1

HH 825-15

HC 727/09

LB

versus

RRB

HIGH COURT OF ZIMBABWE

GUVAVA J

HARARE, 3 & 5 June, 5 July, 20 September 2010, 13 & 14 January,

                  14 March, 18 & 31 October, 2 November 2011,

                  12 & 26 March, 28, 29 & 30 May 2012 & 8 October, 2015

Trial Cause

M. Chinyenze, for the plaintiff

J. Zindi, for the defendant

GUVAVA J: The stage was set for what should have been a fairy tale romance where the parties live happily ever after but it has turned into a nightmare. What is before the court now is a long and protracted divorce matter after only four short years of marriage. This has been one of the most acrimonious divorces I have ever come across during the ten years I was in the Family Court Division of the High Court.  The case dragged on for more than five years due to a number of reasons. The main one being that the parties disagreed over every single thing. They were more intent in dragging each other’s names through the mud than resolving their differences.

 To add to the delay, the plaintiff has had a change of no less than three legal practitioners who have represented her at different periods during the trial. Eventually, after countless postponements, the instructing attorney took over the case.   The defendant also changed legal practitioners on at least two occasions. This obviously necessitated the transcription of the record so that the different legal practitioners would be aware of what had transpired in previous hearings thus causing further delays.  There were numerous requests for postponements of the hearing by both the plaintiff and the defendant for various reasons including the ill health of the defendant or unavailability of the plaintiff who lives in South Africa.

BACKGROUND FACTS

 The plaintiff and defendant are husband and wife. The defendant is a 66 year old successful businessman. He was married twice before he met the plaintiff. He is the owner of nine fishing rigs which operate in Kariba. He also owns two houseboats and an aeroplane which he hires out for a fee. He lives in Harare with his son N. He would fly out to Kariba in his private plane to oversee his business interests as and when necessary. In Kariba he is the owner of three immoveable properties. One of the properties is occupied by his employee, the other is used by his company as an office and he stays in the third one whenever he is in Kariba.

The plaintiff is a 49 year old divorcee. Prior to her marriage to the defendant she lived in Cape Town with her daughter, C.  She lived in a rented cottage at the back of the main house where she also operated a beauty salon and marketed beauty products. The plaintiff and defendant were introduced to each other in Cape Town by a mutual friend in 2002 and they started going out soon thereafter.

 It must have been a dream come true for the plaintiff as, after she had flown to Zimbabwe a few times to visit the defendant, and following a whirlwind courtship, she moved in with the defendant into his Borrowdale home in December 2002 together with her daughter. The plaintiff shipped her household goods to their new home.  The defendant paid for the transportation of her furniture.  They married on 27 March 2004 in Harare.

 It was not in dispute that during the period when the plaintiff and the defendant lived together the plaintiff ran the matrimonial home. She organised the household and refurbished the house and garden. No expense was spared in redecorating her new home as the defendant indulged her every whim. Building materials were sourced from outside the country and furniture was designed according to their personal specifications. The couple entertained lavishly on a regular basis. The defendants other immoveable properties in Kariba were given a facelift and were refurbished together with the house boats that he owned under the direction of the plaintiff. The plaintiff had a natural flair for decorating and no expense was spared by the defendant in carrying out the decorations.

The plaintiff also had a free hand with regards to the defendant’s financial matters. She paid all the bills using the defendant’s accounts and transferred money from his foreign accounts to Harare whenever there was a need. They went on regular holidays to South Africa where she would purchase clothing for the whole family using his South African bank accounts.

 The marriage was however not a happy one. Although it was initially denied by the defendant, the plaintiff alleged that the relationship was abusive. She however also conceded to being physically abusive towards the defendant. The defendant was however kind towards her daughter and financed her education at Arundel School. The plaintiff alleged that the defendant was not frank with her with regards his conviction for sexual assault of a minor. When she eventually found out the plaintiff left the defendant on 16 January 2009.  They had been married for just over four years.

After she moved out from the matrimonial home, the plaintiff issued summons against the defendant seeking a decree of divorce on the basis of irretrievable breakdown of the marriage and division of the parties’ matrimonial assets. She also sought an order that the defendant bear the cost of returning her furniture to South Africa. She further claimed that the defendant pay maintenance in the sum of R10 000 per month until her death, remarriage or cohabitation with another man as well as a lump sum of US$75 000.  She sought an order that the defendant retain her as a beneficiary of the Discovery Health Medical Aid for as long as he was obliged to maintain her and an order that she be awarded the Borrowdale property as her sole property. Finally she claimed costs of suite.

