Angeline Mabuya (Nee Zezere) v Alexander Newline Mabuya

### Preamble
1
HH 543-18
HC 9080/15
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ANGELINE MABUYA (Nee ZEZERE)

versus

ALEXANDER NEWLINE MABUYA

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 20 March 2017 and 19 September 2018

Civil Trial

T Thandi, for the plaintiff

I. Mabalula, for the defendant

NDEWERE J: The parties contracted a customary union in 2006. On 29 November, 2008, the parties upgraded their union into a Civil Marriage in terms of the Marriage Act, [Chapter 5:11]. The plaintiff had a daughter, Tadiwanashe, from a previous relationship while the defendant had two daughters from a previous marriage. There was no child born out of the marriage between the parties. The marriage certificate was produced as exh 1.

On 22 September, 2015, the plaintiff issued summons against the defendant claiming a decree of divorce and ancillary relief. She said their marriage had irretrievably broken down because the defendant was violent towards her, was secretive and irresponsible with his friends, had committed adultery and that the plaintiff had lost love and affection for the defendant in view of the above marital shortcomings of the defendant. She sought a decree of divorce and that each party retains the property it purchased.

The defendant filed his plea on 23 December, 2015. He admitted that the marriage had broken down but he denied the reasons given by the plaintiff. He counter claimed and asked for a decree of divorce, a declaration that the donation of stand number 2292 Mabelreign township to a Trust formed by the plaintiff was unlawful and null and void, that 50% of stand 2292 Mabelreign township be awarded to him, the Mercedes Benz C 180 be awarded to him as well as the Nissan Tino ACW 2214. He asked for costs on a legal practitioner and client scale.

During the pre-trial conference, the parties agreed on the following issues;

Which property constitutes matrimonial property?

What would be the fair and equitable distribution of the matrimonial property

Should the donation and transfer of an undivided half share in stand 2292 Mabelreign Township be declared null and void or reversed?

By the date of the trial, the contestation which remained was for stand 2292

Mabelreign Township and the Mercedes Benz. The defendant maintained his 50% claim of stand 2292, Mabelreign Township and the Mercedes Benz C 180.

Both parties were gainfully employed during the greater part of the marriage. The

Plaintiff was employed as a nurse by City of Harare in 1995. In 2004, she moved to the City Medical Aid Society. She rose through the rank to become the General Manager of the Harare Municipality Medical Aid Society in 2012. The defendant was employed as a lecturer at the University of Zimbabwe and as a General Manager at Pump and Filter Centre. He also ran a Micro Finance Company and was a private tutor to High School examination students in Forms 2, 4 and 6. He also traded in motor vehicles, buying and selling them.

However the parties did not work together for the upkeep of the family as spouses during the marriage. The plaintiff’s evidence was that two months after their marriage, she took over all the financial responsibilities of running the family. She said although she had assisted the defendant with start-up capital for his businesses, she did not know how much be made or what he used it for. All she knew was that she carried the entire financial burden for the family. She said she did not know how much the defendant was paid at Pump and Filter where he was employed as an Operations Manager, she did not know how much he realised from the Micro Finance project or from the private tuition of high school students. She said he brought nothing to the family table. She did everything, including pay electricity and water bills, buying groceries as well as paying rentals or mortgage. She said the defendant would say he had been paid, but he had debts. She said she tried to get counselling about this issue from family members and the church, but it was to no avail. Her family knew that they always quarrelled and fought over the defendant’s failure to buy groceries. Even when she was travelling, she had to leave money for bread, otherwise the children would have no bread. She produced receipts on pp 33 to 37 of exh 2, reflecting electricity bills she paid. She produced a water delivery receipt on p 41 of exh 2. She also produced medical aid cards for the defendant and his children on pp 28 to 30 of exh 2. She produced a letter confirming her employment benefits which included school fees for the children on pp 31 to 32 of exh 2. She produced her payslips on pp 2-5 of exh 3. She said the defendant would sleep, wake up, eat and go.

She testified that in 2009, she bought stand no. 2292 Mabelreign Township of Lot 1 Valencedere of Subdivision C of Mabelreign, Harare. The price was US$115 000-00 and she got a loan for US$155 000-00 including interest from her employer to buy the house. She produced the loan detailed report from pages 6 to 10 of exh 2.

She said she serviced the loan on her own, paying about US$1 324.25 per month through a direct deduction from her salary. She said US$26 000.00 was still outstanding on the loan.

