3
HH 582-24
HCH 2061/22
TRACEY CHIVUNGA
versus
WELLINGTON CHIVUNGA
HIGH COURT OF ZIMBABWE
MAXWELL J
HARARE, 2 December 2024
Civil Trial
T. Kangira for the Plaintiff
S. Musapatika for the Defendant
MAXWELL J:
BACKGROUND
The Plaintiff and the Defendant were married on 3 October 1999 under the then Marriage Act [Chapter 5:11]. No children were born out of this union. On 28 March 2002, the Plaintiff issued out summons for divorce and ancillary relief. In her declaration, the Plaintiff stated that the relationship had irretrievably broken down to the extent that there were no reasonable prospects of restoration of a normal marriage. She proposed that she be awarded half share of Stand Number 355 Malbereign, Township held under title Deed Number 4229/2004, sole and exclusive ownership of movable property in her possession and, that the Defendant be awarded half share of Stand Number 355 Malbereign, Township, sole and exclusive ownership of movable property in his possession.
The Defendant gave notice and entered his appearance to defend on 13 April 2022. In his plea, he pointed out that the Plaintiff was violent and that is the reason why he moved out of the matrimonial home. He stated that the Plaintiff did not contribute directly or indirectly to the acquisition of the immovable property. He alleged that the property was acquired using the proceeds of the sale of his Glenview property and a loan from his employer, Barclays Bank of Zimbabwe Limited, now First Capital Zimbabwe Limited. He proposed that the immovable property being a certain piece of land situated in the district of Salisbury be distributed between the parties at the ratio of 15% to the Plaintiff and 85% to the Defendant with the Defendant being given the option to buy the Plaintiff out.
However, on 26 August 2022, Defendant’s Legal Practitioners filed a counterclaim. In the counterclaim, the Defendant pointed out that he acquired the immovable property solely. He proposed that the property be shared between the parties with the Plaintiff (in reconvention) getting 85% and the Defendant in re-convention) getting 15% with the Plaintiff being given an option to buy out the Defendant within 12 months of granting of the divorce order. The Defendant in reconvention filed her plea on 9 October 2022. In her plea, she submitted that the Plaintiff in reconvention moved out of the matrimonial home to live with one Sally Fernando. It resulted in the Plaintiff in reconvention instituting divorce proceedings under Case Number HC 1866/2008 which was not finalized.
She further pointed out that during the subsistence of their marriage, they acquired immovable property namely Stand Number 355 Malbereign Township, Harare, stand 7967 Belvedere West Harare, stand 439 Eye Court Township Waterfalls Harare, and a Stand in Msasa Township Harare. The parties also acquired a Toyota Camry and a Toyota Corona. She proposed that, she be awarded a 100% share in the Malbereign property whilst the Plaintiff in reconvention is awarded Msasa house and that Eye Court Stand and Belvedere Stand be sold and the proceeds thereof shared equally between the parties. Plaintiff in reconvention offered Defendant in reconvention a Toyota Corona whilst he retains the Toyota Camry vehicle.
In his replication, the Plaintiff in reconvention stated that he acquired the Malbereign property alone. He further stated that Stand 7967 Belvedere West was held in trust for Plaintiff’s son who was a minor by then and had no title deeds but was subsequently sold to meet the minor’s needs. He alleged that, stand number 439 Eye Court Township Waterfalls was sold in 2014 to recoup value after the realization that the cooperative was not legitimate. Further, he denied ever acquiring a property in the Grange and a property in Msasa township, Harare. He pointed out that the cars had been since disposed of.
JOINT PRE-TRIAL CONFERENCE
On 5 June 2024, a Joint Pre-trial conference was held and the parties agreed on other issues and the following issue was referred to trial.
What is the just and equitable distribution of the immovable property being certain piece of land situate in the District of Salisbury called Stand Number 355 Malbereign Township measuring 1 836 square meters and registered in the name of the Defendant under Deed of Transfer Number 4229/2004 dated 8 June 2004?
TRIAL
Plaintiff’s Case
Two witnesses gave evidence for the Plaintiff. The Plaintiff was the first to give evidence. The Plaintiff gave the following evidence. She confirmed that they were married on 3 October 1998 and she tendered the original marriage certificate as proof of the marriage. The parties stayed together for ten years from 1998 to 2008 when the Defendant moved out to live with another woman. No children were born of this marriage. The Plaintiff maintained that the collapse of the marriage relationship was due to the Defendant’s infidelity which resulted in the birth of children out of wedlock. The Plaintiff claimed that she had been living at the matrimonial home since 2008.