The defendant in his plea conceded that the marriage between the parties had irretrievably broken down but denied that he was the cause for the breakdown. He filed a counter claim seeking an order for divorce due to irretrievable breakdown of the marriage.  disputed that some of the assets claimed by the plaintiff were matrimonial property and that she was entitled to a share. He averred that she had stolen some of his money and thus  sought an order that the plaintiff pay to him the sum of R69 000 together with interest at the prescribed rate from 17 January 2009, the sum of US$4 900 together with interest at the prescribed rate from 18 January 2009 until date of payment.  

 He further alleged that the basis of the breakdown of the marriage was that plaintiff published defamatory material concerning him and subjected him to mental cruelty and abuse and deserted him without good cause. He also sought an order that the plaintiff return to him his Mercedes Benz motor vehicle which she had taken when she left the matrimonial home. The defendant denied that he was under any obligation to pay maintenance to the plaintiff or to pay for her costs of suit. He denied that he was under any obligation to transport the plaintiff’s property back to South Africa upon their divorce.

            At a Pre Trial Conference held before a judge in chambers the parties agreed on the following issues which had previously been in dispute:

            “1. That the marriage relationship had irretrievably broken down.

2. That the furniture listed in plaintiffs Declaration was brought into the marriage by   

                 her.

3. That the defendant was not liable to pay maintenance in respect of plaintiff’s adult  

    daughter who had attained the age of majority and was residing with the plaintiff in

    South Africa.

4. That the defendant had instituted civil proceedings against the plaintiff in South

    Africa claiming payment of moneys also claimed in the defendants claim in

    reconvention.

5. That the motor vehicle claimed by the defendant (referred to in paragraph 3 (a) (iii) of

     the defendants claim in reconvention) has now been recovered by him.

The parties further agreed that the following issues be determined at trial.

1. What were the substantial causes of the breakdown of the marriage of the plaintiff and defendant?

1. What are the matrimonial assets?
2. How should they be divided between the plaintiff and defendant?
3. Should the defendant be ordered to make any financial provisions in respect of plaintiff and/or contribute to the post-divorce maintenance of plaintiff (and if so in what amounts)?

1. Should plaintiff be ordered to reimburse defendant with any sum of money?
2. Costs of suite.”

I will deal with each of the issues raised.

DIVORCE

The plaintiff gave evidence setting out how she met the defendant until their eventual marriage. She testified that her marriage to the defendant was abusive from the beginning as he assaulted her on more than ten occasions. She however continued with the relationship as she loved him. She stated that his son, N, was also not disciplined and every time she tried to discipline him the defendant would assault her.

 The plaintiff alleged that the defendant was also abusive towards her daughter, C, whom he would refer to as a “lazy fat pig”.  However she conceded that he was generally generous towards her daughter and had treated her as a member of the family. He also paid for her education, holidays and upkeep.

During the marriage the plaintiff wrote several letters to the defendant imploring him to fix their marriage. She would write these letters whenever they had an altercation. The letters were produced in court as exhibits. However, it was her evidence that they did not produce the desired result as the abuse continued unabated especially after they had been drinking. She told the court that at some stage she sought counselling because she could not handle the abuse.

She testified that the defendant had been prosecuted for sexually abusing a young girl in 1994. When the defendant denied the allegations she confronted the mother of the child who had been molested by the defendant and she showed him court papers that indicated that he had indeed been convicted and made to pay a fine. She ascertained that the defendant was charged with sexually molesting three other girls but was not convicted of the offences. In her evidence the plaintiff stated that her daughter had complained to her that the defendant had tried to indecently assault her in a Jacuzzi in Kariba. Although these allegations were denied by the defendant they caused further friction in their marriage.

The defendant gave evidence in respect to the breakdown of the marriage. He alleged that the breakdown of the marriage was the fault of both the plaintiff and defendant. He had been married and divorced twice before he met the plaintiff and both divorces were amicable. He confirmed that he met the plaintiff through a friend. They then started visiting each other until their eventual marriage in March 2004. He stated that he is no longer a young man as he has turned 65 years of age.  He stated that the plaintiff is 16 years younger than him. When he met the plaintiff he was looking for a companion to share the rest of his life. He had thus opened his heart and his purse to her and her daughter but it did not yield the desired results.

