GWAUNZA JA: At the end of the
hearing in this case, we dismissed the appeal with no order as to costs and
indicated that the reasons for the judgment would follow. These are the reasons.
The appellant appeals against the judgment of the High Court, Harare,
which was handed down on 20 May 2010. The court a quo granted a decree of divorce, as well as other relief. While
the parties reached settlement on a number of issues before the trial a quo, they failed to do so with respect
to the manner of distribution of the following;
i)
some movable assets, including two motor
vehicles and two refrigerators; and
ii)
two immovable
properties
In respect of these items of property, the court a quo made orders to the following
effect;
i)
that all moveable assets including the Daihatsu
Move vehicle be awarded to the respondent in
casu save that she was to choose one of the functional refrigerators and
hand over the other one to the appellant;
ii) that both parties be awarded
an equal share (50%) of the property known as
No.
17170 Sable
Street, Borrowdale, and
iii) that
the respondent be awarded 95% and the appellant 5%, of the property (a flat)
known as No. 3 Selmont Gardens.
The court a quo further ordered that the respondent be
given the right to remain in occupation
of Stand No. 17170 Sable Street, Borrowdale, until the minor child of the
marriage, Dennis Tawanda Simango, attained majority age. Upon this event, the respondent was given the right
to buy out the appellant's share, failing which that option was to be
given to the appellant.
The appellant charges that in making the awards it did in respect of the
property referred to above, the court a
quo erred in the main by not taking into account his direct and indirect
contribution to the acquisition of such property.
He accordingly
prays that he be awarded;
a)
50% of the value of the parties'
movable assets,
b)
the Daihatsu Move, Registration No. AAG 752,
c)
70%
of the value of Stand 17170 Sable Street, Borrowdale, Harare, which was the
parties' matrimonial home, and
d)
50% of the value of Flat No. 3 Selmont Gardens,
228 Samora Machel Avenue, Harare.
Before considering
the appellant's grounds of appeal in detail, it is pertinent to note
that in arriving at the various awards that it made in terms of s 7 of the
Matrimonial Causes Act {Cap 5:13], (“The Act”), the court a
quo used its discretion. It is in this respect correctly argued for
the respondent that it is a firmly entrenched principle of our law that the
discretion exercised by a trial court
in dividing property in terms of s 7 of the Act cannot be interfered with on
appeal unless the trial court exercised the discretion erroneously, acted
on a wrong principle, mistook facts or
did not take into account some relevant consideration. Indeed, in Shenje
v Shenje (2001 (2) ZLR 160) the same principle was emphasised
differently as follows;
“… All in all, the legislation
gives the courts a very broad discretion to achieve the fairest possible settlement. There are only a few limits on
the court's power to distribute property…”
See also Hatendi
v Hatendi (2001 (2) ZLR 530 SC)
In Ncube v Ncube (1993 (1)39 (S) at 40H-41A) the point was stressed that;
“… in
circumstances where factors exist that are not easily quantifiable in terms of
money, the determination of the strict property rights of each spouse is
invariably a theoretical exercise for which the courts are indubitably imbued
with a wide discretion.”
Indirect contribution in the context of the Act, in my view, would fall
into the category described in this excerpt.
With this background on the relevant law and principles, I will now
consider the appellant's
grounds of appeal in relation to the items of property whose distribution he challenges.
1.
MOVABLE ASSETS, INCLUDING THE DAIHATSU MOVE
The only moveable assets that the court a quo specifically mentioned and
considered were a Nissan Sunny vehicle, the Daihatsu Move and two
refrigerators. In respect of the latter the learned judge stated at page 8 of
his judgment;
“In respect of
household goods the only contested items are the two refrigerators.”
As for the two vehicles, the learned judge analysed the evidence before
him and gave the reasons for his determination as follows:
“As regards the
movables, the documentary evidence before the court shows that the Nissan
Sunny vehicle was acquired by 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.”
The appellant has not specifically challenged the court a
quo's finding and determination in regard to the Nissan Sunny
vehicle. He has possibly included
such challenge in his claim for
50% of the value of all
the parties' moveable assets. He argues that the court a
quo misdirected itself in awarding all moveable assets except for
one refrigerator, to the respondent, thus disregarding his own contribution to
the acquisition of such assets.
The reasoning of the court a quo on
the matter of the two motor vehicles, including the evidence it relied on and
the legal principles applied in reaching the determination it made on these
vehicles, is well articulated in the excerpt of its judgment cited above.
Against this sound reasoning,
I do not find merit in the appellant's submission that the principle of fairness was flouted when the court
made the awards it did in respect of the two motor vehicles. The appellant in
any case does not charge that the court a quo applied a wrong principle of law,
took into account irrelevant factors nor exercised its discretion improperly.
