FAMILY LAW https://old.zimlii.org/taxonomy/term/10502/all en Gessen v Chigariro (SC 80-21, Chamber Application No. SC 75/21) [2021] ZWSC 80 (30 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/80 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>Judgment No. SC 80/21</p> <p>Chamber Application No. SC 75/21</p> <p> </p> <p><strong>REPORTABLE</strong><strong>        (77)</strong></p> <p><strong>ALLEN     ALESKSEY     GESSEN</strong></p> <p><strong>v</strong></p> <p><strong>PRISCILLA     CHIGARIRO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE: 2 JUNE 2021 &amp; 30 JUNE 2021</strong></p> <p> </p> <p><em>T. Zhuwarara,</em> for the applicant.</p> <p>Ms<em> M. Musuka, </em>for the respondent.</p> <p> </p> <p><strong> IN CHAMBERS</strong></p> <p> </p> <p><strong>MATHONSI JA:        </strong>This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.  The applicant’s initial appeal filed timeously was struck off the roll on 1 April 2021 for the reason that the notice of appeal was fatally defective.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>                   The applicant is a citizen of the United States of America (USA) even though he was born in Russia.  The respondent is a Zimbabwean citizen.  The two met in 2011 in Harare Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.  They never registered a legal marriage.</p> <p>                   The parties’ association was blessed with a boy child called Orrin who was born on 23 July 2013.  During the period extending from 2015 to 2019, the applicant secured employment in Russia and as such became resident in that country.  In 2016 the respondent and the boy child Orrin followed the applicant to Russia where the family took up residence.</p> <p> </p> <p>                   It was during the period of their temporary residence in Russia that the couple decided to have a second child.  Owing to some health challenges, the respondent could no longer carry the pregnancy.  They decided to have the child through surrogacy and found a surrogate mother with whom a surrogacy agreement was entered into.  It was signed by the applicant, the respondent and the surrogate mother on 2 March 2018.</p> <p> </p> <p>                   The surrogacy agreement stated in pertinent part:</p> <p>“We undertake to assume the equal rights and obligations of parents with respect to the children, born by ‘surrogate mother’ after embryo transfer to the uterine cavity of ‘surrogate mother’, in terms of their upbringing, as defined by the Russian legislation on family and marriage.”</p> <p> </p> <p> </p> <p> </p> <p>                    In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.  Unfortunately the parties’ relationship hit turbulence and a short while after the birth of the child they commenced living apart.         </p> <p> </p> <p>                    Although the surrogate mother had given her consent for them to register the child as their own as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.  Acting together, they instituted a law suit against the Registry Office for their recognition as the parents of Elizabeth.</p> <p>                   On 27 September 2019, the Meshchansky District Court of Moscow allowed the state registration of the child and for the respondent to be registered as its mother.  The applicant was not so lucky.  His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.  In doing so, the applicant took the boy child, Orrin, with him.</p> <p> </p> <p>                   Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to United States of America with the respondent’s consent, while the respondent’s position is that the applicant abducted Orrin and deserted her and Elizabeth.  It is however not in dispute is that the respondent and Elizabeth were left stranded in Russia.  They had been in that country on the applicant’s expired VISA.</p> <p> </p> <p>                   The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe.  In due course, the duo found their way to Zimbabwe in November 2019 where they have remained to this date.  The applicant was aggrieved.</p> <p> </p> <p>                   He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of s 3 of the Child Abduction Act [<em>Chapter 5:05</em>].  The basis of the applicant’s case was that the removal of the child from Russia and its retention in Zimbabwe are unlawful.</p> <p> </p> <p>                   The applicant sought a declaratory order to that effect.  Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties’ parental rights in those jurisdictions.  According to the applicant, Russia was the child’s habitual residence.  He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.</p> <p> </p> <p>                   The respondent opposed the application.  According to her, the parties had agreed to return to Zimbabwe and settle here.  She stated that an email she had written to the applicant’s lawyer insinuating the existence of an agreement with the applicant for their relocation to the United States of America had been written under duress.  The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia.  According to her, the child was lawfully retained as a Zimbabwean.</p> <p> </p> <p>                   The High Court dealt with a number of approaches in seeking to determine the child’s habitual residence for purposes of the Hague Convention.  It concluded that, while the issue of the intention of the parties was key in determining habitual residence, the child’s parents never formed an intention to settle in Russia.  They travelled there for work only and for that reason Russia was not the child’s habitual residence.  It could not be returned to that country.</p> <p> </p> <p>                   By the same token, the High Court found that it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention’s purpose of restoring the <em>status quo ante</em>.  Finding the Hague Convention inapplicable, the High Court dismissed the application.</p> <p>                   The applicant was dissatisfied.  On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court.  The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals.  It was struck off the roll.</p> <p> </p> <p><strong>THE APPLICATION</strong></p> <p>                   The appeal having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal.  The application before me was filed on 9 April 2021 just 8 days after the initial appeal was struck off.  Clearly there was no material delay in seeking condonation.</p> <p> </p> <p>                   The applicant’s explanation for failure to comply with the rules is that right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal.  The explanation is actually given by the applicant’s legal practitioner who takes ownership of the defective prayer in the initial appeal.</p> <p> </p> <p>                   On the prospects of success on appeal, the point is made on behalf of the applicant that the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention.  The applicant would also want to contest the High Court’s finding that Russia was not the child’s habitual residence.</p> <p> </p> <p>                   The respondent opposes the application.  In doing so, the respondent asserts that the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia.  That country could not possibly be said to be the child’s habitual residence in the circumstances of the case.  Accordingly the High Court’s decision cannot be assailed.</p> <p> </p> <p>                   In the respondent’s view the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child.  She denies unlawfully retaining the child in Zimbabwe.</p> <p> </p> <p><strong>PRELIMINARY OBJECTIONS</strong></p> <p>                   Ms <em>Musuka</em> for the respondent raised two preliminary objections.  Firstly, she submitted that the prayer in the heads of argument filed on behalf of the applicant was defective.  It sought the dismissal of the appeal when what is before the court is an application for condonation.  In counsel’s view, such inattention has permeated the manner in which the applicant has dealt with this matter.</p> <p> </p> <p>                   Mr <em>Zhuwarara</em> for the applicant was down on his knees, so to speak, when he apologised profusely for that typing error.  He promptly applied for the deletion of the prayer from the heads of argument.  While such clerical oversights should not be done in papers filed by senior counsel for the benefit of a superior court, they cannot form the basis of a dismissal of an application.</p> <p> </p> <p>                   Secondly, Ms <em>Musuka</em> objected to the filing of the applicant’s answering affidavit out of time.  In terms of r 43(5) the applicant should file his or her answering affidavit within 3 days of being served with the respondent’s opposing affidavits.  In this case the answering affidavit was filed on the 4th day.</p> <p> </p> <p>                   In my view, no prejudice was suffered by the respondent by that marginal failure to meet the time lines set by the rules.  This is more so given that the offending affidavit was filed on 22 April 2021 several weeks before the application was set down.  I restate that such small indiscretions should not be allowed to stand in the way of the attainment of justice and the right of litigants to access the court.  I condoned the late filing of the answering affidavit.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>                   What the court has regards to in an application for condonation is now settled.  The court has a discretion, which is exercised judicially, in considering an application of this nature.  Relevant factors in this regard are the degree of non-compliance with the rules of court, the explanation for the failure to comply, the prospects of success on appeal, the importance of the case, the interest of the respondent in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice.  See <em>Maheya v Independent African Church</em> 2007(2) ZLR 319 (S) at 323 B-C.</p> <p> </p> <p>                   It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.  While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay  and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complimented by good prospects of success on appeal.  See <em>Khumalo v Mandeya and Another </em>2008 (2) ZLR 203 (S).</p> <p> </p> <p><strong>APPLICATION TO THE FACTS</strong></p> <p>                   The judgment sought to be appealed against was handed down on 1 October 2020. </p> <p>The applicant’s putative appeal under case number SC 421/20 was struck off the roll on 1 April 2021.  There was no delay in filing this application after the striking off of the appeal.</p> <p> </p> <p>                   The applicant’s failure to comply has been explained as the oversight of his legal practitioner who drafted a defective notice of appeal.  I accept that this Court has stated in the past that there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner’s dilatoriness or lack of diligence.  See <em>Musemburi and Another v Tshuma</em> 2013(1) ZLR 526 (S) at 529 E-H; 530 A-B.</p> <p> </p> <p>                   I take the view, however, that this is not a case in which the legal practitioner’s lack of diligence should be visited upon the applicant.  This is so mainly for two reasons.  The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal.  It is a fault that cannot be said to be gross.</p> <p> </p> <p>                   The second is that I hold the view that the issues raised by the proposed appeal are arguable.  They deserve the attention of the full bench of the appeal court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.</p> <p> </p> <p>                   I can only refer to the manner in which the court <em>a quo</em> dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention’s application was not triggered.  For a matter to fall under the Hague Convention its article 3 must be satisfied.  It provides:</p> <p>“The removal or the retention of a child is to be considered wrongful where-</p> <ol> <li>  It is in breach of rights of custody attributed to a person, an institution or any other</li> </ol> <p>body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention;</p> <ol> <li>  At the time of removal or retention, those rights were actually exercised, either</li> </ol> <p>jointly or alone, or would have been exercised but for the removal or retention.</p> <p> </p> <p>The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” (The underlining is for emphasis).</p> <p> </p> <p> </p> <p>                   In <em>Peacock v Steyn</em> 2010(1) ZLR 254(H) the court found that the existence of a custody agreement between the parents of minor children who are not married regulating their rights of shared custody, triggered the application of the Hague Convention.  This is by virtue of article 3.</p> <p> </p> <p>                   In the present case, the surrogacy agreement I have referred to above provided some kind of shared custody between the parties.  That therefore presents the applicant with an arguable case on appeal.  Apart from that, Mr <em>Zhuwarara</em> drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia.  He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.</p> <p> </p> <p>                   The email was addressed to the respondent’s legal practitioner instructing him to relay it to the applicant’s legal practitioner for the attention of the applicant.  It reads:</p> <p>“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps.  As you have previously indicated you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children.  We will of course need to travel to Zimbabwe first in order to get visas and after that will proceed to America.  Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited.  I look forward to receiving your response and finally ending the current separation from Orrin.”</p> <p> </p> <p> </p> <p> </p> <p>                   I am aware that there was a suggestion by Ms <em>Musuka</em> that the email was written under duress, the particulars of which were not clearly articulated.  That is however immaterial for our present purposes.  What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.</p> <p> </p> <p>                   If that is the case, the applicant is entitled to argue on appeal that the retention of the child in Zimbabwe in breach of such agreement brings the case under the ambit of the Hague Convention.  I am not sitting to determine the appeal but merely to consider whether it is arguable.  I think it is.  A case has been made for the grant of the indulgence of condonation.</p> <p> </p> <p>                   Regarding the issue of costs, Mr <em>Zhuwarara</em> for the applicant tendered to pay the respondent’s costs regardless of the outcome of the application.  This he did upon a realisation that the application was necessitated by the applicant’s blameworthiness.  An award of costs will be made by consent.</p> <p> </p> <p>                   In the result, it be and is hereby ordered as follows:</p> <ol> <li>The application for condonation for non-compliance with r 38(1)(a) of the Supreme Court Rules, 2018 be and is hereby granted.</li> <li>The application for extension of time within which to file and serve a notice of appeal against the judgment of the High Court handed down on 1 October 2020 as HH 620-20 be and is hereby granted.</li> <li>The applicant shall file his notice of appeal within 7 days from the date of this judgment.</li> <li>By consent, the applicant shall bear the costs of this application.</li> </ol> <p><em>Mambosasa Legal Practitioners</em>, applicant’s legal practitioners</p> <p><em>Karuwa and Associates</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/80/2021-zwsc-80.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40938">2021-zwsc-80.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/80/2021-zwsc-80.pdf" type="application/pdf; length=348415">2021-zwsc-80.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extension-time-within-which-note-appeal">Extension of time within which to note appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/81">Peacock v Steyn (Case No. HC 1370/10) [2010] ZWBHC 81 (04 August 2010);</a></div></div></div> Thu, 15 Jul 2021 06:50:04 +0000 Sandra 10080 at https://old.zimlii.org Nyamunokora v Makosi & Anor (HMT 18-21, HC198/19) [2021] ZWMTHC 18 (29 April 2021); https://old.zimlii.org/zw/judgment/mutare-high-court/2021/18 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PERPERTUA NYAMUNOKORA</p> <p>versus</p> <p>CHARLES MAKOSI</p> <p>and</p> <p>SMART EXPRESS (PRIVATE) LIMITED</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 29, March and 29 April 2021</p> <p><strong>Civil Trial</strong></p> <p><em>B. N. Mungure</em>, for the Plaintiff</p> <p><em>V. Chinzamba</em>, for the first Defendant</p> <p><em>C. Ndlovu</em>, for the second Defendant. </p> <p>            MUZENDA J: On 12  July 2019 the plaintiff caused summons to be issued against the first defendant, her Unregistered Customary Union husband claiming an assortment of household property, motor vehicle, ownership of 13 Longmore Cresent, Palmerstone, Mutare, half of shares in Smart Express (Private) Limited bus company consisting of 3 buses, an amount of US$175 000. She claimed in the alternative 50 percent share of the estate and costs of suit.</p> <p>            On 22 July 2019 first defendant entered appearance to defend the action. On 17 February 2020 Smart Express (Private) Limited filed a Chamber Application for joinder in terms of order 13 r 87 (2)(b). Plaintiff and defendant consented to the Chamber Application for joinder and Smart Express (Pvt) Ltd) became the second defendant.</p> <p>Background</p> <p>            Plaintiff and first defendant entered into an unregistered customary union in 2009 and parted ways in 2019. In 2016 Smart Express (Private) Limited was formed (hereinafter referred to as a “bus company”) and it is common cause that the first defendant and his mother, Aruma Mkwamba are the two shareholders, each having (1) share. The bus company’s registered office is given as 13 Longmore Crescent, Palmerstone, Mutare. The bus company used to have 10 buses, but currently only six (6) are operational.</p> <p>            During the period of the union two immovable properties were acquired, 13 Longmore Crescent, Palmerstone and 7594 Rhodesview, Mutare. Both houses are registered  in first defendant’s name. The parties also acquired various motor vehicles as well as household movables. </p> <p>            The plaintiff claims that she directly and indirectly contributed to the acquisition of the property, movables, the 2 houses and the bus company. Plaintiff bases her claim on unjust enrichment contending that if first defendant is allowed to take all the property, such enrichment is unjust to her because she laboured for such property’s acquisition. In the <strong><em>alternative</em></strong> her claim is premised upon an implied term of universal tacit partnership, both intended to use the property together. She thus claims for the redistribution of the property acquired during the subsistence of the union.</p> <p>            In addition to all the household property at 13 Longmore Crescent, Palmertsone, the plaintiff claims a Toyota Revo, 3 buses, sole ownership of 13 Longmore Crescent, Cash payment of us $175 000. In the <strong><em>alternative</em></strong> she claims 50 percent of the entire estate and costs of suit.</p> <p>First Defendant’s Plea</p> <p>            On 20 August 2019. First defendant filed its plea. First defendant avers that all the property was acquired through his own efforts and resources, except a few insignificant pieces, where the plaintiff contributed. All the cars and houses are registered in first defendant’s sole name.</p> <p>            First defendant claims that he never agreed to form a bus company with the plaintiff, otherwise the plaintiff would have been a director or a shareholder in the bus company, he added that plaintiff was not formally or informally employed before. First defendant established a shop for her. Thus to the first defendant most of the cars and the houses were acquired without the contribution of the plaintiff. First defendant states in his pleas that plaintiff’s contribution has been indirect and insignificant. To the first defendant plaintiff seeks to enrich herself and the proposed sharing will not be equitable given the fact first defendant has other wives. First defendant states that purely out of gratuity he would offer plaintiff 10 percent of the value of 13 Longmore Crescent, a Toyota Quantum, all household property at 13 Longmore and business and stock in trade at 10 Olympic Arcade, Mutare.</p> <p>Second Defendant’s Plea.</p> <p>            After the joinder of second defendant, the second defendant filed its plea on 12 March 2020. Second defendant contends that the Toyota Revo, belongs to the bus company. The same applies to the office furniture. Plaintiff was never involved in the formation of second defendant. All the buses are owned by the second defendant. Second defendant went on to add all the bus company assets belong to the company and not first defendant and denies that plaintiff either directly or indirectly contributed towards the acquisition of the assets. The second defendant thus contends that the plaintiff has no basis for claiming a share of the property  which belongs to the company. It is the prayer of second defendant that plaintiff’s claim as regards second defendant’s property be dismissed.</p> <p>Issues of Trial.</p> <p>            On 14 July 2020, all the parties agreed that the following constituted issues for determination by the trial court,</p> <ol> <li><strong><em>Whether or not there was a tacit universal partnership between plaintiff and first defendant. ?</em></strong></li> <li><strong><em>What properties and business were acquired during the subsistence of the unregistered customary law union between the plaintiff and first defendant?</em></strong></li> <li><strong><em>Whether the plaintiff’s claims are sustainable as against the defendants and if so what will be fair just and reasonable sharing of the properties</em></strong></li> </ol> <p>The onus was to start on the plaintiff.</p> <p><strong>Second Defendant’s Exception</strong></p> <p>            On 29 March 2021, the date of hearing, Mr <em>C. Ndhlovu</em> applied to pursue second defendant’s exception. I ruled that the application was not properly before the court and ordered that the matter be heard on merits. I indicated that my reasons would follow in the main judgement, these are they:</p> <p>            On 12 March 2020 second defendant caused a Notice of intention to except to the plaintiff’s claim to be issued by the Deputy Registrar where he impugned the poor quality of pleadings by the plaintiff. Second defendant contended that plaintiff did not properly plead in her papers an acceptable and recognised cause of action, her papers do not show the basis upon which the plaintiff’s case was premised. As such it was the contention of second defendant that plaintiff’s claim was bad at law and excipiable. Second defendant prayed that plaintiff’s case be dismissed with costs.</p> <p>            The second defendant went on to prepare heads of arguments and served copies on the other parties, however on the same date it filed its exception, second defendant filed its plea, that is on 12 March. Plaintiff responded by filing its response to the exception which she subsequently withdrew. However her legal practitioners proceeded to file heads of argument about the exeption. The matter developed further and flowed up to the pre-trial conference and was eventually referred to trial. The second defendant did not apply for a setdown date for the exeption to be argued.</p> <p>            Order 21 of the High Court Rules, 1971 covers exceptions as an alternative to pleading. R 138 provides for an application for a special plea, exception or where such an application has been filed, what the parties ought to do. R 137 (b) further provides that failing to consent either party may within a further period of four (4) days set the matter down for hearing, within a stipulated period of four days, plead over to the merits and the special plea shall not be set down for hearing before the trial.</p> <p>            My understanding of Order 21 is that a party excepting to the pleading must file the exception serve it upon the other parties and, then, cause the exception to be set down for hearing on opposed roll where the plaintiff opposes the exception as in this case. If the exception succeeds then it disposes of the matter and that will be the end of the story<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. An exception is a pleading in which a party states his objection to the content of a pleading of the opposed party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain a specific defence relied upon.</p> <p>            In this matter second defendant pleaded over and went on to agree on joint pre-trial conference minute which outlined issues for trial, which issues are outlined herein above and coincidentally the exception does not form part of issues for trial. In my view the exception should have been set down well before the pre-trial conference and disposed of. It was not proper for second defendant to seek to argue the exception on the date of hearing. It is on this basis that I dismissed the application to deal with the exception on the date of trial and allowed the parties to be heard on the merits.</p> <p>Plaintiff’s case.</p> <p>            It is necessary to look at the evidence led on behalf of the plaintiff by herself and  on her behalf by the witnesses. Perpetual Tawanda Nyamunokora gave evidence and told the court the following. She had been staying with first defendant since 2009 but separated in 2019. There are three minor children born out of the union. She owns a shop, situated at Olympic Arcade, where she is self-employed.</p> <p>            During the union, the parties acquired a house and then refurbished and extended it, that is 13 Longmore Crescent, Palmerstone, Mutare, they then acquired an undeveloped stand, 7594 Rhodesview, Mutare and fully developed it to completion. In 2016  she told the court that she participated in the formation of Smart Express (Private) Limited, a bus company. All the mentioned properties and company do not bear her name on the title deeds nor company documents. On the 13 Longmore Crescent property she told the court she contributed directly with an amount of $23 000. As regards the company of buses, she told the court that, she provided moral support and labour for the benefit of company. Her contribution towards 7594 Rhodesview she told the court she contributed $3 000 towards the purchase of the undeveloped stand, she also contributed by going both to Harare and other outlets to buy building materials. In addition she cooked for the manpower on site and supervised the project. On all other household assets she also contributed towards their acquisition as well as financially. She felt that she is entitled to the Revo Toyota motor vehicle. She claims sole ownership of 13 Longmore Crescent Palmerstone and to her 10 percent of that property value is not fair given the amount of contribution she sacrificed during the union. She denied that she was just but college student when she married first defendant but that she was already in the business of buying and selling. She added that she realised a substantial financial prowess from Olympic Arcade which facilitated the betterment of the family union. According to her, her claim was just.</p> <p>            Plaintiff called two witnesses Tariro Nyapokoto and Hellen Mashingaidze. The two confirmed the contribution of plaintiff through labour and supervision during the construction of 7594 Rhodesview. They told the court that on occasions they would separately accompany plaintiff to go and inspect, cook or supervise the work in progress at 7594 Rhodesview.</p> <p>            Plaintiff produced quotations relating to her work at second defendant, employee contracts, hiring contracts between second defendant and third parties. She also produced affidavits relating to 7594’s acquisition. The production was by consent of both defendants. Plaintiff then closed her case.</p> <p>First Defendant’s Case</p> <p>            Mr Charles Makosi (first defendant) gave evidence. He bought No. 26 Sussex Yeovil, in 2006. He took occupation of that house. A problem arose pertaining to that property which led to the cancellation of the agreement of sale. He managed to recoup part of the money. He disposed of his two cars so that he could purchase 13 Longmore Crescent, Palmerstone. The total purchase price was $50 000. He denied that the plaintiff brought in $20 000 when he married her. He further disputed that plaintiff contributed $23 000 towards the purchase of 13 Longmore house.</p> <p>            As regards 7594 Rhodesview property, first defendant denied that plaintiff meaningfully contributed towards its purchase and development. He added that given the meagre income accruing to plaintiff, she did not substantially and financially contribute to its value addition. He however agreed that on occasions he would send her to purchase building materials and that plaintiff would visit the site to check on the builders. In principle as for both houses are concerned, he told the court that he solely acquired both, made extension to 13 Longmore and fully developed 7594 Rhodesview.</p> <p>            No 9 Olympic Arcade was acquired and registered in both parties names. In addition to the plaintiff,  first  defendant has five (5) other wives, though he could not  remember the exact addresses where each  one of them reside, he knows how to get  there with the exception of the first wife, Margreth Mutsingo, who resides at 7594 Rhodesview.</p> <p>            First defendant denied that he was in tacit universal partnership with plaintiff over Smart Express (Private) Limited (the second defendant) second defendant belonged to two shareholders, first defendant and his mother. Plaintiff did not contribute anything when second defendant was formed. When plaintiff did work at second defendant first defendant would not be present and when he returned he would pay plaintiff allowances which were not wages nor salaries. He admitted to the existence of receipts contracts of employment and vouchers produced by the plaintiff but added that all that work would be done ordinarily by a way but not for a fee. In effect first defendant vehemently denied that plaintiff had anything to do with second defendant, nor to claim anything from it.</p> <p>            On the aspect of plaintiff’s claim of $175 000 first defendant denied that he had such an amount of money. He however admitted that he had $23 000 in the safe which belonged to second defendant.</p> <p>            First defendant denied that he was a shareholder of second defendant and told the court that his position was that of an employee. The Toyota Revo was second defendant’s property which he was given to use whilst on duty. He went on to put the current market value of 13 Longmore house at US$ 100 000.   </p> <p>            Under cross examination by Mr <em>Ndlovu</em>, first defendant told the court that his mother had her own money which was used to acquire the business belonging to second defendant. Initially the mother wanted to buy a house but later agreed to invest the money on buses, she would buy a house at a later stage. As a director of second defendant he would attend to those buses in need of attention, allocate duties to the employees, insure buses, procure permits and acquire new buses. In principle he admitted that he is effectively the Manging Director of second defendant. He added that his mother sometimes intercedes on behalf of the company.</p> <p>            During cross examination by Mr <em>Mungure</em> first defendant stated that his mother is a shareholder of the company. First defendant realises between US$1 000 and US$1 500 per month as an allowance from second defendant. His mother gets between US$800 to US$1 000 per month. He does not know how many shares he owns in second defendant. Aruma Makwamba, his mother is the sole owner of the company, second defendant.</p> <p>            On the $23 000 he had in the safe, first defendant told the court plaintiff took it away. On the allowances she periodically paid plaintiff the amounts varied between $300 to $500 though he did not have any written document to prove that. He also admitted that though plaintiff performed duties ordinarily performed by an administrator, someone else performed that work. He further elaborated under cross examination that he got a refund of US$25 000 from the cancelled sale of 26 Sussex house, got a total of US30 000 from the sale of his 2 cars and paid US50 000 towards the purchase of 13 Longmore Crescent, the balance of US$5 000 went towards transfer costs. He bought 7594 Rhodesview stand from gold resales. After all had been said first defendant states that the offer of 10 per cent of the value of 13 Longmore Crescent was fair to him. The first defendant then closed his case.  </p> <p>Second Defendant’s Case </p> <p>            First defendant’s mother Mrs Aruma Makwamba testified on behalf of the second defendant. She told the court that she owns the second defendant. She got the money from her late husband. The idea of buying buses originated from her late husband. She told the court further that she did not buy the intended house. To her, first defendant did most of the papers that led to the formation of second defendant. She denied that plaintiff paid duty towards the importation of the second defendant’s first bus. Instead first defendant played a pivotal role in settling the import duty. According to her testimony first defendant made an arrangement with a third party to pay duty and then use the bus for a period of six months to recover the money where after he would release the bus to second defendant. The rest of the buses multiplied from the first.