The
parties in this matter were husband and wife. They obtained a decree
of divorce. The decree was granted in terms of a consent order which
is dated 31 August 2012.
A
reading of the consent order shows that all matters which relate to
the parties' matrimonial property were resolved and settled except
one.
The
remaining matter pertains to ...
The
parties in this matter were husband and wife. They obtained a decree
of divorce. The decree was granted in terms of a consent order which
is dated 31 August 2012.
A
reading of the consent order shows that all matters which relate to
the parties' matrimonial property were resolved and settled except
one.
The
remaining matter pertains to Allan Grange Farm (the Farm) which the
parties were, and are, renting from the Government. Evidence which is
filed of record indicates that the parties have remained, and worked,
on the farm from about 2002 to date. They initially acquired the farm
in terms of an offer letter which Government issued to them. It goes
without saying that the parties were able to prove to the land
acquiring and allocating authority that they were serious farmers
whose production on the farm was substantially significant. They,
accordingly, applied to the Government which, with little, if any
hesitation, offered them a 99-year lease of the farm. The
application, the court heard, was granted following an assessment of
the parties' work on the farm by officials of the Ministry of
Lands, Land Reform and Resettlement (the Ministry). It is common
cause that, during the subsistence of their marriage, the parties
conducted their operations on the farm as one complete unit. They
channelled all their resources and energy on two major activities.
These were:
(a)
Production on the farm; and
(b)
A trucking enterprise.
The
court heard that somewhere, somehow, something went wrong and the
parties went their separate ways. The exact date or dates when the
misunderstanding occurred did not come out clearly from the parties'
evidence. The plaintiff said the separation between them took place
in 2005 or 2006. The defendant stated that it occurred in 2009. The
date, or dates, that the parties' misunderstanding took place is
not of any particular importance. The court only mentions it to
stress the obvious which is that the misunderstanding which occurred
marked a turning point in the parties' relationship. It is evident
that from the mentioned date, or dates, each party directed his or
her effort on what he or she was best able to do on the farm, which,
at the time of the occurrence of the event(s), ceased to be worked by
the parties as one unit.
The
plaintiff, the court heard, retained a portion of the farm on which
he focused his mind and energy on crop production. The defendant did
chickens and pigs on her portion of the farm. The parties, it is
observed, have co-existed on the farm from the time that they went
their separate ways to date.
It
is on the basis of the set up which the parties created for
themselves that clause 8.1 of the consent order was worded in the
manner which it appears. The clause reads:-
“Defendant
shall be entitled to remain in occupation of that portion of Allan
Grange Farm (the Farm) for a period of 9 months from the date hereof,
and shall, during that period, investigate such alternatives as may
be available to her.”
Clause
8.2 of the consent order set the present proceedings into motion. It
reads:
“If
the parties have not settled their differences in relation to the
farm, then, at the expiry of the said period of 9 months either party
shall be entitled to apply to the Registrar of this Honourable Court
for this matter to be tried on the issues set out in para 8.3
hereof.”
The
nine months period which was stipulated in the consent order expired
on the last day of May 2013. It is as a consequence of that stated
fact that the plaintiff wrote, through his legal practitioners of
record, to the Registrar of this Court on 18 November 2013. He
referred the court to clause 8.2 of the order and advised that:
(i)
The nine months period which had been accorded to the defendant to
remain on the farm had expired; and
(ii)
The parties' differences had remained unresolved.
He
stated that, because of the foregoing matters, he was moving the
court to set the case down for hearing so that the issues which are
spelt out in clause 8.3 of the consent order are determined. He
served a copy of the letter, which he addressed to the Registrar,
onto the defendant's legal practitioners.
The
issues for trial were or are defined in clause 8.3 of the consent
order. The clause reads:
“The
issues for trial shall be:-
(a)
Whether the defendant is entitled to any rights in respect of the
farm.
(b)
What constitutes a fair and equitable distribution of the rights held
by the parties in regard to the farm.”
Because
the abovementioned issues were made part of the consent order, the
court did not delve into any other matters which the rules of this
court, more often than not, do prescribe for the parties to comply
with before their matter is heard. It, however, directed that the
parties submit to it:
(a)
Summaries of their respective cases;
(b)
The names of witnesses, if any, whom each party would call;
(c)
A summary of the witnesses' evidence; and
(d)
A schedule of documents, or other material, which each party would
produce during the trial.
