Keith Beling v Sandra Jo Beling (nee Bernadretti)

### Preamble
Judgment No. SC 99/22
Civil Appeal No. SC 66/20
1
DISTRIBUTABLE: (86)
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DISTRIBUTABLE:		(86)

KEITH        BELING

v

SANDRA         JO BELING          (nee BERNADRETTI)

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, UCHENA JA & MAKONI JA

HARARE:  FEBRUARY 11 & 23 SEPTEMBER,  2022

F. Girach, for the appellant

B. Mtetwa, for the respondent

UCHENA JA:

[1] 	This is an appeal against part of the judgment of the High Court awarding to the respondent, sole ownership of the matrimonial home, the payment of US$7 199.74 from their joint Lloyds Bank account, and the payment of US$5 000 as contribution towards the respondent’s legal costs and costs of suit.

FACTUAL BACKGROUND

[2]	On 8 October 1994 the appellant and the respondent solemnized their marriage in terms of the Marriages Act [Chapter 5:11]. They were blessed with three children. Their first child passed on before the issuance of summons for divorce. The remaining two younger children had both attained the age of majority when the appellant filed summons for divorce and ancillary relief.

[3]	The appellant claimed that the marriage had irretrievably broken down because of the respondent’s addiction to alcohol, prescription and non-prescription drugs, her reluctance to undergo rehabilitation; extravagant spending of money and a general lack of interest in the marriage and the family. He stated that he had lost all love and affection for the respondent.

[4]   He offered to pay rehabilitative maintenance to the respondent in the sum of US$2 000.00 per month for one year with effect from the first day of each month for the following 11 months, or until her death or remarriage or until the termination, of his current employment.

[5]      In respect of the sharing of property, the appellant suggested that the following assets be given to the respondent:

A Toyota Allex motor vehicle, (Reg No. ADQ7216)

The Stanbic Bank account (Westgate Branch) including all the money in it.

All of the household furniture and effects in the former matrimonial home and

That the respondent be allowed to continue to reside in the jointly owned

matrimonial home for 2 years from the date of service of the declaration and

subject to other conditions, after which it would be sold with the parties

getting equal shares of the proceeds.

[6]	In her plea the respondent denied the appellant’s allegation that she was responsible for the breakdown of the marriage. She disputed the period and quantum of maintenance the appellant offered. She claimed that the appellant had not disclosed all the assets they acquired during the subsistence of the marriage and disputed his proposed distribution of the matrimonial home. She made a counter-claim for divorce alleging that the marriage had broken down due to the appellant’s conduct of associating with other women, neglecting the children and physically, emotionally and psychologically abusing her amongst other things. She averred that the appellant’s behavior amounted to gross marital misconduct deserving of censure in the distribution of the parties’ assets. The respondent claimed personal maintenance in the sum of US$3 000.00 per month until her death or remarriage.

[7]     In relation to the sharing of property, the respondent proposed that she be awarded sole ownership of the matrimonial home in Westgate, that she be declared the sole owner of the doughnut making machine, that the funds held in the parties’ Lloyds Bank account as at the date of separation be shared equally between them and that the appellant should be ordered to pay US$5 000.00 towards her legal costs.

[8]   In his replication the appellant maintained that the marriage, had broken down as a result of the respondent’s conduct. He disputed that the respondent was entitled to spousal maintenance for more than 12 months and sought to reduce the amount he had offered from US$2 000.00 per month due to his changed financial circumstances. He also denied that he had not disclosed any assets acquired by the parties during the marriage. In his response to the respondent’s counter-claim, he admitted that he had been unfaithful to his wife only once some 19 years ago and alleged that the respondent herself had also been unfaithful. He also alleged that the respondent neglected the children, was verbally and physically abusive, and was addicted to alcohol and prescription drugs and that both parties lacked sensitivity and empathy towards each other when their son died.

DETERMINATION OF THE COURT A QUO

[9]	In its judgment, the court a quo found that both parties were in agreement that their marriage had irretrievably broken down. It therefore granted a decree of divorce to the appellant. It held that there were three main issues for determination.

1.    Whether the respondent was entitled to post divorce spousal maintenance.

2.     The distribution of the parties’ assets between them and

3.     Costs of suit.

[10] 		In relation to the division of movable property, it, in terms of the appellant’s proposal, granted sole ownership of the account held at Stanbic Bank (Westgate Branch) and all the money in it; the household furniture and effects in the former matrimonial home as well as the Toyota Allex motor vehicle registration number ADQ 7216 to the respondent. It held that the appellant was to bear the costs of registering the motor vehicle in the respondent’s name and procuring personalized number plates for it.