As already stressed above, these averments and substantiation thereof,
are relevant to a determination of whether or not this court will interfere
with what in fact would have been the exercise of a wide discretion enjoyed by
the court a quo in matters of this
nature.
Regarding the rest
of the parties' moveable assets, it is evident from the evidence before
the court that the appellant did not claim 50% of the value thereof. He is
only doing so now, on appeal. This is something that, procedurally and
as a matter of law, he should not do.
As can be seen from Annexure
“B” to his Declaration, the appellant claimed 8 specific items of
movable assets, and listed almost double that number of items, as those that he
wished to be awarded to the respondent. Even though the values of the various
items of property are not indicated, it is safe to assume upon a prima
facie view, that what the appellant claimed did not constitute 50%
of the value of the combined movable assets.
In any case, in the joint
pre-trial conference minute, it is stated that the plaintiff, by consent of
both parties, was to take one 4 plate Superior stove. The respondent was to
take the bulk of the movable assets, amounting to some fifteen (15) items. The
pre-trial conference minute shows that only the moveable items listed below
were contested;
(i)
the two motor
vehicles
(ii)
1 DC Radio with speakers
(iii)
1 home entertainment Radio and
(iv)
2 refrigerators
The learned judge a quo specifically
dealt with the two motor vehicles, as outlined above, as well as the two
refrigerators. While the CD radio with speakers and the home entertainment
radio were not specifically mentioned by the court a quo, its
order in relation to the moveable assets can only be read to suggest that these
two items of property were added to the list of items which, by consent of the
parties, were to be awarded to the respondent. It has already been mentioned
that, in arriving at the awards that he made, the learned judge a
quo exercised his discretion consequent upon an assessment of the
evidence placed before him. The appellant not having shown that such discretion
was improperly exercised, I find he has accordingly not proved a case for this
court to interfere with such discretion. Regard in this respect is must be had
to the fact that the court a quo was not
presented with, nor did it consider, a claim that the appellant now attempts to make on appeal, for 50% of the value of the all the
parties' moveable assets.
In the premises, I do not find that the learned judge a
quo exercised his discretion erroneously in arriving at the awards that he made with regard to the
parties' moveable assets.
This ground of
appeal is accordingly dismissed.
2.
STAND 17170 SABLE STREET, BORROWDALE, HARARE
The appellant submits that by awarding to each of the
parties a 50% share in this property, which was the matrimonial home, the court
a quo erred as it had placed no weight on
the fact that his direct contribution to the acquisition of the property was
“substantially greater” than the respondent's. The appellant also takes issue
with the court's order to the effect that the respondent be allowed to
reside in the matrimonial home until the minor child of the marriage attains 18
years, after which the respondent would be given the right of first refusal thereof.
The appellant
elaborates on these grounds of appeal, in his heads of argument.
He argues;
(i)
that the appellant contributed more than the
respondent because his financial position was better than hers;
(ii)
that it was the appellant who took the effort
to apply for the stand in question, to the City of Harare, and proceeded
thereafter to pay the necessary deposit using his own resources, and;
(iii)
that
the respondent's contribution which was subsequent to the event in (ii) above,
took the form of “improvements” to the property.
The appellant, as already indicated, accordingly seeks an order that he
be awarded 70% and the respondent 30% of the value of the property, with the
right of first refusal being granted to him.
At page 6 of his judgment, the learned judge a quo gave the reasons for the order that he made in respect of
this property as follows;
“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(sic) of the parties is entitled to a greater share than the
other. Therefore this property will be apportioned equally to both parties,
with defendant being given the right to remain in occupation until the younger
child attains majority status. Thereafter the defendant shall buy out plaintiff's share failing which
that option will be given to plaintiff.”
It is evident from the above that the learned judge a quo, contrary to the assertion made by the appellant in his heads
of argument, took guidance from the case of Takafuma
v Takafuma, 1994(2)ZLR 103 (S).The
learned judge, in taking the starting point in accordance with Takafuma v Takafuma (supra) in effect
started from the premise that each party owned a 50% share in the property in
question. The submission is correctly made for
the respondent that as a registered joint owner of the property, she had
a real right to a half share in the Borrowdale property, even in circumstances
where she might have made no direct
contribution to its acquisition. This point is articulated eloquently in Ncube v Ncube s- 6-93 where the learned
judge had this to say.
“It is incorrect to
say that the appellant as a registered joint owner is not entitled to a
half share of the value of the Napia Avenue property because she did not
contribute money or
money's worth towards the acquisition of the property. As a registered joint owner she is in law entitled to a half
share of the value of that property.”
