Court name
Supreme Court of Zimbabwe
Case number
SC 117 of 2004
Civil Appeal 219 of 2002

Sibanda and Another v Sibanda (19/02) (SC 117 of 2004, Civil Appeal 219 of 2002) [2005] ZWSC 117 (30 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 117





















REPORTABLE
(104)



Judgment No. SC. 117/04


Civil
Appeal No. 219/02









(1)
JOSEPH SIBANDA





(2)
JLF (PRIVATE) LIMITED





v
JOSEPHINE SIBANDA








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE,
OCTOBER 25, 2004 & JANUARY 31, 2005








E T
Matinenga
, for the first appellant





No
appearance for the second appellant





B
Mtetwa
, for the respondent





ZIYAMBI JA: On 19 June 2002 the High Court granted to the
respondent an order of nullity of marriage and certain ancillary
relief which included the following awards:







a) house number 14052 Chatsworth Road, Vainona, Harare;







b) Lot 3 of Subdivision B of Lot 12 Block D of
Avondale and Lot 13 Block D of Avondale, otherwise known
as
5 Howden Close, Avondale, Harare;







c) a BMW motor vehicle; and







d) damages for injuria in the sum of $50 000.







These awards are the subject of the present appeal.






JLF (Private) Limited (“JLF”) did not enter an appearance to
defend in the High Court. Accordingly, it was wrongly cited as
an
appellant in this matter. There is only one appellant.




The
facts as found by the learned trial judge, who accepted the
respondent’s evidence, are that in 1986 the parties commenced
to
live together in a customary union. The respondent was then working
at Air Zimbabwe. They purchased a house in Belvedere
which was
the parties’ matrimonial home. Two children, twins, were born of
this union on 5 October 1990.





One day
the respondent arrived home to find two children there, looking very
miserable. Upon enquiring from the appellant, she
was told that
they were his from a previous marriage and that they had been
abandoned. The two children became part of her household.
One day
one of the children fell sick and required surgery. She felt that
their mother ought to be advised and the appellant
called the mother,
who came over to see the child. Together they went to pay the
medical bills and make bookings at the clinic.
It was during this
time that she learnt from the children’s mother that the latter had
been thrown out of the house in which
she had lived with the
appellant because she failed to return to him money which he had
given to her before he went to prison to
serve a sentence of four
years in 1981. She did not say whether their union had been
registered.





The
matrimonial home became too small, for the two children now formed
part of their household, and it became necessary to move
to more
spacious premises. The Avondale house was purchased from JLF –
they bought the shares in JLF - for this purpose.





The
appellant’s many extra-marital relationships soon began to surface
and these gave rise to problems in the marriage. As a
result, in
September 1993, the respondent moved out of the Avondale house,
taking the four children, the furniture and a Nissan pick-up.
The
appellant pursued her and became so violent that she was driven to
obtain a peace order restraining him from entering the property
where
she now resided.





The
appellant then changed his tactics. He promised to change. They
resumed cohabitation. He suggested that they be married
in terms of
the African Marriages Act [Chapter 238] (now the
Customary Marriages Act [Chapter 5:07]. They did so on
3 March 1994. A marriage certificate was issued which
described the respondent as a spinster and the appellant
as a
bachelor and stated that she was the appellant’s first wife. The
respondent was then invited by the appellant to be involved
in his
business. From that time she worked for him, running his office as
manager. She closed her own electrical business (which
was not
doing too well) in order to be able to run the appellant’s
business.





Then, in
January 1999, the appellant began spending a lot of time in
South Africa and the respondent discovered that he was
having an
affair with an eighteen year old girl and had installed her in the
house in Greystone Park which he furnished for her.
This angered
the respondent because the appellant had never purchased furniture
for her. So the respondent hired a truck and
took all of the
furniture out of the Greystone Park house. A report was made to the
police and she was called to the police station.
The appellant was
also called and explained that this was a domestic squabble between
his two wives.





The
respondent felt embarrassed and degraded by this incident and decided
to file for divorce. Upon seeing papers from her lawyer,
the
appellant moved out of the matrimonial home but later returned and
assaulted her so severely that she had to be taken to the
Emergency
Centre as she was badly hurt and bleeding through the ears.






Thereafter, not satisfied with that, the appellant continued to issue
threats by telephone to assault and kill both the respondent
and the
children. The telephone calls would be made at all hours of the
night.





