Court name
Supreme Court of Zimbabwe
Case number
SC 32 of 2003
Civil Appeal 362 of 2002

Munhenga v Munhenga (62/02) (SC 32 of 2003, Civil Appeal 362 of 2002) [2003] ZWSC 32 (05 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 32













DISTRIBUTABLE
(28)


Judgment
No. SC 32/03


Civil
Appeal No. 362/02









CHARLES
MUNHENGA v MARTHA MUNHENGA








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
JULY 24 & NOVEMBER 6, 2003








L
Mazonde
,
for the appellant





N
S B Nyamusamba
,
for the respondent





GWAUNZA JA:
This is an appeal against an order of the High Court by which, in
addition to a decree of divorce being issued, the
respondent was
awarded all the parties’ movable property as well as 35% of the
market value of the parties’ matrimonial home.
The property,
according to the order, was, for the purpose of assessing its value,
to be evaluated by an evaluator agreed upon
by the parties or,
failing such agreement, by an evaluator selected from the Sheriff of
Zimbabwe’s panel of evaluators.





At
the appeal hearing, the appellant abandoned the part of the appeal
relating to the movable property, leaving only one issue for
determination, that is, the apportionment of the parties’ immovable
property.





The
following is common cause. The parties started living together
around 1990 and then contracted a civil marriage in 1991.
In 1980,
before these events happened, the appellant had acquired a
residential stand in Harare and proceeded to build, firstly,
a slab
for a seven-roomed house, and thereafter a four-roomed dwelling. An
additional three rooms were added to this dwelling after
the parties’
marriage. The respondent, who was gainfully employed as a State
registered nurse, contributed not only to the construction
of these
three rooms but also to the plastering, electrification and security
walling of the entire property. She also bought a
security gate
which, however, she took with her when the parties separated in April
2001.






In the court
a quo
the appellant initially claimed the immovable property as his sole
property, but later indicated he would offer the respondent 10%
of
its value. His contention was (a) that the property was acquired
before his marriage to the respondent and did not form part
of the
matrimonial assets; (b) that such property was registered in his name
alone; and (c) that, in any case, whatever direct or
indirect
contribution the respondent had made was directed only towards the
three rooms added to the property. He conceded she
had paid for the
“durawall” and security gate. The respondent, for her part,
counter-claimed for 50% of the value of the property
in question.






The learned
judge
a
quo

was satisfied, given the parties’ earning capacity and the various
contributions made to the matrimonial estate, that each party
had
contributed equally insofar as their respective resources permitted.
The learned judge noted as follows at p 6 of the
judgment:





“Although
the plaintiff attempted to paint himself as a man of substantial
means and the defendant’s contribution to have been minor,
the
evidence before me points at meaningful and substantial contributions
by the defendant, and that without her contribution the
plaintiff may
well not have achieved the status he did. At one stage during the
course of his evidence-in-chief the plaintiff actually
confessed that
neither of them earned more than the other as his pay was dependent
upon the amount of money his co-operative would
have earned in any
given month and that at times he would earn more and at other times
she would earn more.”





In awarding
the disputed 35% share in the matrimonial home to the respondent, the
learned trial judge also took into consideration
the following
factors -





(i) the
construction of the three rooms and development of the whole property
in general, and the respondent’s contribution thereto;













(ii) that the respondent, as the
custodian parent, would need to accommodate herself and the children
elsewhere; and





(iii) that
the appellant, on the other hand, had since the parties’ separation
remained in, and alone enjoyed the full benefit of,
the matrimonial
home.





The
appellant asserts that the respondent’s contribution was only in
respect of the additional three rooms and that, therefore,
to award
her a 35% share of the whole house is “unfair, inequitable and
tantamount to allowing her to reap where she did not sow”.






Mr Mazonde,
for the appellant, correctly submits that s 7 of the Matrimonial
Causes Act [
Chapter
5:13
]
enjoins the court to “endeavour as far as is reasonable to place
the parties
and
the children

(my emphasis) in the same position they would have been had a normal
marriage relationship existed between them”.






This
provision directs the relevant court’s attention to the needs of
not just the divorcing couple but their children as well.






In
casu
,
the respondent was given custody of the three minor children of the
marriage. She and the children moved away from the matrimonial
home
and have since that time lived in rented accommodation. The
appellant was, on the other hand, left in residence and later
rented
the property out, a circumstance that enabled him to earn an income
which it is not disputed he did not share with his estranged
family.





It
is submitted for the respondent that she hoped to apply her share of
the value of the matrimonial home towards the acquisition
of
accommodation that would enable her and the children to continue
living as nearly as possible according to the standard they had
been
accustomed to.






It is difficult to fault the
respondent’s intention in this respect.







The
respondent has shown, as the appellant has conceded, that her
contribution to the development of the matrimonial home was not
insignificant. If this fact, as it must
in
casu
,
is considered together with the children’s entitlement to a life as
close as possible to the one they were accustomed to before
their
parents’ separation, there is little doubt that an award to the
custodian parent, i.e. the respondent, of 10% of the value
of the
matrimonial home would be manifestly inadequate.






Given these
two major considerations, i.e. the respondent’s contribution and
the children’s entitlement to a comparable standard
of life, I do
not find that an award of 35% is, to use the appellant’s words “on
the high side”. To the contrary, I am satisfied
that such an
award adequately meets the justice of this case.





One other
matter merits consideration. The appellant contends that because
the property in question was acquired before his marriage
to the
respondent, it does not form part of the matrimonial estate and
should be excluded from the division. This argument, I find,
ignores two important factors.






Firstly, while
the land, slab and four rooms were acquired and built before the
marriage, the addition of three rooms, the plastering
of the whole
house, the electrification and security walling were all effected
after the marriage and with the not insignificant
contribution of the
respondent. The property that the appellant acquired before his
marriage to the respondent had therefore, by
the time the marriage
came to an end, appreciated considerably, and in a permanent way, in
value. An award that ignores the respondent’s
contribution in
this respect would result in the appellant enjoying an unfair
material advantage over the respondent.







Secondly, the
issue of the property having been acquired before the parties’
marriage is not relevant to the consideration of the
children’s
entitlement to a life as close as possible to the one they were
accustomed to, as required by s 7 of the Matrimonial
Causes Act.
In
casu
,
apart from maintenance, this entitlement translates to an award to
the custodian parent of an appropriate share in the net value
of the
matrimonial home.






Taken
together, I find these considerations serve to fortify the finding
already made, that an award of 35% of the net value of the
property
in question is fair and just under the circumstances of this case.
I am satisfied the learned trial judge properly exercised
her
discretion when she arrived at this percentage.





The
appeal must, therefore, fail. In the premises, it is ordered as
follows –





“The
appeal is dismissed with costs”.











SANDURA  JA:
I agree.











MALABA
JA: I agree.












Musunga &
Associates
,
appellant's legal practitioners


Gula-Ndebele
& Partners
,
respondent's legal practitioners