Augustine Gwatidzo V Shairine Ndlovu

### Preamble
1
HB 43/21
HC 1244/18
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AUGUSTINE GWATIDZO

Versus

SHAIRINE NDLOVU

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 12 AND 13 NOVEMBER 2020 AND 18 MARCH 2021

Civil Trial

Ms V Chikomo and Ms S Mhlanga, for the plaintiff

L Mcijo, for the defendant

MABHIKWA J:	The plaintiff issued summons against the defendant and prayed for;

a)	A declarator that the Nissan Latio motor vehicle Registration number AEP 1249, chassis No. INBAAC1120005684 and engine No. HR 15174100A is the property of the plaintiff.

b)	Delivery of the Nissan Latio motor vehicle with registration Nos. AEP 1249, chassis Nos. INBAAC1120005684 and engine No. HR 15174100A.

c)	Delivery of the Registration Book and agreement of sale for the Nissan Latio motor vehicle.

d)	Costs of suit.

Alternatively, the plaintiff claimed payment in the sum of $4 500.00 being the re-imbursement value of the motor vehicle plus costs of suit.

The plaintiff testified in his own case whilst the defendant also testified in her own case.  There were no other witnesses on both sides.

Plaintiff

It was plaintiff’s evidence that he and the defendant were in love and rented an apartment in the Bulawayo city centre.  At that time, he was employed by the Natural Stone Export company in Harare but based in Shamva.  There is no dispute that plaintiff then obtained a Z.B Bank vehicle loan in February 2018.  He says he called the defendant and the two met in Harare to look for a vehicle to buy.  He says as his partner, he felt she should be present and assist him look for the vehicle.

There is no dispute that the parties met as arranged and went to look for a vehicle in Harare on a Sunday.  They checked around and failed to get a suitable vehicle.  They returned to Shamva together.  At the end of the week on a Friday the parties agreed that the defendant goes back to Bulawayo.  Plaintiff was at work.  There is also no dispute that about an hour or so later, the defendant called saying she had met a friend in Harare with links to a better vehicle than the one they had been searching for the previous Sunday.  After being convinced, the plaintiff says he then sent his particulars to be used in the event that an agreement of sale is drawn up.  He then asked from the defendant the contacts of the seller.  He was given contacts for a Mr Chirodza and they agreed that he would buy the car.  After the negotiations, plaintiff sent the payment in ecocash batches to various people because of financial restrictions and limits in ecocash transactions.  There is also no dispute on the ecocash transactions totaling US$4 500 which the parties also agree that at the time, was equivalent to $4 500 in Zimbabwean currency.

Plaintiff says the particulars that he had sent were as shown in Annexture “B” of his bundle, which were Augustine Gwatidzo, Mine Manager Natural Stone Co. PL, Siding 2227, NRZ complex, Seke Road, Harare.  He says that he advised and expected the defendant to whatsapp or call her in the event any other details were required.  As far as he recalls, he was not advised of any other.  Payment of the vehicle was made and defendant drove it to Bulawayo to their apartment which she however was occupying alone as the plaintiff was at Shamva and Mutoko at work most of the time.  There is no dispute that at the end of the same month, the plaintiff followed to Bulawayo.  He says he got to Bulawayo and saw that the payment receipt was in defendant’s name.  He quizzed the defendant about the receipt being in her name.  He says he also asked for the registration book but the defendant was not forthcoming.  She however remained the nice darling that she could be.  Plaintiff says that for two (2) days she was in Bulawayo and kept on asking for the registration book.  He says he clearly expressed that:-

a)	The Z.B Bank wanted the car registration book to be in his name to prove that he used the loan to buy a car.  This is simple logic since they had granted him a vehicle loan.

b)	The defendant could not put her names in his assets unless and until she became Mrs Gwatidzo.  He says one of the chats they had was clear that just as the parties had planned to get married, the defendant was supposed to be Mrs Gwatidzo and adopt his surname first before registering his assets in her name.

The chats in question were sent in March 2018.  At 11:32 a.m he sent a chat –

“You will put it in your name as long as there is Gwatidzo at the end.  Mrs Shairine Ndlovu-Gwatidzo.”

He also sent a chat that stated -

“We are getting married soon we are one thing.  Yours is mine.  Mine is yours.  At this juncture we are complying with the bank requirements when borrowing a car loan.” (chats found in Annextures D1 to D3 of Exhibit 4).

