Ruzivo Musvosvi v Chipo Musvosvi (nee Machiri)

### Preamble
1
HH 163/2013
HC 4517/2011
RUZIVO MUSVOSVI
versus
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RUZIVO MUSVOSVI
versus
CHIPO MUSVOSVI (nee MACHIRI)

HIGH COURT OF ZIMBABWE
HARARE, 12 NOVEMBER & MAY 2013
MAWADZE J

A. Muchandiona, for the plaintiff
N.P.M. Munangati – Manungwa, for the defendant

FAMILY LAW COURT

Trial Cause

MAWADZE J: The plaintiff on 13 May 2011 issued summons out of this court seeking a decree of divorce, custody of the two minor children and division of the assets of the parties on the basis irretrievable breakdown of the marriage.

The plaintiff and the defendant who are husband and wife respectively married each other on 29 August 1987 at the Salvation Army, Highfield Temple in terms of the marriage Act [Cap 5:11]. The marriage was blessed with four children, Nyasha, Rutendo, Mufaro and Tendai. Only two of the children Tendai a boy born on 11 September 1995 (now 17 years 8 months old) and Mufaro, a girl born on 21 August 2001 (now 11 years old) are minors. At the time the trial commenced on 17 November 2012 Tendai was in Form four at Bradley High school and Mufaro in grade 5 at Queensland Primary school.

In his declaration the plaintiff outlined the reasons for the breakdown of the marriage relationship between the parties. These reasons were disputed by the defendant both in her plea and counter claim. The plaintiff as per the declaration sought an order of custody of the two minor children in his favour, sharing of movable assets with the bulk of the movable assets awarded to the defendant, and that the only immovable asset stand 175 Chadcombe T/ship 2 of Chadcombe known as No. 28 Ashburton Avenue
 Chadcombe, Harare be sold to best advantage of the parties and the proceeds there from shared equally.

In her counter claim the defendant sought custody of the two minor children, maintenance in the sum of $300 for each of the minor children, maintenance in the sum of $100 for an adult child Rutendo still doing tertiary education, and sharing of the assets of the parties. In her counter claim the defendant indicated that the plaintiff had left out a tractor, plough, and a motor vehicle Nissan Almero No. ABI 3000 as some of the movable assets of the parties. The plaintiff countered that these movable assets had been omitted because they are not assets of the parties. As regards the immovable property while the defendant agreed to have the immovable property disposed of and proceeds shared equally the defendant wanted to be granted a usufruct over the property until the youngest child Mufaro attain 18 years after which the property should be sold. The plaintiff wanted the immovable property to be disposed of immediately after granting of a decree of divorce.

At the pre trial conference the parties agreed that the plaintiff’s action and the defendant’s counter claim be heard at the same time and the judgment be pronounced at the same time. I adopted this approach during the trial. The following issues were referred to trial as per the joint pre trial conference minute;

1. Whether or not the plaintiff should be awarded custody of the two minor children Tendai and Mufaro.
2. What constitutes matrimonial property.
3. What is the equitable distribution of the matrimonial assets
4. Quantum for maintenance for the two minor children in the event that the defendant is granted custody.
5. Whether or not the defendant should be granted a usufruct over the matrimonial home in the event that the defendant is granted custody of the minor children.

It would appear that even after the referral of the matter to trial at the pre trial conference the parties continued to engage each other on the issues in dispute. At the commencement of the trial the parties had managed to find each other on a number of issues referred to trial and submitted a consent paper signed by both parties capturing the issues further agreed between the parties which in brief are as follows; a) That custody of the two minor children be resolved by awarding custody of the two minor children to the defendant with the plaintiff being the non custodian parent enjoying specified access rights.

b) That the immovable property be shared equally between the parties and the defendant abandoning her claim for a usufruct over the property.

The trial in the matter only proceeded on the following remaining issues;

1. Whether a tractor with a plough and the motor vehicle Nissan Almero are assets of the parties and if so how they should be shared between the parties.