The
respondent obtained another peace order, as well as an order for the
eviction of the appellant from the matrimonial home, but
despite that
the appellant continued to harass her. She eventually moved to
alternative accommodation, taking with her the Mercedes Benz
motor vehicle, of which the appellant soon dispossessed her.






It was
from the appellant’s opposing papers filed in the proceedings
commenced by her for his eviction from the matrimonial home
and a
peace order pending divorce that the respondent first learnt that the
appellant was legally married to one Esnath at the time
he “married”
her.





The
parties were possessed of nine immovable properties, as well as
twenty-one vehicles inclusive of trucks and trailers. Apart
from
the Vainona property and the Mercedes Benz, all the property,
movable and immovable, including the matrimonial home, was
registered
in the name of JLF and other companies or nominees of the appellant.
The directors of those companies were the appellant’s
parents and
one of his girlfriends – but the sole signatory on the various bank
accounts was the appellant, who controlled all
the companies.






The learned trial judge found the evidence of the respondent to be
credible. With regard to the issue of her knowledge of his marriage
to Esnath, he found that she had no knowledge that the appellant was
a married man at the time he went through the ceremony of marriage
with the respondent and that their marriage was a putative marriage
to which the provisions of s 7(1) of Matrimonial Causes
Act
[Chapter 5:13] (“the Act”) are applicable.





Section 7
of the Act provides as follows:



“(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 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;





(b) 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.







(2) An order made 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 –







(a) 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;





(b) confer
on any trustees of any property which is the subject of the order
such powers as appear to the appropriate court to be
necessary or
expedient.






(3) The power of an appropriate court to make an order in terms of
paragraph (a) of subsection (1) shall not extend to
any
assets which are proved, to the satisfaction of the court, to have
been acquired by a spouse, whether before or during the marriage
–






(a) by way of an inheritance; or





(b) in
terms of any custom and which, in accordance with such custom, are
intended to be held by the spouse personally; or





(c) in any
manner and which have particular sentimental value to the spouse
concerned.






(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 –






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





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





(c) 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;





(d) the
age and physical and mental condition of each spouse and child;





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





(g) 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 continued between
the spouses.







(5) In granting a decree of divorce, judicial separation or nullity
of marriage an appropriate court may, in accordance with a written
agreement between the parties, make an order with regard to the
matters referred to in paragraphs (a) and (b) of subsection (1).”











Compare Makovah v Makovah 1998 (2) ZLR 82 (S) where
MUCHECHETERE  JA at 90 A-D stated:






“In my
view, the above provisions (of s 7(1) of the Act) cover a
marriage, such as the present one, which is declared null
and void.
If it were not the case, it would work an injustice and hardship on a
party, such as the respondent in this case, who
laboured and
contributed towards the marriage and the accumulation of the
matrimonial property under the impression that the marriage
was
valid. It would also unjustly enrich a dishonest party, such as the
appellant in this case, simply because the property in
question is
either registered in his name or is under his control. Such a
position is unconscionable and the legislature by using
the
expression ‘nullity of marriage’ must have envisaged that a
situation such as the present one would be covered. I should
state
that such situations are very common in African society because of
the failure by many to realise that once they contract a
‘church’
marriage their marriage becomes monogamous.







In the circumstances, the trial judge acted properly in applying the
provision of s 7 of the said Act on the issue of the division
of
matrimonial property.”







It was the appellant’s contention that the learned judge in the
court a quo had erred in awarding the immovable
properties to the respondent. In respect of house No. 14052
(“the Vainona property”)
it was alleged that the respondent had
fraudulently obtained the transfer of the property into her name.
The learned judge disbelieved
the appellant on this issue. A
reading of the record justifies his finding that the appellant was
dishonest in the evidence he
gave to the court. The Vainona
property is the premises from which the respondent runs a nursery
school and did so during the subsistence
of the “marriage”.







With regard to the second property (“the Avondale house”), it was
contended, on behalf of the appellant, that it was owned by
JLF, a
company wholly owned by the appellant and did not therefore
constitute matrimonial property which fell to be divided in terms
of
the Act. Accordingly, it was alleged the learned judge misdirected
himself in granting to the respondent a house belonging to
a company
in which she was not a shareholder.







It was common cause that the Avondale house was the matrimonial home
of the parties for the ten years preceding the divorce. The
respondent spent much money redecorating the house, paving the
driveway and setting up the garden. The learned trial judge found
that, although it was registered in the name of JLF, it was clear
that JLF was the appellant’s company and that he controlled it.

