RUTH MUSONZA (nee MTANAUKWA)
HIGH COURT OF ZIMBABWE
HARARE, 11, 12, 13 and 15 May 2009 and 25 February 2010
FAMILY LAW COURT
A A Debwe, for the plaintiff
C Daitai, for the defendant
GUVAVA J: The parties married on 13 December 1992 in terms of the Marriage Act [Cap 5:11]. Two children were born of the marriage, Diana Musonza (born 24 March 1993) and Tafadzwa Musonza (born 24 January 2000). The parties resided at number 3 Dunmore Avenue Queensdale. The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006 however things came to a head and plaintiff decided that she had had enough. The plaintiff moved out of the matrimonial home and left the two minor children in the care of the defendant. In February 2007 following an incident between the defendant and his daughter Diana the plaintiff obtained custody of both children.
In June 2007 the plaintiff instituted summons seeking a decree of divorce, custody and maintenance of the minor children and division of the parties' matrimonial estate. The defendant, whilst conceding that the marriage had broken down, opposed the claim for custody, maintenance and the proposed division of the estate. At a pre-trial conference held before a judge in chambers the following issues were referred to trial:
- Who should be awarded custody of the minor children?
- If the plaintiff, how much maintenance should be paid by the defendant for each child?
- What constitutes a fair and equitable distribution of the matrimonial estate?
At the commencement of the trial it appeared to me from the pleadings that there was a further issue between the parties in that they were not in agreement as to the constitution of the estate. With the consent of both parties a fourth issue was introduced being what constitutes the matrimonial estate. Mr Debwe also sought an amendment which was granted by consent of the defendant to remove the claim for maintenance for the plaintiff and change the claim for the minor children to US$280-00 per month per child.
The plaintiff testified as follow:
She resides at 5649 New Canaan, Highfield Harare and is self employed as a cross- border trader. She started living together with the defendant in November 1991 and registered their marriage on 13 December 2002. The marriage was fraught with problems as the defendant started physically abusing her when she was only eight months pregnant with their first child. Her parents took her to the police but she later withdrew the charges because she loved the defendant. He used to assault her about twice a week whenever he was drunk. In 2002 the defendant brought home another woman whom he introduced as his second wife. The plaintiff moved out of the matrimonial home in 2006 and the woman in question moved into the matrimonial home. She is of the opinion that their marriage has irretrievably broken down.
There are two children born out of the union and the plaintiff claims custody of both children. The eldest child is a girl who is 16 years old. It was the plaintiff’s evidence that she requires her mother’s love and support during this period of puberty. Tafadzwa is aged nine and needs his mother’s love and attention. When she left the matrimonial home she left the children with the defendant. The defendant has shown that he cannot look after the children as she was given the children at the police station after the defendant had been convicted of assaulting Diana. She stated that when she took the children she had to stay with her mother as she did not have suitable accommodation. At that time Tafadzwa's grades went down as he changed schools on no less than three occasions because the defendant would steal him from school. She testified that the defendant was not a fit and proper parent to be granted custody of the children. In March 2008 she received a phone call from a neighbor advising her that the defendant was ill treating the children and had badly assaulted Diana. She made a report to the police and the defendant paid an admission of guilt fine.
She stated that she required maintenance for the children in the form of school fees and transport costs. She stated that she could meet the children's other expenses in terms of groceries, uniforms and clothes. She produced a schedule which sets out the children's requirements for the month. She stated that an amount of SAR2 500-00 per month would meet the needs of the children. She stated that she was abandoning the claim for maintenance for herself.
In respect to the immovable property she testified that in 1995 they were renting premises in Houghton Park when she saw an advertisement in the daily press for the sale of a house. She went with the defendant to view the property which was at 3 Dunmore Avenue in Queensdale. The estate agents who were handling the property were not very forthcoming and she advised the defendant to go and see the owner of the property who was a Mr Finch who was a manager at Dynamos Football Club. Upon agreement they paid a deposit of $80 000-00. The purchase price for the property was $215 000-00. Mr Finch allowed them to take up occupation before transfer whilst they renovated it. She stated that although the property was registered in the defendant’s name she had assisted him in acquiring it. She was employed by the defendant’s company and would not receive a salary as all the money was used for renovating the property. She stated that she was also cooking for the builders who were working on the property. She stated that she was entitled to 45% of the value of the property because of her direct and indirect contributions. She denied that Yolanda Madondo had contributed to the acquisition of the property. She stated that Yolanda had never lived with them but was living with her mother.