After buying the house, she took another loan for $13 000.00 from Kingdom Bank to renovate the house. She constructed a double lock up garage, en-suite bathroom, renovated the pool, drilled a borehole and installed a generator. She produced proof of the pool renovation expenses on pages 38, 39, 42 and 43 of exhibit 2. She said the defendant did not contribute anything directly or indirectly, to the purchase of the immovable property or its renovations. In fact, she said at one point, she used one of the defendant’s window frames and she had to replace it when the defendant demanded it back.

In 2012, she registered a Trust, the Tadiwanashe Trust. Her mother and daughter were the beneficiaries. She donated stand no. 2292 Mabelreign Township to the Tadiwanashe Trust. On 4 September, 2015, she transferred a half share of stand 2292 Mabelreign Township to Tadiwanashe Trust. She remained the owner of the remaining half share, with plans to transfer that half to the Trust when she finished paying the loan. The title deed is on page 11 to 12 of the defendant’s bundle of documents, which is exhibit 3.

She admitted that she did not inform the defendant about the donation of stand 2292 to the Tadiwanashe Trust and the subsequent transfer of the half share to the Trust. Her evidence was that she had no legal obligation to inform the defendant. She said throughout the marriage, he had also been acquiring assets and disposing of them without her approval or knowledge. She produced pages 44 to 48 of exhibit 2 as proof that the defendant had imported and sold certain motor vehicles without her knowledge.

Regarding the Mercedes Benz motor vehicle, she said she bought it on her own. She testified that it was brought to Beitbridge and that iswhere she collected it from. She  admitted travelling to Beitbridge to collect the car with the defendant, but she said she financed the trip to Beitbridge. The defendant just provided company on the journey.

The defendant testified during the trial.  He confirmed being a lecturer, a tutor and trading in cars as his source of living. He did not contest the divorce.

He confirmed that plaintiff got a loan for stand 2292 Mabelreign Township and that she serviced the loan directly from her salary. Most of his evidence was not helpful to the court. Below are a few extracts from his evidence in Chief:

“Q. What was your income?

I don’t remember the specific amounts.”

“Q. Did you buy any materials for the renovations?

Some of the materials l bought.

Q.  Which ones?

A.  I do not remember. I remember the pit sand. I was not writing things down. I had not planned for divorce.

“Q. Any other material you bought?

I do not remember.”

So how will the defendant be assisted by the Court, if he has no recollection of such critical matters to his claim?

“Q. Any cash contributions to the purchase of motor vehicles?

No; but l travelled by bus to Tanzania. She flew by air. We came back together. I drove the motor vehicle.”

During cross-examination, some of his evidence was as follows:

“Q. Did you contribute to the loan repayment?

No

Q. There is still a balance owing?

A. Yes

Q. Confirm that you never offered to clear the loan?

A. I was never asked.”

Q. How much were you realising from your income generating projects?

A. I do not keep the records.

Q. But the matter has been pending since March last year?

A. Yes, but l did not think it was necessary.

Q. Breakdown the groceries you bought.

A. I do not remember.

Q. You say you bought groceries for three years but you cannot give a breakdown?

“Q. You say you sold your Waterfalls property to maintain the family for how much did you sell it?

I do not remember.”

Q. So you think just the marriage gives you a licence to 50% of the plaintiff’s sweat?

A. No l contributed immensely.”

The above excepts from defendant’s evidence confirm that the defendant did not provide the court with any evidence to support his 50 per cent claim of the Mabelreign house or the Mercedes Benz. In contrast, the plaintiff came to court armed with proof that she purchased the house on her own and renovated it on her own and that she purchased the Mercedes Benz on her own and maintained it on her own.

What needs to be appreciated by divorce litigants is that in Zimbabwe, Civil marriages are out of community of property. The only principle which entitles a spouse in a divorce matter to a share in a property registered in the sole name of the other spouse is proof of direct or indirect contributions, in the acquisition or improvement of the property. The defendant failed to adduce proof of his contribution. He kept telling the court that he had no records. So how can the court assist him if he has no records. Not only did he have no records; he appeared to have no memory of any meaningful contribution.

In addition to proof of contribution, s 7 (4) of the Matrimonial Causes Act, [Chapter 5:13] requires the court to take into account the income earning capacity, assets and other financial resources with each spouse. In this regard the court took into account the fact that both spouses have income earing capacities as indicated in the paragraph about the parties’ employment.

