Andris Chadenga v Idah Chadenga (nee Marange)

### Preamble
1
HH361-12
HC6389/09
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ANDRIS CHADENGA

versus

IDAH CHADENGA (nee MARANGE)

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 10,11,12,16 &19 January;

2 & 22 February 2012 & 27 September 2012

FAMILY LAW COURT

TRIAL CAUSE

C Takaendesa, for the plaintiff

T.E. Mudambanuki, for the defendant

MAWADZE J:	The plaintiff husband issued summons out of this court on 17 December 2009 seeking a decree of divorce on the basis of irretrievable breakdown of marriage, division of matrimonial assets, an award of custody of the four minor children in favour of the defendant and that each party bears its own costs.

The parties are married in terms of the Marriage Act [Cap 5:11] which was solemnised on 26 December 1992.  The marriage was blessed with four children, Ryan Munashe a male born on 1 October 1993, Panashe Aaron a male born on 1 January 1997, Tariro Karen a girl born on 16 April 2004 and Ralph Tadisa a male born on 16 November 2008.

The plaintiff is 47 years old and is employed by Air Zimbabwe as Marketing and Investment Services Officer.  He has been employed by Air Zimbabwe since 1990.  Currently he is based in Victoria Falls.

The defendant is not employed and has been a full time housewife since her marriage.  She is 40 years old.

In his declaration the plaintiff gave a number of reasons which has led to the irretrievable breakdown of the marriage.  Plaintiff stated that the defendant despises him for lack of means as he owns very few assets one of which is a wrecked and broken down motor vehicle.  He said the plaintiff is not accountable to him as regards her movements and has expressed her lack of love for the plaintiff.  The plaintiff said he is falsely accused of promiscuity and is denied conjugal rights.  As a result the plaintiff has since moved out of the matrimonial home.  The plaintiff stated that the parties acquired various movable property and the only immovable property is a house number 5856 Manyame Park Phase 4, St Mary’s, Chitungwiza.

At the pre-trial conference the parties agreed that the marriage relationship between them has irretrievably broken down to the extent that there are no reasonable prospects of restoration of a normal marriage relationship.

As per the joint pre-trial conference minute dated 18 October 2010 signed by both parties the following issues were referred to trial for determination;

“a) what constitutes an equitable distribution of the immovable property that is, stand

No. 5856 Manyame Park Phase 4, Chitungwiza.

b) which of the parties should be awarded custody of the four minor children or that

the parties should share custody, with custody of the two elder children being

granted to the plaintiff and defendant retaining custody of the remaining two children.

c) in case custody of the two elder children is granted to plaintiff, whether not the

plaintiff will be entitled to maintain the two minor children in defendant’s

custody.”

At the commencement of the trial in January 2012 the eldest child Ryon Panashe had attained majority status hence the issue of custody was only relevant to the three children.  The parties also indicated to the court that due to passage of time they had resolved some of the issues in dispute and they are as follows;

That custody of the three minor children should be awarded to the defendant.

That the plaintiff would enjoy access rights during the first two weeks of every school holiday.

They each party retains movable property in his or her custody

That the maintenance in respect of the three minor children be in terms of the current magistrate court order in case No. M251/10

The only issue which fell for determination during the trial was in respect of the only immovable property being No. 5856 Manyame Park, Phase 4, Chitungwiza.

It is common cause that the parties agree that their marriage relationship has broken down to such an extent that it is beyond salvation.  It is also not in dispute that the parties are no longer living together as the plaintiff moved out of the matrimonial home in 2009 leaving the defendant with the children in the matrimonial home. I have already alluded to plaintiff’s reasons in respect of the breakdown of the marriage between the parties.  No useful purpose would be served by repeating them.  On the other hand the defendant refuted the reasons proffered by the plaintiff and that she is responsible for the breakdown of the marriage relationship.

Instead she accused the plaintiff of infidelity and intermittent desertion of the matrimonial home in order to cohabit which other women.

