DISTRIBUTABLE
(71)
Judgment
No. SC 91/02
Civil
Appeal No. 78/01
NORA
PFUMISAI BAMBE v PATRICK BAMBE
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & ZIYAMBI JA
HARARE,
OCTOBER 14, 2002
W
T Maredza,
for the appellant
K
S Renzva,
for the respondent
SANDURA JA:
This is an appeal against a judgment of the High Court in which the
appellant was awarded the sum of $40 000.00
as compensation for
her contribution to the matrimonial home, and the sum of $6 000.00
per month as maintenance for herself
until she remarried or started
living with another man as husband and wife.
The appeal
was lodged because the appellant (Nora) believed that she ought
to have been awarded fifty per
centum
of the value of the matrimonial home, and maintenance in the sum of
$9 300.00 per month.
After
hearing counsel for the appellant and without calling upon counsel
for the respondent to address us, we dismissed the appeal
with costs
and indicated that the reasons for that decision would be handed down
in due course. I now set them out.
The relevant
facts are as follows. The parties started living together in Harare
in 1994 and were subsequently married to each
other in July 1997 in
terms of the Marriage Act (now [Chapter 5:11]).
At the time of marriage Nora was aged 27 and the respondent
(Patrick) was 33. No children were born of the marriage.
However,
before the marriage, Patrick purchased the immovable property in
question in 1996. The property was acquired with the
assistance of
a loan from a building society and a guarantee from Patricks
employer. Nora made no contribution towards the purchase
of the
property.
After
the parties moved into the matrimonial home, Nora paid for the
carpets, curtains, crockery and the landscaping of the garden.
She
also paid for groceries, except meat which was bought by Patrick.
In addition, she paid the maids salary, which was $800
a month,
and the salary of a part-time gardener, which was $500.00 per month.
Towards
the end of 1997, the parties ceased living as husband and wife,
although they continued living in the matrimonial home.
Subsequently,
in June 1999, Patrick issued a summons against Nora claiming a decree
of divorce and other ancillary relief. Thereafter,
at the pre-trial
conference held in July 2000, it was noted that the only issues
remaining for determination by the trial court were
the apportionment
of the matrimonial home and the question of maintenance for Nora
after the dissolution of the marriage. The apportionment
of the
parties movable assets had been agreed upon, with most of them,
including all carpets and curtains, being taken by Nora.
The
remaining issues were later determined by the learned judge in the
court a quo
in December 2000, as set out at the beginning of this judgment.
After considering the evidence given by the parties, the learned
judge said the following:
In
my opinion, having regard to the short period that the parties were
living together and the extent of the contributions made by
the
defendant, I do not consider that the defendant is entitled to a
share in the property. It is mortgaged and the amount outstanding
on the loan is substantial. Clearly it would be wrong to require
that the property be sold and the parties share the proceeds.
I
consider that justice will be done if the plaintiff is required to
pay the defendant a reasonable amount as compensation for
the
contributions towards the house and garden. She was not able to
produce receipts or other proof but she estimated that her
contributions amounted to $30 000.00. I consider that
compensation in the sum of $40 000.00 would be reasonable in the
circumstances. As regards maintenance, I consider this to be a case
where the defendant should be paid maintenance. However,
the amount
of $9 300.00 per month that she claimed is excessive. An
amount of $6 000 a month would be reasonable and
should be
affordable by the plaintiff.
In
my view, the learned judges ruling cannot be faulted. Patricks
net monthly salary was $33 000.00 and Noras was
$8 600.00.
The marriage was of very short duration. It was solemnised in
July 1997, but before the end of 1997 the parties
stopped living
together as husband and wife. In the circumstances, there is no
basis for Noras claim to fifty per
centum of the value of
the matrimonial home.
In
any event, it is pertinent to note that in determining the issues
before him the learned judge exercised a judicial discretion,
and
that unless his decision is clearly wrong it cannot be interfered
with. As LORD ASQUITH stated in Bellenden
v Satterthwaite [1948]
1 All ER 343 at 345 B-C:
We
are here concerned with a judicial discretion, and it is of the
essence of such a discretion that on the same evidence two different
minds might reach widely different decisions without either being
appealable. It is only where the decision exceeds the generous
ambit within which reasonable disagreement is possible, and is, in
fact plainly wrong, that an appellate body is entitled to interfere.
That is, I think, the principle which emerges from the decision of
the House of Lords in Evans
v Bartlam [1937] 2
All ER 646, and Osenton
v Johnston [1941] 2
All ER 245.
More
recently, in our own jurisdiction GUBBAY CJ considered the
grounds on which this Court would interfere with the
exercise of a
judicial discretion by a trial court in Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S), and at 62F-63A said the following:
These
grounds are firmly entrenched. It is not enough that the appellate
court considers that if it had been in the position of
the primary
court, it would have taken a different course. It must appear that
some error has been made in exercising the discretion.
If the
primary court acts upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it mistakes
the facts,
if it does not take into account some relevant consideration, then
its determination should be reviewed and the appellate
court may
exercise its own discretion in substitution, provided always it has
the materials for so doing. In short, this Court is
not imbued with
the same broad discretion as was enjoyed by the trial court.
Mr Maredza,
who appeared for the appellant, was unable to say on what legal basis
this Court could interfere with the learned judges determination
of the issues before him, bearing in mind the limited grounds on
which it could do so. However, the difficulty in which he found
himself was understandable. The learned judge committed no error in
the exercise of his discretion.
In
the circumstances, the appeal was devoid of merit and was, therefore,
dismissed with costs.
CHEDA
JA: I agree.
ZIYAMBI
JA: I agree.
Honey
& Blanckenberg,
appellant's legal practitioners
Tizirai
Chapwanya & Partners,
respondent's legal practitioners
