Court name
Supreme Court of Zimbabwe
Case number
SC 13 of 2004
Civil Appeal 28 of 2001

Murerwa v Murerwa (28/01) (SC 13 of 2004, Civil Appeal 28 of 2001) [2004] ZWSC 13 (04 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 13


DISTRIBUTABLE (9)

















Judgment
No S.C. 13/04


Civil
Appeal No 28/01

















CHENGETAYI
MURERWA v EDMOND MUKUDZEYI MUREREWA











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE
FEBRUARY 23 & MARCH 5, 2004








D.
Pundu
, for the
appellant





Respondent
in person









SANDURA JA: This is an
appeal against a judgment of the High Court in a divorce action.
The High Court granted the appellant
a decree of divorce, but
declined to award her fifty
per
centum
of the net
value of the matrimonial home.







The relevant facts are these.
The appellant (“Chengetayi”
)
and the respondent (“Edmond”) started living together as husband
and wife in 1979, and were later married to each other in terms
of
the African Marriages Act [Chapter 238], now the Customary Marriages
Act [Chapter 5:07], in December 1980.






Although
the marriage was initially a happy one, misunderstandings
subsequently developed and on 30 January 2001, the marriage was
dissolved at Chengetayi’s instance. At the time of divorce the
parties had, therefore, been married for about twenty years.






In distributing the matrimonial
assets, the learned judge in the court
a
quo
awarded to
Chengetayi the following movable assets: a Mercedes Benz motor
vehicle (which was not in a running order), two lounge
suites, a
refrigerator, a bed, a wardrobe, an electric heater and an electric
fan. Edmond was awarded the matrimonial home, i.e.
Stand No. 3293,
Mufakose, also known as No. 5, Mukute Road, Mufakose, Harare (“the
immovable property”).







Aggrieved by the High Court’s
refusal to award her fifty
per
centum
of the value of
the matrimonial home, Chengetayi appealed to this Court.






When
the appeal was first argued on 21 January 2002 Edmond stated, in the
course of his submissions, that he had sold the immovable
property on
26 October 2001 to Mr Christopher Jim (“Jim”) and his wife for
$125 000.00. As he had occupied the property as
a lessee to buy,
what he in fact meant when he said he had sold the property was that
he had ceded his rights in the property to
Jim and his wife, for $125
000.00. The property was owned by the City of Harare.






The statement by Edmond that he
had sold the property on 26 October 2001, i.e. after the notice of
appeal in this matter had been
filed with this Court and served on
Edmond, took Mrs
Mnangwa,
Chengetayi’s then counsel, by surprise. As a result, she applied
for an adjournment of the hearing of the appeal in order for
her to
check the allegation made by Edmond. The application was granted.







When the hearing of the appeal
was resumed on 19 September 2002 Mr
Pundu,
Chengetayi’s present counsel, informed the Court that his
investigations had established that Edmond’s rights in the property
had indeed been ceded to Jim and his wife. He indicated, however,
that in his view the cession was fraudulent and that it was his
intention to have it set aside by the High Court. Accordingly, he
made an application for a further adjournment of the hearing
of the
appeal, which was granted.






Thereafter,
a court application was filed in the High Court on behalf of
Chengetayi against Edmond, Jim and Jim’s wife. In that
application, Chengetayi sought an order setting aside the cession of
Edmond’s rights in the property. That order was granted
on 17
September 2003.





The
legal position is, therefore, that as far as the immovable property
is concerned Edmond is the lessee to buy, and that his rights
in the
property are part of the matrimonial assets which can be apportioned
or distributed in terms of s 7(1)(a) of the Matrimonial
Causes Act
[Chapter 5:13] (“the Act”).






When the hearing of the appeal
was resumed on 23 February 2004 Edmond informed this Court, during
the course of his submissions,
that he had sold the Mercedes Benz
vehicle, which had been awarded to Chengetayi by the court
a
quo
, for $80 000.00.
He gave no satisfactory explanation for that conduct, which was in
clear violation of the order of the court
a
quo
against which he
had not cross-appealed.