The position is made clear in the case of Ncube v Ncube 1993 (1) ZLR 39 that where parties are consenting to divorce it may not be necessary for the court to hear evidence solely for the purpose of ascribing fault for the breakdown of the marriage.  I am therefore satisfied that in terms of s 5 of the Matrimonial Cause Act [Cap 5:13] the marriage relationship between the parties has broken down to such an extent that there are no reasonable prospect of restoration for normal marriage relationship between the parties.  In the premis a decree of divorce should be granted.

I shall also incorporate in the divorce order other ancillary issues which are not in dispute, that is custody of the minor children, plaintiff’s access rights, maintenance of the minor children and division of moveable assets of the parties.

I now turn to deal with the contentious issue of the division of the immovable property being a house No. 5856, Manyame Park, Phase 4, Chitungwiza.

In his prayer in the declaration the plaintiff provided two options as regards how the immovable property No. 5856 Manyame Park, Phase 4, Chitungwiza (hereinafter the property) should be dealt with.  The first option is that the property should be awarded to and registered in the names of the parties’ children in equal undivided shares.   In the event that defendant was not amenable to this option, plaintiff suggested that the property be sold and the parties share the proceeds thereof equally. Both options were not acceptable to the defendant.

The defendant’s initial offer as per pleadings was that the property be declared as her sole and exclusive property.  The defendant shifted her stance in the summary of evidence in which she then claimed an 80 percent share of the value of the property and the remainder of 20 percent share being awarded to the plaintiff.  During the trial the defendant again shifted the position and was now proposing to be awarded a 90 percent share of the value of the property and defendant a 10 percent share of the same.

In view of the constant shifting of the goal posts by the defendant, the plaintiff indicated that he would rather have the property sold and the parties share the proceeds equally.

The Law Applicable

Section 7 (1) of the Matrimonial Cause Act [Cap 5:13] (the Act) deals with the apportionment or distribution of assets of the spouses upon the dissolution of the marriage.  The factors the court should consider in the exercise of its discretion in order to achieve a fair, just and equitable distribution of the matrimonial estate are provided in s 7 (4) (a) to (g) of the Act. See also Hatendi v Hatendi 2001 (2) ZLR 530.  While it is prudent for the court to take on board these broad guide lines and other factors available, the court remains imbued with a wide discretion in this regard See Ncube v Ncube  1993 (1) ZLR 39 (S) of 40H – 41A.

In the case of Shenje v Shenje 2001 (2) ZLR 160 (H) at 163F GILLESPIE J made an insightful comment in relation to the provisions of s 7 (4) of the Act as follows;

“In deciding what is reasonable, practical and just in any division, the court is enjoined to have regard to all circumstances at this case.  A number of the more important and more usual, circumstances are listed in the subsection.  The list is not complete.  It is not possible to give a list of all possible relevant factors.

The decision to property division order is an exercise of judicial discretion based on relevant factors, aimed at achieving a reasonable, practical and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantages to the extant they are not inevitable, of becoming divorced.”

I shall be guided by these principles outlined in dealing with the division of the property in dispute.

The Evidence

The property in issue is a 6 roomed house comprising of 4 bedrooms, dining room and kitchen.  The property is dural walled with a sliding gate.  The defendant is staying in this house with all the 4 children.  They regard the house as their home.  As already said the plaintiff if now based in Victoria Falls and moved out of the property in issue in 2009.

There is no title deed in respect of the property.  The cession in respect of this property is in the defendant’s name.  It is common cause that the manner in which the stand on which to build this property was acquired is not in dispute.  It is the defendant who joined a housing cooperative in order to secure the stand.  The plaintiff was not a member of the housing cooperative.  This explains why the stand is still registered in defendant’s name.  Mr Mudambanuki took the plaintiff’s task as to why he allowed the construction of the house to proceed without ensuring that the stand was registered in the names of both parties.

In response the plaintiff stated that at the material time the marriage relationship between the parties was blissful and they were a one happy family.  He said he did not take issue with such a scenario.  He said the marital problem started in 2008 well after they had finished building the house and that when he initiated the process to obtain title deeds for the property in the names of both parties the defendant then refused insisting she wanted the property to remain in her name.

