GUVAVA J: The plaintiff in
this matter issued summons out of this court claiming a decree of
divorce, custody of the minor children of the marriage and other
ancillary relief.
Four issues were referred to trial in terms of a joint pre-trial
conference minute filed by the parties on 27 November 2008. The
issues were agreed to as follows:
1. Whether the marriage has irretrievably broken down.
2. Who amongst the parties should have custody of the minor children
and who should have reasonable access to them?
3. In what way and/or in what sum should the non custodial parent
contribute towards the minor children's maintenance?
4. What constitutes the parties' marital estate and how should it be
distributed between the parties upon divorce?
At the commencement of the trial the defendant conceded that the
marriage had irretrievably broken down.
Therefore the only issues that remained for determination by the
court related to the custody and maintenance of the minor children
and division of the property.
The plaintiff testified that he married the defendant on 2 May 1987.
The marriage between them has irretrievably broken down as they have
lived apart from 2002 when the defendant went to work in the United
Kingdom. He is of the view that the marriage can no longer be
resuscitated.
Three children were born out of the marriage. The eldest is a major
and is living with the defendant and studying at a University in the
United Kingdom. The two minors live with the plaintiff in Zimbabwe
where they attend school, save for a brief period in 2004 when they
relocated to the United Kingdom but had to come back when the
defendant fell ill.
On 13 August 2002 and during the subsistence of the marriage they
purchased an immovable property being a certain piece of land situate
in the District of Salisbury called Stand 322 Vainona Township of
Vainona measuring 4,164 square meters otherwise known as Number 5
Otter Road, Vainona. The purchase price of the property was
Z$38,000,000 (thirty eight million dollars). The plaintiff stated
that this amount included the transfer costs and the furniture which
they took over from the previous owner.
The plaintiff stated that in order to raise the purchase price the
defendant sent 10,000 British pounds as her contribution towards the
purchase price. He converted this money on the informal market at a
rate of $1 to Z$1,000 and obtained Z$10 million. They sold a property
which they owned in Marimba Park for Z$20 million. The plaintiff paid
Z$11million from his earnings from buying and selling cars and took
out a mortgage for $5 million.
The property is registered in the joint names of the parties.
He suggested that upon divorce the property be retained until the
youngest child attains the age of 18 where after it should be sold
and the proceeds shared equally between the parties.
The plaintiff further testified that in May 2003 he purchased a
Pajero motor vehicle from Japan. He bought the motor vehicle with no
assistance from the defendant. He sold the motor vehicle in 2005 so
that he could raise money to collect the children from the United
Kingdom after their mother fell ill.
With regards to the movable household goods he suggested that each
party keep the items in their possession. It was his opinion that as
the defendant had been living in the United Kingdom since 2002 she
had acquired property there and therefore she should retain what she
had acquired whilst he retained what had been accumulated in
Zimbabwe.
He testified that he has looked after the children since his wife
left for the United Kingdom. At the time the youngest child was 2
years and eight months old. He is now at Hartman House where he is
doing Grade Seven. He would pay for them to fly to the United Kingdom
to visit their mother during the holidays.
In 2004 it was agreed that the children should go to the United
Kingdom to live with their mother. Unfortunately after they had been
there for about a year the defendant fell seriously ill and they had
to return to Zimbabwe. When the youngest child returned from the
United Kingdom his school work was below average but he started
picking up again and he has greatly improved his grades. He stated
that he was not happy with the educational standards in the United
Kingdom and the issues of juvenile delinquency. He stated that he
should retain custody of the minor children.
With respect to maintenance of the children he stated that he has
maintained the children on his own. He pays US$3,000 per term for
school fees and US$500 for uniforms. He buys groceries of US$800 per
month and the fuel bill is US$200. The children are day scholars and
have to be taken to school and back every day. Dalton has finished
high school and would like to go to university. The university fees
are about US$21,000 per year. The plaintiff stated that he wanted the
defendant to contribute 50% of the fees and pay US$2,500 as monthly
maintenance for the two minor children. He stated that should custody
be awarded to the defendant he would be happy to pay the same in
terms of maintenance.