</p> <p>            She reiterated that she owns the business, although she does nothing in the company. Under cross-examination by first defendant’s counsel, she told the court that when plaintiff married first defendant she was a college student and first defendant was already married to Cain’s mother. At the time of the union, first defendant had a fleet of motor vehicles. Both plaintiff and first defendant were at Africa University. When plaintiff did work at second defendant, she would be paid some money, though she could not say how much and at what stage.</p> <p>            During cross-examination by the plaintiff’s counsel, she told the court that it was first defendant who negotiated with a third party about duty for the first bus, not her. She does not know where the first bus was purchased nor does she know for how much. The same response was repeated for the rest of the buses subsequently purchased. She is not on pay-roll of the second defendant, she uses a bank card to draw money from the bank. She also stated that plaintiff was not entitled to any asset of second defendant, whenever she performed any work at second defendant, first defendant would pay her.</p> <p>            During clarification by the court, the witness told the court that first defendant signs at the bank, she did not recall which bank second defendant uses. She uses a Toyota Raum as her official car and generally does not want to smell diesel. Second defendant closed its case.</p> <p>Analysis of Evidence   </p> <p>            I have deliberately attempted to cover each witness’ evidence in order to thoroughly analyse what each of them has said in court.</p> <p>            The plaintiff emphasised at length on what she did after the union, basically underlying the importance of a union. What is central to her was that the union lasted 10 years and she directly and indirectly contributed towards the acquisition of all the assets which are subject to her claim. She does not deny that she was at Mutare Teacher’s College when she customarily married first defendant. She stated that she was in the business of buying and selling and had $20 000 when she married first defendant. As regards 13 Longmore Crescent, she did not prove where she got $20 000 and no bank statements, record of sales or loan or books of accounts were tendered to authenticate the existence and source of the $20 000 or any other income that would enable her to accumulate $20 000 which she eventually ploughed in towards the purchase of that property. I am satisfied that as far as 13 Longmore Crescent is concerned, the plaintiff has failed to prove on a balance of probabilities direct monetary contribution towards its purchase. Her contribution is indirect by association and being first defendant’s wife. On the aspect of 13 Longmore’s extension and renovation, the plaintiff did not pinpoint how much she directly contributed, there is absolutely dearth of evidence on that fact. Even the pleadings are silent as to how much she contributed directly. However she was adamant about her direct contribution. In addition to being a housewife, she ran around buying building materials supervising builders and looking after Olympic Shop. I cannot rule out that some of the building materials might have been purchased with money from the family shop, but the onus was on the plaintiff to plead that and produce evidence to show as to how much she poured in towards the extension of the property. She again failed to do so and I conclude that the plaintiff’s substantial contribution towards the extension and renovation of 13 Longmore Crescent was indirect.</p> <p>            As regards 7594 Rhodesview, plaintiff produced two affidavits relating to $3 000. The payment of $2 000 alluded to both plaintiff and first defendant. It is not clear even from plaintiff’s closing submissions whether she wants the court to take the total payment of $3 000 as having been paid by her solely or to prove that she pulled her resources together with first defendant to purchase 7594. Further it is not crispy clear whether the $3 000 came from the Olympic Chop or was personally sourced by the plaintiff. The exhibits were just thrown before the court and were not utilised in advancing plaintiff’s cause. I will however conclude that the plaintiff contributed directly and indirectly towards the purchase of stand 7594.</p> <p>            In as far as its construction and development is concerned plaintiff again came short of leading evidence (documentary) as to how much she solely contributed at the exclusion of the first defendant in order to rebut what first defendant has outlined in his defence that he single handedly and with the assistance of fellow wives contributed towards the development of 7594 Rhodesview. Her evidence remains a word of mouth not supported by bank accounts, bank statements, receipts in her name <em>etcetera</em>. It was the duty of the plaintiff to place all this information before the court to consolidate her claim. She faultered.</p> <p>            In as far as the development of 7594 is concerned I come to a conclusion that it was again constituted by indirect contribution and partly direct when she ran around to buy materials and visit the site and prepare food for the builders. As far as financial contribution is concerned she might have had some input but not so significant, documents could have been available for scrutiny.</p> <p>            The plaintiff wants a share of second defendant’s assets. To her she stated that she agreed with first defendant to form second defendant. The plaintiff could not explain the absence of her name from second defendant’ company documents. She did not meaningfully pursue the role she played in the formation of second defendant. She did not produce before the court proof of payment of import duty she allegedly paid towards the acquisition of the first bus. She could not produce any documents of the company where she sat in the meeting of second defendant as a stock holder. What she managed to prove in court was that she performed administrative work for the benefit of the second defendant and she was not paid. She thus directly contributed towards the running of the second defendant. The question is how can she be compensated for doing that? I conclude on facts that in supporting the first defendant’s managing of second defendant company the plaintiff directly and indirectly contributed to the running of the second defendant and to its formation, she contribute indirectly as expected of a wife in her situation.</p> <p>As far as Revo motor vehicle plaintiff did not manage to prove that it personally belonged to the first defendant, it remains that of the second defendant. I will also hasten to add that plaintiff failed to prove the existence of $175 000 as being the amount of money on her declaration. It is not clear what that amount is for. Is it a pay-out or it was stashed in a safe at the time of separation or it is in lieu of something. The amount is just  a figure being claimed, it is not ratified in the declaration to guide both the defendants and the court as to its basis. It is not explained either in the closing submissions, the court is urged to grant the order as per the summons. No evidence exists about $175 000 and the court is left guessing how that amount was reached at. No assets evaluation was produced before the court and it remains a wonder what $175 000 represents.</p> <p>The first defendant’s evidence turns more on credibility than documentary.  No exhibits were produced. Presumably he did so because no onus  lies on him. He however explained how he acquired all the property and most of his evidence was not disputed by the plaintiff. </p> <p>First defendant’s challenge was lack of detail as regards his other wives. He professed ignorance of where the other four stay. He managed to talk of only one, the first wife who stays at the 7594 Rhodesview. I am in no doubt that the other four wives are fictitious maybe they are just paramours who have children with the first defendant. The first defendant was also economic on what contribution plaintiff did towards the acquisition of both 13 Longmore Crescent and 7594 Rhodesview. He basically underrated plaintiff’s role. The first defendant overrated the role of his mother in second defendant’s company. He contradicted himself and the mother on how the company was formed and he could not explain the discrepancy in court. He could not also explain what he paid the plaintiff when the latter performed office work at second defendant, whether he paid her or if she was paid what the payment was for. These are the adverse aspects of the first defendant.</p> <p>The evidence of second defendant’s witness, in principle did not take second defendant’s case anywhere. She totally showed that she is but a person included in first defendant’s company for compliance with statutory requirements. In any case her evidence is not very critical to this case. The inclusion of second defendant in this matter is more legal than factual, save to mention that first defendant’s mother’s evidence exposed first defendant’s case than assist him. She does not know how much “her” first bus was bought for, nor does she sign at the bank, literally her role was totally marginalised, she has no control over second defendant. She performed poorly on the witness box and deliberately protected first defendant.</p> <p>Closing Submissions By Counsel</p> <p>Mr <em>Mungure </em>for the plaintiff submitted that the civil standard of proof is that plaintiff’s version</p> <p>“<em>must carry reasonable degree of probability but not so high as required in a criminal case evidence is that the tribunal can say ‘we think it more probable than that’ the burden is discharged, but, if the probabilities are equal it is not”</em>.<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a></p> <p>He went on to outline what he perceives are issues of common cause and concluded that plaintiff immensely contributed towards the acquisition and development of both movable and immovable properties.</p> <p>Plaintiff’s counsel further submitted that the tacit universal partnership was born in 2009, when the union was formed. Plaintiff pulled her income, skill and resources with those of first defendant in order to work as husband and wife. He went on to cite the matter of <em>Mtuda</em> v <em>Ndudzo</em>.<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a></p> <p>From the shop the couple realised profits which would equip plaintiff to make direct financial contributions in the acquisition of property. Plaintiff’s counsel also added that in addition to financial contributions, plaintiff directly and indirectly contributed through supervision. She also contributed by rendering secretarial and administrative work to the second defendant company. Plaintiff was never paid and she performed her role as a wife to the first defendant and as such the plaintiff has satisfied all the requirements of tacit universal partnership and cited the matter of <em>Eddstein</em> v <em>Eddstein N.O and Ors</em>.<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a></p> <p>It was also plaintiff’s contention that if the first defendant was married to five other women, the other women’s contribution was never brought to the court’s attention and were never partners to the matter before the court. Plaintiff urged the court to disregard the position of other wives on the basis that their rights are insubstantial in the circumstances. Due to the duration of the union plaintiff expects something close to parity with the husband, it was further submitted on behalf of the plaintiff.</p> <p>On the alternative claim of unjust enrichment, plaintiff’s counsel submitted that the contribution which impoverishes a woman in an unregistered customary law union has been definitely recognised as not only a tangible contribution but intangible contributions as well.<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a> In this case, plaintiff’s counsel went on, plaintiff directly and indirectly contributed to the incorporation and maintenance of second defendant. She risked future impoverishment in the event of divorce, and where she has made a contribution that impoverishes her, and will leave the husband enriched at her expense, an action for unjust enrichment should be extended to her. It would therefore be unjust if the plaintiff does not benefit anything from second defendant given her direct and indirect contribution, it was strongly argued on behalf of the plaintiff. She prayed that her alternative claim succeed as well.</p> <p>Mr <em>V Chinzamba</em> for the first defendant submitted that plaintiff failed to prove that she made meaningful contributions towards the acquisition of the property. During a maintenance enquiry in the magistrates court she had actually provided information to the enquiry that shows that the income was paltry as compared to first defendants and first defendant urged the court to take cognisance of this fact.<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a></p> <p>First defendant proceeded to cite a number of cases to advance his argument that plaintiff is entitled to a percentage to 13 Longmore Crescent but not sole ownership.<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a> Mr <em>Chinzamba</em> then concluded in his submission suggesting that it will be just and equitable if the plaintiff is awarded between 20 percent and 30 percent of the value of No. 13 Longmore Crescent Palmerstone Mutare, household goods and the Toyota Quantum and Olympic Arcade shop.</p> <p>On the other hand and to the <em>contra</em>, second defendant’s counsel, Mr <em>Ndlovu</em>, submitted that the borne of contention as between plaintiff and second defendant is whether plaintiff’s contribution or assistance can be interpreted to effectively imply that plaintiff had a share in the growth of second defendant company. Second defendant classifies plaintiff’s role as ordinary clerical duties that any employee would effectively perform. Her only qualification, it was averred by second defendant’s counsel, was that she was first defendant’s wife. As a result it was further submitted by second defendant that plaintiff made insignificant contribution to the exponential growth of second defendant. To the second defendant, plaintiff did not do anything extraordinary.</p> <p>Second defendant went on to emphasize the ancient importance of legal <em>persona</em> of a company and that shareholders do not own company property.<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a> In this case plaintiff did not establish the basis of piercing the corporate veil, it was submitted. Moreso second defendant cannot be said to be a sham company. Second defendant went on to add that the plaintiff has not pleaded nor proven a cause for piercing the corporate veil so as to say that first defendant is the same as second defendant so as to justify her claim of a share of second defendant’s assets, otherwise second defendant’s buses are protected by the corporate veil. See <em>Gonye</em> v <em>Gonye</em> SC 15/09. Second defendant prays that plaintiff’s claim as against second defendant be dismissed with costs on a higher scale of legal practitioner-client scale.</p> <p>The Law</p> <p>In the matter of <em>Chapeyama</em> v <em>Matende &amp; Another</em> <a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9">[9]</a> it was held that</p> <p>“<em>Where, a husband and wife marry under customary law, and the marriage is not registered, customary law, will apply to a dispute arising out of the marriage or its dissolution. It is only possible to bring in the general law concept of a tacit universal partnership if the court lays a foundation for applying such law. Such a foundation had not been clearly articulated.</em></p> <p><em>Further, that the foundation for applying the concept of a tacit universal partnership was provided in s 3 of the Customary Law and Local Courts Act [Chapter 7:05], which provides that unless the justice of the case otherwise requires, customary law applies in any civil case where the parties have expressly agreed that it should apply, or, regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed that it should apply. A general law concept such as tacit universal partnership may be relied on if in the circumstances the application of customary law would have led to injustice. Where the elements of tacit universal partnership have been established, useful guidelines may be found in s 7 of the Matrimonial Causes Act [Chapter 5:13] in in considering the division of the matrimonial property”.</em></p> <p>In the case of <em>Mtuda</em> v <em>Ndudzo</em> <a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a> the requirements of a tacit universal partnership were crisply spelt out as follows:</p> <ol> <li>Each of the partners must bring something into the partnership or must bind himself or herself to bring something into it, whether money, labour or skill.</li> <li>The business should be for joint benefits of the parties.</li> <li>The object of the business should be to make profit.</li> <li>The agreement should be a legitimate one.</li> </ol> <p>In <em>Matibiri</em> v <em>Kumire</em><a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a> it was stated:</p> <p>“Although there is no specific mention of the need to apply the general law to those cases where customary law was inapplicable, the section provides that customary law shall apply to the specific areas mentioned ‘unless the justice of the case otherwise requires’. In my view, the only logical construction to place on the phrase ‘unless the justice of the case otherwise requires’ is that if the application of customary law does not conduce to the attainment of justice then common law should apply.</p> <p>This was precisely the case in <em>Chikosi</em> v <em>Chikosi</em> (1) 1973 (3) SA 142 (R) and <em>Chikosi</em> v <em>Chikosi</em> (2)1973 (3) SA 145 (R) where it was held in essence that where the justice of the case requires common law principles shall apply…….. The phrase ‘unless the justice of the case otherwise requires’ has remained in all Acts passed by Parliament including the current one namely the Customary Law and Local Courts Act [Chapter 7:05] which, as already seen provides for the circumstances in which customary ‘law applies unless the justice of the case otherwise requires’. What emerges is that for the one hundred years during which customary law has co-existed with Roman Dutch law, it has always been provided through legislation that where the customary choice of law rules were found to be inapplicable to the just decision of any matter in controversy, then in that event, resort should be had to common law principle”.</p> <p>The law on an unjustified enrichment is now settled and in the matter of Industrial <em>Equity</em> v <em>Walker</em><a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12">[12]</a> the requisites for liability for this action are:</p> <ol> <li>The defendant must be enriched.</li> <li>The plaintiff must have been impoverished by the enrichment of the defendant.</li> <li>The enrichment must be unjustified.</li> <li>The enrichment must not come within the scope of one of the classical enrichment actions.</li> <li>There must be no positive rule of law which refused an action to the impoverished person.</li> </ol> <p>Applying Law To The Facts</p> <p>In her declaration attached to the summons commencing action, plaintiff and first defendant went into an unregistered customary union in 2009 and the union was dissolved in 2019. It is not clear as to whether proper “divorce” procedure under customary law was done or not. First defendant did not dispute this aspect so I can conclude that first defendant acknowledges and accepts that the union was dissolved. The plaintiff further pleads that customary law is not applicable in this case as it will lead to injustice, as such she contends that general law is applicable. The first defendant did not dispute this aspect. When second defendant later on was joined in the proceedings it did not challenge the choice of law applicable.</p> <p>Having looked at the pleadings as well as how the parties were living, as well as the nature of the case before me I am satisfied that it will be in the interests of justice if general law is applied in this case. The plaintiff has managed to outline appropriate grounds relating to the choice of the law, more particularly when dealing with tacit universal partnership.</p> <p>It is prudent in my view to deal with the alternative claim of unjustified enrichment before dealing with tacit universal partnership. The reason for this is if the plaintiff succeeds in the main claim under the auspices of tacit universal partnership, there will be no need to look at the claim in the alternative.</p> <p>The requirements of unjustified enrichment as outlined in the <em>Mtuda v Ndudzo</em> <em>supra</em>, inter alia, spell out that plaintiff must establish on a balance of probabilities that the defendant was enriched and prove in my view the extent of such enrichment. Such enrichment must be at the expense of the plaintiff. In other words the plaintiff must establish the link between the enrichment and her impoverishment. Aligned to this requisite, plaintiff must be able to prove the quantum of damages. It must also be proved by the plaintiff that the enrichment was unjustified. The plaintiff should in addition explicitly prove and establish that the genre of her claim for unjust enrichment is not one that falls under classical enrichment actions and the claim must be a legitimate or legal one.</p> <p>Plaintiff in her alternative claim wants half (½) share of first defendant’s shares in Smart Express or three buses and cash of US$ 175 000. She claims alternatively further for 50 percent of the multi estate. Plaintiff in her pleadings did not apply for piercing of the corporate veil of second defendant. Second defendant is and remain a separate legal entity separate from first defendant. In any case first defendant in terms of second defendant’s company documents, holds one share of second defendant. It will be absurd for plaintiff to claim 50 percent of the whole estate well knowing first defendant owns one share of second defendant.</p> <p>Plaintiff was aware of the legal status of second defendant right from its inception. She is educated and a teacher by profession and capably runs Olympic shop as a businesswoman, she ought to have known the legal consequences of having second defendant registered in other names excluding hers. I am not convinced by the plaintiff that she was impoverished by second defendant at all. The damage of such impoverishment were not pleaded. If there were determinable one would have expected some formula in the computation for example, her net salary per year which she lost whilst enriching the second defendant, the loss to her business whilst she was attending at second defendant’s business. The requisites for unjustified enrichment were not exhaustively met by the plaintiff. She mentioned the class of the claim and then failed to prove the basis of such and the quantum, more so when she did not prove that she was a shareholder, or co-director at second defendant and further that’s she was virtually at second defendant company all the material times. All that plaintiff managed to prove was that she assisted first defendant, through moral support, secretarial and administratively, as and when she could and when first defendant was out of the office. Can one say that that role entitles plaintiff to 50 percent of the estate? The plaintiff in my view failed to lay out the requisites and the alterative claim based on unjustified enrichment fails and is dismissed.</p> <p>It is not disputed by both defendants that plaintiff was married to first defendant for a considerable period of ten years. She was already married to first defendant when 13 Longmore Crescent, Palmerstone was purchased. She was with first defendant when that house was extended. During the same period second defendant was incorporated, 7594 was acquired and developed. It is also not in dispute that the plaintiff was productively running the Olympic Shop, going to South Africa to buy spares for the buses, sleeping late fuelling the buses, doing some clerical and administrative work for the second defendant. First and second defendants do not controvert her role in all these activities. In fact first defendant acknowledges that input and offers plaintiff all the household assets, a car and 10 percent of the value of 13 Longmore Crescent. On the other hand the second defendant accepts that plaintiff did work for the company but she does not deserve anything because second defendant is a private company distinct from first defendant. What is critically significant is that first defendant seriously perceives that plaintiff deserves a benefit or reward in <em>lieu</em> of what she contributed towards the accumulation of the property during the 10 years.</p> <p>The problem as highlighted above is that plaintiff has not assisted the court with vital information notably her exact financial contribution pertaining to 13 Longmore property. The same applies to the amounts she contributed during extension and renovations. A further challenge equally applies to the amount she directly ploughed in towards the construction of 7594 Rhodesview. The lack of financial precision of such figures adversely compromises the attempt to apportion what share plaintiff should get <em>vis-à-vis</em> the houses.</p> <p>In allocating an appropriate percentage to the plaintiff, I will look at the totality of her both direct and indirect contribution towards the acquisition and value addition of both houses, her work at second defendant’s company, her contribution towards Olympic Arcade shop, her household chores, looking after first defendant, the children and home. I will also look at the duration of the union as contemplated by s 7 (1) of the Matrimonial Causes Act, <em>supra</em>, the contribution of each of the spouses and their income. Although second defendant is a legal <em>persona</em>, first defendant’s benefits should obviously be enjoyed by the plaintiff, directly or indirectly and it will be indeed practical that if the first defendant earns dividends from his shares in second defendant, such earnings are subject to redistribution or the court will not ignore such an asset. In the same vein if the first defendant acquires any property with the income from second defendant such property is jointly owned by the family. It is not in dispute that first defendant owns a fleet of cars and is the Managing Director of second defendant. In my view the Toyota Revo is not something that is an unfair claim because when the first defendant was using it during happier times, plaintiff would utilise it. In any case the court must at least attempt to enable the plaintiff to at least live a life she was used to. I will award the Toyota Revo to the plaintiff and second defendant should facilitate change of ownership to reflect plaintiff’s. That will accord well with the services plaintiff rendered to the second defendant.</p> <p>First defendant proposed that the court awards plaintiff at most 30 percent of 13 Longmore Crescent. I do not see anything amiss about the proposalHowever first defendant is silent on the contributions made by plaintiff towards 7594 Rhodesview. She is indeed in my view entitled to a portion of value of that house since the property was acquired during the tenure of the union. The real question is premised on quantum. I see nothing wrong if  plaintiff is awarded 20 percent of that property. The effect of all this allocation is that first defendant is declared sole owner of 80 percent of Rhodesview house and 70 percent of 13 Longmore house. Plaintiff is awarded 30 percent of 13 Longmore Crescent and 20 percent of Rhodesview property. All the household property and the car being used by plaintiff are awarded to her by consent of first defendant.</p> <p>The first defendant proposed to pay off plaintiff within a period of 6 months. I call the parties to address me on the issue of the children’s interest. The youngest is barely six years. All the children need accommodation until they attain majority or become self-supporting. I will order that if the first defendant pays off the plaintiff of her 50 percent share, plaintiff will be accorded a usufruct to stay at 13 Longmore Crescent until the youngest child attains legal age of majority or becomes self-supporting. Alternatively the parties have to wait for that event of attainment then assign an evaluator and then the first defendant will pay out the plaintiff.</p> <p> </p> <p><strong><em>As a result the following order is granted:</em></strong></p> <ol> <li>Plaintiff’s claim for the following property succeeds.</li> </ol> <ol> <li>Toyota Revo AEQ 8886 and Toyota Quantum motor vehicle</li> <li>1x80 inch television</li> <li>1x65 inch television</li> <li>2x32 inch television</li> <li>1x26 inch television</li> <li>3x air conditioner</li> <li>2x bedroom suites</li> <li>3x¾beds</li> <li>1x double bed</li> <li>1x trade mill</li> <li>1x 6 piece leather lounge suite</li> <li>1x subwoofer sound bar radio</li> <li>1x office desk</li> <li>3x office chairs</li> <li>3 carpets</li> <li>5x DSTV decoders</li> <li>Jacuzzi</li> <li>Ceramic 4 plate hob</li> <li>Extractor Fan</li> <li>2x microwaves</li> <li>1x Defy 4 plate stove</li> <li>Pressure cooker</li> <li>Toaster</li> <li>Rice cooker</li> <li>Double door fridge</li> <li>Washing machine</li> <li>9kg gas tank</li> </ol> <p>TV stand</p> <ol> <li>Kitchen utensils</li> </ol> <ol> <li>(a)  30 percent of the value of 13 Longmore Crescent Palmerstone Mutare.</li> </ol> <ol> <li>20 percent of the value of 7594 Rhodesview Mutare.</li> <li>Both properties shall be evaluated by a Registered Estate Agent who is to be paid by both parties proportionately to each’s share and the evaluation should be done when the youngest child attains the age of legal age of majority or becomes self-supporting where-after, plaintiff will be afforded first option to buy out first defendant and if she fails, first defendant within six months will be afforded that opportunity to do so, six months after the effluxion of the six months afforded to the plaintiff to buy out one, failing which the properties will be sold by private treaty and the parties paid out appropriately.</li> <li>The plaintiff shall continue to stay at 13 Longmore Crescent until she buys out first defendant or she is paid her share.</li> </ol> <p> (3)    First defendant is awarded 70 percent of 13 Longmore Crescent and 80 percent of  7594 Rhodesview.</p> <p>(4)     The claim by plaintiff against second defendant for the Toyota Revo succeeds as per para     (i) of this order.</p> <p>(5)     Plaintiff’s  claim for buses and US$175 000 lump sum be and are hereby dismissed with no order as to costs.</p> <p>(6)     Each party to bear own costs.</p> <p> </p> <p> </p> <p><em>Makombe and Associates</em>, legal practitioner for the plaintiff</p> <p><em>Mugadza Chinzamba &amp; Partners</em>, legal practitioners for the 1st defendant</p> <p><em>Gonese &amp; Ndlovu</em>, legal practitioners for the 2nd defendant</p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> See <em>Webb and others</em> v <em>Local Authorities Pension Fund And Another </em>2017 (2) ZLR 16 CH, <em>Blooming Lilly Investments (Private) Limited and Another</em> <em>v Ontage Resources (Private) Limited and 3 Others</em>. HH1/21</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Dudner v minister of Pensions [1947] auer 372. At 374 per lord Denning MR</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 2000 (1) ZLR 716 (H) per Garwe J (as he then was)</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> 1962 (3) SA 15 (A)</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Ntuni v Masuku 2003 (1) ZLR 368 (H) 642 C-F</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> See Cabs Twinwire Agencies HB5/2004, and Mhungu v Matindi 1086 (2) ZLR 171.</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> Mautsa v Kurebwaseka HH 106/17</p> <p>   Ntuni v Masuku HB 69/04</p> <p>   Ncube v Ndlovu HB 16/04, Ncube v Maglazi HB 77/11</p> <p>   Ncube v Ndudzo <em>supra</em></p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> Contract Hanhers (Pvt) Ltd v Close Proximity Enterprises (Pvt) Ltd HB 15/17.</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 2000 (2) ZLR 356 (S) per Muchechetere JA at 356 F–H</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> Supra</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> 2000 (1) ZLR 492 (H) at 497– 498B per Chatikobo J</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> 1996 (1) ZLR 269 (H) at 270 C–F</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2021/18/2021-zwmthc-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42129">2021-zwmthc-18.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2021/18/2021-zwmthc-18.pdf" type="application/pdf; length=814026">2021-zwmthc-18.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/partnership">PARTNERSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tacit-universal-partnership">Tacit universal partnership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/exception-practice-and-procedure">Exception (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-filed-exception">when may be filed (Exception)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/106">Mautsa v Kurebgaseka (HH 106-17 HC 9814/11) [2017] ZWHHC 106 (23 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2004/5">Central Africa Building Society v Twin Wire Agencies (Pvt) Ltd (X-Ref 3750/01 &amp; 2254/02) [2004] ZWBHC 5 (28 January 2004);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/consolidated-act/513">Matrimonial Causes Act ,5:13</a></div><div class="field-item odd"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div></div></div> Thu, 13 May 2021 08:18:57 +0000 Sandra 9997 at https://old.zimlii.org Field v Field (nee Parham) (HH 68-21, HC 12315/16) [2021] ZWHHC 68 (18 February 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/68 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CLIVE ROBERT FIELD</p> <p>versus</p> <p>BRIDGET ANNE FIELD (nee PARHAM)</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 20, 21, 22, 23 &amp; 24 January &amp; 17 &amp; 18 February &amp; 13 &amp; 20 March &amp; 20, 21 &amp; 22 April  &amp; 10 &amp; 11 June 2020 and 18 February 2021.