The following question by counsel for the appellant to the respondent
in cross-examination clearly confirmed this position:







“Q. Well JLF was virtually Mr Sibanda’s company and he could
do as he wanted with the property …?”.






Indeed
the evidence of the respondent was that the appellant registered all
properties which he acquired in the name of companies
to keep them
from the reach of his many creditors! JLF was, as I have stated
above, cited as a party in these proceedings but did
not enter an
appearance to defend. The conclusion is irresistible that the
appellant controls JLF.






The respondent successfully prayed that the corporate veil be lifted
to enable the court to obtain access to the properties held
by the
companies in order to arrive at an equitable apportionment of the
matrimonial property.







It is trite that a company duly incorporated is a distinct legal
entity endowed with its own legal personality. (See Salomon v
Salomon & Co Ltd
[1897] AC 22). However, the veil of
incorporation may be lifted where necessary in order to prove who
determines or who is responsible
for the activities, decisions and
control of a company.





Thus in
Wallersteiner v Moir [1974] 3 All ER 217 at 238 LORD DENNING
MR had this to say:







“I am prepared to accept that the English concerns – those
governed by English company law or its counterparts in Nassau or
Nigeria
– were distinct legal entities. I am not so sure about
the Liechtenstein concerns – such as the Rothschild Trust, the
Cellpa
Trust or Stawa AG. There was no evidence before us of
Liechtenstein law. I will assume, too, that they were distinct
legal entities,
similar to an English limited company. Even so, I
am quite clear that they were just the puppets of Dr Wallersteiner.
He
controlled their every movement. Each danced to his bidding.
He pulled the strings. No-one else got within reach of them.

Transformed into legal language, they were his agents to do as he
commanded. He was the principal behind them. I am of the opinion
that the court should pull aside the corporate veil and treat these
concerns as being his creatures – for whose doings he should
be,
and is, responsible.”







And in Gering v Gering & Anor 1974 (3) SA 358 (W) at
361 G-H MARGO  J remarked:







“There are three companies, apart from Lauren Lyn (Pty) Ltd, in
which the first defendant has a 100 percent interest in the
shareholding.
It is true that, in the case of these companies,
their records are not stricto sensu in the possession, custody
or control of the first defendant in his personal capacity.
However, on the facts, those companies are
his creatures and his
instruments. He is conducting business through them, or holding
assets through them, and, though they are
separate juristic
personalities, they are in substance merely part of the machinery by
which he alone conducts his business affairs.”







See also Nkala & Nyapadi Company Law in Zimbabwe at p 106;
Cattle Breeders Farm (Pvt) Ltd v Veldman 1974 (1) SA 169
(R, AD); R P Crees (Pvt) (Ltd) v Woodpecker
Industries (Pvt) (Ltd)
1975 (1) RLR 151.







In view of the above, the learned judge was correct in regarding the
Avondale house, though held in the name of JLF, as part of the
matrimonial property which fell to be divided between the parties.






The
learned judge considered a fair share for the respondent of the
immovable property of the marriage to be the Avondale house
and the
Vainona property. At p 14 of the cyclostyled judgment he said:






“Josephine
is, in my opinion, entitled by virtue of s 7(1) of the
Matrimonial Causes Act [Chapter 5:13] to a fair share of
the matrimonial estate, but the question is, what is a fair share?
She cannot have half of it, as she claims,
because there is Joseph’s
true wife, Esnath, who deserves a share and there are his numerous
other offspring who have to be supported.
Even if they are
illegitimate, he still has a duty to support them.





As
regards the immovable property, I consider that a fair share for
Josephine would be the Avondale home and the Vainona property.
As
regards the movable property, I consider that Josephine should be
given the BMW that is registered in her name. The other
vehicles
should not, in my opinion, be taken into consideration.”






The
evidence of the respondent was that the BMW was bought for her and
registered in her name. The court believed her. I can
find no
fault with these awards.





The
final ground of appeal was the award of damages for injuria.
The learned trial judge dealt with this issue as follows:







“The only other matter for consideration is Josephine’s claim
for damages for injuria in the sum of $200 000. In
Snyman v Snyman 1984 (2)(4?) SA 262 (W) at 264 C-F
GOLDSTONE J said:






‘In Hahlo The South African Law of Husband and Wife 4 ed
at 59 the learned author says that:






“… an action for damages on the ground of breach of promise or
fraud may lie against a person who has induced another by fraudulent
misrepresentations to enter into a void (e.g. bigamous) marriage with
him.”






