The order in paragraph 3 directing the appellant to pay the respondent 25% of the value of the Mazda 626 registration No. 843-703 S and 25% of the value of the Domboshava House was appealed against on the ground that the learned Judge misdirected himself in treating these assets as “matrimonial property”.

The contention was that the appellant acquired the motor vehicle and completed the construction of the house long after the parties had separated.

The same argument was advanced in respect of Stand No.12 Lomagundi Road, Mount Pleasant.

It was argued, further, that the immovable property was registered in the name of a third party.

The effect of the contention was that the court, in the exercise of the broad discretion conferred on it under section 7(1) of the Matrimonial Causes Act [Chapter 5:13] should not have granted the respondent the right to a portion of the value of property purchased by the appellant when the parties were on separation.

The Mazda 626 motor vehicle was, indeed, purchased by the appellant and registered in his name in 2003. He completed the construction of the Domboshava House in 2004. The construction commenced when the parties were still living together. The intention had been to use the house as a matrimonial home whenever they visited the communal area.

Stand No.12 Lomagundi Road, Mount Pleasant was purchased in July 2004. He registered the property in the name of his new wife.

It was also common cause at the trial that in 1994 the appellant formed a company called Wonder Valley (Pvt) Ltd (“the company”). The company had four shares of $1= each which the appellant allotted to the respondent, two sons and himself.

The nominal shareholders did not pay for the shares.

The object of the company was to carry on farming business on Wonder Valley Farm (“the farm”). The farm was owned by the appellant, so were all the equipment and implements used at the farm. The appellant took full responsibility of managing the farming business which involved growing cotton and maize. The respondent joined her husband at the farm in March 1987. She, however, did not play an active role in the management of the farming business. She looked after the matrimonial house and the children. She started a poultry project and generated income which she used as she pleased.

The respondent claimed 25% of the value of the Mazda 626 and the immovable properties on the ground that the money used to purchase the assets in question came from the proceeds of the farming operations. The contention was that the money belonged to the company in which she had an interest. She said that the appellant had no other source of income besides the farming business.

The appellant did not deny that the money he used to purchase the assets in question came from the sale of farm produce.

The learned Judge found that the money used by the appellant to purchase the Mazda 626, Stand No.12 Lomagundi Road, Mount Pleasant and for the construction of the Domboshava house belonged to the company. On the basis that the respondent had an interest in the company he held that she was entitled to 25% of the value of each property.

Whilst counsel for the appellant argued that the learned judge misdirected himself in approaching the question of the apportionment of the proceeds used to purchase these assets on the basis that the respondent had a right to claim company property, he nonetheless confessed that he was unable to go so far as to contend that the resultant apportionment was in effect not just and equitable when viewed in a situation where the corporate veil has been lifted.

It is important to note that a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings.

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] provides that the court may make an Order with regard to the division, apportionment or distribution of “the assets of the spouses including an Order that any asset be transferred from one spouse to the other.”

The rights claimed by the spouses under section 7(1) of the Matrimonial Causes Act [Chapter 5:13] are dependent upon the exercise by the court of the broad discretion.

The terms used are the “assets of the spouses” and not “matrimonial property”.

It is important to bear in mind the concept used because the adoption of the concept “matrimonial property” often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are on separation should be excluded from the division, apportionment or distribution exercise. The concept “the assets of the spouses” is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.

To hold, as the court a quo did, that, as a matter of principle, assets acquired by a spouse during the period of separation are to be excluded from the division, apportionment or distribution a court is required to make under section 7(1) of the Matrimonial Causes Act is to introduce an unnecessary fetter to a very broad discretion, on the proper exercise of which the rights of the parties depend.

It must always be borne in mind that section 7(4) of the Matrimonial Causes Act requires the court, in making an order regarding the division, apportionment or distribution of the assets of the spouses, and therefore granting rights to one spouse over the assets of the other, to have regard to all the circumstances of the case.

The object of the exercise must be to place the spouses in the position they would have been in had a normal marriage relationship continued between them.