The defendant’s version is that the property has alsways been in her name because she solely secured the stand and built the house with her own resources without any meaningful help from the plaintiff.  I am inclined to accept the plaintiff’s version on why the property is in defendant’s name.  I shall later provide reasons for this finding.

The plaintiff’s evidence is that defendant only advised him in 2004 that she had joined a housing cooperative in Chitungwiza and she had done so late hence stands were already being issued out to members at a price of Zimbabwe $557 000.  He said the defendant indicated that in order to secure the stand she had to jump the queue by bribing the cooperative officials who had requested $200 000.  The plaintiff said he had some savings of £1 000 he had raised from the courier services he provided for a fee to Zimbabweans in the UK taking advantage of his position as an employee of Air Zimbabwe.  He exchanged the £1 000 with Zimbabwe dollars and gave the defendant a total of Zimbabwe $957 000 (557 plus Z$200 000) to pay for the stand.

It is the plaintiff’s evidence that thereafter the defendant secured a plan which the plaintiff modified, paid for and was approved by Council. The construction of the house then commenced in 2004.   At the material time the parties were lodgers to Chitungwiza.

The plaintiff testified on how the property in issue was constructed and how the funds were raised.  He said he was assisted by his cousin’s son Lynos Tachi to recruit people who moulded the first 4 000 bricks.  He paid the brick moulders and bought the quarry dust, pit sand and river sand.  He gave defendant money to buy cement and defendant cooked food for the brick moulders and later the builders.  The plaintiff said he secured a builder in 2004 whom he paid and the construction of the property commenced in earnest.

The plaintiff’s evidence is that the defendant used to buy some curio wares from money given to her by the plaintiff and she would proceed to Mauritius to sell the wares.  He said it was after such trips before construction of the property that defendant brought some cash and brought 16 asbestos sheets, 7 door frames and 7 window frames.  The plaintiff said they later paid the builder with 8 of the 16 asbestos sheets and later sold the remainder as the roofing tiles were used.

The plaintiff testified that another batch of 4 000 bricks was moulded beginning of 2005 and they managed to complete the structure of the property to roof level.  By then he had run out of cash and only resumed to construct the house after had bought another window frame and french door.  The plaintiff said in 2005 he undertook a number of trips to UK providing the courier services and managed to raise Zimbabwe $238 000 which he used to buy timber for the roof.  He hired 2 carpenters who mounted the roof.  The next challenge according to the plaintiff was to raise funds for the roofing tiles as they had decided not to use asbestos sheets.  The plaintiff said he sold his Nissan Sunny motor vehicle and raised Zimbabwe $15 million and used $11 million to buy the tiles at Turnal.   At this time the plaintiff said the lodgings they were staying in Unit J Chitungwiza were destroyed during operation Murambatsvina and they were forced end of 2005 to move into the incomplete house. According to the plaintiff all the flooring, plastering, plumbing, kitchen fittings and final touch ups were done when they were staying in the house. The plaintiff said he used his salary to purchase the requirements to complete the house. The plaintiff’s evidence is that thereafter he bought 14000 farm bricks and a sliding gate which he used to construct a durawall and paid the contractors. All in all the plaintiff said it took them 4 years to complete the house, that is from 2004 to 2008.

Under cross examination the plaintiff refuted the suggestion that the house was constructed solely from the funds raised by the defendant from her trips to Mauritius, South Africa, Mozambique and Botswana. The plaintiff explained that the defendant benefitted from the plaintiff’s benefits at work hence was able to fly for free to Mauritius to sell her wares, the plaintiff would have funded. The plaintiff testified that as part of his benefits he had discounted flights for his wife and children, discounted at the rate of 90% and free tickets every 5 years. The plaintiff said the defendant would utilise these benefits to fly to Mauritius and the plaintiff would fund other expenses for the trips like buying the wares to sell, and providing money for food and accommodation. According to the plaintiff the defendant’s trip to South Africa where she spent 1½ months was undertaken in 2008 after the house had been completed.