</p> <p> </p> <p><strong>Civil Trial - Divorce</strong></p> <p> </p> <p><em>F Mahere</em>, for the plaintiff</p> <p><em>B Mtetwa</em>, for the defendant</p> <p> </p> <p>            MANZUNZU J This is an action for divorce in which both parties agree that their marriage has irretrievably broken down. There are no children born of the marriage. The last sitting of a pre-trial conference was held on 10 July 2019 before Chirawu-Mugomba J and three issues were identified as the matter was referred to trial. The issues are;</p> <ol> <li>Whether or not there is fault on the Plaintiff for the end of the marriage and the effect if any of same on the redistribution order of assets of the marriage.</li> <li>What is a fair and equitable redistribution of the assets of the marriage.</li> <li>Whether or not the Plaintiff is entitled to costs on a legal practitioner and client scale.</li> </ol> <p>These issues are recorded handwritten by the Judge at the pre-trial conference. They constitute a joint pre-trial conference minutes.</p> <p>            It emerged during the cross examination of the plaintiff that the defendant expressed displeasure in the manner in which the issues for trial were captured. In my view, I do not think it appropriate for a party to express an intention to resile from the issues in the middle of the trial. In the closing submissions the defendant urged the court to take guidance from the parties’ independent pre-trial issues. It was also pointed out that issues 4, 4.1 and 5 from the defendant’s issues were left out in the joint pre-trial conference minute. The  defendant urged  the court  to take into consideration the combined issues as the joint issues of the parties. This approach will defeat the whole purpose of the pre-trial procedure. Not only will it create confusion as to what issues the court is to determine but is unprocedural in itself. Rule 182 (10) sets the powers of a judge at pre-trial conference as follows;</p> <p>            “(10)    Upon the conclusion of a pre-trial conference held before a judge, the judge—</p> <p>            (<em>a</em>)        shall record any decisions taken at the conference and any agreements reached by the                      parties as to the matters considered; and</p> <p>            (<em>b</em>)        may make an order limiting the issues for trial to those not disposed of by admission                        or agreement; and</p> <p>            (<em>c</em>)        may give directions as to any matter referred to in subrule (2) upon which the parties                        have been unable to agree; and</p> <p>            (<em>d</em>)        shall record the refusal of any party to make an admission or reach agreement, together                    with the reasons therefor.”</p> <p> </p> <p>            If defendant has issues with the pre-trial conference proceedings such should have been resolved before the matter came for trial. The matter was set down for trial based on the issues as per joint PTC minute. The fact that the defendant did not sign it is neither here nor there. The defendant allowed the trial to commence without raising issue with the minute. This court, as a trial court, cannot start acting as if it were dealing with a pre-trial conference. That stage is past and the joint pre-trial conference minute is there to guide the trial court.</p> <p><strong>BACKGROUND:</strong></p> <p>            The parties met in 1996 when they started a romantic relationship. They married on 31 March 2000 in terms of the Marriage Act, Chapter 5:11. They own six immovable properties, four in Zimbabwe and two in the United Kingdom. They also own movable properties. Their dispute is centred on the redistribution of their assets. As part of the admissions at pre-trial conference the parties agree that the property owning companies are jointly owned.</p> <p>            The parties jointly own the following immovable properties;</p> <ol> <li>No. 3 Windsor Gardens, 10 Windsor Avenue, Newlands, Harare (3 Windsor          Gardens)</li> <li>No. 3 Rowland Square, Milton Park, Harare (3 Rowland Square).</li> <li>No. 32 Walmer Drive, Newlands, Harare (32 Walmer Drive).</li> <li>No. 358 Gibson road, Victoria Falls (358 Gibson road).</li> <li>“V7” 117 Carronade Court N7, United Kingdom (V7).</li> <li>Penza, Lithorne Hall Middlesbrough, United Kingdom (Penza).</li> </ol> <p>            In respect to movables there are various bank accounts, household goods and Zimbabwe Stock Exchange portfolio which shall be dealt with later in this judgment.</p> <p><strong>PLEADINGS:</strong></p> <p>            Plaintiff issued summons on 5 December 2016 in which he proposed that he receives:</p> <ol> <li>32 Walmer Drive</li> <li>358 Gibson road</li> <li>Toyota Vigo motor vehicle, and</li> <li>Half  the proceeds of the following :</li> </ol> <ol> <li>Overseas Investments Accounts</li> <li>UK Bank Account</li> <li>SA Bank Account</li> <li>LOM Bank Account</li> <li>ZSE shares</li> <li>Fixtures and fittings</li> </ol> <ol> <li>That the income for V7 property be applied to the existing mortgage until the         property is unencumbered whereupon it be sold and the profits shared equally unless otherwise agreed by the parties in writing.</li> </ol> <p>            The plaintiff  further proposed that the defendant be awarded:</p> <ol> <li>3 Rowland Square</li> <li>3 Windsor Gardens</li> <li>Rav 4 motor vehicle</li> <li>Mazda motor vehicle</li> <li>Trailer</li> <li>Shares in ACR</li> <li>Entire contents of Botswana Bank Account</li> <li>Half  the proceeds of the following :</li> </ol> <ol> <li>Overseas Investments Accounts</li> <li>UK Bank Account</li> <li>SA Bank Account</li> <li>LOM Bank Account</li> <li>ZSE shares</li> </ol> <ol> <li>That the income for V7 property be applied to the existing mortgage until the property is unencumbered whereupon it be sold and the profits shared equally unless otherwise agreed by the parties in writing.</li> </ol> <p>The summons is silent about the Penza investment.</p> <p>      In her counter-claim the defendant has made the following proposal for redistribution:</p> <ol> <li>That she be awarded the following as her sole and absolute property:</li> </ol> <ol> <li>3 Windsor Gardens</li> <li>3 Rowland Square</li> <li>V7</li> <li>Penza</li> <li>32 Walmer Drive</li> <li>All amounts in the Botswana and South African Banks</li> <li>All amounts held in off shore accounts</li> <li>50 % share of the income from companies in which she is shareholder for the years 2015 to 2018.</li> <li>All movables which were at 32 Walmer drive at the time of their separation</li> <li>To retain all shares bought on ZSE</li> <li>50% share  of the income of Valley Sun (Private) Limited.</li> <li>Toyota vigo motor vehicle</li> <li>Rav 4 motor vehicle</li> </ol> <p>            The defendant proposed that the plaintiff should be awarded;</p> <ol> <li>All assets he inherited which include the immovable property at 4 Chidham            Close, England.</li> <li>An undivided half share in 32 Walmer drive.</li> <li>Upon payment of her share of income in the jointly owned companies that plaintiff retains both companies with defendant signing her shareholding over      to plaintiff.</li> <li>Rav  4 motor vehicle</li> <li>Remainder of any movables at 32 Walmer drive.</li> </ol> <p>The counter claim remained silent about 358 Gibson road.</p> <p><strong>WHETHER PLAINTIFF COMMITTED ACTS OF GROSS MARITAL MISCONDUCT:</strong></p> <p>            The defendant in her counterclaim pleaded gross marital misconduct on the part of the plaintiff alleging that the plaintiff has been physically, emotionally and psychologically abusive towards the defendant. Furthermore, that plaintiff failed to treat defendant with love, respect, support, affection, intimacy, companionship and friendship. It was also alleged that the plaintiff hatched conspiracy to dissipate the parties’ assets ahead of the divorce.</p> <p>            In his plea in reconvention the plaintiff denied each and every allegation of misconduct and puts the defendant to proof of her allegations. Plaintiff also alleged defendant was alcoholic who lacked spousal support and affection in the marriage.</p> <p>            Who then was at fault for the collapse of this marriage? The plaintiff blames the defendant and similarly the defendant blames the plaintiff. The experience of this court is that where parties are divorcing they blame each other for the failure of the marriage. It is usually the plaintiff’s word against the defendant’s word.</p> <p>            The onus to prove gross marital misconduct deserving censure in the redistribution of property rests with the defendant. In her evidence the defendant said she discovered in 2015  that plaintiff was involved in an adulterous relationship with one Avril. The plaintiff does not deny such relationship but said he only got into it after their separation in 2016. </p> <p>            The parties’ evidence show accusations and counter accusations against each other of wrong doing. Defendant alleged abuse of their joint funds for the benefit of plaintiff’s mistress. Plaintiff also alleged defendant withdrew money from their joint account without accounting for it. But the parties agree that their marriage has irretrievably broken down. No one wants to take responsibility for the breakdown of the marriage. The plaintiff blames the defendant  for the breakdown of the marriage and goes on to show how he protected himself against defendant’s violent behaviour with peace orders and spoliation orders from the courts. As was observed in <em>Baines</em> v <em>Baines</em> 1944 SR 135 at 137, “… it is seldom in a matrimonial dispute that the faults are all on one side.”</p> <p>            What the parties usually accuse each other of are not the cause of the breakdown of the marriage but rather a sign that the marriage has irretrievably broken down. The defendant’s evidence has not proved gross marital misconduct on the part of the plaintiff.</p> <p>            Even if the plaintiff was at fault for the end of the marriage, the law is now clear as set out in the case of <em>Ncube</em> v <em>Ncube</em>  1993 (1) ZLR 39 (S)  which held that; “since divorce was now based on the ‘no fault’ concept, the conduct of the parties could play no role in the determination of the distribution of the matrimonial property.” The court cited with approval the case of  <em>Wachtel</em> v <em>Wachtel</em> [1973] 1 All ER 829 (CA) on the  division of assets having regard to the conduct of the parties. It stated, “… when the parties come to an agreement that their marriage has irretrievably broken down, what place has conduct in it? The proper approach to adopt is to accept that both parties have  contributed to the breakdown and then to get on with the distribution of the assets on that basis. To invite a court to take cognisance of who was responsible for the breakdown after such an agreement, as the appellant requested of the trial court, is to resurrect the old spectre of guilt and innocence and drag the judge  ‘to hear their mutual recriminations and go into their petty squabbles for days on end, as he used to do in the old days.’ If that  was the intention of Parliament then the concept of the irretrievable breakdown of the marriage in s 5 of the Act is shorn of almost all meaning.”</p> <p>            In casu, the plaintiff’s conduct shall not affect the redistribution of the parties’s assets.</p> <p><strong>EQUITABLE REDISTRIBUTION OF THE PARTIES’ ASSETS:</strong></p> <ol> <li><strong>The Law:</strong></li> </ol> <p>                        In making an award of the assets of the parties the court is enjoined to apply the                principles set out in s 7 (1) of the Matrimonial Causes Act [<em>Chapter5:13.]</em> (the                    Act) This provision gives the court very wide discretion in regards to sharing              and distribution of the assets. Factors which the court must take into account are               laid down in section 7 (4) of the Act as follows;</p> <p>            “(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—</p> <p>            (<em>a</em>) the income-earning capacity, assets and other financial resources which each spouse and            child has or is likely to have in the foreseeable future;</p> <p>            (<em>b</em>) the financial needs, obligations and responsibilities which each spouse and child has or is           likely to have in the foreseeable future;</p> <p>            (<em>c</em>) 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;</p> <p>            (<em>d</em>) the age and physical and mental condition of each spouse and child;</p> <p>            (<em>e</em>) 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;</p> <p>            (<em>f</em>) 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 a result of the dissolution of the marriage;</p> <p>            (<em>g</em>) the duration of the marriage;</p> <p>            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.”</p> <p> </p> <p>These factors will be considered as and when evidence for each property is analysed.</p> <p>            Several authorities have dealt with division of matrimonial property at divorce. In <em>Takafuma</em> v <em>Takafuma</em> 1994 (2) ZLR 103 (S) the court had this to say;</p> <p>                “In dividing up the assets the court must not simply lump all  property together and then divide        it up in as fair a way as possible. The correct approach is first to sort out the property into three    lots, which may be termed "his", "hers" and "theirs". Then the court should concentrate on the    lot marked "theirs". It must apportion this lot using the criteria set out in s 7(1) of the           Matrimonial Causes Act 33 of 1985. It must then allocate to the husband the items marked "his", plus an appropriate share of the items marked "theirs". It must then go through the same          process in relation to the wife. Having completed this exercise, the court must finally look at             the overall result and again, applying the criteria set out in s 7(1) of the Act, consider whether          the objective has been achieved of placing the parties in the position they would have been in    had the marriage continued, insofar as this is reasonably practicable and just, having regard to             the conduct of the spouses.”</p> <p> </p> <p>            Because the property in the Takafuma case was jointly owned, the court further held that;</p> <p>            “In the present case the correct approach should have been to start by dividing equally the   proceeds of the sale of the jointly owned house, and then to make adjustments in the light of       the contributions made by the parties towards the purchase of the house and improvements        upon the house, and income received by the parties from the house.” (my emphasis)</p> <p> </p> <p>            The general principle in law is that where a property is jointly owned it is presumed the parties own it in equal shares. There should be justification for the court to award any party more than the 50% share. See <em>Lafontant</em> v <em>Kennedy 2000</em> (2) ZLR 280 (S) where the court had this to say;</p> <p>            “Where two persons own immovable property in undivided shares (as is the case here) there            must, I think, be a rebuttable presumption that they own it in equal shares.  That presumption        will be strengthened when (as here) the parties are married to each other at the time ownership      was acquired…</p> <p>            The Court cannot move from that position on mere grounds of equity.   It cannot give away A’s             property to B on the mere grounds that it would be fair and reasonable, or just and equitable, to       do so.   There must be a more solid foundation in law than that.” (my emphasis).</p> <p> </p> <p>            In casu, the parties are joint owners of the immovable properties hence the starting point will be that each is entitled to a half share of the value of the property.</p> <p>In <em>Kanoyangw</em>a v <em>Kanoyangwa</em> 2011 (1) ZLR 90 (H) the court held that;</p> <p>            “Where the immovable property is registered in the joint names of the spouses, this fact must           be recognized as a starting point, because where a property is registered in joint names the         presumption is that it is held in equal shares unless proved otherwise. In order to take a spouse’s    share and transfer it to the other, there ought to be some solid ground for so doing.” (my          emphasis)</p> <p> </p> <ol> <li><strong>Immovable Properties</strong></li> </ol> <p> </p> <p>I will now turn to the parties’ evidence in respect to each property. The general evidence by the plaintiff in respect to all the assets is that the two acquired them together, administered them together, jointly own them and as such each party must walk away with half share. Despitethe properties being jointly owned, the defendant says she singly financed the acquisition of most of the properties to the extent that it is just and equitable that she be awarded all the immovable assets save No. 32 Walmer drive where she proposes that the plaintiffgets half share.</p> <p> </p> <p><strong>            No 3 Windsor Gardens:</strong></p> <p> </p> <p>            The plaintiff said they started their marriage in 2000 at 3 Windsor gardens. The property is owned by Fieham Investments (Private) Limited where each party holds 50% shares. They are joint directors.</p> <p>            The company was registered in 1998 but the property was registered in 2000. On how the property was acquired the plaintiff said the parties borrowed money from the defendant’s father which loan they repaid.</p> <p>            The evidence of the defendant differs materially from that of the plaintiff on how this property was acquired. Her position is that the plaintiff made no financial contribution towards the acquisition of the property which she purchased prior to their marriage with the financial assistance of             her father.   The plaintiff is not a party to the agreement although he assisted in its draft. The plaintiff failed to prove how he contributed towards the acquisition of the property before their marriage. The defendant’s story is more probable than that of the plaintiff because she was able to support her evidence with documentary evidence.</p> <p>            This property sits on 328 square metres stand with an estimated value of between US$260 000     – US$270 000 as at January 2020. The plaintiff does not dispute that the property be awarded        to the defendant as her sole and exclusive property consistent with her counter-claim.</p> <p><strong>No.  3 Rowland Square</strong></p> <p>            The plaintiff told the court that 3 Rowland Square is held by Flatfish Investments (Pvt) Ltd (Flatfish) and was purchased by the parties between the period 2002 and 2004. The plaintiff and the defendant are the directors of the company and they hold 50% shares each in Flatfish. The plaintiff said the property was purchased from joint funds. The plaintiff proposed that it be awarded to the defendant as her sole and exclusive property.</p> <p>            The defendant’s evidence which to me was much more probable than that of the plaintiff was that the original subscribers to Flatfish were her two brothers holding 33% shares each and herself with 34 %. This was the time when this property was bought with no contribution from the plaintiff. She raised her contribution by selling one of her three Nora Court flats.  Defendant’s brothers later exited from the investment. There can be no doubt that defendant was the primary driver of the investment. In 2003 when Flatfish took title of the property the parties did not hold any joint account up until 2006.</p> <p>            This property measures 1138 square metres and with an estimated open market value of between US$170 000 –US$180 000 as at January 2020.The plaintiff proposed it be awarded to the defendant as her sole and exclusive property consistent with her counter-claim.</p> <p><strong>32 Walmer Drive</strong></p> <p>            This property was acquired after the parties had opened a joint account. It was purchased in 2006. The property is jointly owned. Plaintiff said the parties bought the property together and          equally contributed towards its refurbishments from their savings and investments. The plaintiff lives at this property occupying the cottage with a tenant in the main house. He proposes that the property be awarded to him as his sole and exclusive property because it was through his efforts that they eventually bought the property and jointly registered it in their personal names.</p> <p>            The defendant’s evidence was that this property be shared 50-50. She said it was bought out of   the proceeds of the sale of one of the properties in Victoria Falls which she owned. She described the plaintiff’s contribution as one for doing the paperwork.</p> <p>            Plaintiff’s evidence was more probable than that of the defendant as to his contribution towards the acquisition of the property. This is more so because the plaintiff contributed with the paperwork in other of the properties but defendant did not offer 50-50 share. The defendant did not prove that she owned a property in Victoria Falls which was later sold with the proceeds going to purchase 32 Walmer drive.</p> <p>            It does not sound just and equitable for defendant to claim half share on this property when the plaintiff concede that she gets the other first two properties. This is more so when one considers     the fact that the parties have been in marriage the last 20 years. While the defendant claims she       significantly contributed more than plaintiff through her business enterprises, she cannot say             the plaintiff sat there idle with no contribution. While she said she voluntarily agreed for a joint ownership such could not only have been influenced for the sake of love without any return value from the plaintiff. The defendant proposes to get nearly all the assets and leave plaintiff homeless. That is not the spirit of section 7 of the Act, which seeks;</p> <p>            “to place the spouses and children in the position they would have been in had a normal      marriage relationship continued between the spouses.”</p> <p> </p> <p>            The property is measuring 4 899 square metres with an estimated value between US$400 000 –US$450 000.</p> <p><strong>No. 358 Gibson road</strong></p> <p>            The plaintiff said that the property was purchased from joint funds and is held in a company called Trails and Trophies (Pvt) Ltd in which the parties hold 50% each. The plaintiff proposed that the property be awarded to him as his sole and exclusive property. Alternatively, he proposed that the property be awarded to the defendant in exchange for the 3 Rowland Square. The approach by the plaintiff is that each party must get at least two of the local properties.</p> <p>            The plaintiff argued that his proposal would achieve fairness regard being had to the duration of the marriage, the direct and indirect contributions of the parties and the fact that the parties own 50% each of the immovable properties.</p> <p>            It was clear from the evidence that the purchase price of this property did not come from the joint account as suggested by the plaintiff. Part payment came from defendant’s offshore account as the sellers required offshore payment. However, the plaintiff made indirect contributions. Defendant maintained the property must be awarded to her.</p> <p>            The property sits on 2615 square metres land valued between US$320 000 – US$340 000.</p> <p><strong>V 7 Property</strong></p> <p>            This property in the United Kingdom is jointly registered in the names of the parties. It was acquired through a mortgage. Plaintiff said in his evidence that the property was acquired using joint funds without explaining the source of the funds. A property management company is currently managing the property and leasing it out. Plaintiff proposed that the property be retained until the mortgage is fully paid.</p> <p>            The plaintiff was silent as to whether or not there was need to pay a deposit for the property. However, the defendant’s evidence came out clear that a deposit was required for the property. She said such deposit came from her share of the inheritance from her late father. This fact was disputed by the plaintiff who said that he was the executor of her late father’s estate and that she did not get any inheritance. Despite this claim by the plaintiff he produced no evidence that indeed he was the executor of the estate.</p> <p>            There is sufficient evidence in favour of the defendant to show that V7 investment was wholly financed from the defendant’s funds. There is a write up which plaintiff did on 6 January 2020 to the land developers of V7. The write up referred to source of funds  accruing to defendant or from her business. Plaintiff was careful to exclude his 23 000 pounds that was sitting in his United Kingdom account. The write up includes the defendant’s inheritance which the plaintiff now says was never there.</p> <p>            However, I must make it clear that V7 was not an inherited property. If it is inherited then it will not be subject of distribution. Nowhere in the pleadings were it pleaded that it was inherited property. The fact that it might have been partly financed from inherited funds does not make it inherited property.</p> <p> </p> <p> </p> <p> </p> <p><strong>Penza</strong></p> <p>            The plaintiff did not include it as part of the property in the pleadings for sharing. The investment is registered in the parties’ joint names. The plaintiff proposes that the investment be divided equally between the parties.</p> <p>            This is an investment wholly financed from the defendant’s pension with Veritas. She decided to include plaintiff as a joint owner as she had a belief in the longevity of the marriage. It is an investment for which the defendant seek that it be awarded to her.</p> <p><strong>Overall analysis of evidence in respect of the immovable properties</strong></p> <p>            The parties are in agreement that No 3 Windsor Gardens and No.  3 Rowland Square be awarded to the defendant. These two properties have a total size of 1466 square metres with an upper open market value of US$450 000 compared to the 32 Walmer drive which sits on 4866 square metres of land with an upper open market value of US$450 000. No. 358 Gibson road  sits on 2615 square metres land with  an upper open market value of US$340 000. No evidence was led to establish the value of V7 and Penza.</p> <p>            According to the <em>Lafontant</em> case, supra, the court,</p> <p>            “ cannot give away A’s property to B on the mere grounds that it would be fair and reasonable,        or just and equitable, to do so.   There must be a more solid foundation in law than that.”</p> <p> </p> <p>            In <em>casu</em>, the parties are joint owners of the immovable properties hence the starting point will be that each is entitled to a half share of the value of the property.</p> <p>            In the <em>Kanoyangwa</em>  case, supra,</p> <p>             “In order to take a spouse’s share and transfer it to the other, there ought to be some solid   ground for so doing.”</p> <p> </p> <p>            The question  is what then constitute a solid foundation or solid ground to justify a transfer of a spouse’s share to the other. One of the justifications was laid down in the Takafuma case, supra, as,</p> <p>             “ the contributions made by the parties towards the purchase of the house and improvements          upon the house, and income received by the parties from the house.”</p> <p> </p> <p>            The defendant has proved on a balance of probabilities that she was a major contributor in the acquisition of the properties before and during marriage. She had more profitable business enterprises than the defendant. She cannot be expected to have 50-50 share of the property with the plaintiff. Her contribution was far much greater than that of the defendant. But the court will not lose sight of the parties’ intention in having a joint registration. The court will have to balance the two. The plaintiff wants to walk out of the marriage as a victorious beneficiary when in actual fact his contribution was on the minimal. His only winning ticket is the joint registration of properties.</p> <p>            Both parties have been beneficiaries to the rentals to the properties although no amounts were quantified. The same goes for the withdrawals from the joint accounts. The plaintiff is a beneficiary of an inherited immovable property 4 Chidham Close, United Kingdom from his late mother which is not subject of distribution but is an asset which the plaintiff already has. The defendant invested her inheritance on V7 which she cannot now claim to be inherited property. Defendant also invested her pension on Penza which the plaintiff laid no claim to in the pleadings.</p> <ol> <li><strong>Movables</strong></li> </ol> <p>                        Plaintiff’s evidence was that all money held in the joint bank accounts and ZSE                 potfolios be distributed equally. He singled out the following bank accounts;                     standard bank Isle of Man accounts, Uk bank accounts, South African Bank                         Accounts and CABS. He further said each party should keep as his/her sole                 property the motor vehicles in each party’s possession. This would mean                          plaintiff getting the Vigo and Rav motor vehicles and the defendant getting the             Mazda 323 and Rav motor vehicles. Plaintiff also said there was a Prado motor                         vehicle which was subject of distribution. This turned out that the vehicle was                   for defendant’s sister which the parties bought for her hence is not the parties’                         asset. Plaintiff further advocated for half share of the rest of the movables.</p> <p>            Pending these divorce proceedings both parties admit making withdrawals from the  Standard bank Isle of Man account. Defendant’s evidence was clear as to what was withdrawn by each party and they did not account to each other. The plaintiff withdrew US$10000 and GBP5000. The defendant withdrew US$3000. This means if this money were shared equally the defendant is prejudiced of the amounts of US$3500 and GBP2500. What remains uncertain is the amounts withdrawn against the CABS Platinum account.</p> <p>            Defendant prays an award to her of the balances in all off shore accounts. This is despite the same being jointly owned.</p> <p><strong>COSTS</strong></p> <p>            The plaintiff in the summons prayed for no costs against the defendant. The defendant in the counter-claim prayed for costs on the ordinary scale against the plaintiff. However, both parties have taken a position in their submissions to claim for costs at a higher scale against each other.</p> <p>The defendant took the stance that there was gross marital misconduct by the plaintiff warranting costs on a punitive scale against him. On the other hand plaintiff claims the inordinate delay in completing these proceedings was caused by the defendant hence the need to visit her with punitive costs. Courts do not readily grant punitive costs against a party unless there are justified grounds for doing so. Several authorities have set out the principles applicable for such an award.  In <em>Borrowdale Country Club</em> v <em>Murandu 1987</em> (2) ZLR 77 (HC) the court held that, “ whilst the courts will not lightly accede to a prayer for an award of costs on a legal practitioner and client scale, such an award will be granted where the unsuccessful party's conduct has been completely unreasonable and reprehensible.”  (per head note.) In <em>Mahembe</em> v <em>Mahembe</em> 2003 (1) ZLR 149 (H) the court recognized the following as justifying an award of costs on a higher scale;</p> <ol> <li>Dishonesty conduct either in the transaction giving rise to the proceedings or in the proceedings,</li> <li>Malicious conduct,</li> <li>Vexatious proceedings,</li> <li>Reckless proceedings,</li> <li>Frivolous proceedings.</li> </ol> <p>            This is a matter where, in my view, does not justify awarding of costs against either party later on such costs  on a punitive scale.</p> <p><strong>Disposition</strong></p> <ol> <li>A decree of divorce be and is hereby granted.</li> <li>(a) The defendant is awarded the following immovable properties as her sole and     exclusive properties; No. 3 Windsor       Gardens, 10 Windsor Avenue, Newlands,     Harare, No. 3 Rowland Square, Milton Park, Harare and Penza, Lithorne Hall          Middlesbrough, United Kingdom.</li> </ol> <ol> <li>The plaintiff is awarded No. 32 Walmer Drive, Newlands, Harare as his sole and    exclusive property.</li> </ol> <p>       (c) The plaintiff and defendant shall within 90 days from the date of this order ensure    that the immovable properties are transferred and registered in their names and     should any party fail to take action within a period of seven days from a request           being made, the Sheriff of the High Court be and is hereby authorised to sign the necessary documents for transfer of immovable properties.</p> <p>(d) The plaintiff and the defendant shall each bear their own transfer costs.</p> <p> </p> <ol> <li>Each party is awarded 50% share in No. 358 Gibson road, Victoria Falls. <ol> <li>The property shall be valued within ninety days  from the date of this order by a valuator agreed to by the parties within fourteen days from the date of this order failure of which the Registrar of the High Court shall appoint a valuator from the approved list. </li> <li>The plaintiff and the defendant shall meet the valuation costs equally.</li> <li>  The plaintiff and the defendant shall each have a period of sixty days from the date of the valuation report to exercise an option to buy each other out of their respective 50% share.