Samuel Sarudzai Kanoyangwa v Winifreder Kanoyangwa (Nee Charlie)

HH 23-2011
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SAMUEL SARUDZAI KANOYANGWA
and
WINFREDER KANOYANGWA (NEE CHARLIE)



HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 17 & 18 March, 2010 and 27 January, 2011


M. C. Mukome, for the plaintiff
V. Muza, for the defendant.

MATRIMONIAL TRIAL

         CHITAKUNYE J. The plaintiff married the defendant on 23 December 2000 at Rusape
in terms of the Marriages Act, [Cap 5:11]. The marriages still subsists. They had however
commenced living together as husband and wife about two or three years before that date.
Their union was blessed with one minor child born on 20 June 1997. At the time plaintiff and
defendant started staying together plaintiff had not yet finalized his divorce from a previous
marriage.
         During the subsistence of the marriage the parties acquired numerous movable
properties. In 2005 they acquired an immovable property, namely Stand 104 Rusape
Township, also known as house no. 12 Nyanga Drive Rusape. As fate would have it their
marriage was not to last long thereafter. On 14 April 2006 plaintiff sued defendant for a decree
of divorce alleging that their marriage had irretrievably broken down, a ground recognized in
terms of s 5 of the Matrimonial Causes Act, [Cap 5:13].
         Apart from seeking a decree of divorce plaintiff also prayed for a division of the
matrimonial estate and custody of their minor child. On the immovable property he claimed a
share of 75% with defendant retaining 25%.
         The defendant in her plea conceded that the marriage had indeed irretrievably broken
down to an extent that there is no reasonable prospect of the restoration of a normal marriage
relationship between them, albeit denying being responsible for the breakdown. She made a
counter claim for a decree of divorce, a 50: 50 share of the immovable property and sharing of
the movable properties in terms of her own schedule. She also claimed custody of the minor
child.
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        At the pre-trial conference the parties agreed on a number of issues. They agreed on the
sharing of the movable property and on the fact that their marriage had irretrievably broken
down. On 28 May 2007 a consent paper was filed with court on how the parties had agreed to
share the movable properties. That consent paper was duly signed by the parties and their
respective legal practitioners and is to form part of the order in this case.
   The issues referred to trial were as follows-
   1. Whether defendant made any direct or indirect contributions to the acquisition of the
      matrimonial home Stand No. 12 Nyanga Drive, Rusape. If so, whether she is entitled to
      a 50% share of the net value thereof.

   2. Which parent shall be the custodian of the minor child and what would be reasonable
      rights of access for the non-custodian parent.

   On the trial date the issue of custody and access by the non-custodian parent had been
resolved. The parties confirmed that they had agreed that custody be awarded to the plaintiff
with defendant being granted reasonable rights of access on agreed terms.
   Though in their pleadings neither of them had claimed for maintenance in the event of
being granted custody, the question of maintenance was raised as an issue when the parties
testified. Plaintiff claimed maintenance for the child from defendant in the sum of one hundred
United States dollars per month whilst defendant offered thirty United States dollars per month
only.
   The issues that the court was left seized with were thus on the sharing of the immovable
property and the quantum of maintenance that defendant should contribute towards the child.
   1. Whether defendant made any direct or indirect contributions to the acquisition of
      the matrimonial home.

   From the evidence adduced from both parties it is common cause that the immovable
property in question, that is, stand 104 Rusape Township, also known as 12 Nyanga Drive,
Rusape, was bought and registered in the joint names of the parties. The agreement of sale
shows the purchasers as Samuel Kanoyangwa and Winifreder Charlie. The Deed of Transfer is
also in the joint names of Sarudazayi Samuel Kanoyangwa and Winifreder Charlie. That per se
shows that the property is jointly owned.
   It is common cause that the plaintiff who was employed by TEL -ONE opted to go on
voluntary retirement in the year 2005. As a result he was paid a retrenchment package in the
sum of $597 285 061-92 Zimbabwean dollars. It was from this sum that he paid the purchase
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price of $315 000 000-00 and the transfer fees in the sum of $ 24 096 985.00. This was all in
Zimbabwe dollars.
   The plaintiff on his part argued that as the property was paid for entirely from his
retrenchment package defendant did not deserve a 50% share. When asked why the
defendant’s name was included in both the Agreement of Sale and the Deed of Transfer,
plaintiff said that as someone who had divorced before, his experience had taught him that
even if a spouse’s name is not included on the deed of transfer she will still be entitled to a
share. Thus, in this case, when the estate agent advised him that defendant wanted her name to
be included on the agreement of sale he agreed because from his experience, she would still be
entitled to a share even if her name was not included. He however emphasized that when he
agreed to the inclusion of defendant’s name, it was not that he intended her to be an owner of
50% of the property or even that he was donating to her a 50% share in the property.
   The defendant in her evidence confirmed that both the purchase price and the transfer fees
were paid from plaintiff’s retrenchment package. None of her earnings went towards the
purchase price or transfer fees. The defendant’s evidence was more on her indirect
contribution. She contended that though she did not make a direct contribution to the purchase
price and transfer fees, as plaintiff’s wife for 10 years and as someone who contributed in her
own way to other household needs and also as a registered joint owner she was entitled to a
50% share.
   The issue of distribution of matrimonial property is dealt with in s 7 of the Matrimonial
Causes Act [Cap.5:13]. Section 7 (4) 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 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;
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   (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 spouse.”

