MUSA JOHNSON KWEDZA
CHRISTINE KWEDZA (NEE MARTIN)
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & PATEL JA
HARARE, MAY 7, 2013
T W Nyamakura, for the appellant
C Chinyama, for the respondent
GARWE JA: After hearing argument from counsel, this Court dismissed the appeal with costs and indicated that the reasons for such dismissal would follow in due course. What follows are the reasons for that order.
The appellant and the respondent were husband and wife. Owing to irreconcilable differences during the marriage, the respondent issued summons claiming a decree of divorce and various other ancillary relief. At the hearing of the matter before the High Court various issues were resolved by the parties and the only issue that remained was the distribution of the immovable properties acquired during the subsistence of the marriage.
There were two properties at the centre of the dispute. These were number 18 Normarton Close, Marlborough, registered in the names of both parties and 60 Garlands Ride, Mount Pleasant, registered in the name of a company, Lilford Investments Private Limited, whose entire shareholding was held by the Garlands Trust. For purposes of this judgment these will be referred to as “the Marlborough property” and “the Mount Pleasant property” respectively. The court a quo found that, although registered in the name of a company, the Mount Pleasant property was controlled entirely by the respondent and that it was in fact the respondent’s alter ego. On that basis, the court a quo found it proper to pierce the corporate veil and include that property as part of the matrimonial estate. Indeed the appellant, whilst accepting that he had not contributed in any way to the acquisition of that property, had urged the court a quo to treat the property as part of the matrimonial property. The court also took into consideration that the appellant “had” a farm whose full details had not been disclosed.
Having taken into account the provisions of s 7 of the Matrimonial Causes Act, [Chapter 5:13] (“The Act”), the court a quo decided to award the appellant sixty five per cent of the Marlborough property and the respondent the remaining thirty five per cent. Although he did not say so specifically, the learned trial Judge allowed the respondent to retain whatever rights she had in the Mount Pleasant property and the appellant in the farm. What is the subject of this appeal is the order awarding the respondent a thirty five per cent share in the Marlborough property.