Court name
Supreme Court of Zimbabwe
Case number
SC 134 of 2002
Civil Appeal 139 of 2000

Dhlamini v Dhlamini (139/00) (SC 134 of 2002, Civil Appeal 139 of 2000) [2003] ZWSC 71 (14 May 2003);

Law report citations
Media neutral citation
[2003] ZWSC 71




DISTRIBUTABLE
(116)














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:






  1. the
    Emangeni Farm and its implements;


  2. the
    cattle;


  3. the
    matrimonial home at Barbourfields in Bulawayo;


  4. the
    bedroom suite at the matrimonial home


  5. the
    refrigerator;


  6. the
    deep freezer at the matrimonial home;


  7. the
    dining room suite at the matrimonial home;


  8. the
    sum of $939 000 in the respondent’s building society and bank
    accounts;


  9. 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:






  1. 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;







  1. 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:






  1. 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;







  1. 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;







  1. …







  1. 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. …







  1. …







  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. …







  1. …






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.






  1. 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.






  1. THE
    CATTLE



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.






  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.






  1. 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:



  1. The
    appeal is dismissed.


  2. 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