In cross examination it was put to the plaintiff that the free rate
of exchange in July 2002 was US$1 to Z$1,400 and not Z$1,000 which he
said he had exchanged the money. He denied that that was the exchange
rate. He also denied that the defendant had sent him a further 3,000
pounds in August 2002. He stated that although he did not dispute
that the money was withdrawn from her bank account he does not know
what she used the money for. He however could not explain why the
defendant had withdrawn the money a few days after signing the
agreement of sale. He denied that she had contributed towards the
construction of a wall around the property. He stated that it had
only cost Z$1,8 million. He also conceded that although the defendant
had made a withdrawal of 5,823 pounds from her account he did not
know how she had used the money.
The plaintiff admitted that he had been involved in an adulterous
relationship but said it was now over. When it was put to him that
his youngest child had written a wish list in his school book and
wished his parents could get back together and his father stop
cheating on his mother he stated that he knew nothing about it. He
nevertheless denied that this made him an unfit parent to have
custody of the children.
When questioned by the court he stated that he was in a position to
pay out the defendant her share of the immovable property if he was
given an opportunity to do so. He also stated that he was happy to
share the moveable property as they had agreed prior to the
commencement of the trial.
The plaintiff, in my view, was not an honest witness. He tried to
paint the defendant as an uncaring mother who did nothing for the
well-being of the family and yet documentary proof produced by the
defendant showed that she would bring home substantial sums of money.
He also tried to portray defendant as someone who just abandoned the
family when the youngest child was still a baby and yet it was
apparent from all the evidence before me that the parties had agreed
to the arrangement on the understanding that it was for the best
interest of the family.
He also did not disclose that in accordance with the terms of his
benefits with his former employer, Air Zimbabwe, his family could fly
to the United Kingdom for free for up to three times a year. This was
the benefit he utilized whenever they traveled to the United Kingdom.
I thus did not believe him when he stated that he would single
handedly foot the travel bill in order for the children to visit
their mother.
The plaintiff's evidence in relation to his contributions towards the
purchase price of the immovable property did not ring true. Indeed a
mathematical calculation of the money according to his evidence would
end up with a surplus amount. He stated that he contributed Z$11
million, the defendant paid Z$10 million and the proceeds of Z$20
million from the proceeds of the Marimba Park house all went to the
purchase price of the house. He also took out a loan of Z$5 million
for transfer fees. Thus the total amount raised was Z$46 million when
the purchase price was only Z$38 million.
Throughout his evidence and cross examination he insisted that he
wanted to retain all the moveable property which they acquired in
Zimbabwe. It was only when he was questioned by the court that he
stated that they could share the movables in accordance with the
agreement that they had reached prior to the commencement of the
trial.
The defendant testified that she was residing with her mother in
Kambuzuma during her stay in Zimbabwe. She was agreed that the
marriage between her and the plaintiff had broken down as they have
not lived together as husband and wife since 2006.
She has three children with the plaintiff. The eldest son is at
university in England and lives with her. She testified that she
loved her children and wanted custody of the two minors.
She left for London when her youngest son was 2 years and 8 months
old. She had agreed with her husband, the plaintiff, that they wanted
a better life for their family. She could not go with the children
because she was going to look for employment. When she had settled
down the children did follow her but she unfortunately fell ill and
they had to return a year later.
She produced as an exhibit an exercise book that belonged to her
youngest son. She stated that her son gave her the book when he came
to visit her for Christmas in December 2006. At page 11 of the book
he had written what he called "My Christmas Wish". In the
story he stated that he wished that his mother and father would get
back together and his father would stop cheating on his mother. She
stated that the story showed that the child was not happy with his
father.
The defendant testified that although she was not employed she had
permanent residence in the United Kingdom and had secured a Council
flat where she could live with the minor children. She produced the
lease agreement as proof of residence and medical aid cards in the
children's names for their treatment in England. She also opened bank
accounts for the children and stated that a social worker was
assisting in securing a place for school for the youngest child. She
also told the court that the plaintiff was employed by Air Zimbabwe
until 2009 when he was retrenched. He was however given a package
which allows him and his family to continue to fly all on the airline
for free. The children have therefore been flying to and from the
United Kingdom at no cost.
The defendant confirmed that she and the plaintiff had agreed on the
distribution of their movable property. She produced by consent
exhibit 11 which shows how their property should be shared.
Thus the only dispute between the parties related to the immovable
property.
The defendant told the court that she had given the plaintiff 10,000
pounds. She produced a document which she downloaded from the
internet which showed the exchange rates as at July 2002. The
defendant urged the court to accept the rate on this document as
opposed to the rate which the plaintiff had said he changed the
money.
