Juliana Ngundu (nee Muzanenhamo) v Webster Ngundu

### Preamble
1
HH 469-18
HC 6605/15
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JULIANA NGUNDU (NEE MUZANENHAMO)

versus

WEBSTER NGUNDU

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 29 January 2018 and 1 February 2018 & 9 August 2018

Trial

C Chengeta, for the Plaintiff

Defendant in person

CHITAKUNYE J. The plaintiff and the defendant were joined in holy matrimony in terms of the Marriage Act [Chapter 5:11] on 16 May 1994 at Harare and their marriage still subsists.

Their marriage was blessed with two children who are now of majority status.

The marriage relationship between the parties has hit rock bottom such that on 15 July 2015 plaintiff lodged this action seeking dissolution of the marriage and the distribution of the assets of the spouse in terms of the Matrimonial Cause Act, [Chapter 5:13].

In seeking the dissolution of the marriage the plaintiff alleged that the marriage has irretrievably broken down in that:

The plaintiff has lost love and affection for the defendant;

The Defendant has been and is still cheating Plaintiff with other women;

Plaintiff and Defendant have irreconcilable differences;

There are no longer conjugal rights enjoyed between the parties;

There has not been peaceful living between Plaintiff and Defendant;

There has never been normal communication in the home ever since Defendant started having extra marital relationships with other women;

The parties have lived in separation for more than three (3) continuous years; and

Any prospects of reconciliation are impossible.

As a consequence of all these factors plaintiff alleged that there were no reasonable prospects of restoration of a normal marriage relationship between the parties.

As regards ancillary issue, the plaintiff alleged that during the substance of the marriage the parties acquired both immovable and movable properties. She provided a schedule of the properties and outlined how she wished the properties to be distributed.

On the immovable properties, which comprised Stand number 2772 Bluffhill Township, Westgate, Harare, which is their matrimonial home she suggested a 50% share each and for the two Plots, namely Plot 12 and 13 Riverside, Zvimba she suggested the parties get a plot each.

In his plea the defendant initially contended that the marriage can be saved by plaintiff receiving counselling as he denied allegations of wrong doing on his part. He, however, conceded later on that the marriage has irretrievably broken down.

On the suggested distribution of assets of the spouses, defendant contended that plaintiff had included some items belonging to third parties and these should not be a subject of distribution. He also stated that plaintiff had left out some immovable properties which she had acquired in her name. He however did not make a counter claim stating what he believed would be a fair and equitable distribution of assets of the spouses.

At a pre-trial conference held on 27 October 2016 the parties agreed that:

The marriage relationship between the parties has irretrievably broken down and there are no prospects of restoration of a normal marriage relationship.

The issue of maintenance vis-a-vis the parties themselves has fallen away, since each party can sustain himself/herself. The issue of custody and maintenance of the children has fallen away since the children are now majors.

The Defendant will take the Sony radio and the coffee table which he possessed before marriage;

The Defendant will keep the dining room suite and give plaintiff half of the value.

The parties shall share the sofas 50:50.

The plaintiff shall take the desk currently being used by their daughter.

The parties shall share equally the electricity, rates and water arrear bills.

The issues the parties could not agree on and were thus referred to trial were captured as follows:

What is fair and equitable distribution of the following immovable properties:-

Stand 2772 Bluffhill Township, Westgate, Harare;

Stand 5300 Chiedza Infill, Karoi; and

Stand 2317 Saturday Retreat, Ushewokunze, Harare?

What is fair and equitable distribution of the ten (10) cattle at Plot 12 and 13 Riverside Annexe, Banket?

The plaintiff gave evidence after which defendant gave evidence. To buttress some aspects of his evidence defendant called one other witness.

From the evidence by plaintiff and defendant I was satisfied that their marriage has indeed irretrievably broken down with no iota of hope that it can be restored to normalcy. It is an accepted position that where on the trial date the plaintiff or both parties insist that the marriage has irretrievably broken down , this court cannot say otherwise. Parties cannot be forced to continue in a marriage relationship that no longer has any life in it. See Kumirai v Kumirai 2006 (1) ZLR 134 (H)

On the contested issues on the sharing of assets of the spouses, the plaintiff gave evidence to the effect that all the assets were acquired during the subsistence of the marriage and so should be distributed equally between the spouses. In this regard she suggested an equal share each in respect of the matrimonial home being stand 2772 Bluffhill, Westgate, Harare, Stand 5300 Chiedza infill, Karoi and stand 232317 Saturday Retreat, Ushewokunze, Harare.

