Nothisa Nyamhinda (née Nyoni) v Robson Nyamhinda

### Preamble
1
HH 392-2012
HC 440/09
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NOTHISA NYAMHINDA (nee NYONI)

versus

ROBSON NYAMHINDA

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 12, 13 July and 18 October 2012

FAMILY LAW COURT

Trial Cause

G C Manyurureni, for the plaintiff

S Mushonga, for the defendant

MAWADZE J:  The plaintiff and defendant who are wife and husband respectively are Zimbabwean citizens and domiciled in Zimbabwe. They however married each other in Zambia on 21 November 1967 under the provisions of the Marriage Ordinance, Zambia. This court has jurisdiction to deal with the divorce proceedings instituted by the plaintiff.

The plaintiff on 2 February 2009 issued summons out of this court seeking a decree of divorce and the division of the assets of the parties on the basis of irretrievable breakdown of the marriage.

Both parties gave a brief insight into the history of how they left the then Rhodesia (now Zimbabwe) and settled in Zambia and later came back to Zimbabwe. The defendant after completing his ‘O’ Level in 1961 left Zimbabwe for Zambia where he was employed by Singer Sewing Machine. The defendant enrolled at a Zambian College for a Business and Accounts diploma and he became an Acting Manager. Meanwhile the plaintiff had also left Zimbabwe and was undergoing a nursing course in Zambia which she completed in 1967. The plaintiff had met the defendant in 1966 in Zambia after which the parties solemnised their marriage in Ndola, Zambia in 1967. The marriage was blessed with three children in Zambia who are now all majors and the fourth and last born child, also a major was born in 1982 after the parties had relocated to Zimbabwe in 1978-79.

The parties were not in agreement as to the exact date they returned to Zimbabwe. The plaintiff said it was in 1979 but the defendant indicated that he first came with the plaintiff and the children to Zimbabwe in 1978 and he permanently relocated to Zimbabwe in 1979. The parties settled initially in the defendant’s rural home in Chiweshe communal lands, Mashonaland Central. The parties are also not in agreement as regards the sequence of events in relation to their employment history back in Zimbabwe in 1980.

The plaintiff indicated that she was employed as a State Registered Nurse at Bindura General Hospital in 1981 and that the defendant was then unemployed. The defendant on the other hand indicated that he was employed in 1980 in Bindura at Bindura Darwin Cooperation as a chief clerk after which he later invited the plaintiff who was in Chiweshe rural home to relocate to Bindura where she secured a nursing job. The last born child was then born in 1982. Both parties indicated that their marriage was a happy one in Zambia and later briefly when they relocated to Zimbabwe.

The plaintiff in her declaration outlined the reasons for the breakdown of the marriage relationship between the plaintiff and the defendant. The plaintiff stated that the parties have been living separately for more than five years. They have not been sharing conjugal rights for all that period and have not been consulting each other in any manner. According to the plaintiff the defendant has been a delinquent husband who has treated her with cruelty and subjected her to incessant verbal abuse. The plaintiff said as a result she has lost all the love and affection for the defendant. According to the plaintiff in her declaration the parties have since shared the movable property. She said the parties only acquired an immovable property, a house, number 22/43 Musvosvi Street, Chipadze Township in Bindura. The plaintiff wants this immovable property to be declared as her sole and exclusive property.

In his plea the defendant conceded that the marriage relationship between the parties has irretrievably broken down. The defendant however blamed the plaintiff whom he said deserted the matrimonial home in 1989 to date and that since then the parties have not shared bed and board. In his plea the defendant agreed that the parties have since shared the movable property but disagreed with the fact that the parties own a single immovable property. In addition to the house in Bindura No. 22/43 the defendant said the parties owned two other houses being No 752 Senga, in Gweru and No 4885 Magwegwe West in Bulawayo. The defendant in his plea indicated that he had since disposed of the Bindura house No 22/43 and would want the house in Gweru No 752 Senga to be declared as the plaintiff’s sole and exclusive property and the house in Bulawayo No 4885 Magwegwe West to be declared his sole and exclusive property.