[11]   The court a quo also held that there was a credit balance of US$14 399.47 in the parties’ joint Lloyds Bank account as at 23 July 2017. It held that the appellant had after their separation unlawfully deprived the respondent of her equal share in the account by converting it into a sole account in his name. As a result, the court ordered the appellant to pay US$7 199.71 to the respondent.

[12] 	On the distribution of the parties’ immovable property, the court a quo found that the parties jointly owned the matrimonial home in Bluff Hill, in equal undivided shares. It further held that the appellant, on 13 July 2017 purchased rights in a piece of land situate at Lake Chivero for US$2 000.00 and that in June 2017, the appellant, together with his girlfriend, one Cheryl Franco, purchased a flat in Durban, South Africa for R2 950 000.00.

[13]    In determining the distribution of the immovable properties, the court a quo, stated that it was important to put the spouses in the position they would have been in had a normal marriage relationship continued between them. In the result, it dismissed the appellant’s claim to the Bluff Hill property. It declared the respondent the sole owner of the Bluff hill property and ordered the appellant to transfer his, undivided half share to the respondent at his own expense. It awarded sole ownership of the Durban flat and the Lake Chivero chalet to the appellant.

[14]    On the issue of post-divorce spousal maintenance, it held that the respondent had failed to prove the need for maintenance as well as quantifying her monthly expenses in monetary terms. The respondent’s claim for post-divorce maintenance was therefore dismissed. In addition to an order of contribution of costs in the sum of US$ 5000-00 the court a quo awarded costs to the respondent on the basis that she had attained substantial success in the divorce proceedings.

[15]    The appellant was aggrieved by the court a quo’s order awarding sole ownership of the Bluff hill property to the respondent and dismissing his claim to it, the order that he should pay US$7 199.74 from their Lloyds Bank account to the respondent, paying $5 000 as contribution to the respondent’s legal costs, paying all costs of transfer for the Bluff Hill property as well as having to pay the respondent’s costs of suit for both the main claim and the counterclaim. He, as a result, appealed to this court on the following grounds:

GROUNDS OF APPEAL

[16]	In his notice of appeal, the appellant raised the following nine grounds of appeal:

“The learned judge in the court a quo erred in finding that appellant had been    hiding assets and financial resources.

The learned judge in the court a quo grossly misdirected himself in ordering appellant to pay the sum of US$7 199.71 to respondent and disregarded evidence that not only did he have to maintain himself, but maintained respondent and the two surviving children of the marriage utilizing funds from the account in question.

In declaring respondent the sole owner of the former matrimonial home, the learned judge a quo erred in law and in any event grossly misdirected himself by having regard solely to one of the factors set out in section 7 of the Matrimonial Causes Act [Chapter 5:13], namely to put the parties as far as is reasonable and practical, in the position they would have been in had the marriage continued.

Further and in any event the learned judge in the court a quo grossly misdirected himself by not having regard to a similar need on the part of the appellant for accommodation in Zimbabwe and further by not examining what accommodation would be available to respondent with her half share of the proceeds from the sale of the matrimonial home.

The learned judge in the court a quo erred in not placing any weight or any sufficient weight on the fact that the net effect of declaring respondent the sole owner of the matrimonial home was to place appellant in the position where he had to commence afresh at an advanced age and after a lifetime of work.

The learned judge in the court a quo erred and in any event grossly misdirected himself by not having regard to the fact that appellant was prepared to let respondent have a motor vehicle, all the household contents and furniture and all monies in the local account when exercising his discretion in terms of section 7 aforesaid.

The learned judge in the court a quo erred in not finding, on the evidence, that it was impossible for appellant to have paid for one half of the flat in Durban, having made the finding that the pay slips presented were genuine.

The learned judge in the court a quo erred in ordering appellant to make a contribution of US$5 000.00 towards respondent’s costs when (sic) there was no such application before the court and in any event, the trial had been completed.

The learned judge in the court a quo erred, in all circumstances, in ordering appellant to pay respondent’s costs”.

APPELLANT’S SUBMISSIONS ON APPEAL

[17]	Mr Girach for the appellant submitted that the court a quo grossly misdirected itself in exercising its discretion when it declared the respondent the sole owner of the former matrimonial home. He contended that the court’s reasons for awarding the respondent the matrimonial home are fundamentally flawed. He criticised the court a quo’s reasoning at p 9 of the judgment where it said:

“It is clear that plaintiff does not intend to reside, with Cherly Franco, in the Bluff Hill house. He wants it sold, after a certain period, with the net proceeds being shared equally between the plaintiff and defendant. If this course is adopted it means that the defendant’s standard of living will be drastically affected as she will have to acquire a much smaller immovable property assuming that her share of the net proceeds from the sale of the Bluff Hill house would be enough to purchase another residence.