2. Quantum of maintenance to be paid for the two minor children Tendai and Mufaro by the plaintiff.

Both the plaintiff and the defendant admit that their marriage relationship has irretrievably broken down. This concession is clear from the plaintiff’s declaration, defendant’s plea and counter claim and the admissions made by both parties during the pre trial conference. Both parties only differ as to the reasons for the breakdown of the marriage relationship. For clarity purposes only I shall briefly outline those reasons. The plaintiff allege that the defendant improperly associates with other men. The defendant refutes this and instead allege that it is the plaintiff who is over possessive and has not come to terms with the fact that she works in a male dominated environment in the Ministry of Higher and Tertiary Education as a clerk in this Industrial Training and Testing Department. The defendant says the plaintiff’s fears that she is engaged in improper liaisons with her male workmates are unfounded and are result of the plaintiff’s unbridled jealous.

The plaintiff alleges that the defendant has failed to show love and affection to him and the children and that she has failed to give the expected care for the children. This is refuted by the defendant who countered that she loves and cares for her children very much. The plaintiff stated that the parties had last shared bed and board on 21 November 2009. In response the defendant said the sexual intimacy between the parties ceased when she discovered that the plaintiff was in a sexual relationship with the maid and he refused to undergo an HIV test or to use protection during sexual intimacy. The plaintiff gave as one of the reasons for the breakdown of the marriage relationship as the desertion by the defendant on 19 November 2010 to date after the plaintiff allegedly caught her in the act with an unnamed boyfriend. While the defendant admitted deserting the matrimonial home, she denied that she was caught in the company of a boyfriend.

Instead she said she left for her parents’s home on 19 November 2010 after the plaintiff had physically assaulted her. In fact the defendant said the plaintiff is of violent disposition and has been abusing her to the extent that cohabitation became both dangerous and intolerable.

It is clear from the accusation made by the plaintiff and the denials and counter accusations by the defendant that the marriage relationship between the parties has broken down to such an extent that it is beyond resuscitation. The parties have lost love and affection for each other and are consenting to a decree of divorce. It is therefore not necessary for the court to deal in detail with the evidence of the parties in this regard solely for the purpose of ascribing fault for the breakdown of the marriage. See *Ncube v Ncube* 1993 (1) ZLR 39. I am therefore satisfied that in terms of section 5 (1) of the Matrimonial Causes Act [*Cap 5:13*] the marriage relationship between the plaintiff and the defendant has broken down to such an extent that there is no reasonable prospect of restoration of a normal marriage relationship. In the premis a decree of divorce should be granted. I now turn to the issues in dispute.

The first issue is whether the tractor, the plough and the motor vehicle Nissan Almero are assets of the parties.

In terms of section 7(1) (a) of the matrimonial causes Act [*Cap 5:13*] the court may only deal with the apportionment or distribution of any asset if it is shown that the asset belongs to the spouses. The plaintiff’s position is that the tractor, the plough and the Nissan Almero motor vehicle are not his assets. The defendant contends that these movable assets belong to the plaintiff and are subject to distribution. I shall deal firstly with the tractor and the plough and later the motor vehicle.


Tractor and plough

It is common cause that the tractor and plough were acquired by the plaintiff from the Reserve Bank of Zimbabwe (RBZ), through the farm mechanisation programme in 2007. While both parties admitted that they do not own any farm the plaintiff nonetheless acquired the tractor and the plough which he says are being used at his parents’ farm. The plaintiff produced documents Ex 2.1 to 2.5 relevant to both the tractor and the plough from RBZ. I shall comment briefly on each of those documents.

Exh 2.1 - this is the document from RBZ issued to the plaintiff with the general terms and conditions of the loan Agreement which was signed between the beneficiary (plaintiff) and Fiscort (Pvt) Ltd representing the RBZ.

Exh 2.2 - contains the terms and conditions made to RBZ by the plaintiff in respect of the equipment under the farm mechanisation programme.

Exh 2.3 - contains the beneficiary’s (plaintiff’s) details and the equipment acquired, that is tractor and plough.

Exh 2.4 - is the requisition form for the movable asset transfer for the tractor and plough from RBZ.

Exh 2.5 - is a checklist form issued by RBZ in relation to the state of tractor acquired by the plaintiff.