At the pre-trial conference the following issues were referred to trial for resolution:

Whether the immovable property number 22/43 Musvosvi Street, Chipadze, Bindura is still available for equitable distribution between the parties hereto;

Whether the immovable properties in Gweru and Bulawayo are matrimonial property; and

What then would be the equitable redistribution of the matrimonial property in this case.

The plaintiff and the defendant gave evidence during the trial. The plaintiff called her young sister Agnes Gudo who gave evidence only in relation to the immovable property No 4885 Magwegwe West Bulawayo which she claims to be her house.

During the trial a total of six exhibits were produced. I shall at this point briefly comment on each exhibit for purposes of easy reference later in the judgment. The exhibits are as follows:

Exhibit 1 – marriage’s certificate number 609/67 which shows that this marriage was solemnised in Zambia on 16 November 1967. I have already explained the basis upon which this court has jurisdiction in this matter.

Exhibit 2 (a) – (c) are documents produced by the plaintiff in relation to house number 752 Senga, Gweru.

Exhibit 2 (a) is a letter from Cabs Building Society to the plaintiff dated 31 March 2001 indicating that the plaintiff had fully paid the mortgage loan given to her by Cabs.

Exhibit 2 (b) is a schedule of loan repayments to Cabs dating back to 1998.

Exhibit 2 (c) is a Deed of Transfer for House No 752 Senga Gweru in the plaintiff’s name.

Exhibit 3 is a document dated 26 May 2009 signed by the defendant, Agnes Gudo and other witnesses and it relates to the property in Bulawayo No 4885 Magwegwe West. I shall refer later to this document when dealing with the dispute in relation to ownership of this property in Bulawayo.

Exhibit 4 is a letter dated 7 October 2007 from GMP Real Estate on behalf of Bindura Municipality to the defendant making an offer to the defendant to purchase the property in Bindura No 22/43 Chipadze Township in Bindura.

Exhibit 5 (a) – (d) – are documents produced by the defendant as proof of his employment history. This was in a bid to rebut the plaintiff’s evidence that when they relocated to Zimbabwe in 1979 the defendant was not employed most of the time. The exhibits are;

Exhibit 5 (a) – dated 30 March 1982 shows that the defendant was employed by Bindura Darwin Cooperative Union as a Supervisor between 1980 and 1982.

Exhibit 5 (b) – dated 4 April 1990 shows that the defendant was employed by Mashonaland Farmers Co-op Ltd as a clerk from 12 March 1986 to 20 January 1990.

Exhibit 5 (c) - is the employee’s tax certificate in the defendant’s name from Gulliver for the period 21 September 1991 to 31 March 1992. It was produced as proof of the defendant’s employment at Gulliver during their period.

Exhibit 5 (d) – is a certificate of service in the defendant’s name from Glengrey Estates Glendale dated 31 January 2001 showing that the defendant was employed by their company as a light motor vehicle driver for eight years.

Exhibit 5 E - are receipts of payment produced by the defendant as proof of payment the defendant made to Bindura Municipality for rentals for the house No 22/43 Bindura. The defendant produced four receipts showing various amounts and they cover period 1996 to 2001.

Exhibit 6 is an agreement of sale between the defendant and one Weston Chidavaenzi dated 11 November 2007 in respect of House No 22/43 Musvosvi Street, Chipadze Township, Bindura. It shows that the defendant sold the house in question to Weston Chidavaenzi for Zimbabwean $650 million.

