Guchu (nee Kazungaire) v Guchu (811 of 2022) [2022] ZWHHC 811 (30 May 2022)

1 HH 811-22 HC 4609-21 PRECIUOS GUCHU (NEE KAZUNGAIRE) versus WILKINS CHAKAIPA GUCHU HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 30 MAY, 2022 Divorce A. N Debwe, for the plaintiff S Kuchena, for the defendant MAXWELL J: Plaintiff and defendant were married on 18 August, 2001 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Tania Tashinga Guchu, born 11 July, 2002, T. G (a minor), born 12 November, 2005, and, S. G (a minor), born 8 April, 2008. On 10 of September 2021, Plaintiff issued summons out of this court claiming an order for a decree of divorce together with ancillary relief. In seeking the dissolution of the marriage the plaintiff alleged that the marriage relationship between the parties has irretrievably broken down to such an extent that there are no prospects of restoration to a normal marriage relationship in that:- a) Both parties have lost love and affection for each other. b) The parties have not stayed together and have not live as husband and wife for a continuous period of at least twelve months, which period reckons from March 2011 to the date of instituting these proceedings. On ancillary relief, plaintiff stated that during the subsistence of the marriage, the parties through their joint effort acquired movable and immovable property. She proposed that defendant be awarded all the movable property. She claimed custody and maintenance of the two minor children, tuition expenses, compensation for raising the first born child who is now a major, and a 70% share in the immovable property being House Number 6, Flete Court, Hillview, Quinton HH 811-22 HC 4609-21 Road, Greystone Park Harare. She proposed that she exercises the initial right to buy out the defendant within six months of the granting of the order, failing which defendant would also have six months to buy her out. She proposed that if neither party buys the other out, the property be sold by private treaty and the parties be paid the proceeds of the sale in accordance with their shares. Plaintiff prayed for costs of suit on an attorney-client scale. The defendant defended the matter. In his plea he admitted that the marriage had irretrievably broken down. He denied that the parties contributed equally to the acquisition of the movable and immovable properties. He denied that it is in the best interests of the minor children that he be ordered to pay maintenance. He indicated that he was unemployed and would be applying for spousal maintenance from the plaintiff in his counter claim. He further indicated that the children do not pay school fees in the United Kingdom as education is free. He also indicated that plaintiff had run away with the children to the United Kingdom without his knowledge therefore he is not obliged to pay arrear maintenance whose claim he submitted had prescribed. He disputed neglecting the children at all. Defendant disputed the availability of movable property for distribution. He proposed that plaintiff be awarded a 10% share in the immovable property with him being given the right to buy her out within 24 months from the date of the order. In her replication, plaintiff insisted that the children incur tuition expenses and defendant should pay maintenance. She pointed out that defendant has been supporting and is able to support himself therefore the claim for spousal maintenance will be vigorously opposed. She further pointed out that she left for the United Kingdom with the defendant’s full knowledge and that defendant wrote a letter to the British Embassy in support of her application for a visa prior thereto. She insisted on her claim for compensation for raising the first born child alone and on her 70% share of the immovable property. The parties attended a pre-trial conference, and according to the joint pre-trial conference minute, two issues for trial were set out as the following: a) How much maintenance should be paid by the defendant in respect of each minor child? b) How should the immovable property, namely. No 6 Flete Court, Hillview, Quinton Road, Greystone Park, Harare, be apportioned between the parties? HH 811-22 HC 4609-21 MAINTENANCE Section 7(1) (b) of the Matrimonial Causes Act enjoins a court to make an order for the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage. It is trite that maintenance for minor children is not one-sided. Both parents must contribute, each according to their means. In order to do a proper assessment of what each parent must contribute, it is imperative that evidence be furnished on the pertinent aspects. Plaintiff‘s evidence was that she has been solely responsible for the support of the children since their separation in 2011. Until last year, she got assistance from her younger sister. She supplements her income by performing some casual work. No figure was proferred for the proceeds of the casual work. She is also an entrepreneur, being a director of Realtime Inventories and co-director of Mimosa Logistics, Mimosa Lettings. She testified that the three companies are operating at a loss. She put her recurring monthly expenses at £1573.00 and annual expenses at £1850.00. See Exhibit 2 on page 6 of Plaintiff’s Bundle of