Joy Muriel Moore v Stuart Cameron Moore

### Preamble
1
HH 233-12
HC 2171/08
JOY MURIEL MOORE
versus
---------


==============================

JOY MURIEL MOORE
versus
STUART CAMERON MOORE

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE 06 June, 05 and 06 September 2011 and 07 June 2012

DIVORCE ACTION

J. Samukange, for plaintiff
A. P. de Bourbon, SC for defendant.

CHITAKUNYE J. The plaintiff and the defendant were joined in holy matrimony on 20 February 1998 at Harare in terms of the Marriages Act [Cap 5:11] and the marriage still subsists.

The defendant was born in Zimbabwe and considers Zimbabwe his country of domicile. There are two minor children of the marriage, namely; Megan Joy Moore born on 23 October 2000 and Ryan Peter Moore born on 17 March 2003.

On 22 April 2008 the plaintiff sued the defendant for divorce alleging that the marriage relationship has irretrievably broken down. The reasons for the breakdown she alluded to included that:-

1) The defendant has, throughout the marriage, persistently consumed intoxicating liquor to excess and frequently has become very drunk;
2) Defendant treats the plaintiff with a lack of affection, consideration and respect and has, throughout the marriage, frequently insulted her and criticized her causing her significant distress, emotional trauma and destruction of her confidence;
3) Defendant has consistently spent unreasonable periods away from the family home enjoying pursuits of his own to the plaintiff’s distress;


4) The parties have grown apart from one another and no longer communicate in a manner consistent with a normal marriage.

5) During January defendant publicly declared he no longer loved the plaintiff and no longer wished to be with her;

6) Defendant vacated the matrimonial home in mid February since when the parties have been living separate and apart from one another.

As a consequence of the above the plaintiff claimed for-

1) A decree of divorce with costs;

2) Custody of the minor children with the defendant paying maintenance in the sum of USD 4000 per month in respect of the plaintiff until her death or remarriage and USD 3000 per month in respect of the two minor children until they turn 18 years or become self supporting whichever is sooner.

3) That the proprietary rights of the parties in respect of the matrimonial estate be divided in such a manner that the plaintiff shall receive no less than one half by value of the assets constituting the matrimonial estate.

In his plea, defendant admitted that the marriage has irretrievably broken down but not for all the reasons stated by the plaintiff. He only conceded to two of the reasons being that: -

a) the parties have grown apart from one another and no longer communicate in a manner consistent with a normal marriage and; b) that the defendant vacated the matrimonial home in mid-February since when the parties have been living separate and apart from one another.

He admitted that he should contribute towards the maintenance of the plaintiff and of the minor children but disputed the amounts being claimed and the periods such maintenance should be paid.

On proprietary rights he simply denied what the plaintiff put forth and put the plaintiff to proof thereof.

At the closure of pleadings neither party had disclosed that during the tenancy of their marriage any assets had been acquired and, if so, the nature and extent of such assets. Thus the assets that court was being asked to settle in terms of s 7 of the
 Matrimonial Causes Act, chapter 5:13 remained a mystery. The nature of the dispute pertaining to the assets was not clear from the pleadings as none had been disclosed.

On 19 January 2011 a pre-trial conference was held at which the issues referred to trial were identified as:-

1) What are the matrimonial assets and how should they be divided between the plaintiff and the defendant;
2) Costs of suit.

The other issues were recorded as having been resolved in this manner:-

“(1) Plaintiff and the Defendant have reached agreement as regards: a) the division of the movable matrimonial assets;
   b) custody of the minor children (to the plaintiff); c) defendant’s access to the minor children;
   d) Defendant’s maintenance of the plaintiff and the minor children.”

As with the other pleadings already referred to, no further details of the nature and extent of what the parties had agreed to was stated. As it turned out during the trial the omission of details of the nature and extent of the agreement the parties had reached did not seem to have been clear to counsel who appeared hence no much reference was made to what the parties had agreed on. If anything the manner in which evidence was led was as if no agreement had been reached on some of the issues.