The fact that the marriage relationship between the parties has broken down to such an extent that it is beyond resuscitation is common cause between the parties. I have already alluded to the reasons for the breakdown of the marriage relationship given by the plaintiff and the defendant. It is not in issue that the parties have been living apart since 1989, a period of about 23 years. The parties are agreed that they have not been sharing conjugal rights for all that period. They have not been communicating or consulting each other for that long. In fact they are agreed that they have lived virtually separate lives for 23 years. It is therefore clear that the parties have lost love and affection for each other. The plaintiff since 1989 has been based in Gweru and the defendant in Bindura and later Chiweshe communal lands. It is therefore clear that the parties, for reasons started are consenting to divorce and it may not be necessary for this court to deal in detail with their evidence in that regard solely for purposes of ascribing fault for the breakdown of the marriage. See Ncube  v Ncube 1993 (1) ZLR 39. In the premise a decree of divorce should be granted.

As already stated there are no minor children born of the marriage. All their four children have attained majority status and self-supporting.

I have indicated that the parties have already shared the movable property. Neither party is claiming spousal maintenance from the other. This is understandable as the plaintiff retired on 14 May 2004 and the defendant has since settled in his rural home in Chiweshe.

The issues which fall for determination in this matter are as follows:

Whether the house in Bindura No 22/43 Musvosvi Street, Chipadze Township in Bindura (hereinafter the Bindura property) is still available;

Whether the house in Gweru No 752 Senga Township Gweru (hereinafter the Gweru property) should remain as the plaintiff’s sole and exclusive property; and

Whether the house in Bulawayo No 4885 Magwegwe West Bulawayo (hereinafter Bulawayo property) is an asset of the parties and if so how it should be distributed.

I now turn to deal with these issues.

The Bindura Property

It is common cause that the Bindura property was the matrimonial home of the parties since the period they relocated to Zimbabwe and settled in Bindura. The parties are agreed that in 1980 when they settled in Bindura they lived as lodgers sharing a house with the defendant’s nephew. Thereafter the parties moved into council rented house No 238 Jumbe Street in Bindura which had no electricity. About a year later the parties moved to the Bindura property, a three roomed house with an outside kitchen and it had electricity. They were then offered the Bindura property by Bindura Municipality on a rent to buy basis. The parties lived in the Bindura house until the plaintiff’s departure in 1989. It was however clear in the parties’ evidence that they did not agree on how the Bindura property was acquired, the roles played by each party and the current status of the house.

According to the plaintiff she was offered the Bindura property in 1981 in the absence of the defendant. The plaintiff said she was helped by her seniors at work to secure the property. She said the Bindura Municipality in 1982 – 83 offered her as a sitting tenant ownership of the property on a rent to buy basis and she commenced to make payments thereafter. The plaintiff said the Bindura property was in her name and that she only later learnt in 1989 after she had left for Gweru that the defendant had put the Bindura property in his name. The plaintiff was not able to substantiate her evidence in relation to the Bindura property with any documentary evidence. She said the defendant destroyed all the documents in her name.

In her evidence in chief the plaintiff said the defendant did not contribute anything towards the purchase of the Bindura property. She said the defendant during that period was not employed most of the times and that during the time he was employed he would squander his money without supporting the family which prompted her to leave the defendant in 1989. The plaintiff conceded in her evidence in chief that she was advised by the Bindura Municipality before the trial that the Bindura property was sold by the defendant. She however said she was not sure if the property has been transferred into the seller’s name. The plaintiff said she successful sought an interdict in the Bindura Magistrates’ court to stop the transfer of the property to the seller.

The defendant on the other hand testified that he played a key role in the acquisition of the Bindura property. He said when he commenced work in Bindura in 1980 he obtained a lodger’s card for which he paid monthly fees and filed a copy of the marriage certificate after which he was put on the housing waiting list. The defendant said when the house to rent was available No 238 Jumbe Street he was advised and the house was availed to him. The defendant however said he briefly left employment in 1982 and relocated to his rural home. He said in his absence the plaintiff was offered a better house, the Bindura property in 1983 and he later joined the plaintiff. He said they stayed together until 1989 when the plaintiff deserted him. Later he said he received an offer from Bindura Municipality to buy the Bindura property after paying the full purchase price on a rent to buy basis since 1983. He said he bought the Bindura property which was transferred into his name and that in 2007 he sold the Bindura property and relocated to his rural home.

