NOMUHLE SITHOLE (NEE MADONGO)

versus

JONATHAN SIMBARASHE SITHOLE

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 20 September 2010 & 15 July 2011

Family Law Court

Trial Cause

M.C. Mukome, for the plaintiff

T. Kanengoni, for the defendant

            MAWADZE J: The parties married each other in Harare on 14 December 1991 in terms of the Marriage Act [Cap 5:11]. The marriage was blessed with two children, namely Simbarashe Sithole born on 5 September 1992 (now a major) and Mutsawashe Unalina  Sithole born on 5 August 1997.

            There is an old saying which states that all good things come to an end. The parties now find that their marriage has irretrievably broken down. The plaintiff issued summons out of this court on 25 October 2006 seeking a degree of divorcee on the basis of irretrievable breakdown, an order of sharing matrimonial property, custody of the two minor children (now only one minor child) and costs of suit.

At the pre-trial conference the parties failed to resolve any of the disputes in issue hence the following six issues were referred to trial for determination:

1. Whether or not the marriage has irretrievably broken down.
2. What constitutes matrimonial property.
3. How should movable and immovable property be distributed.
4. Which party should be granted custody of the two minor children (now only one) and what rights of access should the non custodial parent enjoy.
5. What maintenance should the non custodial parent pay towards the minor children (now only one child) if any.
6. Whether the plaintiff should maintain the defendant and the quantum thereof.

During the trial it became clear that the parties had exaggerated their differences as most issues turned out to be common cause between them. The following issues were common cause:

1. That the marriage between the parties had irretrievably broken down and that a decree of divorce should be granted.
2. That there is no dispute as to what constitutes matrimonial property
3. That the plaintiff should be awarded  all movable property except for the Renault motor vehicle, DSTV decoder, Wiztech decoder, refrigerator and kitchen table which should be awarded to the defendant.
4. That custody of the minor child Mutsawashe Unalina Sithole born on 5 August 1997 be awarded to the plaintiff and the defendant’s right of access to the minor child of two weeks of each school holiday was agreed.
5. That the defendant was to pay contributory maintenance for the minor child in the sum of US$50-00 per month until the child attains 18 years or as self supporting. The other child Simbarashe Sithole though still in college and dependant on the parents is now a major. It was clear the parities were in agreement that they would continue to support the “adult child” in the same manner they are currently doing. There would therefore be no basis for the court to grant any order in respect of this “adult child” if I can use that phrase. The defendant abandoned his claim for post divorce maintenance.

Having agreed on an the above stated issues I find no cause for this court to deal with

these issues in which there is the meeting of the minds between the parties. As was held on the case of Ncube v Ncube 1993 (1) ZLR 39 when parties are consenting to divorce it is not necessary for a court to hear evidence solely for purposes of ascribing fault for the breakdown of the marriage. I am therefore satisfied on the evidence led that the marriage has indeed irretrievably broken down as both parties are clear that they can no longer remain as husband and wife as the love bond between them has been broken beyond repair. The plaintiff in this regard is this entitled to the decree of divorce she seeks.

            During the trial only two issues remained in contention and they are:

1. How the Toyota Corolla vehicle registered in the plaintiff’s name should be dealt with. The plaintiff is arguing that the Toyota Corolla vehicle should be awarded to her whereas the defendant wanted to be awarded a 15% share of the said vehicle.
2. How the two immovable property Flat No. 6 Clover Court 15 Wakefield Road Avondale Harare and an undeveloped stand 2820 Westgate Harare should be shared between the parties. The plaintiff is prepared to accept any one of the two immovable properties although she prefers the undeveloped stand. The defendant on the other hand contends that he should be awarded an 85% share of the value in each of the two properties.

I now proceed to deal with the two issues in contention. In doing so the court is

guided by the provisions of s 7(1) of the Matrimonial Causes Act [Cap 5:13] which deals with the division, apportionment or distribution of the assets of the spouses upon the dissolution of the marriage.  

            In the case of Ncube v Ncube 1993 (1) ZLR 39(S) at 40H -41A KORSAH JA had this to say in relation to the provisions of s 7 of the Matrimonial Causes Act [Cap 5:13].

“The above provisions, to my mind, do more than furnish broad guidelines for deciding what is a fair order in all circumstances, adjusting property rights if need be, under the wide powers bestowed on the court. The determination of the strict property rights of each spouse in such circumstances, involving, as it may, factors that are not easily quantifiable in terms of money, is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion”.

