Nqabutho MOYO Versus Thulisiwe Prudence MOYO (NEE Ndlovu)

NQABUTHO MOYO

Versus

THULISIWE PRUDENCE MOYO (NEE NDLOVU)

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 1O SEPTEMBER, 7 OCTOBER & 5 DECEMBER 2019

Civil Trial

Advocate S Siziba, for the Plaintiff

J Mugova, for the Defendant

MOYO J:	This is a matrimonial matter wherein the plaintiff issued summons seeking a decree for divorce and ancillary relief.  Plaintiff and defendant were married in terms of the Marriage Act Chapter 5:11 on the 14th of October 2005 and the marriage still subsists.  The basis for the relief sought is that parties stopped living together as husband and wife since 2008 and that they have since lost all love and affection for each other.

There are 2 minor children born of the marriage namely Mzwakhe Nimrod Lwandile Moyo a male born on 15 April 2006 and Mzwandile Thorburn Moyo also a male born on 3 November 2012.

There are no issues pertaining to the children’s custody, maintenance and access although the issue of maintenance had been one of the issues for trial, the parties later agreed during the trial and found common ground in relation thereto.  The parties agreed that defendant retains the custody of the 2 minor children, that plaintiff be granted, reasonable access and that plaintiff pays $550-00 as monthly maintenance per child together with taking care of the children’s medical and educational needs.  The only issue for determination by this court therefore is that of the redistribution of matrimonial property.  This issue is divided into 2 sub-issues in that, firstly there is a dispute as to what constitutes matrimonial property.  Secondly, there is a dispute on the redistribution itself.  So what this court has to do is to first determine what constitutes matrimonial property as acquired by the parties and then proceed to determine how such property should be redistributed.

What Constitutes the Parties Matrimonial Assets

In the declaration paragraph 10 thereof, plaintiff avers that during the subsistence of the marriage the parties did not acquire any property together and that as such there is no property for redistribution at divorce.  He further prays that each party retains the assets in their possession as their sole and exclusive property.  Defendant in her plea as amplified by an amendment, she claims that the parties in fact acquired 2 motor vehicles a BMW series and a Mazda B2200 and she claims 50% of the motor vehicle.  She also averred that there are 3 stands in Victoria Falls, car wash equipment and a soft drink vending machine.

Both parties tendered documents during the course of the trial, but the plaintiff’s bundle of documents seems to have been meant to address the maintenance issue which later fell off during the trial.  The defendant’s bundle of documents contains correspondence from the Victoria Falls Municipality which shows that plaintiff was allocated 2 stands, namely stand number 4911 Chinotimba Township, which is a residential stand and stand 1857 Victoria Falls which is a commercial stand.  The defendant’s lawyers had to investigate for themselves and get an Anton Pillar order in HC 1202/17 to obtain the information on the stands.  Plaintiff gave evidence and told the court that he bought the 2 motor vehicles around 2011 and 2013 and that the BMW was attached by the Messenger of Court.  No court process documents or notice of attachment papers were tendered in support of the contention that the BMW was sold.  He said he has 2 offer letters for stand 4911 and 1857 in Victoria Falls but that the stands are not yet in his name.  This court takes note that plaintiff had initially filed a supplementary replication wherein he denied the existence of the stands in Victoria Falls and put defendant to the strict proof thereof.

He also said he acquired them after separating from the defendant.  He said the stands are not improved and that defendant did not contribute anything.  He further said defendant cannot have a share in properties that are not in his name and which he acquired after separation.  He admitted under cross-examination that despite his assertion that the parties separated in 2008, they however sired a child together in 2012.  He insisted that they still separated in 2008.  Plaintiff conceded during cross-examination that he had previously said stands had been withdrawn from him by the municipality.  Under cross-examination he said he had made some payments towards the stands and that he could not state how much he paid.

Defendant gave evidence to the effect that she separated from plaintiff in 2015.  She tendered from her bundle documents a letter that proved the existence of the stands in Victoria Falls.  She confirmed that they had to get a court order to access the information on the stands after plaintiff had categorically denied their existence.  She said that she contributed to the welfare of the family by taking care of the children and that initially she had been employed and was earning about $500 per month.  She said she wanted a half share of the value of the motor vehicles and she estimated same to be at about $7000 USD for the BMW and $2000 USD for the Mazda respectively.  She said the BMW was with plaintiff in Victoria Falls and the Mazda was with plaintiff’s brother in Malindela.  She said they last shared conjugal rights in March 2015 and that is when plaintiff’s behavior changed.  Under cross-examination she maintained her claims and her assertion that the parties separated in 2015.