I am satisfied from the evidence that both parties played a significant role in the acquisition of the Bindura property. I am not persuaded by each party’s attempt to either down play or disown the role played by the other party. Both parties agreed that at the time they were offered the Bindura property their marriage was largely blissful. They had the last child in 1982 and only separated in 1989. They both agreed that the Bindura property was offered to them on the strength of their marriage certificate. This explains why their names were both registered against the property. In fact the defendant conceded that he even lied in the agreement of sale of the property when he said the plaintiff had consented to the sale of the property.

It is incorrect as the plaintiff suggested that the defendant was not employed most of the time during the relevant period. Exhibit 5 (a) to (d) clearly shows the defendant’s employment history from 1980 to 2001. In fact the defendant was only not employed between 1983 and 1986. It is therefore true that between 1983 and 1986 the plaintiff paid the rentals for the Bindura property. In the same vein when the plaintiff left Bindura in 1989 the defendant remained paying the rentals for the property until when it was transferred in his name in 2007. Exhibit 5 E clearly shows the payments the defendant made from about 1996 to 2001. It can therefore not be true that the defendant did not pay anything towards the purchase of the Bindura property.

As per exh 4 the defendant on 1 August 2007 was offered by Bindura Municipality through GMP Real Estate the right of first refusal to purchase the Bindura property as the legitimate sitting tenant at a price of Zimbabwe $16 million. The defendant accepted the offer and paid the outstanding amount. While this court may not be able to say with mathematical precision the extent of each party’s contribution, I have no doubt that the parties directly and indirectly contributed in equal measure to the acquisition of the Bindura property.

The next question to answer is whether the Bindura property is available for distribution between the parties in terms of s 7 of the Matrimonial Causes Act [Cap 5:13].

Exhibit 6 the agreement of sale shows that the Bindura property was sold to one Weston Chidavaenzi for Zimbabwean $650 million on 11 November 2007. The plaintiff has conceded to this fact. Under cross examination the defendant conceded that he misrepresented by falsely stating in exh 6 that the plaintiff had consented to the sale of the Bindura property. In fact he said he never advised the plaintiff of the sale as at that time they had long ceased to communicate with each other. Under cross examination the defendant said the application by the plaintiff in Bindura Magistrates court for an interdict to stop the sale and transfer of the Bindura property was akin to closing the stable after the horse had bolted out. The defendant said by then he had sold the house and transfer already effected with the seller taking occupation of the house from 2007 to date, well before the institution of the divorce proceedings on 2 February 2009.

From the evidence led I am satisfied that the Bindura property was also registered in the defendant’s name hence he was able to dispose of the property and the transaction possibly ratified by the Bindura Municipality. Neither of the parties was able to show the nature of the title of the Bindura property. The plaintiff has not meaningfully challenged that the Bindura property has been disposed of and rights, title and interests transferred to a third party.

I am of the view that if the Bindura property was registered in the defendant’s name at the material time in 2007, there was nothing at law to bar the defendant from disposing of this asset. The position of the law as regards the spouses’ rights to property registered in a spouse’s sole name is settled in our law. See Cattle Breeders Farm (Pvt) Ltd v Veldman  (2) 1973 RLR 261, Muzanenhamo & Anor v Katanga 1991 (1) ZLR 182 (S); Maganga v Sakupwanya 1996 (1) ZLR 217 (S); Muswere v Makanza 2004 (2) 262 (H), Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 226.

My finding therefore is that the Bindura property which was registered in the defendant’s name was disposed of by the defendant before the commencement of the divorce proceedings. The Bindura property is therefore no longer an asset of the parties as envisaged in s 7 (1) of the Matrimonial Causes Act [Cap 5:13] and is not available for distribution between the parties. It is also my finding that the plaintiff did not benefit in any manner in the disposal of the Bindura property. The proceeds of the sale were solely to the defendant’s benefit. I am of the view that I am entitled at law to take this fact into account in the process of making a fair and just order in respect of the distribution of other assets of the parties.