For instance, whilst the pre-trial conference minute showed that the parties had agreed on the question of maintenance for the plaintiff and the minor children, the plaintiffs Counsel, without stating whether the agreement on this issue had been abrogated or not, said that the plaintiff was withdrawing her claim for maintenance because she had lodged an application for maintenance at the magistrates court. It was not made clear whether this was in accordance with the agreement parties reached at the pre-trial conference or not.

It is imperative, in my view, that where parties have reached agreement on any issue, the nature and extent of such agreement must be recorded. It may even be in the form of a deed of settlement on those particular issues. A general statement that parties have reached agreement on any issue or issues, without endorsing the details of such agreement, is a disservice to the parties and to court and so must be avoided.


The major issue for determination pertained to immovable property. That is:-

“What are the immovable matrimonial assets and how should they be divided between the plaintiff and the defendant.”

The division and distribution of assets consequent to a divorce is governed by s 7 of the Matrimonial Causes Act, chapter 5:13; herein after referred to as the Act. Section 7(1) of the Act states that:-

“(1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to-
(a) 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.”

Subsection 4 of s 7 enjoins the appropriate court to consider all the circumstances of the case in the exercise of its discretion by stating that:-

“In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following-
(a) the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each spouse or child has or is likely to have in the foreseeable future;
(c) the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
(d) the age and physical and mental condition of each spouse and child;
(e) the direct and indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
(f) the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
(g) the duration of the marriage; and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

It is important to recognize that court has wide discretion in the exercise of its powers. The assets upon which court has to exercise such discretion are assets of the spouses. That concept must be clearly understood. As aptly noted by MALABA JA in Gonye v Gonye 2009 (1) ZLR 232 at 237B-E

“The terms used are the “assets of the spouses” and not “matrimonial property”. It is important to bear in mind the concept used, because the adoption of the concept “matrimonial property” often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are separated should be excluded from the division, apportionment or distribution exercise. The concept “the assets of the spouses” is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.

To hold as the court a quo did, that as a matter of principle assets acquired by a spouse during the period of separation are to be excluded from the division, apportionment or distribution a court is required to make under s 7 of the Act is to introduce an unnecessary fetter to a very broad discretion, on the proper exercise of which the rights of the parties depend.”

In Takafuma v Takafuma 1994 (2) ZLR 103 (SC) at 106 B-E McNALLY JA laid down a basic approach that may be used in the exercise of court’s discretion when he said that:-

“The duty of a court in terms of s 7 of the Matrimonial Causes Act involves the exercise of a considerable discretion, but it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out as fair as possible. It must begin, I would suggest by sorting out the property into three lots, which I will term ‘his’, ‘hers’, and ‘theirs’. Then it will concentrate on the third lot marked ‘theirs’. It will apportion this lot using the criteria set out in s7 (3) of the Act. Then it will allocate to the husband the items marked ‘his’, plus the appropriate share of the items marked ‘theirs’. And the same to the wife. That is the first stage.

Next it will look at the overall result, again applying the criteria set out in s 7(3) and consider whether the objective has been achieved, namely, “as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses…. In the position they would have been in had a normal marriage relationship continued….”

Only at that stage, I would suggest, should the court consider taking away from one or other of the spouses something which is actually ‘his’ or ‘hers’”.

The assets exempted from division, apportionment or distribution are stated in section 7(3) of the Act. That subsection provides that:-

“The power of an appropriate court to make an order in terms of paragraph (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage—

(a) by way of inheritance; or

(b) in terms of any custom and which, in accordance with such custom, are intended to be held by the spouse personally; or

(c) in any manner and which have particular sentimental value to the spouse concerned.”

The onus is upon the spouse wishing to rely on section 7 (3) of the Act to satisfy court that such an asset falls within the exemption subsection.

It was apparent from the evidence led that there were essentially two immovable properties and a Construction company in contention.