The plaintiff stated that they subsequently bought another property in Glen View in 2004. The property was purchased as an undeveloped stand and is registered in both their names. The plaintiff stated that she was claiming her 50% share in that property. She produced the Memorandum of Association for Mainland Business Merchants (Pvt) Ltd which showed that they were both directors of the company. The company's main business was commodity broking. They were dealing in business machines. The property was purchased using proceeds from this business.
In relation to the movable property the plaintiff stated that she was entitled to the property claimed in her declaration. She denied that she had included property which had been left by the defendant's first wife. She also denied that some of the property had been bought by Yolanda. The plaintiff and the defendant owned four motor vehicles during the subsistence of their marriage. The plaintiff claimed the Mercedes Benz and the Honda Prelude. She claimed that the two Cressidas should be awarded to the defendant. She stated that all the motor vehicles are registered in the defendant's name. She stated that the defendant purchased the Mercedes Benz for her as she was a pastor at their church. She also stated that they had gone to Messina in South Africa with the children to collect the Hyundai Prelude which had also been purchased for her. With regards to the companies, the plaintiff stated that she did not know whether or not they were still operating but she was claiming her 50% share in Mainland Business Merchants where she was a director and shareholder.
The defendant also gave evidence and told the court as follows:
He is domiciled in Zimbabwe. Although their marriage still exists it has broken down to such an extent that it cannot be resuscitated. When the plaintiff left him he continued to look after the children with the assistance of his young brother and son from a previous relationship. Diana was attending school at Roosevelt High School whilst Tafadzwa was at David Livingstone Primary School. He denied that he had ever ill treated the children. He however admitted that he had paid an admission of guilt fine at Police Braeside after he had assaulted Diana with a belt. He stated that he had assaulted her because she had lied to him. He produced a custody order from the magistrates’ court awarding him custody of the two minor children. The defendant challenged the plaintiff’s claim for US$300-00 per month for groceries for the two minor children and said it was too excessive. He told the court that in the event that custody of the children is awarded to the plaintiff he would pay US$100-00 for both children. He also stated that Diana's fees were too excessive as fees for Government schools were only US$40-00 per term. He stated that he was happy to pay Tafadzwa's fees at any government primary school. He stated that his company was not doing well and he was evicted from where he was operating from because he could not pay the rent. He stated that he would not be able to pay the money claimed by the plaintiff.
He told the court that he purchased the Queensdale property in 1991 and registered it in 1995. He produced the agreement of sale and the acknowledgment of receipt of the deposit of $80 000-00. He finished paying the purchase price in 1992. He however could not take transfer of the property because it was not in the seller's name. He confirmed that he purchased the property from Mr Finch. He started renovating the property in 1993 by putting up a wall around the property. He would get the money to effect developments from Mediocre (Pvt) Ltd. He denied that the plaintiff was involved in the renovations. He also denied that the plaintiff was employed by that company in any capacity at all. He stated that the Glenview property belongs to the City Council as he has no title over it. He purchased it using funds from Mediocre in 2001. He confirmed that according to the council documents the purchasers of the stand were the plaintiff and himself. He stated that he has developed the stand extensively with no help at all from the plaintiff. The development took place after the plaintiff had left the home. In his view she would be entitled to a 15-20% share.
The defendant confirmed that Yolanda was his "wife" and she started living with him in the matrimonial home in 2007. He stated that she also contributed towards the development of both properties and any award that the court will make should take this into account.
Turning to the motor vehicles he stated that the Mercedes Benz was purchased in 2001 by Mediocre as a company asset. He denied that he purchased it for the plaintiff as the plaintiff has never taken a driver’s license. The Hyundai Prelude was acquired in 1997 from Japan. He stated that he purchased it through the internet and then contracted a company to have it delivered at his offices in Harare. He produced all the documents relating to the purchase and shipment of the Hyundai Prelude. He denied that he had gone to Messina with the plaintiff to collect it. He stated that prior to 1997 the plaintiff did not have a passport and could not have traveled to South Africa. The two Cressidas were acquired in 1987 and 1991. The defendant stated that they were acquired as company assets. He produced a business statement dated 1999 which listed the two Cressidas and the Hyundai as company property.
He further testified that part of the movable property claimed by the plaintiff was not owned by him but by other people and some had been stolen. In support of this averment he produced a stolen property list which was reported at the local police station. He also produced a number of lists which put the property in various categories depending on the owner. He produced a cash sale invoice for Tonum Investments and indicated that whilst he was in possession of the property it did not belong to him and he was keeping it for the owner. He also produced a cash sale invoice for Redport (Pvt) Ltd and stated that he took possession of the listed property because the owner owed him some money. He stated that the money has not yet been repaid and he cannot find the owner.