As was pointed out by LORD DENNING MR in Watchel v Watchel [1973] 3 ALL ER…,:

“In all these cases, it is necessary at the end to view the situation broadly and see if the proposals meet the justice of the case.”

Each case must depend on its own facts.

I accept the contention by counsel for the appellant that having found that the money used to purchase the Mazda 626, Stand No.12 Lomagundi Road, Mount Pleasant and for the construction of the Domboshava house belonged to the company, the learned Judge erred in holding that the respondent was entitled to make a claim to a share of company property.

A company, being a legal persona, owns its own property. Shareholders do not own company property.

Whilst accepting the principle that company property does not belong to the shareholders and that only officials duly authorized by resolutions can claim company property from third parties, counsel for the respondent argued that this was a proper case where the circumstances justified the lifting of the corporate veil in order that justice could be done in the apportionment of the assets in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13].

In other words, the court a quo was faced with the question whether the property rights, a proportion of the value of which was claimed by the respondent, in reality lay with the appellant or the company.

In Shipping Corp of India Ltd v Evdomon Corp & Anor 1994 (1) SA 550 (A)…, quoted with approval by SANDURA JA in Van Niekerk v Van Niekerk & Ors 1999 (1) ZLR 421 (S)…, CORBETT CJ said:

“It seems to me that, generally, it is of cardinal importance to keep distinct the property rights of a company and those of its shareholders, even where the latter is a single entity, and that the only permissible deviation from this rule known to our law, occurs in those (in practice) rare cases where the circumstances justify 'piercing' or 'lifting' the corporate veil…,. I do not find it necessary to consider, or attempt to define, the circumstances under which the court will pierce the corporate veil. Suffice it to say that they would generally have to include an element of fraud or other improper conduct in the establishment or use of the company or the conduct of its affairs.”

In Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 the husband used the company to claim an eviction of his wife from a matrimonial house leased by the company. It was found that the company was a “one man company”. The husband was its sole effective shareholder. The court was prepared to pierce the corporate veil to do justice to the wife.

BEADLE CJ said that the husband owned the company and its mind was his.

The learned CHIEF JUSTICE went on say…, that:

“In the circumstances of this particular case, it seems to me that the appellant company was nothing more than Veldman's alter ego, and that the appellant company possessed no greater rights to eject the respondent than Veldman himself possessed….,. I propose to examine this application on the basis that it was Veldman himself who brought the application because I cannot see, on the facts of this case, how it can be held that the appellant company could have any greater rights than Veldman himself possessed.”

Had the corporate veil not been lifted, Veldman would have succeeded in using the company to avoid the duty he owed to his wife to provide her with suitable alternative accommodation before evicting her from the matrimonial house.

In this case, the respondent did not take any active part in the administration of the affairs of the company. For all practical purposes the company was a “one-man company”. The appellant was the sole active director. He used his own land, implements and labour to generate the income which he used to purchase the properties, the proportion of the values of which the respondent claimed. The three assets which belonged to him constituted the income-producing assets. The share held by the respondent was not an income producing asset.

In other words, there was no share capital invested by the respondent in the company which contributed to the production of the money used to purchase the properties in question.

Stripped of the corporate veil, the proceeds from the farming operations belonged to the appellant. The company was nothing more than the appellant's alter ego. It had no greater right to the money than he possessed.

The question is whether, considering all the circumstances of the case, the apportionment of the values of these assets ordered by the court a quo produced a just and equitable result. In other words, did the apportionment achieve the main purpose of the exercise which is to place the parties in the position they would have been in had a normal marriage relationship continued.

I am proceeding on the basis that the proceeds from the farming operations belonged to the appellant and would have fallen within the category of the “assets of the spouses”.

The Mazda 626 motor vehicle and the Domboshava house belonged to the appellant at the time the court a quo made the Order with regard to the apportionment of their values. The fact that the assets were acquired or created during the period the spouses were on separation does not put them outside the category of the “assets of the spouses”.

Counsel for the appellant properly conceded the fact that when all the circumstances of the case are taken into account the granting to the respondent of the right to 25% of the value of each of these assets was a proper exercise of discretion by the court a quo.