I will start by dealing with the issue of separation and its effect on this case.  Plaintiff says the parties separated in 2008, defendant says the parties separated in 2015.  I believe the defendant’s assertion for the following reasons:

1)	The parties sired a child together in 2012.

2)	The partenity of that child is not in issue so they both accept that it is their biological child so they must have shared conjugal rights at the relevant time.

3)	Parties in marriage share conjugal rights as husband and wife.  Conjugal rights in marriage derive from the union and nowhere else.  So it is inconceivable that estranged spouses can share the marital bed and bear children out of any other association other than their union.  So as at 2012 the parties may have lived physically apart (which is normal in every marriage) but they still considered themselves as husband and wife for them to have shared conjugal rights.  Plaintiff is being untruthful and he will say anything and everything in a bid to disown the existence of the union.  His argument is devoid of any logic and is in fact malicious

The only logical conclusion this court can draw from these facts is that plaintiff is lying about the period of separation.  I will therefore adopt the defendant’s assertion as from the case, the situation on the ground agrees with her contention.  In any event, it does not matter really when the parties, separated because, up to the date I pronounce them divorced, the marriage still subsists, and the Matrimonial Causes Act allows me to redistribute property acquired during the subsistence of the marriage, which is from the date the marriage is solemnized to the date of the decree of divorce is issued.

Plaintiff’s counsel sought to blow out of proportion this aspect of separation.  In my view it is neither here nor there, for where for example a spouse were to die before a decree is issued, the surviving spouse automatically benefits, that’s the law, for as long as the marriage subsisted.  For as long as the union existed, the issue of separation has no legal implication in our law.

What property was acquired during the subsistence of the marriage (which marriage still subsists even as I write this judgment).  The parties separated in 2015 but all the property that the parties acquired between 14 October 2005 to date is property acquired during the subsistence of the marriage because the marriage subsists until a decree for divorce is issued.  Therefore the parties, acquired the 2 Victoria Falls stands during the subsistence of the marriage.  The parties also acquired 2 motor vehicles during the subsistence of the marriage.  In so far as the acquired property is concerned I will use the defendant’s testimony for the following reasons:-

1)	Plaintiff has been pre varicating.  He is not an honest man.  He tells a story to suit the moment and also changes when the moment favours him to change.  I will show why I have come to that conclusion

a)	In his declaration plaintiff averred that the parties did not acquire any property together.

b)	In a letter from his lawyers Dube, Mguni & Dube legal practitioners, dated 16 June 2016 and addressed to defendant’s lawyers, at page 17 of defendant’s bundle of documents he made an admission with respect of the 2 motor vehicles and he offered the defendant the Mazda B2200.

c)	In a letter from his legal practitioners dated 6 June 2018 he stated that the BMW had been attached by the Messenger of Court (no court correspondence was provided to show that indeed there had been such an attachment) and that the Mazda B 2200 had been sold to his uncle yet by 6 June 2018 he knew that the Mazda truck that he was selling was subject of a claim at court.  His conduct is in fact disrespectful for the authority of the courts.  It smacks of an attempt to defeat the ends of justice.

d)	In his supplementary replication filed on 23 June 2016 he denied the existence of residential stands and put the defendant to the strict proof thereof.

e)	The defendant had to get an Anton Pillar order to obtain the information on the stands from the Victoria Falls Municipality via the court order.

f)	With the existence of the Anton Pillar order, plaintiff then averred that the stands had been withdrawn for failure to pay.  This, he confirmed during cross-examination.

g)	When he realised that he could not escape the existence of the stands and that there is no proof of withdrawal he then changed his line of argument and said the stands were acquired after separation with the defendant, that in fact they are not in his name but were just offered, that he has not paid for the stands in full but that he made some unstated amounts.

Plaintiff has been dishonest in every respect concerning the matrimonial assets.  His conduct smacks of a person bent on making sure that the defendant walks out of this marriage with nothing.  It is for these reasons that I hold the view that, that plaintiff’s testimony with regard to the existence or otherwise of matrimonial assets is not credible at all.  He has been manifestly dishonest right from the beginning such that it would be unsafe for this court to rely on his assertions.  It is for these reasons that I will accept the following facts from the defendant which facts are supported by documentary evidence tendered.

