Court name
Supreme Court of Zimbabwe
Case number
SC 69 of 2003
Civil Appeal 36 of 2002

Kabaya v Kabaya (36/02) (SC 69 of 2003, Civil Appeal 36 of 2002) [2004] ZWSC 69 (16 June 2004);

Law report citations
Media neutral citation
[2004] ZWSC 69




DISTRIBUTABLE
(61)














Judgment
No S.C. 69/03


Civil
Appeal No 36/02

















MARK
KABAYA v GETRUDE KABAYA











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA


HARARE
SEPTEMBER 22, 2003 & JUNE 17, 2004








H.
Simpson
,
for the appellant





A.
Moyo
,
for the respondent









CHIDYAUSIKU
CJ: This matter started in the Magistrates Court. In that court
a decree of divorce was granted and custody and
most of the
matrimonial assets were distributed in terms of an order by consent.
There was, however, a dispute over how the matrimonial
home, house
number 3348 – 255
th
Crescent, Kuwadzana 3, should be distributed. The learned trial
magistrate heard evidence on the issue. After hearing the evidence
the learned trial magistrate came to the following conclusion. The
parties were allocated a stand by the City Council after they
had
been on the waiting list as a married couple. The respondent was
not formally employed but stayed with the children at the
family’s
rural home. The appellant was employed at a supermarket. A loan
in the amount of $1 500.00 was obtained from the City
Council. The
respondent tilled the land in the rural area and this contributed to
the subsistence for the family. While it was
difficult to quantify
this contribution of the respondent it certainly was substantial and
relieved the appellant from applying some
of his earnings in
providing for the family and redirecting them towards the
construction of the matrimonial home, now the subject
of the dispute.
The learned trial magistrate concluded that it would be a travesty
of justice to find that the respondent’s contribution
towards the
construction of the marital home was negligible or less than half of
the total effort needed to construct the home.
In coming to the
above conclusion the trial court also relied on the fact that the
respondent at times resided in town and that
during those periods she
sold food at certain construction sites. The income to the family
derived from this source was difficult
to quantify but the court was
of the view that it might have been more than what the appellant
earned. The probabilities support
this conclusion.






It
is common cause that the parties were married for a long time and had
five children. Three of the children were minors at the
time of the
divorce. The acquisition and construction of the house took place
over a period of time. The stand was acquired in
1984. The
construction of the house was completed in 1993. The parties
separated in 1996. It would appear from the record that
the house
is not registered in the name of the appellant as such but rather
that there is an agreement in terms of which the City
of Harare sold
the house to the appellant but ownership of the house will be
transferred upon satisfaction of certain terms of the
agreement of
sale. The learned magistrate’s finding on the facts was not
seriously challenged and is consistent with the evidence
led at the
trial.





On
the basis of these findings the learned magistrate ordered that the
house be shared equally between the parties. Put differently,
the
respondent was awarded 50% of the value of the house. The appellant
was given the right to buy out the respondent.





The
appellant was dissatisfied with the judgment of the learned
magistrate and appealed to the High Court. The High Court upheld
the decision of the learned trial magistrate. In dismissing the
appeal ADAM J reasoned as follows:-






“We
are satisfied on that evidence that the property was acquired as a
family property. There is nothing from the evidence that indicates
to us that the Magistrate erred in any way in making his findings
pertaining to the question of how the property was acquired.
We are
also satisfied that he took into account the relevant factors in
determining how the property should be divided quite clearly
as
submitted by the respondent in his Heads of Argument that although
registration confirms right of ownership, this is not the only
criteria considered in the division of matrimonial property in terms
of the Matrimonial Causes Act. He then refers to the judgment
in
Sikwila
v Sikwila

S-55-99 and says that ‘when marriage is dissolved, the court has a
wide discretion of apportioning the matrimonial assets to the
parties, but that discretion must be exercised judicially.’






It
was submitted that in the present case, taking into account the
factual findings made by the Magistrate together with the direct
and
indirect contributions made by each party towards the acquisition of
the property, the duration of the marriage, the award of
50% to the
Respondent by the Magistrate indicated that he properly and correctly
exercised his discretion and that the appeal should
be dismissed with
costs.





It
was submitted on behalf of the Appellant that since the divorce, the
Appellant has constructed a durawall around that property
and it is
conceded on behalf of the Respondent that if that is the situation,
then the Respondent cannot be and at the expense of
the Appellant we
are satisfied that in the circumstances, the order granted by the
Magistrate indicated that the property had to
be valued as at the
date when he handed that judgment which I understand was in March of
1999.”









