and the appellant
in the farm. What is the subject of this appeal is the order awarding the
respondent a thirty five per cent share in the Marlborough property.
The appellant has attacked the order of the court a quo on the sole
basis that the court a quo erred in failing to place the parties in
the same position they would have been had a normal marriage relationship
continued between them; more specifically, in failing to declare the appellant
the sole and absolute owner of the Marlborough property. The appellant accepted
in his heads of argument that the distribution of the immovable property was an
issue that was within the discretion of the trial court and that, in the
absence of a misdirection on the part of the court, the exercise of such
discretion cannot be interfered with.
The court a quo was mindful of the fact that there were two
immovable properties at issue. It was aware that the Marlborough property
was jointly owned whilst the Mount Pleasant property was owned by a company
wholly controlled by the respondent. The court was aware that the two
parties had resided in the Mount Pleasant property rent free and that, on
divorce, the respondent was to continue residing in that property at
will. The court was also aware that the appellant had made no contribution
to the acquisition of the Mount Pleasant property but was of the view that its
existence had to be taken into account in determining the fair distribution of
the Marlborough property. It is also apparent that the court took into
account that the appellant had access to a farm, whose details were not fully
disclosed before the court. All that was said about the farm was that it
is far away. The nature of the accommodation available at the farm was
not disclosed.
In coming to the conclusion that the appellant should be awarded a sixty
five per cent share of the Marlborough property, the court a quo
remarked at page 7 of the cyclostyled judgment:
“In deciding on the issue of how much to award the defendant as his share of
the Marlborough house I will also consider the fact that whilst in the
Marlborough house both parties contributed in its purchase, in the Mt Pleasant
house the defendant did not make a direct contribution towards its
purchase. The Marlborough house is registered in the joint names of the
parties whilst the Mt Pleasant house is not. Registration in joint names
is prima facie proof of a 50:50 ownership in the property. The
question to be answered is whether the justice of the case requires that a
spouse's share be awarded to the other if so how much of that share.
After a careful assessment of the parties contributions, needs and other
factors as detailed in s 7(4) of the Act I am of the view this is a case where
a part of the plaintiff's share should be transferred to the defendant to achieve
a just and equitable distribution of the assets of the spouses. A
deduction of 15% would in my view be appropriate in the circumstances. I
thus conclude that that the defendant deserves a 65% share in the Marlborough
house and the plaintiff a 35% share.”
Is there any basis upon which the above finding can be impugned? I
think not. As stated by GUBBAY CJ in Barros & Anor v Chimphonda
1999 (1) ZLR 58 (S) 62 F – 63A:
“It is not enough that the appellate court considers that if it had been in
the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising the
discretion. If the primary court acts upon a wrong principle, if it
allows extraneous or irrelevant matters to guide or affect it, if it mistakes
the facts, if it does not take into account some relevant consideration, then
its determination should be reviewed and the appellate court may exercise its
own discretion in substitution, provided always it has the materials for so
doing.”
Attention should also be drawn to the recent decision of this Court in Pharaoh
B. Muskwe v Douglas Nyajina and Two Others SC 59/14.
It is the submission by the appellant that the court a quo should
have ensured that the parties were placed in the position they would have been
had a normal marriage relationship endured and that, had it done so, the
appellant should have been allowed to retain the Marlborough house. It
seems to me that the appellant in this case, as many others do, has
misunderstood what is meant by placing the parties “in the position they would
have been had a normal marriage relationship endured.”
In the court a quo, the appellant did not lay any claim to the
Mount Pleasant property. Indeed he could not as he had played no role in
its acquisition nor had he contributed financially to its purchase. His
request was that the respondent's interest in the property be taken into
account in apportioning the Marlborough property. That the parties owned
the Marlborough property in equal shares was not in dispute. Taking into
account that the respondent had the enjoyment of the Mount Pleasant property
and would continue to do so, and further that the appellant had some rights to
a farm whose details had not been disclosed, the court then decided to take,
from what would have been the respondent's half share, fifteen per cent of the
value of the Marlborough property, so that, at the end of the day, the
appellant would be entitled to sixty five per cent of the value of that
house.
The court a quo took into account a number of factors and attempted
to strike a balance between them. The direct contribution of each of the
parties was obviously a pertinent consideration in this equation.
The apportionment of matrimonial property upon divorce is governed by s 7 of
the Act. The court is enjoined to consider the various factors itemised
in s 7(4) of the Act and to “endeavour, as far as is reasonable and practicable
and, having regard to their conduct … to place the spouses and the children in
the position they would have been in had a normal marriage relationship
continued between the spouses.” This is not an easy task. It
involves the balancing of the factors therein set out regard being had to their
conduct and what seems just. In the end the court exercises its
discretion based on what is just in the circumstances. The guiding
principle is in the words “as far as is reasonable and practical.”
Whilst a court should endeavour to place the spouses and the children of the
marriage in the position they would have been in had the marriage relationship
continued, in practical terms and in the majority of cases, this is not always
achievable. As MAKARAU JP remarked in Dzova v Dzova 2008 (1) ZLR
294 (H), 298 whilst most plaintiffs and defendants in divorce proceedings
prefer the clean-break approach, the Act introduces a duty on the court
divorcing the parties to maintain, as far as is reasonable and practicable, the
lifestyle that the spouses enjoyed during the subsistence of the marriage but
“upholding one obviously frustrates the other” - at 298 C-D.
The reality is that, once a divorce is granted, the position of the parties,
in the majority of cases, changes considerably and irretrievably. In a
case where the parties would have acquired more than one property during the
subsistence of the marriage, it may be possible for a court to achieve a
more-or-less similar style of living for both spouses after divorce. In
many cases however this is not achievable. Usually there is one family
house, or none at all, one stove, fridge or television set, etc, to be divided
between the two. In such a situation it is impossible to put the parties
“in the position they would have been had the marriage” continued. What
the law requires and the court endeavours to do in such a situation is try to
do justice, taking into account the personal and family circumstances of the
spouses and the resources available at the time of divorce. It is for
this reason, as noted in Dzova's case, that in some cases, an order is
made for the house to be sold once the children have become self-sufficient in
order not to disrupt their growing up. The intention is to ensure that,
given the overall circumstances, the outcome is just and equitable to the
extent that it attempts to place the parties in as close a position as they
would have been had a normal marriage relationship continued between the
parties. Generally speaking however restoring the status quo
ante may not, in the majority of cases, be feasible.
In the circumstances of the case that forms the subject of the present
appeal, and in particular, it having been common cause that the Mount Pleasant
property was acquired by the respondent without any input at all from him, the
appellant cannot be heard to complain that the respondent's entire fifty per
cent share in the Marlborough house should have been awarded to him so that at
the end of the day he would have had total ownership of the property. The
court a quo took into account a number of factors and the result it
reached cannot, by any stretch of imagination, be said to be irrational.
In the result, this Court was satisfied that there was no basis in law upon
which the apportionment of the immovable property could be impugned.
It was for these reasons that the appeal was dismissed with costs.
ZIYAMBI JA: I
agree
PATEL
JA:
I agree
Mtetwa & Nyambirai, appellant's legal practitioners
Messrs Chinyama & Partners,
respondent's legal practitioners
