Judgment record
Collin Sydney Dicks v Averil Carol Dicks
HH 61-2011HH 61-20112011
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HH 61-2011
HC 6943/02
COLLIN SYDNEY DICKS
and
AVERIL CAROL DICKS
HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 2 July 2010, 30 August 2010, 7 & 8 September 2010, and 10 March 2011
Matrimonial Trial
T. Moyo, for plaintiff
R. Harvey, for defendant.
CHITAKUNYE J. The plaintiff and defendant were joined in holy matrimony on 23
September 1992 at Harare in terms of the Marriages Act, [Cap 5:11]. The marriage still
subsists. Both of them were born and bred in Zimbabwe hence they are domiciled in
Zimbabwe. Their marriage was blessed with two children born on 29 December 1991 and 3
December 1993 respectively.
On 21 August 2002, plaintiff filed a suit for divorce against the defendant. He alleged
that the marriage relationship between the parties has irretrievably broken down to such an
extent that there are no reasonable prospects of the restoration of a normal marriage
relationship between them. Plaintiff claimed custody of the minor children and offered to
provide certain sums and amenities to defendant as in full and final settlement of the financial
provision, post divorce maintenance and proprietary claims of plaintiff and defendant as
against each other.
In her plea defendant conceded that the marriage had irretrievably broken down albeit
laying the blame on plaintiff for the breakdown of the marriage. She also made a counter claim
mainly for post divorce maintenance and other provisions.
On 8 February 2007 the parties reached agreement as to custody, maintenance and access
to minor children and had that agreement recorded and to form part of the final order. That
agreement reads:-
“1. That plaintiff and defendant are agreed that the marriage relationship between them has
irretrievably broken down to such extent that there is no reasonable prospect of a
restoration of a normal marriage relationship between them and that a decree of divorce
be issued.
2. That custody of the minor child Shane Sydney Dicks (born 3 December 1993) be
awarded to plaintiff.
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3. That defendant be afforded reasonable rights of access to the minor child Shane
Sydney Dicks.
4. That custody of the minor child Carlene Dicks (born 29 December 1991) be
awarded to defendant
5. That plaintiff be afforded reasonable rights of access to the minor child Carlene
Dicks.
6. That plaintiff be and is hereby ordered to pay maintenance for the minor child
Carlene Dicks in the amount claimed by defendant as amended in defendant’s
Plea, the amount to be paid during holidays and whilst the minor child is resident
with defendant and until such time as Carlene shall have completed her secondary
schooling and reached the age of majority or becomes self- supporting.
7. That plaintiff shall pay all necessary school fees, levies and other incidental costs for
purposes of the schooling of Carlene, the parties to this action being agreed that it is in
the best interests of Carlene, that she be enrolled at a suitable boarding school such as
Watershed College or such similar institution in Zimbabwe as soon as reasonably
practicable. Pursuant thereto, plaintiff shall be responsible for the payment of all
necessary school uniforms, sporting equipment, stationery and other school material
for Carlene in respect of such school including reasonable pocket money and expenses
required during term times.
8. That plaintiff shall continue to retain Carlene on his Medical Aid Scheme and shall
forthwith pay any shortfall that might arise in respect of any necessary medical
attention to Carlene.
9. That defendant shall be responsible for the costs of maintenance for Shane on the
occasions when Shane might reside with defendant in Zimbabwe, it being recorded that
plaintiff has been and shall continue to be solely responsible for the maintenance and
education of Shane who, it is recorded, is enrolled at school in the Republic of South
Africa.
10. Plaintiff shall contribute the sum of $60,000.00 maintenance per month to the
defendant until such time as defendant dies or remarries whichever is sooner and
further subject to a variation of maintenance on good cause shown in accordance with
the Maintenance Act.
11. The parties shall forthwith make available to one another, copies of any school reports
concerning the minor children of the marriage and shall do all that is reasonable to
facilitate and ensure meaningful and reasonable access for the minor children to
contact their parents through telephone and e-mail and the like.”
The above was signed for by the parties’ respective legal practitioners on 12 February
2007.
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Thereafter the parties continued negotiating over the outstanding issues. Several meetings
were held before GUVAVA J in the period 31 July to 2009 to 8 January 2010 in an effort to
reach settlement. On 8 January 2010 a final pre-trial conference was held after which a joint
pre-trial conference minute was drafted and agreed upon by the parties. The joint pre-trial
conference minute shows that the parties agreed that:-
1. The marriage relationship had irretrievably broken down
2. Plaintiff will have custody of the minor child SHAYNE SYDNEY DICKS born on 3
December 1993.
3. Plaintiff will meet all of the reasonable costs of maintaining the said minor child, and
those of the adult child CARLENE DICKS born on 29 December 1991.
4. Plaintiff presently pays US$350,00 per month to defendant by way of agreed interim
maintenance and plaintiff and defendant have further agreed that post-divorce, plaintiff
will maintain defendant as a beneficiary to a recognized local Medical Aid Society
until she obtains employment offering same as a benefit.