However, it is clear from the chats that the defendant apparently got upset and reluctantly agreed that the ownership of the vehicle and its registration could be changed into the plaintiff’s name.  She never changed the registration book.  This is not what happens when one receives a gift.  In cross examination, the plaintiff explained that there was nothing wrong or strange about the registration book being in the name of the defendant initially.  They were in a relationship.  She had done all things in Harare enroute to Bulawayo whilst he was in Shamva.  He considered her a partner and allowed her to take the vehicle to Bulawayo.  I must say that I am inclined to agree.  From the circumstances, it appears that the plaintiff considered the defendant to be more than just a lover.  It may have been different or some deceit on the part of the defendant.  The parties had an apartment in Bulawayo in which the defendant lived all the time with the plaintiff paying rent although he was at work in Shamva most of the time.  At some stage, plaintiff bought a Honda Fit motor vehicle which they used for commercial purposes in Bulawayo.  There was clearly an anticipation of marriage.  He was consistent and adamant in his evidence that the car book had to be in his name because the bank wanted it to be so and to give a copy of the same to the guarantor.  He also felt strongly that she could only have the book in her name if she had become Mrs Gwatidzo.

Having temporarily agreed and indicated that the car registration book could be changed at ZINARA Post, the defendant instead concealed the book.  Plaintiff says he never saw it even when he searched for it.  He only bumped onto it one day but was “sweet talked” into returning it to her.  Unsuspecting, and being kind hearted and loving, he agreed.

There is no dispute that the vehicle was bought on 23 February 2018 and collected by the defendant.  Tellingly, in less than one (1) month after the purchase, the love relationship had broken down.  It appears that a number of things happened leading to the breakdown.  One was the argument over the vehicle’s registration book.  The other reason for the breakdown according to defendant was that as the parties were arguing over the car registration, he lost his job.  He says that was “a catalyst.” He spoke to the defendant and also came down to Bulawayo to live with her after the loss of his job.  This in my view shows a person who was serious in the relationship no matter what turns it took.  He says that the defendant on the other hand became a docile partner.  Instead of the usual loving answers that he used to get from her in their chats, the defendant’s responses became “dull one word answers.”

The relationship ultimately ended on 17 March 2018 when the parties were taken to the Police Community Relations and Liason Officer (C.R. L. O.) presumably quarrelling.  The plaintiff says thereafter, the defendant kicked him out of an apartment for which he had been paying rent for eighteen months.  The defendant did not dispute this allegation.  He stuck around and eventually left Bulawayo on 1 April 2018.  He vehemently denied that he only issued summons to claim a vehicle that he had bought as a gift after the breakdown of their relationship.

Shairine Ndlovu (Defendant)

The defendant started off by explaining at length, that the plaintiff first bought her a Honda Fit which she used for quite sometime.  Apparently, the defendant then allowed her to use it for commercial purposes.  When he came to Bulawayo at some stage, she says that he claimed that it was not benefiting them.  He sold the Honda Fit and took the money with him.  I must say that the defendant had to be reminded by her own counsel to come back to the motor vehicle in issue.  However, whilst irrelevant, it was clear from her evidence that the issue of the Honda Fit vehicle angered her and perhaps determined her future conduct and dealing with the plaintiff on motor vehicles.

On the motor vehicle in issue, the defendant claimed that the applicant promised to buy her a motor vehicle since they were in love.  When he had raised enough money to do so, he told her to start looking for a vehicle.  She says she got one in Bulawayo but he suggested that they look for an affordable car in Harare.  They went to Harare together.  She was driving the defendant’s company car.  They failed to get any from car sales.  They went to Shamva.  On her return to Bulawayo on a Friday, she got interested in a Nissan Latio.  She phoned and told him that she had identified the motor vehicle that she wanted.  She says the defendant then asked for the details of the car dealers and transferred a total of US$4 000-00.  He had to find means of transferring the remainder of US$500-00 on the same day because the seller would not allow her to take the car to Bulawayo before paying the total US$4 500-00 purchase price.  It is not clear from her evidence what really transpired there because she took the car on the same day and proceeded to Bulawayo.  It also looks like the remaining US$500-00 was only paid the following day.

The defendant says at the monthend, the plaintiff came to Bulawayo.  She showed him the vehicle documents and thanked him.  She says he indicated that it was a valentine present.  I must say again that this sounds curious and unlikely to me.  This is so because according to her, she was told at the monthend that the vehicle was a valentine present.  However, by that time, she had long registered the vehicle in her name despite the fact that the defendant had sent her his details whilst in Harare on the day the vehicle was bought.  She argues that the details were for a different purpose.

The following important exchange also took place between the defendant and her own legal practitioner during evidence-in-chief.

“Q -	Plaintiff showed us conversations where he was asking you if he could transfer the vehicle into his name – comment.

A -	He said he had a bank loan, and said the assets in his name were required for surety purposes.

Q -	He said in fact he was not concerned with the bank per se but it was the change of the vehicle registration book to his name because that is what it should have been?