The
hearing commenced on 27 January 2014 and it ran through to 28 May
2014 - unavoidable postponements included. This was, indeed, a one
witness trial on either side of the divide with a number of
documentary evidence which the parties produced as exhibits. The
documents comprised:
(a)
The consent order which is dated 31 August 2012;
(b)
The 99 year lease which the plaintiff signed with the Government on
15 May 2007;
(c)
A letter which is dated 16 February 2012;
(d)
Commercial Bank of Zimbabwe letter which is dated 3 June 2013;
(e)
Metropolitan Bank letter dated 4 February 2014;
(f)
A bundle of documents;
(g)
Zimbabwe Electricity Supply Authority bills; and
(h)
Telone documents.
The
above-mentioned documents were respectively marked exhibits (1), (2),
(3), (4), (5), (6) (7) and (8).
Exhibits
(7) and (8) tended to, and do actually, show that the defendant
successfully applied to service providers who installed electricity
and internet facilities onto the farm. She did so during the
subsistence of the parties' marriage and when the latter were
working the farm as one unit. Exhibits (4) and (5) show that the
plaintiff borrowed money from the Commercial Bank of Zimbabwe as well
as from the Metropolitan Bank after the consent order was issued to
the parties. His testimony in the mentioned regard was that he
applied for loans from the two banks with a view to scaling up his
activities on the farm. The defendant's view on the matter was to
the contrary. She stated that the plaintiff took the money from the
banks so as to defeat her claim to the farm or to a portion thereof.
The
court remains of the view that nothing turns on the loan(s) which the
banks advanced to the plaintiff. The loans cannot defeat the
defendant's claim to the farm, or to a portion of it, if a finding
is made to the effect that she is, at law, entitled to the whole farm
or to a portion of the same. The loan(s) which the banks advanced to
the plaintiff would be settled between the banks and the plaintiff as
two contracting parties and that settlement would not in any way
involve the defendant who was, or is, not privy to the parties'
contract.
The
plaintiff and the defendant spent a great deal of their time
endeavouring to show, as well as convince the court, that the one or
the other was a better farmer than the other.
The
court accepts that, during the subsistence of their marriage, the
parties were like persons who are in a partnership where one's
contributions would be his or her attention on all operations which
were taking place at the farm whilst the other's contributions
would be in the area of sourcing the requisite capital and injecting
that into the farming enterprise. It requires little, if any,
emphasis to state that no meaningful farming would have occurred at
the farm if there was no capital injection into it. To the extent
that the observed set of circumstances holds to have been the true
position between the parties, none of them can assert that he or she
was more of a farmer than the other. That is so as their
contributions complemented each other in a manner which persuaded
Government to view both of them as a pair of serious farmers to whom
a lease could be extended as was done to them on 15 May 2007. The
court will, in view of the foregoing, not be persuaded to decide the
issues which are before it on the basis of who, between the parties,
was or is a better farmer than the other. It will, in this regard,
focus its mind on the parties' testimony, the above-mentioned piece
of evidence excluded, and on documentary evidence which, in its view,
will assist it to determine the matter.
Giving
his evidence–in-chief, the plaintiff stated that the consent order
favoured the defendant whom he said got the majority of their
matrimonial property.
The
court failed to appreciate what he was driving home to when he stated
as he did. That was so as he accepted that what was recorded in the
order as having been accorded to the defendant was what he agreed
that she should have. His evidence on this point became more
difficult to understand than otherwise when he stated that, when the
consent order was drafted and signed into an order of the court, he
hinged his hopes on the fact that he would retain the farm as
compensation for the property which was accorded to the defendant in
the order.
Under
cross-examination, he asserted, correctly so, that the farm did not
belong to the parties but to the Government.
One
fails to understand the reasons which persuaded the plaintiff, who
was ably legally represented, to entertain the belief that the farm
which the parties were, or are, leasing from Government fell into the
property regime of their marriage.
The
truth of the matter is that it does not and no amount or quality of
evidence or argument can drive it from the position in which it is
into becoming part of the parties' matrimonial property. Government
allocated the farm to the parties on the basis of the lease agreement
which the Government and the plaintiff concluded. It is taken as
given that a lease confers upon the parties to it personal and not
real rights. The parties are, in this regard, referred to Gwarada v
Johnson & Ors 2009 (2) ZLR 159 wherein GOWORA J..., stated that:
“A
lessee of land acquires a personal right to possession of the land.”
It
requires little, if any emphasis, to state that the parties in this
matter are leasing the farm from the Government. Their status
vis-a-vis the Government is that of lessee and lessor respectively.