The Gweru Property

The plaintiff in her declaration had not included the Gweru property. However from the evidence on record the Gweru property is an asset owned by the plaintiff. It is also common cause that the Gweru property was acquired during the subsistence of the marriage although it was after the parties had separated after 1989. The Gweru property was acquired through the sole effort of the plaintiff. Exhibit 2 (a) shows that the plaintiff obtained mortgage finance from Cabs to purchase the Gweru property and paid back the loan as per ex 2 (b). The Gweru property is registered in the plaintiff’s sole name. It is therefore my finding that the Gweru property falls within the armbit of s 7 (1)(a) of the Matrimonial Causes Act [Cap 5:13] as it is an asset of the parties albeit the plaintiff. The only issue to be resolved is how this asset should be distributed between the parties.

The plaintiff’s position is that the Gweru property be declared as her sole and exclusive property. The defendant’s position on the other hand is that he has no problem with what the plaintiff prefers as long as he is awarded the Bulawayo property. In fact the defendant’s position is tied up to what this court would decide in relation to the Bulawayo property. The defendant conceded that he did not contribute either directly or indirectly in the acquisition of the Gweru property. In fact the defendant said he has never set foot at this property. In view of the evidence that the plaintiff acquired this property on her own after her separation from the defendant and the fact that she paid back the loan on her own account one would be inclined to accede to the plaintiff’s request to be declared the sole and exclusive owner of the Gweru property; a three bedroomed house with a lounge, bathroom, kitchen and toilet. However, the final decision of this court should not only take into account the court’s findings in relation to the Bulawayo property but the findings the court has made in relation to the Bindura property.

The Bulawayo Property

The contention between the parties in relation to the Bulawayo property is whether it is an asset of the parties. The plaintiff’s position is that the Bulawayo property although registered in both the plaintiff’s and defendant’s name belongs to her young sister Agnes Gudo. The defendant has insisted that the Bulawayo property is an asset of the parties. In order to resolve this dispute one has to look at the evidence of the plaintiff and her young sister Agnes Gudo which should be juxtaposed with that of the defendant.

It is common cause that the Bulawayo property was acquired in 1979 from the Bulawayo City Council under the rent to buy scheme. It is also not in dispute that this property is registered in the names of both the plaintiff and the defendant and not Agnes Gudo. In this regard there is therefore prima facie evidence that the Bulawayo property is an asset of the parties. See Kassim v Kassim 1989 (3) ZLR 234 (H) at 237 B-C. This point was succinctly brought home by McNALLY JA in Takafuma v Takafuma 1994 (2) ZLR 103 (S) at 105 H – 106 B in which the learned JUDGE OF APPEAL said:

“The registration of immovable property in terms of the Deeds Registration Act [Cap 39] is not a matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

As already stated the registration of the property in the name of one party raises a presumption in the favour of that party, the presumption being that the party enjoys the sole right and exclusive beneficial ownership of the property. However, the presumption can be rebutted if the contrary is proved.

It was the plaintiff’s testimony that the Bulawayo property was purchased by her sister Agnes Gudo (nee Nyoni). The plaintiff said she agreed to use the parties’ marriage certificate exh 1 to join a scheme in which the Bulawayo City Council offered houses for sale on the basis of rent to buy in 1979. Her evidence which was corroborated by Agnes Gudo was that Agnes Gudo who was single at that time suffered from the legal disability of being a perpetual minor as an unmarried African woman who could not enter into any valid contract on her own account. I have taken judicial notice of the status of African women during that dark era of our history. The plaintiff however said it is Agnes Gudo who fully financed the purchase of the Bulawayo property but did not take immediate transfer of the rights, title and interest in the property into her name from the time she was able to do so at law to date. The plaintiff said this explains why in her pleadings she had excluded the Bulawayo property as part of the parties’ assets. The plaintiff said it is the defendant who included the Bulawayo property as part of their assets and that the defendant has refused to have the Bulawayo property changed into the name of Agnes Gudo. The plaintiff testified that since 1979 the Bulawayo house has been under Agnes Gudo’s management and that it is Agnes Gudo who collects rentals from the tenants. No meaningful questions on these material issues were put to the plaintiff. While I assess the plaintiff to be a forthright witness, she dented her credibility by not being candid with the court when she excluded initially in her pleadings the Gweru property.