In August 2002 she sent a further sum of 3,000 pounds towards the
purchase price of the property. The defendant testified that in
November of 2002 she sent a further amount of 5,823-94 pounds to
assist with renovations on the property. A wall was erected around
the property and a new leather lounge suit purchased. They put in
tiles in the swimming pool and relocated the gazebo from the tennis
court to the swimming pool.
The defendant stated that from her calculations she had paid the full
purchase price for the immovable property without the assistance of
the plaintiff and she was thus entitled to a 90% share. She stated
that if she were to be given a period of six months she would be able
to pay him out.
In cross examination the defendant maintained that the plaintiff did
not contribute at all towards the purchase price of the immovable
property. She was adamant that the black market rate upon which they
changed their money was set by Government. She stood firm in her
evidence that she had sent further amounts to the plaintiff towards
the purchasing and renovations of the house.
I found the defendant to be a good witness who was fair and gave
credit where it was due. She conceded that the plaintiff had done a
great job of looking after their children in her absence. She seemed
to me to be a loving and caring mother to whom fate had unfortunately
dealt a nasty blow. Had she not fallen ill in 2004 she could have
been with all her children now.
With regards to her evidence in
relation to her contributions towards the purchase price of the house
it was apparent that she had no real knowledge about the rates of
exchange and had left the financial responsibility in the hands of
the plaintiff. Whilst
there was clear evidence that she had withdrawn various sums of money
from her bank account in the United Kingdom there was no real link
between the withdrawal and how the money was subsequently used.
MEETING WITH MINOR CHILDREN
I had an opportunity to meet with the two minor children of this
union.
It was clear that the children were well adjusted and well looked
after. They were well mannered and articulate. Whilst I cannot
disclose what we discussed during the meeting it was apparent to me
that the children love both their parents very much and if they had a
choice in the matter would want their parents to remain together.
Dalton who was about to turn 18 in a couple of months oozed with
confidence and showed that he was ready to go to university. The same
could not be said of the younger child who seemed a bit more
withdrawn.
CUSTODY AND MAINTENANCE OF THE MINOR CHILDREN
The issue of custody was relevant
only as far as the youngest child was concerned. Dalton at the time
of the hearing was doing his upper 6th
Form and was looking forward to going to university. He turned 18 on
13 August 2010. The question of his custody was never in issue during
the trial as it was accepted that he would turn 18 during the course
of the year and thereafter decide where he wanted to go and live and
study.
Both parents want custody of Alistair the youngest child.
It is trite that in any case
where the court is asked to determine the issue of custody the court
is enjoined to consider the best interests of the child. In the case
of Zvorwadza v
Zvorwadza 1996 (1) ZLR
404 it was held that the court must take into account the following
factors in determining the best interests of the children; age,
health, educational and religious needs, social and financial
position of each parent, sex of the child and parents' character and
past behavior towards the children.
I will take these factors into consideration in determining this
case.
Alistair is only 13 years old. He has just completed his Grade Seven
and is going to high school. He has lived with his father all his
life. He is doing well at school and will probably get a place for
Form 1 at St Georges College. He is a young boy going into puberty.
He needs the support and guidance of his father but he also needs the
love and nurturing of his mother. An examination of Alistair's
notebook which was produced as exhibit 11 shows that he is a lovely
young boy who loves both his parents. The book shows that his father
is loving and caring and has done everything in his power to ensure
that his children have the best in life. He looked after Alistair
when he was a baby and made all the arrangements for the children to
visit their mother during school holidays.
Whilst the plaintiff stated in his evidence that the defendant had
abandoned the family it is apparent that the decision for her to go
and look for employment in the United Kingdom was a family decision
and for a while things had worked out as planned.
There can however be no doubt that Alistair misses the love and care
of his mother. It was argued by the plaintiff that she would not be a
good custodian of the minor child because she is of ill health and
she is not employed. The defendant struck me as a responsible person
who has the best interests of her children at heart. She told the
court that she is well on the road to recovery and hopes to be back
at work soon. She has secured accommodation for herself and the child
in the United Kingdom and has also secured permanent residence status
for them. The defendant submitted that the plaintiff had been
involved in adulterous relationships. She argued that on this basis
the plaintiff should be denied custody.
