Mellania Makore v Thomu Zarura

### Preamble
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HH295-2012
HC 10168/02
MELLANIA MAKORE
versus
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MELLANIA MAKORE
versus
THOMU ZARURA

HIGH COURT OF ZIMBABWE
UCHENA J
HARARE 5, 6 and 19 July 2012

Civil Trial

J. R. Tsivama for the Plaintiff
M. T. Chiwaridzo for the defendant

UCHENA J: The plaintiff and the defendant were customarily married to each other in 1980. They on 24 October 1989 solemnized their marriage in terms of the Marriage Act then ([Cap 37]now [Cap 5.11]). They were blessed with three children. Two of them are now adults. The youngest Nattle born on 24 February 1997, is the only minor child of the plaintiff and defendant’s marriage.

The partie’s marriage has irretrievably broken down. It is common cause that they stayed together as husband and wife till September 1996, when the plaintiff left the matrimonial home because the defendant had threatened to kill her. She was then four months pregnant. The defendant had disputed responsibility for that pregnancy and continued to do so till the hearing of this case, when he surprisingly dropped the issue of Nattle’s paternity, indicating that he is her father. He then offered to maintain her at the rate of US$40-00 per month, which the plaintiff accepted, effectively closing the issue on Nattle’s paternity and maintenance.

The only issues which remained for determination by the court are on the distribution of the parties’ movable property and immovable property stand No 12809 Chitungwiza, commonly known as No 5 Shava Road, Zengeza 5 Chitungwiza. It is common cause that the immovable property is registered at the council offices in the defendant’s name. It on allocation had a three roomed house, and had at the time the plaintiff left, been developed to an eight roomed house. It is not in dispute that the plaintiff started the business of cross boarder trading in 1992. The extension of the house started the following year in 1993. All the receipts for the extension expenses produced in court, are in the plaintiff’s name.

The only dispute is whether or not the defendant contributed in the extension of the house. The plaintiff said he did not. She told the court that the defendant was earning very little as a corporal in the Army. His salary was not enough to see them through each month. She sought his permission to start the cross border trading. He permitted her, after which she borrowed money from her brother to capitalize her business. She realised that she was making enough profit. She started extending the house in 1993 and had almost completed it when she left in 1996. The defendant did not make any further developments after she left. She thus claimed 80% of the value of the immovable property.

The defendant said he contributed towards the development of the immovable property and explained that the receipts were in the plaintiff’s name because he would give her money to go and buy building materials as he would be at work while she would be at home. He initially said he provided all the money used to develop the property, and that plaintiff’s only contribution was in looking after the house and buying the building materials with his money. He thus claimed 80% of the value of the house saying the plaintiff’s contribution entitled her to only 20% of the value of the immovable property. He later changed and conceded that the plaintiff contributed financial now saying they were pulling their resources together for the development of the immovable property. He then claimed he was entitled to 55% of the value of the immovable property while the plaintiff would be entitled to 45%.

An assessment of the evidence of the parties reveals that the plaintiff’s version is more consistent with the truth for the following reasons;

1. The developments only started after she had started her cross boarder trading business. The defendant had not embarked on any development between 1982 and 1993, tending to confirm that he as explained by the plaintiff had very limited means and lacked interest in developing the immovable property.
2. All the receipts are in the plaintiff’s name, suggesting that the plaintiff funded the extensions.


3. The developments stopped when the plaintiff left the matrimonial home. If the defendant was contributing as he said he was why did he not continue with the developments since very little was left to be done. The fact that he did nothing for the last 16 years means the plaintiff was the one who was developing the immovable property.

4. The defendant agreed that no developments took place for the two week periods of each month while the plaintiff would be in South Africa. This tends to show that the extension were the plaintiff’s project.

5. The defendant bought a Minibus and a car when he was given his package on retiring from the Army. He did not develop the immovable property any further. This proves that he had no interest in the development of the immovable property.

6. His failure to develop the immovable property before the plaintiff started her cross-boarder trading and after she left lends credence to the plaintiff’s version.

It is not in dispute that the property was allocated to the defendant. That entitles him to a share of the value of the property. The plaintiff is also entitled to a share of the undeveloped property over and above her entitlement to the developments. What this court should determine is the level of each party’s share of their movable and immovable property.

In determining the distribution of matrimonial property the court must in terms of section 7 (4) of the Matrimonial Causes Act [Cap 5.13], consider all the circumstances of the case. Section 7 (4) provides as follows;

(4) “In making an order in terms of subsection (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 and 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 contribution 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
(f) the value to either of the spouses or to 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 spouses.”

The use of the word “including” before the factors mention in section 7 (4) (a) to (g) means that these factors are not exhaustive. They are merely some of the factors the court should consider in determining the division, apportionment or distribution of the assets of the spouses or payment of maintenance by one spouse to the other or by one spouse in favour of any child of the marriage. The court is thus entitled to consider any other circumstances of the case which is relevant and has a bearing in determining the issues under section 7 (1) of the Act including the factors mentioned in section 7 (4) (a) to (g).