</li> <li> Should the plaintiff and the defendant fail to exercise the buy-out option within the stipulated time frame, the property shall be sold by private treaty by an estate agent agreed to by the parties within fourteen days from the last day of the exercise of the option failure of which by an estate agent appointed by the Registrar from the approved list and the net proceeds shall be divided equally between the plaintiff and the defendant.</li> <li> The plaintiff and the defendant shall meet the costs for the sale equally.</li> </ol> </li> </ol> <p>             3.6  Should any party fail to sign the necessary documents to pass transfer for the buy-             out option or sale by private treaty option, the Sheriff of the High Court be and is                hereby authorised to sign all such documents.</p> <ol> <li>The defendant is awarded 75% share and plaintiff is awarded 25% share in “V7” 117 Carronade Court N7, United Kingdom. <ol> <li> The property shall be valued within ninety days  from the date of this order by a valuator agreed to by the parties within thirty days from the date of this order failure of which the authorised official with the Superior Courts in the United Kingdom  shall appoint a valuator. </li> <li>The plaintiff and the defendant shall meet the valuation costs equally.</li> <li>  The plaintiff and the defendant shall each have a period of ninety days from the date of the valuation report to exercise an option to buy each other out of their respective 75/25% share.</li> <li> Should the plaintiff and the defendant fail to exercise the buy-out option  within the stipulated time frame, the property shall be sold by private treaty by an estate agent agreed to by the parties within fourteen days from the last day of the exercise of the option failure of which by an estate agent appointed by  an authorized  official with the Superior Courts in the United Kingdom and the net proceeds, less any mortgage obligations, shall be divided equally between the plaintiff and the defendant.</li> <li>The plaintiff and the defendant shall meet the costs for the sale equally.</li> </ol> </li> <li>Each party shall transfer to the other all shares in companies whose assets have been awarded to the other party and each party shall resign from each such company.</li> <li>(a) The plaintiff be and is hereby awarded as his sole and exclusive property, a Toyota               Rav  and a Toyota Vigo  Motor vehicles (already in his possession).</li> </ol> <p>(b) The defendant be and is hereby awarded as her sole and exclusive property, a Toyota Rav, a Mazda 323 motor vehicles and a trailer (already in her possession).</p> <p>           ( c)   Should any party fail to sign the necessary documents to pass transfer the Sheriff                                                                                                                                                     is hereby  authorised to sign all such documents.</p> <p>      ( d) The plaintiff and the defendant shall each bear their own transfer costs.</p> <ol> <li>The plaintiff and defendant shall each retain as his/her sole and exclusive property all movables in their possession save that which is specified in paragraph 12 of this order.</li> <li>The plaintiff and the defendant are awarded 50% each of the balances in the following bank and investment  joint accounts:</li> </ol> <ol> <li>Standard Bank Isle of Man  Accounts</li> <li>CABS Platinum Account</li> <li>ZSE portfolios</li> </ol> <ol> <li>The plaintiff and the defendant are awarded 50% each of the balance in the following bank and investment account; <ol> <li>UK bank account (held in the plaintiff’s name).</li> </ol> </li> <li>The defendant is awarded any balances in the South African and Botswana (FNB) bank accounts.</li> <li>The plaintiff shall pay the defendant amounts of US$3500 and GBP2500 being her share of the unaccounted funds withdrawn by the plaintiff from the Standard bank Isle of Man account.</li> <li>The following property of sentimental value is awarded to each party;</li> </ol> <ol> <li>The plaintiff is ordered to surrender to the defendant the following property;</li> </ol> <ol> <li>Furniture held at 32 Walmer drive inherited from the defendant’s late cousin</li> <li>A small buffalo sketch painting by Larry Norton</li> <li>Noel art painting with palm trees.</li> <li>A table given to defendant as a wedding gift.</li> </ol> <ol> <li>The defendant is ordered to surrender to  the plaintiff ;</li> </ol> <ol> <li>A piece of art he received as a gift at his 40th birthday.</li> </ol> <p>13. The parties may by consent vary any time frames indicated in this order. In the event that they fail to agree, the aggrieved party many approach the court for a variation.</p> <p>14. Each party shall bear its own costs.</p> <p> </p> <p><em>Matizanadzo and Warhurst, </em>plaintiff’s legal practitioners</p> <p><em>Mtetwa and Nyambirai, </em>defendant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/68/2021-zwhhc-68.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=45306">2021-zwhhc-68.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/68/2021-zwhhc-68.pdf" type="application/pdf; length=492081">2021-zwhhc-68.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/consolidated-act/513">Matrimonial Causes Act ,5:13</a></div></div></div> Wed, 03 Mar 2021 19:18:07 +0000 Sandra 9971 at https://old.zimlii.org Chigwada v Chigwada & 2 Ors (SC 188-20, Civil Appeal No. SC 397/17) [2020] ZWSC 188 (28 December 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/188 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/188/2020-zwsc-188.pdf" type="application/pdf; length=688701">2020-zwsc-188.pdf</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="File" title="application/rtf" src="/modules/file/icons/application-octet-stream.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/188/2020-zwsc-188.rtf" type="application/rtf; length=230111">2020-zwsc-188.rtf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-will">Execution of a will</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/w">W</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/will">WILL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/beneficiary-will">Beneficiary of will</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/validity-will">Validity of will</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/198">Roche (Curator, Bonis of Anita Bruk-Jackson) v Middleton (Executor, Estate of Chester Bruk-Jackson) &amp; Another (HH 198-16 HC 10317/14) [2016] ZWHHC 198 (24 March 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/272">Chiminya v Estate (Late Dennis Mhirimo Chiminya) &amp; Others (HC 4201/14) [2015] ZWHHC 272 (11 March 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/404">Majuru v Estate, Late Caroline Majuru &amp; Others (HH 404/16 HC 9123/13 Ref Case No. DR 448/13) [2016] ZWHHC 404 (30 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2008/71">Wakapila (Estate) v Matongo and Others (HC 1220/07) [2008] ZWHHC 71 (30 July 2008);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1987/13">Wills Act [Chapter 6:06] </a></div><div class="field-item even"><a href="/zw/legislation/act/1873/2">Deceased Estates Succession Act [Chapter 6:02]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item even"><a href="/zw/legislation/act/1978/39">Deceased Persons Family Maintenance Act [Chapter 6:03]</a></div></div></div> Wed, 06 Jan 2021 12:34:31 +0000 Sandra 9962 at https://old.zimlii.org Tavengwa v Tavengwa (HH 681-20, HC 2322/20) [2020] ZWHHC 681 (04 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/681 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                    </p> <p>GETRUDE TENDESAYI TAVENGWA </p> <p>versus</p> <p>CHARLES ZVIDZAYI TAVENGWA </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIRAWU-MUGOMBA J </p> <p>HARARE, 11 September 6, 12 &amp; 28 October &amp; 4 November 2020</p> <p> </p> <p> </p> <p><strong>Opposed Matter </strong></p> <p> </p> <p> </p> <p><em>S Mangwengwende </em>for the applicant </p> <p><em>S Kuchena </em>for the respondent </p> <p> </p> <p>           CHIRAWU-MUGOMBA J: The applicant and respondent are formerly wife and husband. Sometime in 2016, the applicant instituted proceedings for divorce and other ancillary relief against the respondent in case number HC 3452/16. Subsequently, she filed an application for maintenance <em>pendete lite </em>and contribution towards costs under case number HC 1055/17. On the 17thday of July 2017, this court awarded applicant maintenance pending litigation in the sum of US$1.000 and US$8.000 being contribution towards costs. On the 29thday of November 2018, this court granted a decree of divorce and other ancillary relief in HC 3452/16.  The latter was as governed by a consent paper signed by the parties on the 5thof October 2018.  The applicant alleges that the respondent has failed to comply with the provisions of the two cited court orders.  The applicant averred that the respondent had failed to transfer the property into her name within 3 months from the date of payment of the full purchase price. This means that transfer should have been done by the 6thof January 2020.  Further that the respondent’s conduct is <em>mala fide</em>and contemptuous of the court orders.  He was aware of the orders and he also entered into a consent paper with the applicant and was aware of its contents. </p> <p>Applicant thus seeks the following order. </p> <ol> <li>The respondent is found in contempt of the orders that were granted by this honourable Court on the 11thof July 2017 and 29thof November 2018 under case no. HC 1055/17 and HC 3452/16 respectively. </li> <li>The respondent be and is hereby committed to a prison for a period of ninety days or until such a time that the respondent purges his contempt.</li> <li>The Deputy Sheriff be and is hereby authorised and directed to apprehend the respondent with the assistance of a police officer and lodge him at the Harare Remand Prison for which this shall be the warrant. </li> <li>The officer-in-charge of the Harare Remand Prison shall detain the respondent for a period not exceeding (90) ninety days or until such time he purges his contempt and this shall be his warrant. </li> <li>The warrant of committal is, however suspended for 7 (seven) days on condition that the respondent shall comply with the orders given by this honourable court on the 11thof July 2017, 29thof November 2018 under case no. HC 1055/17, HC 3452/16 respectively.  </li> <li>The respondent shall pay the applicant’s costs of suit on a legal practitioner and client scale. </li> </ol> <p>The respondent strenuously opposed the application. He made the following averments. He denied being in contempt of court as alleged.  Case number HC 1055/17 has been appealed against, i.e.  the order for payment of maintenance pending litigation and contribution towards costs. Maintenance pending litigation and all arrears were paid. As for the immovable property, the purchase price had been paid in full by the 10thof June 2019. Transfer fees had been paid in full to Messrs Dube, Manikai and Hwacha.  What is left is for the seller’s attorney’s to process the title deed to enable respondent to transfer the property into the applicant’s name. The delay is not of his own making.   </p> <p>            The clause in contention is paragraph 3 of the consent paper that reads as follows.</p> <p>3.  The defendant shall purchase a three (3) bedroomed cluster home located at number 57 Kennedy Drive, Greendale, Harare, namely Unit number 11 Kennedy Flats as the plaintiff’s sole and exclusive property under the following terms; </p> <p>a)    The defendant shall pay the full purchase price of USD152 000 to First Banking Corporation (Pvt) Ltd within a period of 12 months from the date of signature to this consent paper and both parties acknowledge that as at the date of signature to this consent paper the sum of USD 137 000 has already been paid by the defendant to First Banking Corporation (Pvt) Ltd living <em>(sic)</em>a balance of USD15000 to which the defendant shall obtain a mortgage for a period of 12 months.</p> <p>b)    The defendant shall cause this property to be transferred into the names of the plaintiff within a period of three months from the date of payment of full purchase price.</p> <p>c)    The defendant’s legal practitioner shall attend to transfer of this property into the plaintiff’s names.</p> <p>d)    In the event of default by the defendant on any one of his obligations in terms of this consent paper, the plaintiff shall be entitled to sue the defendant for the balance of purchase due to First Banking Corporation. </p> <p>e)    The defendant shall within thirty (30) days provide alternative accommodation to the plaintiff in the unlikely event that the mortgaged property is sold in execution by First Banking Corporation due to non-payment of mortgage instalments. </p> <p>At the hearing, the applicant’s legal practitioner stated that the contempt of court in relation to the payment of maintenance pending litigation and contribution towards costs in HC 1055/17 was no longer being pursued. That left the only legal issues being those related to the contempt of court over the immovable property described in the consent paper and that of payment of maintenance.  It is also worth noting that the consent paper bears a wrong case number of HC 3452/17 instead of HC 3452/16. In my view, that is something that can be corrected under r 449 of the High Court Rules. </p> <p>         The applicant’s legal practitioner made the following submissions.  The applicant has proved all the requisites for contempt of court. The respondent does not dispute that there are an extant court order that he is aware of.  At the time of the hearing, the respondent was in maintenance arrears of $5663.15. He made a unilateral decision to make payments to CIMAS and yet medical aid was never part of the consent paper. The respondent changed the terms of the consent paper and that puts him in contempt of court. The letter from the applicant’s legal practitioners that appears on page 81 of the record that acknowledges that the respondent was making maintenance payments was written on a without prejudice basis. It cannot therefore be used against the applicant.  In any event subsequent letters stated a different position and showed that there were arrears still outstanding. While acknowledging that the respondent paid off the mortgage, he has not given any explanation of why transfer has not been effected since July 2019. </p> <p>       The respondent’s legal practitioner made the following submissions.  The applicant’s legal practitioners have drawn up another consent paper that they have furnished him with. This brings to the fore the question of whether or not a litigant can be held in contempt for a court order which is subject to variation proceedings.  Apart from varying the case number to reflect that it is a 2016 case, the draft also seeks variation on the United States dollars being maintenance.  On the immovable property, the respondent has done all that is required of him personally to do.  He paid the purchase price in advance and he has no control over the choice of conveyancers. These were chosen by the bank. Regarding payment of $700 maintenance, the applicant concedes in a letter that payments were being done. The only issue relates to adequacy of the amount due to the rise in cost of living. The money for CIMAS though not in the consent paper goes direct to the applicant’s bank account. </p> <p>Contempt of court is committed intentionally and in relation to the administration of justice. The aim is to punish disobedience by any party of an order to do or not to do something – see<em>Mukambiwa and ors </em>v<em>Gospel of God Church International 1932, </em>2014 (1) ZLR 207.  The disobedience must be wilful and <em>mala fide</em>.  In my view, the respondent cannot be said to be in contempt of court. He has paid fully for the immovable property. He has paid in full the conveyancing fees.  The assertion by the applicant that the respondent must ensure that the transfer has been done is fallacious.  As opined by TSANGA Jin <em>Karnec Investments (Pvt) Ltd and anor </em>v<em>Econet Wireless (Pvt) Ltd, </em>2016 (1) ZLR 502 at 507E, all that a respondent need to establish that it did not act wilfully or with <em>mala fides</em>is to raise a reasonable doubt.  The respondent has produced proof of full payments. He has substantially complied with the extant consent paper.  There was no evidence placed before the court on what action the applicant’s legal practitioners took to enquire from Messrs Dube Manikai and Hwacha on the status of the transfer even after they became aware of the payment of the full purchase price and the conveyancing fees. They were content to say that the respondent should give them the information. The onus still remains on the applicant to prove that the respondent is in contempt of the order. </p> <p>           An order that is complained of must create an enforceable obligation, see <em>Munhumutema</em>v<em>Tapambwa and ors, </em>2010 (1) ZLR 509.  In <em>casu, </em>paragraph 3 of the consent paper mandated the respondent to pay the full purchase price of US$152 00 for number 57 Kennedy Drive, Greendale, Harare. Respondent paid in full. Clause 3 (b) is to the effect that respondent should ‘cause’ the property to be transferred into the names of the plaintiff within three months from the date of payment of the full purchase price. It is not clear what cause’ means. In conveyancing, the duty of the respondent would be to pay the required fees. The only sanction in relation to non-payment appears in paragraph 3 (d) of the consent paper that if the respondent defaults in any one of his obligations the applicant is entitled to sue for the balance of the purchase price. The sanction therefore specifically relates to non-payment. </p> <p>With reference to the maintenance arrears, in my view the issue as rightly pointed out by Mr <em>Kuchena </em>is more to do with the cost of living increase rather than non-payment. The letter dated the 19thof July 2019 from the applicant’s to the respondent’s legal practitioners clearly indicated that the respondent was paying $700. It proposed contrary to the laws of the country that payment be in United States Dollars.  The letter was written on a ‘without prejudice’ basis. In my view, applicant cannot hide behind this given the fact that contempt of court is a drastic remedy that can potentially curtail someone’s freedom. Another letter dated the 12thof December 2019 written on a without prejudice basis states that the respondent is in arrears to the tune of $2443. It also states that the respondent has been paying amounts less than the stipulated ones since February 2019. This letter contradicts the one dated the 19thof July 2019 that states that the respondent had continued to pay $700. Accordingly, without a convincing figure being indicated as being the arrears, the respondent cannot be held in contempt of court. </p> <p>           Costs are always at the discretion of the court. Accordingly, the applicant must bear the respondent’s costs. This is in particular because the application for contempt of court is not well thought or laid out.  The elephant in the room remains the poorly drafted consent paper. </p> <p><strong>DISPOSITION</strong></p> <p>It is ordered as follows:</p> <ol> <li>The application be and is hereby dismissed.</li> <li>The applicant shall pay the costs.</li> </ol> <p> </p> <p> </p> <p><em>Phillips Law, </em>applicant’s legal practitioners </p> <p><em>Chinyama &amp; Partners,</em>respondent’s legal practitioners </p> <p> </p> <p>                </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/681/2020-zwhhc-681.doc" type="application/msword; length=42496">2020-zwhhc-681.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/681/2020-zwhhc-681.pdf" type="application/pdf; length=118047">2020-zwhhc-681.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contempt-court-0">Contempt of court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/failure-obey-court-order">failure to obey court order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/261">Karnec Investments (Pvt) Ltd. &amp; Another v Econet Wireless (Pvt) Ltd. ( HH 261-16 HC 6335/15 Ref HC 829/11) [2016] ZWHHC 261 (27 April 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2010/254">Munhumutema v Tapamba and Others (HC 5219/09) [2010] ZWHHC 254 (16 November 2010);</a></div></div></div> Wed, 25 Nov 2020 08:08:21 +0000 Sandra 9949 at https://old.zimlii.org Mujawo & Anor v Nhamoinesu & 2 Ors (HH 634-20, HC 5061/20) [2020] ZWHHC 634 (07 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/634 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                   </p> <p> </p> <p>PELAGIA MAKUMBE MUJAWO</p> <p>and</p> <p>ANTONY MUJAWO</p> <p>versus</p> <p>RODNEY NHAMOINESU</p> <p>and</p> <p>MASTER OF HIGH COURT</p> <p>and</p> <p>RUFARO MUTSA NYAMUTOWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TSANGA J</p> <p>HARARE, 7 October 2020</p> <p> </p> <p><strong>Chamber application</strong></p> <p>(<strong>In her capacity as curator <em>ad litem</em> for minor child LTM born 11 November 2004</strong>)</p> <p> </p> <p>TSANGA J: A chamber application for guardianship for a minor child born 11 November 2004 was placed before me. The applicants are husband and wife residing in the UK. The exact nature of their relationship to the minor child is not expounded. The child’s mother died in 2016 and it is said that the minor is being looked after by an uncle who is now unable to care for him due to ill health. The child’s father is said to have walked out on the mother of the child sometime in 2007 and since then has never come back. Some <em>curator ad litem</em> was appointed by the court and submitted a report.</p> <p>The report is largely cut and paste in that it simply regurgitates what is contained in the first applicant’s affidavit. This is to the effect that they are residents of the United Kingdom with indefinite leave to remain in the United Kingdom. They run a company which enables them to sustain a life there. The applicants aver that they have been assisting with the minor child’s school fees, food and groceries when the need arose since that time. The first applicant in particular says when the minor’s mother died in 2016, she took over the role of mother by giving him provisions that he required. Notably zero is no evidence attached to support the assertion that the applicants have indeed been playing the financial role they allege in the child’s life. The applicants now wish to give him a better home and to advance his education in the United Kingdom. They purport to have found him a place at the University of Sheffield.</p> <p>The curator says that she communicated with the applicants via skype but whatever the nature of the conversation it did not yield much more than what has already been averred by the applicants. The curator just like the first applicant, does not care to state how the child is related to the applicants other than to say the child loves his cousins (applicants) who are in the UK. In <em>In re Moyo</em> 2013 (1) ZLR 107 (H) the judge categorically stated that an applicant who seeks to be awarded guardianship of a minor child and for approval to remove the minor child must prove the relationship with the minor and some consent from other relatives.</p> <p>Whilst the curator says she spoke with the child and the uncle no dates are provided as to when and where she met them. There is nothing in her report that captures or details their sentiments as would be expected if indeed such a meeting occurred. The cursory approach knows no bounds<em>. </em>The uncle himself who is said to be looking after the child has not sworn to any supporting affidavit confirming that he is indeed looking after the child and that he is unwell and is unable to do so. In any event, his willingness or otherwise is not a deciding factor as the best interest of the child are always paramount in these matters. Simply put, there is nothing credible about the curator’s report just as there is nothing credible about the applicant’s own assertions that they have been looking after the minor child.</p> <p>Notably the minor child born the 11th of November 2004 is still fifteen going on sixteen next month. No evidence was attached that he has indeed completed schooling and that he is indeed due to enter University at that age. No “O” level or “A “level results were attached of the whiz kid performer. The letter attached which is supposed to be from Sheffield University is a joke. It does not even state what this minor child” who has been offered a place is supposed to study.</p> <p>The Master too seems to have fallen for this ruse and does not appear to have seriously applied his mind to facts in his report by urging that the child be given a chance to study at a better University. This is clearly yet another one of those applications that simply take courts for granted by expecting that they will readily endorse without applying our minds to it. The whole application amounts to no more than a charade of some sought to get the child to the UK. That lawyers are not deterred in placing some of these spurious applications before judges in chambers is concerning. This is despite case authority on the court’s strict approach in matters of this sort. See <em>Saungweme </em>v <em>Master of the High Court </em>2016 92) ZLR 639; <em>In re Maposa</em> 2007 (2) ZLR 333(H); <em>Musonza </em>v<em> The Master</em> 2007 (2) ZLR 382. There is zero evidence as stated that the child has been looked after by the applicants; zero evidence attached that the child has completed school; zero evidence attached as to what the fifteen-year child who is supposedly going to University has been offered to study. Yet the lawyer confidently files a chamber application which is not even supported by the facts it alleges and expects it to be granted. This is an abuse of court process. The application lacks merit.</p> <p>Accordingly, the application is dismissed.</p> <p> </p> <p><em>Tawanda Law, </em>applicant’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/634/2020-zwhhc-634.doc" type="application/msword; length=38400">2020-zwhhc-634.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/634/2020-zwhhc-634.pdf" type="application/pdf; length=83753">2020-zwhhc-634.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/guardianship">guardianship</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/799">Saungweme v Master of the High Court N.O. (HH 799-16 HC 11288/16) [2016] ZWHHC 799 (12 December 2016);</a></div></div></div> Tue, 20 Oct 2020 12:58:37 +0000 Sandra 9883 at https://old.zimlii.org X v Y & 2 Ors (HH 636-20, HC 4893/20) [2020] ZWHHC 636 (08 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/636 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>X</p> <p>versus</p> <p>Y</p> <p>and</p> <p>THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE</p> <p>and</p> <p>CHITUNGWIZA DEPARTMENT OF SOCIAL WELFARE</p> <p> </p> <p>HIGH COURT OF ZIMBAWE<br /> TSANGA J<br /> HARARE, 11 September &amp; 8 October 2020</p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p><em>T Mushangwe, </em>for applicant<br /> No appearance for 1st respondent<br /> <em>N Muchinguri, </em>for 2nd and 3rd Respondents<br />  </p> <p>TSANGA J: On the 11th of September 2020, I dismissed an urgent chamber for interim custody and gave oral reasons for so doing. I indicated to the parties that I would put the reasons given in writing for the guidance of others who may find themselves under similar fact circumstances.</p> <p>An urgent chamber application was filed by X in which she sought that the second and third respondents hand into her custody, five minor children belonging to Y. She is the sister to Y. The children were removed from Y’s custody by the Chitungwiza Department of Social Welfare for fear for their safety. He is their father and faces allegations of having raped a 15 year old minor who was under his guardianship.</p> <p>A court enquiry was also in progress at the time on whether any of the other children, who vary in age from three to thirteen years old, may have been affected. It emerged from the papers that their mother is separated from Y and lives in Dubai.</p> <p>According to X, this urgent application for interim relief was said to have been necessitated by the coming to her knowledge, through unspecified means, that since their removal, the children were not being looked after property by second respondent, that is the Department of Social Welfare. She did not state how or from whom she had obtained this knowledge. Apart from their being moved from pillar to post, she also alleged that they were not being properly fed. The facilities for their accommodation were said to be dilapidated and not suitable for minor children who were said to be more accustomed to a homely environment. More significantly, X averred that she had already made an application for custody of the five minor children which was scheduled for hearing the 17th of September 2020. In other words, the hearing for custody was only a few days away at the time of this application on the 11th of September 2020. She averred that it would be detrimental for the children have to wait for the custody hearing on the stipulated date.</p> <p>In light of these averments involving the children, albeit hearsay in the nature, I still found it prudent to set the matter down for urgent hearing and instructed that applicant notify all relevant parties. Indeed X the applicant and her lawyer availed herself as did the lawyer from the AG’s office who represented the second and third respondents. A representative from the welfare also availed herself. Y was a no show.</p> <p>At the hearing, the above assertions were reiterated. The main point by X’s lawyer was that this court, as upper guardian of all children, should intervene by giving the interim custody on the basis of this being in the best interests of the children.</p> <p>Counsel for the represented respondents was opposed. Investigations were still in progress on the court enquiry, and, as for the custody application, he asserted that it would be prejudicial at this point to give custody to X who is Y’s sister. This was on the basis that it might jeopardise the enquiry that was still being done as the children could be easily influenced.</p> <p>As for the allegations of neglect, according to the representative from Social Welfare who was present, the children were staying at SOS Children’s home in Waterfalls. She had not heard anything about the inadequacy of facilities at that centre. It was not government run. She also challenged the assertion that the children had not been brought to court as mandated within the requisite time frame after being taken by the Department of Social Welfare. She stressed that investigations were in progress.</p> <p>In dealing with the application on whether to grant interim custody, I acknowledged the starting point that the High Court is the upper guardian of all children. Indeed our constitution could not be clearer in s 81(3):</p> <p>“Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”</p> <p>Being that as it may, the role of the High Court in particular must not be understood as that of usurper of the judicial functions of lower courts. It must be understood as that of upper guardian in the sense of doing at all times, that which is in the best of the children. This would also include the best administrative action towards that goal. Therefore upon hearing the parties, in dismissing the application, the reason I gave was that although the High Court is the upper guardian of all children and even more so for children in care, it still remains important for lower courts to be permitted to play their role unfettered. In this instance were the provisional order for temporary custody to have been given placing by the children in X’s care before the custody hearing, this would likely compromise those proceedings. There would be nothing to stop X from asserting her suitability on the strength of an interim order of this court. This would cloud issues and would be undesirable.</p> <p>What needs to be understood in such contexts, is that the High Court will not flex its muscles as upper guardian simply because it is the higher court. I can do no more than highlight herein what was stated in <em>Kunz</em> v<em> Pretorius </em>1982 (2) ZLR 24 (HC) that the question is not one of which court is senior but which course is more conducive to stability of administration. This does not mean non-intervention in ongoing proceedings before lower courts that involve children at all times. It does, however, mean that the High Court must be able to assess and balance all considerations in protecting children effectively in every case before doing so. In other, words, if need be it will do so very sparingly given that the avenue of review or appeal remain. Furthermore, in the case of children being place in care the order would need to be confirmed by this court.</p> <p>In this instance, there was no tangible evidence placed before me to support the allegations of hardship. As the custody hearing was only a few days away, the best course of action in the interests of the children was to allow the matter to be fully ventilated at the Children’s Court.</p> <p>It was for these reasons that I dismissed the urgent application that was before me with no order as to costs.</p> <p> </p> <p><em>Masawi &amp; Partners: </em>Applicant’s Legal Practitioners<br /> <em>Civil Division of the Attorney General’s Office: </em>2nd and 3rd Respondent’s Legal Practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/636/2020-zwhhc-636.doc" type="application/msword; length=39424">2020-zwhhc-636.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/636/2020-zwhhc-636.pdf" type="application/pdf; length=218170">2020-zwhhc-636.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/custody-child">custody of child</a></li></ul></span> Fri, 16 Oct 2020 09:33:05 +0000 Sandra 9867 at https://old.zimlii.org Mukwindidza v Akram & Anor (HH 555-20, HC 8928/19) [2020] ZWHHC 555 (28 August 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/555 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>OLGA MUKWINDIDZA</p> <p>versus</p> <p>MUHAMMAD AKRAM</p> <p>and</p> <p>MAGISTRATE B PABWE N.O (MAINTENANCE COURT)</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 25 June 2020 &amp; 28 August 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>J Mafume</em>, for the applicant</p> <p><em>R Mahuni.