Vincent Ndlovu v Sibusisiwe Ndlovu (nee Mudumbe)

### Preamble
1
HB 16/19
HC 658/17
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VINCENT NDLOVU

Versus

SIBUSISIWE NDLOVU (NEE MUDUMBE)

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 26 JANUARY, 6 & 2 FEBRUARY,

1 MARCH 2018 AND 7 FEBRUARY 2019

Civil Trial

S. Mguni for the plaintiff

T.T. Nyathi for the defendant

TAKUVA J:	Plaintiff instituted proceedings by way of a summons against the defendant claiming an order for a decree of divorce and other ancillary relief.  Defendant opposed the plaintiff’s claims.  The following facts are common cause between the parties;

that the marriage has irretrievably broken down.

that defendant shall have custody of the minor children of the marriage.

that plaintiff pays maintenance in terms of the Maintenance Court order under case number M 433/16.

that the parties shall share their household property; and

that each party will get half of the ten (10) goats.

The joint pre-trial conference memorandum shows the issues for determination as;

whether or not defendant is entitled to a 50% share to stand number 1990 Emganwini Township, Bulawayo.

whether or not defendant is entitled to a 50% share to the Nissan Bluebird registration number ADU 1139.

whether or not the undeveloped state land in Mangwe District is matrimonial property for purposes of distribution.

whether or not the parties own six herd of cattle for distribution.

The Law

In handling the division of matrimonial property, the court relies on the Matrimonial Causes Act (Chapter 5:13).  Section 7(1) thereof provides for the making of an order with regards “to the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other”.  In terms of section 7(4) of the same Act, the court in assessing the award to be granted to a spouse should take into consideration “the direct or indirect contribution made by each spouse to the family and any other domestic duties”.

In terms of the law therefore, what should be distributed or shared are the assets of the spouses.  Accordingly, the court must establish from the evidence which assets belong to the spouses.

Dealing with stand number 1990 Emganwini Township, Bulawayo, it was conceded that the house qualifies as an “asset of the spouses”.  The issue to be decided is how it should be shared.  The plaintiff contended that defendant be awarded 15% of its value while defendant argued that she be awarded 50% of the value.  The defendant does not deny that plaintiff was assisted by his employer, the City of Bulawayo with a staff housing loan scheme to acquire the housing stand where he built the property in question.  Defendant conceded that when she married plaintiff  the bond to purchase the stand had not been fully paid for.  She then contributed in repaying the remaining half between 2001 and 2005.  It is common cause that plaintiff went to South Africa in 2007 and returned in 2010.  It is during this period that defendant claims to have single handedly made improvements to the property especially in changing doors, painting the interior, repairing damaged roof, changing the toilet system, plastering the property and constructing a fowl run.

It was defendant’s testimony that the durawall was constructed after she had customarily married the plaintiff and that she directly contributed to its construction as plaintiff’s wife.  Finally, defendant has considered this property as her home for the past 18 years and has been taking care of the same as hers, especially its up-keep as the wife and mother of the home.  This therefore is the basis of her claim for 50% share of the house.

On the other hand, plaintiff does not dispute that the improvements mentioned by the defendant were effected.  What he challenged is that the defendant single handedly paid for them when he was away in South Africa.  According to the plaintiff, both parties contributed towards the cost of the improvements.  He however insisted that he paid the bond alone during the period 1995 to 2000 before he customarily married the defendant.  Further plaintiff said the durawall was constructed in early 2000 when the parties were still dating.  As for the fowl run, plaintiff said it was constructed in 2013long after he had returned from South Africa.

From the parties’ evidence, I find that the bond repayment before and after marriage was effected via a direct debit from plaintiff’s salary.  It follows therefore that his contribution was direct, whilst that of the defendant in the five year period after their customary marriage was both indirect and direct contribution.  I am convinced that the defendant effected improvements on her own when the plaintiff was away in South Africa between 2007 and 2009.  However, the difficulty the court faces is that no bill of quantities was produced by either party making it extremely difficult to quantify each parties’ contribution.  Be that as it may, what is clear is that the parties did not contribute equally to the purchase and subsequent improvements of the house.  I note that the defendant had been a wife to the plaintiff for 18 years.

In Takafuma v Takafuma 1994 (2) ZLR 103 (S) it was held that in  dividing up the costs the court must not simply lump all property together and then divide it up in  as fair a way as possible.  The correct approach is first to sort out the property into three lots which may be termed “his”, “hers” and “theirs”.  Then the court should concentrate on the lot marked “theirs”.  It must apportion this lot, using the criteria set out in s7 (1) of the Matrimonial Causes Act 33 of 1985.  It must then allocate to the husband the items marked “his, plus an appropriate share of the items marked “hers”.  It must then go through the same process in relation to the wife.  Having completed this exercise the court must finally look at the overall result and again applying the criteria set out in s7 (1) of the Act, consider whether the objective has been achieved of placing the parties in the position they would have been in, had the marriage continued in so far as this is reasonably practical and just having regard to the conduct of the spouses.

It was held further, that in the present case the correct approach should have been to start by dividing equally the proceeds of the sale of the jointly owned house, and then to make adjustments in light of the contributions made by the parties towards the purchase of the house and improvements upon the house, and income received by the parties from the house”

Applying this principle in casu, the starting point is that the proceeds of the sale be divided equally.  The next stage is to make adjustments in light of the contributions made by the parties towards the purchase of the house and improvements on it.  Due to the fact that by the time the parties got married the plaintiff  had  paid ½ of the value of the stand and had commenced construction of the house up to roof level.  I will deduct 15% from the defendant’s 50%, leaving the percentage at 65 – 35.

