This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant in the court a quo and first respondent in this appeal).
FACTUAL BACKGROUND
The facts of the case can be summarised as follows:
On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].
During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.
They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.
On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.
The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.
The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.
The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:
“(a) The custody of Julian and Anton;
(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;
(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;
(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;
(e) Which properties constituted the matrimonial estate;
(f) What appropriate order the High Court was supposed to make for the sharing of property.”
PROCEEDINGS IN THE HIGH COURT
When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.
The parties claim for custody and maintenance, therefore, only related to Julian.
The parties adduced a lot of documentary evidence to support their respective claims.
During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.
After hearing the evidence, the judge a quo interviewed Julian in his chambers.
The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.
It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.
The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.
The order granted by the court a quo, quoted verbatim, reads as follows:
“Accordingly, it is ordered as follows:
1. A decree of divorce be and is hereby granted.
2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.
3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:
3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.
3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.
4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.
5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.
5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.
6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.
7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.
8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.
8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.
8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.
9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.
9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.
9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.
10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.
10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.
10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.
11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.
12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:
(a) 94 Matumi Sands Lonehill (Pty) Ltd.
(b) 112 Matumi Sands, Lonehill (Pty) Ltd.
(c) 182 Shingara (Pty) Ltd.
(f) Theright Investments (Pvt) Ltd.
(g) Stir Crazy (Pvt) Ltd.
(h) Incavat Enterprises (Pvt) Ltd.
(i) Telehic Investments (Pvt) Ltd.
(j) Natsbury Trading (Pvt) Ltd.
(k) Plaintiff's claim of £10,400.
13. The defendant shall bear the costs of suit.”
Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.
GROUNDS OF APPEAL
The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.
The appellant's grounds of appeal attack the court a quo's decision on the following issues:
1. Custody and maintenance of Julian, the perpetual minor;
2. Her claim for inheritance money loaned to a company from the respondent;
3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;
4. Her claim for a lump sum maintenance payment in the sum of US$100,000;
5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and
6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.
APPLICATION BY THE APPELLANT
In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.
We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.
On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:
FINDINGS OF FACT MADE BY MAWADZE J
“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.
(b) The respondent has not placed any credible evidence before this Court for such conduct.
(c) Julian remains in South Africa to date.
(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.
2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.
(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.
3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.
The respondent has not explained his conduct.
4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.
5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.
6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.
7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.
8. Lastly, the following assets are still available;
(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.
(b) Belgravia House, Harare but is still encumbered.
(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.
(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.
(e) No.182 Shingara in South Africa.”
APPELLANT'S SUBMISSIONS ON APPEAL
In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.
Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.
Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.
In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.
Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.
He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.
In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.
He prayed that the appeal succeeds with costs.
THE FIRST RESPONDENT'S SUBMISSIONS ON APPEAL
Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).
Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.
He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.
Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.
In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.
APPELLANT'S RESPONSE
In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.
Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.
He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.
Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.
FURTHER SUBMISSIONS
By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.
As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:
“IT IS ORDERED BY CONSENT THAT:
1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.
2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.
3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.
4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”
In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.
He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.
The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.
In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.
ISSUES FOR DETERMINATION BY THIS COURT
The appellant raised several grounds of appeal, but, the material issues for determination are as follows:
1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.
2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.
3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.
4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.
5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.
6. Whether or not the distribution of the immovable property was fair.
7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.
Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims
The court a quo granted the first respondent absolution from the instance in respect of the appellant's claims to a share in the South African properties, namely, 94 Matumi Sands Lonehill (Pty) Ltd; 112 Matumi Sands Lonehill (Pty) Ltd; and 182 Shingara (Pty) Ltd as well as a number of Zimbabwean assets.
The court a quo stated:
“…,. I have also alluded to the various companies in which the plaintiff did not lay any claim but were alleged to be owned by the defendant and that I should consider that fact in the distribution of the assets of the parties.
These include:
(i) Telehec Investments (Pvt) Ltd;
(ii) Natsbury Trading (Pvt) Ltd;
(iii) Bywork Intermedia;
(iv) Incavat Enterprises (Pvt) Ltd;
(v) Stir Crazy (Pvt) Ltd;
In respect of all the above properties, inclusive of the companies, I am inclined to grant absolution from the instance.