5. Subject to the outstanding trial issues, plaintiff and defendant will otherwise be
declared sole respective owners of such other matrimonial assets as are presently
registered in their respective names or as are currently in the possession or control of
each of them respectively.
6. Plaintiff undertakes a contribution to defendant’s attorney/client costs of suit in the
event of an out of court settlement.”
During that same pre-trial conference issues referred for trial were stated as:-
1. What order, if any, should be made in respect of the provision by plaintiff for
defendant of transport and residential accommodation post-divorce?
2. What order, if any, should be made in respect of the provision by plaintiff of additional
post-divorce maintenance for defendant? (in addition to the maintenance presently in
place in terms of Admission 4..)
3. Costs of suit.
Due to the length of time it has taken for the matter to come to trial certain aspects of the
claim and counter claim have been overtaken by events. During that period parties were
making efforts to resolve areas of dispute hence agreements on some of the aspects as evident
from the agreements referred to above.
The children, who were very young at the inception of the proceedings, have now grown.
Carlene is now a major whilst Shane is now about 17 years old. From the evidence adduced in
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court it appears that whereas at the inception of the action, plaintiff was doing well in his
business venture that does not seem to be so now. It is common cause that plaintiff was a
successful business man who operated two companies that are said to now be defunct, namely,
Pro-Weld Engineering (Pvt) Ltd and Outrigger Transport CC. Pro-weld operated from
Zimbabwe whilst Outrigger operated from South Africa. In their evidence in court the parties
concentrated on aspects pertaining to:
1. The sharing of immovable property; and
2. Post-divorce maintenance for defendant including her claim for a motor vehicle.
The basic considerations in resolving the above issues are provided for in s 7 of the
Matrimonial Causes Act, [Cap 5:13]. Section 7(1) of that Act states that:-
“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-
(a) the division of, apportionment or distribution of the assets of the spouses including an
order that any asset be transferred from one spouse to the other;
(b) the payment of maintenance, whether by way of a lump sum or by way of periodical
payments, in favour of one or other of the spouses or any child of the marriage.”
In deciding on the issues court is enjoined to “..endeavour 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 a position they would have been in had a normal marriage relationship continued
between the spouses.”
Section 7(4) of the said Act provides that:-
“In making an order in terms of subs (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 or 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 contributions 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;
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(f) the value to either of the spouses or 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 endeavour 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 parties.”
In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court enunciated a three
tier approach in the division of matrimonial assets. This involves categorizing the assets as
‘hers’, ‘his’ and ‘theirs’. After allocating each what is ‘hers’ or ‘his’ the remaining category of
‘theirs’ would then be shared. If ‘theirs’ leaves one party in a worse of situation then the court
is empowered to take from one spouse’s share and give it to the other. In that exercise it has
been said that consideration of relevant factors that are not easily quantifiable in terms of
money is invariably a theoretical exercise for which the courts are indubitably imbued with a
wide discretion. In the exercise of that wide discretion the question is what would be a fair and
just distribution of the matrimonial estate? (see Ncube v Ncube 1993 (1) ZLR 93 (S) )
In terms of the joint pre-trial conference minute the immovable property being
seriously contested is the Westgate Matrimonial house. The Chishawasha Stands were not part
of the minutes and in any case it is clear that they were acquired many years after the parties
were no longer living together and have since been disposed off. The same applies to the
remaining property in South Africa. This property, known as the Donnington property was
acquired several years after the parties had ceased living together. The defendant’s
contribution both direct and indirect in respect of these properties was almost none. These
properties are clearly plaintiff’s and as such would be placed in the ‘his’ category. There was
apparently no immovable property registered in defendant’s name for which we can refer to as
‘hers’. As regards the category of ‘theirs’, the immovable property acquired when they were
living together, that is the Westgate property was registered in plaintiff’s name. The Westgate
property was admittedly the matrimonial home. The defendant’s contribution was mostly
indirect. It is not disputed that the property was registered in plaintiff’s name and that it was
paid for by plaintiff through bond repayments from his earnings from his employment with
Pro-weld Engineering Pvt Ltd. As the sole matrimonial home as at the time of separation it is
only fair that defendant be accorded a share thereof.
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On the Westgate property plaintiff offered a 50% share to defendant. The defendant, on
the other hand, asked for a 100% share in the Westgate property. It is my view that taking into
account the defendant’s contributions both direct and indirect as a wife she deserves a fair
share. I am however of the view that such a share cannot be the entire value of the property.
The defendant argued her case for a 100% share on the basis that plaintiff had other properties.
As was shown during the trial, plaintiff’s businesses have fallen on hard times. The only
property remaining beside the matrimonial home is the Donnigton property which is under
mortgage bond. That property was acquired after separation and should be considered. The
defendant not having contributed anything towards its purchase should logically not expect
much from this property. I am of the firm view that a sharing of the matrimonial home in equal
shares would meet the justice of this case.