If the Bluff Hill house is declared to be the defendant’s sole and exclusive property it will mean that the plaintiff loses his half share therein together with the benefit of residing in fully paid for own accommodation. Between the parties, it is the plaintiff who has the capacity, both on his own and in combination with Cherly Franco, to acquire an alternative roof over his head. The Lake Chivero and Durban homes are testament thereto. Renovations are in progress in Durban. The defendant does not have the capacity to acquire another home of her own. It was not until the middle of the trial that she got a job. She had been out of formal employment for almost two decades…”

[18]    The appellant’s Counsel submitted  that the court a quo’s reasoning is flawed because it concentrated on protecting the respondent without considering that  it was depriving the appellant of being a property owner and leaving him with a mortgage bond of 18 years. Mr Girach submitted that the appellant’s act of offering the respondent all the property in the matrimonial home did not prove that he could replace both the property and the house. Neither was it a bargaining tool justifying the award of the matrimonial home to the respondent.

[19]    Mr Girach submitted that the court a quo’s judgment left the appellant in a worse off position than he was before the divorce. He argued that the judgment protected the respondent whilst leaving the appellant exposed in circumstances where the court held that the appellant was hiding assets, when the allegations had not been proved. He submitted that the court a quo’s order was not reasonable and practicable as provided by s 7 of the Matrimonial Causes Act [Chapter 5:13]. He further submitted that the court a quo ordered the appellant to pay to the respondent US$7 199.71 from their joint account disregarding evidence that the appellant was maintaining that account in order to sustain himself, the respondent and their two children. Lastly he contended that the court erred by ordering the appellant to pay not only the respondent’s costs but a further payment of US$ 5 000.00 as a contribution towards the respondent’s costs.

RESPONDENT’S SUBMISSIONS ON APPEAL

[20]	Mrs Mtetwa for the respondent submitted that an award of assets in terms of s 7 of the Act involves the exercise of the court a quo’s discretion. She averred that the appellant failed to prove that the court a quo improperly exercised its discretion in making that order. She further submitted that the appellant had not proved that the court a quo had misdirected itself. She contended that in awarding the respondent the matrimonial home, the court a quo took into account the parties income earning capacity, financial needs and obligations, their ages, health, their standard of living prior to the divorce and the duration of the marriage. The object of this exercise was to place the parties in the position they would have been in had a normal marriage relationship continued between them. Mrs Mtetwa submitted that the court a quo correctly exercised its discretion.

[21]    Counsel further submitted that the court a quo’s finding that the appellant had failed to disclose all assets and financial resources, was supported by evidence. She submitted that the respondent had proved that the appellant had not included the Lake Chivero and Durban properties in his declaration. She further submitted that the court correctly ordered the appellant to pay the respondent the sum of US$7 199.71 as the money was in the parties’ joint account and the respondent was entitled to her half share. Mrs Mtetwa further argued that there was no basis for interfering with the decision of the court a quo ordering the appellant to contribute US$5 000 towards the respondent’s costs in circumstances where the respondent had shown that she deserved the contribution. She however conceded that it was not proper for the court a quo to order the appellant to pay contribution of costs in the sum of US$5000-00 plus costs of suit. She prayed that the order of costs of suit be set aside.

ISSUES FOR DETERMINATION

[22]      The following issues arise for determination:

1. Whether the court a quo erred in awarding the matrimonial home to the respondent.

2.   Whether it was competent for the court a quo to order the appellant to pay to the

respondent, US$7 199.71 from their joint Lloyds Bank account.

3.  Whether the court a quo misdirected itself by ordering the appellant to contribute

US$5 000.00 towards the respondent’s costs and pay costs of suit

I will deal with each of these issues in turn.

1. Whether the court a quo erred in awarding the matrimonial home to the respondent.

[23]    In his claim a quo, the appellant sought to have the former matrimonial home sold and the proceeds shared equally between him and the respondent. The court a quo however awarded it to the respondent as the sole owner and ordered the appellant to transfer his half share into the respondent’s name. The appellant contends that the court a quo improperly exercised its discretion in making that decision as it had the effect of leaving him worse off than he was during the marriage.