The Plaintiff admitted that she did not contribute financially towards the purchase of the Mabelreign property, she did not know the purchase price and the property is registered in the name of the Defendant. She asserted that she is entitled to 50% share of the property because she played a role in taking care of the Defendant, supporting the Defendant and his family. She confirmed that she has been receiving rentals from the main house since 2012 to date, while the Defendant was taking rentals from the cottage. She averred that she was not violent towards the Defendant.
Under cross examination she stated that she has been working as a hairdresser since 2008 at Prime Impressions in Mabelreign, earning approximately US $500.00 per month. She admitted that on rental income from the property and after expenses, she will be left with income of about US $32 000.00. The Defendant was renting from 2008 to date. She stated that she did not have any records regarding the expenditure on electrical or water maintenance. The Plaintiff further explained that the Defendant allowed her to collect and use rental income for her own benefit.
The second witness to testify was Cosmas Chisvo, a former tenant who left the property in 2015. He testified about the condition of the property and its need for maintenance during the time he stayed at the property. He stated that he occupied the cottage and he was paying US $ 150.00 per month as rent and it was collected by the Plaintiff. He further confirmed that they were electrical and water leakage problems which were fixed by the Plaintiff. He stated that at one point in time ZESA was called to fix electrical issues but he was not aware of the costs paid to ZESA by the Plaintiff.
Defendant’s Case
The Defendant was the sole witness in his case. His evidence was that he is the registered owner of the property as evidenced by the Deed of Transfer. He acquired the property in 2004, through the sale of a Glenview property, which he owned prior to his marriage to the Plaintiff and a loan of $ 27, 092 312.00 million. The Defendant stated that the proceeds from the sale of his Glenview property formed or contributed a greater portion to the purchase of the Mabelreign property. In March 2008, he vacated the matrimonial home to reside in Msasa Park as a tenant of Eptain Trading Private Limited paying US $ 500.00 as rentals. He tendered a lease agreement as evidence. He further stated that he vacated the matrimonial home due to fear for his life due to violence caused by the Plaintiff. He reported the domestic violence incidents at Mabelreign Police Station in 2007. He mentioned that when he attempted to visit the property, he was denied access by the Plaintiff, as all the locks had been changed.
The Defendant stated that he has two children, one born before separation and one born after separation. He disclosed that he took care of the Plaintiff financially as she was unemployed for most of their marriage and regarded her family as his own and provided support for them as well. He produced a valuation report of the Mabelreign property which put the current estimated value at US $90 000.00. He explained that he did not receive any rentals from the property until 2015, when he began to receive rentals from the cottage. Initially, the rental was US$ 150.00, which has since increased to US$ 300.00. Plaintiff excluded the Defendant from participation in rental collections and property management. The Defendant accepted that Plaintiff was his wife and she should get something. He proposed that he be awarded 70% share because he acquired the property solely through his personal efforts, he was not receiving any rentals money from the onset while the Plaintiff got 30% share from the Mabelreign property. The Defendant gave evidence to the effect that he did not abandon the property, he left for security reasons.
He further acknowledged that the Plaintiff took care of his children and relatives. Plaintiff did not want the Defendant to interfere with tenants and to collect rentals. The Defendant asserted that his life was difficult and he had to beg the Plaintiff to stay in the cottage of his own house. He was offered a portion of the rentals and he accepted it since he was facing financial distress after his retrenchment. The Defendant further stated that he was never involved with other women before separation.
THE LAW
It is trite that section 7 of the Matrimonial Causes Act [Chapter 5:13], (the Act) guides the court in considering the distribution of the assets of the spouses during divorce action. The concept “the assets of the spouses” was defined in Gonye vs Gonye 2009 (1) ZLR 39 SC as clearly intended to have assets owned by the spouses individually (his/hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such asset. The assets subject to distribution are those that were acquired by the parties during the subsistence of the marriage which they consider to be belonging to the family.
