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