Section 7(1)(a) of the Act, in
terms of which the learned judge in the court
a
quo
distributed the
matrimonial assets, reads as follows:-







“Subject to the provisions of
this section, in granting a decree of divorce, judicial separation or
nullity of marriage, or at any
time thereafter, an appropriate court
may make an order with regard to -






(a) the division, apportionment
or distribution of the assets of the spouses including an order that
any asset be transferred from
one spouse to the other;”









It is quite clear that the
section gives the judicial officer a discretion in the matter which
must, however, be exercised judicially
in order to achieve a just and
equitable result.






Thus, in Masimirembwa
N.O. v Chipembere
1996
(2) ZLR 378 (S) at 381 C-D this Court said:-







“Section
7(1)(a) does not pertain to the enforcement of strict legal rights.
It is concerned rather with the exercise of a judicial
power directed
at achieving a result or settlement that is deemed just and equitable
in all the circumstances. See
Kassim
v Kassim
1989 (3) ZLR
234 (H) at 238B;
Ncube
v Ncube
S-6-93 (not
reported) at p 2;
Takafuma
v Takafuma
1994 (2)
ZLR 103 (S) at 106E-F.”










As the decision by the learned
judge in the court
a
quo
to award the
immovable property to Edmond was made in the exercise of his judicial
discretion, it can only be interfered with on
limited grounds.
Those grounds were set out by this Court in
Barros
& Anor v Chimphonda

1999 (1) ZLR 58 (S) at 62F-63A as follows:-







“The
attack upon the determination of the learned judge that there were no
special circumstances for preferring the second purchaser
above the
first - one which clearly involved the exercise of a judicial
discretion - may only be interfered with on limited grounds.
See
Farmers’
Co-operative Society (Reg.) v Berry

1912 AD 343 at 350. These grounds are firmly entrenched. It is
not enough that the appellate court considers that if it had been
in
the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle,
if it allows extraneous or irrelevant matters to guide or affect
it,
if it mistakes the facts, if it does not take into account some
relevant consideration, then its determination should be reviewed
and
the appellate court may exercise its own discretion in substitution,
provided always it has the materials for so doing.”










The question which now arises
is whether there is any basis on which this Court can interfere with
the learned judge’s decision.
There is no doubt in my mind that
there is. I say so for three main reasons.





The
first is that the learned judge quite clearly mistook the facts. I
say so because it is clear from what he said in his judgment
that he
was labouring under the misapprehension that the value of the movable
assets which he awarded to Chengetayi could exceed
the value of the
immovable property. He said the following:-






“Similarly, there is no way of
knowing what the value of the movables which the defendant concedes
plaintiff can take is. It is,
therefore, not known whether the
value of the movables exceeds or is less than the value of the, the
net market value of the house
(sic) after taking into account all
expenses.”









In my view, the possibility
that the value of the movable assets awarded to Chengetayi might
exceed the net value of the immovable
property did not exist.






The second reason is that the
learned judge’s refusal to award fifty
per
centum
of the net
value of the immovable property to Chengetayi appears to have been
due to the fact that there was no evidence on the net
value of the
property. In this regard, the learned judge said the following:-







“There is no evidence as to the
value of the house as well as the amount (out)standing to the City
Council. When the claim is, therefore,
made for a share of 50% it
is not known how that 50% will be computed since there is no evidence
as to the net value of the house
after taking into account what is
owed to the Council.”









In my view, the fact that there
was no evidence on the net value of the immovable property was
irrelevant. The learned judge could
have ordered that the property
was to be valued by an estate agent and that Chengetayi would be
awarded fifty
per
centum
of the net
value thereof.






