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