The parties acquired stands 4911 and 1857 from the Victoria Falls Municipality.  This is documented and no one can run away from it.  I will also accept that the parties acquired 2 motor vehicles namely a BMW and a Mazda B2200.  That there is no proof that the Messenger of Court Victoria Falls attached and sold in execution the BMW.  I say so, for an attachment in execution is documented, firstly from the judgment itself, right through to the warrants and the Messenger of Court’s notices of attachment, adverts of the sale in execution as well as the statement of account from the Messenger of Court after selling the item.  All this has not been presented.  The lack of documentation coupled with the dishonest way with which the plaintiff has conducted himself in this case, I find that the BMW does exist.  Again, with the B2200 motor vehicle I find that it does exist as Plaintiff could not sell it well aware that it is subject to court proceedings and even if he did sell it as a matter of fact, such a sale was malicious and bent on defeating the ends of justice.  For that reason I will take these into account in redistribution of assets.

I then move to find that the plaintiff and defendant lived together in marriage for about 11 years as I have already found herein.  The defendant used to work during the early years but she did not earn much compared to plaintiff.  She however stopped working and became a housewife taking care of the couple’s children.  The contributions of a house wife cannot be equated to any monetary value.  A housewife might not be employed in a productive sector as it were, but her contribution to the very being and welfare of a household should not be underestimated.  She carries the social wellness of the family, she bears the emotional burden of carrying and nurturing children.  She micro-manages the domestic affairs of the entire household leading to its physical and emotional well being.  A housewife’s daily efforts may not be easily documented in financial books of account, but a housewife is the centre of the day to day management of a household.  She micromanages a household and attends to the intricate demands of the home.

A household in itself is an entity that requires to be managed on a day to day basis, it would be grossly inappropriate to state that a non-working spouse and a mother has not contributed much to a household.  She looks after the household and the children, enabling the man to be away at work and to do the macro planning and earn income.  It is with these reasons in mind that our courts have been persuaded to recognise a non-working mother and a housewife in terms of contributions made to the wellbeing and the very existence of a home. I accordingly hold that defendant, has made indirect contributions to this household and she continues to do so as she still caters for the minor children of the marriage.  I will thus award her a sizeable portion of the matrimonial estate for these reasons.

I accordingly find that plaintiff can keep the stands in Victoria Falls but should buy out the shares I will award to the defendant within a certain time frame.  If he fails, then the stands be sold by the Sheriff with whatever is owing to Victoria Falls Municipality being paid off first and the net proceeds shared between the parties.  As for the motor vehicles since plaintiff has shown an attitude of trying to make them unavailable, I will award the defendant shares therein as it may be difficult to enforce an order that awards her a specific motor vehicle with plaintiff’s attitude.

I accordingly make the following order.

1)	A decree of divorce is hereby granted.

2)	Custody of the 2 minor children of the marriage namely:

a)	Mzwakhe Nimrod Lwandile Moyo a boy born on 15 April 2006 and,

b)	Mzwandile Thornburn Moyo a boy born on 3 November 2012

is hereby awarded to the defendant with plaintiff being granted reasonable access rights.

3)	That plaintiff pays a sum of $550 per month per child for the 2 minor children until they attain the age of majority or become self supporting whichever occurs earlier.

4)	That in addition to the maintenance referred to in paragraph 3 above, plaintiff is hereby ordered to cater for all the 2 minor children’s educational and medical needs until they attain the age of 18 years or become self supporting whichever occurs earlier.

5)	That plaintiff is awarded the 2 stands namely stand 4911 and stand 1857 Chinotimba Victoria Falls which stands he can retain upon payment to the defendant of a 50% share on the value of each stand.

6)	That the 2 stands namely stand 4911 and stand 1857 Chinotimba  Victoria Falls be evaluated by a reputable estate agent whereupon that evaluation defendant’s 50% share in each stand will be ascertained and that plaintiff then pays defendant her share within 90 days from the date of such an evaluation.

7)	That if plaintiff fails to pay the sums due to the defendant per the value of the stands as given through an evaluation report then the 2 stands be sold to best advantage and the net proceeds (after payment of whatever is due to the Victoria Falls Municipality if any) be shared equally between the parties.

8)	That by virtue of this order, the Sheriff of the High Court or his deputy be empowered to access all the records kept by the Victoria Falls Municipality with a view to ascertain the amount due to it, if any, for the 2 stands.

9)	That the Sheriff of the High Court or his deputy be authorized to sign any papers on any matter arising from the awards made in this court order, be it a sale agreement or transfer document in relation to stand 4911 and 1857 Chinotimba, Victoria Falls.

10)	That defendant be awarded a sum of $4 500 being a 50% share in the value of the 2 motor vehicles namely a BMW and a Mazda B2200 truck and that such sum is payable by the plaintiff to the defendant within 30 days of this order.

11)	That each party pays its own costs.

Ncube Atorneys, plaintiff’s legal practitioners

Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners