IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 14 JULY 2014; 15 & 16 JANUARY AND 16 JULY 2015
J. Sibanda for the defendant
Advocate L. Nkomo for defendants
KAMOCHA J: The plaintiff instituted these divorce proceedings on 12 February 1997 and by the time the matter finally came for trial on 14 July 2014 the parties had, but for one issue, by mutual agreement resolved all issues.
That sole issue was the plaintiff’s claim for a declaratory order nullifying and avoiding the cession by the 1st defendant to the 2nd defendant of his rights and interests in house number 940 Phakama Township, Gwanda, and an order that the house be sold and the net proceeds thereof shared equally between plaintiff and 1st defendant.
The basis of the plaintiff’s claim for a declaratory order nullifying the cession by the 1st defendant to the 2nd defendant of his rights and interests in house number 940 Phakama Township, Gwanda was two pronged:
- At the time the 1st defendant ceded his rights and interests in house number 940 Phakama Township, Gwanda, “plaintiff possessed an undivided share in such house and the cession by the 1st defendant to 2nd defendant of the entire right, title and interest in the house was therefore null and void”; and
- The cession by the 1st defendant to the 2nd defendant of his rights and interests in house number 940 Phakama Township, Gwanda, “was mala fide and meant to defeat her claim in the event of a divorce between the parties”.”
The assertion by the plaintiff in (a) above that at the time that the first defendant ceded his rights and interests in house number 940 Phakama Township, Gwanda, she possessed an undivided share in the house is not supported by any law and is untenable. That is so because at the time of the cession the first defendant only held personal contractual rights and interests in the said house in terms of a lease-to-buy agreement with the Municipality of Gwanda. He did not possess real rights over the house by virtue of title deeds. That is what makes the plaintiff’s claim legally untenable and it should not detain this court any further. This court finds that plaintiff did not possess an undivided share in the house at the time of cession.
Was the cession mala fide and meant to defeat her claim in the event of divorce between the parties?
In an endeavour to substantiate the above assertion the plaintiff’s testimony was as follows. When she met the first defendant in 1982 he lived at 431 Geneva Township, Gwanda while she lived at 891 Phakama Township, Gwanda. Their respective houses were rented houses and were just two roomed each.
The first defendant got information that the local authority was allocating bigger houses in Phakama Township. The parties then decided at the behest of the defendant to surrender their respective houses in order to jointly get one bigger house. The first defendant – herein referred to as “defendant” surrendered the plaintiff’s house to one Maduma and also surrendered the one he lived in.
House number 940 was then allocated to the defendant Aaron Nkala and was in his name. The parties moved into that house in 1982 and lived together in there before getting married 3 years later in 1985.
A letter from the Municipality of Gwanda exhibit one confirms that defendant moved from house number 431 to house number 940 in September 1982. Defendant advised the local authority that he was a widower and listed 7 dependents who were to occupy the house. He did not list the plaintiff as one of the occupants yet he had agreed with her that she surrenders her house number 891 to Maduma so the two could get a bigger house.
The letter reveals that 1983 a year after the two had moved into the house to live together the house was converted to home ownership and defendant entered an agreement with the local authority with an option to buy house number 940.
In the year 1996 defendant ceded his rights and interests to his son Mandlenkosi Nkala the second defendant.
The plaintiff’s evidence was that after the parties had moved into the house in 1982 it was 4 roomed. The two jointly extended the house by adding two rooms to it. It was extended to a 6 roomed house.
The plaintiff was employed as a nurse while the defendant was not employed for a considerable length of time although he wanted the court to believe that he was only out of formal employment for a brief period of two months. Defendant’s story was that he used to do part time jobs as a pirate taxi driver.
What is clear is that during that time the plaintiff had a stable job and a steady monthly salary while defendant depended on what he got from piece jobs. The plaintiff told the court that the money used to extend the house came from both of them as they pooled resources together. Further, her contribution was that she was taking care of the family during the time when he was unemployed.
She went on to state that after the defendant had paid “kangaziwe” for her (introductory money to be known as a son-in-law) the parties started living together as husband and wife. She went to collect two other children of the defendant from his previous marriage. Defendant was a widower. He lived with two of his children from the previous marriage.
She directly contributed in the extension of the house by purchasing some of the building materials with her own money. Due to lack of transport she used to carry what she bought on her head from the shops.