A -	Well he only told me the issue of the bank.

Q -	He also mentioned a Gwatidzo name – were you supposed to be married?

A -	Since the beginning of the affair, he was in the habit of talking about marriage, so on the day in question, it was not his first time to mention marriage.

Q -	Apart from the messages he showed us, was there any other time he mentioned that the vehicle should be in his name?

A -	Only when we were having misunderstandings (the emphasis is mine)

From the above exchanges with her own counsel, the defendant admitted in this court that the plaintiff had told her that the motor vehicle registration book should be changed to his name because that is what it should always have been especially for surety purposes.  Secondly, she admitted that if she became a Gwatidzo, the vehicle or motor vehicle could be registered in her name.  She admitted that the plaintiff had indeed always anticipated marriage in the relationship.

I must say also that at some stage, the defendant attempted to produce a text message – “Best valentines” sent by the defendant to her.  Plaintiff’s counsel objected on the basis that same had not been timeously discovered.  However, counsel for the defendant managed in cross-examination to refer to it without necessarily producing it as an exhibit.  In her evidence, she had said that the text stated that the car was her “valentine gift.”  However, in cross-examination it transpired, and she admitted that the text simply stated “best valentines.”

The text never specifically stated that the motor vehicle was her valentine gift as she had earlier stated.  The word gift is not there.  I am inclined therefore to agree with Ms V. Chikomo for the plaintiff that February being a Valentine month, lovers are bound to refer to it.  I agree that in the circumstances, the defendant wants to twist a sentiment expressed to her by a co-lover in the season of valentine and manipulate it to mean that the vehicle was a valentine’s gift.

In her last evidence in examination, defendant was again asked by her own counsel

“Q -	It looks like the plaintiff was fond of talking marriage and we have not heard about you – did you ever speak of the same marriage?

A -	Yes, I would also talk about it.”

Again from the above, the defendant admits that not only did plaintiff anticipate marriage but she also did, unless of course if she was falsely leading him on but one would still ask why.  In any event, what is important legally is the mind of anticipation of marriage by the buying partner at the time he/she buys the gift if any.  I have already said that in less than two months of the purchase of the car, the love relationship turned sour.  The defendant was locked out of an apartment for which he had been paying rent for 18 months.  The parties had to go to the police CRLO and plaintiff eventually had to return to Harare.  Defendant refused with the car claiming it was her valentine gif as she still claims.  I must say however that the defendant has not disclosed at all the cause of the break-up.  The plaintiff says it was nothing other than his insistence that the car should be registered in his name precipitated by the loss of his job.

As already shown above and as submitted by defendant’s counsel, the general principle is that high value gifts such as a motor vehicle in this case, are taken as a donation if they are not given in contemplation of marriage.  Ownership passes on the day of the donation.  If the gift is given in contemplation of marriage however, they are returnable after the relationship turns sour.

See (i)	Levin v Levin & Anor – 1960 (4) SA 496

(ii) Barkhan v Barkhan – 1960 (4) SA 288

My finding is that from the circumstances in casu, the Nissan Latio motor vehicle was not bought as a gift in the first place.  The chats between the parties show that it was bought perhaps because the couple no longer had the Honda Fit that they had used for commercial purposes.  If the defendant felt pleased and in the event that the parties got married, then it could be registered in her marriage name in future.  Even then, it was never said that it would become “her car” and absolute property.  A car can be registered in one’s name but can still not be hers in the strict sense.  It is well known that the registration book is not prima-facie proof of ownership.  Defendant in casu cannot use the legal position of a vehicle “bought and given” to her as a “gift” and claim that ownership passed on the day of the donation using the fact that in the absence of the plaintiff, who did not even see the said Mr Chirodza the seller, she (defendant) cunningly decided to have the agreement of sale in her name and thereafter refused with it.  It is unlike a situation where the plaintiff would mero motu have the agreement of sale and registration book in defendant’s name and thereafter hand over to her in pure valentine’s style, the agreement of sale, the registration book and the car keys as a gift.  This was not the case here.  In casu, the vehicle was only used mostly by the defendant because plaintiff was in Shamva and Mutoko using a company vehicle.  It was wrong for the defendant to take advantage of those circumstances coupled with the fact that she was the only one who saw the seller, to then have the vehicle registration book in her name, ditch the plaintiff and refuse with the car.

In the circumstances, the plaintiff has proved, on a balance of probabilities that the Nissan Latio motor vehicle belongs to him.

Accordingly, judgment is granted in favour of the plaintiff as prayed for.

V Chikomo Law Chambers, plaintiff’s legal practitioners

Liberty Mcijo & Associates, defendant’s legal practitioners