 In 2006 he had a heart attack and was flown to South Africa for treatment. He managed to recover and is still under medical supervision. During that time the plaintiff supported him and nursed him back to health. He has severe arthritis such that one of his legs is shorter than the other. He is due to have hip replacement surgery which he said is extremely expensive.

            He denied being abusive towards the plaintiff. Instead he alleged that he took her in together with her daughter whom he educated although he was not obliged to do so. He denied that he had not disclosed the child abuse cases to the plaintiff before the marriage. He stated that at the time the plaintiff moved in with him she was living in a small cottage in Cape Town. When they decided to marry he agreed to transport her moveable assets from Cape Town as she stated that she preferred her own furniture. He denied that he was obliged to return her property to South Africa as she had left without just cause and stolen his money. He confirmed that although he had preferred criminal charges against the plaintiff she had been acquitted by the courts. He stated that he wanted the plaintiff to return the money she had taken from him.

Although both the plaintiff and defendant went to great length giving evidence on the reasons for the breakdown of the marriage and they asked the court to determine what the cause of the breakdown of their marriage was in accordance with their issues which were referred for determination, it was in my view unnecessary, as the parties had agreed in their joint pre-trial conference minute and in their evidence that the marriage between them had irretrievably broken down.

 In terms of s 5 of the Matrimonial Causes Act [Chapter 5:13] (“the Act”), a court may grant a decree of divorce if it is satisfied that a marriage has irretrievably broken down. The provision raises a presumption that a marriage has broken down if the parties have lived apart for a period in excess of twelve months. The plaintiff and defendant had separated on 16 January 2009 and summons was issued on 26 February of the same year. The trial commenced in 2010. During that period the parties had not lived together as husband and wife nor had they sought to reconcile.  It was quite apparent from the evidence of both the plaintiff and the defendant that they were no longer in love.

In the case of Ncube v Ncube 1993 (1) ZLR 39 it was held that where the parties are consenting to divorce it was not necessary for a court to ascribe fault for the breakdown of the marriage.  Where the parties are agreed that the marriage has broken down the court must merely be satisfied, on the evidence before it that the marriage has indeed irretrievably broken down. Indeed from the evidence that was led by the plaintiff and the defendant it was quite apparent that there was considerable acrimony between the parties and that they no longer had any love or affection for each other.  Although the plaintiff asked the court to find that the breakdown of the marriage was caused solely by the defendant, this issue was not specifically pleaded by the plaintiff. It is trite that where a party desires that the court ascribes fault for the breakdown of the marriage and require the court to take those factors into account when distributing the matrimonial assets, then such a claim must be specifically pleaded. As the plaintiff did not do so it is thus unnecessary for me to make this finding.

 In any event both parties agreed during their evidence that they were both at fault for the breakdown of their marriage.

 I am therefore satisfied that the plaintiff is entitled to a decree of divorce on the basis of irretrievable breakdown of the marriage.

DIVISION OF MOVEABLE ASSETS

It was not in dispute that the plaintiff moved to Zimbabwe with her furniture. The defendant whilst agreeing to the list as set out in the plaintiff’s declaration denied that he was obliged to ship the property back to South Africa on behalf of the plaintiff.

The parties gave extensive evidence about the acquisition of their moveable property as they were not in agreement on how it should be shared as between them. With the assistance of their respective legal practitioners they eventually signed a deed of settlement in respect to some of the moveable property. It was produced as exh 57 during the trial. However, in spite of the deed of settlement, the parties continued to bicker about the assets throughout the trial. In order to bring some sort of finality to the matter it is my view that in making an award at the end of the trial I should incorporate the agreement as part of the order that I will make.

 The plaintiff and defendant did not agree on the division of some their moveable assets. I will therefore deal with each of those assets in turn. In awarding this I will take into account s 7 of the Act.  

1. Apple Laptop

The defendant bought the laptop in Sandton, South Africa in 2008. It was not in dispute that the plaintiff chose the brand of the laptop as well as the software that was installed. It cost about 18 000 Rand.

The parties however were not agreed on the ownership of the laptop.  The plaintiff stated that the defendant gave her the laptop as a Christmas present. The plaintiff used it for her personal emails and for business purposes.

 The defendant on the other hand denied that he bought the laptop for the plaintiff. He stated that he bought the laptop so that it could be used by the family. He had no problems with the plaintiff using it for her personal business as long as it was available to all the members of the family. It is not in dispute that at the height of their problems the defendant removed it from the boot of the Mercedes benz a few days before she left in 2009.  He subsequently gave it to his son N when he went to University.

