Mhora v Mhora (Civil Appeal SC 617 of 2018; SC 89 of 2020) [2020] ZWSC 89 (29 June 2020)

Judgment No. SC 89/20, Civil Appeat No. SC 617718 res REPORTABLE

(77) GOVATI MHORA EMMACULATA MHORA ‘SUPREME COURT OF ZIMBABWE HLATSHWAYO JA, BHUNU JA & UCHENA JA HARARE, NOVEMBER 15,2019, FEBRUARY 14,2020 & JUNE 29,2020

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feidaks UCHENA JA: This is an appeal aguinst part ofthe judgment ofthe High Coun, ‘Pholding the respondents claim of a 50 percent share ofan immoveable Property registered inthe appellants name pursuant tothe distribution of property upon divorce, ‘THE FACTS The appellant and respondent were married in 1970, in tems of an unregistered SiNomary law union, In 1971 they solemnised their mariage in terms ofthe Aftiean Marriages ‘ct [Chapter 105), On 27 May 2005 they upgraded their marrage by solemnising it in terms ofthe Marriage Act [Chapter 5:11]. The union was blessed with four children who are now Adulls Sometime in 2010, the respondent issued summons for divorce in the High Court Seeking the following order: 8) “A decree of divorce b) Maintenance for the plaintiff

' Juagment vo. 9 9/20 : Civil Appeal No. SC 61718 py ¢) Distribution of property as listed in paragraphs 10 and 11 of the papers 4) That each party bears his/her own costs.”

‘The respondent claimed that the marriage had irretrievably broken down and there ‘ere no prospects of the restoration of a normal marriage relationship. She alleged that the appellant was involved in adulterous affairs with other women and bore children out of ‘wedlock whom he brought to the matrimonial home to be taken care of by her among other factors.

The appellant conceded that the marriage had indeed irretrievebly broken down. ee argued that it was the respondent who was in fact involved in adulterous affairs with other ‘men and denied’ ever committing adultery. The appellant admitted that he acquired house, number 114 Lomagundi Road, Harare (hereinafter referred to'as “the immoveable property”) during the subsistence of the marriage but submitted that he did so without the respondent's direct contribution. He, therefore, argued that there was no basis forthe proposed equal sharing of the immovable property.

At the pre-trial conference the parties agreed that the following 2 issues be referred to trial:

1. “Whether or not the immovable property is matrimonial property?

2. If itis matrimonial property, what isthe equitable distribution thereof?”

At the trial before the court « quo, the respondent gave evidence to the following effect. That during the subsistence ofthe marriage the parties acquired movable and immovable property through joint and complementary efforts in that although she yas not gain employed, she took care of the family as well as the children born out of wedlock by the

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x Judgment No. SC 99/20 Civil Appeal No. SC 617/18 es appellant. She told the court a quo that she used to sew clothes and chair backs to raise income which she handed over to the appellant. ‘She told the court a quo that they started off in Goromonzi where the appellant was employed as a police officer. ‘Thereafter, they moved to Ruware. Park in Marondera upon the: appellant's promotion to the ‘Criminal Investigation Department. The appellant was again Promoted and they moved back to Harare and acquired a house in Cranbone. In 1982 the appellant took a second wife with whom they stayed ‘together at the Cranbone house before moving to the Lomagundi House. The second wife bore three children to the appellant but divorced him after 22 years. After the second wife left, the respondent took care of her three children and two others ‘born out of wedlock over and above her four children With the appellant. Although she accepts having been assisted by maids at various stages in her life, she asserts that she remained the primary caregiver in the family. She stood by the appellant when he was dismissed from employment, in 1985 fending for the ‘family in the best way she could until the appellant got a job at Sandawana in 1996. The second wife would buy {roceries but she divorced the appellant between 1990 and 1991 leaving the ‘respondent to stand. ‘with the appellant until he was employed by Sandawana in 1996, ‘The respondent told the court a quo that she was 65 years old The appellant's former second wife, Viola Nyasha ‘Nemaunga testified on behalf of the respondent ‘supporting the evidence ‘she gave in the court a quo. Fg Pim’ FAP oF \ Pye 0 ce

Civil Appeal No. SC 61718 sees

‘The appellant did not contest most of the evidence given by and for the respondent save to say that the respondent was not entitled to a share in the immovable property. He submitted that the respondent did not contribute financially towards the acquisition of any of his immovable properties. He insisted that since his marriage to the respondent was out of community of property, he had no obligation to tell her what his intentions were with his monies snd his jutiied why oY not ell er sbout to properties el bought uring the subsistence of the marrage, He disputed thatthe respondent took care of the children and contributed towards the welfare of the family in any material respects as he hired a maid to take care of the children when he was not at home.

‘The appellant further testified that although the respondent dd a cake making and sewing course, no income was realised from those ventures ashe stopped her fom pursuing them, His evidence was contradicted by his former second wife who told the court a quo that the respondent’s ventures raised income which she surrendered to the appellant.

‘The appellant told the court a quo that although he stays elsewhere, he still has interest in the immovable property and produced several receipts before the court a quo to prove that he was responsible for the maintenance of that property.

After hearing the testimonies ofthe parties and listening to submissions by counse! the court a quo held that taking into account the provisions of the Constitution of Zimbabwe, 2013, s 7(4) of the Matrimonial Causes Act (Chapter 5:13] and international law the respondent was entitled to a $0 per cent share of the Lomagundi house.

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