The first property is Stand 633 Helens Vale Township of stand 318 Helens Vale Township, otherwise known as number 633 Glen Helen Way, Glen Lorne, Harare; hereinafter referred to as the Helens Vale property. The property is registered in the name of a company-YUCAP Investments (pvt) Ltd. under Deed of Transfer number 2815/2005. The shareholders of the company are plaintiff with one (1) share and defendant with ninety-nine (99) shares.

The second property is a Town house known as Section 4 Valley Lodge, Honeydew, Johannesburg, South Africa; herein after referred to as the Honeydew property.

The plaintiff argued that the Helens Vale property should be shared equally between the two of them and the Honeydew property should be exempted from consideration in terms of section 7(3) (a) of the Act.

The defendant on the other hand contended that both immovable properties must be considered and that he be allowed to retain the Helens Vale property whilst plaintiff is awarded the Honeydew property. He contended that the Honeydew property was not acquired by way of inheritance.

The plaintiff gave evidence and called one witness. She tendered some documentary evidence as exhibits. The defendant there after gave evidence.

From the evidence led certain aspects were common cause. It is common cause that both parties alluded to having lost love and affection for each other. Though they differed on the cause for the loss of love and affection, the bottom line is that both no longer love each other and wish to be divorced.

It is accepted that defendant was born in Zimbabwe and considers Zimbabwe as his country of domicile. They were married in this country in terms of the laws of Zimbabwe. This court therefore has jurisdiction to entertain the action for divorce. Where parties, as in this case, no longer have any love and affection for each other and are desirous of dissolving their marriage court can not force them to remain married. A decree of divorce will thus be granted.

The plaintiff’s stance on the contentious issues was to the effect that the Honeydew property in South Africa must be treated as inherited property and so should be exempted in terms of s 7(3) (a) of the Matrimonial Causes Act, [Cap 5:13.]


Her evidence in this regard was to the effect that when her mother died she bequeathed to her a flat namely Unit 4, Dykerhof, Earls Avenue, Winsor East, Johannesburg, South Africa. Her uncle, Wayne Marshall Ferguson, was the executor and administrator of her mother’s estate. The Uncle was to administer the estate through a Trust in Plaintiff’s name till plaintiff attained the age of 25 years. The plaintiff was to be handed over the total value of the Trust on attaining 25 years and the Trust was to terminate at that stage. However, when plaintiff turned 25 years the uncle continued to administer the Trust.

In the process of administering the Trust the Uncle decided, with plaintiff’s consent, to dispose of the flat and buy an upgraded property. This was done and the uncle used the proceeds to acquire the Honeydew property (Section 4, Valley Lodge). She thus maintained that in as far as the entire purchase price was from proceeds of the flat she had inherited, the new property should be considered as an asset acquired by inheritance. She however could neither state the date when Unit 4 Dykerhof flat was sold nor the date the Honeydew property was purchased.

The plaintiff attempted to prove her claim by producing her late mother’s will showing what was bequeathed to her. The will confirmed that she inherited among other things, Unit 4 Dykerhof, Earls Avenue, Winsor East. Johannesburg, South Africa.

Plaintiff also tendered a Financial Statement in respect of Muriel Joy Dicker Trust for the year ended 28 February 2003. This is the Trust under which her inheritance was registered and was being administered by the executor and administrator, W. M. Ferguson. A number of anomalies were noted in this financial statement of which plaintiff could not answer.

For instance, three immovable properties are listed as belonging to the Trust. These properties are;

1. Unit 4, Dykerhof, Earls Avenue, Winsor East;
2. Section 4, Valley Lodge; and
3. Stand 633, Helens Vale, Harare, Zimbabwe.

Plaintiff could not explain why Unit 4 Dykerhof Earls Avenue still appeared as part of Trust property when, according to her evidence, it is the property that was sold and proceeds there from utilized to purchase Section 4 Valley Lodge. She also could not explain why the Helens Vale property was included as Trust property when evidence adduced showed that it is registered in the name of a company in which plaintiff and defendant are the only shareholders. The Trust is not a shareholder in that company at all. When pressed for answers plaintiff made it clear she did not know but the administrator would know.