Agnes Gudo who is the Provincial Director in the Ministry of Education for the Midlands Province impressed this court as a trusting, well-meaning and credible witness. She gave a coherent, flowing and credible account of how the Bulawayo property was acquired and why to date it is in the names of the plaintiff and the defendant. I turn briefly to her evidence.

Agnes Gudo completed her education at University College of Sierra Leone in 1978 and her first job back in Zimbabwe was at United College of Education as a lecturer on 1 September 1978. I find no reason why Agnes would falsify such simple facts which she said can be proved by simply checking her file at work.

Agnes Gudo testified that in 1979 she decided to acquire a house in Bulawayo so that her parents in Mberengwa could have a place to seek refuge as the liberation war was raging on. Mr Mushonga took much interest in the apparent contradictions between the plaintiff and Agnes Gudo in this regard but I find such zeal to be misplaced. It did not distract from the main motivation which caused Agnes Gudo to decide to acquire the property since she herself did not require accommodation as she was resident at the college as a lecturer and warden.

Agnes Gudo’s evidence is that Bulawayo City Council was offering house ownership scheme but due to the legal disability she had as a single African woman she could not purchase the property in her own right. She said her cousin Kelson Shiri who was a police officer (now late) could not assist her as he was also in the process of buying his own house and persons were not allowed to own two houses in the same city. Agnes Gudo said the gods smiled at her at that time as the plaintiff and the defendant who had just relocated from Zambia passed through Bulawayo and Kelson Shiri approached the plaintiff and the defendant and asked them to use their marriage certificate to acquire the Bulawayo property. The parties agreed to help and the defendant signed all the relevant papers. This then explains why the Bulawayo property was acquired in the plaintiff and defendant’s names.

It is Agnes Gudo’s evidence that after signing the papers the defendant played no further role. Agnes Gudo said she is the one who paid the required deposit of $480 to the Bulawayo City Council and thereafter paid rentals of $40 per month on the rent to buy scheme until the purchase price was paid in full. She said initially she allowed her young sister and children to stay in the house in 1979 but thereafter in 1980 to date she has been putting tenants and collecting rentals. She said she is responsible for all the maintenance required and that for all intents and purposes the Bulawayo property is her house.

Agnes Gudo told the court that the plaintiff and the defendant have never occupied the house or exercised any control or lay any claim for the rentals of the Bulawayo property. She expressed surprise to the defendant’s claim to the property. No meaningful in roads were made by Mr Mushonga in this regard when he cross examined Agnes Gudo.

The defendant’s version on how he acquired Bulawayo property is very improbable and incredible. The defendant said in 1979 he was from Zambia via Botswana when he spent a night in Bulawayo at Kelson Shiri’s house who in discussion advised him of the scheme by Bulawayo City Council where one would pay $200-00, complete certain forms and is put on a housing waiting list. The defendant said he was taken to the City Council by Kelson Shiri the next day where he paid the $200-00, filed in the forms and left Bulawayo. He said he was later telephoned by Kelson Shiri in 1980 that he could come to Bulawayo to be allocated the house and he paid another $400-00, completed further forms and was allocated the Bulawayo property. He said Agnes Gudo was at the United College of Education and he is the one who asked her to take care of the property by allowing his in laws to stay there or to put lodgers. He also said he instructed Agnes Gudo to make further payments required in the purchase of the property.