Under cross examination the plaintiff stated that the trips undertaken by the defendant to Mauritius did not raise much capital which could be used to construct the house. The plaintiff refuted that the defendant would raise US$500 per trip.  Instead he said she could at most raise US$200 per trip which was used mainly to buy groceries for the family. The plaintiff said even the wares the defendant took for sale were limited to 25kg per flight and that the defendant probably undertook 8 trips to Mauritius from 2001 to about 2008.

The plaintiff dismissed as false that at the time the house was being constructed he was cohabiting with other women. He denied cohabiting with Bertha Sithole between 2002 to 2004. He also denied cohabiting with one Sharon as alleged between 205 to 2008 stating that he does not even know a person by that name. The defendant stated that the only building materials the defendant bought from proceeds of her foreign trips were the 7 door frames, 8 window frames and 16 asbestos sheets.

The plaintiff justified his claim for a 50% share of the value of the house on the basis that he made the most direct contribution to the construction of the house. He however said he accepted the defendant’s indirect and direct contributions hence believes she is also entitled to a 50% share of the value of the property.

The plaintiff gave his evidence very well. He chronicled with sufficient detail how the house was constructed, stage by stage. He was able to satisfactorily explain how he raised the funds for the construction of the house in addition to his income realised from employment. No meaningful in roads were made in a bid to discredit his testimony.  I therefore assess the plaintiff’s demeanour as good and his evidence reads well.

The defendant’s version is that she raised the money to firstly buy the stand and secondly to construct the stand from the income she raised from her foreign trips mainly to Mauritius and regionally to South Africa, Botswana and Mozambique from about 1994 until the house had been completed. The defendant said the plaintiff only contributed in the construction of the house in the following manner:-

by modifying the plan the defendant had paid for.

by providing additional cash to purchase the roof tiles and

putting the ceiling

According to the defendant the plaintiff did not contribute in any manner to the purchase

of the stand. The defendant said she solely paid the brick moulders and the builder. She also bought almost all the building materials except the two window panes and construction of durawall. The defendant said she raised about US$500 to $700 per trip from Mauritius.

Under cross examination the defendant admitted that she used the plaintiff’s benefits of free and discounted tickets to go to Mauritius although she insisted that she funded most of the trips herself. She admitted that she would get free or discounted tickets thrice a year and also that her passport shows that she had been to Mauritius at most thrice per year. The defendant was unable to give the price of each ticket and the related expenses per trip vis-à-vis the profit she would make.

It is clear to my mind that the defendant went at great lengths to trivialise the plaintiff’s contribution to the construction of the property in issue. Unfortunately the objective facts are not supportive of the defendant’s version. The defendant has been unemployed throughout the marriage and had no other source of income besides the said foreign trips. The defendant would need to raise substantial capital to undertaken such trips which would result in her realising a profit of US$500 to $700 per trip. I am not surprised that the defendant was not able to give a breakdown of her expenses from the time she would buy the wares in Zimbabwe to sell, how she would raise that cash, the price for the air tickets, food, accommodation and other related expenses. Such a task was beyond her because she was not being candid with the court. The improbabilities of her evidence were cruelly exposed in cross examination when she could not explain how she raised the capital to build the house in her record time of 1 year 3 months. It is clear that the defendant over played her role and in the process exaggerated her evidence. I am inclined not to accept her evidence in most material way as regard her contribution to the construction of the house.

My overall assessment is that both parties directly and indirectly contributed to the construction of the property in issue. The defendant played a crucial role in securing the stand by joining the Housing co-operative. In my view she authored the dream to own a house of their own and gave the plaintiff moral support. She also directly contributed by buying 7 door frames, 8 window frames and 16 asbestos (though the latter was not used). She provided food for brick moulders and the builders. She also would undertake errands to buy building materials like cement. Her foreign trips also yielded income which was utilised for the benefit of the family. She also performed other valuable domestic duties as the plaintiff’s wife and the mother of the 4 children. I have already stated that I accept the plaintiff’s evidence as regards his contribution to the construction of the property in issue.