[24]     Section 7 (1) (a) of the Matrimonial Causes Act provides as follows:

“(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 —

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”  (my emphasis)

[25]  The appellant’s Counsel submitted that the court a quo erred in awarding the matrimonial home to the respondent. This in my view is a deliberate disregard of the provisions of s 7 (1) (a) which, empowers a court to make such an order. In granting an order for the transfer of the property of the appellant to the respondent the court a quo was acting in terms of the law. Section 7 (1) (a) empowers the court to transfer the property of one spouse to the other in order to achieve a just and fair distribution of the matrimonial estate. The rationale behind the principle is to ensure as provided by s 7 (4) through the court’s best endeavors,  that following a divorce neither spouse should be in a worse off position than they would have been, had the marriage continued.

It has not been suggested by the appellant that the order granted by the court a quo is not supported by law. In making an order in terms of s 7 the court is guided by factors set out in subsection (4) as follows:

“(4) 		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 and 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 or 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 endeavor 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.”

[26]  In exercising its discretion the court took into account all the circumstances  surrounding the acquisition of the matrimonial house and the divorce, how the respondent’s mother had helped them to secure the house, their income earning capacity particularly the appellant’s ability to pay his mortgage for the Durban property, the duration of the marriage and  their standard of living. It noted that the appellant now lived in his Lake Chivero Chalet whilst the respondent lived in the former matrimonial home. The court having made these observations went on to conclude that:

“Between the parties, it is the plaintiff who has the capacity, both on his own and in combination with Cherly Franco, to acquire an alternative roof over his head. The Lake Chivero and Durban homes are testament thereto. Renovations are in progress in Durban. The defendant does not have the capacity to acquire another home of her own. It was not until the middle of the trial that she got a job. She had been out of formal employment for almost two decades”

[27]     It is imperative to note that the court in making its decision on the distribution of the immovable properties had to exercise its wide discretion. In Gonye v Gonye 2009 (1) ZLR 232 (S) this court commenting on when it can interfere with the trial court’s discretion said:

“For this Court to interfere with the exercise of discretion by the court a quo, it had to be shown that one of the grounds upon which an appellate court may interfere with the exercise of discretion by a trial court existed.”

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) GUBBAY CJ at 62G-63A said:

“These grounds are firmly entrenched.  It is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution provided always it has the materials for so doing.  In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

[28]    The rights claimed by the spouses under s 7 (1) of the Act are dependent upon the exercise by the trial court of its broad discretion. It is in this respect, correctly argued for the respondent, that it is a firmly entrenched principle of our law that the discretion exercised by a trial court in distributing property in terms of s 7 of the Act cannot be interfered with on appeal unless the trial court exercised the discretion erroneously, acted on a wrong principle, mistook facts or did not take into account some relevant consideration.

[29]   The court a quo exercised its wide discretion in granting an order for the division, apportionment or distribution of the assets of the parties. I am satisfied that in the circumstances of this case it, after taking into consideration the appellant’s interests in the Lake Chivero and Durban properties, correctly awarded the matrimonial home to the respondent.

[30]    In such cases it is necessary at the end to view the situation broadly and see if the distribution meets the justice of the case.   It must be accepted that the court a quo paid due regard to the factors set out in s 7 of the Act. In my view, the decision to transfer the appellant’s half share in the matrimonial home to the respondent cannot in the circumstances be impugned. The order was made in terms of the provisions of ss 7 (1) (a) and 7 (4) of the Act within the court a quo’s discretion.

[31]   The question which has to be answered is whether there is any basis for interfering with the proprietary awards made by the trial court in favour of the respondent. In Baker v Baker ([1995] 2 FLR 829 (CA) OTTON LJ, who concurred with BUTLER-SLOSS LJ who prepared the main judgment, said the following at 837:

“accordingly, the husband cannot complain if the judge following authority explored what was before him and drew inferences which may turn out to be less fortunate than they might have been had he been more frank and disclosed his affairs more fully. Such inferences must be properly drawn and reasonable. On appeal it may be possible for either party to show that the inferences or the award were unreasonable in the sense that no judge faced with the information before him could have drawn the inferences or awarded the figures that he did. I am satisfied that the appellant has not succeeded in demonstrating that the figures WARD J awarded were in any regard unreasonable or unjustified.”

[32]   In casu, I hold that the inferences drawn by the court a quo with regards to the appellant’s ability to purchase another property or rather to pay off his Durban property are justified. The approach towards property distribution on divorce in our jurisdiction can therefore be best described as a hybrid one. It embraces equality in line with the thrust of the 2013 Constitution and obligations under international treaties whilst at the same time accommodating individualised considerations guided by the Matrimonial Causes Act. Such an approach does not diminish the ethos of equality but simply allows the courts to reach a conclusion on equality that is informed by the circumstances of the case since these may often differ from case to case. There is, therefore, no basis for interfering with the awarding of the matrimonial home to the respondent.