I have already alluded to the fact that neither the plaintiff nor the defendant have been able to place evidence before the court to show the shareholding of these companies, I have dealt, at length, with the evidence of the parties and explained why I believed the defendant is an untruthful and incredible witness. I, however, hold the view that the plaintiff has not been able to make out a case in respect of these assets. I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation…,.
Absolution from the instance would enable the plaintiff, if she so desires, to deal with the defendant's interests in Stir Crazy and other related companies after a full public inquiry…,.
The only viable and just option is to leave the door open for the plaintiff to approach the court after a decree of divorce is granted, if she wishes, with sufficient evidence on the shareholding of both the trading and property-owning companies in Zimbabwe and South Africa…,.
Since evidence had been led in respect of these companies, I cannot leave the matter hanging but to grant absolution from the instance…,.”
The first respondent made offers to the appellant in respect of some of the properties included in the order of absolution from the instance and disclosed his shareholding in some of the companies.
Evidence on record established, that, the first respondent offered the appellant 10 percent of the Belgravia House owned by Stir Crazy (Pvt) Ltd; 10 per cent of Theright Investments (Pvt) Ltd; 20 per cent shareholding in Stir Crazy (Pvt) Ltd.
The first respondent further confirmed some of these offers during oral evidence before the court a quo where he had the following exchange with the court a quo:
“Q. I am not worried about that document you are talking about, I am worried (sic) the list of all these companies we have dealt with. You know what proof can be placed at any forum to prove ownership of a company?
A. And yet I have offered 40 percent to her my Lord.”…,.
During the same oral evidence, the first respondent conceded that he owns 80 percent shares in Stir Crazy (Pvt) Ltd; 80 percent shares in Opium Investments (Pvt) Ltd; 80 percent shares in the Theright Investments (Pvt) Ltd; 50 percent shares in 112 Matumi Sands Lonehill (Pty) Ltd; and 50 percent shares in 94 Matumi Sands Lonehill (Pty) Ltd.
It is trite, that, when insufficient evidence is led when the plaintiff closes his case, or when there is insufficient evidence at the end of a full trial, the court can grant the defendant absolution from the instance.
Absolution from the instance, in both these instances, simply means the defendant is freed from being held liable under that litigation but the plaintiff remains free to pursue his/her suit against the defendant through another suit on a subsequent occasion.
The factors to be considered in an application for absolution from the instance were discussed in the case of Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A)…, where it was held that:
“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is: is there evidence upon which a reasonable man might find for the plaintiff? The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant…,. In other words, was there such evidence before the court upon which a reasonable man might, not should, give judgment against the defendant?”…,.
Further, in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, it was held that:
“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”…,.
In casu, though absolution was granted by the court a quo mero motu after a full trial, the test of whether or not there was evidence to justify granting it still applies.
Absolution should not be granted if there is evidence on which the court can find for the plaintiff.
Absolution from the instance can be granted by a court at the close of the case for the defendant.
That this is the position at law is confirmed by HERBSTEIN & Van WINSEN's, The Civil Practice of The High Courts of South Africa, Fifth Edition, Vol 1…, where they say:
“Although there is no express provision in Rule 39 for an order of absolution from the instance at the conclusion of the whole case, the practise to grant absolution when a plaintiff has not established the facts in support of his case to the satisfaction of the court, has been extended to cases in which evidence for the defendant had also been given.”
In this case, there was an offer upon which a court, exercising its mind reasonably, could find for the appellant.
The offers made by the first respondent to the appellant are sufficient evidence to justify such a finding.
When these offers were made, it became apparent that what was offered could be awarded to the appellant.
It also became clear that the appellant had a case against the respondent in respect of the offered assets and that absolution from the instance could not be granted in cases where there was evidence of the first respondent's ownership of shares in companies the appellant had made claims against.
While it is not permissible to claim distribution of assets of companies, it is permissible to claim shares owned by a spouse in a company.
An offer is a form of an admission. The thing offered need not be proved by leading evidence.
In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC25-12…, it was held that:
“A formal admission made in pleadings cannot be ignored by the Court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted. Thus, where liability in full, as in casu, is admitted, no evidence is permissible to prove or disprove the defendant's admitted liability.
The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the Court; in that, where it is not withdrawn, it is binding on the Court and the Court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.
See also Rance v Union Mercantile Co Ltd 1922 AD 312; Gordon v Tarnow 1947 (3) SA 525 (AD); Van Deventer v De Villiers 1953 (4) SA 72 (C); Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224; DD Transport (Private) Limited v Abbot 1988 (2) ZLR 98; and Liquidator of M & C Holdings (Pty) Ltd v Guard Alert (Pty) Ltd 1993 (2) ZLR 299 (HC).”
