Charles Mandienga v Chiedza Mandienga (nee Mapako)

### Preamble
1
HH 544/18
HC 5766/13
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CHARLES MANDIENGA

versus

CHIEDZA MANDIENGA (nee Mapako)

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 5 June 2017 and 19 September 2018

Civil Trial

W. Makwanya, for the plaintiff

B. Furidze, for the defendant

NDEWERE J: The parties were married in terms of the Marriage Act, [Chapter 5:11] on 24 December, 2005. Two minor children namely Donnel Munesu Mandienga, born on 1 June 2006 and Diana Mutsawashe Mandienga born on 5 December, 2009, were born out of the marriage. The plaintiff issued summons on 16 July, 2013 claiming a decree of divorce and ancillary relief on the ground of irretrievable breakdown of the marriage.

During the pre-trial discussions, the parties agreed to the following;

That the marriage had irretrievably broken down in that there was no longer any love and affection between the parties as the parties had not lived together as husband and wife for more than 12 months.

That custody of the two minor children referred to above be granted to the defendant, with plaintiff having reasonable access on alternating weekends, public holidays and school holidays.

That defendant contributes $400.00 as maintenance per month for both children until the children reach 18 years or become self-supporting; unless the amount is varied by a court order.

Just before the trial started the defendant further agreed that the immovable property, stand 6164 Ruwa Township of Dispute Estate, be awarded to the plaintiff. However, she claimed a usufruct over the property till the children reached 18 years or become self-supporting. So the issues which were referred to trial were the following

Whether the defendant is entitled to a usufruct of stand number 6164 Ruwa Township of Dispute Estate till the children reach majority.

Whether, from the property listed in paragraph 11 of the declaration, the plaintiff should be awarded the Nissan Hardbody, Registration No. AAN 3178, with the defendant being awarded the Mazda Demio Registration No. AA0 4544 and the rest of the movable property listed in paragraph 11.

With regards to the issue of the immovable property, the plaintiff’s evidence was that he was still in the process of acquiring the stand through an employer assisted Mortgage Scheme. He said the property was still under construction and due to the acrimony between him and the defendant allowing the defendant to continue to live at the property could result in further misunderstandings between the parties after the divorce. He therefore, wanted the defendant out of the premises. He said he was contributing to the children’s accommodation needs as part of the maintenance order. He said the defendant had moved to the property without his consent and that the property was not even suitable for habitation.

The defendant’s testimony was that she wanted usufruct rights, till the children are eighteen or till she re-married. She said she wanted her children to be co-owners of the property. She said she wanted to stay at the property to have one permanent residence for the children, so that she does not move up and down to different residential area with them.

The court took into account the fact that the defendant agreed that the immovable property be awarded to the plaintiff as sole owner. Having agreed to that position, the defendant cannot then dictate to the plaintiff that she must stay on at the property till the children are eighteen or she has remarried. Neither can she dictate that the children be co-owners. If the plaintiff had agreed to her demands for usufruct and co-ownership for the children, that would have been in order. But since the plaintiff has refused to grant her demands, the court requires a legal basis before it can compel him to do so. The court has so legal basis to compel the plaintiff. The defendant agreed that the plaintiff takes over 6164 Ruwa Township of Dispute Estate as his sole property. The court has no legal basis to then compel plaintiff to make his minor children co-owners. Distribution of property upon divorce is between the spouses, children are not included, except with the consent of both parties. All that the minor children are entitled to as of right is maintenance to cover all their reasonable requirements till they are eighteen or self-supporting. And the plaintiff is already paying such maintenance. If the defendant thinks the maintenance is not sufficient to cover the accommodation needs of the children, she can approach the court for an upward variation. She has no right to remain in a property whose claim she has abandoned in favour of the plaintiff. In Dhlembeu v Dhlembeu 1996 (1) ZLR 105 (S), it was held that the husband in whose name the property was registered had unfettered rights of ownership and since the wife had no legal interest in the property, there was no valid basis on which she might continue in occupation.

The above position is a correct summation of the legal position. Defendant’s claim to a life usufruct on the disputed property cannot succeed.