            The relevant guidelines are contained in s 7(4)(a) to (g) of the Matrimonial Causes Act [Cap 5:13]. The list of the factors or circumstances to be taken into account is not exhaustive.

            In the case of Shenje v Shenje 2001 (2) ZLR 160 (H) GILESPIE J at 163F made the following comment in relation to the provisions of s 7(4) of the Matrimonial Causes Act [Cap 5:13]:-

“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 possible relevant factors. The decision as to property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieved 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 disadvantages, to the extent they are not inevitable, of becoming divorced”.

            I totally associate myself with the views expressed by the learned Judge. The learned judge continued on p 163H-164A to make a very poignant point which needs no further elaboration in how the factors listed in s 7(4) of the Matrimonial Causes Act should be assessed:

“The factors listed in the subsection deserve fresh comment. One might form the impression from 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 the 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”.

            After outlining the approach this court would adopt in dealing with the distribution of the disputed assets I now proceed to analyse the evidence placed before the court by the parties in respect of the Toyota Corolla motor vehicle and the two immovable properties.

THE TOYATO COROLLA MOTOR VEHICLE REGISTRATION NUMBER AAV1159

The plaintiff in her evidence stated that she did not deliberately omit to include the

motor vehicle in question on the list of matrimonial property in her declaration issued out of this court on 25 October 2006. She said she only acquired the said motor vehicle after issuing summons. According to the plaintiff her current employers advanced her a loan facility to enable her to purchase the said motor vehicle. She uses the motor vehicle to go to work and to ferry the minor child to school. It is on that basis that she wants to retain the motor vehicle. The plaintiff conceded that the said motor vehicle forms part of the matrimonial estate.

            The defendant’s claim in respect of the motor vehicle is to be awarded a 15% share of the value of the said motor vehicle. The basis of defendant’s claim in that regard is that the motor vehicle is part of the matrimonial estate. The defendant did not at all challenge the plaintiff’s evidence firstly on how and when the motor vehicle was acquired and secondly on the reasons as to why the plaintiff wants to retain the motor vehicle. The defendant was also unable to explain how he had arrived at the 15% share of the value of the motor vehicle. All in all the defendant’s evidence in this regard was uninspiring and lacked conviction.

            It is my considered view that the plaintiff has laid out clearly the basis upon which she should be awarded the said motor vehicle. The fact that she solely purchased the motor vehicle in my view is not the determining factor. I am more inclined to award her the motor vehicle on the basis that she uses it to go to work and she has custody of the minor child who should also enjoy the use of the said motor vehicle I find no objective basis to award the defendant any percentage share of the value of the said motor vehicle, moreso after considering how the matrimonial estate would be distributed.  

            THE TWO IMMOVABLE PROPERTIES

            The two immovable properties consists of Flat No 6. Clover Court in Avondale and an undeveloped stand 2820 in Westgate both in Harare. The properties are registered in defendant’s name and both have been fully paid for.

            The plaintiff’s claim is that she should be awarded one of the two properties although she prefers the undeveloped stand. The defendant on the other hand believes the plaintiff should be awarded only a 15% share of the value of each of the two properties. During the trial both parties remained poles apart on this issue.

            In dealing with this issue I believe some background information is in order. When the plaintiff and the defendant married in 1991 the plaintiff was a qualified teacher and the defendant worked for Old Mutual Company. It is not an issue that the defendant’s job was more rewarding in terms of remuneration and benefits.

            The evidence on how both properties were acquired is largely not in dispute. The flat in Avondale was acquired in 1992 when the plaintiff was a primary school teacher in Kuwadzana, Harare and defendant working for Old Mutual. The undeveloped stand in Westgate was acquired in 1997 and the parties were still employed as already explained. It is common cause that the properties were acquired through mortgage bonds by the defendant which he obtained from his employers Old Mutual. It is also not in issue that defendant repaid the loans for both properties from his salary. All in all therefore it is the defendant who made direct contributions to the acquisition of both properties.

            The flat in Avondale was the matrimonial home from 1992 until on 8 February 2007 when the plaintiff moved out with the children due to the matrimonial problems. The defendant remained in the flat until 2008 when he too moved out and put a tenant from whom he collects monthly rentals.

            The plaintiff joined New Start Centre on March 2003 to date. The defendant is currently unemployed and left employment with Old Mutual in 2007. From that time up to the time the plaintiff moved out of the matrimonial home the defendant did not have a regular job and lived off the plaintiff’s income as it were. In fact the plaintiff said it was for that reason that even after she moved out of the matrimonial house with the children she did not claim for contributory maintenance for the children from the defendant as he was unemployed.