</em>, for the respondent</p> <p> </p> <p> </p> <p>            MANGOTA J: On 3 June 2019 I reviewed the maintenance order which the second respondent issued. I reviewed it in favour of the applicant.</p> <p>            On 5 June, 2019 the first respondent appealed my decision. He did so under SC 316/19.</p> <p>            On 31 October, 2019 the applicant applied for leave to execute pending appeal. Her view was that the appeal of the first respondent was frivolous, vexatious and lacked merit.</p> <p>            The application for leave to execute was allocated to me. I instructed the registrar to serve notices of set down of the application on the parties. The registrar, through the sheriff, served notices of set down of the application on the parties.</p> <p>            On receipt of the notice of set down, the first respondent’s legal practitioners wrote a letter to the legal practitioners of the applicant. They copied the same to the registrar of this court. The letter reads, in the relevant part, as follows:</p> <p>            “It appears from the notice of set down that the matter is scheduled for hearing before Justice             Mangota, the same judge who adjudicated on the matter now subject of appeal. In that regard we     wish to advise you that we have been instructed by our client to seek the recusal of the Honourable         Justice Mangota from dealing with the present matter.”</p> <p> </p> <p>            The registrar referred the letter of the first respondent to me for my information. I returned the record of the parties’ case to the registrar for allocation to another judge. On consultation with colleague judges, it became apparent to me that a request for recusal is not made through a letter which the first respondent addressed to the legal practitioners of the applicant and copied to the High Court registrar. I became alive to the fact that a party who seeks my recusal must make a formal application giving reasons for the same.</p> <p>            It is in the stated set of circumstances that I recalled the file from registry and proceeded to re-set the application down for hearing.</p> <p>            When the second notice of set down was served upon the first respondent, his legal practitioner wrote to the High Court Registrar. He did so on 15 June, 2020. He stated, in the same, that he was surprised that the application had been re-set down before me. He requested the registrar to place his letter which he copied to the legal practitioners of the applicant before me for what he termed further directions.</p> <p>            On the set down date, the legal practitioner of the first respondent made two oral applications. He applied for:</p> <p>            (i)         my recusal from hearing the application for execution pending appeal – and</p> <p>            (ii)        upliftment of the bar which became operative against him when the first respondent                      failed to file his Heads within the time which the rules of court prescribed.</p> <p>            I heard the first application. I delivered an <em>ex tempore</em> judgment in terms of which I dismissed it with costs. I heard the second application and reserved judgment.</p> <p>            I dismissed the recusal application which was based on the first respondent’s feelings. His view, as gleaned from the submissions of his legal practitioners, was that, because I decided the application for review in favour of the applicant which decision he appealed I would not deal with the application for execution pending appeal in a fair manner. He submitted that the first respondent’s preference was that the application for execution pending appeal be heard by another judge. He stated that, if another judge were to hear the application, the first respondent would feel that justice had not been tempered with.</p> <p>            I refused to entertain the application which the first respondent anchored on his feelings. I agreed with the submissions of the applicant’s legal practitioners who stated, in opposition to the application, that the first respondent should have filed a written application stating his reasons for recusal clearly, cogently and concisely. He insisted, correctly so, that an application which is premised on the feelings of a litigant for a case which is before the court would create insurmountable challenges for the court and the other party.</p> <p>            The above-stated position is a <em>fortiori </em>where, as in <em>casu, </em>the legal practitioner of the first respondent dissociated himself from the views of his client. He submitted that he advised the first respondent that a judicial officer is a trained lawyer who appreciated the difference of matters which parties place before him. He submitted further, that his view was that I would not be biased against the first respondent who, contrary to his advice, continued to entertain the view that he would not have a fair hearing if I proceeded to hear the application for leave to execute pending appeal.</p> <p>            The first respondent placed his legal practitioner into an invidious position. He allowed him to be torn between his duty to the court and his duty to his client. The advice which he received from his legal practitioner should have put his mind to rest. He should have realised that if I exhibited any form of bias as his unfounded fears suggest, many options were open to him to pursue in an effort to challenge and correct the same. His unfounded apprehension did not warrant  my recusal from hearing the application which the applicant and him placed before me. His apprehension can, for lack of a better phrase, be likened to that of a person who runs away from his own shadow which he sees as a monster which is ready to tear him to pieces when it is not such and, even if it is, it has no capacity to devour him at all.</p> <p>            I agreed with the submissions of counsel for the applicant who stated that if the approach of the first respondent to maintenance matters, one being the application which the parties placed before me, were to prevail, the magistrates’ court and the children’s court would not be functional. He submitted, correctly so, that maintenance matters routinely come before the same magistrates in one form or the other amongst which are such applications as are for maintenance, variation and/or discharge of the same. He insisted that for the first respondent to simply allege that the judge who reviewed the order of the magistrate in favour of the applicant would be biased against him when he hears the application for execution pending appeal is not far from setting the standard of bias far too low. He cited two branches of this court where two judges sit in Masvingo and Mutare. He submitted, in my view correctly, that the same judges would hear the parties who appeared before them over and over again. He insisted that the approach which the fist respondent took in <em>casu </em>would make justice delivery impossible at court stations which are manned by two or three judges of this court. He stated that a party would simply tell the judge that “I appeared before you before and I have a reasonable fear of bias on your part” as a result of which the court would come to a standstill position where such an eventuality occurred.</p> <p>            I am indebted to the applicant who furnished me the case of <em>Pechi Investments (Pvt) Ltd</em> v <em>Maurice Mutatsi Nyamunda</em>, HB 142/10. The case discuses what the applicant in an application for recusal must establish to succeed on the same. It states at p 10 of the cyclostyled judgment that:</p> <p>            “A test of judicial bias was laid down in <em>Black </em> v <em>Pretoria Rent Board 1943</em> (P) 246 where it was     stated that the test of judicial bias is not whether there has been actual bias, but whether there is a   real likelihood of bias, or whether a reasonable man in all the circumstances might suppose that           there was an improper interference with the course of justice” (Emphasis added)</p> <p> </p> <p>            It is pertinent to note, from a reading of decided case authorities in which recusal was /is discussed that to succeed, the applicant in a recusal application must show, on an objective test, that the judicial officer should recuse himself. He must, in short, proffer clear and cogent reasons which satisfies a reasonable litigant or any reasonable man of the level of thinking of the reasonable litigant that the judge must recuse himself. He fails to prove the requirements for recusal where, as in <em>casu</em>, his application is premised on feelings or subjective views which are, if anything, difficult, if not impossible, to prove.</p> <p>            The test for bias is the reasonableness of the litigant. In <em>Sitwana and Another</em> v <em>Mnagithate, District of Picketber and Another</em> 2003 (5) SA @ 603 – 604 Foxcroft j ably stated that:</p> <p>            “…..The common law basis of the duty of a judicial officer in certain circumstances to recuse             himself was fully examined in the cases of <em>S</em> v <em>Radebe</em> 1973(1) SA 796 (A) and <em>South African             Motor Acceptance Corporation </em>v <em>Oberholzer, </em>1974 (4) SA 808 (T). Broadly speaking, the duty of             recusal arises where it appears that the judicial officer has an interest in the case or where there is    some other reasonable ground for believing that there is a likelihood of bias on the part of the       judicial officer: that is that he will not adjudicate impartially. The matter must be regarded from   the point of view of the reasonable litigant and the test is an objective one. The fact that in reality            the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable         perception of the parties as to his impartiality that is important.”</p> <p> </p> <p>It follows from the foregoing that not only must the person apprehending bias be a</p> <p>reasonable person, but the apprehension itself must, in the circumstances, be reasonable. The first respondent did not directly impute any bias on my part. Nor was he able to show that I have an interest in the case of the applicant and him. All what he stated is that I reviewed their case in the past and decided for the applicant. That <em>per se</em> does not point to any bias on my part. It does not do so from an objective assessment of the first respondent’s statement.</p> <p>            The first respondent‘s subjective view does not qualify to show that he established the requirements for my recusal. It is for the mentioned reason, if for no other, that I remained constrained to agree with his application for my recusal.  </p> <p>            The record shows that the applicant served her Heads on the first respondent on 4 February, 2020. It shows, further, that the first respondent filed his Heads outside the<em> dies induciae</em>. He should have filed them on 18 February, 2020. He filed them on 3 March, 2020 when the bar which is stated in the rules of court had become operative against him.</p> <p>            The late filing of Heads prompted the first respondent to file his second application. He applied for upliftment of the bar. He submitted, through counsel, that when he received the applicant’s Heads the applicant and him were involved in two applications. These, according to him, were the application: </p> <p>            (a)        for execution pending appeal – and</p> <p>            (b)        to compel the Sheriff to sell the applicant’s immovable property.</p> <p>            Counsel for him submitted that he misfiled the applicant’s Heads. He stated that, when the error which he made came to his knowledge, he filed his client’s Heads well before the five (5) day period which is stipulated in the proviso to para (b) of subr (2) of r 238 of the High Court Rules, 1971.</p> <p>            The submissions of the applicant on the issue of the bar were to the contrary. She maintained the view that the first respondent was barred and was, therefore, not before the court until he successfully dealt with the issue of the bar. She insisted that the proviso upon which the first respondent placed reliance did not suspend the ten-day period which is stipulated in the rules in terms of which the respondent should have filed its Heads. The proviso, according to her understanding, would only apply where the ten-day period during which the respondent’s Heads should have been filed overlaps with the set down date.</p> <p>            The position which the first respondent took on this aspect of the case created an unpalatable situation for him. He was, on the one hand, asserting that he did not file his Heads within the <em>dies induciae</em> and the same were, therefore, not before me. He was, on the other hand, stating that, because he filed his Heads five – days before the date of the hearing of the application, his Heads were, in terms of the proviso, properly before me. He, in short, was approbating and reprobating.</p> <p>            I drew counsel’s attention to the fact that he was blowing both hot and cold. I made him to understand that he was stating in one and the same breadth that the first respondent’s Heads were properly and improperly filed. I invited him to make a choice between applying for upliftment of the bar and standing by the proviso. He abandoned his application for upliftment of the bar. He submitted that the Heads which he filed five-days before the date of the hearing of the application were properly before me. He insisted that the proviso in terms of which he filed them adequately covered the situation of the first respondent.</p> <p>            The above-stated matter prompted me to reserve judgment on the mentioned aspect of the case. I decided to write a judgment which would clear the misunderstanding which the first respondent appeared to be suffering from. The judgment, in my respectful view, would be of immense benefit not only to the first respondent but also to any respondent who may be tempted to follow his line of thinking in future especially in so far as the filing of Heads by a party, the respondent in particular, is concerned.</p> <p>            The proviso which is mentioned in para (ii) of subr (2a) of rule 238 of the rules of court must be placed into context. The context is that the proviso is only but an exception to the general rule. It cannot, therefore, operate as the general rule.</p> <p>            It stands to reason that where both the applicant and the respondent are legally represented, Heads for each party must be filed with the registrar of this court. The applicant, for instance, cannot set the application down for hearing unless and until he:</p> <p>            (a)        files the applicant’s Heads with the registrar– and</p> <p>            (b)        delivers a copy of the applicant’s Heads to the respondent – and</p> <p>(c)        files with the registrar proof of such delivery of the applicant’s Heads to the respondent.</p> <p>Subrule (2) of r 238 of the High Court Rules, 1971 places a duty on the legal practitioner</p> <p>of the respondent who has been served with the applicant’s Heads to file with the High Court registrar the respondent’s Heads of Argument. These, in terms of subr (2a) of r 238 of the rules of court, should be filed not more than ten days after the applicant’s Heads were delivered to the respondent. Where the respondent fails to file his Heads within the <em>dies induciae</em> of ten days of his receipt of the applicant’s Heads, the respondent shall, in terms of subr (2b) of r 238, be barred and, where the bar remains operative, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.</p> <p>            Subrule (2a) of r 238 of the High Court Rules, 1971 is the principal rule. It obligates a legally represented respondent to file his Heads within ten days of his receipt of the applicant’s Heads. The principal rule and the proviso are reconciled by practice. The question which begs the answer relates to the circumstances under which the proviso – the exception to the main rule – becomes operational.</p> <p>            In the olden days where courts were less congested, matters could be fast-tracked. In such circumstances, the respondent would find himself without ten days in respect of which he would file his Heads. Under the stated set of circumstances, the respondent was offered a leeway to file his Heads at least five days before the date of hearing of the application.</p> <p>            The case of <em>Vera </em>v <em>Imperial Asset Management</em> 2006 (1) ZLR 436 (H) offers clarity to the meaning and import of the proviso. It reads, in the relevant part, as follows:</p> <p>“The operative part of the rule is not to be found in the proviso. It is in the main provision. It is to the effect that the respondent is to file his or her Heads within ten days of being served with the applicant’s Heads. That is the immutable rule. However, in the event that the respondent has been served with the applicant’s Heads close to the set down date, he or she shall not have the benefit of the full ten – day period within which to file and serve Heads as stipulated in the main provision but shall have to do so five clear days before the set down date. This is the import of the proviso to the main provision of the rule.”            </p> <p> </p> <p>            The reasoning of the court in <em>Vera</em> v <em>Imperial Asset Management </em>was followed closely in <em>Assistant Master &amp; Anor </em>v <em>Ellington Trading (Pvt) Ltd, </em>2013 (1) ZLR 332 (H) where Mutema J held that:</p> <p>“the respondent is to file his Heads within ten – days of being served with the applicant’s Heads. If the respondent has been served with the applicant’s Heads close to the set down date, he shall not have the benefit of the full ten day period within which to file and serve his Heads but he must do so five clear days before the set down date.”</p> <p> </p> <p>The applicant and the first respondent were, and are, legally represented in the main</p> <p>matter. The application for leave to execute pending appeal was initially set down for hearing at 10 am of 2 June, 2020. The first respondent received the applicant’s Heads on 4 February, 2020. He, therefore, had all the time in the world to file his Heads within the <em>dies induciae</em> which is stipulated in subr (2a) of r 238 of the rules of court. He, in effect, should have filed his Heads on 18 February, 2020. He did not do so and the bar which is mentioned in subr (2b) of rule 238 became operative as against him with effect from 19 February, 2020 to date. His case falls outside the proviso upon which he places reliance. He was not served with the applicant’s Heads close to the set down date. He received the applicant’s Heads some four months before the set down date. The proviso is, therefore, not available to him.</p> <p>The first respondent’s decision to abandon his application for upliftment of the bar dealt</p> <p>him a severe blow. His Heads are not before me and the bar remains operative against him. He, in the stated set of circumstances, made up his mind to, as it were, hand judgment to the applicant on a silver platter. He did not, in short, oppose the application to execute pending appeal.</p> <p>            The applicant, in the circumstances of the present case, proved her case on a balance of probabilities. The application is, in the result, granted as prayed in the draft order.</p> <p><em>Mafume Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Mahuni, Gidiri Law Chambers</em>, 1st respondent’s legal practitioners</p> <p> </p> <p> </p> <p>       </p> <p>               </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/555/2020-zwhhc-555.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24809">2020-zwhhc-555.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/555/2020-zwhhc-555.pdf" type="application/pdf; length=243032">2020-zwhhc-555.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/children%E2%80%99s-court-0">Children’s court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-jurisdiction">Court jurisdiction</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/recusal">RECUSAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/allegation-bias-recusal">Allegation of bias (RECUSAL)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-recusal">Application for recusal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/142">Pechi Investments (Pvt) Ltd v Nyamuda t/a Ebunandini Restaurant (Case No. HC 167/09) [2010] ZWBHC 142 (17 November 2010);</a></div></div></div> Thu, 10 Sep 2020 12:34:40 +0000 Sandra 9854 at https://old.zimlii.org Chiwenga v Mubaiwa (SC 86-20, Civil Appeal No. SC 26/20) [2020] ZWSC 86 (25 June 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/86 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE </strong><strong>  (75)</strong></p> <p> </p> <p><strong>CONSTANTINE     GUVHEYA     DOMINIC     CHIWENGA</strong></p> <p><strong>                                                                          v</strong></p> <p><strong>MARRY     MUBAIWA</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, GARWE JA &amp; BHUNU JA</strong></p> <p><strong>HARARE:  MARCH 16, 2020 AND JUNE 25, 2020</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>L. Uriri</em> with <em>W. T. Manase</em>, for the appellant</p> <p><em>S. M. Hashiti</em> with <em>W. Nyamakura</em> &amp; <em>O. Mbuyisa</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ: GARWE JA: BHUNU JA:</strong>     This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court <em>a quo’s</em> order awarding custody of the parties’ three minor children to the respondent upon the separation of the parties.</p> <p> </p> <p>The appellant also challenges the jurisdiction of the court <em>a quo, </em>and the urgency and validity of the interdict granted against him in respect of the parties’ disputed properties.</p> <p> </p> <p>Although the parties were also quarrelling about the respondent’s right to access the matrimonial home, that dispute has since been resolved by the court <em>a quo </em>in the appellant’s favour. That issue consequently falls away.</p> <p>The respondent has in turn abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.</p> <p> </p> <p><strong>CHOICE OF LAW</strong></p> <p>Although the parties were married under customary law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of general law. It is convenient that their dispute be regulated and determined in terms of general law because of their sophisticated way of life and ownership of immovable private property.</p> <p> </p> <p>As the concept of private ownership of immovable property is unknown at customary law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than general law. Thus, the appropriate applicable law in this case is the general law. See <em>Mandava v Chasekwa</em></p> <p> </p> <p><strong>BRIEF SUMMARY OF THE CASE</strong>.</p> <p>The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest Tendai Dominique Chiwenga is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.</p> <p> </p> <p>During happier times the parties resided at their matrimonial home situate at number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects and other paraphernalia.  </p> <p> </p> <p>It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as ‘<em>gupuro</em>’. In her papers before this Court and in    para 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant’s wife. The divorce issue therefore appears not to have been resolved. The appellant has nevertheless now issued summons against her in the court <em>a quo</em> under case number HC 9837/19 claiming custody of the three minor children in terms of s 4 of the Guardianship of minors Act [<em>Chapter 5:08</em>] and division of the matrimonial property acquired during the subsistence of the marriage.</p> <p> </p> <p>The current proceedings and the parties’ relationship are severely strained, acrimonious and discordant. This is mainly because of the respondent’s arrest on multiple charges of attempted murder of the appellant, fraud, money laundering and contravention of the Exchange Control Regulations.</p> <p> </p> <p>Upon her arrest, the respondent was detained in custody for a period spanning 3 weeks from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession and administration of her personal property and effects. At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent’s arrest and detention in custody. In the absence of the respondent, he then assumed <em>de facto</em> custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects and other paraphernalia. His conduct in this respect was perfectly lawful and undisputed at the material time.</p> <p> </p> <p>On 6 January 2020, the court <em>a quo</em> granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison on bail she returned to the matrimonial home to assume residence as ordered by the court <em>a quo</em>. State security guards stationed at the home denied her access to the matrimonial home.</p> <p> </p> <p>The same scenario played out when she sought access to Orchid Gardens which was also guarded by state security guards. They also denied her access to the premises.</p> <p> </p> <p>She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.</p> <p> </p> <p><strong>THE RESPONDENT’S CLAIM <em>A QUO</em></strong></p> <p>Under the circumstances the respondent submits that she had no option but to approach the appropriate court on an urgent basis for relief. To that end, she lodged an urgent application in the court <em>a quo</em> for a ‘provisional spoliation order’ directing the appellant to grant her the following interim relief on a <em>prima facie</em> basis pending the return date for a final order:</p> <ol> <li>Access to the matrimonial home.</li> <li>Access to and use of her personal motor vehicles.</li> <li>Access to her clothing, personal goods and effects.</li> <li>Return of her safes containing her personal property.</li> <li>An order directing the appellant to return the 3 minor children of the marriage to the respondent.</li> <li>An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.</li> <li>An order denying the appellant access to the court until he has purged his dirty hands.</li> <li>An order directing the Sheriff with the assistance of the police to execute the court <em>a quo’s</em> order forthwith.</li> </ol> <p> </p> <p>In the final order the respondent sought the following relief:</p> <ol> <li>That the appellant be interdicted and restrained from interfering with respondent’s use and enjoyment of the matrimonial home and her business premises at Orchid Gardens, pending the conclusion of the matrimonial proceedings under case number HC 9837/19.</li> <li>That the appellant be restrained from removing the 3 minor children of the marriage from the applicant’s custody.</li> <li>That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.</li> </ol> <p> </p> <p>Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.</p> <p> </p> <p>Basically, the respondent’s complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children and property.</p> <p> </p> <p><strong>THE APPELLANT’S DEFENCE <em>A QUO</em></strong></p> <p>The appellant objected to the respondent’s claim that the matter was urgent. He further questioned the assumption of jurisdiction by the court <em>a quo </em>as usurping the function of the Children’s Court which is specifically conferred with the jurisdiction in terms of s 5 of the Guardianship of Minors Act [<em>Chapter 5:08</em>] to determine the question of custody of minor children when spouses begin to live apart.</p> <p> </p> <p>He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed <em>de facto </em>custody of the children and possession of the disputed property while she was in prison.</p> <p> </p> <p>The appellant denied having given the guards at the matrimonial home and Orchid Gardens any orders to deny the respondent access to the premises. His submission to the effect that he had no control over the guards was not rebutted.</p> <p> </p> <p>Placing reliance on the South African case of <em>Fraser v Children’s Court, Pretoria North,</em> the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.</p> <p> </p> <p>It was his further submission that throughout the whole episode, he acted lawfully as a diligent <em>pater familias.</em> At para 3 (c) of his opposing affidavit in the court <em>a quo,</em> the appellant makes the valid point that as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred further that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.</p> <p> </p> <p><strong>THE COURT <em>A QUO’S </em>FINDINGS AND DETERMINATION.</strong></p> <p>On the basis of the above summation of evidence and arguments the court <em>a quo</em> found that:</p> <ul> <li>the matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent, and</li> <li>notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.</li> </ul> <p> </p> <p>The court <em>a quo</em> proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a <em>prima facie </em>basis:</p> <p>“1.   The respondent (<em>Constantino</em>) is hereby ordered to restore custody of the minor children namely, <em>Tendai Dominique Chiwenga</em> (Born 4 November2011), <em>Christian Tawanazororo Chiwenga</em> (Born 5 November 2012) and <em>Michael Alexander Tadisiswa Chiwenga</em> (Born 13 February 2014) to the custody of the applicant (<em>Marry</em>) within 24 hours of this order</p> <p>2.     The respondent (<em>Constantino</em>) is hereby interdicted and restrained from interfering with applicant’s (<em>Marry</em>) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Borrowdale, Harare.</p> <p>3.     The respondent (<em>Constantino</em>) is hereby interdicted and restrained from interfering with applicant’s (<em>Marry</em>) access to, use and enjoyment of the property known as Orchid Gardens Domboshawa, Harare.</p> <p>4.     The respondent (<em>Constantino</em>) is hereby interdicted and restrained from interfering with applicant’s (<em>Marry</em>) access to, use and enjoyment of the motor vehicles, namely Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).</p> <p>5.     Respondent (<em>Constantino</em>) is interdicted and restrained from interfering with applicant’s (<em>Marry</em>) access and or possession of her clothing.</p> <p>6.     The respondent (<em>Constantino</em>) is ordered to pay applicant’s (<em>Marry</em>) costs of suit.”</p> <p> </p> <p> </p> <p> </p> <p><strong>GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION</strong></p> <p>Aggrieved by the above order, the appellant appealed to this Court on                   10 grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the 10 grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;</p> <ol> <li> </li> </ol> <p>2. Whether or not it was competent for the court <em>a quo</em> to grant a final interdict when the respondent had asked for a ‘provisional’ spoliation order.</p> <p>3. Whether the court <em>a quo</em> had jurisdiction to determine the question of custody of the 3 minor children in light of the provisions of s 5 of the Act.          </p> <p> </p> <p><strong>APPICATION OF THE LAW TO THE FACTS.</strong></p> <p><strong>Whether the court <em>a quo</em> correctly determined that the matter was urgent</strong></p> <p> </p> <p>As previously stated, the court <em>a quo </em>found that the application was urgent on the basis that it involved the welfare of minor children and that spoliation matters are generally treated as urgent. Placing reliance on the well-known case of <em>Kuwarega v Registrar General and another, </em>the learned judge <em>a quo</em> made a factual finding that the matter was urgent and could not wait in the queue of ordinary cases. It is trite that such a factual finding involving the exercise of discretion can only be upset based on irrationality. See  <em>Barros and Another v Chimuponda. </em></p> <p> </p> <p>It is common knowledge that minor children are a vulnerable class of persons under the special care of the High Court as their upper guardian. The same applies to spoliation, a remedy designed to avert self-help in a democratic civilized society. The remedy forbids the law of the jungle where survival of the fittest reigns supreme. Thus, the courts will quickly come to the aide of the vulnerable and the weak to restore custody and possession where one is unlawfully deprived of the same by the strong and valiant.</p> <p> </p> <p>In this case the respondent approached the court <em>a quo </em>complaining that she had been unlawfully deprived of the custody of her children and possession of her property by her powerful husband abusing state power. That being the case, the court <em>a quo</em> cannot be faulted for granting her application for an urgent hearing. Doing otherwise would have amounted to abdicating its duty as the upper guardian of minor children and protector of the weak and vulnerable. In any case, an application for spoliation is generally treated as urgent because of the need to stop unlawful conduct pending the determination of the parties’ competing rights.</p> <p>Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is rightly or wrongly allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.</p> <p> </p> <p>In <em>Nyakutombwa Mugabe Legal Counsel v Mutasa &amp; Ors</em> this Court held that a finding of urgency by a court on its own cannot constitute a substantive ground of appeal. Thus the appeal against urgency was ill conceived and misplaced.</p> <p> </p> <p>The court therefore finds no merit in the appellants’ complaint that the matter was improperly heard as an urgent matter. The court now turns to determine the appeal on the remaining two issues.</p> <p> </p> <p><strong>WHETHER OR NOT IT WAS COMPETENT FOR THE COURT <em>A QUO</em> TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?</strong></p> <p>Despite the respondent having asked for a ‘provisional’ spoliation order based on a <em>prima facie</em> case, the learned judge in the court <em>a quo</em> went on to grant an interdict which neither party had asked for nor pleaded. The two critical questions to be answered are:</p> <p>1.   