In light of the above, I find that the court a quo erred in granting absolution from the instance when the respondent had made offers to settle in respect of some of the companies and when there was evidence of the first respondent's shareholding in some companies which could be used to distribute those shares between the parties.
It was not correct for it to hold, that, the appellant had failed to prove her case in properties in respect of which the first respondent had made offers and there was evidence of the first respondent's shareholding.
The court a quo's decision, on the affected assets, should be set aside as it was premised on a misdirection.
As there is evidence on record, in the form of the first respondent's offer to the appellant and the first respondent's admitted ownership of shares in those companies, this Court is able to distribute the assets of the parties in respect of which offers were made.
This Court can distribute between the parties assets and shareholdings offered by the first respondent and his admitted shareholding in the stated companies.
In respect of Stir Crazy (Pvt) Ltd, the court a quo granted absolution because it had, while the trial was in progress, been placed under provisional liquidation and was subsequently placed under liquidation.
In my view, the court a quo correctly granted absolution from the instance in spite of the first respondent having led evidence to the effect that he held 80 percent of that company's shares and had offered to the appellant 10 percent of a property owned by it as well as 20 percent of his shareholding in it, because liquidation placed it under the control of a liquidator who was entitled to make decisions in respect of that company.
Distributing assets of a company in liquidation would be contrary to the provisions of the then section 213 of the Companies Act [Chapter 24:03] which provided as follows:
“213 Action stayed and avoidance of certain attachments, executions and dispositions and alteration of status
In a winding up by the court —
(a) No action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose;
(b) Any attachment or execution put in force against the assets of the company, after the commencement of the winding up, shall be void;
(c) Every disposition of the property, including rights of action of the company and every transfer of shares or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.”…,.
The court a quo was therefore correct when it said:
“I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation.”…,.
The court a quo, therefore, correctly granted absolution from the instance against the appellant's claim on shares and assets owned by Stir Crazy (Pvt) Ltd.
It also correctly ordered absolution from the instance in respect of properties where no offers had been made and in respect of companies in which there was no evidence of the parties shareholding.
No.182 Shingara should remain on the list of properties against which absolution from the instance was granted because it is alleged to belong to a third party (Murray, the parties first child). It can therefore only be distributed between the parties if it is proved to be an asset of the parties....,.
The appellant contends, that, the court a quo erred in distributing some of the immovable property without taking into consideration the values testified to by the appellant.
A perusal of the record establishes, that, the first respondent was awarded, as his sole and exclusive property, the immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare. The appellant was awarded, as her sole and exclusive property, the immovable property known as No.6 Rosefriars, a flat in Avondale, Harare. She was also awarded No.13 Bates Street, Milton Park, Harare which is owned by Opium Investments (Pvt) Ltd in which the respondent admitted that he holds 80 percent of its shares.
I am inclined to agree with the appellant that the court a quo erred in proceeding to distribute immovable properties without the benefit of a valuation, because, one immovable property of high value can be equal to several immovable properties of lower value.
It is therefore essential to distribute properties in terms of their values to achieve an equitable distribution of the assets of the parties.
In Gonye v Gonye 2009 (1) ZLR 232…, MALABA JA…, remarked:
“It is important to note, that, a court has an extremely wide discretion regarding the granting of an order for the division, apportionment, or division of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides, that, the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other. The rights claimed by the spouses under section 7(1) are dependent upon the exercise by the court of the broad discretion.”
It must however be added, that, the court's wide discretion can only be exercised on the basis of the evidence led by the parties.
In exercising its wide discretion, a court must determine the proportions on which it intends to distribute the assets to the parties. It should thereafter rely on the values of the assets to ensure that each party is awarded assets equal to the ratio it will have allocated to him or her. If, for example, the court allocates each party a 50 percent share of the value of the assets of the parties, it will then use the value of the assets to distribute them at the determined ratio.
It is settled law, that, in matters which involve the exercise of discretion by a lower court, the Appellate Court should not be quick to interfere with such an order. It can only do so in extraordinary circumstances where there is evidence of gross misdirection, unreasonableness, and illogicality.
The position was enunciated in the case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where the court stated as follows:
“These grounds are firmly entrenched. 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 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 doing so.