The second issue for resolution is whether or not the Nissan Bluebird vehicle registration number ADU 1139 is matrimonial property.  Defendant’s argument was that although the vehicle is registered in plaintiff’s sister’s name one Ethel Ncube, it was purchased by plaintiff during the subsistence of their marriage.  Defendant relied on the fact that the vehicle was kept and used by the plaintiff who paid for its licensing and repairs.  She also questioned why plaintiff failed to produce “proof of transfer” for the motor vehicle.  It was further contended that the failure to produce “proof of payment” shows that the vehicle was purchased by the plaintiff.

Plaintiff on the other hand, stated that the vehicle in question belongs to his sister one Ethel Ncube whose name and particulars appear in the registration book.  He agreed with defendant that he was using the vehicle which he kept at his house.  However, he strongly denied owning the vehicle which according to him was imported using funds from his sister a Mrs Williams living and working in Scotland.  He further explained that the vehicle was purchased for the purpose of ferrying his mother who was in poor health to her doctor.  The reasons he kept the vehicle were two.  Firstly, he was to ferry his mother to her doctor whenever the need arose.  Secondly, he was the only family member with a driver’s licence.  He produced import documents relating to the vehicle.

Plaintiff’s sister one Ethel Ncube testified to the effect that she was staying with her mother, who is not in good health.  Her evidence dovetailed with that of the plaintiff as regards the acquisition of the Nissan Bluebird.  She said a Mr Tshakalisa brought cash from Mrs Williams in Scotland which money she and Mr Tshakalisa used to make a telegraphic transfer to Japan to import the car.  Ethel Ncube collected the car at Plumtree Border Post and paid import duty.  The plaintiff was not involved in the registration of the vehicle.  The defendant did not supply proof that plaintiff obtained a loan that he used to import the vehicle.

All invoices, payment and shipping papers are in Ethel Ncube’s name.  She has the registration book that shows that the vehicle is indeed registered in her name.

On the evidence laid out above, I find that on a balance of probabilities that there is conclusive evidence that the vehicle is not part of the matrimonial property.  Rather, I find that the vehicle belongs to Ethel Ncube.  While the plaintiff has possession of the motor vehicle, he certainly does not enjoy ownership rights.

As regards the undeveloped land in Mangwe District, it is common cause that it belongs to the State.  That being the case, it follows that it is not “the asset of the parties” as contemplated in section 7(1) of the Matrimonial Causes Act (Chapter 5:13).  Consequently, it is incapable of division, apportionment or distribution for the simple reason that it does not belong to the parties.  However, if it had been developed, the parties could have shared the amount representing the market value of the improvements thereat.  The plaintiff  holds the land through an occupation permit issued by the State.  Plaintiff as an occupant cannot have it divided into equal shares or cede any portion to a 3rd party.  The plaintiff as the holder of the occupation permit must continue to occupy it.

The last item relates to whether or not plaintiff owns six (6) herd of cattle.  Plaintiff’s denied owning the cattle and averred that they belong to his brother one Riga Ndlovu.  Riga Ndlovu testified and relied on his stock card as proof that the cattle belong to him.  Defendant contended that the beasts belong to the plaintiff because he used to buy vaccines, had a branding machine, had once offered her father two beasts as lobola and that he contributed towards the salary of a herd-boy employed by Riga.

Further, according to the defendant, what made her believe that plaintiff owned six cattle is that in his declaration he did not disclose that he owned ten (10) goats which goats were in Riga’s stock card.  Therefore, if plaintiff could have goats registered in his brother’s stock card, the same could apply to cattle.

In my view, defendant’s argument is based on assumptions.  I find that on a balance of probabilities, the cattle belong to Riga Ndlovu.  Therefore, they are not assets of the parties.

As regards stand 1990 Emganwini Township, Bulawayo whose percentages are now at 65 – 35, there is need to further adjust them in view of the fact that I have already awarded the stand in Mangwe District to the plaintiff.  In order to account for this benefit, I proceed to deduct 10% from the plaintiff’s share and add it to the defendant’s share.  Using this formula, I find that in order to place the parties in the position they would have been in had the marriage continued, the plaintiff should be awarded 55% net value of the house while the defendant is awarded 45%.

In the circumstances, it is ordered that:

A decree of divorce be granted between the parties.

Defendant be given the custody of the two (2) minor children of the marriage namely Viviene Muzi Ndlovu (male) born 23rd August 2001 and Neville Fezile Ndlovu (male) born 6th January 2006 with plaintiff having access to the said children during school visitation dates and first two (2) weeks of every school holiday.

Plaintiff continues to pay maintenance in terms of the order of the Maintenance Court under case number M 433/16.

Each party gets a half share of the ten (10) goats.

Plaintiff gets the following household properties:

(i)	1 x DSTV set

1 x Defy deep freezer

1 x double bed

The defendant gets the following household properties:

(i)	1 kitchen unit

1 x 3 plate cooker

1 x kitchen table with chairs

1 x 4 piece lounge suit

1 x coffee table

1 x KIC deep freezer

1 x wardrobe

1 x double bed

Kitchen utensils (various)

Stand 1990 Emganwini Township, Bulawayo be evaluated by a registered valuator within 60 days of this order and plaintiff be given 90 days within which to exercise his option to buy out the defendant’s 45% share of the said property.  The parties shall share the cost of evaluation equally.  The plaintiff be and is hereby awarded 55% of the value of the property.

The Nissan Bluebird registration number ADU 1139 is not matrimonial property.

The six herd of cattle belong to Riga Ndlovu and is therefore not matrimonial property.

The rural State land in Mangwe District held under an occupation permit in the name of the plaintiff is not matrimonial property.  The plaintiff be and is hereby granted the right to occupy it.

Dube, Mguni & Dube, plaintiff’s legal practitioners

Messrs Makiya & Partners, defendant’s legal practitioners