Was it competent at law for the court <em>a quo</em> to grant the respondent a   final order when her claim was for a ‘provisional’ spoliation order? In any case was the provisional order sought a competent remedy?</p> <p>2.  What were the parties’ rights of custody of their three minor children at the time of separation?</p> <p> </p> <p>The court now proceeds to deal with the two questions in turn.</p> <p> </p> <p><strong>Whether it was competent at law for the court <em>a quo</em> to grant the respondent an interdict when she had asked for a ‘provisional’</strong> <strong>spoliation order?</strong></p> <p>In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court <em>a quo</em> and the respondent’s legal practitioners were labouring under some serious misapprehension of the law in this regard.</p> <p> </p> <p><strong>THE APPLICABLE LAW</strong></p> <p>The answer to this question is a well beaten path at home, regionally and abroad. In this judgment the word ‘injunction' is used interchangeably with the term ‘<em>interdict</em>’ with reference to English and Roman Dutch Law, respectively.</p> <p> </p> <p>The respondent approached the court <em>a quo</em> seeking a ‘provisional’ spoliation order on a <em>prima facie </em>basis<em>. </em>It is however trite that a spoliation order being final in effect cannot be granted as an interim order on the evidence of a <em>prima facie</em> right, as happened in this case. See <em>Blue Ranges Estates (Pvt) Ltd v Muduviri &amp; Anor</em>. On this basis, the respondent’s quest for a ‘provisional’ spoliation order, was misplaced and bad at law. The court expects legal practitioners to place before it, cases that are founded on sound substantive and procedural law. The court cannot and should not be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable law and procedure.  </p> <p> </p> <p>The definition and purpose of a provisional order is diametrically different from that of a final order. C. B Prest in his book, <em>The Law and Practice of Interdicts </em>defines and explains the purpose of a provisional order as follows;</p> <p>“A provisional order is a remedy by way of an interdict which is intended to prohibit all <em>prima facie</em> illegitimate activities. By its very nature it is both temporary and provisional, providing (<em>interim</em>) relief which serves to guard the applicant against irreparable harm which may befall him, her or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to”</p> <p> </p> <p> </p> <p>       </p> <p>In the South African case of <em>Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors </em>the court clarified that its purpose is to preserve the status <em>quo</em> pending the return day.</p> <p> </p> <p>Australia has intrinsically the same definition and purpose. In <em>Re Brian Charles Gluestein; Exparte Anthony </em>the court said:</p> <p>“Relatively, the purpose of an interlocutory <em>injunction</em> is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.”</p> <p> </p> <p> </p> <p> </p> <p>Under English law, the law remains virtually the same. In <em>Attorney General V Punch Limited and Anor</em>, the court held that:</p> <p>“The purpose for which a court grants an interlocutory injunction can be stated quite simply. In <em>American Cyanamid Co v Ethicon Ltd</em> LORD DIPLOCK described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and where possible to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court.”</p> <p> </p> <p> </p> <p> </p> <p>The purpose of a provisional order is the same in our jurisdiction as in the other jurisdictions stated above. The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given the court issuing the order becomes <em>functos officio </em>and it cannot revisit the same issues at a later date.</p> <p>  </p> <p>It is settled law that the standard of proof for a provisional order is different from that of a final order. A provisional order is established on a <em>prima</em> <em>facie </em>basis because it is merely a caretaker temporary order pending the final determination of the dispute on the return date<strong>. </strong>The parties have an opportunity to argue the matter again on the return date.</p> <p> </p> <p>On the other hand a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.</p> <p> </p> <p>It so happens that lawyers often seek a final order disguised as a provisional order as happened in the well-known case of <em>Blue Ranges Estates (Pvt) Ltd v Muduviri &amp; Anor</em> and in this case. That case lays down the test for distinguishing a provisional order from a final order despite the presentation of a final order disguised as a provisional order. In that case MALABA DCJ as he then was had this to say at p 376:</p> <p><em>“</em>To determine the matter one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect of which relief is sought from the court…</p> <p>For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.</p> <p>… The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.”</p> <p> </p> <p> </p> <p>In the South African case of Pretoria Racing <em>Club v Van Pietersen</em>  SMITH J had occasion to remark that:</p> <p>“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the Judgment of ROMER LG in RE Herbet Reeves &amp; Co [1902] 1 Ch 29”</p> <p> </p> <p> </p> <p> </p> <p>The respondent’s object and purpose in filing the urgent chamber application was to obtain custody of her minor children, access to the matrimonial home and repossession of the disputed property. It is self-evident that the interim relief she sought was crafted in such a way that if granted she would get the primary relief sought. Through the interim relief she would have obtained access to the matrimonial home, custody of her children and disputed property. Such an order does not fit the definition of an interim order. It is nothing other than a final order disguised as a provisional order.</p> <p> </p> <p>The learned judge <em>a quo</em>, perhaps having realised that the interim order sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent. By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.</p> <p> </p> <p>The net result was that the respondent was granted a final interdict when she had asked for a provisional order after pleading a <em>prima facie</em> right.</p> <p> </p> <p>In <em>Nzara &amp; Ors v Kashumba NO &amp; Ors</em>, this Court held that:</p> <p>“It is clear from the court a quo’s orders that some of the orders it   granted had not been sought by the other party. It is also clear that           parties had not made any submissions for and against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties’ views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence lead.</p> <p>The function of the court is to determine the disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a    factual issue exercises the court’s mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter”</p> <p> </p> <p> </p> <p>It is therefore settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his/her own and determining issues not pleaded or raised by the parties constitutes a fatal procedural irregularity.</p> <p> </p> <p>When this is taken together with the fact that the respondent sought relief that was incompetent at law, in respect of her claims to property and custody of the children, there can be no doubt that the entire proceedings before the court <em>a quo</em> were a nullity <em>ab initio.</em> The appropriate remedy would therefore, have been to strike out the entire chamber application without any further ado.   </p> <p>The issue concerning the custody of the three minor children however calls for further comment. This is in view of the supremacy of the doctrine of the best interests of minor children, <em>vis a vis</em> the incompetent procedure adopted by the respondent in seeking custody of her children</p> <p> </p> <p><strong>CUSTODY OF THE THREE MINOR CHILDREN</strong></p> <p>The respondent’s claim was for a ‘provisional’ spoliation order for the repossession of custody of her 3 minor children and property allegedly forcibly and unlawfully taken away from her by the appellant against her will.</p> <p>  </p> <p>The appellant questioned the jurisdiction of the court <em>a quo</em> to entertain the issue of custody given that s 5 of the Guardianship of Minors Act [<em>Chapter 5:08</em>] (‘the Act’) specifically confers jurisdiction on the Children’s Court in matters of this nature. It is however pertinent to note that, although the Children’s Court is conferred with the jurisdiction to determine the question of custody upon separation of a child’s parents, the High court as the upper guardian of all minors has overall inherent jurisdiction at every stage during the child’s minority. This is because the section does not expressly oust the jurisdiction of the High Court. Ordinarily it retains its inherent jurisdiction to hear and determine matters of this nature at its discretion. Where however the proceedings before the court are a nullity, the court is stripped of its jurisdiction over the matter. It cannot therefore use the supremacy of the best interests of the children to found jurisdiction to grant spoliatory relief as happened in this case.</p> <p> </p> <p>The court notes in passing that the application makes no distinction between the recovery of custody of the minor children and repossession of property. It treats children as if they were pieces of property that can be the subject of a spoliation order. Biblical Solomonic wisdom, however, instructs that a child cannot be treated as common property in a tussle for custody between adults. For that reason, the law maker has laid out elaborate laws and procedures for the regulation of issues to do with custody and guardianship of minor children. The applicable law regulating the custody of children where their parents begin to live apart is to be found under s 5 of the Guardianship of Minors Act. There was thus no call for the respondent to reach beyond and outside this law, to found a claim for custody of her children.</p> <p> </p> <p>The section provides as follows:</p> <p><strong>5 Special provisions relating to custody of minors</strong></p> <p>(1)      Where either of the parents of a minor leaves the other and such parents commence to         live apart, the mother of that minor shall have the sole custody of that minor until an      order regulating the custody of that minor is made under section four or this section or     by a superior court such as is referred to in subparagraph (ii) of paragraph</p> <p> </p> <p>                        (<em>a</em>) of subsection (7).</p> <p>(2)        Where —</p> <p>(<em>a</em>)      the mother of a minor has the sole custody of that minor in terms of subsection (1); and</p> <p> </p> <p>(<em>b</em>)      the father or some other person removes the minor from the custody of the mother or otherwise denies the mother the custody of that minor; the mother may apply to a children’s court for an order declaring that she has the sole custody of that minor in terms of subsection (1) and, upon such application, the children’s court may make an order declaring that the mother has the sole custody of that minor and, if necessary, directing the father or, as the case may be, the other person to return that minor to the custody of the mother,   </p> <p>                            (Our emphasis)</p> <p> </p> <p>Thus the section automatically confers custody of the minor children on the respondent by operation of law when she began to live apart from the appellant. There is therefore no truth in the respondent’s averment in para 10.3 of her founding affidavit that she had no alternative remedy. Section 5 of the Act clearly provides a less onerous remedy heavily weighted in her favour. It was therefore remiss and the height of folly for counsel for the respondent to rely on the inappropriate law of ‘provisional’ spoliation to claim custody of the minor children.</p> <p> </p> <p>One difficulty with the respondent’s claim for custody under spoliation, misguided though it was, is that in this Court she recanted and retracted her earlier accusation that the appellant had unlawfully abducted the three minor children from her. By the same token she withdrew her allegation that the appellant had approached the court with dirty hands.</p> <p> </p> <p>These concessions mean that the appellant did not unlawfully dispossess the respondent of the custody of the three minor children. The retraction just referred to is consistent with the appellant’s defence that he did not unlawfully dispossess the respondent of the custody of the children. The concessions therefore absolve the appellant of any wrong doing regarding the manner in which he assumed custody of the minor children and disputed property. The allegation that the appellant abused his position as vice president is therefore misplaced and without foundation.</p> <p> </p> <p>The requirements for a valid spoliation claim are well known as spelt out in <em>Botha and Another v Barret</em> where the learned Chief Justice GUBBAY had occasion to remark that:</p> <p>“It is clear law that in order to obtain a spoliation order, two allegations must be made and proved. These are:</p> <p> </p> <p>(a) That the appellant was in peaceful and undisturbed possession of the property and</p> <p>(b) That respondent deprived him of the possession forcibly or wrongfully against his consent”.</p> <p> </p> <p> </p> <p>The respondent’s claim under spoliation falters at the very first test in that the remedy seeks to protect possession of property in the main and not human beings.  Secondly, unlawful dispossession being a necessary ingredient of the delictual claim of spoliation, the admitted absence of wrongful dispossession left the respondent with no leg to stand on.</p> <p> </p> <p>Despite the ineptitude of her legal practitioners in choosing to rely on an inappropriate procedure, the law however remains on her side as it automatically confers the custody of the minor children on her without any further ado. As the law stands, upon separation from the appellant, the respondent automatically acquires custody of her minor children by operation of law until the courts determine otherwise. The realisation and enjoyment of that right was however negated by the respondent’s lawyers who adopted a completely wrong procedure rendering the proceedings a nullity<em> ab initio</em>.</p> <p> </p> <p>Both s 5 of the Act as read with s 81 (2) of the Constitution provide for the supremacy of the best interests of the minor child.  As we have already seen, the Act provides that where the parents of a minor child begin to live apart, the custody of the minor child shall be with the mother. What this means is that the law presumes that at the time of separation it is in the best interest of the child that its custody be with the mother until the contrary is proved in a competent court. That is however a rebuttable presumption.</p> <p> </p> <p>The supremacy of the best interest of a child means that the appellant was within his rights in challenging the suitability of the respondent as a custodian parent of the minor children. He challenged the respondent’s suitability as a custodian parent on two main grounds.  Firstly, that she was a drug addict who practised black magic and secondly, that she was a psychiatric patient. The appellant was entitled to raise these concerns which however needed to be probed before an appropriate order based on the merits and direct empirical evidence, could be made.</p> <p> </p> <p>The difficulty with the respondent’s case in the court <em>a quo</em> was that she did not claim custody of her children under s 5 of the Act. She instead, for no good reason and at the instance of her lawyers, claimed custody of her children under the non-existent and inapplicable law of ‘provisional’ spoliation. As already stated, the learned judge in the court <em>a quo,</em> presumably having realised that the respondent’s claim was incompetent and a nullity at law, improperly granted her a final interdict which she had not asked for. The order cannot stand.</p> <p> </p> <p> However, now that the matter is pending in the court <em>a quo</em> under s 4 of the Act, the issue of the custody of the three minor children is best left to that court for a substantive determination on the merits after hearing evidence.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In granting the respondent a final interdict which she had not asked for in respect of her claims, the learned judge <em>a quo</em> fell into grave error and misdirected himself. Firstly, because he had neither the jurisdiction nor the discretion to award the respondent relief that she had not asked for. A judicial officer who acts without jurisdiction acts without authority and to that extent illegally.</p> <p> </p> <p>The court was at fault in that it determined a matter that was not before it and without hearing argument on the question of whether or not to grant a final interdict. The matter that was before it was whether or not to grant the ‘provisional’ spoliation order. The question of the final interdict was supposed to be argued and determined on the return day which however, never saw the light of day. Once the court <em>a quo </em>realised that the respondent’s claim was fatally defective, it was duty bound to strike it off the roll.  In determining the issue <em>mero motu</em> without hearing argument from both parties the court <em>a quo</em> was in fundamental breach of the a<em>udi alteram partem rule </em>which forms the backbone of our adversarial legal system.</p> <p> </p> <p>Secondly, at law a ‘provisional’ spoliation order is incompetent as relief for the acquisition of a final interdict. This is because a final interdict cannot be founded on a ‘provisional’ spoliation order which is in itself a nullity at law. You cannot put something on nothing, as it will collapse. (See <em>Mcfoy v United Africa Co. Ltd) </em></p> <p> </p> <p>Finally, it was incompetent to seek custody of minor children through spoliation proceedings to the exclusion of clear statutory provisions under s 5 of the Act.</p> <p> </p> <p>On the other hand, it appears that the learned judge <em>a quo</em> was overwhelmed by the status of the appellant as Vice President of the country and the intensity of the conflict. His vision was apparently clouded by the dust of the conflict, prompting him to wade into its murky waters in aid of the respondent, and granting her relief that she had not asked for. Such conduct was injudicious and an affront to the time honoured tenets of justice, fairness and equality before the courts. In the absence of any evidence of abuse of office, the appellant ought to have been treated like any other citizen before the court <em>a quo.</em></p> <p> </p> <p>It is plain from the above summation of the facts and analysis of the law that, although the respondent may have had a meritorious case, she unfortunately did not get the benefit of sound legal advice in order to assert her rights. Regrettably this is the sort of case where one cannot escape the consequences of the conduct of his/her legal practitioner.</p> <p> </p> <p>As the respondent’s claim was incompetent and a nullity at law the court <em>a quo </em>ought to have found that the application was not properly before it and struck the matter off the roll.</p> <p> </p> <p><strong>COSTS </strong></p> <p>It is trite that costs follow the results. In this case there were 3 substantive issues for determination being:</p> <p>            1.         Access to the matrimonial home.</p> <p>           </p> <p>            2.         Possession of the disputed properties. </p> <p> </p> <p>            3.         Custody of the 3 minor children.</p> <p> </p> <p> </p> <p> </p> <p>The appellant has succeeded on two of the issues that arose for determination in this appeal whilst the respondent has succeeded on the inconsequential procedural issue of urgency.</p> <p> </p> <p>The respondent’s conduct in presenting an incompetent claim and her unsubstantiated attack on the appellant’s character could have justified an order for punitive costs against her. However, in light of the fact that she did not get appropriate legal advice and representation from her lawyers, the court takes the view that an order of costs on the higher scale would be unduly harsh.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <ol> <li>The appeal succeeds in part, with costs.</li> </ol> <p> </p> <p>2.      The appeal against the finding of the court <em>a quo</em> on urgency be and is hereby dismissed.</p> <p> </p> <p>3.      Subject to paragraph 2 above, the judgment of the court <em>a quo</em> is set aside and substituted with the following:</p> <p> </p> <p>“<em>The matter be and is hereby struck off the roll with costs.”</em></p> <p> </p> <p> </p> <p> </p> <p><em>Manase and Manase, </em>the appellant’s legal practitioners<em>.</em></p> <p><em>Mtetwa and Nyambirai, </em>the respondent’s legal practitioners<em>.</em></p> <p> </p> <p>Section 3 (b) of the Customary Law and Local Courts Act [Chapter 7 : 05]</p> <p>  2008 (1)  ZLR 300 at 303G</p> <p>1997 (2) SA 261</p> <p>1998 (1) ZLR 188</p> <p>1999 (1) ZLR 58 (S)</p> <p>SC 28/18 at p 8</p> <p>2009 (1) ZLR 370 at p 377D</p> <p>9th ed Juta &amp; Co (Pty) Ltd p2</p> <p>[2002] 3 All SA 669 (SCA)</p> <p>[2014] WASC 381</p> <p>[2002] UKHL 50</p> <p>[1975] AC 396, 405D</p> <p>2009 (1) ZLR 368</p> <p>1917 TS 687 at 697</p> <p>SC 18/18 at p11</p> <p>Section 81 (3) of the Constitution as read with s 9 of the Guardianship of Minors Act [Chapter 5:08]</p> <p>1996 (2) ZLR 77(S) at p79</p> <p>[1961] 3 All ER 1169 At p 1172 (PC)</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/86/2020-zwsc-86.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=62952">2020-zwsc-86.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/86/2020-zwsc-86.pdf" type="application/pdf; length=587897">2020-zwsc-86.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/custody-child">custody of child</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/provisional-order-see-practice-and-procedure-provisional-order">provisional order See PRACTICE AND PROCEDURE (Provisional order)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order">Provisional order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2008/42">Mandava v Chasweka (CIV APPEAL 532/05) [2008] ZWHHC 42 (07 May 2008);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/18">Nzara &amp; 3 Others v Kashumba N.O. &amp; 3 Others (SC18/18, Civil Appeal No. 137/16) [2018] ZWSC 18 (12 March 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1961/34">Guardianship of Minors Act [Chapter 5:08]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 20 Aug 2020 08:48:46 +0000 Sandra 9847 at https://old.zimlii.org Usore & Anor v Chigwada & Anor (HH 483-20, HC 757/20) [2020] ZWHHC 483 (23 July 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/483 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHIPO USORE</p> <p>and</p> <p>WELLINGTON MUBATANHEMA</p> <p>versus</p> <p>SAMSON CHIGWADA</p> <p>and</p> <p>MASTER OF THE HIGH COURT</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIRAWU-MUGOMBA J</p> <p>HARARE, 15 and 23 July 2020</p> <p> </p> <p><strong>CHAMBER APPLICATION FOR GUARDIANSHIP </strong></p> <p> </p> <p>        CHIRAWU-MUGOMBA J:  This matter was placed before me as chamber application with the following relief sought. </p> <ol> <li>The applicants Chipo Usore and Wellington Mabatanhema be and are hereby appointed joint legal guardians of a minor child A.A.C born 12th Of August 2007.</li> <li>That there be no order as to costs.</li> </ol> <p>I raised a query over lack of compliance with O32 R249 (1) (b) (2) that is the appointment of a curator <em>ad litem. </em> On the 18th of June 2020, one Tapiwa Gerald Muguwe was appointed as curator for the minor child. I note in passing that the rule is sequential that before filing a substantive application, a curator should be appointed first. I however condoned the appointment of a curator after the filing of a substantive application since this would be served on him and he would be required as he did to compile a report.</p> <p><strong><em>The application </em></strong></p> <p>The applicants are married to each other in terms of an unregistered customary law union.  The mother of the minor child, A.A.C (born on the 21st of August 2007) one Gracious Chiwera (the deceased) passed away in Harare on the 18th of November 2019. In support, a copy of her death certificate was attached. The 1st applicant is a nephew of the deceased though it was not explained in detail the exact nature of the relationship.  The deceased was married to the 1st respondent.  After her death, the applicants took custody of the minor child with the consent of the 1st respondent.  The latter stays in Mutasa District, Mutare.  The applicants are facing difficulties in handling the affairs of the minor child in incidences where the 1st respondent as the natural guardian is required to act. In such instances, the applicants are asked to produce a certificate of guardianship.  The applicants are desirous of including the minor child as a beneficiary to their employment benefits. They also sometimes travel out of Zimbabwe as a family and they thus require a certificate of guardianship to enable them to travel with the minor child. It will affect the child psychologically if she is left behind.  It will be in the best interests of the minor child if the applicants are appointed joint guardians.  The 2nd applicant deposed to a supporting affidavit.</p> <p>            The 1st respondent deposed to a supporting affidavit that essentially confirmed the averments of the applicants.</p> <p> <strong><em>The curator ad litem’s report </em></strong></p> <p>The salient points of the report are as follows. The curator prepared the report after meeting the applicants, the 1st respondent and the minor child.  The applicants are staying with the minor child including meeting all her needs. The child is happy to be staying with the applicants and is properly taken care of.   The 1st respondent is also happy to have the minor child stay with applicants especially that the 1st applicant has assumed the traditional role of being the ‘mother’. The applicants have the means to look after the minor child.  The report concluded that the minor child is still young and needs guidance and support in her daily life. The applicants are able to closely monitor the child and give her support and guidance.  It will be in the best interests of the minor child if the applicants are appointed joint legal guardians especially in view of the fact that the 1st respondent is not always available. In the event of an emergency that requires parental or the guardian’s consent, the applicants will step in.</p> <p><strong><em>The law </em></strong></p> <p>Section 9 of the Guardianship of Minors Act [<em>Chapter 5:08</em>] deals with applications for guardianship. In terms of s 9 (1) in instances where the minor has no natural guardians, such an application may be heard at the Magistrate Court sitting as a Children’s Court. It follows that where one of the parents is alive, such an application can only be made to and heard in the High Court – see In Re <em>Nherera, </em>HH-117-15.</p> <p>It is trite that the award of guardianship to a third party is done under very exceptional circumstances, see In <em>Re Maposa, </em>(2007) (2) ZLR 333 (H).  In <em>Kutsanzira </em>v<em> The Master of the High Court, </em>2012 (2) ZLR 91(H), guvava J (as she then was) stated as follows in a case in which the father had ‘consented’ to being divested of his guardianship rights: - (at page 3)</p> <p>“The Act provides primarily for the situation where a minor has no natural guardian or tutor testamentary and sets out a procedure to allow a third party to be appointed as guardian in their stead. It should be noted that the procedure outlined in s 9 of that Act specifically requires that an inquiry be conducted to determine who should be appointed as guardian. In the case of <em>In re Gonyora</em> 2001 (2) ZLR 573 it was held that in making the appointment of guardian the court must consider the minor child’s best interests. Although in this case the court was dealing with a child whose parents were deceased the same principles must be taken into account even in a case such as this where one of the parents is alive.”</p> <p>The learned Judge continued:-</p> <p>“It seems to me therefore, that the power to divest a parent of guardianship is a common law power which is exercisable by the courts very sparingly…………..The Inquiry into guardianship, like that of custody, cannot in my view, be one –sided. In other words, it is not only an inquiry into the advantages that will accrue to the child if its guardianship is granted to the applicant but also an inquiry into why the respondent must be deprived of his guardianship. ………….An inquiry into guardianship is an inquiry into the suitability of a parent to discharge the legal obligations imposed by law on the guardian of a minor child. It is not an inquiry into issues like where the child will live or how and where it will be educated as those inquiries relate to issues of custody.”</p> <p>It is therefore imperative that an inquiry be held to make a proper determination – see also In Re <em>Chimhanzi, </em>HH-10-11.  It is also imperative that the applicant provides details that will enable a court to make a proper determination – see <em>Saungweme vs. The Master of the High Court, N.O. </em></p> <p>Whist the courts have dealt with joint guardianship and custody, it has been in the context of either the Matrimonial Causes Act [Chapter <em>5:11</em>] see <em>Maarschalk </em>v<em> Maarschalk, </em>1994(2) ZLR 113, <em>Berens </em>v<em> Berens, </em>2009(1) ZLR 1 and <em>Beckford </em>v<em> Beckford, </em>2006(2) ZLR 377 or where the contest is between the mother and the father of the child – see <em>Sadiqi </em>v<em> Muteswa, </em>HH-249-20.  The Guardianship of Minor’s Act does not envisage appointment of joint guardians but a guardian – see generally s9.        </p> <p><strong><em>Application of the law to the facts </em></strong></p> <p>In <em>casu, </em>the applicants have not indicated in terms of which law they have made the application. The circumstances of the applicants are unknown. The founding affidavit is replete with sweeping statements, for instance the claim that they wish to have the minor child included in the employment benefits is not supported by proof of employment. There is no information that points out to where the child is going to school or her living arrangements. Infact the major reason for seeking guardianship is so that they travel with the minor child. Awarding guardianship to a third party on the basis of ability to travel will make a mockery of the role of the High Court as being the upper guardian of all minor children. It will create an impression that guardianship to a third party is awarded upon mere request.</p> <p>There are no details as to the circumstances that have made the 1st respondent to consent to being divested of guardianship. His affidavit does not give details as to his reasons why he has consented to such a drastic solution for the child.  The mere fact that the minor child has been staying with the applicants since the death of her mother is not enough.  The personal circumstances of the 1st respondent remain largely unknown.</p> <p>The report by the curator does not take the matter any further.  It is an upgraded version of the founding affidavit but gives no information on the particular circumstances of the applicants and those of the minor child. In particular it does not state the reasons why the 1st respondent seeks to be divested of guardianship.</p> <p>The applicants and the curator have not stated why joint guardianship is sought and the legal basis upon which it should be granted.</p> <p>In the result, the application has no merit and should be dismissed.</p> <p>The Registrar is directed to bring this judgment to the attention of the Master of the High Court.</p> <p><strong>DISPOSITION </strong></p> <ol> <li>It is ordered that the application be and is hereby dismissed.</li> <li>There shall be no order as to costs.</li> </ol> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/483/2020-zwhhc-483.doc" type="application/msword; length=39424">2020-zwhhc-483.doc</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/guardianship">guardianship</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/34">Guardianship of Minors Act [Chapter 5:08]</a></div></div></div> Mon, 17 Aug 2020 08:57:57 +0000 Sandra 9829 at https://old.zimlii.org Mhora v Mhora (SC 89-20, Civil Appeal No. SC 617/18) [2020] ZWSC 89 (29 June 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/89 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/89/2020-zwsc-89.pdf" type="application/pdf; length=5427263">2020-zwsc-89.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/equality-and-non-discrimination">Equality and non-discrimination</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/house-forming-part-matrimonial-estate-registered-sole-name-husband">House forming part of matrimonial estate but registered in sole name of husband</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2009/13">Gonye v Gonye (68/06) ((68/06)) [2009] ZWSC 13 (01 April 2009);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2017/66">Muzongondi v Muzongondi (SC 66/17 , Civil Appeal No. SC 303/14) [2017] ZWSC 66 (20 October 2017);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2003/11">Usayi v Usayi (49/01) ((49/01)) [2003] ZWSC 11 (23 June 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/483">Mutizhe v Mutizhe (nee Fuwe) (HH 483-18, HC 559/16) [2018] ZWHHC 483 (16 August 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/consolidated-act/513">Matrimonial Causes Act ,5:13</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 20 Jul 2020 07:22:58 +0000 Sandra 9797 at https://old.zimlii.org Simba v Simba (Nee Jonga) (HH 410-20, HC 8799/16) [2020] ZWHHC 410 (25 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/410 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TIMOTHY TEMBA SIMBA</p> <p>versus</p> <p>FUNGAI CATHRINE SIMBA (NEE JONGA)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE 2-3 March and 25 June 2020</p> <p> </p> <p><strong>Divorce Action</strong></p> <p> </p> <p> </p> <p><em>T. W Nyamakura</em>, for the plaintiff</p> <p><em>T Pfigu and A Ingwani,</em> for the defendant</p> <p> </p> <p> </p> <p>            CHITAKUNYE J.  