Turning to the company the defendant stated that Mainland Business Merchants is a shelf company which has never operated since it was registered. The directors of the company are the defendant’s children. He and the plaintiff were never directors of the company. He stated that the only company which ever operated was Mediocre Business Merchants (Pvt) Ltd. He also said that the plaintiff did not have any shareholding in that company.
The defendant also called Nicholas Musonza. He confirmed that the parties married in accordance with customary law in December 1992 after the plaintiff had eloped. He was working at Mediocre Business Merchants (Pvt) Ltd at the time. He denied that the plaintiff ever worked at the company. He stated that the matrimonial home was purchased in 1991. He explained that at some stage during the time that the property was purchased Mr Finch would phone the office and on one occasion came looking for the defendant. He identified exhibit 8 as a copy of the letter that he was asked to give to the defendant.
Yolanda Madondo also gave evidence before the court. She testified that she married the defendant under customary law in 1993 during the subsistence of the plaintiff's marriage. She said that they have always had a good relationship and would travel together to their communal home with their children. She stated that she contributed in the construction of the Glen View house as the defendant had told her that she would live there. She stated that prior to moving to Queensdale she had lived in rented accommodation which was paid for by the defendant. She stated that she contributed towards the construction of the chalets at the matrimonial home. She purchased the rocks that built the chalets and the grass for the thatching.
In relation to the Glen View property she stated that she paid for the water to mold the panels for the wall and cooked for the builders. She also claimed some movable property which she said she purchased. She produced a receipt as proof of purchase. She explained that the property was being kept at the matrimonial home as she had nowhere to keep it.
The plaintiff gave her evidence in an honest and forthright manner. Her demeanor was good and although she was subjected to a lengthy and detailed cross examination she did not get angry or lose patience. She stuck to her story and answered questions put to her politely. She was candid with the court and made concessions which were against her interests. For instance she admitted that Tafadzwa's grades at some point were very low and that was because their living conditions were not good. When testifying about the distribution of the property she conceded that defendant deserved a greater share as he had contributed more. I have no difficulty in accepting her evidence over that of the defendant’s wherever there is a material conflict.
It was apparent to the court that the defendant was not being honest with the court. The truth had to be forcibly prised out of him. For instance he insisted that Yolanda was his wife and denied that he was committing adultery when he was quite aware that he was married in terms of a law which only allowed him to have one wife. He denied that he had been convicted of an assault on Diana until the plaintiff produced the admission of guilt fine receipt which he paid at the police station. He was also asked if the plaintiff was a director and shareholder of Mainland Business Merchant and he denied this only to change his story when the counsel for the plaintiff referred him to the relevant exhibits which show that she was indeed a director and shareholder of the company. He further stated that the matrimonial home was purchased in 1991 and yet he could not explain why during that period he moved his family on no less than three occasions going into rented accommodation when he owned the house. At some stage he even rented the property next door to the matrimonial home. It was also pertinent to note that during this period Mr Finch was not the owner of the property as he only became an owner in February 1995 before he transferred it into the defendant's name. The defense witnesses in my view did not take his case any further. Nicholas's evidence was only relevant in so far as he corroborated the defendants evidence that plaintiff was not an employee of Mediocre Business Merchants and Yolanda's evidence merely to prove her claim to some of the movable property.
Taking into account the findings I have made on the credibility of the witnesses I will now deal with each of the issues which were referred to trial in turn.
The issue of the breakdown of the marriage was strictly not an issue before the court. It is not in dispute that the marriage between the plaintiff and the defendant has indeed broken down. They have been living apart for a period in excess of three years. The defendant has moved on with his life and is now living with Yolanda as husband and wife. The parties both told the court that they do not love each other any more and would want the marriage to be dissolved. However, Section 5 of the Matrimonial Causes Act [Cap 5:13] requires that the court must be satisfied that a marriage has indeed irretrievably broken down before it can grant a decree of divorce. It was apparent from the evidence before me that the parties have indeed lost love and affection for each other. In the case of Marimba v Marimba 1999 (1) ZLR 87 (H) the court held that fault and misconduct were not relevant to the existence of grounds for divorce. Once there is evidence which establishes irretrievable breakdown of marriage that is sufficient. It is not necessary for the court to delve into the general issue of marital misconduct. I thus have no hesitation in finding that the marriage between the two has indeed broken down. The plaintiff is thus entitled to the relief that she seeks.
CUSTODY, ACCESS AND MAINTENANCE OF THE MINOR CHILDREN
In this case there are two minor children. Both parents are claiming custody of the children. 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 children. In the case of Zvorwadza vZvorwadza 1996 (1) ZLR 404 (S) 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 each parent’s character and past behavior towards the children. I will take these factors into consideration in determining this case.