            The plaintiff in her evidence states that both properties were acquired by the defendant through mortgage bonds the defendant solely serviced the loans from his income. The plaintiff’s evidence is that she indirectly contributed to the matrimonial estate inclusive of the two immovable properties. She has now been married to the defendant for 20 years which period in my view should have a profound effect upon the assessment of division of the matrimonial estate. For the period the plaintiff has been married to the defendant she worked firstly as a teacher for 12 years and at New Start Centre now for 8 years. It cannot be doubted that the plaintiff has heavily invested all if not most of her professional and productive life in the marriage.

            The plaintiff’s evidence on how she contributed to the well being of the family has not been controverted. The plaintiff  said while the defendant used his salary to service the loans for the properties she used her income to cater for the family needs inclusive of food, clothes and other necessities. When the defendant lost employment she remained the sole bread winner fending for the children and the defendant. The plaintiff continued to fend for the children when she moved out of the matrimonial house in 2007. I have no doubt that the plaintiff has shown that she invested all herself in the marriage and immensely contributed to the well-being of the family. I have no doubt therefore that the plaintiff’s legitimate expectation upon divorce is to secure her well-being and that of the children and to have if possible roof over their heads. The plaintiff should, with all due respect benefit from her husband’s investments.

            I find the defendant’s evidence to be full of fury and bitterness rather than objectivity. It is clear that the defendant is a bitter man and blames the plaintiff for instituting the divorce proceedings. In fact the defendant made it clear that that the plaintiff is divorcing him because she has secured a better paying job with New Start Centre and the defendant is unemployed. The defendant’s illogical argument is that since he solely contributed directly to the purchase of the two properties he should be awarded an 85% share in each of the properties. He sought to down play the plaintiff’s contributions to the overall well-being of the family. As already said the parties’ direct and or indirect contributions to the matrimonial estate is not the sole or main factor to be considered. The defendant’s attitude smacks of selfishness, bitterness and greedy.

            The plaintiff on the other has been rational, objective that modest in her approach. She opted to be awarded the undeveloped stand on account of her ability to develop the stand and build a house for the children. Although she has custody of the minor child she forfeited her possible right of the usufruct of the flat and accepted that defendant should solely benefit from the flat. The plaintiff is prepared to pay for the transfer costs of the stand into her name.

            It is my considered view that the defendant’s proposal lacks justification and flies in  the facet of the guidelines provided for in s 7(4) of the Matrimonial Causes Act. It is therefore just and equitable that the plaintiff be awarded the undeveloped stand 2820 Westgate, Harare as her sole and exclusive property and defendant be awarded flat Number 6 Clover Court 15 Wakefield Road Avondale, Harare as his sole and exclusive property. 

            Accordingly, it is ordered as follows:-

1. A decree of divorce is hereby granted.
2. Custody of the minor child Mutsawashe Ulina Sithole born on 5 August 1997 is hereby awarded to the plaintiff.
3. The defendant is awarded reasonable access to the said minor child which shall be exercised every two (2) weeks of each school holiday. The access shall be exercised in consultation with the plaintiff.
4. The defendant is ordered to pay US$50-00 per month as contributory maintenance for the minor child until the child attains the age of 18 years or self-supporting whichever occurs first.

5.1. The defendant is awarded the following movable property listed hereunder as his

       sole and exclusive property.

• Renault motor vehicle
• DSTV decoder
• Stove
• Refrigerator
• Kitchen table

5.2 The plaintiff is awarded all the remainder of the movable property as her sole and        

        exclusive property inclusive of the Toyota Corolla motor vehicle.

1. The plaintiff is awarded the undeveloped stand No. 2820 Westgate Harare registered in defendant’s name as her sole and exclusive property. Plaintiff is to pay for all the transfer costs of the property and defendant is to sign all the relevant papers to effect transfer within a month of being notified by the plaintiff failure of which the Deputy Sheriff is authorised to sign all the relevant papers to effect transfer.
2. The defendant is awarded Flat Number 6 Clover Court, 15 Wakefield Road Avondale, Harare registered in his name as his sole and exclusive property.
3. Each party shall bear its own costs.

Muvingi, Mugadza & Mukome,plaintiff’s legal practitioners

Munangati& Associates,defendant’s legal practitioners