MOSES MAGAYA
versus
MARY MAGAYA (NEE MVUNDURA).
HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 28, 29 November 3, 10, 14, 20 December 2012
and 7 March 2013.
Miss B. K.Mupawaenda, for the Plaintiff.
N. Chikono, for the Defendant
UCHENA J: The plaintiff and the defendant were
customarily married to each other in 1976. They on 5 February 1993,
upgraded their marriage to a civil one in terms of the Marriage Act
(Chapter 37), now Chapter 5.11. Their marriage was blessed with 6
children who have all attained the age of majority. The plaintiff left
the matrimonial home on 11 January 2009 to go and live with a girlfriend
in Masvingo. He later issued summons suing the defendant for a decree
of divorce and ancillary orders.
The defendant opposed the plaintiff’s claim,
arguing that there was still hope for their marriage and disagreed with
the plaintiff’s distribution of their matrimonial property. They
attended a pretrial conference at which they settled on other issues and
agreed to refer the following issues to trial.
- How should the matrimonial home be apportioned
- What are the movable property of the parties and how should they be shared
- Who should bear the costs of suit?
At the pretrial conference the defendant who had
in her plea disputed the breakdown of their marriage, conceded that it
had irretrievably breakdown. The parties further agreed that;
1. The current maintenance order in M 163/09 should remain in place subject to variation depending on circumstances.
2. That the
custody of the then minor child be awarded to the defendant, subject to
the plaintiff’s reasonable rights of access.
The parties’ then minor child has since attained
the age of majority. The issue of custody and maintenance in respect of
the then minor child therefore fell away.
The disputes between the parties were narrowed
down during the trial. They agreed on the identity of their movable
property and how it was to be distributed. Issues on the Manyame
residential stands registered in the names of their two sons were
resolved. The parties agreed that they become the property of their sons
in whose names they are registered. The parties agreed that the
communal home and the movables in it, be awarded to the plaintiff.
Irretrievable breakdown of marriage
In spite of this issue having been settled at the
pretrial conference the defendant tried to revive it at various stages
of the trial. She in her evidence and under cross examination said a
decree of divorce should not be granted because she believes her husband
may come back to her. It is however common cause that the plaintiff
left the matrimonial home in January 2009. He since that departure did
not come back to the matrimonial home nor did he communicate with the
defendant. He over the four year period leading to the hearing of this
case has consistently refused to pick the defendant’s calls whenever she
sought to communicate with him by phone. They as expected met at family
gatherings and funerals, but the plaintiff showed her no love or signs
of acceptance. He would always be in the company of his new love the
girlfriend he left the defendant for. She conceded that the plaintiff
has not shown any indications that he might want to reconcile with her.
It is inconceivable that the defendant in these circumstances hopes to
win back the plaintiff’s love. It seems to me that the plaintiff has
irretrievably lost love and affection for the defendant. The
circumstances indicates irretrievable breakdown of marriage.
There is no doubt in my mind that the defendant
still loves the plaintiff. She said she is willing to welcome him back
any time he decides to come back to her. This would if there was
reasonable hope of a reconciliation taking place, have justified a
postponement in terms of section 5 (3) of the Matrimonial Causes Act
(Chapter 5;13). Section 5 (3) provides as follows;
“(3) If it appears to an appropriate court that there is a reasonable possibility that
the parties may become reconciled through marriage counsel, treatment or
reflection, the court may postpone the proceedings to enable the parties to
attempt a reconciliation.”
The intention of the legislature in enacting
section 5 (3) was clearly to enable courts to postpone cases for
purposes of giving parties opportunities to save their marriage. The
courts should therefore utilize that provision in deserving cases.. The
use of the words “reasonable possibility” limits such postponements to
cases where there is a real chance of parties reconciling. The provision
can not be used in cases where one of the spouses is refusing to accept
the reality of the state of his or her marriage to a spouse who is
resolutely seeking a decree of divorce. There must be a real or
reasonable chance that the marriage can be saved.
Love can not blossom if it is not reciprocated.