Diana at 16 years of age is now a young woman who will be confronted by the challenges of teen hood. In my view at that age she would need the love and care of a mother to assist her to get through this period. In the case of Goba v Muradzikwa 1992 (1) ZLR 212 (S) it was held that there is a presumption that the interest of a female child will be best served by placing her in the custody of her mother. The defendant sought to rebut this presumption by averring that the plaintiff was not a caring mother as she failed to ensure that Diana went to school. I did not believe the defendant’s story when he said Diana ran away from him to evade attending school. I accepted the plaintiff’s evidence that the child ran away because she was afraid that her father would force her to go and live with him. This was something that had happened to Tafadzwa and as a result of changing schools he did not even have a school uniform. It seems to me that the defendant has failed to rebut the presumption in this case.
Tafadzwa is nine years old. In my view he is still young and requires the love and care of a mother. Whilst a father's firmness and control are required to mold him into manhood it seems to me that the defendant can still exercise this role when he has access to the children. In the order that I will make I will try and ensure that the children are able to be with their father as often as is practicable taking into account their school work.
It was apparent from the evidence that the defendant was convicted of an assault on Diana and he paid an admission of guilt fine at the police station in 2007. Whilst he initially denied that this had happened he later conceded the point after the plaintiff obtained proof of the payment. It was also clear that it was on that occasion that the plaintiff took custody of the children whom she had left with the defendant when she left the matrimonial home. She explained that she had left the children because she had nowhere to go and had stayed with a friend. The defendant submitted that the plaintiff should not be granted custody of the children as she could not take care of them. He cited an incident when he drove to the plaintiff's house on a school day and saw Diana at home during school hours. He also produced a medical report showing that Tafadzwa at some stage had suffered from ringworms as he was not properly cared for. His marks were also low and his teacher had called the defendant to register her concern.
It was not in dispute that both children have been living with the plaintiff from February 2007. It is not in dispute that the defendant had a court order granting him custody of the children but the plaintiff had de facto custody after they were handed over to her at the police station following the assault. It was also apparent that their living arrangements have not been very comfortable as the plaintiff does not earn enough to look after the children on her own. This situation can however be rectified by making a suitable award of maintenance if the facts show that it is in the best interest of the children that they be with the plaintiff.
The court had an opportunity to interview the children and ascertain their views with regards to custody. Whilst their views are not binding upon the court they are very persuasive particularly when the children are not very young. In this case Diana is 16 years old. She will be a major in a few years time and her views will be considered seriously by the court. It was apparent in talking to the children that they love both their parents very much and did not wish to choose between them. Given a choice they would have wanted their parents to remain together but they accepted that it was best for their parents to be apart. In my view both children showed particular maturity and were able to explain their circumstances clearly. In making the award that I will make I will take into account their views.
It seems to me that having regard to the children's age, sex, the character of their parents and their past behavior towards the children that their best interest would be served by awarding their custody to the plaintiff. I will also make a suitable award of access to the defendant so that he continues to see his children.
The court’s power to award maintenance is in terms of the Maintenance Act [Cap 5:09]. The claim for the children's maintenance in the sum of $280-00 per month per child by the plaintiff was in my view excessive and not fully supported by evidence. The plaintiff merely claimed a blanket amount of $300-00 for groceries without setting out exactly what she required. It was only after the court had enquired as to what she would buy that she told the court the items. These items did not have a cost to them at all and appeared to be exaggerated For instance she was claiming 12,5 kg of flour per month, 10 bars of washing soap, 12,5 kg of sugar for just the two minor children. I do not believe that they would require these quantities. In the case of Mutenure vMutenure HH 300-90 the court stated as follows:
"…court proceedings are not a game where one inflates one's claim in order to allow for an element of reduction. Claims must be genuine, realistic and substantiated in order that the court can make a proper assessment of the claim…."
See also Lindsay v Lindsay 1992 (1) ZLR 332 (H)
On the other hand the offer by the defendant of $100-00 per month for both children appeared rather low. The defendant is a business man operating a company. Although he stated that business was low he did not confide with the court the extent of the income generated by his business. He could have done so by the mere production of his bank statement. I thus take the view that the business is generating considerably more than the amount he told the court. Even if I take into account that he would also meet the full cost of the children's fees, the children would need money for bus fares and lunches. The plaintiff accepted that both parents have an obligation to look after the children. To that end she stated that she would pay for the children's uniforms and clothing. She also undertook to pay the maid and meet all the utility bills as well as her share of the rent.
Taking into account the means of both parties and the needs of the children it is my view that the defendant should pay maintenance in the sum of US$100-00 per month per child until each child attains the age of eighteen or is self supporting whichever occurs earlier.