The 25% share in the proceeds from the farming operations which came into the possession of the appellant before he used it to purchase Stand No.12 Lomagundi Road, Mount Pleasant would have been a benefit to which the respondent would have been entitled had a normal marriage relationship between the spouses continued. It is a benefit she lost as a result of the breakdown of the marriage.

Section 7(4)(f) of the Matrimonial Causes Act [Chapter 5:13] enjoins a court to have regard to the value of such a benefit.

To place the spouses in the position they would have been in had a normal marriage relationship continued, it was just and equitable to award the respondent 25% of the value of Stand No.12 Lomagundi Road, Mount Pleasant.

The real rights in the house vested in the new wife.

The respondent did not claim a share in the house. She claimed an amount of money equivalent to 25% of the value of the immovable property. The claim did not affect the interests of the new wife in the property. The value of the property is necessary only for the purpose of fixing the amount of money the appellant would be obliged to pay to the respondent. Since the respondent would have no right to enforce the order by executing against the immovable property owned by the third party, it was inappropriate for the learned Judge to give the appellant the right of option, in paragraph 8, to buy out the respondent in respect of Stand No.12 Lomagundi Road, Mount Pleasant.

The property does not belong to him.

The order in paragraph 8 must be read as excluding any reference to Stand No.12 Lomagundi Road, Mount Pleasant.

It is also necessary to extend the time within which the option to buy out the respondent in respect of the other assets referred to in paragraph 8 of the order may be exercised to 30 July 2009.

The appeal is otherwise dismissed with costs.

The plaintiff and defendant were joined in holy matrimony in terms of the Marriages Act [Chapter 5:11] on 8 January 1988 at Harare. Their marriage subsists.

Their marriage was blessed with two children who are now adults.

During the subsistence of the marriage they acquired both movable and immovable properties.

After many years of marriage, some irreconcilable differences arose which led to the plaintiff filing for divorce and other ancillary relief against the defendant. The plaintiff alleged that the marriage relationship has irretrievably broken down to such an extent, that, there are no prospects of restoration of a normal marriage relationship in that:

(a) The parties do not have any meaningful communication resulting in each party living his/her own life.

(b) The plaintiff has lost love for the defendant.

(c) There is disharmony, distrust, and disrespect between the parties, and, as a result, there is no peace between the parties.

At the time of issuance of the summons, the children were still minors and so the plaintiff had asked to be granted custody of the minor children.

On immovable property, she asked for a 50% share in the matrimonial house; namely, 18 Normanton Close, Marlborough, Harare. She provided what she deemed an equitable distribution of the movable property.

The defendant initially contended, that, the marriage had not irretrievably broken down; he envisaged it could be salvaged.

He also made a counter claim in which he claimed custody of the minor children, and that the immovable property, 18 Normanton Close, be donated to the children of the marriage.

He later amended his claim to include that, in the alternative, he be declared the sole and absolute owner of Number 18 Normanton Close, Marlborough, Harare. This amendment came about because the plaintiff had categorically rejected the suggestion that the property be donated to the children.

At a pre-trial conference held on 13 September 2005, most of the issues were resolved. The major issue referred to trial pertained to the distribution of the immovable property.

On the date of trial, all issues, except on the immovable property, were confirmed as having been settled.

The two children were now adults and so any issue relating to children was no longer sustainable.

The parties had distributed the movable assets in terms of a document they tendered as exhibit 3.

Both had finally accepted that the marriage has irretrievably broken down.

The parties could not settle on the immovable property due to the fact, that, apart from the Marlborough house, the plaintiff had also bought Number 60 Garlands Ride, Mt Pleasant during the subsistence of the marriage.

They could not agree on how to treat that property.

The defendant wanted it to be considered in the division, apportionment, and distribution of the assets of the spouses whilst the plaintiff contended that it should not be considered as it was registered in the name of a company whose shareholding was 100% held by Garlands Trust.

The plaintiff gave evidence after which the defendant gave evidence.

From the evidence adduced, it is common cause that both parties had contributed financially to the purchase of the Marlborough house. That property is registered in their joint names and so joint ownership is not disputed.