In subsection 4 of section 7 of the Matrimonial Causes Act, the Court is enjoined to have regard to all the circumstances of the case, including the following-
“(a) the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
(c) 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;
(d) the age and physical and mental condition of each spouse to the family;
(e) the direct and indirect contribution made by each spouse to the family and any other domestic duties;
(f) 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 of the of the marriage;
(g) the duration of the marriage; …”
The Act further directs that in distributing the assets, the court shall endeavor as far as is reasonable and practicable and, having regard to the conduct of the parties, where it is just to do so, place the spouses and child in the position they would have been in had a normal marriage relationship continued between the spouses.
Section 26 of the Constitution provides that the State must ensure that there is equality of rights and obligations of spouses during marriage and at its dissolution and in the event of dissolution, provision must be made for the necessary protection of spouses.
ANALYSIS
STAND NUMBER 355 MABELREIGN TOWNSHIP, HARARE.
It was not in contention that Stand Number 355 Mabelreign Township, Harare is matrimonial property as it was acquired during the subsistence of the marriage. This property is registered in the Defendant’s name., having been acquired in 2004. The Defendant’s evidence was that he financed the purchase of this property through the sale of his Glenview property, which he owned prior to his marriage to the Plaintiff, combined with a loan of $27, 092 312.00 million. His evidence was that the proceeds from the sale of his property contributed a greater portion to the purchase of the Mabelreign property than the loan. The purchase price for the Glenview property contributed $170, 000, 000.00 (one hundred and seventy million) against the purchase price of $190, 000,000.00 (one hundred and ninety million). The amount of the contribution during the subsistence of the marriage that went towards the purchase price was $20, 000,000.00 (twenty million). It is clear from the above explanation that the finances from the Glenview property contributed more to the purchase of the Mabelreign property. The Defendant had initially claimed 85% since the Plaintiff also realized income from the property to the exclusion of the Defendant from 2008 to 2015, a fact admitted by the Plaintiff.
In line with the direction in Section 7 (g) of the Matrimonial Causes Act, the parties have been married for 10 years. It was not disputed that the Plaintiff had taken care of the Defendant’s relatives, as well as a number of Defendant’s children. The Defendant did not receive any rentals from the property until 2015. The Plaintiff’s evidence shows that she has the capacity to make income from her employment as a hairdresser. Plaintiff went to great lengths in explaining her indirect contribution towards the acquisition of the property. The Plaintiff has been solely maintaining the property from the time when the Defendant left the matrimonial house in 2008. Plaintiff’s contribution in that regard cannot be quantified in monetary terms. See Usayi v Usayi 2003 (1) ZLR 684. As stated in Mufunami v Mufunami HH32/16, the value of indirect contribution increases with the length of time. In casu, Defendant demonstrated an appreciation that the Plaintiff is entitled to a share in the property. At trial he offered 30% as a share he deemed fair and reasonable.
In Mutizhe v Mutizhe (nee Fuwe) HH 483-18 a wife who made no financial contribution but
“… contributed in her own way to the success of the marriage for that period. Not only was she a provider of a homely environment but she also took care of the couple’s children and provided comfort to Plaintiff for 20 years of the marriage was awarded 35% share of the property”.
In my view, the offer by the Defendant of a 30% share to the Plaintiff meets the justice of the case.
DISPOSITION
A decree of divorce be and is hereby granted.
Plaintiff be and is hereby awarded a 30% share of the value of Stand Number 355 Mabelreign Township, Harare.
Defendant be and is hereby awarded a 70% share of the value of Stand Number 355 Mabelreign Township, Harare.
The parties shall within 30 days of this order, appoint a mutually agreed valuator to value the property, Stand Number 355 Mabelreign Township, Harare.
If the parties fail to agree on a valuator, one shall be appointed for them by the Registrar of the High Court from the list of registered valuators.
The Defendant be and is hereby granted the option to buy out the Plaintiff’s share within a period of six months from the date of receipt of the evaluation reports. Should the Defendant fail to buy out Plaintiff within the stated period, or such longer period as the parties may agree, the property shall be sold to best advantage by an estate agent mutually agreed to by the parties, failing such agreement (within ten working days) by one appointed by the Registrar from his list of independent estate agents. The net proceeds shall be distributed in terms of the sharing ratio in paragraphs 2 and 3 above.
The cost of valuation shall be met by the Defendant.
Each party bears its own costs.
Mudimu Law Chambers, Plaintiff’s legal practitioners
Danziger and Partners, Defendant’s legal practitioners