I find the defendant’s version to be improbable on account of a number of reasons. Besides the fact that the Bulawayo property is registered in the names of the plaintiff and the defendant, the defendant has not produced any documentary proof of payments he made in respect of the Bulawayo property. It is very surprising that since acquiring the Bulawayo property in 1980 as he says the defendant has never been to Bulawayo again, a period in excess of 32 years. The defendant admits that he has never involved himself in any manner in the control and management of the Bulawayo property since 1980. He has not put any lodgers in the house nor is he aware of the rentals charged or paid. The defendant conceded that the Bulawayo property was on a rent to buy basis and that after 1980 he made no further payments as rentals and that it is Agnes Gudo who made the payments. The defendant could not explain the nature of arrangements whereby Agnes Gudo would pay the rent to buy instalments for a house which did not belong to her.  All these facts when considered objectively point to the fact that Agnes Gudo’s version is more probable.

The defendant sought to hoodwink the court by highlighting the fact that the Bulawayo property has been in his and the plaintiff’s names since 1979 to date. He argues that if it was Agnes Gudo’s property she should have changed the ownership. I am not persuaded by such an argument.

Agnes Gudo gave evidence on the steps she took in order to change the ownership of the Bulawayo property. She told the court that the defendant together with the plaintiff had greatly assisted her ad she never thought such a problem would arise. In fact she told the court that at no time did the defendant tell her that he was unwilling to transfer the property. She explained that the trust she vested in the defendant explains the delay she took in changing ownership of the property. Agnes Gudo testified that she was not even privy to the marital problems between the parties. She was not able to recall the exact dates but explained the efforts she made in having the Bulawayo property transferred in her name. On the first occasion probably in 2009 she said she sent the defendant’s son Collin to the defendant’s rural home in Chiweshe from Gweru where Agnes Gudo and Collin reside. She said she gave Collin bus fare for the defendant to travel to Bulawayo to change ownership of the property but the defendant just took the money, squandered it and did not travel to Bulawayo. On the second occasion she said she sent her late husband to collect the defendant from his rural home using the family car but the defendant gave the excuse that he would follow later using buses and asked for bus fare which he was given but still did not travel to Gweru in order to proceed to Bulawayo to change ownership. Agnes Gudo said she could not understand the defendant’s conduct hence she decided to visit the defendant in Chiweshe communal lands herself.

On 26 May 2009 she said she drove to the defendant’s rural home with her husband and had drafted exh 3 which was a document to be signed by the defendant authorising the transfer of the property into her name. This culminated in the signing of exh 3 by the defendant. Initially she said she told the defendant that she had come to collect him in order to go to Bulawayo to change ownership of the Bulawayo property. The defendant refused saying the plaintiff had included the Bulawayo property in her pleadings in the divorce case as the property of the parties. This was obviously a lie.

Agnes Gudo said the defendant further stated that he wanted to be paid US$600-00 in order to have the Bulawayo property removed from the list of property in contention before the High Court between him and the plaintiff. Agnes Gudo said it took a lot of persuasion to cause the defendant to finally sign exh 3 on 26 May 2009. In that document exh 3 the defendant clearly agrees that the Bulawayo property was bought by Agnes Gudo in 1979 and that the defendant had merely helped her by signing the relevant papers on account of her legal disability in 1979. The defendant was also not objecting to the transfer and exh 3 is witnessed by Agnes Gudo, her late husband and the defendant’s son Collin.

Agnes Gudo said the defendant gave her his National I.D. card and authorised his son Collin to accompany her to Bulawayo to effect change of ownership. This however failed to materialise as the Bulawayo City Council insisted that the defendant should attend in person. Agnes Gudo said she advised the defendant by way of a letter but could not follow up the issue as her husband seriously fell ill and later passed on.

Agnes Gudo stuck to her story during cross examination. She remained consistent and unshaken. As I have already said she impressed me as a very sincere, honest and trusting person. She conceded that she underestimated her brother in law the defendant who, according, to her seemed unassuming but is very calculative and cunning. Indeed I agree that Agnes Gudo’s story is one of misplaced faith and trust in the defendant.