Reconciliation can only be possible if both parties are willing to
engage each other to sort out their marital problems. The courts can not
sustain a marriage without the co operation of the other spouse.
Irretrievable breakdown of marriage can therefore take place even when
one of the spouses still loves the other. In spite of the defendant’s
confessions of love for the plaintiff there is nothing to indicate to
this court that there is a reasonable possibility that the parties may
become reconciled. There was therefore no justification for a
postponement for that purpose. In the case of Kumirai v Kumirai2006(1) ZLR 134 (H) at p 136 B-D MAKARAU J (as she then was) said;
“In view of the fact that the breakdown
of a marriage irretrievably, is objectively assessed by the court,
invariably where the plaintiff insists on the day of trial that he or
she is no longer desirous of continuing in the relationship, the court
cannot order the parties to remain married even if the defendant still
holds some affection for the plaintiff. Evidence by the plaintiff that
he or she no longer wishes to be bound by the marriage oath, having lost
all love and affection for the defendant, has been accepted by this
court as evidence of breakdown of the relationship since the
promulgation of the Matrimonial Causes Act in 1985 So trite has the
position become that one hardly finds authority for it To satisfy the court that the marriage still
has some life in it, one has to adduce evidence to the effect that
after the filling of the summons, the parties have reconciled and are
living after the manner of husband and wife In my view evidence
that on one occasion after the service of summons, the parties took a
holiday together and afforded each other conjugal rights, as was led in
this trial, is insufficient on its own to show that the marriage has
prospects of mending. If anything, it goes to show that despite attempts
to rekindle the fires, the parties failed to reconcile.”(emphasis added.)
In this case there is evidence from the defendant
that the plaintiff turned his back on her with resolve for a continuous
period of four years. He did not only leave her, but he never came back
to her or the matrimonial home. He refused to even pick her calls and
talk to her on the phone. In spite of the defendant’s continuing love
for the plaintiff there is no basis for refusing to grant a decree of
divorce. She tried to win back his love, for four years without success.
The irretrievable breakdown of their marriage has been established. A
decree of divorce has to be granted because the plaintiff has resolved
to end an unhappy marriage he said he endured for many years for the
sake of their then minor children.
Ditribution of the movables.
In his evidence in chief the plaintiff agreed to
give the Mazda B2200 to the defendant, and take the Nissan Sentra for
himself as had been suggested by the defendant. He also agreed to sale
the Toyota Hiace and share the proceeds equally as suggested by the
defendant. He said they have three herd of cattle which he suggested be
shared equally after giving one to the person who is looking after them.
The defendant in her plea suggested that the
plaintiff be awarded all the movable property at their rural home plus
two herds of cattle. The defendant also said the plaintiff should be
awarded the following from their Budiriro matrimonial home.
- 1x Deep Freezer
- 1x 24 inch Telefunken
- 1 x DBVD Player
- 1 x Double Bed
- 1 x wardrobe
- 1 x Decorder.
She said the rest of the movable property at their
Budiriro matrimonial home should be awarded to her. In her evidence she
agreed with plaintiff’s distribution in paragraph 9.5 of his
declaration. She said she had no interest in the three herd of cattle,
which she said should be awarded to the plaintiff. She told the court
that she sold all the goats and used the proceeds to sustain the family.
The concessions are reasonable in view of her admission under cross
examination that the plaintiff bought all the movables. The only
remaining dispute is on the water pump the defendant said the plaintiff
took away and the wardrobe the defendant said she has given to one of
their children. The plaintiff admitted that he took the water pump and
gave it to his son from a previous marriage. The court will solve that
dispute by removing the water pump and wardrobe from the list of
property to be distributed. The parties have demonstrated that they have
no problem with their assets being given to their children. They agreed
to let their two sons have the Manyame stands. It seems to me that
there would be no justification for recovering these less valuable
properties from the children they have been given to by the respective
parents.
The Matrimonial Home.
