DARLINGTONHOSIFISI BENSON                                                                           PLAINTIFF

and

CARITAS JOYCE TAKAI BENSON                                                             DEFENDANT

HIGH COURT OF ZIMBABWE

HLATSHWAYO J

HARARE, 24 January 2007

Mr A. Moyo, for the plaintiff

Mr L.M. Kabote, for the defendant

            HLATSHWAYO J:  The plaintiff instituted divorce proceedings in February 2004, claiming for the granting of the divorce and an order allowing each party to retain his or her assets currently in their respective possessions.  The defendant entered appearance to defend and filed her plea in which she claims:-

1. Fifty percent of Flat No. 179 Odzi Flats, West Wing, Samora Machel Avenue, Harare;
2. Fifty percent of Stand No. 6290 Ruwa, Harare;
3. Movable assets being one 4 plate gas stove, 1 colour television, one video, one decoder, 1 fridge, one 2-in-one blanket, laptop, printer, oil heater, rice cooker and a double bed.

As far as the divorce itself is concerned it is common cause and was in fact agreed at the pre-trial conference stage that the marriage relationship between the parties has irretrievably broken down and that the court should grant the divorce as prayed by the plaintiff.

The background to this matter is that plaintiff is a male adult born in 1952 and employed as Business Manager by Total Zimbabwe (Pvt) Ltd.  The defendant is a female adult who at the material time was employed by ECONET Wireless Limited, and is currently doing consultancy work.  On 20^thSeptember 2001 and at Harare, the parties solemnized a marriage under the Marriage Act, [Chapter 5:11].  The marriage was preceded by a courtship of about two to three months, according to the plaintiff while the defendant’s version is that courtship commenced sometime in February 2001.

The plaintiff has three children (two majors and one minor) from a previous relationship, while the defendant has two children from previous relationships.  Upon marriage the parties established their first matrimonial home in Old Windsor Park, Ruwa.  The “family” consisted of plaintiff, defendant and defendant’s two children.  Plaintiff’s own children were at all material times at boarding school with the minor child staying with her mother.  The plaintiff paid the rent in respect of the house and the parties contributed the other family expenses, though the precise proportion thereof could not be determined.

After about four months the parties moved to No. 63 Letombo Drive, Letombo Park, Greendale, Harare with the same arrangement prevailing, i.e. the plaintiff paid the rent and the other expenses were shared.

In May 2002, some eight months after the solemnization of the marriage, the parties started having matrimonial problems.  This culminated in a letter from defendant’s legal practitioners dated 10 July 2002 seeking to have divorce proceed by consent with parties sharing household effects as per the list attached to the letter (document 13 to Plaintiff’s Schedule of Documents).  Upon separation, the defendant took with her as hers all the movable assets which had been originally claimed by her lawyers in the letter of demand dated 10 July 2002 leaving the plaintiff with the movable assets as per the list attached to the said letter.

Regarding the sharing of property, the claims will be discussed under the subheadings of movable and immovable properties.

Movable Property

Under cross-examination the defendant admitted that she took all the movable items as claimed by her in the letter of demand of 10 July 2002 and left the plaintiff with the movables as suggested by her in the same letter.  Although it was submitted on behalf of the defendant that her failure to make claims for shares in immovable properties in the letter dated 10 July 2002 should not be held against, nothing much was said in support of her claim for additional movables.  In her testimony, the defendant claimed that she had disposed similar property of her own as excess during the course of the marriage in justifying her claim.  I did not find this basis for an additional claim on movables as justified.  The fact of the matter is that the defendant upon separation took all the movables she considered to be hers and left plaintiff with the movables she knew and considered as his.  Thus, the claim for further movables contained in the plea is totally baseless.

Immovable Property

As a bridge between the issues of movable and immovable properties, it is perhaps pertinent to note that the plaintiff has not made any claims to property belonging to the defendant being a share of the retrenchment package in the sum of $1 497 835.55 (a substantial amount at the time) she obtained from her previous employer, together with a motor vehicle being a Mazda Double Cab B2500 which she registered in the name of her mother plus a residential stand in Chishawasha Hills bought and registered in her maiden name.  This evidence, not in anyway challenged under cross-examination, must be taken as accepted.

The proprietary rights of the parties upon divorce fall to be determined in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13] and is not about grabbing as much as possible of what belongs to the other party while assiduously holding on to what one considers their own.  Rather, it is basically ensuring that each party keeps what is rightful “his” or “hers” and is awarded a fair share of what is “theirs”.  See Takapfuma v Takapfuma 1992(2) ZLR 103 (S) at p 106.

Regarding Stand 179 Odzi Flats, the defendant bases her fifty percent share to this property on two grounds, namely that she contributed to purchase price and that her name had been added to the agreement as co-owner.  While it is debatable as to the exact percentage contribution the defendant made to the purchase of the flat, there is no doubt that she did make some contribution, even if it could have been largely indirect.  What however, is beyond doubt is that the flat was legally registered in both parties’ names, thus making the defendant a joint owner.  Whether this was done in recognition of her direct and indirect contributions or as a donation inter vivos is neither here nor there.  The fact of the matter is that she remains a joint owner, making the property half “his” and half “hers”.  The attempt to de-register her was clearly fraudulent and no revocation of the donation, if it was such, was ever made nor any basis for it disclosed.  Therefore, the defendant is clearly entitled to the half share of Stand 179 Odzi Flats.  See Takapfuma v Takapfuma (supra).

With respect to Stand No. 6920 Ruwa Township, evidence led shows that the plaintiff bought this property from Zimbabwe Reinsurance Company Limited through an agreement of sale dated 20 September 1999.  The property was paid for by way of instalments and by 3 January 2001 the plaintiff had paid in full and was invited to pay the transfer fees which resulted in the property being transferred to him.   The plaintiff maintained that he eventually transferred this property into the name of his son in February 2004 to avoid any possible conflict with the terms of his agreement in respect of the Odzi Flat.  The transfer of this property into the name of plaintiff’s minor son just before the institution of divorce proceedings by the plaintiff, does raise the possibility of the plaintiff having been motivated by a desire to ensure that the property was not treated as part of the matrimonial estate.  However, the ploy by the plaintiff to put this property beyond the reach of the defendant even if proved will not be fatal to his claim unless it is further proved that the property was truly ‘theirs”.  Documentary evidence produced during the trial shows that this property was bought well before courtship and paid for in full again before courtship.  By the time the parties solemnized the marriage this property had already been paid for in full.

Since there has been partial success by each party, it follows that each party should bear its own costs.

In conclusion, therefore, it be and is hereby ordered as follows:-

1. A decree of divorce is granted to the plaintiff.
2. The defendant is awarded a 50 percent share of the immovable property No. 179 Odzi Flats, West Wing, Samora Machel Avenue, Harare.
3. Each party shall bear its own costs.

Kantor & Immerman, plaintiff’s legal practitioners

L.M. Kabote & Co., defendant’s legal practitioners