Court name
Supreme Court of Zimbabwe
Case number
SC 11 of 2003
Civil Appeal 149 of 2001

Usayi v Usayi (49/01) (SC 11 of 2003, Civil Appeal 149 of 2001) [2003] ZWSC 11 (23 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 11




DISTRIBUTABLE
(16)















Judgment No S.C. 11\03


Civil
Appeal No 149\01


















ADAM GOBVU USAYI v
PATRICIA USAYI











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


HARARE
MAY 8 & JUNE 24, 2003










  1. Gijima, for the appellant






M.V.
Chizodze
, for the respondent








ZIYAMBI
JA: This appeal is against an order of the High Court granting to
the respondent one half share of the sale price of the
matrimonial
home. The appellant and the respondent were married in 1961 after
having lived together as husband and wife from 1952.
In 1995, they
stopped living together due to certain differences which had arisen
between them.





The
parties lived in the low density suburb of Marlborough. Divorce
proceedings were commenced in 1996 when the respondent issued
summons. Shortly thereafter, the appellant sold and transferred the
matrimonial home to a third party notwithstanding a prior order
by
the High Court interdicting him from disposing of the matrimonial
property pending the determination of the divorce proceedings.
The
transferees of the property sought to evict the respondent who
obtained another order from the High Court preventing her eviction
pending the determination of the divorce proceedings.






The main contention advanced by
the appellant before us was that the Court a quo misdirected
itself by awarding the respondent a fifty per cent share in the
matrimonial home when she made no contribution to the
acquisition
thereof. It was submitted that the effect of such an award was “to
place the respondent in the position of a joint
owner of the property
in question, and not merely a person benefiting by virtue of her
matrimonial relationship with the owner of
the property”. It was
submitted further that the appellant had acted reasonably in offering
the respondent a fifteen percent share
in the property or, in the
alternative, a full house which he had purchased in Highfield. The
appellant was quick to add however,
that by the time the matter was
heard by the High Court, the Highfield property had been disposed of.






Section
7 (1) of the Matrimonial Causes Act [Chapter 5:13] (the Act) allows
the Court in granting a decree of divorce, judicial separation
or
nullity of marriage to make an order dividing, apportioning or
distributing the assets of the spouses. Section 7(4) of the Act
provides as follows:-






“7.(4)

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 –







  1. the
    income-earning capacity, assets and other financial resources which
    each spouse and child has or is likely to have in the foreseeable
    future;








  1. the
    financial needs, obligations and responsibilities which each spouse
    and child has or is likely to have in the foreseeable future;







  1. the
    standard of living of the family, including the manner in which any
    child was being educated or trained or expected to be educated
    or
    trained;







  1. the
    age and physical and mental condition of each spouse and child;







  1. 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;







  1. the
    value to either of the spouses or to any child of any benefit,
    including a pension or gratuity, which each spouse or child will
    lose as a result of the dissolution of the marriage;







  1. the
    duration of the marriage;







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 continue between
the spouses.”








It
will be seen that the court must endeavour, in making such an order,
to place the parties in so far as is possible in the position
they
would have been had the marriage continued to subsist.








The
respondent is over 60 years of age. The marriage was of considerable
duration. There is no allegation or suggestion that she did
not
perform to the best of her ability, her duties as wife to the
appellant and mother to the parties four children, two of whom
are
now deceased. She continues to be responsible for their handicapped
son of whom the appellant makes no mention. The matrimonial
home was
situated in Marlborough, a low density suburb and the respondent has
not the means to obtain similar accommodation for herself
and her
son.





The
appellant, on the other hand, has a well developed communal home at
Chishawasha and has the option of utilising the land for agricultural
purposes in order to generate income therefrom. In addition, he has
business interests from which he earns income the full particulars
of
which he chose to withhold from the Court. It seems clear from the
evidence that the appellant did not disclose his financial
affairs to
the respondent. She had no idea how much income he earned nor was
she aware that during the subsistence of the marriage,
he had
purchased a house in Highfield. She learnt of this house through her
legal practitioners after summons for divorce had been
issued. Since
leaving the matrimonial home the appellant has been resident in
Sunningdale. He advised the Court that this
is
rented accommodation but this evidence is coloured by his failure to
be honest with the Court about his income.