It was apparent from the excerpt that Alistair wrote in his exercise
book in November 2006 that he knew that his father was cheating on
his mother. It must have affected him quite badly for him to have
expressed it in the manner he did in his school book. The adultery
itself is not denied and was explained by the plaintiff as the fact
that he is a man of the flesh. This will obviously continue to
adversely affect him well into his adult life.
Having considered the above factors I am of the view that the best
interests of Alister at this time would be best served by awarding
his custody to his mother.
The circumstances of their family life have changed. His older
brother who has always been there with him will be leaving for
university. It was the defendant's evidence while she is still not
back at work she was recovering and hoped to start work soon. To
sustain herself she was on Government benefits which will be
sufficient to look after her and the minor child. I am satisfied that
she had made all the necessary arrangements for the accommodation and
schooling for the minor child.
The defendant claimed maintenance for the minor child in the sum of
250 pounds per month per child. The plaintiff had offered an amount
up to US$3,000 per month for the two minor children. The defendant
however cannot be awarded more than what she has claimed in her
summons. The plaintiff can however make any further sums of money he
can afford for the comfort and well being of his son. As there was no
amendment to the claim the court can only make and award in the sum
of 250 pounds per month for the minor child.
MATRIMONIAL PROPERTY
The plaintiff and the defendant were both agreed on how they would
share their movable assets.
The bone of contention remained with regards to how the immovable
property should be shared. The plaintiff argued that he is entitled
to 50% share of the property as he not only contributed towards the
purchase price but he is also a registered owner. The defendant on
the other hand submitted that she should get 90% of the property as
she paid the whole purchase price of the property.
It is now settled that in order
for the court to achieve an equitable distribution it must take into
account all the factors that are set out in section 7(4) of the
Matrimonial Causes Act. In making the award the court must endeavor
to place the parties in the position they would have been had the
marriage continued. In Shenje
v Shenje 2001 (2) ZLR
160 (H) GILLESPIE J stated that the court must consider all the
factors set out in section 7(4) of the Matrimonial Causes Act. He
stated as follows at p 163 of the judgment:
"The factors listed in the subsection deserve a fresh comment.
One might form the impression from the decisions of the court that
the crucial consideration is that of the respective contributions of
the parties. That would be an error. The matter of the contributions
made to the family is the fifth listed of seven considerations. The
first four listed considerations all address the needs of the parties
rather than their dues. Perhaps, it is time to recognize that the
legislative intent and the objective of the courts, is more weighed
in favour of ensuring that the parties needs are met rather than that
their contributions are recouped."
The evidence led during the trial related to the amount contributed
by each party towards the purchase and development of the matrimonial
home.
Whilst there was very little dispute with regards the amount the
defendant sent from the United Kingdom towards the purchase of the
property the dispute centered largely in regard to the exchange rate
which was used to change the money from pounds to Zimbabwean dollars.
The court is faced with a real challenge as the parties both accept
that the money was exchanged illegally using the black market rate.
Being an illegal rate there is no documentation which sets out the
actual rate of exchange. The problem is also compounded by the fact
that such transactions are carried out on a willing buyer and willing
seller basis after negotiating the rate of exchange. As the
transaction is illegal nothing is written down and therefore it is
impossible to ascertain what the actual rate used was for the
transaction.
The defendant sought to persuade the court to use a document which
she had downloaded from the internet which set out the rate of
exchange on the black market at that time. It was her belief that the
document had emanated from Government.
However an examination of the document shows that it is not an
official document but an article which was prepared by an individual
quoting the Governor of the Reserve Bank. The rate of exchange on the
document which she asked the court to accept is an illegal rate which
is not recognized by the laws of this country. I thus had
difficulties in accepting the document as proof of the exchange rate
between the Zimbabwe dollar and the American dollar at the relevant
time it would mean an acceptance by the court of the black market
rate.
It was apparent to me during the trial that both parties contributed
towards the acquisition of the immovable property. The actual
contribution in monitory terms cannot be ascertained as the values
were converted using an illegal rate. The plaintiff and the defendant
are however both registered owners of the property. The defendant's
submission that she should be awarded 90% of the property has
therefore not been proved. In any event even if she had contributed a
bigger amount financially the court is enjoined to consider all other
factors set out in section 7(4) of the Act when it comes to making an
equitable distribution. The plaintiffs' indirect contributions in
almost single-handedly raising their three children cannot be
overlooked. The youngest child was only 2years and 8 months when the
defendant left for the United Kingdom. This in itself would tilt the
balance in the plaintiff's claim.