The plaintiff has an unfinished mortgage. The defendant has no known debt so he can easily start afresh. On age and health the defendant is only 49 and no ill health was raised as an issue. On marriage duration, it was fairly short, almost 7 years. So nothing turns on the other factors mentioned in s 7 of the matrimonial Causes Act.

He was asked what building materials he contributed. He said he could not remember. Surely one can remember if they bought cement, or tiles or bricks? The inescapable conclusion by the court is that he did not remember anything because he contributed nothing directly. He did not given any evidence of indirect contribution either. If defendant had adduced proof that whilst the plaintiff financed the purchase and renovation of the house, he bought groceries to sustain the family that would have amounted to indirect contribution. But he did not have any proof of indirect contribution. The plaintiff’s testimony, which the defendant did not dispute was that she even had to leave money for bread when she travelled. He did not dispute that. She said if gas ran out while she was away, he would wait for her to provide the money. She also said the most he spent towards the family in her absence was $5.00 as a stop gap measure, till she came. That evidence was not disputed.

On the immovable property, there is an outstanding loan of US$26 000.00. The defendant is asking for half the property, yet he has not offered to clear that outstanding balance. He actually expects plaintiff to clear 50% of it when she has already paid more than US$100 000.00 on her own.

In addition to that, the defendant, despite knowledge of the involvement of the Trust before the hearing, did not cite the Trust and Trustees as co-defendants. On that point alone, his claim to 50% should fail because defendant left the Trust and Trustees in whom ownership of 50% of the property now vests. His claim to the Mercedes Benz should also fail because that motor vehicle has also been given to the Trust and now belongs to the Trust.

The case of Dynamos Football Club (Pvt) Ltd & Anor v Zimbabwe Football Association & Others, 2006 (1) ZLR 346 (S) at 357 is relevant on this issue of Trust property. In that case, it was held that where ownership of property vests in a Trust the Trustees must of necessity be party to the proceedings before Trust property is interested with.

The plaintiff’s assertion that she was not obliged to involve her husband on the issue of the donation of her house to the Tadiwanashe Trust is the correct legal position. The cases referred to by plaintiff’s counsel in his address to the court on this point are relevant. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) at 105 to 106 the court held that

“The registration of rights in immovable property in terms of the Deeds Registries Act.. is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

This means legally as the registered owner of the property, the plaintiff was at liberty

to dispose of the property as she wished. She did not commit any fraud.

In Muswere v Makanza 2004 (2) ZLR 262 (H) the court held that:

“A wife cannot stop her husband from selling the matrimonial home or any other immovable property forming the joint estate if it is registered in his sole name even if she contributed directly and indirectly towards the acquisition of that property.”

In the present case we have a husband who has no proof of contribution directly or

indirectly towards the acquisition of the property in question. How can he allege fraud on the donation of such property to a Trust of the owner’s choice. In Muswere v Makanza supra, the court continued as follows:

“Anachronistic as it is, the legal position at present is the right of a wife to the matrimonial estate, as determined by the principles of family law, are inferior to the rights of her husband in the same property by the principles of the law of property.”

What applied to the wife in the above quote applies to the defendant in the present case.

So the donations of both the immovable property and the movable Mercedes Benz to

the Trust were lawful and not fraudulent. Consequently, ownership cannot be divested from the Trust in proceedings were the Trust and Trustees have not been cited at all. On this basis alone, the defendant’s claims must fail. However, the earlier part of the judgment has shown that because of his failure to prove his contribution to the acquisition of the assets, even if the Truestees had been cited, his claim would still have no merit.

Consequently, it is ordered as follows;

a decree of divorce be and is hereby granted.

the donation of stand 2292 Mabelreign Township and the subsequent transfer of half share to Tadiwanashe Trust be and is hereby declared to be lawful,

the donation of the Mercedes Benz C180 to the Tadiwanashe Trust be and is hereby declared lawful.

The defendant’s counter-claim for 50% of stand 2292 Mabelreign Township be and is hereby dismissed.

the defendant’s counter claim for the Mercedes Benz C180be and is hereby dismissed.

The defendant shall pay costs of suit on the ordinary scale.

Kantor and Immerman, plaintiff’s legal practitioners

Mabulala & Dembure, defendant’s legal practitioners