Priscilla Mhlanga (nee Makuyana) v Samson Mhlanga

HH 70-2011
                                                                                  HC 1681/07

PRISCILLA MHLANGA (nee MAKUYANA)
and
SAMSON MHLANGA


HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 31 August 2010 and 17 March 2011


MATRIMONIAL TRIAL


The plaintiff in person
The defendant in person


       CHITAKUNYE J:         The plaintiff and defendant were married in terms of customary
law in 1976. In the year 1983 their marriage was solemnized in terms of the Marriages Act,
Chapter 37 (now 5:11) at Harare. Both parties were born and bred in Zimbabwe and so
Zimbabwe is their country of domicile. Their marriage was blessed with six children. Their
last born children are twins born on 25 April 1992.
        On 10 April 2007, the plaintiff instituted proceedings seeking a decree of divorce and
other ancillary relief against the defendant. The plaintiff alleged that their marriage had
irretrievably broken down to such an extent that there are no reasonable prospects for the
restoration of a normal marriage relationship. She claimed for an 80% share in the matrimonial
home being 7 Orchard Lane, Hatfield, Harare with the defendant retaining 20% share.
       The defendant in his plea admitted that the marriage had indeed irretrievably broken
down to such an extent that there are no reasonable prospects of restoration to a normal
marriage relationship. He however attributed the breakdown of the marriage to the plaintiff.
He also agreed that the plaintiff can have custody of the two minor children with the defendant
being granted rights of access.
       The defendant objected to the distribution of immovable property as suggested by the
plaintiff. He contended that no 7 Orchard Lane, Hatfield, Harare is registered in the joint
names of the plaintiff and defendant. The property was jointly acquired and so he owns 50% of
the property and not 20%. He also pointed out that there is another immovable property jointly
acquired but registered in the plaintiff’s name, that is Stand number 4620 Chikanga Township
of Stand 4966 Chikanga Township, Mutare. As this property was also jointly acquired he is
entitled to a 50% share thereof.
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         On movable property the defendant said they jointly acquired a Nissan Sunny motor
vehicle and so he is entitled to 50% of its value.
         With each party maintaining their stance a pre-trial conference was held on 7 May
2010. The pre-trial conference minute shows that during that meeting parties agreed that:
1.       That the marriage had irretrievably broken down and that a decree of divorce should be
         granted.
2.       That house number 4620 Chikanga Township, Mutare was acquired by the parties
         during the subsistence of their marriage.

Issues referred for trial were as follows:

     1  In what shares should House Number 7 Orchard Lane, Hatfield, Harare be apportioned
        between the parties?
     2. Whether House Number 4620 Chikanga Township, Mutare forms part of the
        matrimonial property. If so, how should it be distributed amongst the parties?
     3. Whether the Nissan Sunny motor vehicle is part of the matrimonial property. If so, in
        what portions should its current value be apportioned and shared by the parties?

         In their evidence in court each party chronicled how the properties in question were
acquired and how they felt the property should be shared. They seemed to digress from their
pleadings in some aspects. For instance whilst in her declaration the plaintiff said that the
defendant should be awarded 20% share of the matrimonial house, 7 Orchard Lane, Hatfield,
Harare, in her viva voce evidence she now offered the defendant 10 % and argued that she is
entitled to a 90% share.
         It also transpired under cross examination that there were other immovable properties
the plaintiff had purchased but which she had not disclosed in her pleadings. The defendant
cross examined her on these properties in an effort to show that the properties were acquired
during the subsistence of the marriage and so he should get a share in each of the properties.
The plaintiff on her part maintained that those properties were acquired through her efforts,
those of her sister and other members of her family and the defendant never contributed
anything towards the acquisition.
         In his evidence in chief the defendant did not adhere to his stance as per his pleadings.
He now said that after thinking about the issue the matrimonial property, that is, 7 Orchard
Lane should now be registered in the names of their youngest children. He was no longer
seeking that the house be in his name or that they share equally with the plaintiff. He went on
to say that he no longer wished to raise issue with the Mutare house, the Chitungwiza
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properties and even the Nissan Sunny motor vehicle. All he now desired was that No 7
Orchard Lane be registered in the a names of their two last born children and that he be given
about 6 months to move out of the house.
       In her cross examination of the defendant, the plaintiff did not go along with the
defendant’s suggestion. She insisted that the house must be apportioned according to her
claim. She alluded to the fact that during the pre-trial conference meeting she had suggested to
the defendant that the house be registered in the names of their children but the defendant had
refused to which the defendant denied contending that it is the plaintiff who had changed her
mind about that suggestion.
       It was clear to me that the parties had indeed at some stage entertained the idea of
registering the house in the names of their children but perhaps due to lack of proper legal
guidance they could not agree on some aspects of that suggestion.
       In her closing submissions the plaintiff altered her position. She now said that: “I now
agree to the proposal given by Mr Mhlanga that the house be registered in the children’s
names that is Samson Mhlanga and Lesley Mhlanga twins born on 25 April 1992.”
       She thus no longer wished to be awarded 90% share of the house with the defendant
getting 10% share. That in a way disposed of the immovable property.
       The plaintiff for some reason went on to suggest that their other daughter Lynet
Memory Nashe (nee Mhlanga) be included for the purposes of her seeing to it that Samson and
Lesley keep the house nicely, that is, as an overseer. This suggestion was not accepted by the
defendant who felt the two who are now adults do not need an overseer.
       Another aspect the plaintiff brought in which was never part of the pleadings and was
thus never canvassed in evidence is that of post divorce maintenance. In her closing
submissions she now asked for an order to be issued to the effect that the maintenance order
granted at the Magistrate Court in case number M1357/07 should continue post divorce.
Unfortunately, post divorce maintenance must be justified by evidence. 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 re-marriage 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 period 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
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       the other hand elderly women who cannot be trained or remarried are entitled to
       permanent maintenance. See Chiomba v Chiomba 1992 (2) ZLR 197.”

       It must be clear therefore that post divorce maintenance can no longer be awarded on
mere say so but must be claimed and proved. Such a claim not having been in the pleadings
and not even in the evidence adduced in court can not be considered in the circumstances. I am
of the view that no post divorce maintenance will be awarded as none was claimed.
       Equally the prayer for other relief that was not claimed in the pleadings such as arrear
maintenance, outstanding bills for electricity and water, repairs to damages to 7 Orchard Lane,
Hatfield, Harare cannot succeed.
       I am of the view that all that needs to be done as regards the properties is to grant the
order in the manner the parties seem to have now agreed and to allow the defendant a
reasonable period within which to vacate the house and an order that ownership be transferred
within a reasonable period. Neither party indicated who is going to meet transfer costs. As
both parties seem capable of earning income they will have to share transfer costs.
   Accordingly it is hereby ordered that:

   1. A decree of divorce be and is hereby granted
   2. The matrimonial home that is No. 7 Orchard Lane, Hatfield, Harare is awarded to the
      parties’ children namely Samson Mhlanga born 25 April 1992 and Lesley Mhlanga
      born 25 April1992 in equal shares.
   3. The plaintiff and defendant shall sign all the necessary documents to enable transfer
      within 90 days of the date of this order.
   4. The defendant shall vacate the matrimonial home within six (6) months of the date of
      this order. Should he fail to do so the Deputy Sheriff, Harare be and is hereby directed
      to eject him at the instance of the registered new holders of title.
   5. The plaintiff and defendant shall pay the costs of transfer in equal proportions
   6. Each party shall bear their own costs of suit.




Plaintiff in person
Defendant in person.