Judgment No S.C. 134\02
Civil Appeal No 139\00
SUKOLUHLE DHLAMINI v JAHALAMAJAHA COSTIN DHLAMINI
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, CHEDA JA & CHIWESHE AJA
BULAWAYO NOVEMBER 25 & MAY 15, 2003
J.C. Andersen S.C., for the appellant
M.J. Mellin, for the respondent
CHEDA JA: The parties married each other in Bulawayo on 22 December 1979. They have four children one of whom is now a major. At the time of the marriage the appellant was eighteen years old while the respondent was forty-two years old. The appellant had an Ordinary level certificate while the respondent was a medical doctor.
Eighteen years later the marriage broke down and the respondent sued for divorce. The parties agreed on a number of issues concerning custody of the minor children, motor vehicles, businesses, other property and maintenance.
They also agreed on the divorce and incorporated what they agreed in the Consent Paper. The remaining issues were referred to trial.
At the trial both parties led evidence each to support his or her claim. Judgment was delivered on 27 April 2000 and certain orders were made regarding the disputed issues. The details of the disputed issues appear from the judgment of MALABA J (as he then was) that is, judgment No HB-27-2000. The appellant now appeals against that judgment, and in particular, against awards made on the following issues:
the Emangeni Farm and its implements;
the matrimonial home at Barbourfields in Bulawayo;
the bedroom suite at the matrimonial home
the deep freezer at the matrimonial home;
the dining room suite at the matrimonial home;
the sum of $939 000 in the respondent’s building society and bank accounts;
costs of suit.
I will deal with each of the claims separately for convenience, but before doing so I wish to deal with some of the guiding principles of law and decided authorities.
Section 7 of the Matrimonial Causes Act [Chapter 5:13] deals with the division of assets and maintenance orders.
Subsection (1) reads as follows:-
“7(1)Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court many make an order with regard to:
the division of, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other;
the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.
The above provision assists the court in making a balanced division of assets.
Where one party has more assets than the other this transfer of assets is used to arrive at what the judge, in his discretion, seeks to achieve in making the distribution order. Property that should be exempted from the above is that which is given in subsection (3), which was acquired by inheritance, or custom, or is of particular sentimental value to the spouse concerned.
The above principles were referred to and illustrated further by the Supreme Court in Takapfuma v Takapfuma 1994 (2) ZLR 103 (S).
The trial court was alive to these provisions and referred to both the section in the Act and Takapfuma’s case in its judgment.
Section 7 gives the court a very wide discretion that it can:-
“… endeavour as far as is reasonable and practicable and, having regard to their conduct is just to do so, to place the spouses and children in a position they would have been in had a normal marriage relationship continued between the spouses.”
The trial court referred to this discretion in Ncube v Ncube 1993 (1) ZLR 39 (S) and to some English authorities, that is Watchel v Watchel (1973) 1 All ER 829 (CA); Livesey v Jenkins (1985) 1 All ER 106.
In arriving at its final decision on what is fair and equitable the trial court has a lot of discretion.
Section 7(2) reads as follows:-
“An order in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the generality of this subsection:
order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;
confer on any trustee of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient;
In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following –
the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”
In the English case of Calderbank v Calderbank (1975) 3 All ER 333 at 340, dealing with a section similar to our section 7, the court had this to say:-
“… it should be made abundantly plain that husbands and wives come to the judgment seat in matters of money and property on a basis of complete equality. That complete equality may, and often will, have to give way to the particular circumstances of their married life.
It does not follow that, because they come to the judgment seat on the basis of complete equality, justice requires an equal division of assets. The proportion of the division is dependant on circumstances. The assets have to be divided or financial provisions made according to the guidelines set out in s 25. Every case will be different and no case may be decided except on its own particular facts.”
Some different guidelines have been set by English, South African and Zimbabwean courts but with different approaches. See Watchel v Watchel (1973) 1 All ER 829; Beaumont v Beaumont 1987 (1) SA 967; Takapfuma v Takapfuma 1994 (2) ZLR 103.
I now turn to deal with the claims on which the appeal is based and the trial court’s decision on each.
THE EMBANGENI FARM AND IMPLEMENTS
The respondent purchased the farm in 1986. He bought it as an insurance for the children’s education. He paid for it himself through a loan from Barclays Bank without any assistance from anyone. He purchased tractors from Mr Botha and Mr Kaiz. The appellant played no direct role and no direct contribution in the acquisition of the implements. The respondent developed the farm without any financial or physical support from his wife. He told the court how she showed no interest and actually made comments about him working like a donkey and smelling cow dung when he had been to the farm. He said she never set foot at the farm except on a very few occasions. He said this was only on two occasions over a period of thirteen years. She would refuse to go and cultivate on the farm with the respondent’s relatives.
The appellant claims a 50% share in the farm but contradicts herself when she says she wants it transferred to the children. This, the respondent is also capable of doing. There is no basis for treating her as the only trusted person who can do that. If given a share of the farm there is no guarantee that she will use it, especially as she showed no interest in working on the farm. In the event that she decides to sell her half share the farm could become less viable to the disadvantage of both the respondent and the children. The same applies to the implements.
The court used its discretion and awarded her a share of the value of the farm. The court decided that it was better to keep the farm as one unit and pay the appellant a 12% share. While this award may appear to be on the low side, there is no justification for interferring with the court’s discretion, given the fact that it is this farm that is to provide income for the education of the children.