In short, this Court is not imbued with the same broad discretion as enjoyed by the Trial Court.
See also The Civil Practice of the Supreme Court of South Africa (HERBSTAIN and Van WINSEN) 4th ed by L Van Winson, AC Cilliers and C Loots at pages 918-9; TjospomieBoedey (Pvt) Ltd v Drakensberg Bottliers (Pvt) Ltd & Anor 1989 (4) SA 31 (T) at 40A-J; and Ex-parte Neethling & Anor 1951 (4) SA 331A.”…,.
It is my respectful view, that, overlooking the values of properties in the distribution of matrimonial property is an improper exercise of discretion which warrants interference by this Court. This is because it goes against the principle of equitable distribution upon divorce envisaged in the Constitution and the Matrimonial Causes Act.
The Constitution, under section 26(c) and (d), provides, that, the State must ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution, and, in the event of dissolution, whether through death or divorce, provision must be made for the necessary protection of spouses.
This means there must be a fair division and distribution of property which is just and equitable in the circumstances.
The division and distribution of assets of the spouses at divorce is governed by section 7(1)(a) of the Matrimonial Causes Act.
It is trite, that, in matters involving the distribution of property, the court has to exercise its discretion to reach a decision which can be deemed to be a just and equitable distribution between the parties.
Case law authorities, in construing the provisions of section 7 of the Matrimonial Causes Act as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce.
Equitable distribution does not mean equal division but a fair division in relation to the circumstances of the case.
The court may consider such factors as the extent of a party's contribution to the accumulation of the property, the market and emotional value of the assets, the duration of the marriage, the economic consequences of the distribution, the parties needs, and any other factors relevant to an equitable outcome.
Fairness is the prevailing guideline the court must use.
In Chombo v Chombo SC41-18…, commenting on the role of values of property in the distribution of matrimonial assets, the court held:
“…,. In terms of section 7(4)(f), the court is entitled to consider the value of 'any benefit' a spouse will lose on divorce in distributing the matrimonial property of the spouses. The court a quo failed to consider and distribute the value of the benefits which flow from a registered long lease which confers real rights. It is the value of those benefits and advantages which are distributable in terms of section 7(4) of the Matrimonial Causes Act…,.”…,.
In casu, it is my respectful view, that, the court a quo erred by improperly exercising its discretion without taking into consideration the values of the properties it distributed.
It is important to note, that, shares of different companies cannot be of the same value hence the need to value all shares where more than one company is involved, to enable the court to effect an equitable distribution of the assets of the parties.
What is required is a fair distribution of the shares.
This Court can exercise its own discretion in view of the misdirections of the court a quo as there is evidence it can exercise its discretion on the issues.
According to the report by MAWADZE J the only properties left are;
(i) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe;
(ii) The Belgravia House, Harare owned by Stir Crazy (Pvt) Ltd, (which is also still encumbered and is affected by the liquidation of the company);
(iii) No.6 Rosefrias, Avondale, Harare;
(iv) No.13 Bates Street, Milton Park, Harare owned by Opium Investments (Pvt) Ltd and is still encumbered; and
(v) No.182 Shingara in South Africa.
According to evidence on record, No.182 Shingara is alleged to be owned by Murray, the parties first born child.
As already indicated, properties owned by companies in which the spouses have interests, whose shareholding has not been disclosed, cannot be distributed in terms of section 7(1)(a) of the Matrimonial Causes Act which authorizes the distribution of assets of the parties.
It is therefore not possible for this Court to distribute the houses owned by companies in which the parties shareholding is unknown.
In view of the court a quo's distribution of the assets of the parties, without taking into consideration their values, the affected orders must be set aside and substituted with orders distributing their shares in companies where the parties shareholding in the companies is on record.
This will however not affect No.6 Northwood Rise, Mt Pleasant in which it has become clear that the parties had a half share each.
It will also not affect the order of the Court a quo that the respondent transfer all his shares in Opium Investments (Pvt) Ltd, which owns No.13 Bates Street, Milton Park as the distribution of shares owned by one of the parties is legally competent.
It is also lawful to order the transfer of a spouse's property to the other spouse.
The award of No.6 Rosefriers, which is an asset of the parties not owned by any of their companies, will also not be affected.
No.6 Northwood Rise, Mount Pleasant, Harare is no longer fully available because the first respondent caused the sale of his half share in it. A half share of this property now belongs to Doves Funeral Assurance (Pvt) Ltd, the second respondent, under Deed No.909/2019.
