Siwawa v Siwawa (HC 2128 of 2002) [2004] ZWBHC 89 (23 June 2004)

Judgment No. HB 89/2004 Case No. HC 2128/02 SIYENGO FANATI SIWAWA Versus FRED FANATI SIWAWA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 7 MAY 2004 AND 24 JUNE 2004 T Moyo for plaintiff N Mazibuko for defendant Civil Trial NDOU J: On 22 August 2002, the plaintiff sued the defendant for divorce. She also sought ancillary relief. The parties were married to each other on 13 January 1963. There are no minor children of the marriage. It is common cause that the parties no longer have the love and affection which they once had for each other. The defendant committed adultery with a domestic worker resulting in a pregnancy. He still lives with her on the farm. The parties have not enjoyed their conjugal rights for the last 14 years. They give divergent reasons for this state of affairs. Without even going into details it is beyond dispute that the marriage has irretrievably broken down. This is confirmed by evidence adduced by each party. During the subsistence of the marriage the parties acquired the immovable property otherwise known as Farm 98 Gobatema Mission Farm, situate in Gwanda and the title or interest in stand 5554 Gwabalanda, Bulawayo. They also acquired a number of head of cattle. During the pre-trial conference it was recorded that the plaintiff had taken delivery of 27 head of cattle on a “without prejudice basis”. The main issue for determination is the sharing of the matrimonial property and also what HB 89/04 constitutes the said property. I now propose to consider the evidence adduced in support of each party’s case. PLAINTIFF’S CASE Siyengo Fanati Siwawa She testified that she and the defendant married each other in terms of the civil laws of Zimbabwe on 13 January 1963. She had since that time been employed as a school teacher. The defendant was employed as an Agricultural Extension Officer until he left employment in 1978. At the time, plaintiff continued to work until she retired in 1998. It is her testimony that the defendant told her that he had impregnated a maid and that was the cause of the breakdown of the marriage. To date the defendant is still living with the maid. The defendant took the maid to her home to be introduced as a son-in-law. As a result of this affair she moved from the farm and is staying at 5554 Gwabalanda, Bulawayo. She once went to the farm to collect beasts and the defendant locked her out of the yard of the homestead. The defendant insulted her and said she was a “witch” and that he did not want to see her again on the farm. She said that when they got married the defendant had a bicycle, bed and three chairs. She had a bicycle and three blankets bought for her at the time she got married and some beasts. The defendant stopped working in 1978 during the hostilities occasioned by the liberation war and came to stay with their children in Bulawayo. From her salary she fended for the family. In fact the defendant received her salary and used it as the head of the family. The defendant used part of the money in setting up businesses and buying 30 head of cattle. When the shops were no longer running profitable she suggested that they sell them and buy the farm. This was in 1992. They sold the shops for $30 000. The farm was going for $55 000. HB 89/04 The $20 000 was settled by her Gwanda house. She bought the Gwanda house before she got married. They sold beasts to settle the outstanding balance. The Gwabalanda house was bought through a rent to buy facility whereby they paid $300 deposit and thereafter monthly instalments of $10. This money was raised from their shops. After paying for eight years she enquired from the Municipality the balance on the property and she was informed that it was $2 000. She paid up the $2 000. The cattle were acquired by pooling their resources. They also purchased a Nissan vehicle to use in their businesses. They also sold their beasts and bought a Peugeot 504 vehicle. She also purchased a motor cycle to use to go to work in 1983. Generally, they acquired the rest of the movable assets together. She claimed the fridge that is at the farm because the one that she has in Bulawayo is faulty. She has already received a total of 27 head of cattle. The farm is run on a commercial basis. Under cross examination she said that she neither suggested to the defendant to marry a second wife nor approved of his relationship with the maid. She said that the defendant denied her conjugal rights for the above mentioned period under the pretext that the relevant part of his atanomy was dysfunctional or defective. She sympathised with him and this was never a threat to their marriage. What devastated her was his improper association with the maid resulting in the pregnancy. It doned to her that she was cheated by the defendant. The defendant could, afterall perform his conjugal rights. Her sympathy was, so to speak, misplaced. This hurt her so much that she decided to end the marriage. As far as her retirement benefits are concerned she received a package of $164 000. She gave the defendant $30 000 to use as he wished. The $34 000 was ploughed into the farming operations. She banked the $100 000. She was