The circumstances of this case, includes the defendant’s stubborn refusal to maintain his children, and leaving the burden of doing so to the plaintiff. The defendant’s matrimonial misconduct went as far as defying a maintenance order, granted by the Magistrate’s Court, opting to be imprisoned instead of paying maintenance. He for unexplained reasons denied Nattle’s paternity only to surprisingly admit it at the trial without putting up any fight. His previous denials where therefore not serious and must have been aimed at vexing the plaintiff and burdening her with the sole responsibility of looking after that child. The defendant through threats of violence chased the plaintiff from the matrimonial home, forcing her to look for alternative accommodation while he had the benefit of staying in the matrimonial home, and collecting rentals from tenants for sixteen years. If the marriage had continued normally both parties would have benefited from those rentals. The plaintiff must be credited with at least half or the rentals the defendant collected and used during the 16 years of their separation. This must be subtracted from what should have been awarded to the defendant as his share of the value of the matrimonial home. The plaintiff estimated the rentals to be about US$600-00 per month. The defendant played the figure down to US$ 220-00 per month. He claimed that he is using 2 rooms and four rooms are being used by tenants while two rooms are vacant. It is improbable that two rooms could have remained vacant for 16 years. The defendant said he is charging US$60—00 per room per month. The total rentals he collects per month would thus be US$240-00. The fact that he gave an incorrect total of the rentals he collects per month plus the improbability of two rooms having remained vacant for 16 years takes credence from the defendant’s evidence. While the exact amount the defendant collected can not be established it is clear that the defendant immensely benefited from the rentals he collected from tenants over a period of 16 years. The plaintiff must thus get a substantial credit to her share of the matrimonial home.

The defendant was paid a pension gratuity by the Zimbabwe National Army which he used on his own while his wife and children who were entitled to benefit from it were suffering. His selfish use of resources from which his wife and children should have benefited, should decrease his share of the value of the matrimonial home, and increase that of the plaintiff.

Mr Chiwaridzo for the defendant conceded that even if each of the parties were entitled to 50% of the value of the immovable property these circumstances would on their own have heavily tilted the scale in favour of the plaintiff to an extend of entitling her to the 80% she claimed. I have already found that the plaintiff solely contributed towards the extension of the matrimonial home. She has thus proved that she is entitled to the 80% she claimed.

On the movable property the plaintiff admitted that she sold the property she took with her when she left the matrimonial home. She said she sold them to cover her maternity expenses towards the delivery of Nattle, whose pregnancy the defendant had disputed. She said that property was hers which she had acquired from the proceeds of her cross border trading. The defendant had argued that all of their movable property must be accounted for before an equitable distribution can be ordered. In view of the defendant’s conduct already explained above, the plaintiff can not be blamed for selling her property to finance the delivery of a child he had fathered. She was infact paying expenses he should have met if he was a responsible father. I am satisfied that the parties should share the remaining property, as the plaintiff admits that they jointly acquired it. The plaintiff suggested that she be awarded a 3 plate stove, kitchen unit and 4 piece lounge suit, while the defendant gets a radio, black and white television and wardrobe. I am satisfied that is a fair and equitable distribution of the parties’ movable property.

The plaintiff sought costs of suit against the defendant. The plaintiff has stopped her cross border trading. The defendant is a pensioner and is currently receiving rentals from the matrimonial home. He has an income while the plaintiff does not have. It is fair that the defendant be ordered to pay her costs of suit. Costs should in fact follow the result of the trial. The successful party should recover his or her costs from the loosing party. In this case, the plaintiff succeeded in proving her claim against the defendant. He must therefore pay her costs of suit.

In the result it is ordered that;

1. A decree of divorce be and is hereby granted.
2. The plaintiff is awarded custody of the minor child Nattle born on 24 February 1997.
3. The defendant shall have access to the minor child during school holidays.
4. The defendant shall pay maintenance for Nattle at the rate of US$40-00 per month until she attains the age of majority, or becomes self supporting, whichever occurs first.
5. The matrimonial home stand No 12809 Chitungwiza, commonly known as No 5 Shava Road, Zengeza 5 Chitungwiza, shall within two months of the date of this order be valued by a valuer to be appointed by the Master from the Master’s list of valuers, and be sold within six months by an Estate Agent to be appointed by the Master.

   (a) The parties shall equally contribute towards the costs of valuation and sale of the immovable property.
   (b) The proceeds of the sale of the immovable property shall be shared at the rate of 80% for the plaintiff and 20% for the defendant.

6. The movable property of the parties is distributed as follows; the plaintiff is awarded a 3 plate stove, kitchen unit and 4 piece lounge suit. The defendant is awarded a radio, black and white television and wardrobe.

7. The defendant shall pay the plaintiff’s costs of suit.

Messrs Sawyer and Mkushi Plaintiff’s Legal Practitioners.

Harare Legal Projects Centre Defendant’s Legal Practitioners.
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