The parties both need to make a fresh start in their lives. The
defendant is based in the United Kingdom and the plaintiff lives in
Zimbabwe. I have awarded custody of the minor child to the defendant
which means that the plaintiff's claim to remain in the house until
the youngest child attains the age of eighteen years no longer has
any basis as it was premised on custody of the minor child being
awarded to him. The defendant has never lived in the matrimonial
property apart from the visits she made. She has already found
accommodation for herself and the child in the United Kingdom. The
plaintiff will have to purchase some other property if the property
is sold.
In trying to place the parties in
the position they would both have been had the marriage continued I
have taken into account that during the course of the marriage they
both owned the property in equal shares; (see Takafuma
v Takafuma 1994 (2)
ZLR 103). Thus having taken into account the factors as set out in
section 7 of the Matrimonial Causes Act it is my view that an award
of 50% share to the plaintiff would meet the justices of the case.
The plaintiff indicated that he would be in a position to buy out the
defendants share if he is given an opportunity to do so. I will thus
in the order that I make grant plaintiff the first option to purchase
the property. If he does not do so within the time allotted to him
the defendant can then also get a chance to buy out the plaintiff. I
have given the plaintiff the right to the first option because he is
based in Zimbabwe and that is the house he has always lived in. The
defendant on the other hand lives elsewhere and does not intend to
live in the house apart from the occasional visit.
The parties in this case made no claims for costs. In the order that
I will make I will thus not make an order for costs.
In the result I make the following order:
1. A decree of divorce is hereby granted.
2. Custody of the minor child Alistair Tinotenda Masawi (born 28
November 1997) is hereby awarded to the defendant.
3. The plaintiff shall pay maintenance in the sum of 250 pounds per
month until the child attains the age of 18 or becomes self
supporting whichever occurs first.
4. The plaintiff is awarded reasonable access to the minor child in
consultation with the defendant.
5. The plaintiff is awarded the movable property set out in annexure
"A".
6. The defendant is awarded the
movable property set out in annexure "B".
7. The immovable property being
certain piece of land situate in the District of Salisbury called
Stand 322 Vainona Township of Vainona measuring 4,164 square meters
otherwise known as Number 5 Otter Road Vainona, Harare is hereby
awarded to the parties in equal shares.
(a) The plaintiff is granted the
right of first option to purchase the defendants 50% share.
(b) The property shall be valued
by a registered estate agent appointed by the Master of the High
Court from his list of valuers within 30 days of this order.
(c) The plaintiff shall pay the
defendant her share of the property within 90 days of service of the
valuation report.
(d) The cost of the valuation of
the properties shall be met by both parties equally.
8. In the event that the
plaintiff fails to pay out the defendant her share of the property as
set out in para 7 of this order the defendant shall immediately after
the 90 day period have the right to buy out the plaintiff of his half
share.
9. If the defendant fails to buy
out the plaintiff within a period of 30 days from the date when her
right becomes due the property shall be sold at best advantage and
the parties shall be awarded 50% share of the net proceeds.
10. There shall be no order as to
costs.
Chinogwenya & Zhangazha, plaintiff's legal practitioners
Madzivanzira, Gama & Associates, defendant's legal
practitioners
ANNEXURE "A"
1. GREY/BLUE 3 PIECE SOFAS
2. SIDE TABLES WITH GLASS TOPS
3. 1 CENTRE TABLE
4. 1 ROCKING CHAIR
5. ALL DETACHABLE ITEMS IN MAIN BEDROOM
6. 4 BRAAI FORKS
7. ALL DETACHABLE ITEMS IN BREAKFAST ROOM
8. 1 WASHING MACHINE
ANNEXURE "B"
1. TAN 4 PIECE LEATHER SOFAS
2. 1 SPRAY OF ARTIFICIAL LEAVES
3. DINNING ROOM SUITE
4. ARTIFICIAL PLANT /FLOWER
5. ALL LISTED ITEMS IN 2ND AND 3RD BEDROOM
6. DOUBLE DOOR DEFY FRIDGE
7. PLASTIC VEGETABLE RACK
8. 1 DEEP FREEZER