DIVISION OF ASSETS
The division of matrimonial assets is governed by s7 of the Matrimonial Causes Act [Cap 5:13]. The plaintiff claimed a 45% share in the Queensdale property and 50% share in the Glen View property. The defendant on the other hand has offered her a 20% share in the Glen View property arguing that the plaintiff made no contribution into the acquisition of both properties and that in any event the Queensdale property was bought before the marriage and was thus not matrimonial property.
The Queensdale property was acquired, according to the defendant, in 1991. He produced as exhibit 8 a document acknowledging receipt of $80 000-00 from Mr Finch as a deposit for the Queensdale property. The document was dated 20 December 1991. This document was disputed by the plaintiff who alleged that it was a forgery and challenged the defendant to produce the original document which he failed to do. The plaintiff produced a copy of the title deeds showing that transfer was effected in 1995. She also showed that this property was only transferred into Mr Finch's name in February 1995. It seems to me that the plaintiff's story is more probable than that of the defendant. Mr Finch could not possibly have sold a house which he did not own in 1991. It also seems highly unlikely that after having purchased the house in 1991 the defendant would continue living the life of a tenant and moving from one house to the next when he owned his own home. I also do not believe that he would even rent a property next door to the house he had purchased instead of exercising his rights of ownership of the house. I thus find that the property was purchased after the parties were married. Even if I am wrong in this finding I take comfort in the fact that this property would still constitute matrimonial property as it is trite that matrimonial property includes all property purchased whether before or during the marriage and includes property acquired after separation unless it is specifically excluded in terms of s 7 (3) of the Matrimonial Causes Act. See Ncube vNcube 1993 (1) ZLR 39 (S). The defendant's evidence did not seek to show that the property falls under any of the exceptions set out in the Act.
The plaintiff and the defendant went to great lengths to show the extent of their contributions in the purchase and development of both the Queensdale and Glen View properties. Whilst it was apparent from the evidence that the plaintiff was not employed as a secretary at Mediocre Business Merchants (Pvt) Ltd it was conceded that even if she had been so employed her contribution would not have been as high as that of the defendant who was also a director and shareholder in the company. The plaintiff is however a co-owner of the Glen View stand.
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 s 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 if the marriage continued. In Shenje vShenje 2001 (2) ZLR 180 (H) GILLESPIE J stated that the court must consider all the factors set out in s 7 (4) of the Matrimonial Causes Act. He stated as follows at p 163 G-164 A of the judgment:
"The factors listed in the subsection deserve a fresh comment. One might form the impression from the decisions of the courts 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 weighted in favour of ensuring that the parties needs are met rather than that their contributions are recouped."
There can be no doubt that all contributions are important in a marriage whether they be material or otherwise. Some contributions are not even tangible as they relate to the moral support given to a husband as he goes about his work and ensuring that he comes home to a comfortable and happy home. Although such contributions cannot be quantified in any monetary terms they are no doubt important in the building of a happy home. In Hatendi vHatendi 2001 (2) ZLR 530 (S) the Supreme Court emphasized the wide discretion accorded to the court in the division of matrimonial assets and stated that the court may take into account factors that are not easily quantified.
Section 7 (4) of the Matrimonial Causes Act obliges the court to look at the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future.
In making an award of the immovable property in this case I will take into account the fact that the parties were married for a period of 16 years. This is by no means a short period. The plaintiff and the minor children will need a suitable house for their accommodation following divorce. They require a house in a good area as that is what the plaintiff and the children are accustomed to.
I have also been asked by the plaintiff's counsel, in his closing submissions, to take into account the fact that there was gross marital misconduct on the part of the defendant which led to the breakdown of the marriage. He submitted that the defendant was in an adulterous relationship for the greater part of the marriage to the plaintiff. The defendant called Yolanda Madondo as his witness and she testified that they had been together since 1993 and have two children. The power of the court to take into account the conduct of the parties in making an award of property is set out in s 7 (4) of the Act which provides as follows:
"the court is enjoined to endeavour as far as is reasonably and practically possible and, having regard to their conduct, is just to do so, to place the spouses….in the position they would have been had a normal marriage relationship continued…."