The plaintiff submitted that the laptop should be awarded to her as it was hers. She further alleged that the laptop contained all her personal information as well as her emails. She stated that when she left she took an HP laptop as the defendant had removed the laptop from the boot of the Mercedes Benz a few days before she left the defendant. She however stated that she was willing to return it to the defendant as soon as she received the Apple laptop.

An examination of the property that was awarded to the plaintiff in the deed of settlement shows that she was awarded the HP laptop. In my view since the plaintiff was awarded the HP laptop in the deed of settlement and she accepted it by signing the deed of settlement that should put to rest the claim for the apple laptop. In any event she has possession of the HP laptop.

 The Apple laptop is therefore awarded to the defendant.

1. Bedroom suite

The plaintiff testified that she should be awarded the bedroom suite as she had designed the bedroom suite.  It was built at Personal Touch at Borrowdale according to her specifications. It was made of teak wood and she had purchased it from her own funds after she did some consultancy work at Spar and Makro Department stores. They paid the money into her personal CABS account after she completed the consultancy work. She produced as an exhibit the letter she wrote to Personal Touch instructing them on what she wanted the bedroom suite to look like. She also produced proof of payment for the bedroom suite. The plaintiff suggested that she should be awarded this bedroom suite and the defendant can keep the old one which he had.

The defendant originally took the stance that he should be awarded the bedroom suite as the basis of making an award was not necessarily to the person who had purchased it. However during cross examination he indicated that he was no longer averse to the plaintiff being awarded the bedroom suite.

On the basis of the defendants consent therefore the bedroom suite is awarded to the plaintiff.

1. Tumble drier

The plaintiff stated that they also owned a tumble drier. She testified that it was purchased prior to their marriage.  She suggested that the defendant could keep the tumble drier provided she was awarded the LG washing machine as it was fitted with a tumble drier.

 As the plaintiff was awarded the LG washing machine in the Deed of Settlement it seems to me only just that the defendant is entitled to the tumble drier.

1. Genesis Vacuum cleaner

The plaintiff said she should be awarded the Genesis Vacuum cleaner as it was a special one. She testified that it was unique as it not only cleans carpets but curtains as well. It was purchased in 2008 for about SAR 5 000. Prior to the purchase of this vacuum cleaner they had purchased four other vacuum cleaners. The plaintiff stated that the court should take into account that the defendant has staff to assist him which she did not have it was just and equitable that she should be awarded the Genesis Vacuum cleaner.

The claim was opposed by the defendant. I take the view that since the Genesis Vacuum cleaner was awarded to the defendant in the Deed of Settlement I will not interfere with the award. Accordingly it is awarded to the defendant.

THEFT OF FUNDS

The plaintiff denied that she had stolen either the US$4 900 or the 69 000 Rands. She

stated that the defendant had made a report to the police and she was arrested for the offence. She was however acquitted by the criminal court.

With regards to the US$4 900, she testified that although the money could have been

in the safe she was not the only person who had access to the safe as N also had access to it and other members of staff knew where the key was hidden. She averred that the money could have been taken by anyone of those people.

The defendant confirmed that N had access to the safe where the money was

kept. He was however adamant that N did not have a motive to take the money whereas the plaintiff on the other hand was planning on leaving him. The defendant also stated that apart from these sums of money the plaintiff had helped herself to US$1 600 which had been paid for the charter of the houseboats.

It should be noted that the degree of proof which is required in a civil matter is much lower than that of a criminal trial. The defendant in this case (as the plaintiff to the theft) merely has to show on a balance of probabilities that the plaintiff (who is the defendant in respect to the theft) took the money. Clearly from the evidence the plaintiff had the motive as she was planning on leaving the defendant. She had access to the money as the safe was in their bedroom. The plaintiff also accepted that she cleaned out the defendants South African account of the sum of 69 000 Rand. In my view all these factors show that she was determined to take as much money as she could when she was leaving the defendant.

It is my view therefore that the defendant has shown on a balance of probabilities that

that it was the plaintiff who stole the US$4 900.

With regards to the 69 000 Rands the plaintiff testified that she had signing powers to

the account. She confirmed that she had taken the money because she was under the belief that it belonged to both of them. It was not in dispute that during the time that they lived together the plaintiff ran the financial affairs in their home. Although the defendant stated that she only made transfers after he had instructed her to do so I found that difficult to believe. When the defendant had a heart attack the plaintiff was able to access money for the defendant’s treatment when he could not give such instructions. It is not in dispute that the plaintiff had the defendant’s password and pin number to the account. It seems to me that the plaintiff did have access to the money and could withdraw at any time even though the account was in defendant’s name.