Maintenance
The issue of post divorce maintenance requires justification. The defendant is about 44
years old. The evidence led showed that she had worked at some time in the past before and
during marriage. At the time of trial she said she was working on a temporal basis. Whilst it is
true that she is not highly qualified, she is still able to get employment. She must thus not
expect to be maintained for life. (See Chiomba Chiomba 1992(2) ZLR 197(SC))
In Kangai v Kangai HH 52/07 GOWORA J remarked that-
“A woman who has been divorced is no longer entitled as of right to be maintained by
her former husband until her remarriage or death. Where the woman is young and had
worked before the marriage, and is thus in a position to support herself, where there are
no minor children, she will not be awarded maintenance. If she had given up her job to
look after the family she will be awarded maintenance for a short time to allow her
time to get back on her feet. Where the divorced woman is middle aged she will be
given maintenance for a period long enough to allow her to be trained or retrained. On
the other hand elderly women who cannot be trained or remarried are entitled to
permanent maintenance. See Chiomba v Chiomba. 1992 (2) ZLR 197”
I fully associate myself with the above remarks.
In casu the defendant cannot be said to be elderly at all. She is capable of being
employed or remarrying. As already alluded to above she has been employed before and she
can still get employed. The parties stopped living together as husband and wife in the year
2002 and since then defendant has been alive to the fact of an impending divorce and the need
to find sources of income for her own survival. She is some one who has been receiving
maintenance pending divorce since January 2010, that period to now must surely have been
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adequate for her to reorganize her life. She cannot expect to continue receiving maintenance
for long. I am of the view that maintenance for a further period of 4 months should be
adequate in the circumstances of this case.
The plaintiff pleaded incapacity to continue paying maintenance due to the fact that the
companies he worked for and from where he earned his income have since been liquidated. To
buttress his position he alluded to the fact that he has in fact fallen in arrears on the interim
maintenance due to those changed circumstances. I am however of the view that he should
nevertheless be saddled with a few more months of paying maintenance so as to give
defendant opportunity to re adjust to the realities of her new situation in terms of securing
employment or any other sources of earning a living.
Another aspect pertains to whether plaintiff should provide defendant with a motor
vehicle of the value of about 5000 United States dollars. As with maintenance for long, I am of
the view that this is not possible. The motor vehicles that defendant pointed to and even those
she had used whilst in the marriage were shown to have been company motor vehicles. Now
that those companies have gone down under it may not be feasible for her to expect plaintiff to
provide her a motor vehicle post divorce. Whilst this court is enjoined to try as far as is
reasonable and practicable to ensure that the parties’ standard of living is maintained where, as
in this case, the breadwinner’s source of income has dried up or shrunk it is no longer feasible
to expect the parties to maintain the same standard of living. The parties must accept the loss
of some amenities of life they may have gotten used to. In the circumstances of this case the
companies that owned the motor vehicles are defunct and so there is no motor vehicle to
expect.
Accordingly it is hereby ordered that-
1. A decree of divorce be and is hereby granted.
2. The defendant is hereby awarded a 50% share of the value of the Matrimonial Property
being Stand 1417 Bluffhill Township of Stand 1644 Bluffhill Township of Stand 1180
Bluffhill Township also known as 1417 Sugar Bush Avenue, Westgate, Bluffhill,
Harare.
3. The parties shall agree on the value of the property within 14 days of the date of this
order failure of which they shall appoint a mutually agreed evaluator to evaluate the
property within 21 days of the date of this order.
Should the parties fail to agree on an evaluator the registrar of the High Court shall be
and is hereby directed to appoint an independent evaluator from his panel of
independent evaluators to evaluate the property.
The plaintiff shall meet the costs of such evaluation.
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4. The plaintiff shall pay off defendant her share of the value within six (6) months of the
date of receipt of the evaluation report.
5. The plaintiff shall pay maintenance to defendant in the sum of 350 United States
dollars per month for the months of April 2011, May 2011, June 2011 and July 2011
thereafter the maintenance shall be discharged. Plaintiff will maintain defendant as a
beneficiary to a recognized local Medical Aid Society until she obtains employment
offering same as a benefit.
6. The plaintiff and defendant are hereby declared to be sole respective owners of such
other matrimonial assets as are presently registered in their respective names or are
currently in the possession or control of each of them respectively.
7. The plaintiff is hereby awarded custody of the minor child, Shayne Sydney Dicks born
on 3 December 1993.
8. Defendant is hereby granted reasonable rights of access to the minor child upon notice
to plaintiff.
9. The defendant shall be responsible for the costs of maintenance for Shane on the
occasions when Shane might reside with defendant in Zimbabwe, it being recorded that
plaintiff has been and shall continue to be solely responsible for the maintenance and
education of Shane who, it is recorded, is enrolled at school in the Republic of South
Africa.
10. Each party to bear their own costs of suit.
Mutamangira & Associates, plaintiff’s legal practitioners
Granger & Harvey, defendant’s legal practitioners