In deciding when a court should apply this principle it should be mindful that it is not merely allowing the reintroduction of the fault principle which was removed by the Matrimonial Causes Act through the back door. In Marimba v Marimba (supra) GILLESPIE J said at page 92 B
"…The related principle is more difficult to formulate when it is suggested that the conduct of a party is such that it should have a bearing on a property distribution order. Mindful of the move away from the fault system of divorce, judges in this jurisdiction have set their faces against any invitation to delve into the "minutiae of ancient domestic grievances". They have declined to permit counsel to "resurrect the old spectre of guilt and innocence and drag the judge to hear their mutual recriminations and go into their petty squabbles of days on end"
It seems to me therefore that a court should not easily permit the use of marital misconduct when making an award of division of property upon divorce. The difficulty appears to be in defining when it would be just to permit misconduct to influence the award of property. Thus judges in this jurisdiction while emphasizing the reserve and caution that must affect any decision to permit the misconduct of a spouse to affect any apportionment on the grounds of misconduct, have merely been bound to acknowledge the possibility of doing so in a proper case. GILLESPIE J goes on to say the following at page 93 F – 94 C of his judgment :
"It seems to me that just such a principle emerges. The relevant legislation entrusts to the court a wide discretion to achieve a just result in the division of the assets of the spouses and the maintenance of a spouse or a child. That discretion is a judicial discretion to be exercised upon a proper consideration of all relevant factors. The aim is expressly to place the parties in the position they would have been in had a normal marriage relationship persisted. This aim is qualified by considerations of reasonableness, practicality and justice. The overall desideratum of justice, however, is itself expressly related by the clear words of the Act to the conduct of the parties.
The principle may thus be stated: in its overall effort to order a fair division of assets or of maintenance, the court may permit considerations of the conduct of the parties to affect the final order to the extent to which that would be just. What is just in any case is left to the judicial discretion of the court. It may generally be said, however, that it is never just to penalise a person for an unhappy marriage. Only serious cases of predominantly one-sided misbehaviour will be permitted to influence the order that would otherwise have been made based on considerations excluding the question of misconduct."
The question which arises is whether this is a proper case upon which the court may exercise its discretion and permit the evidence of misconduct to influence the division of assets?
While in my view, it is clearly wrong for a man to marry a woman under a law which obliges him to have only one wife and to thereafter proceed to marry another under customary law and proceed to live with both of them in a polygamous setting the plaintiff in this case did nothing about it for almost 14 years. The law allows parties to a marriage to make an election with regards the type of marriage they wish to enter into. Once one has elected to marry under the Marriages Act [Cap 5:11] one cannot thereafter marry another in terms of customary law as the defendant did. However the plaintiff seemed to have condoned the affair as her only complaint during her testimony was that Yolanda had moved into the matrimonial home after she left. She does not allege in her pleadings nor in her evidence that the defendants conduct with Yolanda was the major cause of the breakdown. She merely refers to the defendant having 'committed acts of adultery and is now staying with another woman which plaintiff regards as incompatible with the continuation of a normal marriage relationship"
In my view where a plaintiff wishes to rely on marital misconduct for the purpose of influencing a decision of the assets this must be specifically pleaded in the declaration so that it is apparent that it is an issue at trial. In this case the submission that the court should take into account gross marital misconduct was merely made in the plaintiffs closing submissions and in response to the fact that defendant had called Yolanda as a witness before the court. During the trial only evidence relating generally to the breakdown of the marriage was led by the plaintiff. Most of her evidence related to the parties contributions to the acquisition of the assets of the marriage. It thus seems to me that this is not a proper case in which the court should take into account marital misconduct in the division of assets as insufficient evidence was led to make the finding that this was the conduct that led to the breakdown of the marriage.
Yolanda Madondo in her evidence told the court that she contributed in the development of the Glen View stand and the Queensdale property. I did not believe her and merely saw it as a ploy by the defendant to defeat the plaintiff’s claim in that property as the property is in the name of the plaintiff and the defendant. In my view if she did make any contributions she did so in the clear knowledge that the defendant was married to another woman in terms of a civil marriage and she could have no claim to their joint estate
I now turn to the movable assets. The defendant denied that all the property claimed by the plaintiff was matrimonial property. He essentially divided the movable assets into three categories that is; those owned by the parties, those owned by third parties and those that do not exist. The defendant produced as exhibit 14 items which he stated were acquired by the parties during their marriage. It was interesting to note that the list did not include a bed where the parties slept or any kitchen utensils. The defendant challenged Annexure "A" to the plaintiff's declaration which was a list of the movable assets. He indicated to the court that most of the property does not exist. However, some of the property was listed in exhibit 14 (which were on the defendants list of property acquired during the marriage); in his plea (which was property which should be awarded to the plaintiff) and in exhibit 19 the list of stolen property. I was thus able to make a specific finding that some of the property did exist. Of the property which was challenged by the defendant as none existent the plaintiff was unable to show any proof of the properties existence. I was therefore unable to make any finding in respect to that property. The property which was stolen was not capable of division as it was no longer in existence.
