Sipho Phiri v Sikhathile Phiri (nee Ncube)

### Preamble
1
HB 144/19
HC 2146/17
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SIPHO PHIRI

Versus

SIKHATHELE PHIRI (NEE NCUBE)

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 28 MAY & 26 SEPTEMBER 2019

Civil Trial – Matrimonial Action

Z.C. Ncube for the plaintiff

Defendant in person

MABHIKWA J:	The parties in this matter appeared before me in divorce proceedings.

The brief historical facts are that the parties married each other in terms of the Marriage Act, Chapter 5:11 at Tsholotsho on 17 December 2013.  The union produced six (6) children, 2 of whom were still minors at the time divorce proceedings were instituted in August 2017.  The marriage relationship became acrimonious with no hope of restoration of a normalcy in it.

I must mention that at the parties’ pre-trial conference before my brother MATHONSI J on 12 February 2018, great progress was made in curtailing the issues in this trial.  The outcome of the pre-trial conference was an order to the following effect by MATHONSI J (as he then was).

That divorce be by consent.

The custody of the minor children of the marriage be awarded to the defendant.

The plaintiff continues to pay maintenance in terms of the Maintenance Court order in case number M 77/12 – Bulawayo, Magistrates’ Court.

That the parties’ movable property be shared as suggested by the plaintiff in paragraph 6 of his summary of evidence.

That the only unresolved issue referred to trial was how the matrimonial homestead of the parties in Tsholotsho should be divided.

It appears also that the defendant was initially represented by legal practitioners from the Legal Aid Directorate, particularly by Ms N. Thendele but she was not legally represented at the trial.

At the start of the trial Mr Z. Ncube submitted in opening remarks that the outstanding issue in the matrimonial action was not one for which the court should have been dragged through a trial to determine.  He submitted further that the home in issue is owned by the plaintiff by virtue of being a native of Tsholotsho.  The place was given to him by his step-father and the area Chief.  For that reason, he submitted the home was of sentimental value to him.

In his evidence, plaintiff testified that his stepfather had a brother who was the area Chief.  The said stepfather and the Chief gave him the homestead to live.  When he started living there he was unmarried.  He appreciated that the land cannot belong to him as it is state land.  However, he said he put up three (3) structures and a well.  A second well was dry.  During cross-examination he admitted that at that stage, he had married the defendant, who also contributed in putting up the structures.  He said he used about ZAR20 000,00 to put up the 3 structures whilst she used about ZAR8 000,00 for the well.  He told the court that he would be prepared to offer the defendant a quarter (1/4) share of the home or if defendant insists, a 50% share.  Thereafter he closed his case.

Defendant, in her testimony said she too originally comes from Tsholotsho.  She said in 1997, she and the plaintiff secured a place to build.  It appears from her evidence that she lived with plaintiff well before “marrying” him as she states that when the two of them were working in South Africa, plaintiff came home in Zimbabwe in 1999 to put up one of the structures.  At the time, she says she was not financially stable but plaintiff was.  In 2002, she says plaintiff again came home and dug a well.  She says the payment for the well came from the proceeds of the sale of some of the couple’s beasts.

In short, she said the two of them came from Tsholotsho originally and both worked to put structures there.

In cross-examination, it emerged that the parties have not lived together for a long period of time of about six (6) years now.  There are accusations and counter accusations, as to who deserted who.  It emerged also that the defendant has two other children, born of her 1st marriage who are looking after her.  It was insinuated instructed by Mr Z. Ncube that her eldest son, Godknows Ncube has built her a home nearby but the defendant refuted the allegations claiming that Godknows only asked her to supervise at his stand under construction but there is currently a toilet only.

Defendant then argued that she is equally entitled to the home and that she wanted the court to award it to her.  She then closed her case.

In closing submissions counsel to the plaintiff said he had no submissions to make save to urge the court to fall back on the Matrimonial Causes Act [Chapter 5:13] to come up with a fair resolution that would involve compensating the defendant.  He submitted that plaintiff absolutely had nowhere to live.