The appellant was, once again,
dissatisfied with the High Court judgment and he now appeals to this
Court upon the following grounds
set out in the Notice of Appeal.





The
Notice of Appeal reads, in part, as follows:-







“GROUNDS
OF APPEAL







(a) The court
a
quo

erred in holding that the property in question is not registered in
the Appellant’s name.







(b) The court
a
quo

erred in holding that the trial Magistrate properly exercised his
discretion when he made the award in question.”













Thus the appeal is based on two
grounds.






Dealing with
the first ground of appeal. In holding that the property is not
registered in the name of the appellant the court
a
quo

was merely recognising that ownership of the property was still
vested in the City of Harare although there is an agreement of sale
in terms of which ownership will eventually be transferred to the
appellant. This in fact is the correct legal position. The
appellant concedes this point in paragraph 4 of his Heads of Argument
wherein the following submission is made:-







“4. Whilst it is conceded that
ownership of the property in question vests with the City of Harare
which is yet to transfer same to
the Appellant in terms of clause 15
of the Sale Agreement between the Appellant and the City of Harare,
it is submitted that it is
the Appellant and not the Respondent who
holds the rights, title and interest in the property.”









Given the
above concession I am satisfied that there was no misdirection as
alleged in the first ground of appeal or, at all.
I am satisfied
that neither the court
a
quo

nor the trial court took into account any factor they should not have
considered nor did they fail to take into account any factor
they
were required to. The first ground of appeal therefore falls away.







The second
ground of appeal is that judicial discretion was not exercised
properly. It is now well settled that an appeal court
will not
lightly interfere with the decision of a lower court in the exercise
of its discretion. If there is no misdirection this
Court will not
substitute its own discretion for that of the court
a
quo
.
An appeal court only intervenes in the exercise of a discretion by
a lower court if the impugned decision of the lower court is
grossly
unreasonable. If one applies this approach to the facts of this
case there certainly is no basis for interfering with the
decisions
of both the High Court and the Magistrates Court for a number of
reasons.






Firstly,
the appellant, in paragraph (b) of the prayer to the Notice of
Appeal, concedes that the respondent should be awarded 30%
of the net
value of the house. It reads as follows:-






“WHEREFORE
the Appellant prays that the Order of the court
a
quo

be set aside and in its place the following order be made:







…





(b) The
Respondent is awarded 30% of the net value of the property in
question excluding the value of the durawall which was erected
by the
Appellant after March 1999.”









It is apparent from the above
that the respondent’s entitlement to a share of the house is not in
issue.





It
would appear therefore that the crux of the appellant’s submission
is that it was grossly unreasonable for the trial court
to award the
respondent 50% instead of 30% of the value of the house. The trial
court would have acted reasonably had it awarded
the respondent 30%
of the value. The 20% difference is what constitutes the gross
unreasonableness. In paragraphs 7 and 8 of
the Heads of Argument
the appellant sets out in some detail why the appellant thinks 30% as
opposed to 50% should have been the appropriate
award. The
following submissions are made therein:






“7. There is in this case no
basis for an equal division of the property. This is because:





(a) The
Sale Agreement in terms of which the rights, title and interest in
the property were purchased is between the Appellant and
the City of
Harare.





(b) The
Respondent does not jointly hold the rights, title and interest in
the property in question with the Appellant.





(c) The
Appellant was throughout the duration of the marriage, gainfully
employed whilst the Respondent was not.





(d) The
Appellant made direct financial contributions towards the purchase
and development of the property in question whilst the
Respondent did
not.





(e) The
Respondent only came to stay at the property in question in 1991 by
which time the Appellant had constructed four rooms.





(f) It
is the Appellant who applied for the property in question and paid
for it.





(g) It
is the Appellant who secured a loan to develop the Stand.





8. It
is submitted that whilst the Respondent is entitled to an award in
respect of the property, such award should not be equal to
the
Appellant’s award as the Respondent’s contributions were of an
indirect nature and not in any way equal to the Appellant’s
contributions.”









The above submissions are far
from convincing. The decision of the trial court to award the
respondent 50% of the value of the
house cannot by any stretch of the
imagination be categorised as grossly unreasonable. If anything, it
is eminently fair and appropriate.
This ground of appeal too has no
merit.





In
the result the appeal cannot succeed and is, accordingly, dismissed
with costs.
























CHEDA
JA: I agree

















MALABA
JA: I agree





















Kanokanga &
Partners
,
appellant's legal practitioners






Coghlan
Welsh & Guest
,
respondent's legal practitioners