It is my view therefore taking into account all the circumstances that the plaintiff did

take the money as alleged by the defendant.

MAINTENANCE

The plaintiff stated that she was claiming maintenance for her upkeep in the sum of SAR 10 000 per month. She stated that she required the money as she had no source of income. She testified that has had to depend on family and friends for her upkeep since she separated from the defendant. She testified further that although she had applied for employment she had not yet managed to secure any formal employment. She stated that she had utilized the 69 000 Rands in paying for lawyers’ fees.

The plaintiff explained that she required US$300 for rent, US$150 for electricity and

water, US$ 250 for food, US$100 for doctors’ bills, US$150 for fuel and US$200 for miscellaneous things such as make-up and entertainment.

 The defendant denied that he was obliged to pay maintenance for the plaintiff. He

stated that the business was not doing well. He had to pay tuition fees for N, his son who was attending university in South Africa. He also said that he was no longer a young man and was of ill health as he was due for an hip replacement operation. It was his evidence that the plaintiff was 16 years younger than he was and that with some effort on her part she should be able to obtain some sort of employment to look after herself.

It is now an accepted principle of our law that a wife is not generally entitled to

maintenance if she is able to work and support herself. In the case of Chiomba v Chiomba 1992 (2) ZLR 197 (S) the court established the following principles:

(i)         Marriage can no longer be seen as providing a woman with a bread ticket for life.

1. Young women who worked and supported themselves before marriage will not after divorce be awarded maintenance if they have no young children.
2. If a young woman has given up work during the marriage she will be awarded short term maintenance to tide her over until she finds employment.
3. Elderly women who have been married for a long time and are too old to go out and earn a living and are unlikely to remarry will require permanent maintenance.

In this case the plaintiff is still young enough to seek employment and to look after herself. She has no young children to look after. In any event evidence was led to show that she was already portraying herself as a single woman on the internet. In my view she does not fall into any of the categories that have been outlined above and is thus not entitled to any maintenance from the defendant. In any event the plaintiff helped herself to considerable amounts of money before she left the defendant. I have also taken note that she has consistently refused to avail her financial statements to the court despite numerous requests. In my view this failure to be candid with the court leads me to the inescapable conclusion that she may have a considerable nest egg which she has accumulated for herself.

In the case of Wachtel v Wachtel 1973 1AER at 829 it was stated as follows:

“There will be no doubt a residue of cases where the conduct of one of the parties, in the judge’s words, is both obvious and gross so much so that to order a party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or reduce the support which it would otherwise have ordered”

 This view is also confirmed by the fact that although Chezelle’s father was making a monthly payment towards her maintenance.  The plaintiff lied to the defendant that he was no longer doing so and diverted the money to her account. In the meantime the defendant was paying for all Chezelles requirements. I found this to be totally repugnant in view of their agreement that the money should be deposited into defendants account for use in N’s education.

 In any event the money that she took from the defendant is sufficient to tide her over until she finds formal employment or she sets herself up in the business that she was doing prior to her marriage to defendant.

DIVISION OF IMMOVEABLE PROPERTY

The plaintiff testified that when she moved into 67 Borrowdale Road (the Borrowdale property) property in 2002 the defendant was still paying the mortgage bond on the property. She admitted that the property had been purchased in February 1998.  It was eventually paid off in September 2004 when the bond was eventually cancelled.  She continued that the money to pay for the mortgage repayment came from sales from the business of Kapenta sales.

            She stated that she was a director of the defendant’s company as from September 2005.  She had the relevant training and experience as she worked for her former husband in the transport business. She also operated her own business running a beauty salon and marketing beauty products. She stated that although she was in full time employment she did not receive a salary. The defendant would give her money as and when she needed it to purchase groceries, clothing for the family and for incidentals.

The plaintiff also designed and renovated the house and gardens. She had two new generators installed. All the houses in Harare and Kariba were painted. In respect to the Borrowdale house new tiles were installed. The kitchen was expanded and new door handles replaced the old ones.  She chose fabric for new curtains for the lounge and dining room which she designed. A water purification system was put in the kitchen. All gutters were replaced. The garden was landscaped and special lights installed. A terrace was also built round the pool area. A new driveway was also built and the wall around the house was raised.