Having on the basis of Takafuma and Takafuma labelled
50% of the property as
“his” and the other 50% as “hers”, the learned judge a quo, using his
discretion, concluded that the justice and equity of the case did not
require the court to take away any share from one party and award it to the
other. This discretion was evidently exercised on the basis of the parties' evidence regarding
their respective contributions. I find nothing in the judgment of the
court a quo to suggest that the appellant's role in applying for and paying deposit
on, the
property in question, was not properly taken into account
in assessing his overall contribution to its acquisition. No misdirection on
the basis of mistaken facts or error has been alleged. I am satisfied the
learned judge a quo properly exercised his discretion. I accordingly find that
no case has been made for this court to interfere with the decision of the
court a quo on this point. It follows
from this that the appellant's claim for 70% of the value of the property,
followed by a right of first refusal in his favour, is equally without merit.
The appellant further argues that the court erred by granting the
respondent a right of occupation of the matrimonial home, in disregard of the
fact that his contribution to the
acquisition of the property was greater than the respondent's. I find this
argument to be flawed in two respects. Firstly the court a quo's finding was that,
on the facts presented and after applying the relevant principles of
law, the parties were entitled to an equal share in the property. Secondly and
more to the point, the decision that the respondent should stay in the
matrimonial home until the minor child attained the age of 18 years was
influenced more (and properly so) by a
consideration of what would best serve the interests of the minor child, than
by the extent of each parties'
contribution. The respondent was granted custody of the minor child and
the court is enjoined to consider the best interests of the minor children of
the parties in its determination of their rights to any share of the
matrimonial assets. In any case the
decision complained of is one that is commonly given in circumstances such as this.
I would
therefore dismiss this ground of appeal.
3.
FLAT NO. 3
SELMONT GARDENS, BELVEDERE
The learned judge a quo noted that the
appellant had confirmed that this property was purchased by the respondent
through a loan facility granted by her employer, the Reserve Bank of Zimbabwe
and was registered in her name. The court found that the parties had agreed
that the mortgage loan in respect of this property would be serviced through
the respondent's income
while the appellant's income would be used to maintain the family. The
court accepted the evidence of the appellant that he also contributed towards
the maintenance of the property, through the payment of levies and rates during the parties'3 year stay at the flat.
It was not in dispute that the
respondent in part bought the flat in
question using proceeds from the sale of
another flat she had bought before she married the appellant. It is also common cause that the appellant
made no direct contribution to the acquisition of this property. In awarding 5%
and 95% of the value of this property to the appellant and respondent
respectively, the learned judge a quo, after noting
that he had drawn guidance from, inter alia the
celebrated case of Takafuma v Takafuma (supra) reasoned
as follows at page 8 of his judgment:
“... 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, the acquisition was solely financed by defendant
albeit
from the proceeds of an earlier property. It is in fact registered in
defendant's name and would fall in the category of “hers”. 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 s 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 any time thereafter, an appropriate court may make
an order with regard to-
(a) The
division, apportionment of
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 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 s 7 (4) ...”
After citing the provisions of s 7 (4) of the Act, the learned judge
determined that in the
court's discretion, the appellant would be awarded 5%.
The appellant, while accepting that the learned judge a quo properly considered the principle enunciated in Takafuma v Takafuma (supra) argues that
the court then erred by failing to give due weight to his indirect contribution
to the acquisition of the property. Additionally that the award made had the
result that the respondent was unjustly enriched.
The appellant does not allege that the court a quo applied
a wrong principle in determining the apportionment of this property. The
contrary is in fact suggested in his submission
in relation to the court's reliance on, inter alia,
the case of Takafuma v Takafuma. Nor does the appellant argue
that the trial court allowed extraneous or irrelevant factors to guide it,
mistook facts or disregarded some relevant considerations. There is no dispute,
and the court a quo properly took this into account, as to who
between the parties contributed substantially and directly to the acquisition
of the property in question. Nor is the indirect nature and manner of the appellant's contribution in the
short period of three (3) years that they stayed in the property, disputed.
There is, in my view, no doubt
that the learned judge a quo took
into account all the relevant facts and was guided by the correct principles in
its application of s 7 of the Act, to the distribution of the property in question.
I therefore do not find that the court a quo exercised
its discretion erroneously in making the award that it did. It follows
that the appellant's submission that the respondent would be unjustly
enriched, is without merit.
I would
accordingly dismiss this ground of appeal.
It was for the reasons contained herein that the appeal was dismissed,
with no order as to costs.
ZIYAMBI JA: I agree
GOWORA JA: I agree
T.K. Hove & Partners, appellant's legal practitioners
Mtetwa &
Nyambirai, respondent's legal practitioners