Besides that the properties were acquired during the subsistence of the marriage plaintiff also stated that she contributed mostly indirectly to the construction of the matrimonial home. Her only direct contribution was when she bought some window panes and putty. She thus believed she was entitled to a 50%share in that property on those grounds as well.

As regards Stand 5300 Chiedza infill Karoi and stand 2317 Saturday Retreat Ushewokunze Harare, plaintiff seemed to concede that she acquired these properties on her own without the knowledge of the defendant during the subsistence of the marriage. I mention this because she did not refute defendant’s accusations in this regard. She was however of the view that the two stands can also be shared equally.

On the issue of cattle, plaintiff testified that the 10 cattle remaining at Plots 12 and 13 Riverside Banket belong to them and not to a third party as contended by defendant. As someone who has not been to the plots for a long time, she was unable to bring any better evidence than a ZR Police Livestock clearance certificate dated 2 September 2016, she said was for the removal of Edington Danda’s cattle to his farm in Somabhula. The plaintiff’s evidence was to the effect that after Edington had removed his cattle as indicated on the certificate, the cattle that remained at the plots were theirs. She thus sought that such cattle be shared equally.

The defendant’s evidence on the distribution of assets of the spouses was to the effect that he single handedly acquired and developed Stand 2772 Bluffhill, Westgate, Harare during the subsistence of the marriage. His effort at inviting the plaintiff to partake in the construction by sourcing quotations for building materials were spurned by plaintiff. Throughout the purchase and development of the property plaintiff remained aloof. Her only interest came when she was now suing for divorce.

He categorically denied that plaintiff bought any window panes for the house. As far as he was concerned, she remained disinterested.

As regards Stands 5300 Chiedza Infill, Karoi and stand 3217 Saturday Retreat Ushewokunze, Harare, defendant testified that plaintiff acquired these properties on her own behind his back. He surmised that instead of contributing to stand 2772, plaintiff seemed to have been acquiring her own properties. He thus said whilst the properties must be considered in the distribution, he had no interest in acquiring shares in the two stands. Instead whatever share plaintiff was offering him should be retained by plaintiff and be added onto the 30% share he was offering her in Stand 2772 as her fair and equitable share in the assets of the spouses.

The defendant’s witness Isaac Mutyasera had nothing much to say. His testimony was on the alleged attempts he made to persuade plaintiff to also contribute towards the construction of the house of which plaintiff said she had no money. He later changed to now allege that plaintiff was just unwilling to partake in the project.

I am of the view that this witness’s evidence was not of any value. He gave me the impression of a coached witness whose main task was to confirm defendant’s assertion that plaintiff was not contributing to the construction of the matrimonial house. The question was not hinged so much about contributions but about an equitable distribution of assets of the spouses taking into account all the circumstances of the case.

From the evidence adduced the main issue is on the distribution ratio of the matrimonial house and the availability of cattle for distribution.

The division and distribution of assets of the spouses at divorce is governed by s 7 of the Matrimonial Causes Act, [Chapter 5:13]

Section 7 (1) (a) of the Act provides that:-

“Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at anytime thereafter, an appropriate court  may make an order with regard 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 making the order for the division, apportionment or distribution of assets of the spouses court has a wide discretion.

Section 7 (4) of the Act provides some guiding factors as follows:-

“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-

the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

the standard of living of the family, including the manner in which any child was being educated or trained or is expected to be educated or trained;

the age and physical and mental condition of each spouse and child;

the direct or indirect contribution by each spouse to the family, including contributions made by looking after the house and caring for the family and any other domestic duties;

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;

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 the children in the position they would have been in had  a normal marriage relationship continued between the spouses.”

It is evidently clear that court is enjoined to consider all the circumstances of each case.

In casu, it is common cause that Stand 2772 Bluffhill was acquired during the subsistence of the marriage through a mortgage bond in favour of the defendant. It is also common cause that plaintiff acquired two other stands outside the knowledge of the defendant. It would not be farfetched to say whatever she used in acquiring those properties would ideally have been used as her contribution to the matrimonial estate. It is thus only logical that these stands be considered when apportioning her share in stand 2772 Bluffhill.

Prior to the commencement of trial I had asked the parties to have the three immovable properties evaluated so that court is better informed on the values of the respective properties, but  parties seemed to have spurned that opportunity  as the reasons given for failure to appoint a mutually agreed evaluator were spurious. It was my view that such an evaluation would have assisted the parties themselves as well such that each appreciated the share they were to get.