The parties disputed over the sharing of the
matrimonial home. The plaintiff initially wanted 70% of the matrimonial
home, but during his evidence finally settled for 50% percent for him
and 50% for the defendant.
In her plea the defendant wanted a 50% share of
the matrimonial home as she was a joint owner. She at one stage wanted
the house to be given to their two youngest children. She later firmed
up on the matrimonial home being awarded to her because the plaintiff
had left with US$40 0000-00, when he left the matrimonial home in
January 2009. She alleged that the plaintiff used that money to buy a
house in Masvingo. She argued that entitled her to an award of the
matrimonial home. The plaintiff vehemently denied ever having such an
amount of money.
The defendant’s evidence on the existence of a
Masvingo property is not convincing. She said the plaintiff gave her
US$40 000-00 to keep which he on leaving the matrimonial home took on
the pretext that he was going to deposit it in a Bank Account in South
Africa. She said she went to Masvingo where she inquired from people
whose identity she did not disclose, about a house which was built by a
haulage truck driver in a very short time and was shown a certain house.
She did not go into that house to confirm that it was her husband who
had built it and was staying there. Her husband is not the only Haulage
truck driver. She did not seek written confirmation from the local
authority that the house in question belonged to the plaintiff. She
further speculated that the house could have been registered in
plaintiff’s girlfriend’s name. If that was her speculation how did she
hope to have that house if it exists distributed between her and the
plaintiff without joining the alleged registered owner into these
proceedings. The defendant’s evidence on the alleged Masvingo house is
niether convincing nor conclusive.
The plaintiff denied ever having had
US$ 40 000-00, which he gave to the defendant for safe keeping. He said
if he had such money they would have completed the construction of their
Budiriro house which he left uncompleted. I find the plaintiff’s denial
stronger than the defendant’s unsubstantiated allegation which comes in
the middle of several options she gave for the distribution of the
matrimonial home. The giving of several options some of which are not
consistent with the plaintiff having left with US$40 000-00 betrayed her
lack of confidence in her own story. One wonders if the plaintiff had
left with US$ 40 000-00 why the defendant would start by claiming her
50% share of the jointly owned matrimonial home. It seems to me this
allegation is motivated by her desire to be awarded the matrimonial
home. The plaintiff’s concession to equally share the matrimonial home
is fair. It is justified by his having bought the stand on his own and
having contributed more in the construction of the matrimonial home.
I accept that the defendant supervised the
construction and contributed through income from her poultry sawing and
peanut butter projects. The plaintiff admitted that she made some direct
contributions from income she raised from those projects. The defendant
at one stage tried to mislead the court that she contributed 70%
towards the construction of the matrimonial home. This was however a lie
as she had earlier on told the court that the plaintiff bought the
stand on his own and that she had contributed half of what the plaintiff
contributed towards the construction expenses. The defendant had the
following exchange with the plaintiff’s counsel;
“Q Income you were raising?
A Can not recall but was raising a lot of money.
Q Compared to plaintiff’s earnings?
A I was raising about 50% of plaintiff’s earnings.
Q So raised half of plaintiff’s earnings?.
A Yes correct. Most times he found I would have materials and promised to
refund me but did not do so.
Q Towards development saying contributed half of what plaintiff contributed?
A That is correct.”
This means her contributions are less than half
of the purchase price of and construction expenses of the matrimonial
home. The plaintiff also made generous concessions and agreed to let the
defendant have most of their movable assets from the matrimonial home
even though he purchased them without any contributions from the
defendant. There is no justification for awarding the defendant more
than 50% of the value of the matrimonial home,
It is apparent the defendant needs the matrimonial
home more than the plaintiff who has not been staying in it for four
years. He is staying with a girlfriend in Masvingo. It is unlikely that
he may relocate to Harare. In the circumstances it will be fair and just
to allow the defendant to buy his share of the matrimonial home. The
defendant is involved in three projects which can help her raise money
to buy out the plaintiff’s share. I am aware she said she is no longer
running those projects since last year because of the operation she had
when she gave birth to their last two children. That sounds untruthful.
