Lawrence Williams V Molly Williams (NEE Richards)

### Preamble
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HH 275/12
HC 2592/09
LAWRENCE WILLIAMS
versus
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LAWRENCE WILLIAMS
versus
MOLLY WILLIAMS (nee RICHARDS)

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, February 20, 2012 and June 28, 2012

MATRIMONIAL ACTION

D. Moyo, for the plaintiff.
Mtisi, for the defendant

CHITAKUNYE J: The plaintiff and defendant were married to each other at Harare on 12 February 1988 in terms of the Marriages Act, [Cap 5:11]. Their marriage was blessed with two children of whom only one is still a minor. The minor child was born on the 11 March 1995.

During the subsistence of their marriage they acquired both movable and immovable property.

Some unhappy differences occurred leading to the plaintiff suing the defendant for a decree of divorce and other ancillary relief on 15 June 2009. Plaintiff alleged that the marriage relationship between the parties has irretrievably broken down to such an extent that there are no reasonable prospects of the restoration of normal marriage relationship. The reasons for the breakdown were stated as being that-

1. The parties have not been living together as husband and wife for a period in excess of a year;
2. The defendant is argumentative, harasses the plaintiff, treats the plaintiff with disdain and contempt and has no respect for the plaintiff;
3. Plaintiff no longer has any love, trust and affection for the defendant.

As a result of the breakdown of the marriage the plaintiff claimed for-

1. A decree of divorce;


2. Custody of the minor child be awarded to the defendant subject to the plaintiff’s right of access;

3. An order that he pays maintenance of USD150.00 per month for the minor child and that he provides 40 litres of fuel per month. He is also to contribute half of the minor child’s school fees.

4. An order for division of the movable property in terms of paragraph 8 of his declaration;

5. An order for distribution of the only immovable property in terms of paragraph 9 of his declaration; and

6. An order that each party pays their own costs of suit.

In her plea the defendant admitted that the marriage has irretrievably broken down. The reasons for the breakdown were essentially the plaintiff’s infidelity which resulted in him fathering a child with another woman during the subsistence of the marriage.

The defendant made a counter claim in which she disclosed that there was in fact more than one immovable property the parties had acquired during their marriage. She provided how she preferred the movable and immovable property to be distributed.

At a pre-trial conference held on 31 March 2011, the parties agreed that-

1. The marriage between the plaintiff and the defendant has irretrievably broken down to justify a decree of divorce;

2. The immovable property Stand No. 478 Armthwaite, Quinnington, Borrowdale, Harare, be sold and the proceeds be shared equally between the plaintiff and the defendant.

3. Defendant to retain all matrimonial movable property.

4. The maintenance order granted by the Harare Magistrates Court under case No. M370/09 be incorporated to be part of the order of this court.

The issues upon which the parties could not agree and which were referred to trial comprised the following-

1. Whether or not the defendant is a 50% shareholder in Ink-Tech (Private) Limited, and if so, whether the defendant should be paid out for her shares by the Plaintiff for the Plaintiff to be the sole shareholder.
 2. Whether or not the matrimonial property Stand No. 478 Armthwaite Road, Quinnington, Borrowdale, Harare, should be sold when the youngest minor child has turned eighteen (18) years with the defendant having the right to buy out the plaintiff.

3. Whether or not the following movable property is company property:

   (i) Red electric generator
   (ii) Borehole pump
   (iii) Pressure tank
   (iv) Round teak table
   (v) Chairs
   (vi) Defy four plate gas stove.

When the parties appeared before me for trial counsel for plaintiff indicated that parties had now agreed on issue number 2. In that regard he said that the parties now agreed that the immovable matrimonial property, that is Stand 478 Armthwaite Road, Quinnington, Borrowdale, Harare, should be sold by private treaty on the open market. Defendant’s request to be granted the right of first refusal appeared accepted by the plaintiff.