It is common cause, that, after living in the Marlborough house for some time the couple moved to Number 60 Garland Ride, Mt Pleasant in 1993 which the plaintiff had bought that same year.

They have since been living in that house serve for a period of two years when they moved back to the Marlborough house.

The Mt Pleasant property was bought by the plaintiff and is registered in the name of a company, Linford Investment (Pvt) Ltd.

It is common cause that the couple lived in that property rent free.

The plaintiff's argument was to the effect, that, as the Mt Pleasant property was registered in the name of a company it should not be considered as matrimonial property. In any case, she is not a shareholder in that company. The entire shareholding is held by a trust - Garlands Trust of which she is one of the three Trustees. She formed that Trust for the benefit of the children, her parents, and her sister.

The plaintiff indicated that she and her daughter, Chiedza, were the directors in Linford Investment (Pvt) Ltd.

The plaintiff confirmed, that, she was the accounting officer of the company and that for all intents and purposes she controls the assets of Linford Investment (Pvt) Ltd. She is the one with the power to make decisions concerning the company. She does the annual returns which are then signed by herself and Chiedza.

It was clear that the plaintiff did not want this property considered in anyway in the distribution of assets of the spouses.

She contended, that, the only immovable property for sharing is the Marlborough house which she insisted must be shared equally.

On his part, the defendant contended, that, the Mt Pleasant house must be considered in the apportionment and distribution of the property. It is a property that was acquired during the subsistence of the marriage and the plaintiff still stands to gain from it by living in it rent-free.

Though registered in the name of a company, it is, for all intents and purposes, the plaintiff's property.

The division of assets, consequent to a divorce, is governed by section 7 of the Matrimonial Causes Act [Chapter 5:13] (herein after referred to as “the Act”).

Section 7(1)(a) of the Matrimonial Causes Act states that:

“Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment, or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

Subsection (4) of section 7 of the Matrimonial Causes Act then enjoins the appropriate court to consider all the circumstances of the case in the exercise of its discretion in this regard by stating that:-

“In making an order in terms of subsection (1), an appropriate court shall have regard to all the circumstances of the case including the following -

(a) The income-earning capacity, assets, and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) The standard of living of the family, including the manner in which any child was being educated or trained or is expected to be educated or trained;

(d) The age and physical and mental condition of each spouse and child;

(e) The direct or indirect contribution by each spouse to the family, including contributions made by looking after the house and caring for the family and any other domestic duties;

(f) The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g) The duration of the marriage;

and, in so doing, the court shall endeavour, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and the children in the position they would have been in had a normal marriage relationship continued between the spouses.”

As aptly noted by MALABA JA in Gonye v Gonye 2009 (1) ZLR 232…,:

“It is important to note, that, a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment, or distribution of the assets of the spouses in divorce proceedings.

Section 7(1) of the Act provides that the court may make an order with regard to the division, apportionment, or distribution of 'assets of the spouses' including an order that any asset be transferred from one spouse to the other.'

The rights claimed by the spouses, under s7(1) of the Act, are dependent upon the exercise by the court of broad discretion…,.

The terms used are the 'assets of the spouses' and not matrimonial property.

It is important to bear in mind the concept used, because the adoption of the concept 'matrimonial property' often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are separated should be excluded from the division, apportionment, or distribution exercise.

The concept 'assets of the spouses' is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regards to the division, apportionment, or distribution of such assets.”

The wide discretion must of course be exercised judicially taking into account the circumstances of each case. The object of the exercise must be to place the spouses in the position they would have been in had a normal marriage relationship continued between them.

In an effort to achieve this object, the court has demanded of spouses to be candid with the court in respect of their assets individually and jointly.

The question, in the instant case, is whether the Mt Pleasant house should be considered in assessing a fair and equitable manner in the division, apportionment, and distribution of assets of the spouses.

The plaintiff says it must not be considered because it is owned by a company. The defendant says it must be considered, as, for all intents and purposes, it is the plaintiff's property, or, at least, it is for her benefit.

It is important to examine the relationship between the plaintiff and the company in question.