The plaintiff, in the court's view, was unforgivably mistaken when
he treated what he knew was not the parties' matrimonial property
as one such property. He, in the process, unnecessarily raised the
defendant's expectations as well as fears. His conduct caused the
present proceedings to take place when they should not have occurred.
That same conduct caused the defendant to agonise as regards her
status on the farm. Indeed, the manner in which the parties couched
the first of the two issues which they called upon the court to
determine shows the extent of the defendant's apprehension. She,
not un-naturally, believed that her fate on the farm hanged in the
balance. She, therefore, wanted the court to make a definite
pronouncement on whether or not she was entitled to any rights in
respect of the farm, and, if she was, what rights those were or are.
The
defendant informed the court that, when the divorce proceedings were
in progress, she called at the offices of the Ministry of Lands, Land
Reform and Resettlement (the
Ministry)
where she inquired about her status on the farm. She stated that she
saw and talked to one Dr. Murerwa who referred her to the Ministry's
legal department. She said she later talked to a Mrs Tsvakwi as a
result of which a letter which clarified her position on the farm was
written. The defendant made an effort to produce the letter which she
said the Ministry had written.
Her
desire in the mentioned regard met with stiff objection from the
plaintiff who argued, through counsel, and stated that the letter was
not discovered and that it was not put to him, either in-chief or
under cross-examination, to enable him to make comments on its
contents.
Arguing
her position on this matter, counsel for the defendant referred the
court to the discovery affidavit which she filed with the court on
the day that the trial commenced. She stated that the letter appeared
as item number 3 of the schedule of documents which were on the
discovery affidavit dated 27 January 2014 - which is the day that the
trial commenced.
The
court remained alive to the fact that the plaintiff had not been
afforded sufficient time within which he had to read and appreciate
the contents of the letter to enable him to make meaningful comments
on the same. It also realised that, if the letter had been properly
discovered, as the defendant wanted the court to believe, the
plaintiff would have commented upon it either in-chief or under cross
examination. The fact that the plaintiff did not allude to the letter
at all stages of his evidence clearly shows that his attention had
not been drawn to the existence of the letter. He would, if he had
known, most probably have had something to say about the letter given
the manner in which he objected to its production. He was kind of
placed into an invidious position which, to all intents and purposes,
he found unacceptable and he, therefore, put up a spirited objection
which the court had to, understandably, uphold with little, if any,
hesitation.
The
court, and the parties, resolved that the letter be produced through
the person, or Government official, who had authored it. The letter
was, however, not produced as no official from the Ministry of Lands,
Land Reform and Resettlement (the
Ministry)
came to give testimony in relation to it or to any other matter which
pertained to the parties' position on the farm. Because the court
had been referred to the discovery affidavit, which the defendant
filed of record on 27 January 2014, the court examined the contents
of the affidavit and noted that the un-produced letter was written on
22 January 2010.
The
defendant said the letter was to the effect that she was a co-lessee
on the farm with the plaintiff.
It
is the court's considered view that the contents of the letter, as
was stated by the defendant, prompted the latter person to fall into
the same trap into which the plaintiff had fallen. She, as co-lessee,
entertained the distinct view that the farm which the two of them
were leasing from the Government should not be left to the plaintiff
alone but should be equitably distributed between them during the
parties' divorce proceedings. She, like the plaintiff, treated the
farm as part of the parties' matrimonial property which must be
shared between them when it was, and is, not such.
She
laid claim to a portion of the farm, or, where division of the same
was not possible, to the whole of it.
She
cited the Constitution of the country and the ruling party's
manifesto, the contents of which documents she said supported the
proposition that women should be treated on an equal footing with men
when it comes to the distribution of the country's natural
resources - including land. She also made reference to statistics
which emanated from a research which the Zimbabwe Statistical Office
conducted in the past. The research, she said, showed that only 19%
of the women in Zimbabwe were allocated land. She, therefore,
submitted, as an argument, that Government and the courts should
address gender imbalances in the allocation of land to the country's
women folk.
The
pieces of legislation which the defendant cited in support of her
case are real and they cannot, therefore, be glossed over.
The
Constitution and the ruling party's manifesto place a duty on
Government, and not the courts, to address gender imbalances which
the Zimbabwe Statistical Office's research unearthed. The court's
primary duty is not to distribute the country's resources - land
included. Its duty is to interpret the law as the parties to the
present dispute called upon it to do.