See, too,
at 490 note 45.





In the
present case, Mrs Cosijn, who appeared for the plaintiff,
limited her submission to the injuria suffered by the
plaintiff. That a claim lies under that cause of action I have no
doubt. In Viljoen v Viljoen 1944 CPD 137 SUTTON J
awarded damages for the injuria suffered by a woman to whom a
promise of marriage had been made by a man who, unbeknown to her, was
married. A fortiori, in the case where a person
purports to implement his unlawful promise: see, too, Bull v
Taylor
1965 (4) SA 29 (A) especially at 37-38; S v Youngleson
1948 (1) SA 819 (W) at 822. In the present case, there was both
injuria and contumelia attendant upon the unlawful
conduct of the defendant.





The
plaintiff satisfied me that she was entitled to the amount claimed by
her as maintenance for the minor child. She also satisfied
me that,
having regard to the circumstances, and especially the hurt caused to
her and the social standing of the parties, she is
entitled to a
substantial award of damages.’






The learned judge awarded the plaintiff damages in the sum of $5 000
(R5 000?).






The views
expressed by the learned judge were approved by HODES AJ in
Arendse v Roode 1989 (1) SA 763 (C). At p 765 D-J
the learned judge said:






‘The only reported judgment of which I am aware in which a claim
for damages arising from bigamy has been considered is that of
GOLDSTONE J in Snyman v Snyman 1984 (4) SA 262 (W). I
am, with due respect, in agreement with GOLDSTONE J and with
Hahlo The South African Law of Husband and Wife 5 ed at
107 that an action for damages under the actio injuriarum lies
against a defendant who by his deceit took advantage of a plaintiff’s
innocence and induced her to enter into a marriage which
the
defendant knew, but the plaintiff did not know, to be null and void
because he was already married.





As in
Snyman’s case supra, in the present case there was
both injuria and contumelia attendant upon the unlawful
conduct of the defendant.






It was clear from her testimony in the witness-box and from what I
saw of her that the plaintiff is a sensitive woman and that she
has
been and remains affected deleteriously by the defendant’s wrongful
and unlawful conduct.






It does
not, however, appear from the evidence before me that there has been
any noteworthy impairment of the plaintiff’s reputation.





Taking
into account all the relevant facts set forth above, including the
extent to which the plaintiff has suffered anguish and
humiliation as
a result of the defendant’s behaviour, the plaintiff’s social
standing and financial circumstances, the defendant’s
financial
circumstances and the attitude of the defendant and whether he has
shown any repentance or concern for the plaintiff, I
am of the view
that an amount of R5 000 would be an appropriate award of
damages under the actio injuriarum.





The
plaintiff also claims damages for seduction. This claim does not
fall within the ambit of the action injuriarum, but is an
action sui generis. Van den Heever Breach of Promise and
Seduction in South African Law
at 42-3 and Carelse v Estate
De Vries
(1906) 23 SC 532 at 539.





That a
plaintiff who has been seduced may recover compensation for the loss
of her virginity and the consequent impairment of her
marriage
prospects is clear. Bull v Taylor 1965 (4) SA 29 (A) at
38-9.






In deciding what compensation should be awarded a seduced plaintiff
for the loss of her virginity and for the diminished chances
of her
making a suitable marriage, a court should, in my view, take into
account, inter alia, the plaintiff’s social standing and
financial position as well as that of the defendant.’







He then awarded the plaintiff an additional R1 500 in respect of
her claim for seduction.





I have
found no cases in this country dealing with actions for injuria
against a bigamist who induces a woman to enter into a marriage which
he knew, but she did not know, to be null and void. I am
satisfied,
on the authorities quoted above, that Josephine is entitled to
damages, but I consider that (the) amount she is claiming
is
excessive. There is no evidence before me that she is a sensitive
woman or that she has suffered anguish and humiliation as
a result of
Joseph’s behaviour. Having regard to Joseph’s financial
circumstances and the fact that he has shown no repentance
or concern
for Josephine, I consider that an award of $50 000 would be
appropriate.”










I agree with the reasoning of the learned Judge. The quantum of
damages is not in issue and there has been no cross-appeal.





The
appeal is accordingly dismissed with costs.














SANDURA
JA: I agree.














GWAUNZA
JA: I agree.
















Mutezo & Company, appellant's legal practitioners


Kantor
& Immerman
, respondent's legal practitioners