The plaintiff in his evidence indicated that the property was loaned to him by RBZ and was not immediately transferred into his name. The terms and conditions were that RBZ would advise the plaintiff of the value of the tractor and the plough after which the plaintiff would start to make payments. This process has not started despite that the plaintiff has been using the property for 5 years from 2007. According to the plaintiff the property can only change ownership from RBZ to him after he would have paid the agreed price. The plaintiff was not even aware of the value of the tractor and plough at time of acquisition and even now.

Mrs Munangati for the defendant did not seem to challenge this legal position as regards the ownership of the tractor and plough. The defendant herself in her evidence conceded that the tractor and plough belong to the RBZ. I am surprised why such a clear issue was not resolved before trial. There is no evidence placed before the court to show that the tractor and plough belong to the plaintiff. In fact the evidence shows that the property belong to RBZ. It is my finding therefore that the plough and the tractor are not assets of either the plaintiff or the defendant and do not fall within the ambit of section 7(1)(a) of the matrimonial Causes Act [Cap 5:13].

The Nissan Almero Reg No. AB1 3000

It is common cause that the Nissan Almero motor vehicle (the motor vehicle) is registered in the name of the plaintiff’s sister see Exhibit 3. It is also not in dispute that the plaintiff either in November or December 2010 bought the Nissan Almero motor vehicle from his sister. What is in dispute are the terms and conditions of the Agreement of sale of the motor vehicle. There is no written agreement of sale. The plaintiff’s evidence is that as per the oral agreement between him and his sister the purchase price of the motor vehicle was US$7 500. The plaintiff only paid US$2000 from the proceeds of a Nissan Sunny the plaintiff had disposed of. The plaintiff was then given the motor vehicle by his sister to use and is still to pay balance of US$5 500. The plaintiff’s offer is that if the defendant is willing to pay the US$5 500 for the motor vehicle to his sister Ruvimbo Nemasasi she can have the motor vehicle. The defendant is unwilling to accept this. In the alternative time the plaintiff is willing to pay the defendant US$1 000 which would be her half share from the proceeds of the sale of the Nissan Sunny by the plaintiff.

Under cross examination the plaintiff denies that he sold the Nissan Sunny for US$3 000 but US$2 000 all of which he made a part payment for the Nissan Almero in issue. On why he has been using the motor vehicle from December 2010 to date without fully paying for it, the defendant said he is enjoying his sister’s goodwill who understands his marital and financial problems. No other meaningful question were put to the plaintiff.

The defendant in her testimony in relation to the matter vehicle seemed to rely on what she said the plaintiff told her. The defendant was unable to prove that the plaintiff sold the Nissan Sunny for US$3 000 not US$2 000. The defendant said the motor vehicle in issue was sold to the plaintiff by his sister for US$5 500. Again the defendant could not prove this. The defendant made it clear that she is unwilling to pay any money for the motor vehicle in issue insisting that the plaintiff paid for it in full.

I am not satisfied that the evidence placed before the court shows that the motor vehicle in issue belongs to the plaintiff. The plaintiff gave his evidence very well in this regard on how he acquired the motor vehicle and its status. I do not share the view that it was incumbent upon the plaintiff to call his sister to testify for the court to believe him. The defendant on the other hand placed no tangible evidence before the court to controvert the plaintiff’s story. I am inclined to accept the plaintiff’s version. The Nissan Almero motor vehicle while in possession of the plaintiff and he made a part payment for it cannot be regarded at law as his asset. I will however take the plaintiff on his offer to pay the defendant US$1,000 as compensation from proceeds of Nissan Sunny motor vehicle the plaintiff disposed of.

Maintenance of the two minor children

In terms of the consent paper filed by the parties custody of the two minor children Tendai and Mufaro is awarded to the defendant. The parties also agreed as to the access rights to be awarded to the defendant in respect of both minor children. The only issue referred to trial in respect of the two minor children relate to maintenance to be paid in respect of each child in terms of section 7(i)(b) of the matrimonial Causes Act [Cap 5:13]. In her initial claim the defendant claimed US$300 per month as maintenance for each of the two minor children making a total of US$6,000 for both children. At the trial the defendant amended her claim to US$6,000 per month per child making it a total of US$1,200 for both children.