2. Whether it was competent for the court to order the appellant to pay the respondent US$7 199.71 from the joint Lloyds Bank account.

[33]   The appellant further takes issue with the court a quo’s order that he pays to the respondent US$7 199.74 being half of the amount, held in their joint Lloyds Bank  account. In his submission Counsel for the appellant contends that the court a quo failed to consider that the appellant utilized that account to meet various expenses including travelling expenses and taking care of the respondent and their two children. He further submitted that, the appellant had to travel to a war zone country in order to earn money which he deposited into that account. That in my view does not disentitle the respondent from being awarded her share from a joint account. It must also be taken into consideration that the respondent made indirect contributions by looking after the home and the family while the appellant was away working in a war zone.

[34]    What the appellant failed to appreciate is that the account was a joint account meaning that the respondent was entitled to half of the amount in it. The account having been a joint account, the appellant unlawfully deprived the respondent of her half share in it by converting the account into his sole account.

[35]    The court a quo correctly ordered the appellant to make good the prejudice that he had caused to the respondent. In view of the well-known maxims of law that no man should be allowed to enrich himself at the expense of another, or benefit from his wrongdoing the court a quo in the circumstances had to come to the aid of the respondent by ordering the appellant to pay to her half of the amount held in the joint account.

3. Whether the court misdirected itself by ordering the appellant to contribute US$5 000.00 towards the respondent’s costs and pay costs of suit.

[36]     In deciding whether or not an application for contribution towards legal costs should be awarded, the court must take into consideration the parties’ financial means.

In the case of Sibongile Dube nee Msimanga v Sikhumbuzo Mavako Dube HB 78/06 the court cited with approval the case of Treger v Treger GS 1 – 77 where Smith J had this to say at p 7:

“The court must look at the means of both parties and try to determine what is reasonable and just.”

See also Landry v Landry 1970 (1) RLR at 134 and Chamani v Chamani 1979 (4) SA 804.

The award of a contribution order is premised on the duty of support spouses owe each other. The purpose of the contribution towards costs order is to enable a spouse who would otherwise not be able to do so, to be in a position to adequately place his or her case before the court. In casu, the court having ordered the appellant to pay the respondent’s costs misdirected itself by ordering him to make a further payment as contribution of costs which had not been applied for. This had the effect of making the appellant pay for the divorce over and over again. The order is not sustainable and cannot stand.

[37]   The appellant’s Counsel criticised the trial court for ordering the appellant to pay contribution towards respondent’s costs in the sum of US$5 000. He argued that the court a quo erred by ordering the appellant to not only pay the respondent’s costs but to also pay a further amount as contribution towards the respondent’s costs. He contended that the contribution towards costs was not applied for as required by rule 274 of the 1971 High Court Rules which provides as follows:

“ 274. (1) When a spouse is without means to prosecute or defend an action for divorce or judicial separation, the court may on application order the other spouse to contribute to his or her costs, and where necessary, to his or her maintenance pendente lite, such sums as it deems reasonable and just.

(2) Such an application must be supported by an affidavit stating shortly the grounds of the action or defence and that the applicant has insufficient means with which to prosecute or defend the action, as the case may be, and insufficient means to support himself or herself pendente lite, and whatever information is available respecting the spouse’s financial position.” (emphasis added)

[38]    It is therefore a requirement of procedural law that contribution towards costs can only be awarded if it has been applied for. In this case no application was made. The respondent merely asked for such costs in her plea. The court a quo therefore erred when it awarded contribution towards costs, which had not been applied for.

DISPOSITION

[39]    I am satisfied that the appeal against the award of the matrimonial home to the respondent, the award of US$ 7 199-71 to the respondent and costs of suit has no merit and should be dismissed. The appellant however proved that the court a quo erred when it awarded the respondent US$ 5 000-00 as contribution towards costs when no application had been made for such costs. The appeal therefore partially succeeds.

It is accordingly ordered as follows:

The appeal partially succeeds.

The appellant’s appeal against paragraphs 6, 8, 9 and 10 of the court a quo’s order be and is hereby dismissed with costs.

The appellant’s appeal against para 7 of the court a quo’s order be and is hereby allowed.

Paragraph 7 of the court a quo’s order be and is hereby set aside.

The court a quo’s order is amended by the deletion of para 7.

MAVANGIRA JA		:       		I agree

MAKONI JA			:		I agree

Artherstone & Cook, appellant’s legal practitioners

Mtetwa & Nyambirai, respondents’ legal practitioners.