The
third reason forming the basis for interfering with the High Court’s
decision is that the learned judge did not give due weight
to
Chengetayi’s contribution to the family, and the duration of the
marriage.





In
this regard, s 7(4) of the Act enumerates some of the factors which
the learned judge was enjoined to take into account in making
an
order under s 7(1)(a) of the Act. They include:-






“(e) 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;





(f) …;





(g) the
duration of the marriage;”









In my view, bearing in mind the
duration of the marriage and Chengetayi’s contributions to the
acquisition of the immovable property
and to the family in general,
she ought to have been awarded fifty
per
centum
of the net
value of the immovable property.






At
the time of the dissolution of the marriage, the parties had been
married for about twenty years. During that period, although
there
were no children born of the marriage, it was common cause that
Chengetayi looked after the home, cared for Edmond and performed
all
the other domestic duties.





In
addition, she made a direct contribution to the acquisition of the
immovable property. The evidence established that when the
rights
in the immovable property were ceded to Edmond by the previous lessee
to buy in May 1983 and the sum of $1 300 had to be paid
to the
previous lessee, Chengetayi contributed $500.00 and Edmond raised
$800.00.





Apart
from that, Chengetayi contributed to the family in at least two other
ways. In the first place, the evidence established
that she used to
grow crops at the parties’ rural home. Although Edmond disputed
Chengetayi’s evidence that she used to grow
maize on a large scale
which resulted in good harvests, he did not deny the allegation that
she grew crops for the family’s benefit.





The
other way in which Chengetayi contributed to the family was by
participation in the family’s income generating project which
involved buying chickens in the commercial farming areas and
reselling them at a profit. Although it appears that the capital
for
that project was raised by Edmond, Chengetayi must have played a
significant role in the project.






In addition to all the above
contributions made by Chengetayi, sight must not be lost of the fact
that since the parties separated
in 1996 it is only Edmond who has
benefited from the income generated by the immovable property in the
form of rents, and that Edmond
sold the Mercedes Benz motor vehicle
which had been awarded to Chengetayi by the court
a
quo
. He obviously
used the proceeds from the sale of the motor vehicle for his own
benefit.






In
addition, it is pertinent to note that apart from the motor vehicle
which has been sold, all the movable assets awarded to Chengetayi
by
the learned judge are still in Edmond’s possession. These assets
should have been surrendered to Chengetayi in January or
February
2001 but were not. Instead, Edmond has used the assets for the past
three years when he had no right to do so.





In
my view, the cumulative effect of all the above factors justifies the
conclusion that Chengetayi is entitled to one half of the
net value
of the immovable property, in addition to the movable assets awarded
to her by the learned judge. It is, therefore, necessary
to amend
the order granted by the learned judge in order to reflect that
position.





However,
as the market value of the immovable property has not been
ascertained, I shall make provision in my order for the valuation
of
the property by an estate agent. In addition, I shall make
provision for Edmond to buy Chengetayi out if he is so inclined.





In
the circumstances, the following order is made:






1. The appeal is allowed with
costs.



2. Paragraph 2 of the order of
the court
a quo
is amended by the addition of the following:


“In
addition, the plaintiff is awarded fifty
per
centum
of the net
value of Stand No. 3293, Mufakose, Harare, otherwise known as No 5,
Mukute Road, Mufakose, Harare. In this regard, the
following shall
apply:







(a) The Registrar of this Court
shall appoint a registered estate agent who shall value the property,
ascertain the net value thereof
and submit a report thereon to the
Registrar and to the parties.


(b) The
defendant shall have the right to buy the plaintiff out, if he is so
inclined, within the period of ninety days from the date
of the
submission of the valuation report, failing which the property shall
be sold by public auction and the net proceeds thereof
shall be
shared equally by the parties.


(c) The
costs of the valuation shall be paid by the defendant.”











ZIYAMBI
JA: I agree








GWAUNZA
JA: I agree









Madzivanzira & Partners,
appellant's legal practitioners