Cattle are on the farm. She showed no interest in them. However, the court took into account that had the marriage not broken down she would have benefited from them or their income. The court awarded her 54 cattle. There is no basis for interferring with this award. She made no contribution to the acquisition of the cattle and she showed no interest at all in them. This was the finding of the trial court. It based its approach on the authority of Trippos v Trippos (1978) 2 All ER 1.
THE MATRIMONIAL HOME AT BARBOURFIELDS IN BULAWAYO
The appellant’s counsel submitted that one of the solutions was to sell the two stands and share the proceeds. She got that. Her appeal against that award is certainly not justified. The two stands were consolidated into one and it would not be proper to start treating them as separate with each party owning half of the property.
THE BEDROOM SUITE AT THE MATRIMONIAL HOME
The court made a finding that the appellant had not made any direct financial contribution to its acquisition. It is a fitted bed. Removing it from the matrimonial home would mean dismantling it. The appellant does not need this for her own use as she has another bed. On the other hand, the respondent lives in the matrimonial house and uses the bedroom suite. There is no reason why he should be deprived of its use simply to give it to the appellant who has no real need for it. The trial court’s decision cannot be faulted.
(e) THE REFRIGERATOR
The appellant conceded that she has a refrigerator which her brother could repair in order to make it work efficiently. The court found that her claim does not arise out of need. She did not contribute to its acquisition. Her claim is not justified.
(f) THE DEEP FREEZER
No application was made at the hearing to amend the appellant’s claim to include a deep freezer. There is therefore no need to deal with this issue on appeal.
(g) THE DINING ROOM SUITE AT THE MATRIMONIAL HOME
After separation the parties bought identical dining room suites. The one bought by the appellant was at the matrimonial home while the one the respondent bought was at the flat at Gayland Court. On moving to her new house at Old Gwanda Road the appellant left her dining room suite at Barbourfields. Once she moved out the respondent moved in, that is, back into the Barbourfields residence. The respondent felt that since the appellant had taken most of the property she should remove all her moveables to her new home.
On going to the Barbourfields house she saw the respondent loading her dining room suite into a motor vehicle. Both parties set off for her Hillside home. The appellant was in front with the respondent following.
When they came across a road-block the appellant told the police that the respondent was moving property from the matrimonial home and she did not know where he was taking it to. The police stopped the respondent and he eventually ended up leaving the dining room suite at the Police Station. She refused to collect it from there on the advice of her legal practitioner. She now claims that while it was there it got damaged, soiled and dusty. She now wants the respondent’s dining room suite instead.
It is clear that she is fully responsible for what happened. She knew that the respondent was delivering the dining room suite to her house and there was no basis for her to make a false report to the police about its removal from the matrimonial home. If she had accepted it on delivery no damage would have resulted. On the other hand, if she needed to prepare room for it as she alleged, then she should have discussed this with the respondent and asked him to postpone delivery. Instead she chose to lie to the police about it, resulting in the police keeping it at their station where it got damaged. What resulted was really her fault. She cannot now use that as an excuse to get the respondent’s dining room suite instead of hers.
(h) THE RESPONDENT’S SAVINGS OF $939 000,00
The respondent has several bank accounts, two of which are current accounts. One of these is personal while the other is for business. It seems the balance in the Barclays Bank Savings account is not stable as transfers are made from it whenever it becomes necessary to top up on the current account.
The court found that most of the money in the Post Office Savings Bank Account and Barclays Bank Savings Account was saved after the parties separated. Only $191 000,00 in CABS and $20 000,00 in POSB pre-dates the parties’ separation. The money came from the respondent’s surgery and the appellant made no contribution to it.
The court also pointed out that it would not be proper to give the appellant half of the balance in the respondent’s savings while she keeps all the cash in her accounts and that this would result in her getting more than her husband. According to the trial court’s view this would amount to punishing the husband for being thrifty. I agree.
(i) COSTS OF SUIT
The court ordered that each party pays it own costs. In my view this order was justified since each party made only partial success. There was really no reason why the respondent should pay the appellant’s costs.
To sum up, the principle of sharing does not mean that one party be enriched at the expense of the other. It must be sharing in terms considered fair and equitable. This means the trial court has a wide discretion in determining what is fair and equitable in the circumstances. It is the trial court that is best suited to make that assessment.
In Ncube v Ncube 1993 (1) ZLR 39 (S) the court pointed out that consideration of the relevant factors, which are not easily quantifiable in terms of money is “invariably a theoretical exercise for which the courts are endubitably imbued with a wide discretion.” The trial court used this wide discretion in arriving at what it awarded the appellant and what it refused.
The appeal court cannot interfere with the exercise of that discretion unless it is shown that the discretion was not exercised properly. It is the duty of the appellant to show that there was a misdirection on the part of the trial court. The appellant has not succeeded in doing so.
The appellant also argued that the appeal court should take into account the effects of inflation. If inflation affects the appellant it would equally affect the respondent. It cannot be taken into account in favour of one party only. If the value of the award to the appellant is affected by inflation then the same applies to the respondent’s balance.
For these reasons the appeal cannot succeed.
I therefore make the following order:
The appeal is dismissed.
The appellant is to pay the respondent’s costs of appeal.
CHIDYAUSIKU CJ: I agree
CHIWESHE AJA: I agree
James Moyo-Majwabu and Nyoni, appellant's legal practitioners
Ben Baron & Partners, respondent's legal practitioners