Documents. If the annual expenses are to be factored in monthly, it means the total monthly expenses come up to £1727.16 Defendant did not state any income. He did not dispute the submission by plaintiff that in July 2021 he had agreed to pay a total of US$1000.00 as maintenance for the children. He did not dispute that he lives the life of an affluent man. He confirmed sending sums of US$500.00 to the parties’ eldest daughter towards the end of last year. He confirmed owning Kosha Distribution (Pvt) Ltd but did not disclose any earnings therefrom. He put his monthly expenses at $605.00 but did not disclose the source such monies. Parties are required to be candid with the Court and provide evidence of their incomes. defendant has not been candid and therefore adverse inferences are drawn against him. This is more so considering that he has been proposing to pay different amounts as maintenance from the commencement of the proceedings. In his plea and counter claim he does not propose any payment towards the children’s maintenance. In his Summary of Evidence, he offered to pay US$300.00. In his evidence in chief and under cross examination he maintained that he could pay US$100.00 for each child. I find that the parties must contribute equally to the maintenance of the children. Since the total expenses have been put at £1727.16 per month which converts to US$1,931.90 using the online currency HH 811-22 HC 4609-21 converter as at the day of writing this judgment, each party would contribute us$965.95 which translates to US$482.98 per child. I have however considered that defendant did not dispute the fact that Plaintiff has been solely responsible for the upkeep of the children since the parties separated in 2011, and, that in July he offered to pay US$1000.00. For that reason the claim for an order of payment of US$500.00 per month per child is granted. The claim for a lump sum payment of US$41000.00 is not granted as the defendant’s capacity to pay was not established. Plaintiff claimed US$15 000.00 as compensation for the expenses in solely raising Tania Tashinga Guchu, born 11 July, 2002. She alleged that defendant neglected his parental obligations towards the upkeep of the child until she attained majority status. In his plea, defendant indicated that plaintiff had ran away with the children to the United Kingdom without his knowledge and therefore is not entitled to arrear maintenance. Defendant denied neglecting the children and stated that the claim for arrear maintenance had prescribed. In her replication plaintiff disputed that she had run away with the children without defendant’s knowledge. She pointed out that defendant had in fact written a letter to the British Embassy in support of her application for a visa. This claim was not addressed in oral evidence and in the closing submissions. It will therefore be considered abandoned. IMMOVABLE PROPERTY Plaintiff proposed that she be awarded a 70% share of number 6 Flete Court, Hillview, Quinton Road, Greystone Park, Harare (the property), and that defendant be awarded a 30% share. The immovable property is registered in plaintiff’s name. In her evidence in chief, she gave the reason for demanding a bigger share as the fact that defendant has been enjoying the property alone for the past ten years and has deprived her of income which could have been realized if the property had been leased out as she had suggested. In addition, the purchase of the property was mainly funded by her former employer, Kingdom Bank, through a mortgage loan serviced by deductions from her salary. She indicated that the mortgage loan covered 50% of the value of the property and the other 50% was paid from savings. The balance of the mortgage was paid off after defendant raised US$200.00 which was changed to clear the balance that had been affected by inflation. She indicated that for two years they did not pay rent as they were accommodated by her sister. Some of the money was from proceeds from selling cars. The property was purchased in 2004 but they HH 811-22 HC 4609-21 moved in in 2005 as they had to renovate it to their taste. The renovations were financed by their savings and they made equal contributions. Plaintiff testified that around 2019 she had proposed that the property be put in a trust for the benefit of the children. However the Trust was not registered as defendant indicated that he had no money for the registration. In his plea, defendant indicated that plaintiff made minimal contribution towards the acquisition of the property and was just his nominee. Accordingly it would be just and equitable if she is awarded a 10% share with him being given the right to buy her out. In his counter claim he insisted that plaintiff be given a 10% share and that he be given 24 months within which to buy her out. However in his evidence in chief, he testified that the parties are equal and should get equal shares. He said the house has a sentimental value to him and he would want the option to buy plaintiff out. He indicated that the purchase price for the house was $160 million. Plaintiff’s employer was providing $90 million and he had to raise $70 million which ended up being $85 million with interest. He was assisted by his friends to raise