The issues that remained for determination were thus issue 1 and 3. The plaintiff gave evidence and tendered some documentary exhibits in support of his case. Defendant thereafter gave evidence.

From the evidence adduced certain aspects are common cause. It is common cause that upon formation of Ink-Tech (private) Limited, the plaintiff and the defendant held 50 shares each in the company. The share certificates exhibits 1(a) and 1(b) dated 26 January 1999 confirm this. The two were directors of the company from its inception.

When matrimonial disputes arose company operations were adversely affected. This led to the plaintiff offering his 50% share in the company to defendant at 50 million Zimbabwean dollars. Defendant duly paid for the shares. Exhibit 2, dated 23 November 2005, and exhibit 11, dated 5 December 2005 confirm this transaction. By virtue of this sale defendant became a 100% shareholder in Ink-Tech (private) Limited.

On 2 January 2006 the parties purported to enter into another agreement whereby the plaintiff was buying back shares from defendant. See exhibit 3. The defendant confirmed that she signed exhibit 3. She however contended that she was never paid the money reflected therein despite the fact that clause (e) of that document states that:-
“Mr. Williams has paid Mrs. Williams the $500 000 000. (Five hundred million in full).”

It is also common cause that for some time Ink-Tech (private) Limited operated from their matrimonial home.

The area of disagreement pertained mostly to whether the plaintiff paid for the shares or not and also whether the buy-back by the plaintiff related to all the shares of the company or to just the 50% the plaintiff had sold to defendant. The plaintiff’s evidence was to the effect that after selling his 50% shares to defendant he later realized defendant was having difficulties and wanted to dispose of the company. He then offered to buy the company at an agreed price of $2500 000 000. 00. The two of them put their agreement into writing as reflected in exhibit 3. He duly paid defendant for all the shares in the company. To confirm that he bought all the shares he referred to contents of exhibit 3. That document reads, in the main, as follows:-

“The conditions of this agreement are as follows--a. All creditors, debtors, tax liabilities personal, company taxes etc. are to be borne by Ink-Tech (pvt)
b. Any other liabilities whatsoever are the responsibility of Ink-Tech (Pvt) Ltd as Mr. Williams is the sole
   Mrs. Williams has no dealings with the above company.
c. This agreement was done under sound mind of both parties.
d. Mr. and Mrs. Williams are to sign the share certificates at Ernst and Young our accountants.
e. Mr. Williams has paid Mrs. Williams the $500 000 000.00 (five hundred million in full)
   (also included is the fridge and Acer computer)”

This highlighted part was confirmed to have been inserted by Mrs. Williams. Both parties signed the above agreement dated 2 January 2006.

Other documents pointing to dealings in the shares included:
1. Exhibit 4 which is a draft fee note purportedly from Ernst and Young dated 25 January 2006.
2. Exhibit 5 which is a letter of transfer of shares, stock, debentures or options apparently prepared and signed by defendant for the transfer of 50 shares and is dated 20th march 2006.


3. Exhibit 6 which is a Form No. CR2, a Return of Allotments form. And is dated 17 January 2006. The document shows the plaintiff as the only one allotted shares. The new shares allotted are shown as 9950 ordinary shares. The total number of shares allotted (including those previously allotted) is shown as 10050.

4. Exhibit 7 is a Share certificate in the plaintiff’s name reflecting the shares in exhibit 6.

5. Exhibit 8 is a business evaluation of Ink-Tech (Pvt) Ltd. Prepared by Tudor House Consultants. In the report the plaintiff is reflected as owner of all the 10050 allotted shares in Ink-Tech (Pvt) Ltd.

The chain of evidence tended to support the plaintiff’s view that the defendant sold all her shares in the company and he is the sole shareholder.