The plaintiff’s apprehension of violence if she stays on at the property is understandable, given the previous domestic violence cases between the parties.

With regard to the motor vehicles; the plaintiff said he got the Nissan Hardbody through a loan facility provided by his employer and he required it for use in the day to day execution of his duties in his employment. He said he required a four wheel drive so that if he needs to visit worksites with difficult terrain, the car will be able to navigate such terrain.

The defendant, during her own evidence admitted that the Nissan Hardbody was bought through a loan from the plaintiff’s employment company. It is common cause that the Demio is what was bought through family savings. But she said she wanted the Nissan Hardbody because it was stronger. She said she needed it so that she visits their child at boarding school and to also do school runs with the other child at home. She disputed that the plaintiff required the Nissan Hardbody for work purposes. She said his job is about financial systems and he travels by air.

The court’s view is that the plaintiff has been very fair to the defendant by offering her the Mazda Demio which was said to be running and which was bought by the family savings. All she needs the car for, according to her evidence, is to do school runs and visit her child at boarding school. There was no evidence adduced to suggest that the Mazda Demio cannot do the school runs or take her to the child’s school. Besides it was her evidence that the Mazda Demio was bought for her to use. So why is she refusing a car which was earmarked for her from the outset.  All she said was she wanted the Nissan Hardbody because it was stronger.

The defendant herself is not a driver. She lives with a cousin. It appears that her refusal of the Mazda Demio in preference of the Nissan Hardbody is not her own decision but may be a reflection of influence from other people since she herself, not being a driver, must know  very little about cars and their strength.  That is why she did not give any reasons for rejecting the Mazda Demio. There was no evidence that it cannot do school runs or go to the boarding school. The Mazda Demio is the car which she herself said had been bought for her by the plaintiff. So why refuse a car which was meant for her from the outset and demand the car which was bought with an employer’s assistance for the plaintiff?

The court’s view is that the plaintiff’s claim to the Nissan Hardbody is more justified. He bought it through a loan from his employer, not from family savings. So it hardly qualifies as matrimonial property for purposes of distribution. Besides he testified that he requires the Nissan Harbody for his official trips. Defendant, in trying to contradict plaintiff’s evidence on this point, revealed a narrow appreciation of business management. Plaintiff may be a financial systems person, but for him to come up with systems that serve his company the best, he has to be familiar with operations at booster sites. That would necessitate visits to the sites at some stage of his employment. That would explain why his employer assisted him to buy the four wheel drive Nissan Hardbody, so that if there is need for him to visit a site, the company would not have to start looking for another car for him.

Consequently, the court’s decision on the motor vehicle dispute is that plaintiff’s claim of the Nissan Hardbody has merit and he is the right person to be awarded that car. The defendant shall be awarded the Mazda Demio and all the other property listed in para 11 of the plaintiff’s declaration. The other motor vehicles referred to by the defendant which did not appear on para11 had disputed ownership. The court was not convinced that the motor vehicles still existed and that there are matrimonial properties subject to distribution as part of the divorce proceedings.

Consequently, it is ordered as follows:

A decree of divorce be and is hereby granted.

Custody of the minor children, namely Donnell Munesu Mandienga, born on 1st June 2006 and Diana Mutsawashe Mandienga born on 5th December, 2009, be and is hereby awarded to the defendant, with the plaintiff having reasonable access on alternating weekends, public holidays and school holidays.

Defendant shall contribute $400 per month for both children till they reach 18 or becomes self-supporting in terms of the existing maintenance order; unless varied by the Maintenance Court.

The plaintiff be and is hereby awarded stand 6164 Ruwa Township of Dispute Estate as sole owner of the property.

Plaintiff be and is hereby awarded the Nissan Hardbody, Registration number AAN 3178 as his sole motor vehicle.

Defendant be and is hereby awarded the Mazda Demio AAO 4544 and the rest of the movable property listed in paragraph 11 of the plaintiff’s declaration as the sole owner of that property.

That each party pays its own costs of suit.

Zimbodza and Associates, plaintiff’s legal practitioners

Kanokanga and Partners, defendant’s legal practitioners