subjected to some detailed and tactful cross examination, especially on the HB 89/04 acquisition of the matrimonial assets. I am, however, overall impressed by her demeanour and I am satisfied that she is a truthful witness. Further her testimony is clear and probable. Qhwalimuzi Sibanda He is the plaintiff’s brother. Around the year 2002 he said that he took his beasts to the parties’ farm for grazing (for a fee). When he took the beasts he made arrangements with the parties. When he went to collect the beasts all was not well between the parties. He took away the cattle because he could no longer afford the grazing fees. I am satisfied that this 82 year old witness’ evidence is credible. It confirms that up to 2002 the parties were living as husband and wife. He also found the plaintiff on the farm in 2002. DEFENDANT’S CASE Siyengo Fanati Siwawa He said that the plaintiff had a separate banking account. She would bank part of her salary and bring home the other part. He said that their marriage was a happy one until 1984. Her job as a teacher involved transfers from one school to another. She no longer showed love towards him. He no longer trusted her and she denied him conjugal rights. He said he set up the businesses from the money that he got from his gratuity. The plaintiff did not contribute anything towards the setting up of the businesses instead she was banking her money whilst he ploughed his resources into the business. He said he paid the deposit and the monthly instalment for the Gwabalanda property whilst the plaintiff contributed towards the food and the maintenance of the HB 89/04 parties’ children. He said he bought a heifer in 1962 at Ngungumbane, Mberengwa i.e. at his communal home area. He also inherited ten head of cattle from his late father’s estate. These cattle remained at Ngungumbane until he swopped them in 1990. At the time of the swop they were twenty-three. The swopping was necessitated by the animal disease control measures implemented by the Department of Veterinary Services. He swopped with one Themba Khumalo. He took the cattle he got from Khumalo to the farm forming subject matter of these proceedings. In 1990 he went to reside on the farm and the plaintiff remained at the Gwabalanda property as she was teaching in the vicinity of Bulawayo. Because the plaintiff did not like farm life she only visited the farm about once per month. He said he acquired the farm from the proceeds that he realised when he sold the businesses. He said that the plaintiff did not contribute towards the purchase of the farm. Some of the money for the purchase price came from the sale of some head of cattle. He said that the parties agreed that he should take her niece as a second wife. This was between 1999 and 2000. This mission to polygamy was foiled when the plaintiff’s niece declined. It was then agreed that he was to look for a substitute as the plaintiff was not feeling well. He ended up with the maid as alluded to above. He said that there are forty-three head of cattle left on the farm after he gave the plaintiff the twenty-seven referred to above. He does not want to share these with the plaintiff. He conceded that at time the plaintiff got her terminal benefits she gave him $18 000 to buy a water pump for the farm. In his view the plaintiff should be warded the Gwabalanda property and twenty-seven head of cattle (i.e. the ones that she already has). He should be awarded the farm and the remainder of cattle on the farm. Under cross examination he conceded that he was the one who refrained from affording the HB 89/04 plaintiff conjugal rights because of mistrust in 1984, she said that he shunned her. He also eventually conceded that the plaintiff contributed towards the setting up of the Eating House business. He conceded that she also plastered the Gwabalanda property. She also bought a stove and decorated the property. She also bought household property in the Gwabalanda house. He said he succumbed to temptation when he sexually related to the maid. He said that he was keeping the two vehicles on the farm. One is a non-runner and he is using the other for the farm operations. I am satisfied that the defendant is an untruthful witness. He went all out to paint a picture of plaintiff’s non contribution towards the acquisition of the disputed assets. It is highly improbable that plaintiff would have failed to make direct contributions bearing in mind that for the greater part of their matrimony she was the one who was in formal employment as a teacher. I am satisfied that he deliberately tried to minimise the direct contributions made by the plaintiff in the acquisition of the matrimonial assets. He also tried to justify his act of betrayal to plaintiff which resulted in the maid conceiving from his adulterous relations with her. He tried to blame the plaintiff for what was clearly immoral behaviour on his part. He exhibited some measure of obsession in showing that he purchased the matrimonial assets single handedly even in the face of obvious contribution by the plaintiff. For a number of years he was not gainfully employed and the family relied upon the plaintiff’s salary yet he tried to underplay all this. He did this