The plaintiff married the defendant in terms of the Marriage Act [C<em>hapter 5:11]</em> on the 1st October 1983 at Harare. The marriage ceremony was accompanied by pomp as each spouse vowed to cling to each other in the marriage- in health and in sickness, in riches and in poverty- and to be separated only by death. At that time they were only 25 and 23 years old respectively hence full of promise for the future in each other’s company. Their marriage was blessed with two children of whom one is now late having died on the 23rd August 2017.</p> <p>            The parties were both in formal employment and have largely been in formal employment for most of their married life.</p> <p>            After about 17 years of living together as husband and wife the plaintiff deserted the matrimonial home in either November 1999, as per his assertion, or in September 2000, as stated by the defendant. Since that period parties have not stayed together as husband and wife. In about February 2001 the plaintiff issued summons out of this court for a decree of divorce and ancillary relief in HC 1347/01 which action the defendant contested and filed a counter claim. It would appear that the plaintiff developed cold feet and did not pursue that matter to its logical conclusion. The defendant also did not pursue her counter claim to its logical conclusion. In September 2013 the plaintiff issued second summons from this court for the dissolution of the marriage and ancillary relief in HC 8057/2013. The defendant raised a special plea contending that the matter in HC 1347/2001 was still pending. As a consequence on the 5th August 2014 the plaintiff withdrew the matter. It would appear that the matter in HC 1357/01 was later withdrawn as noted from a request for payments of costs in respect of the two aborted matters by letter dated 23rd August 2016 from the defendant’s legal practitioners to the plaintiff’s legal practitioners. I have made reference to these previous proceedings to show that the issue of divorce and ancillary issues had been in the contemplation of the parties since 2001 when the initial summons was issued.</p> <p>            On the 31st August 2016 the plaintiff filed the present suit seeking a decree of divorce and ancillary relief. The plaintiff alleged that the marriage relationship has irretrievably broken down to an extent that there are no reasonable prospects of restoration to a normal marriage relationship in that:-</p> <p>             a)        During the subsistence of the marriage the plaintiff and the defendant failed to                  maintain and develop common interests and have argued to excess;</p> <p>            b)         They have lost love and affection for each other;</p> <p>             c)        they no longer cohabit together as the Plaintiff left the matrimonial home and                    the parties have no intention of resuming cohabitation and so wish to be                                   divorced; and</p> <p>d)         The parties have not lived together as husband and wife for a continuous period    of at least 12 months immediately preceding the date of commencement of this action.</p> <p>In the circumstances he prayed for a decree of divorce to be granted.</p> <p>            On ancillary issues, the plaintiff alleged that there was only one immovable property currently owned by the parties namely Stand 271 Mandara Township of Lot 3A Mandara held under Deed of transfer number 7963/87 dated 12 November 1987, also known as number 58 Shaneragh Road, Mandara. He proposed that this property be distributed equally between the parties. He suggested that the defendant be given the 1st option to buyout plaintiff’s 50% share within 6 months of the date of grant of the decree of divorce failing which the plaintiff will be granted the option to buy out the defendant’s share within the succeeding 6 months. If both parties fail to exercise the above option then the property be sold and the net proceeds be distributed in equal proportions between the parties.</p> <p>            On movable properties the plaintiff proposed that each party retains movable properties in their respective control or possession or that is registered in their name.</p> <p>The defendant, whilst conceding that the marriage relationship has irretrievably broken down, contended that the reasons for the breakdown were not as stated by the plaintiff. She also disputed the distribution of assets as suggested by the plaintiff’.</p> <p>            The defendant made a counter claim for the dissolution of the marriage and her own proposal on how the assets ought to be distributed. In this regard she alleged that the marriage relationship has irretrievably broken down in that:-</p> <p>            a)         The Plaintiff had frequently associated improperly with a number of women;</p> <p>            b)         The plaintiff has infected the defendant with a sexually transmitted disease                       including the incurable herpes;</p> <p>            c)         The plaintiff spent large amounts of money on his mistresses while his family                     went unprovided for;  </p> <p>d)  The plaintiff deserted the defendant and the then minor             children at a time when the defendant had been hospitalised following a road traffic accident and when she was completely immobile;</p> <p>            e)         The plaintiff has been verbally abusive and cruel to the defendant throughout                    the marriage to the extent of making telephone calls to his mistresses in her                   presence; and</p> <p>            f)         The plaintiff abandoned his responsibilities for school fees and maintenance                       for the minor children leaving the defendant to put them through school on her                        own.</p> <p>            It was as a result of the above factors that the defendant prayed for a decree of divorce.</p> <p>            On ancillary issues, the defendant stated that at the time the plaintiff deserted the matrimonial home there were two immovable properties, namely:-</p> <ol> <li> Stand number 271 Mandara Township of Lot 3A Mandara registered under deed of transfer number 7963/87 dated 12 November 1987 also known as 58 Shaneragh Road Mandara ( the Matrimonial home) and</li> <li> Stand 854 Mandara Township of Lot 13 Mandara, Harare.</li> </ol> <p>            This latter property was, however, sold by the plaintiff and he kept all the proceeds to himself. She thus conceded that as at the time of institution of these proceedings there was only one immovable property, which is the matrimonial home.</p> <p>            The defendant proposed that stand 271 Mandara Township also known as number 58 Shaneragh Road be awarded to her as her sole and exclusive property.</p> <p>The defendant was not averse to the plaintiff’s proposal as regards the movable property.</p> <p>            From the pleadings filed of record it was apparent that the only issue for determination was on the distribution of the matrimonial home. The plaintiff asked for an equal share whilst the defendant contended that it must be awarded to her with no share for the plaintiff as the plaintiff had solely benefited from the disposal of stand 854 to her exclusion.</p> <p>            The distribution of assets of the spouses at the dissolution of a marriage is governed by s 7 of the Matrimonial Causes Act, [C<em>hapter 5:13]</em>. Section 7(1) (a) thereof provides that:</p> <p>“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-</p> <ol> <li>The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to another.”</li> </ol> <p> </p> <p>            The basic factors to consider in determining a just and equitable distribution of the assets of the spouses are encapsulated in s 7 (4) as follows:-</p> <p>      “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:</p> <ol> <li>The income-earning capacity, assets and other financial resources which each spouse           and child has or is likely to have in the foreseeable future.</li> <li>The financial needs, obligations and responsibilities which each spouse and child has           or is likely to have in the foreseeable future.</li> <li>The standard of living of the family, including the manner in which any child has     been educated or trained or expected to be educated or trained.</li> <li>The age, physical and mental condition of each spouse and child.</li> <li>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.</li> <li>The value to either of the spouse or to any child of any benefit, including a pension or             gratuity, which such spouse of child will lose as a result of the dissolution of the       marriage.</li> <li>Duration of the marriage;</li> </ol> <p>       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.”</p> <p> </p> <p>These factors are not exhaustive thus court may consider other factors or circumstances established by the evidence adduced. In <em>Shenje </em>v <em>Shenje</em> 2001(1) ZLR 160 (H) at 163E – 164 A Gillespie J aptly noted that:-</p> <p>“In deciding what is reasonable, practical and just in any division, the court is enjoined to have regard to all the circumstances of the case. A number of the more important, and more usual, circumstances are listed in the subsection. The list is not complete. It is not possible to give a complete list of all the possible relevant factors. The decision as to a property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieving a reasonable, practical and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantage, to the extent they are not inevitable, of becoming divorced.</p> <p> </p> <p>The factors listed in the subsection deserve fresh comment. One might form the impression from the decisions of the courts that the crucial consideration is that of the respective contributions of the parties. That would be an error. The matter of the contributions made to the family is the fifth listed of seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps it is time to recognise that the legislative intent, and the objective of the courts, is more weighted in favour of ensuring that the parties’ needs are met rather than that their contributions are recouped.” See also<em>   Gonye </em>v<em> Gonye</em> 2009 (1) ZLR 232(S)</p> <p> </p> <p>What emerges from the case authorities is that all the circumstances of each case must be considered. The direct contributions, whilst important in the acquisition of properties, may in some cases not override other factors. As aptly noted by gillespie J in the above case the legislative intent and the objective of the courts is more weighed in favour of ensuring that the needs of the parties as they part ways are met, rather than that their direct contributions are recouped.  This is true especially where the marriage has subsisted for long and each party played their role as husband or wife during that duration. The Act provides for recognition of the indirect contributions, the needs and expectations (both financial and nonfinancial) of the spouses and the duration of the marriage. The longer the duration of the marriage the more important the indirect contributions, the needs and   expectations become.</p> <p>It is imperative to bear in mind that assets to be considered are all the assets belonging to the spouses as at the time of dissolution of the marriage. This includes assets that may have been acquired before marriage, during marriage and even whilst on separation. It is thus imperative for spouses to disclose all assets irrespective of the period they were acquired if the objective of the exercise is to be achieved. Once all the assets have been disclosed the approach to the distribution, including the exclusion of some assets in terms of <em>s</em> 7 (3) of the Act, can then be properly undertaken without the accusations of concealing of assets.</p> <p>In <em>Takafuma </em>v<em> Takafuma</em> 1994 (2) ZLR 103(S) mcnally ja set out the approach that a court should adopt in apportioning the assets of the spouses. That approach has been adopted in a number of cases as a guide to achieving a just solution. The approach involves firstly sorting out the assets into three lots namely ‘hers’, ‘his’ and ‘theirs’. ‘Hers’ and ‘his’ would comprise assets in the individual names of the spouses whilst ‘theirs’ comprises essentially assets registered in the joint names of the spouse. Court will then concentrate on the lot marked ‘theirs’ and apportion these using the criteria in<em> s</em> 7(4) of the Act. Secondly court will look at the result and consider whether the objective of ensuring spouses are placed in the position they would have been in had a normal marriage relationship continued has been achieved. Where the apportionment of the lot marked theirs does not lead to a just and equitable distribution of the assets so as to meet the objective, court will then consider transferring one spouse’s asset or share to the other.</p> <p>In <em>casu,</em> as already alluded to the only immovable property in disputation is registered in the joint names of the parties. It is thus in the category of ‘theirs’.</p> <p>            As a jointly owned property each spouse owns a 50% share in that property. The question that arises is whether awarding each spouse a 50% share as advocated for by the plaintiff and as presumed from joint ownership would achieve the objective of ‘as far as is reasonable and practicable and having regard to their conduct, is just to do so, to place the spouses… in the position they would have been in had a normal relationship continued…’</p> <p>For instance, does the apportionment secure for each spouse the advantage they can fairly expect from having been married to one another, and avoids the disadvantages to the extent they are not inevitable of becoming divorced; or is this a case where the justice of the case requires that a spouse’s share be awarded to the other? If so, how much of that share?</p> <p> It is with this in mind that the evidence by the parties will be analysed.</p> <p> </p> <p>The plaintiff gave evidence and tendered documentary evidence after which the defendant gave evidence and tendered documentary evidence in support of her case.</p> <p>From the evidence adduced certain facts are common cause.  It is common cause that both parties were employed for most of their married life. The plaintiff was employed as an executive and the defendant as a secretary. The only period the defendant was not in formal employment was from 1992 to 1995 when, at plaintiff’s behest, she joined him in Botswana where he had moved to. Both parties were agreed that besides income from employment they engaged in other income generating activities such as buying and selling of various wares including motor vehicles to augment their income. They further agreed that in all this they cooperated and there is no dispute that each contributed to the marital wealth to the best of their abilities whilst they stayed together for the first 17 years of marriage.</p> <p>            In those 17 years they acquired a house in Cotswold Hills by mortgage bond which they later sold in 1985 in order to acquire number 58 Shaneragh Road, Mandara property. This second property was acquired through a mortgage bond in which their respective incomes were considered in assessing their ability to repay the loan. It was common cause that they acquired another property, namely stand number 854 Mandara. This stand was acquired as an undeveloped piece of land in June 1999. The plaintiff purchased it in his name. The defendant contended that their intention was to acquire it as an investment for their children. In that regard it was to be registered in the name of a company yet to be incorporated. Though the plaintiff disputed this assertion the agreement of sale at page 66 of exhibit 4 cited the purchaser as ‘Timothy Temba Simba (Representing a company to be formed)’. This was clearly indicative of the couple’s desire to have the property in the name of a yet to be formed company. There is, therefore’  merit in the defendant’s contention that the property was never intended to be solely owned by the plaintiff but to be owned by a company for the benefit of their children. That intention was however defeated by the plaintiff when he obtained title deeds in his sole name and proceeded to deal with the property as his exclusive property.</p> <p>            It was also common cause that as at the time the plaintiff deserted the matrimonial home the two immovable properties were available as assets of the spouses. It was common cause that the mortgage bond on the matrimonial home was still outstanding and the defendant is the one who subsequently paid it off.</p> <p>            It was not seriously disputed that Stand 854 Mandara was subsequently sold by the plaintiff without informing or consulting the defendant. The use to which the proceeds from the sale of this property were put was disputed.</p> <p>Having agreed as to the manner in which their family finances were raised and utilised during the period the two lived happily together, the area of disputation pertained to events after separation. It is in this light that each party’s evidence will be analysed.</p> <p>            The plaintiff’s evidence was to the effect that after some marital dispute he left home and never returned to this date. He confirmed that at the time he left the bond on the matrimonial home had not been paid up. He averred that upon separation he continued providing finance for the family in that he would send money to the defendant and meet some of the children’s needs.</p> <p>            In as far as income earning capacities of the parties was concerned it was his evidence that by virtue of his better job he earned more than the defendant who was a secretary. In that way he argued that he was the major contributor of finance to the family.</p> <p>            The plaintiff further testified that after separation he went to Uganda where he worked for Telecel International. Whilst in Uganda he would send money home. Later when he went to Canada he continued sending money for the children’s needs.  The plaintiff referred to some documents in exhibit 2- his bundle of documents – as proof that he was sending money for family needs. A careful perusal of that bundle shows that it contains very few documents on the sending of money for the children’s needs. The plaintiff himself admitted that these were scant documents when compared to the long period that lapsed since he left home. It is pertinent to note that most of the documents, few as they are, pertained to college fees for Shinga Simba for the year 2005. The payments were sent at the time the plaintiff was in Canada and were being sent directly to the college in South Africa. There was no evidence that he had sent any money during the time he was in Uganda or even that during the entire duration of his absence he had ever sent any money to the defendant for family needs.</p> <p>In his evidence the plaintiff conceded that since he left in 1999 it was the defendant who was taking care of the property including the servicing of the bond. Though he claimed to have been sending money to the defendant he failed to prove that he had sent any money towards the payment of the bond. It is thus safe to conclude that he never sent any money for payment of the mortgage bond, this was left to the defendant.</p> <p>The defendant thereafter gave evidence. The defendant’s evidence was to the effect that when the plaintiff deserted the matrimonial home he also abandoned the family. She was thus left to deal with family needs and the payment of mortgage bond from her limited income. She testified that she contributed to the purchase of all the immovable properties acquired during the subsistence of the marriage. It was her evidence that the Cotswold Hills property was acquired using wedding gifts and their respective contributions which included a loan. After about 3 years they sold that property in order to deposit for number 58 Shaneragh Road, Mandara. They then got a mortgage loan from CABS. In order to qualify for the loan both their salaries were considered hence her name was also included on the bond. In this regard the defendant referred to pages 58 and 59 of her bundle of documents which confirm that the first bond was in the names of both parties and not in plaintiff’s sole name as the plaintiff had been portraying. These documents relate to a second bond that plaintiff obtained from his employer. The Deed of Transfer in respect of 58 Shaneragh Road, at page 80 of the aforesaid bundle, confirms that this property is registered in the joint names of the parties.</p> <p>            As regards Stand 854 Mandara the defendant indicated that as a couple they decided to invest in a property for the benefit of their children. They used their joint resources to acquire the property. Their intention was that they would form a company which would own the property for the benefit of the children. However, in disregard of this noble intention, the plaintiff registered the property in his sole name. Later when he had left home and was now working in Uganda the plaintiff sold the property through his brother without her knowledge. She only discovered that the Stand was being sold   when she was filing some legal documents unrelated to their issues, with a certain law firm. She was not sure as to whether by the time of her discovery the property was still on the market or had already been sold as the advert she saw was not current. The defendant testified that when the plaintiff came from Uganda she confronted him about the sale and the plaintiff’s explanation was that he needed the money. The defendant contended that she never got any proceeds from the sale of this property. She categorically refuted the plaintiff’s argument that his brother had given her some of the money which she used to pay off the bond. As far as she was concerned this brother had confessed ignorance of the sale when she first asked him about the sale. She only realised that the brother had lied to her when she discovered that he was the one who had been given the power of attorney to sell the property. The defendant contended that she was short changed by the plaintiff and she was of the view that the plaintiff should retain the proceeds of the sale of that stand as his share whilst she retained the matrimonial home.</p> <p>            The defendant‘s claim for a 100% of the matrimonial home was also premised on the fact that after desertion the plaintiff never looked back. She remained saddled with heavy responsibilities of taking care of their two minor children, the property and the bond repayments. The children were at private schools which were expensive and she had to meet their school fees and other school requirements without the plaintiff’s assistance. As a consequence of the burden she was left with she had to get assistance from her relatives and had to obtain loans from her employer. It was her evidence that when the bond fell into arrear threats to foreclose were made and she had to borrow money to pay the arrears as the plaintiff was not sending her any money. She thus took over payment of the bond from 2000 when the plaintiff left to 2005 when she cleared the mortgage bond. In this regard she tendered a document at p 84 of her bundle of documents as proof of her paying off the bond. As far as she was concerned, therefore, had she not taken over the bond repayments and borrowed money to clear the bond, there would have been no number 58 Shaneragh Road to distribute as CABS would have foreclosed on the property. The defendant contended that she had to use most of her income to pay off the bond to an extent whereby she did not have any money to save.</p> <p> The defendant also indicated that as number 58 Shaneragh Road  has been her only home since they moved there and she has spent most of her earnings on it she has sentimental attachment to it. She thus cannot relocate.</p> <p>She further testified that during their marriage the plaintiff had been engaging in extra marital affairs with other women as a result of which he infected her with a sexually transmitted disease which led to a secondary incurable disease which she still suffers from to this date. Her health has thus been compromised.  In the circumstances she may not be able to remarry especially at her age of 59, turning 60 later this year. She thus needed the property as her sole and exclusive property. The plaintiff as a high flying executive can always find other properties if he does not already have any. As between the two it was clear that the defendant was in greater need of the house as a place of abode than the plaintiff who seemed settled and well established outside the country.</p> <p>            A careful analysis of the evidence adduced and the manner it was adduced shows that whilst both parties were agreed that during their early years they worked together and acquired the properties in question, it is the events after the separation that they could not agree on as to how they should affect  the distribution of the immovable property.</p> <p>            It was not disputed that both parties made direct contributions towards the purchase of the immovable properties in question. After separation the defendant remained with the task of making further direct and indirect contributions towards the repayment of the bond, maintenance of the matrimonial home and the family. Her contributions in that regard were immense. Without such contributions the matrimonial home could have been foreclosed by the bank or, at the very least, could have fallen into dilapidation. Thus for 20 years the defendant maintained the property on her own.</p> <p>            The defendant also played a key role in providing for the children. Whilst her assertion that she paid school fees was not true as school fees were paid by her employer as part of her employment benefit, she nevertheless met other school needs and requirements. She also ensured that the children remained focused in their education and upbringing. This type of contribution cannot be underestimated. This happened for the 20 years when the plaintiff was virtually out of the family picture and was busy making progress in his career without much attention to the needs of the family. From his resume I got the impression that he has been doing very well yet found no time or resources for his family.</p> <p>            It was also apparent that the plaintiff was not candid with court as to what he has been doing with the income he earned over the last 20 years. He was not forthcoming on any assets he acquired during that period of separation or even investments he may have made. It is not easy to accept that whilst for the 17 years the couple were able to acquire three immovable properties, for the 20 years on separation the plaintiff despite advancement in his career was not able to acquire any immovable property. The lack of full and frank disclosure cannot work in his favour.</p> <p>            It is trite that in matrimonial matters spouses ought to be candid with court by disclosing all assets belonging to them including investments they hold as at the time of dissolution of the marriage. Such assets include those acquired before marriage, during marriage and whilst on separation.  </p> <p>            In <em>Denhere </em>v<em> Denhere</em> SC51/17 at pp 12-13 of the cyclostyled judgement, in commenting on the consequences that may befall a spouse who has not been candid with court, gowora ja stated as follows:-</p> <p>            “The court clearly had in mind when distributing the assets, the fact that the appellant had not          only tried to hide his assets he had also misled the court in the manner in which he had     pleaded.  He had stated that the Rivonia property was rented.  In relation to 29A Dover Rd,          the appellant initially denied its existence only to later claim that it was jointly owned with a      friend residing in the United Kingdom.  In <em>Beckford </em>v<em> Beckford</em> 2009 (1) ZLR 271(S), this     court stated:</p> <p>“Having rejected Mr Beckford’s evidence in respect of the proprietary rights of the parties, the learned trial judge said the following at pp 81-82 of the cyclostyled judgment:</p> <p>           </p> <p>                        ‘I however, find that the plaintiff did not disclose all his assets especially after he                 instituted these proceedings. The consequences of his attitude are summed up in the                         English Court of Appeal by butler-sloss lj, in <em>Baker </em>v<em> Baker</em> ([1995]2 FLR                                   829(CA)) at     page 835, in these words:</p> <p>‘Mr Posnansky pointed to an utterly false case and asked us to consider why the husband was lying and what did he have to hide. If the cupboard was bare, it was in his interests to        open it and display its meager contents. But on the contrary, the husband, despite his protestations to the contrary, continued to live the life of an affluent man. <strong>I agree with the submissions from Mr Posnansky that if a court finds that the husband has lied about his means, and failed to give full and frank disclosure, it is open to the court to find that       beneath the false presentation, and the reasons for it, are undisclosed assets</strong>.</p> <p> </p> <p>I will use this fact against him in distributing the assets that he disclosed. It is fair, just and equitable that I award to the defendant all the money that is held in the joint account of their respective English solicitors. I have agonized over the appropriate order to make concerning the distribution of the immovable properties that the plaintiff disclosed which are registered in England.</p> <p>In making the order that I have come to, <strong>I have been influenced in great measure by the plaintiff’s failure to make full and frank disclosure, the size of the business</strong> transactions that were carried out by Coralsands and the concomitant income that must have accrued to him, the benefit that accrued to him from the disposal of 7A Granville Road to Nicky Morris on 10 November 2005, the concerted program that he undertook in asset stripping the matrimonial estate to his benefit and to the impoverishment of the defendant of which the registration of a charge in favour of his parents for £67 000 against 390 Sutton Common Road was part of, his financial acumen and resourcefulness and his apparent disdain for the integrity of the legal process. I will order that the two disclosed properties be transferred into the defendant’s name while the plaintiff shall remain responsible for the discharge of all the encumbrances, such as the mortgages and restrictions registered against them.</p> <p>The issue which now arises is whether there is any basis for interfering with the proprietary awards made by the learned trial judge in favour of Mrs Beckford in terms of paras 16 to 19 of the order. I do not think there is.</p> <p>In Baker v Baker supra otton lj, who concurred with butler-sloss lj who prepared the main judgment, said the following at 837:</p> <p><strong>‘accordingly, the husband cannot complain if the judge following authority explored what was before him and drew inferences which may turn out to be less fortunate than        they might have been had he been more frank and disclosed his affairs more fully</strong>. Such inferences must be properly drawn and reasonable. On appeal it may be possible for either party to show that the inferences or the award were unreasonable in the sense that no judge faced with the information before him could have drawn the inferences or awarded the figures that he did. I am satisfied that the appellant has not succeeded in demonstrating that the figures ward j awarded were in any regard unreasonable or unjustified.’</p> <p>In the present case, I am not prepared to say that no Judge could have drawn the inferences or made the awards made by the learned trial judge. There is, therefore, no basis for interfering with the awards made.” (emphasis in bold is mine)</p> <p> </p> <p>            It is clear from the above that disclosure is critical as it assists court in the exercise of its wide discretion. Disclosure does not necessarily lead to that asset being awarded to the other spouse but provides court with solid evidence in determining the spouses’ circumstances as they divorce and their needs for the foreseeable future. It is thus improper to fail to disclose any assets owned on the pretext that it was acquired after separation.</p> <p>            In <em>casu</em>, the plaintiff, both in his pleadings and his evidence, did not make a full and frank disclosure of properties he acquired after separation. The plaintiff admitted under cross examination that he had indeed acquired other properties but refused to give particulars of such properties. The plaintiff failed to answer questions on a property known as Stand 3078 Irene Farm in South Africa despite being advised that the defendant was alleging he owned it or at the very least had interests in that property. Besides this, the plaintiff was not forthcoming on any other properties he could have acquired. He seemed to be of the view that such properties were not subject of consideration as they were acquired after separation. This was obviously wrong as the assets to be considered include assets acquired whilst on separation. An inference may rightly be drawn that he indeed has other properties to his name. As aptly put in <em>Baker v Baker</em> (<em>supra)</em> if his cupboard has nothing why not open it. Refusal to open leads to an inference that there is something in it he wishes to hide from the court.