The plaintiff stated that she did not know the cost of all the renovations since the defendant kept all the receipts. She also conceded that she did not make a financial input into the renovations. Where items were bought outside the country she did the transfers. She paid and supervised the builders whenever the defendant was not available. During the marriage she hired and fired staff and was also in charge of the daily running of the house. She handled all the accounts of the house i.e. payment of medical aid, water, electricity, school fees for the children and payment of DSTV.

Apart from their home in Harare they also had a house in Kariba where the defendants business was. She effected some renovations to their house there though they were not as extensive as the ones at the Borrowdale house. She also had the other two houses in Kariba renovated.  The cottage at the business premises was also renovated. She also renovated the business property. She removed the carpets and had tiles fitted in new ones. She redecorated the defendant’s office and had the furniture upholstered. She bought a new fax machine, photocopier and printers. A new telephone system was installed under her directions. New vehicles were bought including a new UD truck.

The company had two house boats and the plaintiff did all the marketing, sales and charters. The houseboats were also renovated and new furniture purchased for them. They were repainted and new steel rails were installed. The defendant also owned an aeroplane which was subsequently sold during the trial. It also generated income as it sometimes clerked out. The defendant bought her a Mercedes Benz motor vehicle and an apple laptop for her use.

When the defendant had a heart attack she nursed him until he was well again. During the time that he was indisposed she managed all the financial accounts without any input from the defendant.

The plaintiff stated that because of her indirect control she was entitled to the Borrowdale property. In cross examination the plaintiff conceded that the defendant was 16 years older than her and had attained the age of 65 which is normally retirement age. She also conceded that the marriage had lasted barely four years. She was however adamant that she was entitled to the Borrowdale property.  In response to a question she stated that the defendant could live in Kariba.

He denied that the plaintiff was entitled to the Borrowdale house particularly in view of the fact that she had deserted him for no reason after he had looked after her and her daughter. He was also extremely angry that she had stolen his money and diverted Chigelles maintenance money which had been paid by her father.

She called Patrick O’ Hara as her witness. He stated that he had done some work for the defendant during his marriage to the plaintiff. The essence of his evidence was that he had assisted plaintiff when she moved out of the matrimonial home. He further testified that the Borrowdale home had improved very much from the time he had seen it before the plaintiff redecorated it. He stated that when he came to the matrimonial home when the plaintiff moved out he just wanted to assist her as she appeared very unhappy. In cross examination he denied that he was plaintiff’s lover.

The defendant stated that at the time the plaintiff moved in with him he had paid a deposit of 25% for the Borrowdale house. After that he was paying a monthly instalment every month. He obtained the money to pay for the house from his business operations.  He stated that he paid off the mortgage within six weeks of their marriage. He denied that the plaintiff was involved in his business operations as she was a South African citizen and thus could not be employed by his company. He set up the company in 1977 long before he met the plaintiff. It was the defendant’s assertion that when he married the plaintiff he did everything possible to make her happy. He allowed her to carry out renovations to his various properties and he paid for everything. He was quite happy to look after the plaintiff and her daughter.

In cross examination he however conceded that she may have sold some of the fish from the house. However it was his contention that the actual sales were conducted by his gardener and the plaintiff merely received the money. He was adamant that the bulk of the fish was sold from the company rather than from home. He also conceded that she would collect the money for renting out the house boats and for chartering the plane and give it to him.

He was adamant that the plaintiff was not entitled to the Borrowdale house. He stated that although the plaintiff had come up with the ideas for the renovations of the house he had paid for everything.  He further stated that she had three domestic workers who did all the household work though they worked under the plaintiff’s supervision. He paid the salaries for the domestic workers. It was his view that her indirect contributions would not warrant the award of the Borrowdale house. It was also his view that the plaintiff did not require the house as she lived in South Africa whereas that was his home together with his son.

He also stated that the plaintiff should not get a share of the matrimonial home as she had refused to disclose her financial circumstances despite repeated requests. He reiterated that the plaintiff should be punished for her marital misconduct as she had not only stolen from him but had become involved in an intimate relationship with Mr O’Hara. He was also unhappy that she had diverted the maintenance payments made by C’s father to her account when in fact they had agreed that the money should be paid into his account as he was meeting all her requirements in Zimbabwe.

He denied that he still had money in the Scottish Provident Fund as it was used to meet his hospital bills and he also lost money as the economy was not performing. He further stated that he would withdraw the money in order to keep the business afloat. This was quite apparent from the documents produced by the defendant through his accountant. After the plaintiff left him he was forced to share the Borrowdale house with a tenant in order to meet their expenses as the business was not doing well. The tenant however left in 2010 without paying his rent which had accrued in the sum of $3 600.00.