Counsel for the appellant, in his additional heads, urged this Court to award the whole property to the appellant who intends to thereafter litigate over the respondent's sold half share in the High Court.
It is my view, that, the issue of the said half share should be left to the appellant to take whatever action she deems appropriate as this Court cannot, on appeal, make a decision on an issue the court a quo did not consider as it was not raised before it.
The court a quo awarded the matrimonial home to the first respondent because it had granted him custody of the perpetual minor (Julian). It was therefore for the convenience of the perpetual minor that the matrimonial home was awarded to him.
The circumstances have changed.
The minor was taken out of the country and no longer needs the use of that house. The first respondent, and the rest of the family, also left the matrimonial home and now live in South Africa.
The first respondent demonstrated lack of interest in that property, because, in spite of his apparent means, he did not save his half share in it from being sold in execution.
He sold two South African properties, No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd in each of which he held 50 percent of the shares, when their distribution was pending before the court a quo as they were part of the appellant's claim.
He, in defiance of the court a quo's order, took the household property which had been awarded to the appellant to South Africa without her knowledge or consent.
He clearly demonstrated an intention to frustrate the distribution of their assets by the courts.
In view of the circumstances discussed above, the respondent's unlawful and contemptuous interference with court processes and orders does not entitle him to retain the appellant's half share in No.6 Northwood Rise, Mt Pleasant.
The appellant's appeal should succeed, in part, in respect of the remaining half share of that property.
The report by MAWADZE J proves that the first respondent has resorted to self-help.
He has made it impossible for the court to effect an equitable distribution of their property. He sold the two properties in South Africa. He has not done anything to remove encumbrances on immovable properties awarded to the appellant. He has stripped assets of Stir Crazy (Pvt) Ltd by transferring US$2.8 million from it to Incavat Enterprises (Pvt) Ltd.
It must be emphasized, that, where a spouse acts in contempt of court orders distributing their assets, hides some of the assets, lies about his or her ownership of some of the property, and deliberately resorts to self help, the court is entitled to award, to the other spouse, the remaining property proved to be assets of the spouses.
It is my view, that, the properties in which the first respondent has disclosed his shareholding should be awarded to the appellant on the basis of his ownership of those shares.
It is also important to note, that, the first respondent's sale and stripping of assets during the pendency of this appeal, in defiance of the court a quo's order, entitles the appellant to compensation for the losses she has suffered as a result of the respondent's conduct.
In the circumstances of this case, the court must endeavour to do justice between the parties.
The appellant must be awarded what is left of the properties since most of them have been disposed of by the respondent. The appellant must be awarded shares of property holding companies in respect of which the respondent's shareholding is on record.
Stir Crazy (Pvt) Ltd, which owns the Belgravia house, cannot be distributed on account of it having been liquidated and there is no evidence of its current status.
The appellant should be awarded the respondent's 80 percent shares in Theright Investments (Pvt) Ltd.
The respondent must remove all encumbrances on the properties awarded to the appellant.
It has been established, that, the respondent held 50 percent shares in No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd. The court a quo could therefore have used that evidence to distribute the shares between the parties.
The properties were sold to third parties by the respondent.
The appellant is entitled to a portion of the proceeds.
The portion she is entitled to cannot be established without leading evidence on the purchase price and how it relates to the respondent's 50 percent shares in each property.
This Court does not therefore have material to enable it to make an order substituting the court a quo's order of absolution.
It is, in my view, in the interest of the appellant, to uphold the court a quo's order to enable her to, through subsequent litigation, pursue her interests in these properties.
The court a quo's decision, of absolution from the instance, in respect of properties on which there was no evidence should be upheld.
No.94 Matumi Sands Lonehill and No.112 Matumi Sands Lonehill should remain on the list of properties in respect of which absolution was granted for the reasons stated above.
The properties and claims to remain on the list of cases for which absolution from the instance was granted are as follows:
(a) No.94 Matumi Sands Lonehill (Pty) Ltd;
(b) No.112 Matumi Sands Lonehill (Pty) Ltd;
(c) 182 Shingara (Pty) Ltd;
(d) Stir Crazy (Pvt) Ltd;
(e) Incavat Enterprises (Pvt) Ltd;
(f) Telehic Investments (Pvt) Ltd;
(g) Natsbury Trading (Pvt) Ltd; and
(h) Plaintiff's claim of £10,400.