</p> <p>            It is common cause that for 17 years the parties stayed together. After those 17 years they have lived and led virtually separate lives. The defendant and the children who were still minors remained at the property in question. The plaintiff on the other had proceeded to Uganda for a few years then to Canada from 2001 to 2005. Currently he said he is based in South Africa where he is running his own company. It was apparent that he is very successful in his company. He indicated that he is also a non-executive director with FBC Building society and so he occasionally comes to Zimbabwe for meetings. His resume gives the impression he would not have had any problems of acquiring other properties in the 20 years he has not been living at the matrimonial home. Despite all this plaintiff was not forthcoming in disclosing assets that he owns or has interests in. He has no one to blame if adverse inference is drawn from the non-disclosure.</p> <p>            Another factor to consider is that the fact that the plaintiff sold Stand 854 Mandara at about or during the time he commenced divorce proceedings in HC 1357/01without informing or consulting the defendant points to a desire on his part to distance this property from distribution and thus prejudice defendant’s claim for a share in that property. As already noted the plaintiff failed to account for the proceeds of that sale such that the only logical conclusion is that he utilised it for his own benefit.  The insinuation that the $800 000-00 paid by the defendant to CABS towards the bond repayment was from the proceeds of that sale was not credible at all. The sale in question took place within a short period after separation and, apparently, when the plaintiff was about or had just commenced the first divorce process. This could have been the period 2000 to 2001 yet the $800 000-00 was only paid by defendant in 2005. It was never the plaintiff’s evidence that he kept that money for all that period. The plaintiff’s brother who sold the property on his behalf was never called to testify on what he did with the proceeds of the sale. The plaintiff’s assertion in this regard was clearly clutching at straws.</p> <p>            Before concluding it is imperative to apply the evidence adduced to the broad factors alluded to in s 7 of the Act.</p> <ol> <li> The income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future.</li> </ol> <p>A careful consideration of the spouse’s respective income-earning capacities, assets and other financial resources shows that the plaintiff will continue earning more income than the defendant. In his evidence the plaintiff alluded to the fact that he has his own company in South Africa and he also sits on some boards of companies including FBC Building Society where he receives some income. He expects to be active in these positions for the next 10 to 15 years. It was apparent that he will continue receiving substantial income and the dissolution of the marriage will not affect such income at all. Though he did not disclose the assets he acquired since separation in 1999 it was apparent that he has not just been sitting and doing nothing. This lack of full and frank disclosure of assets acquired since separation should not work in his favour. As noted in <em>Denhere </em>v<em> Denhere</em> <em>(supra</em>) full and frank disclosure is very important in matrimonial matters.</p> <p>It may also be noted that the plaintiff’s claim for a 50% share in the disputed property was not based on his need for it but on his contributions in the acquisition of the property during the time the parties were living together some 20+ years ago. I did not hear him to suggest that he really needed the house for use or share thereof to acquire another property.</p> <p>            The defendant, on the other hand, gave the impression that she is desperately in need of the house not only as a property whose acquisition she contributed to but as the only home she has known since its acquisition in 1985. She has also invested in retaining the property at a time it could have been foreclosed.</p> <p>            In terms of income earning capacity, the defendant indicated that due to her age of 59 years; she is due to retire in September 2020. That retirements will bring to an end the main source of income she has known all her married life. Post-divorce she will struggle to secure another employment due to her age and the obtaining economic environment. It is thus clear that a loss of the house will have devastating consequences on the defendant and not so much on the plaintiff.</p> <ol> <li>The financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future.</li> </ol> <p>It was apparent from the evidence that as the parties divorce the plaintiff is in a much healthier financial position than the defendant such that he will hardly feel the impact of the divorce. Since separation he has not maintained the family as would have been expected. Upon divorce no obligations will arise as a result of the divorce. No maintenance has been claimed against him. He will virtually continue as he has been doing for the past 20 years. In fact it maybe said that neither spouse will be saddled with any extra obligation or responsibility outside what they have already been handling since the separation in 1999 or 2000. This is so because since that period none has made provisions for the other.</p> <ol> <li> The standard of living of the family, including the manner in which any child has been educated or trained or expected to be educated or trained.</li> </ol> <p>In respect of this factor I am of the view that the plaintiffs’ standard of living will not be affected at all. It is the defendant’s standard of living that will be affected from the fact that she will soon be out of employment hence her sources of income will be diminished. As the only surviving child is a major neither party is obliged to maintain that child. It is my view that for the defendant to maintain a semblance of the standard of living she was used to during the marriage she certainly requires accommodation. She cannot afford comparable accommodation of her own after dissolution of the marriage as she will be financially incapacitated. It is thus just that she be considered favourably in the distribution of the only immovable asset available to ensure that she does not become destitute but maintains a standard of living reminiscent of a wife of a successful executive.</p> <ol> <li>The age, physical and mental condition of each spouse and child.</li> </ol> <p>            The issue of age, physical and mental condition of each spouse is another factor to consider. The plaintiff though 62 years old indicated that he is in good health and was expecting to continue working for the next 10 to 15 years. The defendant, on the other hand, is 59 years and due to retire later this year. She alluded to the fact that she still suffers from the effects of the road traffic accident she was involved in in 1998 and that she also suffers from a disease as a result of an infection by the plaintiff. When asked about the defendant’s health condition the plaintiff virtually said he did not know. There is thus nothing to refute the defendant’s contention on her health. It would of course have been much better had the defendant tendered medical reports on her heath condition.</p> <ol> <li>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.</li> </ol> <p>            This is an aspect on which the bulky of the evidence was premised on and as already noted both parties made contributions to the best of their abilities and nothing should separate them in this regard. Though the plaintiff argued that he contributed about 70% towards the acquisition of the properties as he earned more than the defendant, this must be weighed against the defendant’s direct contributions which he admitted she made and the indirect contributions to the family estate since marriage to this date as she is still taking care of the home. It is my view that the deciding factors should really be on the needs and expectations of the spouses.</p> <ol> <li>The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse of child will lose as a result of the dissolution of the marriage.</li> </ol> <p>            Neither spouses alluded to any benefit or pension they were expecting to get from the other and which they will now lose as a consequence of the dissolution of the marriage. The defendant as a spouse to a high earning spouse would have been expected to consider her loss but this was not so due to the long period of separation. She apparently does not see herself as benefitting under this factor for the reason that for the past 20+ years the plaintiff has not provided for her. She has had to fend for herself as if she was already divorced. In a nutshell she has been living a divorcee’s life for the past 20 years.</p> <ol> <li>Duration of the marriage.</li> </ol> <p>      The parties having married in 1983 lived together for 17 years up to 2000 when the defendant deserted home. To date the marriage has subsisted for about 37 years of which 17 were under the same roof and 20 on separation. The duration of the marriage is such that the key determining factors should be the needs of the parties. In this regard it was clear that the defendant is in greater need of the property than the plaintiff. In fact, as already alluded to, the plaintiff did not give the impression that he was in need of the property. His desire was to simply recoup what he contributed principally because the property is jointly owned. The objective of the Act is not for a spouse to recoup his or her financial contributions especially after a marriage of almost four decades but for the parties to as far as is possible part ways with the benefits of having been married to each other for that long. The needs and expectations of the parties are pivotal in determining the distribution order in such circumstances.</p> <p>      I am of the view that upon a careful consideration of all the circumstances of the case, this is a case where in terms of s 7(1) (a) of the Act, the plaintiff’s share must be transferred to the defendant. The only reasonable and practicable manner of distribution that would leave the parties in a position they would have been had a normal marriage relationship continued is for the defendant to be awarded plaintiff’s 50 % share. The plaintiff can easily acquire another property if he has not already done so from the resources available to him.</p> <p>            Accordingly it is hereby ordered that:</p> <ol> <li>A decree of divorce be and is hereby granted.</li> <li>Each party is awarded the movable properties in their custody or possession as  at the date of this order.</li> <li>The defendant is hereby awarded Stand number 271 Mandara Township Lot 3A Mandara held under Deed of Transfer number 7963/87 dated 12 November 1987, also known as number 58 Shaneragh Road, Mandara, Harare as her sole and exclusive property.</li> <li>The plaintiff shall sign all the necessary documents to enable transfer of his 50%share as joint owner to the defendant within 30 days from the date of request.</li> <li>Should the plaintiff fail, refuse or neglect to do so within the stated period the Sheriff is hereby directed to sign all such documents as are necessary to effect the transfer in plaintiff’s stead.</li> <li>The defendant shall bear the attendant costs of transfer.</li> <li>Each party shall bear their own costs of suit.</li> </ol> <p> </p> <p><em>Coghlan, Welsh and Guest</em>, plaintiff’s legal practitioners</p> <p><em>T. Pfigu Attorneys</em>, defendant’s legal practitioners.</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/410/2020-zwhhc-410.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=49923">2020-zwhhc-410.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/410/2020-zwhhc-410.pdf" type="application/pdf; length=490884">2020-zwhhc-410.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/51">Denhere v Denhere (nee Marange) (SC 51/17 , Civil Appeal No. SC 664/14) [2017] ZWSC 51 (17 August 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/consolidated-act/513">Matrimonial Causes Act ,5:13</a></div></div></div> Mon, 29 Jun 2020 12:57:41 +0000 Sandra 9729 at https://old.zimlii.org N v H (HH 419-20, CIV 'A' 17/20 Ref M239/18) [2020] ZWHHC 419 (25 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/419 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>N</p> <p>versus</p> <p>H</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA and CHIRAWU-MUGOMBA JJ<br /> HARARE, 4, 12, 15, 18 and 25 June 2020</p> <p> </p> <p> </p> <p><strong>Civil Appeal </strong></p> <p> </p> <p>The appellant <em>in person </em></p> <p>The respondent <em>in person </em></p> <p> </p> <p> </p> <p>          CHIRAWU-MUGOMBA J:  This matter was placed before us as an appeal from the decision of the Magistrate court sitting at Harare, varying maintenance for a minor child. Before the application for variation, the order of maintenance in respect of the minor child was $400 per month.  The initial order granted was $150 before being varied to $400 In July 2019.   The respondent made an application for upward variation from $400 to $2000 in December 2019. In her application, she stated the reasons as being that rentals and groceries had gone up in price and that the child was enrolling at a new school that was expensive.  The appellant filed a notice of opposition and an opposing affidavit.  In his affidavit he acknowledged that he is the father of the minor child and thus he has a responsibility to maintain her.  He stated that he had at the advice of his lawyers set up a family trust in his name and that of his wife.  Four immovable properties namely 4 Scott Street, North End Bulawayo, 53 Poort Road Norton, 840 New Adyllin Westgate and 4285 Crowhill Borrowdale were donated to and now owned by the Trust. Further that the Trust had 9 beneficiaries including the minor child.  The Trust had commenced eviction proceedings against the respondent from the Norton property which was operating as a lodge.  The respondent was evicted in October 2019.  He alleged that he was receiving pension in the sum of $487 and that he was also partly being maintained by the Trust due to his advanced age and that he is the founder and donor of the Trust.  He averred that he was using his pension proceeds to maintain the minor child. He was opposed to the upward variation sought because it was not justified.  He admitted that the respondent is not working though it is because she has not made any effort to look for employment. He suggested that if the respondent is desperate, then he was prepared to take custody of the minor child. </p> <p>      The record of proceedings shows that at the hearing of the 24th of December 2019, the matter was postponed to the 6th of January 2020 to enable the appellant to file his opposing papers. The respondent had also questioned whether or not the Trust was registered.  On the 6th of January 2020, the appellant furnished the court with the original deed of registration for the Trust.  The court inquired from the appellant whether or not the minor child was a beneficiary in the Trust and whether she was getting anything. The appellant’s response was that she was a beneficiary and the Trust would be paying dividends at the end of the financial year.  The Magistrate ordered that the justice of the matter required the joining of the Trust as a respondent in the matter especially in view of the fact that the appellant had donated all his income generating properties to the Trust.  The Trust was directed to file a response as the 2nd respondent within seven days. The matter was postponed to the 16th of January 2020.  The Trust filed two documents the first one titled ‘maintenance of X’.  The salient paragraphs to note from this document are the following:-</p> <p>That the Trust had resolved at a board meeting held on the 7th of January 2020 as follows:-</p> <ol> <li>Not to single out (the minor child) from a list of 9 beneficiaries and start maintaining her alone to the disadvantage of other beneficiaries.</li> <li>To treat all beneficiaries equally without favour or prejudice</li> <li>(This appears in paragraph 4):-  At its discretion  to support and continue supporting the founder, by providing accommodation, vehicle and its maintenance, clothing, food and other necessary incidentals</li> <li> (This appears as paragraph 9):- To recognize the eviction court order granted by the Norton Magistrate Court on the 4th of July 2019 and the ejectment order granted thereafter by the same court to eject (the minor child) and her mother H from no. 53 Poort Road Norton a property of the Trust.</li> </ol> <p>The second document is titled. “Benefits of (the minor child) from the Trust this year. The relevant paragraph is as follows: - No beneficiary was to get benefit from the Trust including the minor child.</p> <p>            The court a <em>quo </em>after hearing submissions and considering all the documents submitted by the parties, granted the order varying maintenance of the minor child from $400 to $2,000 per month as prayed for by the respondent. Irked by the ruling, the appellant noted an appeal against the whole judgment based on the following grounds.</p> <ol> <li>The learned Magistrate misdirected himself by approving the application of the respondent whose affidavit failed to produce proof of her allegation as required by law. See bottom of maintenance form M.6, as well as Annexures in the schedule of attachments which requires proof of the changed circumstances by bringing documentary evidence to the court hearing the application for upward variation, as required by that form M6 with calculated amount of change to enable the court to determine the level of variation. In the absence of this very critical information required by law it is puzzling to understand how the trying Magistrate agreed with the respondent in raising the maintenance from $400 -$2,000. What criteria was used other than that required by law as stipulated at the bottom of the maintenance form M6.</li> <li>The learned magistrate also misdirected himself by applying wrongly corporate veil piercing concept to the Alois and Gertrude Nyandoro Trust when he resolved that the founder and donor was one and the same with the Trust yet annexures in the schedule of attachments were very clear in this issue.</li> <li>The learned Magistrate again misdirected himself by failing to note the reason and period respondent lost employment at Ebenezer lodge. Again annexures B and D were very clear in answering this question.</li> <li>The learned Magistrate once more misdirected himself by failing to note that a child is a product of a father and mother and any upward variation in maintenance must be shared by both parents equally, unless one parent is mentally or physically incapacitated. A situation not applicable in this case. If $2,000 every month is to be paid by the appellant alone then respondent should be expected to pay another $2,000 to make it $4,000 for a child 6 years old. This is unreasonably too high.</li> <li>The learned magistrate again misdirected himself by ignoring oral submission and filed by applicant.</li> </ol> <p>In his prayer, the appellant sought the dismissal of the upward variation from $400 to $2,000.  At the hearing, we noted that the appellant who appeared in person made an attempt to make submissions on the nature of forms that the Magistrate relied on and we pointed out to him that this was not the subject of an appeal. He submitted that the court a <em>quo </em>did not look at his means of raising the $2,000 and that the award was not justified. Therefore only two grounds of appeal were addressed. These are;</p> <ol> <li>Appellant’s ability to pay $2,000 per month maintenance for the minor child</li> <li>The quantum of maintenance as varied.</li> </ol> <p>   Pressed by the court he admitted that the $400 that he was paying covered food, clothing, fees and school uniforms for the minor child.  The respondent had submitted that she sought an upward variation because food prices had gone up. The appellant’s contention however was the margin by which the food prices had gone up based on what he termed ‘controlled price’. He also admitted that the respondent was no longer residing at the lodge and was incurring rentals.  Although he had no issues regarding rentals, he took issue with the amount of $500 that the respondent put down as the rentals.</p> <p>   The law on maintenance is well settled. In terms of the Maintenance Act, [Chapter <em>5:09]</em> a respondent must be legally liable, able and be failing to pay maintenance – see s2 (a) (b) (c).</p> <p>       An inquiry is held on the three aspects to make a determination. Some matters end at the legally liable stage, for instance D.N.A tests may prove that the alleged respondent is not actually the father.  On ability, the law expects a parent to do all that they can in order to contribute. On failure to pay, if a respondent proves that they are actually contributing to the maintenance, a court may see no need for an order.  No doubt assessing the level of the maintenance poses a headache especially in an inflationary environment. To that end, South Africa has developed a comprehensive financial disclosure form that a respondent completes and signs before a commissioner of oaths- see the consolidated judgment in <em>E </em>v<em> E, R </em>v<em> R and M </em>v<em> M, </em>case numbers 12583/17; 20739/18 and 5954/18 of the High Court of South Africa, Gauteng Local Division. The form is meant to assist the court in making a determination on the means of the respondent.  At the level of an application for variation, the nature of the inquiry is different.</p> <p>It is imperative that we set out the requirements for an application for variation as per the Maintenance Act. </p> <p>            <strong>Variation or discharge of direction or order</strong></p> <p>            (1) Subject to this section, an application for the variation or discharge of a direction or an   order may be made to a maintenance officer of the maintenance court where the order is for          the time being registered in terms of section <em>eighteen.</em></p> <p>            (2) An application referred to in subsection (1) shall—</p> <p>            (<em>a</em>) be on affidavit; and</p> <p>            (<em>b</em>) state the grounds upon which the variation or discharge is sought.</p> <p>            (3) Subject to subsections (4) and (5), where an application has been made to him in terms of           this section, the maintenance officer shall cause a notice to be served on all persons affected        by the direction or order, as the case may be, to appear before the maintenance court on a date to be specified in the notice and to show cause why the application should not be granted.</p> <p>            (4) The maintenance officer shall, if he considers that an application made to him in terms of           this section is frivolous or vexatious—</p> <p>            (<em>a</em>) decline to cause a notice to be served in terms of subsection (3); and</p> <p>            (<em>b</em>) refer the application to the maintenance court.</p> <p>            (5) If the maintenance court considers that an application referred to it in terms of subsection           (4)—</p> <p>            (<em>a</em>) is frivolous or vexatious, it shall summarily and without holding an inquiry in terms of    subsection (6) order that the application be dismissed; or</p> <p>            (<em>b</em>) is not frivolous or vexatious, it shall direct the maintenance officer to cause a notice to be             served in terms of subsection (3), and subsections (6) to (8) shall thereafter apply and be      followed.</p> <p>            (6) On the day specified in the notice referred to in subsection (3) the maintenance court shall             inquire into the application or may refer the inquiry to the maintenance court of the province           or district where the person in whose favour the order or direction, as the case may be, was      made, is residing.</p> <p>            (7) If the maintenance court holding an inquiry in terms of subsection (6) is satisfied that—</p> <p>            (<em>a</em>) there are no longer any reasons for the direction or order remaining in force, it may         discharge the direction or order; or</p> <p>            (<em>b</em>) the means or circumstances of any of the parties have altered since the making of the     direction or order or any variation thereof, it may vary the direction or order subject to    subsections (3), (4), (5), (6) and (7) of section <em>six </em>which shall apply, <em>mutatis mutandis</em>, in relation to any such variation; or</p> <p>            (<em>c</em>) the manner in which payments are to be made under the order or direction should be       altered, it may vary the order or direction appropriately, subject to subsections (5), (6) and (7) of section <em>six, </em>which shall apply, <em>mutatis mutandis</em>, in relation to any such variation.</p> <p>            (8) An inquiry referred to in subsection (6) shall be held in the presence of the responsible   person or in his absence upon proof of the service upon him of the notice referred to in   subsection (3).</p> <p>What is critical in an application for variation is that, ‘the<em> means or circumstances of any of the parties have altered since the making of the direction or order or any variation thereof’. </em> It being an inquiry, the role of the Magistrate becomes critical.  Section 13 of the Act sets out the nature of an inquiry.</p> <p>In <em>Hora </em>v<em> Tafamba</em> 1992(2) ZLR 348(S) at p 350 F-G mcnally ja alluded to the role of a magistrate in such an inquiry  in these words: -</p> <p>“Generally, the duty of a magistrate in a maintenance application, more particularly where the parties are unrepresented, is that of an investigative magistrate. He is not merely an umpire in a dispute between two sides. He is the upper guardian of the most important party, the child. He must therefore seek out the relevant facts. He must ask whatever questions are necessary to enable him to give an adequate judgment. He must aim to give the child reasonable financial support without placing an unfair burden on either parent.”</p> <p>In <em>casu, </em>the Magistrate as he was entitled to in terms of s13 (c) stopped the proceedings and ordered the joining of the Trust as a party as well as direct that the Trust files a response to the application.  He was not a mere spectator. He rightly recognised that the appellant had donated his immovable properties to the Trust and that this was an issue that needed to be considered. The salient points of the submissions by the Trust to the application have been captured above.  The submissions on behalf of the Trust reveal that the appellant is what can be termed the <em>alter ego </em>of the Trust. Whilst the appellant seeks to create an impression that he is a father who recognises his legal duty of maintenance towards the minor child, the ‘resolutions’ tell a different story.  The Trust sought to create fictitious equality amongst the children of the appellant and yet as admitted by him at the hearing and recognised in the court a <em>quo</em>, all except the minor child in question are majors.  Despite appellant’s submission in the court a <em>quo </em>that the Trust would give out dividends at the end of the year, the ‘resolution’ by the Trust that no one was to benefit that particular financial year including the minor child shows the lengths to which the appellant is prepared to go to ensure that the minor child does not get anything. Ironically, the appellant stated that the Trust would consider, “<em>At its discretion to support and continue supporting the founder, by providing accommodation, vehicle and its maintenance, clothing, food and other necessary incidentals”. </em>Whilst the Trustees may have resolved not to pay out any benefits to beneficiaries save towards maintaining the appellant as the founder including his incidentals, the appellant himself acknowledges his legal responsibility to maintain the child. A part of his incidental expenses include supporting the child. This is not the kind of obligation that the Trustees can say that they will not meet. The appellant’s fundamental duty of support as a father has nothing to do with the suspension of payment of dividends for the pleasure of all beneficiaries. The Trustees must ensure that they provide appellant with sufficient support to meet his child caring responsibilities.</p> <p><em>            </em> For the avoidance of doubt, the appellant is the founder.  He alone can decide when and how much to give to himself whilst the minor child wallows in poverty.  He admitted that the immovable properties that he owns have been donated to the Trust and operate as lodges.  The inescapable conclusion is that the Trust was formed as a way of ensuring that the minor child does not get maintenance.  The concurring judgment by gubbay j in <em>Lindsay </em>v<em> Lindsay, </em>1993 (1) ZLR 195 @203-4 is apt despite it being in relation to a husband who divested himself of assets in order to defeat a claim for maintenance. The learned judge stated, in paragraph H:-</p> <p>Even if I were constrained to accept the applicant’s self-imposed penury as factually established, which I am not, I would be loath to permit of the prejudice caused to the destitute respondent, whom the appellant would otherwise be obliged to maintain, by such an induced liability. For, certainly the change in the appellant’s circumstances did not arise form something beyond his control. It was deliberately engineered with the predominate objective of avoiding the payment upon death of estate duty.</p> <p> </p> <p>The learned judge continued,</p> <p>This principle, then, pertains where difficulties or supposed impossibilities in honouring the obligation to maintain dependants stems from a purposeful undertaking of additional financial commitments, such as a second marriage, or from a decision to reduce income by the taking of early retirement or less onerous and remunerative employment. But it may also encompass a somewhat converse situation- that of a breadwinner who, although not entertaining a positive intention to defeat a potential claim for financial support by a dependant spouse or child, nonetheless irresponsibly closes his eyes to the contingency and voluntarily disposes of all his assets.</p> <p> </p> <p>            The court a <em>quo</em> properly concluded that appellant is the <em>alter ego </em>of the Trust and he cannot escape his legal obligations by hiding behind a Trust. This matter epitomises the length to which the appellant can go to evade meeting his maintenance obligations.  Sadly even though the child is the holder of rights, she remains at the mercy of the appellant in ensuring that her rights are realised unless the courts step in.  The courts in that regard play a critical role in ensuring that the rights of children are enforced. That is why the best interests of the child concept as acknowledged in the court a <em>quo </em>is paramount as enshrined in the 2013 Constitution s19 (1) (and also s 81 (2).   The appellant’s assertion therefore that he does not have the means has no merit.  </p> <p>        It is trite that in an application for maintenance, the onus rests on the applicant to show changed circumstances –see <em>Smit </em>v<em> Smit </em>1994(2) ZLR 149 (S). The Magistrate properly concluded that the circumstances of the respondent and the minor child had changed.   In <em>casu, </em>the affidavit by the respondent was very clear that food prices had gone up and that the minor child was enrolling at a new and expensive school.  The appellant never challenged these assertions and even admitted at the hearing that the minor child had moved to a more expensive school.   The appellant strengthened the respondent’s application for variation by confirming in the document by the Trust on the maintenance for the minor child that the respondent had been evicted from the lodge that she was staying owned by the appellant. The eviction not only affected the respondent but the minor child as well. The eviction meant that the respondent and the minor child would need accommodation. The eviction of the respondent meant that she also lost employment at the lodge a fact that the appellant confirmed in ground 2 of his notice of appeal and in his notice of opposition. The eviction of the respondent disturbed her means of earning a livelihood. Whilst at the time of the application, the respondent was out of formal employment, she was already playing an unquantifiable role of caring for the child on a day to day basis.  Such contribution cannot be ignored. The argument that she is contributing nothing is therefore fallacious. The court rightly considered the issue of inflation as having a bearing on the quantum- see <em>Marufu </em>v<em> Moyo </em>1983 (2) ZLR 386. We see no misdirection on the part of the court a <em>quo </em>in varying the maintenance from $400 to $2000. </p> <p><strong>Disposition </strong></p> <ol> <li>The appeal be and is hereby dismissed</li> <li>Each party shall bear its own costs.</li> </ol> <p>   </p> <p> </p> <p>TSANGA J AGREES:  …….……………………..</p> <p>    </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/419/2020-zwhhc-419.doc" type="application/msword; length=58368">2020-zwhhc-419.doc</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1971/51">Maintenance Act [Chapter 5:09]</a></div></div></div> Mon, 29 Jun 2020 08:11:34 +0000 Sandra 9719 at https://old.zimlii.org Smith v Smith (SC 50-20, Civil Appeal No. SC 430/18) [2020] ZWSC 50 (16 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/50 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/50/2020-zwsc-50.pdf" type="application/pdf; length=281010">2020-zwsc-50.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li></ul></span> Fri, 12 Jun 2020 09:58:39 +0000 Sandra 9659 at https://old.zimlii.org Lock v Lock (Nee Fischer) (SC 51-20, Civil Appeal No. SC 812/17) [2020] ZWSC 51 (16 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/51 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/51/2020-zwsc-51.pdf" type="application/pdf; length=356492">2020-zwsc-51.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/husband-and-wife-family-law">Husband and wife (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/divorce-husband-and-wife-family-law">divorce (Husband and wife FAMILY LAW)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li></ul></span> Fri, 12 Jun 2020 09:37:46 +0000 Sandra 9658 at https://old.zimlii.org