The defendant did not dispute Agnes Gudo’s evidence on all the three visits. He was not able to give a plausible explanation as to why he misled Agnes Gudo that he would effect transfer  of the property if at all his story now in court is correct. The defendant admitted signing exh 3 but alleges duress. He was at pains to explain the nature of force or threats used to coerce him to surrender what he now says is his property. The defendant agreed that he demanded US$600-00 from Agnes Gudo in order to sign the relevant papers and effect change of ownership of the Bulawayo property. In fact the defendant said he declined to go to Bulawayo after Agnes Gudo had failed to effect change of ownership using exh 3 because she had not paid him US$600-00. Again the defendant was at pains to explain what the US$600-00 was for if the Bulawayo property was his. He disingenuously suggested that it was refund of the $600-00 Rhodesian currency he paid for the Bulawayo property in 1979. This would not explain why he would forgo the current value of the property.

All in all the defendant’s evidence in this regard is poorly thought out and shockingly incredible. The defendant’s poor demeanour in court said it all. It is inconceivable that the defendant who is evidently not a man of means would buy the Bulawayo property in 1979 and simply forget about it. He never set foot at the property from 1980 to date. He did not pay any rentals required for rent to buy. He is not even aware of the state and the value of the property as at now or at any point. That conduct is not consistent with his evidence that he bought the Bulawayo property. It is consistent with Agnes Gudo’s evidence as explained. It was therefore not surprising when I asked the defendant what should happen to the Bulawayo property he was now heard to say he wanted to share it on a 50% to 50% (equal shares) with Agnes Gudo. Why would the defendant want to share the Bulawayo property with Agnes Gudo whom he said was a mere caretaker.

I am satisfied on the evidence adduced that the Bulawayo property is not an asset of the plaintiff and the defendant as envisaged in s 7(1) of the Matrimonial Cause Act [Cap 5:13]. It is my finding that the Bulawayo property was purchased by Agnes Gudo in the manner she explained and is registered in the plaintiff and the defendant’s names because of the reasons given by Agnes Gudo and the plaintiff. I am however hamstrung to make an order in respect of the Bulawayo property because Agnes Gudo was not joined as party to these proceedings. I can therefore only make a finding of fact as regards the status of the Bulawayo property.

I now turn to the resolution of the dispute between the parties.

Section 7(1) of the Matrimonial Cause Act [Cap 5:13] (“the Act”) deals with the division, apportionment and distribution of the assets of the spouses upon the dissolution of the marriage. Section 7(4)(a) to (g) the Act outlines the factors the court should consider in the exercise of its discretion in order to achieve an equitable distribution of the matrimonial estate. See also Ncube v Ncube 1993 (1) ZLR 39(S) at 40H, Hatendi v Hatendi 2001(2) ZLR 530, Shenje v Shenje 2001(2) ZLR 160 (H) at 163F. I have already made a finding that the Bindura property is no longer available. The defendant disposed of it and he wholly benefited from the disposal of that property. While the defendant could dispose of that property I believe this is a fact I should now take into account in the distribution of the remaining asset which is the Gweru property. I have already dealt at length as to how the Gweru property was acquired.

I have considered that both the plaintiff and the defendant are in the afternoon of their lives.  The plaintiff retired in 2004 and the defendant is now based at his rural home in Chiweshe. There are no minor children of the marriage. The plaintiff shouldered the burden to look after the minor children when the parties separated in 1989. The parties have been married for 45 years although they have been separated for 23 years. At the ages of 70 years for the defendant and 69 years for the plaintiff neither party in my view can meaningfully start a new life. I believe it is fair and just in the circumstances to award the only available immovable property the Gweru property to the plaintiff.

Accordingly it is ordered as follows:

A decree of divorce is hereby granted.

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

The plaintiff is awarded stand No. 752 Senga Gweru, registered in her name as her sole and exclusive property.

Each party shall bear its own costs.

Manyurureni & Company, plaintiff’s legal practitioners

Mushonga, Mutsvairo & Associates, defendant’s legal practitioners