Defendant contended that though she signed exhibit 3 and even added some items in her own writing, plaintiff never paid her the money. She also contended that in any case she was reselling to the plaintiff his 50 shares she had earlier on bought from him. She never sold her 50 shares to him. The Defendant’s evidence was contrary to contents of exhibit 3. As already alluded to exhibit 3 states among other things that “Mrs. Williams has no dealings with the above company” and that “Mr. Williams has paid Mrs. Williams the $500 000 000.00 in full.” The statements are quite categorical and stating the situation obtaining at the time of writing the document. If the plaintiff had only bought his original 50 shares with the defendant retaining her 50 shares would it make sense to state that the defendant has no dealings with the company? If no payment was made what was the purpose and intent of stating that the plaintiff has paid the defendant the amount in full?

I did not hear defendant to suggest that she was not aware of the contents of the document she was signing. The defendant’s contention that she believed she was signing for the sale of 50 shares only is not convincing. It is true the document is silent on the number of shares but it states categorically that the defendant has no more dealings with the company. If the defendant was to remain a shareholder surely it would not make sense to say she has no dealings with the company.

Based on the evidence adduced including documents tendered, I am of the view that the probability is that the defendant was paid for the entire shareholding of the company hence she signed exhibit 3 and other documents necessary for the defendant to be allotted all the initial 100 shares in the company.

The second issue for determination pertained to some movable property namely:

i. Red electric generator,
ii. Borehole pump;
iii. Pressure tank;
iv. Round teak table;
v. Chairs;
vi. Defy four plate gas stove.

The plaintiff’s evidence was to the effect that the property was bought by the company and has remained company property. He testified that initially the company was operating from the matrimonial home hence the property was kept there. When the company moved premises, the new premises could not accommodate the property in question.

The defendant on the other hand gave evidence to the effect that the property was indeed bought by the company but they gave the company the loans to buy the property and so the property must be considered as matrimonial property subject to division, apportionment and distribution in terms of s 7 of the Matrimonial Causes Act [Cap 5:13].

Upon a careful analysis of the evidence on this issue I am of the view that the movable property remained company property since its purchase. It is however important to note that at the time of purchase the parties were the two shareholders and directors of the company. They were the owners. When property was acquired through the company it was for their use. In this regard there is the issue of the borehole pump and pressure tank. These items were bought to be used at a borehole at the matrimonial home. By virtue of being fixed to the ground they virtually became part of the matrimonial home. It is my view that though classified as movable these items are best left at the premises. Their removal would leave gaping holes at the premises. As regards the other movable property they may be retained as company property.

Accordingly it is hereby ordered that:-

1. A decree of divorce be and is hereby granted
2. Custody of the minor child, Kimberly Rachel Williams, born 11 March 1995, is hereby awarded to the defendant
 3. Plaintiff is hereby granted reasonable rights of access at such times as the parties may agree. Such access shall be exercised upon reasonable notice to defendant.

4. The maintenance order granted by the Harare Magistrate Court under case No. M370/09 be and is hereby incorporated as part of this order.

5. The immovable property, namely, Stand 478 Armthwaite Road, Quinnington, Borrowdale, Harare, shall be sold by private treaty on the open market and the net proceeds there from shall be shared equally between the plaintiff and the defendant.

6. Defendant be and is hereby granted the right of first refusal.

7. The parties shall, within 14 days of this order, agree on a value of the property failure of which they shall appoint a mutually agreed estate agent to evaluate the property. Should the parties fail to agree on an estate agent the registrar of the High Court is hereby directed to appoint one from his panel of evaluators.

8. The parties shall bear the cost of evaluation equally. The defendant shall be given a period of six months or any longer period as the parties may agree, within which to exercise her right of first refusal.

9. Should defendant fail to buy out plaintiff the property shall be sold by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds shall be shared equally between the parties.

The defendant is hereby awarded all matrimonial movable property as her sole and exclusive property.

11. The borehole pump and the pressure tank shall remain as part of the immovable property.

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

*Ngarava, Moyo & Chikono*, Legal practitioners for the plaintiff.  
*Musendekwa- Mtisi*, legal practitioners for the defendant.
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