The plaintiff’s witness Mrs. Beryl Della Colley gave evidence in support of the plaintiff’s version. Unfortunately, as was the case with plaintiff, she did not participate in the administration of the Trust and so did not know why the three properties were listed as Trust properties for the year ending 28 February 2003.

Mrs. Colley indicated that her evidence was based on information she had received from Mr. Ferguson She virtually had no credible evidence of her own on the issues at hand. It is my view that not much credence could be accorded to this witness’ evidence. As is evident from above the Trust administrator’s evidence was of crucial importance to plaintiff’s case. In the absence of the administrator’s evidence plaintiff’s evidence remained unconvincing.

The defendant, on the other hand, contended that the Honeydew property must be considered as matrimonial property because it was acquired during the subsistence of the marriage. He conceded that he did not make any contribution towards the acquisition of the Honeydew property. Without being emphatic he indicated that part of the money could have come from a mortgage bond plaintiff obtained from ABSA Bank.

On the Helens vale property defendant contended that they contributed equally towards the purchase price for Stand 633 Helens vale as a vacant Stand. He further argued that plaintiff’s contribution towards the cost of construction on the Stand was minimal.

He went on to say that at the time they separated the value of the property was only about 120 000 United States dollars as the house was incomplete. He has since continued with the construction and the house is now valued at about 340 000 United States dollars.


The defendant’s view seemed to be that what is available for division, apportionment and distribution is the value as at the time of separation which he put at 25% for plaintiff and 75% for himself. The 25% for defendant would then be offset by awarding plaintiff the Honeydew property which he valued at between 700 000 and one million South African rand.

As alluded to above, whilst admitting that plaintiff made some contributions to the Helens vale property, defendant conceded that he did not make any contribution towards the Honeydew property and so that property was purchased from plaintiff’s resources. From the evidence adduced it was common cause that plaintiff applied for a mortgage bond on the 2nd September 2001 and such was granted in the sum of 155837.00 South African rand.

The Access Bond which plaintiff obtained was also used by the parties for family needs such as when they went to South Africa on holidays, for their children’s medical needs and for the purchase of some fixtures and fittings for the Helens vale property. It would appear that it is a result of these other various uses to which the Bond was applied to that defendant agreed to pay half of the balance of the Access Bond as at 6 June 2011. The parties could not agree as to whether the entire or part of the mortgage bond was used in the purchase of the Honeydew property.

Plaintiff argued that the bond was obtained after the Honeydew property had already been paid for and so it could not have been used in that regard whilst defendant contended that that assertion was not true. The person who transacted the purchase of the Honeydew property is the administrator of the Trust who did not testify.

The administrator’s evidence was imperative to confirm the source of the money used to purchase the Honeydew property and to also confirm whether any part of proceeds from the sale of Unit 4 Dykerhof flat were used in this regard as was being argued by plaintiff. Such evidence was also necessary to clarify an apparent inconsistency in plaintiff’s evidence whereby she said the Honeydew property was bought from proceeds of the sale of the Unit 4 Dykerhof flat and before the mortgage bond was obtained on 2nd September 2001; yet the financial statement for the year ending 28 February 2003 listed Unit 4 Dykerhof flat as part of the Trust property. The plaintiff appeared not knowledgeable as to when Unit 4 Dykerhof was sold and for how much and also when the Honeydew property was paid for.

I am not satisfied that plaintiff has shown on a balance of probabilities that the Honeydew Property was acquired entirely from the proceeds of the sale of Unit 4, Dykerhof Earls Avenue and that it should be exempted in terms of section 7(3)(a) of the Act. The property is however in the category of ‘hers’ as defendant never contributed anything to its purchase and it is in a Trust under her name.