On
a reading of the evidence as a whole, the inescapable conclusion
which is reached is that the plaintiff made every effort to elbow the
defendant out of the farm. He stated that he could not co-exist with
the defendant on the farm. He said he preferred that each party went
his or her own separate way so that the parties are allowed to start
their respective lives on a clean slate. He said he was emotionally
attached to the farm which he regarded as being of a sentimental
value to him. Indeed, the manner in which the parties couched the
wording of clause 8.1 of the consent order seems to be in sync with
the views which the plaintiff held or holds of the matter. He argued
that it was not upon him but upon the defendant that the duty to
investigate available options was placed.
The
defendant, on the other hand, insisted that co-existence on the farm
was not only possible but had also occurred from the time that the
parties went on separation to date. She stated that no breach of
peace took place on either side of the divide and none will ever
happen in future. She said she investigated her alternatives and came
to the conclusion that the best option which was available to her was
that she be accorded that portion of the farm which she occupied and
continues to occupy in terms of the consent order. She insisted that
where that was not possible, on the basis that the farm was not
capable of being divided for one reason or the other, her prayer
would be that she be allowed to retain the whole farm as her source
of income. She informed the court that she was not gainfully employed
and that farming was her only means of livelihood. She said the
Ministry told her that she was co-lessee on the farm with the
plaintiff. She insisted that she should, therefore, be treated as
such.
The
plaintiff did not lead any tangible evidence which showed that the
parties suffered any breach of peace when they were on separation.
What came out clearly was that they maintained peace between them for
close to four years.
The
court, therefore, accepts that no problems would arise between them
if the defendant's prayer were to be granted. The court also
accepts the statement which the Ministry of Lands, Land Reform and
Resettlement (the
Ministry)
conveyed
to the defendant when the latter called at its offices to ascertain
her status on the farm as having reflected the correct position of
the matter then. The court established that the farm, which is the
subject of the present proceedings, does not belong to the parties
but to the Government. The farm cannot, in that regard, be taken as
the parties' matrimonial property.
It
is not.
The
parties were or are in a lessor-lessee contractual relationship with
the Government. Clause 1 of the lease agreement..., defines the
relationship of the parties to this lease in a clear and unambiguous
language. It reads:
“Lessor
means the Government of Zimbabwe as represented by the Acquiring
Authority”; and
“Lessee
means:-
(a)
A natural person signing this lease and his or her spouse or spouses
jointly: or
(b)…,.”
It
follows from the foregoing that the parties did and do have personal,
and not real, rights in the farm. The court is, therefore, called
upon to determine their personal and not their real rights in the
farm which they were or are co-leasing from the Government.
The
parties were granted a decree of divorce on 31 August 2012. The
decree altered the status which they enjoyed prior to their divorce
in a very material manner. They were spouses before the divorce. They
ceased to be such after the divorce. They became ex-spouses. That
fact, alone, connotes that they relieved themselves of the bond of
marriage and became strangers to each other from the moment that
divorce was granted to them. The divorce, it is needless to state,
changed their relationship not only as between themselves but also in
relation to the rights, personal or otherwise, which each party holds
after divorce.
Evidence
which was led showed that the plaintiff applied for lease of the farm
from Government. He cited the defendant as his spouse when he applied
for the lease which the Government granted to him. The defendant
became a co-lessee with him by virtue of her marriage to the
plaintiff. The plaintiff is the signatory to, and therefore, the
dominant party in the lease agreement. He cannot, on a proper and
correct interpretation of the word lessee, as contained in the lease
agreement, be divested of his personal rights in the lease. He
retains such rights in the farm.
The
defendant, on the other hand, lost her status as a spouse. She became
an ex-spouse of the plaintiff after the divorce. The interpretation
section of the lease agreement does not have any room in it for
ex-spouses. It has room for a spouse or spouses. She, unfortunately
for her, loses her status of co-lessee with the plaintiff on the farm
following her changed circumstances. That painful, but unavoidable,
reality is compounded by the fact that she loses her personal rights
in the lease, and, therefore, the farm.
The
plaintiff is, in the result, accorded all the rights in the farm to
the un-qualified exclusion of his former wife who is no longer his
spouse but his ex-spouse.
Whoever
the plaintiff marries after his divorce becomes his spouse. That
spouse would, by virtue of her marriage to him, become a co-lessee on
the farm with him. This, in the view which the court holds of the
matter, is the proper and correct interpretation of the word lessee
as it is contained in the lease agreement.
The
court disposed of the two issues which the parties placed before it
for determination….,. The
court has considered all the circumstances of this case. It is
satisfied that the plaintiff proved, on a balance of probabilities,
his entitlement to the farm.
Judgment
is, accordingly, entered for the plaintiff with costs.