The defendant produced as exhibit 15 a list of property which he stated belonged to Mildred Shata, his sister, Viola Edith Musonza and Yolanda Madondo. The defendant's explanation that he and the plaintiff had used the bed left by his second wife Mildred Shata did not ring true. He separated from Mildred Shata in 1989. They have been separated for eighteen years and she now lives in Canada. It seems to me that if this was truly her property she would have taken it by now. She did not come to court to testify in relation to the property nor did she produce proof of ownership. I thus do not accept the defendant’s evidence that this property belongs to his first wife and his sister. In my view he was clearly using their names to hide matrimonial assets from the court. I thus find that the property listed as belonging to Mildred Shata and Viola Edith Musonza is matrimonial property which is available for distribution between the parties.
Yolanda Madondo in her testimony claimed property which was set out in exhibit 21 which was an invoice setting out property which she purchased at Anisha Nadat on 17 April 1998. She stated that when she purchased the property she did not have anywhere to put it as the place she was renting was small. The property was thus held in storage at Queensdale. The plaintiff did not really challenge her claim to this property in cross examination and as such I will not make an award in respect to this property.
The defendant also produced two cash sale invoices in the name of Redport (Pvt) Ltd setting out property purchased by that company. The property was purchased in 2003 and he is keeping the property. The cash sale invoices appear to be authentic documents and in the absence of other evidence to show that the property does not belong to them I am inclined to find that the property does not belong to the parties. Exhibit 16 shows a pro-forma invoice issued by ABC Auctions to Tonum Investments in July 2003. There is no evidence that the property was indeed bought by this company or by the defendant. In the absence of such proof it is my view that the property belongs to the parties. I will thus also award this property between the parties using the principles already stated.
Exhibit 19 was a list of property which was alleged to have been stolen in April 2007. It lists the Panasonic VCD player, Pioneer 3 CD changer HI FI, Superior Turn table and Panasonic HI FI speakers. The defendant stated that although the property was being claimed by the plaintiff it had been stolen and never recovered. The plaintiff denied that the property was stolen and stated that it was still at their matrimonial home. She however could not explain how the items would be on the stolen property list provided to the police. In my view therefore this property was stolen and is no longer available for distribution.
In making an award for the movable property I will distribute this property as fairly as I can taking into account the principles set out in s 7 of the Matrimonial Causes Act. I will distribute the property set out in the defendant's plea, the property in exhibit 15 under the names of Mildred Shata and Viola Edith Musonza, the property listed in exhibit 14 and exhibit 16. This in my view was property which was in existence from the evidence and is matrimonial property.
I now turn to the motor vehicles. The plaintiff claimed the Mercedes Benz and the Honda Prelude and offered the two Toyota Cressidas to the defendant. It was clear from the evidence that all the motor vehicles were purchased during the duration of the marriage. The defendant in his evidence testified that the motor vehicles were bought by Mediocre Business Merchants. He produced as exhibit 13 a document entitled Business Statement dated 1999 which showed that the two Cressidas and the Honda Prelude were listed as business assets. However, in cross examination, he conceded that the motor vehicles were registered in his name and not the company name. It seems to me that the defendant has sought to hide behind the company at his convenience. If the motor vehicles were indeed company assets they would have been registered in the name of the company. In my view therefore the motor vehicles are matrimonial property and are available for distribution. The plaintiff asked the court to award to her the Mercedes Benz and the Honda Prelude. She stated that the Mercedes Benz was bought for her by the defendant and she would use it to go church. However, when it was put to her that the defendant could not have bought the car for her as she did not have a driver’s license she was evasive in her response. It was apparent to me that these were all family assets which were bought for the enjoyment of the family. Whilst the defendant argued that the plaintiff should not be awarded a motor vehicle at all in his testimony he, however, stated in his submissions that the plaintiff could be awarded a Cressida. It seems to me however that such a distribution would be clearly against the principles set out in s 7 which require that the distribution should be equitable and just and ensure that the parties continue to live as they would have had the marriage continued. In this case if the marriage had continued the plaintiff would have continued to have a motor vehicle at her disposal with or without a license. I thus take the view that she is entitled to at least one motor vehicle. The two Cressidas were bought soon after their marriage and the Honda Prelude and Mercedes Benz a little later. In my view an award of the Honda Prelude to the plaintiff would meet the justice of this case.
The plaintiff also claimed a share in the two companies which were in existence during the duration of the marriage. The plaintiff stated that she did not know whether or not they were still operating. The defendant stated that in relation to Mediocre Business Merchants, he had been evicted from the premises where he had operated from for a long time and the company was doing very little business. He also stated that Mainland Business Merchants was a shelf company which had never operated at all. No evidence was led as to the assets, if any which are owned by the companies. In my view the plaintiff did not lead sufficient evidence for the court to make a finding on the issue. Even in the plaintiff’s submissions no further claim was made on the companies. I will thus not make an order in relation to the companies as the plaintiff being a director and shareholder in one of them will be in a position to proceed in terms of the Companies Act [Cap24:03].