Pertaining to the Helens vale property, the plaintiff’s evidence was to the effect that when defendant and herself decided to buy Stand 633 Helens vale, she requested her uncle to send them some money from her inheritance. About 50,000 South African Rand were sent and it was the money they used to purchase Stand 633, as a vacant stand. This money was from her inheritance. Thereafter whenever they needed money for construction she would inform her uncle and the uncle would send the money to the defendant. She however did not know how much was sent on each occasion or in total. She said they also bought some fixtures and fittings for the house from South Africa using her money in South Africa. She thus maintained that she contributed to the purchase and development of Helens vale property (Stand 633) to an extent where she deserves a 50% share in the property.

The evidence led showed that both parties accepted that the Helens vale property is registered in the name of a company in which they are the only shareholders. Though the plaintiff seemed not knowledgeable about how the property came to be registered in the name of a company in which she was allotted a single share, the reality is, it is in the name of a company and it has been so since its purchase as a vacant stand. The company was apparently formed for purposes of owning the property and nothing else. The property can safely be treated as ‘theirs’. The difference in the shareholding structure was created by defendant despite his own evidence that they contributed equally to the purchase price for the Stand. Defendant was unable to satisfactorily explain why he opted to give his wife a single share when, from his own evidence, at the time of purchasing the Stand she contributed 50% of the purchase price. I will thus not read much into the share holding structure.
 The defendant admitted that besides contributing to the purchase price of the vacant stand, plaintiff’s money from South Africa was also used to purchase some fixtures and fittings. He, of course, tried to down play the quantity and value of such items.

I am of the firm view that whatever contribution the plaintiff made in this regard, it was towards the needs of the family. As she said in her evidence this was their dream house and so, naturally, she put in the best she could. The Helens vale property is a property they both contributed towards and in any case it is registered in the name of a company in which they are the only shareholders. It is therefore their asset.

In the circumstances I am of the view that plaintiff deserves an award in the Helens Vale property. The question is: what percentage share should be awarded to her?

The plaintiff also claimed a 50% share in BlackLock Enterprises (pvt) Ltd. Plaintiff’s evidence on this item, was to the effect that when the defendant wanted to open his own construction company she asked for the starting capital from her uncle Ferguson. Uncle Ferguson sent some money through to defendant for him to start the company. Plaintiff did not know how much was sent for the purpose, all she could say was that it is the money used to form and to start operating the company. That appeared the only basis she was claiming a 50% share in that company.

The defendant refuted plaintiff’s assertion and contended that he is only a holder of 70% shares in Backlock Enterprises whilst his father is the holder of the 30% shares. He also contended that the company is in fact insolvent and so there is nothing to share. If at all plaintiff was to get a half share of defendant’s shares, which would be 35%, it would be in liabilities.

The plaintiff’s evidence on this issue was scant. She virtually had no evidence with which to prove her claim or rebut defendant’s assertion.

In deciding what each party is entitled to in the circumstances of this case I have taken into account the fact that the Honeydew property is plaintiff’s’, the Helens vale property is ‘theirs’ and the construction company Blacklock appeared to be defendant’s, at least 70% of it.


The just and equitable distribution of the Helens vale property would have been at 40% for plaintiff and 60% for defendant. However as plaintiff will retain the Honeydew property, that may not be just and equitable. The construction company was not shown to be of great value. It is my view that in an endeavor to place the parties as far as is reasonable and practicable, in the position they would have been in had a normal marriage relationship continued, it is necessary to take part of what would have been plaintiff’s share in the Helens vale property and add it onto defendant’s share. I am of the view that a reduction in plaintiff’s share by about 15% would be adequate.

In the circumstances, plaintiff will be awarded a 25% share in the Helens vale property and defendant a 75% share.

As already alluded to, the other issues were recorded as having been resolved at the pre-trial conference stage. However, though the parties agreed that the plaintiff be awarded custody of the two minor children the issue of access was not spelt out. The plaintiff did not allude to this issue at all in her evidence. I am of the view that defendant should be granted reasonable rights of access. Had there been a good reason why the defendant should be denied access I am sure the plaintiff would have alluded to it.