While the direct and indirect contributions by the parties are important factors, they are not the only factors and neither are they the most import factors. The views expressed by GILLESPIE J in Shenje v Shenje supra at 163H -164 A are instructive:

“The factors listed in the subs (s7 (4)) deserve fresh comment. One might form the impression from decisions of the courts that the crucial considerations is that of the respective contributions of the parties. That would be an error. The manner of the contributions made to the family is the fifth listed of the seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps, it is time to recognise that the legislative intent and the objective of the courts, is more weighted in favour of ensuring that the parties’ needs are met rather than that their contributions are recouped”

I assess the parties’ contributions, both direct and indirect to be ratio of 50% each. In assessing the award to be made in respect of the property in issue I have considered other relevant factors. The parties have been married for 20 years which is a fairly long time. They have invested a lot in the marriage more so in the sole immovable property now in issue. Both parties are middle aged and have the capacity to fend for themselves. The plaintiff’s is still employed but as per his evidence the employer Air Zimbabwe is in serious financial problems and unable to regularly pay any salaries to employees like the plaintiff. This means that the plaintiff is of limited financial means. The defendant is unemployed although she is self employed as a cross border trader. She conceded that she has no capacity to buy out the plaintiff in any manner.

I have also considered that the benefits which the plaintiff and the defendant used to enjoy from Air Zimbabwe are no longer available. This has adversely affected the standard of living of the parties as they are now unable to raise additional income. Although the eldest child has attained majority status he is still at school and dependant on the parents. All the children need shelter. The money paid by the plaintiff as maintenance as per his own admission is not sufficient to cater for the other needs of the children except food. While I am of the view that the property in issue should be sold and the proceeds thereof shared on a equal basis between the parties, the problem I have to consider is that the four children need accommodation. If the house is sold soon after divorce it would mean the defendant who has custody of the children would have to find alternative accommodation for the children. The plaintiff admitted that he is not able to help in this regard by paying rentals. The parties cannot agree to have this property registered in the names of the children. My view is that the only fair and just manner to deal with the property would be to award each party a 50% share of the value of the property and suspend the sale or disposal of the property until the youngest child has attained majority status. In order to safeguard the property I would grant the defendant a usufruct to the property until the youngest child attains the age of 18 years. Such an approach would ensure that the parties get an equal share of the value of the property and that the benefit would only accrue to them after the interests of their children are taken into account.

Accordingly, it is ordered as follows:-

A decree of divorce is hereby granted.

The custody of the three minor children namely Panashe Aaron (born on 1 January 1997); Tariro Karen (born on 16 April 2004) and Ralph Tadisa (born on 16 November 2008) is awarded to the defendant.

The plaintiff shall enjoy reasonable access rights in respect of the three minor children during the first two weeks of every school holiday and on any other special occasions in consultation with the defendant.

The maintenance order in respect of the 3 minor children granted by the magistrates court in case no M251/10 shall remain in force until it is varied or discharged by a court of competent jurisdiction.

Each party is awarded as his or her sole exclusive property all the movable property in his or her possession.

The immovable property currently in the defendant’s name known as No. 5856 Manyame Park, Phase 4 Chitungwiza is distributed by awarding 50% share each of the value of the property to the plaintiff and the defendant subject to the following conditions:-

The property shall only be sold and the proceeds thereof shared between the parties in terms of para (6) above when the youngest child of the parties namely Ralph Tadisa (born on 16 November 2008) has attained the age of 18 years.

The defendant is granted the usufruct in respect of the said property until the youngest child Ralph Tadisa (born on 16 November 2008) has attained the age of 18 years.

At the expiry of the period referred to in para(s) 6.1 and 6.2 above, the property shall be sold at the best advantage by the Deputy Sheriff and the net proceeds shared between the parties with the plaintiff awarded 50% share and the defendant 50% share as per para (6) above.

Each party shall bear his or her own costs.

Charamba & Partners, plaintiff’s legal practitioners

Mudambauki & Associates, defendant’s legal practitioners