The defendant was of the view that whatever plaintiff had done in whatever way did not result in the creation of new wealth but rather depleted significantly the asset base that he had built up over the years. Any additional award to her would be unjust and would have the effect of making him poorer while she benefitted from their failed marriage.

The defendant was very angry throughout the proceedings. He was bitter about the money that he had spent on the plaintiff and her daughter. He was also angry that the plaintiff had withdrawn money from his bank account without his consent, the safe in the house and the money which the plaintiff had received as payment for the houseboat and diverted for her own needs after they had separated.

The defendant called Mr Louw Erusmus Vermaak as his witness. He indicated that he was the Director of Accounting and Executor Services (Pvt) Limited and was the accountant for the defendants company. He testified that he had been associated with the defendants company, Zambezi Proteins (Pvt) Ltd, as Company Secretary since 2007. He was not involved in the day to day affairs of the company as the defendant employed a book keeper, a Mrs Webster. He testified that as far as he was aware the plaintiff had no financial involvement in the company.

He testified that the plaintiff had approached him and indicated that she was worried about what would happen to her in the event that the defendant died. When the plaintiff approached him about securing her interests he assumed that she had discussed the issue with the defendant. He advised her that he would draft a will which would ensure that she got a life usufruct over the house in Borrowdale. He also drafted documents for the establishment of a company called Sporling Investments. He however did not discuss this with the defendant. He gave the plaintiff the will and the documents establishing the company so that she could discuss with the defendant and for his signature if he was agreeable with the terms. He was surprised when he heard that he had wanted to protect the plaintiff’s interest as against the defendant.

He indicated that the defendants company like all other businesses during this period was going through challenging times. He denied that he was aware of any money which was deposited into South African bank accounts for fish sales. In my view this witness gave his evidence in a fair manner and was not shaken in cross examination despite the concerted effort by the plaintiff to show that he was giving evidence for defendant in order to protect his interest as company secretary.

In terms of s 7 (4) of the Act the court is enjoined to take into account the factors set out in the Act when distributing matrimonial property upon dissolution of a marriage and to endeavour as far as possible to place the spouses in the position they would have been had the marriage relationship continued.  See Gonye v Gonye SC 15/09). In making such an award the court is granted a very wide discretion which involves transferring property from one of the parties to the other. In the case of Hatendi v Hatendi 2001 (2) ZLR 530 it was stated that s 7 (4) grants to the court very wide discretionary powers in awarding property upon divorce. The factors set out in s 7 (4) (a) to (g) of the Matrimonial Causes Act merely provide some guidelines on the factors that the court should take into account when making an award upon divorce.

 In the case of Takafuma v Takafuma 1994 (2) ZLR the court stated that a reasonable approach to the distribution of property was to place the property into lots of ‘his’, “hers” and “theirs”. In this case, apart from some of the moveable property which the parties have already distributed between themselves to a large extent, all the immoveable property would fall into “his” category as it all belonged to the defendant having been acquired by him largely before his marriage to the plaintiff. However it is now settled that all the assets are liable to distribution whether they were acquired before, during or after separation. See Ncube v Ncube (supra).

The plaintiff has claimed the Borrowdale house as her sole property to the exclusion of all the other immoveable property. This is the house that they lived in during the marriage. It is not in dispute that she worked hard in making improvements on it although these were paid for by the defendant from proceeds of the company which he operated. Although it was disputed by the defendant, I believed the plaintiff when she told the court that she exerted considerable energy into the development of the company. Her input may not have translated into financial benefit to the company in the short term but there can be no doubt that in the long term there would have been some benefit. She suggested the renovations to the houseboats which brought in some income and renovated the houses in Kariba. I however disbelieved the plaintiff that she was a salaried director of the company. It was obvious from her evidence that she held no post in the company. However as the defendant’s wife I have no doubt that she exerted quite a bit of influence. It was also apparent from her evidence that she had considerable exposure to running a business from her ex-husband Bill. The defendant did not dispute the fact that she came up with a number of ideas for the business and he seemed to rely on her to make money transfers as she was computer literate.

With respect to her claim to the Borrowdale property it seems to me that the plaintiff has not established that she has a valid claim to a share of the property. While it was apparent that she was entitled to a share of the matrimonial assets because of her indirect contribution to the development of the properties I am not persuaded that such contribution warrants a cart blanche award of the Borrowdale home.