The parties also built a rural homestead at Silikwe in the Matshetsheni area of Gwanda in 1985. Defendant lives there sometimes. Plaintiff said she had to move out of their matrimonial home as life had become unbearable. The defendant was very abusive and ill-treated her. He in fact chased her away with the three children that she had with him. She said she moved out with the 3 children on 25 January 1997. She had to go and look for accommodation elsewhere.
Plaintiff was not aware that defendant had ceded the house in 1996 to his son Mandlenkosi. He did not tell her that he intended to cede the house let alone discussing the issue with her. He was aware of her contribution direct and indirect.
Under cross-examination she revealed that he was an irresponsible father who did not do anything for his children. Each time she approached him about the support of the children he became abusive and hauled insults at her. She said that is what used to happen before she moved away from the matrimonial home.
Under cross-examination she maintained that defendant was not employed at the time she met him but he used to be hired by friends who had cars to drive. She went on to tell the court that defendant was not honest in his dealings with her. The evidence established that when he gave the list of occupants of house number 940 he did not include her children with him. He did not disclose and did not discuss with her the cession of the house to his son. She said after he had done so he told her that he married her just to use her not because he loved her.
She revealed that due to the ill-treatment from defendant she approached the local authority and applied for a stand to build thereon. She was allocated a stand and built a 6 roomed house using her pension money. The ill-treatment by the defendant was so bad that she had become a laughing stock in the neighbourhood. Each time she went to report to the police they wanted her to exhibit visible injuries as proof of any assault.
When it was suggested to her that there was nothing wrong with ceding the house to Mandlenkosi for the benefit of all the children her reply was that her children with defendant would not benefit as their names were not on the list of the occupation certificate. The plaintiff gave her evidence well and honesty. For instance when asked what was it that she considered improper about the cession of the house, her response was that it was the issue of defendant taking another wife. She was pained a lot by his action to cede the house to his child when she was defendant’s wife.
Plaintiff was worth to be believed. The same cannot be said about defendant who was bent on trying to minimize the plaintiff’s contribution to house number 940. He alleged that he had been allocated the house before he met the plaintiff and when he met her he was already living in the said house. There is clearly no truth in that because the defendant went to surrender the plaintiff’s 2 roomed house and his 2 roomed house in which he lived to the local authority in order to be allocated house number 940 – a 4 roomed house for the two of them to live there. This court prefers the plaintiff’s version of what took place on that issue. The parties regarded themselves as husband and wife since defendant had already introduced himself a son-in-law.
Defendant also wanted this court to believe that he extended the house from a 4 roomed house to a 6 roomed house single handedly with no contribution from plaintiff directly or indirectly. There is no truth in that either. The evidence before the court shows otherwise. This court finds that the plaintiff did contribute directly by purchasing some materials using money from her salary. She also contributed indirectly by looking after the family.
The defendant had been looking after only two of his children namely Mandlenkosi and Sibusisiwe. The other two were looked after by their maternal uncles. But when plaintiff became part of him she made arrangements for those two children to be collected from their maternal uncles to become part of the defendant’s family. Plaintiff then took care of all the children together. The defendant was less than responsible towards his own children.
Defendant denied that the cession of the house to his son Mandlenkosi was done in bad faith. But what sticks out like a sore thumb is the fact that he was not honest with the plaintiff in his dealings with her. He influenced her to surrender her 2 roomed house number 891 Pakhama so that the two could move into house number 940 Phakama together which was registered in his name. This court has found as a fact that the plaintiff contributed both directly and indirectly during the 15 years marriage of the parties.
With full knowledge of the above facts defendant ceded the house to Mandlenkosi purportedly for the benefit of all his children but chased away the other three children with their mother. He took no steps to include these other children as beneficiaries of the cession. His children from the previous marriage were at least listed in the certificate of occupation.
Defendant chose not to inform the plaintiff about his intention to cede the house to his son. He did the cession clandestinely. He did not want her to know and that confirms her assertion that after the cession he said he had got what he wanted and went on to openly tell her that he in fact had not married her because he loved her but because he simply wanted to use her.
Can such a cession to his son be said to have been a bona fide in light of all the above? The opposite is the case. It was mala fide. It cannot be allowed to stand.
In the result the order of this court is as follows:
It is ordered that:
- the cession by 1st defendant to 2nd defendant of the property known as number 940 Jahunda Township be and is hereby cancelled;
- the said property shall be sold to the best advantage and the proceeds shared equally between the plaintiff and 1st defendant; and
- first defendant shall pay cost of suit.
Job Sibanda & Associates, applicant’s legal practitioners
Messrs Webb, Low & Barry, 1st defendant’s legal practitioners