       It is apparent that the at the end of the inquiry or trial court must endeavour to
distribute the property in such a way as to place the parties and the children in the position
they would have been had a normal marriage relationship continued. That task in my view is
not an easy one.
       In casu the parties concentrated on the considerations in s 7 (4) (e) and (g). Where, as
in this case, the immovable property is registered in the joint names of the spouses our courts
have in a number of cases advocated the need to recognize this fact as a starting point. This is
so because were a property is registered in joint names the presumption is that it is held in
equal shares unless proved otherwise.
       In Takafuma v Takafuma 1994(2) ZLR 103(S) court was faced with a similar situation.
In that case the immovable property had been bought using a 100% guarantee provided by the
husband’s employer. All loan repayments were deducted from the husband’s salary. The
property was however registered in the parties’ joint names. On divorce, the husband
contended that the wife did not deserve a 50% share. On appeal against the lower court’s
decision by the husband MCNALLY JA at p105H stated that-
        “The registration of rights in immovable property in terms of the Deed Registries Act
       [Cap 139] is not a mere 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.”

       In Ncube v Ncube S 6/93, another case where the property was registered in joint
names of the spouses yet the wife was alleged not to have contributed towards the purchase
price; KORSAH JA at p11 had this to say-
       “It is incorrect to say that appellant as a registered joint owner is not entitled to a half
       share of the value of the Napier Avenue property because she did not contribute money
       or money’s worth towards the acquisition of the property. As a registered joint owner
       she is in law entitled to a half share of the value of that property. The proper approach
       is to accord her share of that property and then taking into account all the assets of
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       both spouses to endeavour as far as is reasonable and practicable and is just to do so, to
       place the spouses in the position they would have been in had a normal marriage
       relationship continued between them. In the performance of this duty a court is
       empowered, in the exercise of its discretion, to order that any asset be transferred from
       one spouse to the other.”

       In order to take a spouse’s share and transfer it to the other there ought to be some solid
ground for so doing.
       In Lafontant v Kennedy 2000(2) ZLR 280(S) court had occasion to deal with such a
scenario and stated at 284C-D that-
       “The court cannot move from that position on mere grounds of equity. It cannot give
       away A’s property to B on the mere grounds that it would be fair and reasonable, or
       just and equitable to do so. There must be a more solid foundation in law than that.”

       Some of the instances were court was persuaded to move from the 50:50 share the
court referred to were-
    1. Nyamweda v Georgias 1988 (2) ZLR 422 (S) where the reason advanced was that
       Miss Nyamweda was found by the court to have been an agent for her undisclosed
       principal, Mr. Georgias. She was in effect his nominee at will.

   2. In Young v van Rensburg 1991(2) ZLR 149 (S) where KORSAH JA held that Van
      Rensburg created Young a nominee for the respondent (van Rensburg) and that on
      demand the appellant would transfer the farm to the respondent.

   3. In Lafontant case supra where at p.285C-D the judge said that-


       “I think, by claiming and proving that she alone paid for the property, it must
       necessarily follow, if it was registered in their joint names, that she effectively gave
       him the half share as her nominee, for convenience. By instituting action she is
       terminating that nomination. The cases of Nyamweda supra and Young supra are
       appropriate precedents.”