In arriving at an appropriate award for contributory maintenance for each of the minor children the court is guided by the means of the parties and the needs of each minor child. In terms of section (8)(2) of the Matrimonial Causes Act [Cap 5:13] the payment of maintenance in respect of the children ceases on the basis of any of the conditions listed in section 8(2) (a) to (d).

I have already alluded to the circumstances of the two minor children. What is of note is then the elder child Tendai is only 4 months shy of attaining majority status. He will be 18 years old in September 2013. I am not sure now what he is doing but he completed ‘O’ level in 2012. At that time he was in a boarding school. This may be still be the case now if he proceeded to ‘A’ level. This means that for three school terms Tendai would be at boarding school. During school holidays he would be with the plaintiff for half of each school holiday. In essence therefore Tendai’s circumstances are that the defendant would need to fend for him especially in relation to food for only half of each school holiday per year.

The plaintiff is employed by ZESA (ZETDC) as an Instruments Technician. As per Exhibit 4 his gross salary is US$3405.00 and net salary is $2181.46. It is common cause that the plaintiff earns more than the defendant who is a civil servant and has a net salary of US$325 per month as per Exhibit 7. This would mean that the financial burden to support the minor children would weigh heavily on plaintiff’s shoulders.

It is common cause that the plaintiff shoulders the heavier burden of meeting the needs of the two minor children. The plaintiff’s responsibilities are as follows;

a) he pays the full school account for the two minor children.
b) he has a funeral policy with Nyaradzo Funeral services for both minor children.
c) he pays for medical care for the two minor children under plaintiff’s Medical Aid Scheme.
d) he meets all the needs of Rutendo though a major but still dependant and at University although Rutendo’s fees are paid by the defendant.
e) meets the food requirements for Tendai for half of each school holiday while Tendai would be in the plaintiff’s custody.

On the other hand the defendant would only cater for the day to day needs for the 11 year old girl Mufaro. All this should be considered by the court in the award of maintenance to be made. Most of these additional responsibilities are to be met from the plaintiff’s net salary of US$2181.46 except for Medical Aid Cover.

The plaintiff’s list of expenses as per Exhibit 5 covering grocery, fuel, Mufaro’s bus fare, Stanbic loan, school fees for the two minor children adding up to US$783.00 per month were not put it issue by the defendant. This leaves the plaintiff with the disposable income of US$1 389.46 per month. From this amount the plaintiff would also meet the expenses for Rutendo which are not itemised. If an award of US$600 per month per child making a total of US$1 200 per month is made against the plaintiff this would mean the plaintiff would only be left with the disposable income of US$198.46 per month. The amount required by the defendant per child of US$600 is not within the means of the plaintiff.

I have considered the needs of the two minor children as outlined in Exhibit 6, giving a grand total of US$1 393.00. This excludes all other needs save for food, groceries, maid’s salary and rentals. I share the plaintiff’s view that the list of the expenses for the children is exaggerated and is well out of the means of the plaintiff. Examples are of grocery of US$450 per month for the two children, one of which may be away at school boarding for most of the time. The rentals of US$500 is not explained. One should also consider that after sale of the immovable property the plaintiff would have to find accommodation just like the defendant and that the defendant would receive a lump sum from proceeds of the sale. The plaintiff also demonstrated that some of the requirements like milk, rice, mealie, cooking oil, mukwa oil, sta soft are put in excess quantities. They all give a total sum of $88.70 per month. Other items like conflakes, bore wors, cold meat, perfume, jam are luxuries which the plaintiff cannot afford.

While I accept that the defendant is of very little means and that she pays Rutendo’s University fees as a benefit from her conditions of service I believe she has a duty to contribute meaningfully to the needs of the minor children moreso after she would have had a share from the proceeds of the sale of the immovable property.

After considering all the relavant factors I am satisfied that an award of a total of US$500 per month as contributory maintenance for the two minor children is not only reasonable but is within the means of the plaintiff. I will make a larger award in respect of the younger minor child Mufaro in the sum of US$350 per month and only US$150 per month for Tendai on account of the fact was he is about to attain majority status and may spent most of the time at boarding school.