In considering what would be a fair and equitable distribution court will not just consider the direct and indirect contributions of the parties as the parties seemed to suggest. The needs of the parties are also relevant considerations. The duration of the marriage, in this case about 24 years, has to also be considered as it will not be easier for either party to start afresh considering their respective ages. See Usayi v Usayi 2003(1) ZLR 684(S)

In this regard it is common cause that plaintiff is still in formal employment whilst defendant is not. He testified that he has not been employed for the past 8 years. As the plaintiff will retain two properties albeit they maybe of inferior value, she will still have shelter. The defendant on the other hand has no other urban shelter. It is thus only proper that he be awarded a share that takes into account the need to retain the matrimonial house.

The 50:50 sharing ratio suggested by plaintiff will be unfair taking into account that she will retain her two other properties. On the other hand, the 30:70 sharing ratio suggested by defendant may also be on the lower side considering the location of the matrimonial house vis- a-vis the location of the two stands plaintiff will retain. The two stands are located in high density areas of Karoi and Harare whilst the Bluffhill property is in the low density area of Harare. The probability of the two stands being of much inferior value is great.

In the circumstances, and as parties spurned my directive to have the properties valued on spurious reasons , I believe an adjustment of the sharing ratio offered by defendant on Stand 2772 by about 7 percent will be fair and just in the circumstances of the case.

In arriving at this ratio I have also taken account of the fact that defendant will stand to benefit from the Plots in Banket. Though these were said to still be state land, the defendant will continue to benefit from them as long as he meets the conditions of the lease agreement. The plaintiff on the other hand will have no such benefit even if she may have wanted to.

The defendant will be granted an option to buy out plaintiff’s share within a reasonable time taking into account his current unemployment status and his own request for 6 to 9 months to pay out the plaintiff.

The issue of cattle was contested on the basis that plaintiff alleged that the cattle were owned by the parties whilst defendant contended that the cattle were owned by Edington Danda who is currently in Nigeria. The cattle they owned had been disposed. The question of Edington Danda having brought his cattle to the couple’s plots is common cause. What is disputed is whether he removed all the cattle or not and whether the cattle currently at the plots belong to the parties.

Ordinarily it would have been incumbent upon plaintiff to prove that the cattle belonged to the parties by the production of such evidence as the Livestock card. Unfortunately all she tendered was the Z R P Livestock Clearance Certificate already referred to.

The defendant on the other hand was the one responsible for operations at the plots and was expected to have been knowledgeable about the whereabouts of such a document. Unfortunately neither party effected nor requested the other party to effect discovery of such a document. It would appear the parties were content with a contest of word of mouth. I am of the view that plaintiff’s legal practitioners should clearly have asked defendant to effect discovery of such a document if they believed such a document existed and was in his custody.

In the circumstances the issue of the availability of cattle for distribution cannot be conclusively dealt with.

Accordingly is is hereby ordered that:

A decree of divorce be and is hereby granted

2.	The movable property shall be distributed as follows:

a) The Defendant will take the Sony radio and the coffee table which he possessed before marriage;

b) The Defendant will keep the dining room suite and give plaintiff half of the value.

c) The parties shall share the sofas 50:50.

d) The plaintiff shall take the desk currently being used by their daughter.

3.	The parties shall share equally the electricity, rates and water arrear bills.

4.	The immovable property shall be distributed as follows:

a) The plaintiff shall retain Stand number 5300 Chiedza Infill, Karoi and stand number 2317 Saturday Retreat, Ushewokunze, Harare as her sole and exclusive property.

b) The plaintiff is hereby awarded a 37 % share in the matrimonial property namely Stand 2772 Bluffhill, Westgate, Harare.

c) The defendant is hereby awarded a 63 % share in Stand number 2772 Bluffhill, Westgate, Harare.

d) The defendant is granted the option to buy plaintiff’s share within a 12 months period from the date of this order unless parties agree on a longer period.

e) In the event that defendant fails to buy out plaintiff share within the stipulated period or such longer time as the parties may agree, the property shall be sold to best advantage by a mutually agreed estate agent. Failing such agreement, one shall be appointed for them by the Registrar of this Court from his list of registered estate agents.

The net proceeds from such sale shall be distributed in the ratio 37% for plaintiff and 63% for the defendant.

5. Each party shall bear their own costs of suit.

Chengeta Law Chambers, Plaintiff’s legal practitioners.