Bayayi (Nee Nzima) v Bayayi (HB 36 of 2006) [2006] ZWBHC 36 (5 April 2006)

Judgment No. HB 36/06 Case No. HC 3320/01 DOROTHY BAYAYI (NEE NZIMA) versus AUGUSTINE BENJAMIN BAYAYI IN THE HIGH COURT OF BULAWAYO BERE J BULAWAYO 6 APRIL 2006 Ms A Masawi for Plaintiff Defendant in default Judgment BERE J: After hearing evidence from the Plaintiff on 6 October 2005 I made the following order: ­ “It is ordered: ­ That a decree of divorce be and is hereby granted That the Plaintiff be and is hereby awarded the following property as hers; a) b) c) d) e) f) g) h) That each party bears his or her costs.” House No. 21 Kirkland Road, Greenhill, Bulawayo Mazda 323 Registration Number 450­620D Lounge suite 20” Colour Television set Coffee table Fridge morter (double) 9” and 12” floral carpets Satellite Dish and Decoder 1. 2. 3. I did indicate then that my reasons would follow. Here are my reasons: HB 36/06 This is a very unusual case where parties enter into a marriage purely for convenience and when they are in that relationship they continue to conduct their affairs completely independent of each other. Plaintiff and Defendant entered into a marriage in terms of the Marriage Act (Chapter 5:11), then Chapter 37 on the 12th day of August 1995. They never had any children between them. At the time of the marriage the Plaintiff had (4) four minor children from her previous marriage. Plaintiff gave evidence in Court which clearly showed that she acquired House No. 21 Kirkland Road, Greenhill, Bulawayo on her own It was the undisputed evidence of Plaintiff that she purchased the immovable property in question from proceeds from the sale of a flat that had been acquired for her by her erstwhile husband and then added her own resources to raise the total amount that was required for the house. There was neither direct nor indirect contributions from Defendant who according to Plaintiff was secretly or clantestinely buying his own assets which assets Plaintiff chose not to claim for her as part of divorce settlement. Plaintiff made reference to and produced documentary evidence which the Court saw and gave back to her for proper filing, which documents supported how she acquired house number 21 Kirkland Road, Greenhill, Bulawayo. Plaintiff produced the sale agreement for the flat whose proceeds provided the bulk of the money that was used to purchase the house in question. The proceeds from the flat amounted to $500 000­00. Plaintiff also produced documentary evidence to show HB 36/06 that she indeed borrowed a further $350 000­00 through an arrangement mortgage to top up the purchase price and also to cater for transfer costs. After acquisition the house in question was registered jointly in Plaintiff’s maiden name and one of her children. The tenure of Plaintiff’s evidence in the acquisition of the rest of the assets allocated to her by the Court was the same. The assets comprised of a Mazda motor vehicle bearing registration number 450­620D, lounge suite, 20” Colour Television set, Coffee table, double master fridge, 9” and 12” floral carpets and satellite dish and decoder. It was the undisputed evidence of Plaintiff that whilst she was busy personally acquiring her own assets, Defendant was busy secretly acquiring his own assets which never found their way to the parties matrimonial home. In addition Defendant was also busy secretly making individual investments with Kingdom Asset Management, Barbican, Old Mutual, Founders Building Society, Central Africa Building Society, Zimbank, Beverley Building Society and Post Office Savings Bank. Documentary exhibits were produced to confirm these investments. It must be emphasized that both Plaintiff and Defendant continued to act independent of each other despite having been properly married, as already stated. Plaintiff stated their marriage was clearly opportunistic and one for convenience as throughout their marriage, Plaintiff was never introduced to Defendant’s relatives. The marriage itself was secretly conducted and none of the parties’ relatives ever witnessed it. HB 36/06 or was made aware of it. Plaintiff testified that throughout the parties “marriage”, Defendant made no contribution at all for the sustainance of the two. This responsibility was exclusively her dormain. The Court, having decided that Defendant, by applying for a postponement was merely determined to obstruct the finalisation of this case, and having ordered that the matter be heard in the absence of Defendant, had no difficulties following the evidence of Plaintiff which was well presented. The Court’s view is that a Marriage Certificate must not merely be obtained for convenience’s sake. Where parties conduct such a marriage like what appears to have been the case here, the court must adopt a robust approach in the distribution of the property independently acquired by the parties in such a relationship. It is only fair that in such circumstances each party be allocated as his/her property independently acquired by such a party. A marriage certificate cannot merely be used as a ticket for allocation of property to a party who chooses to be passive in the acquisition of such “family assets.” It is for these reasons that the Court made the order of the 6th day of October 2005. Masawi and Associates, Plaintiff’s legal practitioners James,Moyo­Majwabu Defendant’s legal practitioners 5