Belatedly in closing remarks, the defendant said she and the children are staying currently at a brother’s wife and that whenever, the brother and his wife come back from South Africa, the children feel uncomfortable, hence she wanted the home.

In coming up with a fair and equitable sharing of the matrimonial home in issue, this court will take into account the intention and spirit of section 7 and in particular subsection (4) of the Matrimonial Causes Act [Chapter 5:13].  The court will consider also that it appears true, and it happens quite often in rural areas as claimed by the plaintiff, that he was given the place to live or build a home, by his late stepfather together with the Chief.  This was well before he married the defendant.  He did the early contribution alone.  On this point, the plaintiff had no reason to lie.  Plaintiff admitted that later there were times when he was not financially sound and defendant would take over the putting up of structures at the home.    He went on to say he would have no qualms if the court were to grant the defendant a 50% share value of the structures of the said homestead.  Having made that crucial admission and compromise, he would have no reason to lie about the less important point of the origins of the homestead.

On the other hand, whilst I find that defendant may have generally told the truth about her contribution in the construction of the homestead.  It seems to me that she was not honest and frank on two aspects of this case.

As already stated above, defendant was not telling the truth that the parties were given a barren piece of land together by the area Chief and they started to build together.

Defendant also appeared untruthful on the issue of her current place of aboard.

From the evidence, for the past 6 years or so, when the parties have lived apart, defendant has had alternative accommodation whilst the plaintiff has had nowhere else to stay other than at the home in issue.  It appears to me that defendant was not being entirely honest on the rights of occupation and the conditions thereof of the place she is currently living.  It appears also, that her insistence that she also has no place to live and wants the entire home to be awarded to her without even an offer to compensate plaintiff is merely out of spite, desire to settle scores and vindictiveness.  It is in fact clear that plaintiff needs the homestead more than she does.

This court finds no judicial reasoning nor financial sense in destroying the home so that the parties take a half share of whatever building materials makes up the structures of the homestead.  No economic benefit accrues to either party as most of the building materials is lost during the destruction.

Apart from the fact that plaintiff is the party currently occupying the homestead I am convinced that it originally was his stepfather’s homestead which was then given to him with the approval of the area Chief before he married the defendant.

Accordingly, I will order as follows:

That a decree of divorce be and is hereby granted.

The custody of the minor children of the marriage namely Melicia Phiri a girl born on 14 July 2003 and Alicia Phiri, again a girl born on 4 April 2006 be awarded to defendant with plaintiff enjoying the usual righst of access on school holidays, that is to say every alternate school holiday until they each attain the age of majority or become self supporting whichever comes first.

Plaintiff continues to pay maintenance in terms of the Maintenance Court order in case number M 47/12 – Bulawayo Magistrates’ Court until that order is otherwise viewed or discharged for each and every child.

The parties’ movable property be shared as stated below:

plaintiff is awarded the following property as his sole and exclusive property:

cultivator

television sets

1 generator

2 donkeys

An ox drawn plough

2 DVD players

1 step ladder

3 cattle

Defendant is awarded the following as her sole and exclusive property.

1. Lounge suit

1 DVD player

1 Television set

1 DVD player

1 room divider

1head board

1 ox drawn cart

2 donkeys

Kitchen utensils

1 refrigerator

1 bed

1 ox drawn plough

1 solar panel

5 cattle

4.3.	The minor children Melicia and Alicia Phiri are awarded 3 cattle each whilst Abigirl Phiri is awarded 2 cattle as per the parties’ wish and agreement at the pre-trial conference.

5.	The plaintiff retains the parties’ rural home at Ngqoya line, Village head Bhebhe, Tsholotsho on the terms and conditions stated below.

a)	That the home structures including the well (but not land) be evaluated by qualified evaluators within three (3) calendar months of this order being granted.

b)	That plaintiff pays to the defendant, a 50% share value of the structures within four (4) calendar months from the dated of evaluation.

c)	Failing (a) and (b) above, the home would be sold to best advantage and the proceeds be shared equally (50%) each thereof.

Ncube & Partners, plaintiff’s legal practitioners