What
the evidence as a whole shows is that the appellant is in a far
better position than he would have been had the marriage subsisted.

He has the proceeds of the matrimonial home as well as that of the
Highfield house. He has his well developed home in Chishawasha.

He has his business the success of which he has played down to the
Court.





The
respondent, on the other hand, is in a worse position. Having been
financially dependent on the appellant, she has no income
and no
prospects of being able to earn any for the maintenance of herself
and their handicapped son. She has no home and no prospects
of
being able to acquire one. The offer of 15% of the sale price of
the house would go nowhere near enabling her to obtain a house
to
live in. The learned judge considered this and awarded her a 50%
share of the sale price. In my view, the award made by the
Court
a
quo
cannot, in the
circumstances of this case, be faulted.








The
conduct of the appellant in selling the matrimonial home despite an
order of the High Court restraining him from doing so was
correctly
found by the Court
a
quo
to be deserving of
censure. We are advised by counsel for the respondent that an
application is pending before the High Court for
the setting aside of
that sale. For this reason the respondent withdrew the cross appeal
which sought that the property in question
be resold and that the
respondent be awarded 50% of the new sale price.









Mr Gigima, who appeared
for the appellant, was persistent in his submission that the
respondent, having made no financial contribution to the
acquisition
of the house, was not entitled to an award of 50% of the sale price.
Having regard to the provisions of s7(4) of the
Act, this submission
is unsound. The Act speaks of direct and indirect contributions.
How can one quantify in monetary terms the
contribution of a wife and
mother who for 39 years faithfully performed her duties as wife,
mother, counsellor, domestic worker,
house keeper, day and night
nurse for her husband and children? How can one place a monetary
value on the love, thoughtfulness
and attention to detail that she
puts into all the routine and sometimes boring duties attendant on
keeping a household running smoothly
and a husband and children
happy? How can one measure in monetary terms the creation of a home
and therein an atmosphere from which
both husband and children can
function to the best of their ability? In the light of these many
and various duties how can one
say as is often remarked: “throughout
the marriage she was a housewife. She never worked?” In my
judgment, it is precisely
because no monetary value can be placed on
the performance of these duties that the Act speaks of 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”. A fair approach is that
set out by Professor Ncube in his book Family Law in Zimbabwe.
At p 178 he said:-






“Our
courts, when formulating a legal approach to the re-allocation of
property on divorce, should not attempt to attach a monetary
value to
the intangible and unquantifiable domestic contributions of a
housewife. As Gray aptly puts it:





‘A
just and realistic evaluation of her efforts depends instead upon the
avoidance of the absolute terms of cash value in preference
for the
relative approach of differential equality between financial and
non-financial contributions to the acquisition of matrimonial
assets.’








Thus
the evaluation process should not seek to determine how much a
housekeeper is worth in comparison with, for example, a university
lecturer, nor should the process seek to determine the value of a
wife’s cooking, washing and rearing of children as compared to,
say, a government minister’s work. The proper approach would be
to presume that in the majority of marriages the spouses assume
equivalent, though different, duties which are equally beneficial to
the welfare of the family.”








The
learned judge adopted this approach. At p 110 of the record she
said:-







“This,
in my view, is a proper case in which to adopt the approach set out
by Professor Ncube in his book whereby it should be presumed
that the
plaintiff assumed equivalent, though different duties, which were
equally beneficial to the welfare of the family. It
is she who for
many years was left at the communal home as sole custodian of the
children, in charge of the family. In that role
she enabled her
husband, the defendant, to engage in the academic pursuits abroad
which placed him a in position to improve the family’s
standard of
living. It is her contribution on the domestic front which freed
her husband to work outside the home. But for her
efforts the home
and family may not have remained intact. Such a contribution cannot
be undervalued. She is over 60 years of
age and has no income of
her own. By virtue of her age and lack of training she has no
prospects of obtaining employment.”











In
my view no basis has been shown for altering the judgment of the High
Court. The appeal is therefore dismissed with costs.

























CHIDYAUSIKU
CJ: I agree























CHEDA
JA: I agree
























IEGM Musimbe and Partners,
appellant's legal practitioners







M V Chizodza-Chineunye,
respondent's legal practitioners