How could the operations incapacitate her now when they had not done so
for over 17 to 18 years after the birth of those children. The defendant
did not produce any medical reports about her alleged incapacity. I am
satisfied she said so to persuade the court to grant her the cost of
suit she wanted from the plaintiff. She will therefore be able to buy
the plaintiff’s share if she is given a reasonable opportunity to do so.
In my view a period of 18 months is a reasonable period within which
she can buy out the plaintiff’s share. .
COSTS.
The defendant prayed for an order of costs against
the plaintiff. She claimed inability to raise her own costs of suit.
Under cross examination she bared her heart and said the plaintiff
should pay the costs of suit because he is the one who wants the divorce
which she is resisting. I have already found against her alleged
inability to raise money for costs of suit. She however seems to be on
stronger ground when she said he should fund the divorce he seeks
because he left her for another woman. In the case of Marimba vs Marimba
1999 (1) ZLR 87 at p 94 D GILLESPIE J said;
“The final issue to which fault might be relevant is that of costs. The relevance is obvious.”
While I agree that fault can in deserving cases
justify an order of costs against the party guilty of marital
misconduct, care must be taken to avoid penalizing a party who is
escaping an unhappy marriage. In this case the plaintiff admits that he
left the matrimonial hope to go and live with a girlfriend in Masvingo.
It is highly probable that he left the defendant for the girlfriend and
sought a decree of divorce to achieve that goal. He must in my view pay
the defendant’s costs.
In the result it is ordered that;
1. A decree of divorce be and is hereby granted
2. That the parties movable property be and is hereby distributed as follows;
FOR THE PLAINTIFF FOR THE DEFENDANT
1x Deep Freezer 2x 3 plate stove
1x 24 inch Telefunken television 3x2 door fridge
1 x DBVD Player
1x kitchen
unit
1 x Double Bed 1x 4 chair kitchen table
1 x Decorder. 1x4 piece of sofas
3herd of cattle all kitchen utensils
All the movables at the Wedza rural home 1x coffee table
1x Room divider
2x Display cabinets
1x
decoder
1x Radio
1x Fan
2x Decoders
1x DVD player
1xRadio
1x bed roomed suits
3x double
beds
1x6 chair dining table
1
x DVD
player
2.1 The Toyota Hiace 16 seater kombi be sold and the proceeds be shared equally between the parties.
2.2 The plaintiff
shall retain the Nissan Sentra as his sole and exclusive property whilst
the defendant is awarded the Mazda B2200 pickup.
3. The plaintiff is hereby awarded the rural homestead in Wedza as his sole and exclusive property
4. The plaintiff and the defendant are each awarded a 50% share of the immovable property known as stand number 9406 Budiriro Township of stand 11265 Budiriro Township.
4.1 The parties shall
agree on and appoint a valuer within 14 days from the date of this order
to value the property, failing which the Registrar of The High Court
shall within 14 days of such failure appoint a Valuer. from the Master’s
list of Valuers
4.2 The valuer shall evaluate the property within 14 days of his appointment.
4.3 The parties shall equally share the cost of evaluation.
4.4 The defendant shall pay the plaintiff the value of his half share of the property
within eighteen months from the date of receipt of the valuation report.
4.5 Should the defendant fail to pay off the plaintiff within eighteen months the
parties, shall within 14 days of the defendant’s failure appoint an Estate
Agent, who shall sale the property to best advantage failing which the
Registrar of the High Court shall within 14 days of such failure appoint the
Estate Agent,
4.6 The parties shall equally contribute towards the Estate Agent’s commission.
4.7 The parties shall equally share the net proceeds thereof as per their respective
shares in the property.
5. The 2 Manyame stands shall remain in the names of their 2 adult children as if donated by the spouses to the children.
6. The plaintiff shall pay the defendant’s costs of suit.
Messers Mabuye Zvarevashe, Plaintiff’s Legal Practitioners
Messers Mhiribidi Ngarava & Moyo, Defendant’s Legal Practitioners.
No comments:
Post a Comment