The plaintiff claimed costs against the defendant on a higher scale.
In my view there was no basis for such a claim. The defendant was entitled to call Yolanda Madondo so that she could claim her property. I do not consider that to have been an unnecessary witness. The plaintiff has been largely successful in her claim and the cost must thus follow the cause.
Having taken all the factors in this case into consideration I thus make the following order:
- A decree of divorce is hereby granted.
- That custody of the minor children Diana Musonza (born 24 March 1993) and Tafadzwa Musonza (born 24 January 2000) is hereby awarded to the plaintiff.
- That the defendant shall pay maintenance for the two minor children in the sum of US$100-00 per month per child until each attains the age of 18 or become self supporting whichever occurs sooner.
- The defendant is hereby ordered to pay the children's entire school account including school fees, uniforms and books.
- The defendant is hereby awarded access to the minor children every alternative weekend and half of every school holiday. The arrangements for picking up and dropping off the minor children shall be arranged in consultation with the plaintiff.
- The plaintiff is hereby awarded the movable property set out in annexure A attached to this order.
- The defendant is hereby awarded the movable property set out in annexure B attached to this order.
- The plaintiff is hereby awarded a 45% share of the immovable property being Stand 5654 Salisbury Township, situate in the district of Salisbury measuring 2 057 square metres also known as No. 3 Dunmore Avenue Queensdale, Harare.
- The plaintiff is hereby awarded a 50% share in stand 11571, Glenview Township Harare.
- The defendant is hereby granted the option to buy out the plaintiff her share in each of the properties set out in paragraphs 8 and 9 of this Order.
- The properties shall be valued by a registered estate agent appointed by the Master of the High Court from his list of valuers within thirty days of this Order.
- The defendant shall pay the plaintiff her share of each of the properties set out in paragraphs 8 and 9 of this Order within ninety days of service of the valuation report.
- The cost of the valuation of the properties shall be met by both parties equally.
- In the event that the defendant fails to pay out the plaintiff her share in each of the properties set out in paragraphs 8 and 9 of this Order in accordance with paragraph 10 the properties shall be sold at best advantage and the plaintiff awarded her share of the net proceeds.
- The defendant shall pay the plaintiff’s costs of suit.
Debwe & Partners, plaintiff’s legal practitioners
Magwaliba & Kwirira, defendants legal practitioners
ONE DOUBLE BED
TWO SINGLE BEDS
ONE EXECUTIVE HEADBOARD
ONE SET OF SOFAS
ONE REFRIDGERATOR (ELECTROLUS)
ONE 24" COLOUR TELEVISION (PHILLIPS)
ONE BLACK AND WHITE TELEVISION
TWO SHOE RACKS
TWO SMALL COFFEE TABLES
TWO CORNER STANDS
FOUR PIECE KITCHEN TABLE
TWO VASE STANDS
ONE BIG WATCH
ONE MAROON FOOT STAND
ONE JEWLERY BOX
ONE HOME THEATRE
ONE SMALL FISH TANK
ONE PRESSURE COOKER (ORANGE)
ONE TWO PLATE STOVE WITH WARMER
ONE STRIPPED CARPET RED AND BLACK
ONE TELEVISION STAND
ONE SET KITCHEN CUPBOARDS
ONE SATELITE DISH (MANHATEN)
ONE TELEPHONE TABLE (BLACK)
ONE BATHROOM SCALE
ONE SET FOOT MATS
ONE SET FRILL CURTAINS (GREEN AND WHITE)
ONE HONDA PRELUDE
TWO WOODEN DOORS
THREE STABLE DOORS PAIRS
TWO COTTAGE DOORS WOODEN
THREE PAIRS OF SOFAS
ONE UPRIGHT FRIDGE
ONE COLOR TELEVISION
ONE BLACK AND WHITE TELEVISION
ONE KITCHEN TABLE
TWO CORNER STANDS
ONE RUG CARPET
ONE SUMMIT IRON
TWO ELECTRIC SEWING MACHINES
SET OF SOFAS
BIG SUITCASE WIT BLANKETS AND CURTAINS
ONE SONY 24 " TELEVISION
ONE NU-CHEF PLATE STOVE (BLACK)
ONE SINGLE BED
ONE SET BAR AND STOOLS
ONE SET FOOT MATS
ONE TELEVISION STAND
ONE KNITTED GARDEN TABLE
ONE SHOE RACK
ONE MERCEDES BENZ
TWO TOYOTA CRESSIDA
THREE WOODEN DOORS
THREE STABLE DOORS PAIRS
THREE COTTAGE DOORS WOODEN
BOX ASS H/WARE