the money. He was responsible for paying for the conveyancing fees. The property was registered as an office for Kosha Distribution (Pvt) Limited. In the closing submissions, defendant reverted to his initial demand for a 90% share in the property. After a careful analysis of the parties’ evidence on their contributions towards the purchase and renovation of No 6 Flete Court, Hillview, Quinton Road, Greystone Park, Harare, I am of the view that they made equal contributions in terms of value. Plaintiff is currently residing in the United Kingdom whilst defendant has been utilizing the property in question. However it is plaintiff’s employment at Kingdom Bank that facilitated the mortgage loan that enabled the parties to acquire the immovable property. Accordingly, plaintiff shall be given the first option to buy out defendant’s share. If she fails, defendant shall also have the option to buy her out failing which the property may be sold for the parties to realise their respective shares. THE COUNTER CLAIM Defendant counter claimed for spousal maintenance and an 80% contribution of his bill of costs by the plaintiff. He also prayed for costs of suit on an attorney-client scale. In her plea to the counter claim plaintiff submitted that defendant is not entitled to receive any maintenance from her and that the claim for spousal maintenance is frivolous and vexatious. She disputed the need HH 811-22 HC 4609-21 for her to contribute to defendant’s costs. The defendant, in his replication to the plea to the counter claim insisted on his claims. No evidence was led on the counter claim. It is therefore considered abandoned. COSTS It is trite that costs are in the discretion of the Court regard being had to the conduct of the parties before or during the proceedings. In her summons, plaintiff prayed for costs on an attorney- client scale. It is trite that such costs should be awarded in exceptional circumstances. See Crief Investments (Private) Limited & Anor v Grand Home Centre (Private) Limited & Ors 2018 (1) ZLR 1. A litigant is required to act reasonably and honestly at all stages of the suit. The conduct of the defendant left much to be desired and earned this Court’s disapproval. He was not forthcoming on his income and was inconsistent in his pleadings and in his evidence. He made a counter claim which he did not prosecute. Counsel for the defendant went to lengths cross examining plaintiff on her means and circumstances as if plaintiff was seeking post-divorce spousal maintenance. Defendant also took time to show that plaintiff was to blame for the breakdown of the marriage yet the parties were already agreed on the extent of the breakdown of their marriage and that it ought to be dissolved. As a result, the trial that had been scheduled for a day took two days thereby increasing costs. Cilliers in his book The Law of Costs 2nd ed, states at page66 and 67; - “Absence of bona fides in conducting litigation may constitute a ground for awarding costs on an attorney and client scale…” Considering defendant’s conduct, costs will be awarded against him on an attorney and client scale. DISPOSITION It is hereby ordered that:- 1. A decree of divorce be and is hereby granted. HH 811-22 HC 4609-21 2. Plaintiff be and is hereby awarded custody of the minor children, T. G, born 12 November, 2005, and, S. G, born 8 April, 2008 with defendant excising reasonable rights of access to be agreed to by the parties. 3. Defendant be and is hereby ordered to pay maintenance in the sum of five hundred United States Dollars (US$500.00) per month per child until each child attains majority status or becomes self-sufficient whichever occurs first. 4. Defendant be and is hereby ordered to contribute 50% of tuition expenses per term as may be required for each child until each child attains majority status or becomes self-sufficient whichever occurs first. 5. Plaintiff be and is hereby awarded a 50% share in the immovable property namely, No 6 Flete Court, Hillview, Quinton Road, Greystone Park, Harare, and the defendant a 50% share. 6. The property shall be valued by a mutually agreed valuator within 30 days from the date of this order. Failing such agreement the registrar is hereby directed to appoint a valuator from his list of valuators within 30 days from the date of such request from the parties. 7. Plaintiff be and is hereby granted the option to buy out Defendant’s share within 6 months from the date of receipt of the valuation report. 8. Should plaintiff fail to buy out defendant’s share within the above stated period, defendant shall have the option to buy out plaintiff’s share within 6 months after plaintiff’s failure to exercise her option. 9. Should neither party succeed in buying the other out, the property shall be sold to best advantage by an estate agent agreed to by the parties or one appointed by the Registrar should the parties fail to agree on such agent. 10. The net proceeds shall be shared equally between the parties. 11. The Defendant’s counter claim be and is hereby dismissed. 12. Defendant is to pay costs of suit on an attorney and client scale. Debwe & Partners, plaintiff’s Legal Practitioners. L. T. Muringani Law Practice, defendant’s Legal Practitioners, HH 811-22 HC 4609-21