In my view the justice of this case would be best served if the plaintiff was awarded stand 335-26 Syringa, Kariba. I have come to this conclusion for the following reasons. The marriage between the parties lasted barely four years. In the case of Shenje v Shenje 2001 (2) ZLR 160 it was stated that after a short marriage the spouses cannot legitimately expect to get out of the marriage more than they put in. In this case the marriage lasted for barely four and a half years.

There are no children in the marriage. The plaintiff has returned to South Africa where she lived prior to her marriage to the defendant. She does not really require the house in Borrowdale whereas that is where the defendant lives with his son.  When the plaintiff married the defendant he had already purchased the Borrowdale property although he was still paying the mortgage.

The facts of this case have made it one of the more difficult ones to make an equitable distribution because of a number of factors. Firstly most of the property had already been acquired by the defendant when the parties married. The plaintiff made no financial contribution into any of the improvements to the properties. Both parties were at fault in the breakdown of the marriage. The plaintiff refused, despite repeated requests to be candid with the court and provide her financial statement to the court. I have found as a fact that she helped herself to considerable amounts of money from the defendant without his consent. Although the defendant had claimed a return of the money it is my view that the justice of the case would not warrant such an order. In my view it would be appropriate to take those factors into account when distributing the assets of the marriage. I have also taken this into account when I determined that the plaintiff was not entitled to a monthly maintenance award. In the case of Masiwa v Masiwa SC 2007 (1) at 167 the court made an award of 25% of the parties matrimonial home which they had jointly acquired and was registered in both their names. This was in acknowledgment of the wife’s indirect contribution after two and a half years together. In the Masiwa case the court was distributing just one immovable asset and the parties were both registered owners of the property. In this case the plaintiff is not the registered owner of any of the property

COSTS OF SUIT

The plaintiff has claimed costs of suit. In order for the plaintiff to succeed in this respect she must demonstrate why the court should move away from the general rule that each party bears its own costs in matrimonial matters. In the case of Kumirai v Kumirai 2006 (1) ZLR 134 Makarau J (as she then was) stated as follows:

“As a general rule, the approach of the court in matrimonial matters has been to make no award of costs. This is in line with the irretrievable break down principle that does not seek to apportion fault to the divorcing parties. Where a marriage has irretrievably broken down, none of the parties are in the main successful, as a decree of divorce will be issued to both the parties. Thus, the general principle that costs follow the cause is not of general application in matrimonial matters. It may however be applied in the discretion of the court in the event that the defence to the divorce and to ancillary relief was grossly unreasonable and amounts to vexing the party approaching the court for divorce.”

 The plaintiff has not in my view established a basis upon which to persuade the court to exercise this discretion in her favour. The defendant made several offers to settle this case which offers were spurned by the plaintiff as she wanted more than he thought she was entitled to.  The costs that she has incurred are …. because of her own intransigence. She changed legal practitioners on numerous occasions because she did not accept their advice.  Whilst the defendant is not completely exonerated from the problems that have bedevilled this trial I am of the firm view that each party should bear their own costs.

DISPOSITION

Having regard to all the circumstances of this case I make the following order:

1. A decree of divorce be and is hereby granted.
2. The parties are each awarded the movable property as set out in the Deed of Settlement entered into by the parties on 31 October 2011.
3. The plaintiff be and is hereby awarded the teak bedroom suite as her sole and exclusive property.
4. The defendant be and is hereby awarded the apple laptop, tumble drier and Genesis vacuum cleaner as his sole and exclusive property.
5. The plaintiff be and is hereby awarded the immoveable property known as stand 335-26 Syringa Avenue, Kariba as her sole and exclusive property.
6. The plaintiff’s claim that the defendant pay the plaintiff the sum of US$75 000 is hereby dismissed.
7. The plaintiff’s claim that defendant transfer the immoveable property known as stand 67 Borrowdale Road, Harare be and is hereby dismissed.
8. The plaintiff’s claim that defendant pay monthly maintenance in the sum of US$ 1 000 be and is hereby dismissed.
9. The defendants claim that plaintiff be ordered to pay to the defendant the sum of Rand 69 000 and US$4 900 be and is hereby dismissed.
10. Each party shall bear their own costs.

M S Chinyenze & Associates, plaintiff’s legal practitioners

Mtetwa & Nyambirai, Incorporating Wilmot & Bennet, defendant’s legal practitioners