The issue of maintenance was recorded as having been resolved by the parties at the pre-trial conference stage. Unfortunately no details of such settlement were recorded. Before commencement of trial the plaintiff withdrew her claim for maintenance on the basis that she had already lodged a maintenance claim at the magistrates’ court. As a consequence no evidence on maintenance needs of the plaintiff and the minor children was led.

In his closing submissions counsel for the defendant implored court to still go ahead and determine maintenance for the children as per the defendant’s offer. He however did not allude to the agreement the parties had reached. Whilst it is true that this court as upper guardian of minor children must endeavour to ensure that children are provided for in terms of s 10 of the Act, the circumstances of this case would not be best met by such an approach. The needs of the children have to be ventilated before court can decide on what is appropriate. The plaintiff has chosen to claim maintenance in another court of law using a procedure counsel for the defendant expressed misgivings about, but that is her choice. Whilst being appreciative of the argument against the procedure adopted by the plaintiff in seeking maintenance under the Domestic Violence Act, it is my view that as she is ably represented she has made a choice she must live with.

As for the children, defendant as a concerned father can still provide maintenance for the children to the best of his ability without the need for a court order pending the determination of plaintiff’s application for maintenance in the magistrate’ court.

The last issue for consideration pertains to costs of suit. The plaintiff prayed for costs on a higher scale. No basis whatsoever was laid for such a claim. Indeed counsel did not allude to any reason why costs should not be as per trend in matrimonial matters. Defendant’s counsel opposed the plaintiff’s claim and properly pointed out that no basis for costs to be awarded against the defendant was made. It is my view that each party should bear their own costs. Clearly this is not a case were parties had no cause to fight their case. Each party had some measure of success in their claim or defence hence no need to penalize one party.

Accordingly it is hereby ordered that:-

1. A decree of divorce be and is hereby granted;
2. Custody of the minor children, namely, **Megan Joy Moore** (born 23 October 2000) and **Ryan Peter Moore** (born17 March 2003) be and is hereby awarded to the plaintiff.
3. Defendant is hereby granted reasonable rights of access to the minor children, which rights shall include, but not limited to, one afternoon each week during school term, alternate weekends during school term to include alternate weekends, and alternative half of each school holiday, upon reasonable notice and in consultation with the plaintiff.
4. Each party shall retain as his or her own property all movable property presently in his or her possession.
5. Plaintiff shall retain as her sole and exclusive property the town house known as Section 4 Valley Lodge, Honeydew, Johannesburg, South Africa;


6. Defendant shall within six months of the date of this order pay to ABSA Bank 50% of all sums outstanding as at 06 June 2011 on the access mortgage bond in the name of the plaintiff No. 0000008056208337;

7. Defendant shall retain sole ownership of the shares presently held by him in Back lock Enterprises (private) Limited;

8. Plaintiff be and is hereby awarded a 25% share of the value of the immovable property being Stand Number 633Helens vale Township of Stand 318 Helens Vale Township also known as 633 Glen Helen Way, Glen Lorne, Harare registered in the name of YUCAP INVESTMENTS (PVT) LTD. with the plaintiff retaining 75% thereof.

9. The parties shall agree on the value of the property within 14 days of the date of this order failing which they shall appoint a mutually agreed evaluator to evaluate the property within 30 days of the date of this order.

10. Should the parties fail to agree on an evaluator the registrar of the High Court shall be and is hereby directed to appoint one from his list of independent evaluators to evaluate the property.

11. The defendant shall bear the cost of evaluation.

12. The defendant shall pay off the plaintiff her share within six months from the date of receipt of the report of evaluation unless the parties agree on a longer period and such agreement is in writing.

13. Should the defendant fail to pay or to make a payment plan acceptable to the plaintiff within the period stipulated in (12) above, the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court. The net proceeds thereof shall be shared as per their respective shares in the property.

14. Each party shall bear their own costs of suit.
--- END OCR FALLBACK ---