       In casu it is common cause that the entire purchase price and transfer fees were paid
from plaintiff’s retrenchment package. That package was not the couple’s savings over a
period of time. It was not like a loan where repayments would be needed and whereby during
the period of repayment defendant would take care of some aspects to cushion plaintiff.
Clearly in my view the circumstances show that this is an appropriate case were defendant’s
share may be tampered in favor of plaintiff.
       As for her contribution defendant contended that she operated a video club and did
some interior décor work making curtains. She also was a director of a family company
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SAMECORD. I did not however hear her to seriously say that the ventures brought in
substantial income to the family. Indeed plaintiff said he had to subsidize defendant in the
video club. The video club was more to keep defendant occupied than anything viable. The
interior décor business even from defendant’s evidence was not a big income generating
venture. It was more of a hobby or pastime activity than a serious business. As for the family
company SAMECORD, not much could be gathered on its operations and contributions to the
family estate. What is unquestionable is that no income from that venture went towards the
purchase of the immovable property in question. Its insignificancy can also be discerned from
the fact that both spouses never brought it up in their pleadings. It is something that came up as
they testified. Had it been a serious venture with substantial income I am of the view that
either of the spouses would have mentioned it in their pleadings.
        This must however not be taken to demean defendant’s contribution to the matrimonial
estate. She did contribute in her own way for those 10 years they were married by doing the
usual household chores expected of a wife and providing moral support to plaintiff.
Financially she contributed in her own way.
        I am however of the view that a proper foundation has been laid for the reduction of
defendants share from 50%. A reduction by a 15% would in my view meet the justice of the
case.
2. Maintenance

        The issue of maintenance was never raised in the pleadings. It only arose after the
parties had agreed that plaintiff should be awarded custody of the minor child. As a result of
this neither party seemed prepared to properly testify on this issue. The plaintiff said he
required a sum of $100 United States dollars per month from defendant as part of her
contribution towards the upbringing of their minor child. When asked to justify the figure
plaintiff had to literally think on his feet as to how to arrive at that figure. In that regard he
gave his list of expenses as follows-
Accommodation…… $ 40.00,
Food……………….. $20.00,
Clothing ……………. $20.00, and
School fees ………… $20.00.

        He conceded that he had not discussed the issue of maintenance with defendant. He
also had not attempted to ascertain defendant’s income and whether defendant could afford
such a sum. The plaintiff said he was not employed but somehow did not disclose how he is
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surviving and how he had been able to provide for the child so far. When defendant’s dire
financial situation was put to him he had no ready answers save to say that he knows that she
is working at a certain school. Plaintiff was unaware of the nature of engagement defendant
was involved in at the school. He thus could not deny that defendant was doing voluntary
work. He was equally unaware of her income from that voluntary work and other activities she
engaged in. Plaintiff could not rebut defendant’s contention that she can not afford a $100 per
month as her monthly income averages between $80 and $120 dollars per month.
       The defendant’s evidence on this issue was to the effect that she is working on a
voluntary basis at a private school. The school has provided her with accommodation. She also
does some odd jobs. From all these activities she realizes $80 to $120 per month. It is from
this income that she survives. She thus offered a sum of $30 maintenance for their minor child.
       It is my view that in the absence of better evidence from which a higher sum may be
derived the defendants offer has to stand. An order for maintenance must be within the means
of the non-custodian parent. In the circumstances a maintenance order in the sum of $30 per
month will be granted.
       Accordingly it is hereby ordered that-

       1.      A decree of divorce be and is hereby granted.

       2.      Custody of the minor child Kundai Nesbert Kanoyangwa (born 20 June 1997)
               is hereby awarded to the plaintiff

       3.      The defendant shall enjoy reasonable access to the minor child every fortnight
               during weekends. During school holidays the child shall be with defendant for 2
               weeks of the holiday.

       4.      The consent paper signed by the parties and filed of record and annexed to this
               order shall regulate the distribution of the parties’ movable property.

       5.      The plaintiff is hereby awarded a 65% share in the matrimonial home being
               Stand 104 Rusape Township, also known as House No. 12 Nyanga Drive
               Rusape.

       6.      The defendant is awarded 35% of the said matrimonial property.

       7.     The parties shall agree on the value of the property within 7 days of the
              date of this order failing which they shall appoint a mutually agreed
              evaluator to evaluate the property within 14 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
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             from his panel of evaluators to evaluate the property.

             The plaintiff shall meet the costs of such evaluation.

       8.    The plaintiff shall pay off defendant her 35% share of the value of the
            property within120 days from the date of receipt of the evaluation report
            unless the parties agree otherwise.
            Should the plaintiff fail to pay defendant’s share in full within the stipulated
            period the property shall be sold to best advantage by a mutually agreed
            estate agent or one appointed by the Registrar of the High Court and the net
            proceeds thereof shall be shared in the ratio 65:35.

       9.   Each party shall pay their own costs.




Muvingi Mugadza & Mukome, plaintiff’s legal practitioners
Muza and Nyapadi, defendant’s legal practitioners.