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Mziyonke and Another v Mziyonke (Civil Appeal No. 2 of 201) [2001] BWCA 28 (20 July 2001)

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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Civil Appeal No. 2 of 2001
[High Court Matrimonial Cause No. 136 of 1997]
In the matter between:
JOHN MASHABILE MZIYONKE  1st Appellant
ESTHER AMOS      2nd Appellant
And
KEIPEILE MZIYONKE        Respondent
L.T. Mothusi for the Appellants M.D. Keganne for the Respondent
JUDGMENT
CORAM: LORD WEIR J.A.
SIR JOHN BLOFELD J.A GROSSKOPF J.A.
LORD WEIR J.A.
On 7th December 1999 the Court a quo made an order declaring that the marriage
purportedly contracted between the plaintiff and the defendant was null and void
ab initio. One matter of controversy between the parties remained outstanding,
namely the existence of an alleged universal partnership between them. The case
was adjourned to enable this issue to be determined at a subsequent hearing. After
hearing evidence, the Court a quo found that the parties had agreed that during the
currency of their purported marriage property acquired by each should become

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their joint property. This was liable to be divided between them upon dissolution of the marriage.
In disposing of the question of division of property, Dibotelo J. on 9th February
2001 pronounced the following order:
"(a) the defendant and 3rd party shall take house No. 11489 Block 8 Francistown, house No. 23632 Bontleng Gaborone and the residential house at Maitengwe and all household goods therein as their absolute property.
(b)    
the plaintiff shall take house No. 12353 Block 4 Francistown and the plot at Letlhakane as her absolute property.
(c)    
the defendant and 3rd party shall within 60 days pay the plaintiff P22,506.00 being the costs of repairs to house No. 12353 Block 4 Francistown.
(d)    
The defendant and 3rd party shall pay the plaintiff PI00,000.00 (one hundred thousand Pula) within 60 days being the value of her share in industrial plot No. 1897 Francistown.
(e)    
The defendant and 3rd party shall pay plaintiff the value of her 20% shares in Mokest Building Construction and Plumbing Services (Pty) Ltd.
(0 Costs of suit are awarded to the plaintiff."
In this appeal, challenge of the order was restricted to paragraphs (d) and (e) thereof. Mr. Mothusi endeavoured to present an argument relating to paragraph (c) but refrained from pursuing it when it was pointed out to him that this was not covered in his grounds of appeal.

T 3
So far as head (d) was concerned, Mr. Mothusi asked the court to remit the case to the court a quo upon the basis that there was no evidence to support the valuation of Industrial Plot No. 1897, Francistown. He stated such a remit would cause no prejudice to the respondent and that this would enable justice to be properly done. Dibotelo J. held that the appellant was entitled to a certain proportion of the valuation of this property, (a proportion not challenged before this court) and he assessed the value at P3 50,000.00. While it is true that there was no valuation of this property, the respondent gave her own opinion as to the value of the plot and her evidence was not challenged on this point at any time. This being undisputed, the court a quo was entitled, in my view, to accept the figure given to by the respondent. If the appellant had wished to challenge the figure given, the time to do so was at the trial through cross-examination of the respondent and, if so advised, by the appellants leading a contradictory evidence of the value. There are no grounds therefore, to seek to overcome any shortcoming in the appellants' case by a remit back to the court a quo.
As regards the challenge to head (e) Mr. Mothusi submitted that this part of the order was not clear in its terms. He did not submit that the respondent was not entitled to be paid on the value of 20% shares in the company but he submitted, first, that there was nothing in the order indicating the value of the shares in question and, second, that the order was silent as to the date when these shares should be valued. I consider that there is substance in this submission. The appellants are entitled to know precisely how they are to comply with the terms of

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the court order. Where an order for payment is made, as here, it is necessary to put a precise monetary value on the shares not least because of the possibility of steps having to be taken in future to execute the court's order if payment is not made. In addition, in order to achieve such a valuation it is necessary to ascertain as to what date the shares should be valued. On the latter question there was a dispute. Mr. Mothusi argued that any valuation should be made at the time when the universal partnership was dissolved, that is to say, when the appellant and the respondent ceased to live together as husband and wife in 1997. Mr. Keganne submitted that the shares were in fact still in the ownership of the respondent and this fact was unaffected by the dissolution of the partnership. He submitted that the value of the shares should be ascertained as at the time of the order of the Court a quo. I consider that the submission of Mr. Keganne is correct and that will be the date for ascertaining the value of the shares.
The attorneys for both parties have agreed that the best way of ascertaining the value of the shares is for this to be done by an independent accountant and not by leading further evidence. They have agreed that this should be done by Chartacc Business Services, Box 28 Francistown. It will be for them to make a valuation of the shares as at 9th February 2001 (being the date of the order of the Court a quo) in light of such information as may be given or representations made by the appellants and the respondent. It would be proper for their fees to be paid equally by the appellants on one hand and by the respondent on the other hand. In return

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for payment representing the value of the shares, the respondent will be bound to transfer her shares to the 1st appellant.
I do not consider that it would be expedient for this court to retain control of this case and in terms of Section 7 of the Court of Appeal Act the appropriate course would be to direct the court a quo to proceed to dispose of the question of the valuation of the shares in the manner which I have indicated.
As far as the costs of the appeal are concerned the appeal was successful only to a limited extent and they should be paid by the appellants to the respondent to the extent of one half. The costs in the court a quo are unaffected since they were not the subject of appeal.
Delivered in open court at Lobatse on 20th July 2001.
LORD WEIR [JUDGE OF APPEAL]

I agree:
SIR JOHN BLOFELD [JUDGE OF APPEAL]


I agree:

F.H. GROSSKOPF [JUDGE OF APPEAL]

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