Accordingly it is ordered as follows:-

1. A decree of divorce is hereby granted.
 1.1.1 Custody of the two minor children Tendai Musvosvi (born on 11 September 1995) and Mufaro Musvosvi (born on 21 August 2001) is awarded to the defendant.

1.1.2 The plaintiff shall enjoy reasonable access to the two minor children which shall be exercised in the following manner:

2.1(a) In respect of the minor child Mufaro Musvosvi on each alternate weekends, public and school holidays.

b) On all those occassions Mufaro Musvosvi shall be accompanied by any of her siblings during the whole period she will be staying with the plaintiff.

2.2 In respect of Tendai Musvosvi

2.2(a) during the school term if at boarding school during the school’s consultation and visiting days.

2.2(b) during school holiday in consultation with the defendant during half of each school holiday.

3. The plaintiff shall maintain the two minor children in the following manner until each of the minor child attains 18 years or becomes self supporting whichever occurs first;

3.1. In respect of minor child Mufaro Musvosvi US$350 per month and in respect of Tendai Musvosvi US$150 per month which shall be deposited into the defendant’s bank account at the beginning of each month commencing on 1 June 2013.

3.2 In respect of both minor children payment of full school account after the production of relevant invoices by the defendant at the beginning of each school term.

3.3 In respect of both minor children by maintaining them on plaintiff’s full medical cover and funeral cover.

4. The plaintiff shall pay the defendant the sum of US$1000.00 within 30 days of grant of this order through defendant’s legal practitioners being the defendant’s half share of the proceeds of sale of the Nissan Sunny motor vehicle.

5. The parties’ movable property is distributed as follows;


5.1 For the plaintiff:- A 2.5 KVA Generator and gas stove.

5.2 For the defendant:
   - bedroom suite including base and mattress
   - Dining room suite
   - Lounge suite with coffee table
   - 21 Inch Philip TV set
   - 14 Inch sharp TV set
   - a Tealux Home Theatre system.
   - 2 x Television cabinets
   - 4 plate defy stove
   - 9 cubic refrigerator
   - Imperial double door upright freezer
   - all kitchen utensils

6. the plaintiff and the defendant are each awarded a 50% share of the immovable property known as stand 175 Chadcombe Township 2 of Chadcombe situated at No. 28 Ashburton Avenue Chadcombe Harare.

6.1 the parties shall agree on and appoint a registered Estate agent within 14 days from the date of this order to value the property or failing which the Registrar of the High Court shall within 15 days appoint a valuer from the Master’s list of valuers.

6.2 the valuer shall evaluate the property within 14 days of appointment.

6.3 the parties shall equally share the cost of evaluation.

6.4 the defendant shall within four (4) calendar months from the date of valuation have an option to buy out the plaintiff’s 50% share in the immovable property and take transfer of his half share of the property at her own cost.

6.5 should the defendant fail to buy out the plaintiff’s half share in the immovable property in terms of clause 6.4 above, the plaintiff shall be entitled, within or further period of three (3) calendar months to buy out the defendant’s half share of the immovable property.


6.6 The defendant who is in possession of the Deed of transfer of the immovable property shall surrender it to the conveyancer nominated to pass transfer within 14 days of being so notified.

6.7 In the event of any person failing to sign the necessary transfer papers within 14 days of receiving written request to do so, the Sheriff of the High Court shall be empowered to sign all necessary transfer papers and to do all necessary to pass transfer to purchaser of the other party’s half share.

6.8 In the event of the plaintiff failing to buy out the defendant’s half share of the immovable property in terms of clause 6.5 above, the then appointed Estate agent shall sell the immovable property by private treaty to the best advantage of the parties and pay the net proceeds there from to the parties in equal shares after deducting the Estate agent’s commission and all other expenses and taxes associated with the sale.

7. Each party shall pay its own costs.

Danziger & Partners, plaintiff’s legal practitioners
Munangati & Associates, defendant’s legal practitioners.
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