out of greed as he tried to get a greater portion of the estate by proving greater direct contribution. This was in my view, an exercise in futility in light of the legislation governing matrimonial issues. I will revert to this aspect later in my judgment. HB 89/04 Joseph Mazvi Siwawa He is the defendant’s brother. Most of his testimony on the crucial issue of the direct contribution of the parties in the acquisition of the assets was information he got from the defendant. He was involved in the operational aspects of some of the businesses. He was not involved in the financial side of the businesses. To his credit he admitted that he knew very little, if any at all, about the acquisition of the businesses. His evidence does not take the case any further. This court has wide discretion on the issue of the distribution of the matrimonial assets of the parties. It is seldom possible for the court to ascertain with total accuracy the incomes and contributions of the parties to the joint estate. It is even more difficult in casu were the marriage lasted over forty years and both parties were in formal and informal employment. The evidence, however, established that at the time the parties were in formal employment the difference in their salary was not that much. The distribution has to be carried out in terms of section 7 of the Matrimonial Causes Act [Chapter 5:07]. Section 7 gives the court power to order that any assets be transferred from one spouse to the other if in all the circumstances of the case it is just to do so, and, is reasonable and practicable way by which to place the spouses in the position they would have been in had a normal marriage relationship continued between them – Dlamini v Dlamini HB-27-00; Takafuma v Takafuma 1994(2) ZLR 103 (S); Ncube v Ncube 1993(1) ZLR 39 (S); Chikomba v Nkomo SC- 62-91 and Zuze v Zuze HH-66-02. I appreciate that section 7, supra gives me considerable discretion but I must exercise it judicially. As far as the cattle are concerned I am satisfied that the 27 head already given to the plaintiff constitute a fair share. I will exclude her own acquired from the HB 89/04 marriage of her daughter and the defendant’s from inheritance. As far as the household effects and other movables I am of the view that each party should keep what was in their possession during the period of separation. As far as the two immovable properties are concerned I find that they should be shared equally. The basis of my distribution is as follows: a) the parties were earning more or less the same salaries. At some stage defendant was not in gainful employment but he ran the parties’ business. Their contribution is more or less equal in this regard. b) The defendant requires finance for his farming and the plaintiff for her upkeep and medical expenses. c) Both need to maintain a certain standard of living without drastic change as they are both in the afternoon of their lives. d) I took into account the direct and indirect contribution by each spouse. The plaintiff provided the security of a salary and the defendant worked to make the business and the farming a success. e) The parties were married for over 40 years and this cannot be overlooked. During this long period they conducted their lives as a couple. From the foregoing reasons, I accordingly order that: 1. 2. A decree of divorce be and is hereby granted. The plaintiff be and is hereby awarded the sole ownership of the following movable property:- 1 bedroom suit at 5554 Gwabalanda 3 single beds at the Mission Farm 5 seater sofas at 5554 Gwabalanda HB 89/04 1 carpet at 5554 Gwabalanda 4 plate stove at 5554 Gwabalanda Kitchen table with 4 chairs at Gwabalanda 1 motor bike 1 fridge 3 legged posts Big frying pan All plates in the display unit Semi rubber carpet All bread bins 1 big washing dish 1 toilet seat Wall tiles 1 coal stove 1kitchen cupboard at Mission Farm 27 head of cattle (already taken by her) 3. The defendant be and is hereby awarded the sole ownership of the following movable property:- 1 solar fridge A Peugeot 504 Sedan motor vehicle 3 single beds 2 solar panels at the Mission Farm 1 carpet at the Mission Farm 1 kitchen cupboard at the Mission Farm HB 89/04 1 dinning table at the Mission Farm a Nissan Sunny motor vehicle Bicycle The rest of kitchen utensils and bovine not mentioned in paragraph 2 supra. 4. The two immovable properties, being Farm 98 Gobatema Mission Farm, situate in Gwanda, and the title or interest in stand 5554 Gwabalanda, Bulawayo be valued and sold and the net proceeds thereof shared equally between the parties provided that each of the parties shall have an option to buy each other out within two months of the valuation; that is to say the plaintiff shall exercise her right to buy the defendant out of 5554 Gwabalanda and that the defendant shall exercise his right to buy out plaintiff out of Farm 98 Gobatema Mission Farm. 5. The property shall be valued by a reputable estate agent within 30 days of this order with the parties sharing the costs of such evaluation equally. 6. Each party shall pay his or her own costs. Hwalima, Moyo & Associates, plaintiff’s legal practitioners Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners