Ephraim Kensington Chitofu v Guest Chitofu (nee Ngorima)

### Preamble
1
HH265/13
HC 12167/12
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EPHRAIM KENSINGTON CHITOFU

versus

GUEST CHITOFU (NEE NGORIMA)

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE 27, 28 June, 12 July & 5 September 2013.

Civil Trial

Miss B Musandirire, for the plaintiff.

Mr J. Mutonono, for the defendant till 28 June 2013.

UCHENA J.   The plaintiff and the defendant   married each other at Chipinge on 25 January 2002. They were married in terms of the Marriages Act [Cap 5.11]. In her evidence the defendant told the court that they initially contracted a customary union in 1990, which they upgraded by entering into the subsequent civil marriage.

The plaintiff seeks a decree of divorce and ancillary relief on the grounds that their marriage has irretrievably broken down.

The parties led evidence from which the following facts became common cause;

.That their marriage has irretrievably broken down.

That custody of the two minor children Rachel Chitofu born on 23 March 2002, and Michelle Chitofu born on 15 December 2006 be awarded to the defendant with the plaintiff exercising access rights during school holidays.

That plaintiff shall continue paying school fees for their adult child Joyce Chitofu born on 15 May 1995 till she completes her tertiary education.

That the defendant shall have all the movable property they acquired during the marriage.

That the defendant shall be awarded house No 449 ZBC Ngangu Township Chimanimani though she said she would in addition want a share in No 9 Norwich Avenue Eastlea as she contributed towards its improvement by building a cottage and a garage.

That the plaintiff shall be awarded No 9 Norwich Avenue Eastlea, but can only take exclusive occupation of it after 31 December 2019, as the defendant shall have a limited usufruct over that house until 31 December 2019.

The defendant has reservations over their jointly occupying No 9 Norwich Avenue until 31 December 2019 as she fears that the plaintiff may bring his girlfriend who she believes may torture her as she sued her for adultery. She told the court that the plaintiff assaulted her when she went to his work place after he had left the matrimonial home. The defendant’s fear is reasonable. It is obvious that the parties can not peacefully live together after the granting of a decree of divorce. The fact that the plaintiff assaulted her after he left the matrimonial home justifies her fear. The parties had prepared a draft consent paper which their legal practitioners referred to, and the parties agreed to its terms but it was not subsequently produced. As it was not produced I will not rely on it but I will rely on what the parties said they have agreed on.

The defendants legal practitioner, renounced agency on 28 June 2013 when the court was about to hear the parties addresses. The defendant confirmed that she had had irreconcilable differences with her legal practitioner. She told the court that she wanted the case postponed for two weeks so that she could seek the services of another legal practitioner. The case was postponed to 12 July 2013 for the parties to address the court.

The defendant did not come to court on 12 July 2013. In view of her being in default I heard the plaintiff’s closing address and reserved judgment. I took the view that a party’s default after the end of the trial does not justify a default judgment as the parties evidence was on record. I was also aware that a part can not be compelled to address the court. This however left me with the need to evaluate evidence in circumstances where this may not have been necessary if the parties had finally placed before me their consent paper and had addressed me on the order to be granted.

The areas which call for careful consideration are,

Whether or not the defendant is entitled to a share of No 9 Norwich Avenue Eastlea and

Whether the parties can co-exist at No 9 Norwich Avenue after the granting of the decree of divorce.

The issue of the parties, staying together at No 9 Norwich Avenue, after the granting of a decree of divorce, has already been considered above. It is undesirable for parties to live under the same roof after divorce.  In this case there is a history of violence between the parties. Tempers are likely to be flared, by the bringing to the premises, of the plaintiff’s girlfriend or the defendant’s  future partner. The defendant has sued the plaintiff’s girlfriend for adultery. It would be expecting too much to expect the defendant to live with her adversary under the same roof. The defendant should be allowed to exclusively stay at No 9 Norwich Avenue until the youngest child completes her primary education as confirmed by both parties in their evidence.  I find that the plaintiff should not stay at No 9 Norwich Avenue until after the defendant’s temporary usufruct expires on 31 December 2019.

It is common cause that the plaintiff was married to the late Laina Hama before he married the defendant.  No 9 Norwich Avenue was purchased by the plaintiff during his marriage to Laina. He told the court that she was a house wife and that she did not contribute directly towards the purchase of the house. The estate of the late Laina was not registered. It is not clear whether or not it would have a claim against No 9 Norwich Avenue. It however complicates the defendant’s claim to that property. She did not indirectly contribute towards that property during Laina’s lifetime. There is a possibility of Laina’s estate having a claim to that property or the plaintiff being entitled to an inheritance from his late wife’s share which would not be subject to distribution. The defendant can however claim from the plaintiff’s share and for her direct and indirect contributions.  Her contribution was indirect until she embarked on the improvements.  Part of the improvements included the building of two rooms of the cottage without the approval of the local authority. That type of development does not improve the value of the property as it is an illegal structure she, built according to her own testimony without the plaintiff’s consent. The defendant estimated the improvements at US$25000-00 and the value of No 9 Norwich Avenue at US$100000-00. In view of the illegality of part of the development her entitlement to a share of No 9 Norwich Avenue must be reduced. She told the court that her estimate was a mere estimate and should be considered as such.  Her entitlement must also be viewed from her being awarded No 449 ZBC Ngangu Township Chimanimani  which, was purchased by the plaintiff during the marriage. She said they were using their incomes together even though her income was far less than the plaintiff’s. That immovable property and all the movables have been awarded to her. That must have the effect of reducing her claim to No 9 Norwich Avenue. After considering the above I am satisfied that the defendant should be awarded 10% of the value of No 9 Norwich Avenue.

In the result it is ordered;

That a decree of divorce be and is hereby granted.

That custody of the minor children Rachel Chitofu born on 15 March 2002 and Michelle Chitofu born on 15 December 2006, be and is hereby awarded to the defendant.

The plaintiff shall have access to the minor children during school holidays.

That plaintiff shall continue paying school fees for their adult child Joyce Chitofu born on 15 May 1995 till she completes her tertiary education.

The defendant is awarded all the movable property acquired by the parties during the subsistence of the marriage.

The defendant is awarded No 449 Ngangu Township Chimanimani.

The defendant is granted a limited usufruct to exclusively use and stay at No 9 Norwich Avenue Eastlea till the 31st of December 2019, after which she shall give the plaintiff vacant possession of the property.

No 9 Norwich Avenue Eastlea shall be shared at the rate of 90% for the plaintiff and 10% for the defendant.

The property shall be valued by an Estate Agent to be appointed by the Registrar within 14 days of this order from his register of Estate Agents

The Estate Agent shall value the property within 21 days of the date of his appointment.

The plaintiff shall buy out the defendant’s 10% share within 12 months of the date of the valuation report.

In the event of the plaintiff failing to buy out the defendant’s share in No 9 Norwich in terms of 8 (c) above the property shall be sold and the proceeds be shared at the rates indicated in 8 above.

The parties shall contribute towards the Estate Agent’s valuation fees and commission at the rates equivalent to their shares in the property.

9.  Each party shall bear his or her own costs.

Legal Aid Directorate, plaintiff’s legal practitioners.

Messrs Nyikadzino, Simango & Associates, defendant’s legal practitioners till 28 June 2013.