In Sibanda & Anor v Sibanda 2005 (1) ZLR 97 (S), when the marriage failed, the wife obtained a decree of nullity. The parties were possessed of nine immovable properties, as well as numerous vehicles. Apart from one property and one car, all the property, movable and immovable, including the matrimonial home, was registered in the name of one or other company or nominee of the appellant. The directors of those companies were the appellant's parents and one of his girlfriends – but, the sole signatory on the various bank accounts was the appellant, who controlled all the companies. The trial judge awarded the wife a house which was registered in the name of one of the companies. That house had been the matrimonial home for ten years before the marriage was annulled. The husband contended, that, as the house was owned by a company wholly owned by the appellant, it did not constitute matrimonial property which fell to be divided in terms of the Matrimonial Causes Act.

The Supreme Court, at p103E-F, whilst acknowledging the fact that a company duly incorporated is indeed a distinct legal entity endowed with its own legal personality went on to state that:

“However, the veil of incorporation may be lifted, where necessary, in order to prove who determines or who is responsible for the activities, decisions, and control of a company.”

Upon finding that the appellant was the one who controlled the company, the court of appeal dismissed the appeal.

In Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H) NDOU J followed the above reasoning and considered property registered in the name of a company in the division, apportionment, and distribution of assets of the spouses.

Equally, in Gonye v Gonye 2009 (1) ZLR 232 …, the Supreme Court held that:

“Where the issue arises of whether the property rights, a proportion of the value of which is claimed by the one of the spouses, in reality lay with the other spouse or a company run by him, it is permissible to 'lift the corporate veil' in order that justice could be done in the apportionment of the assets in terms of s7(1) of the Act. Where the company can be said to be the spouse's alter ego, the company's assets and proceeds can be said to be the spouse's and thus can be subject of an order under s7(1).”

It is apparent that a primary consideration is on the relationship between the person seeking to distance the assets and the company or entity in whose name the property may be registered.

In casu, the plaintiff said that, in about 1993, she bought the house in question by buying shares in the company that previously owned the house. In 1992 she had created a Trust in which she is one of the three Trustees. She said the Trust is for the benefit of the couple's children, her parents, and her sister. The other trustees are apparently people of her choice. The directors of the company, herself and Chiedza, were apparently out of her choice as well.

As already alluded to above, it is common cause that the plaintiff has been the accounting officer for the company since its inception. She will continue to be so. There is no denying that she is the one in total control of the company. From her own evidence, it is clear, that, she is the one who has been and will continue to make decisions for the company. Other persons mentioned, even as Trustees, appear to be her nominees.

It is common cause, that, since the family started living at 60 Garland Ride, they have not been paying rent. The family has been living rent-free. The plaintiff will continue to live in the house in question rent free for as long as she desires.

Apparently, no one has the power to deny her of this.

It is my view, that, all this points to the fact that the plaintiff has more interests in the house in question than she would like the court to believe. The property is virtually hers as she has the mandate to do as she pleases with it.

In the circumstances, I am of the view, that, the property ought to be considered in the division, apportionment, and distribution of assets of the spouses.

The defendant's claim is not for a share in the Mt Pleasant house but that it be considered in determining his claim for an award of the Marlborough house since he needs a roof over his head. The plaintiff will have the Mt Pleasant house.

Taking into account the object of section 7(4) of the Matrimonial Causes Act, particularly the need to place the spouses in the position they would have been in had a normal marriage relationship continued, it is clear that each party would have remained entitled to live in the Mt Pleasant house rent-free at the determination of the plaintiff. The defendant would not be without a roof over his head.

It is only fair that whatever apportionment or distribution is done does not burden the defendant so much that he is left without accommodation.

Mention was made that the defendant has a farm which he can use.

Unfortunately, not much was said about this farm save to say it is far away and the defendant would not be able to commute thereto and from on a daily basis in order to run his business. Not much was said on the suitability of the accommodation at this farm for a husband who had been used to living in the Mt Pleasant house.

In deciding on the issue of how much to award the defendant as his share of the Marlborough house, I will also consider the fact, that, whilst in the Marlborough house, both parties contributed in its purchase; in the Mt Pleasant house, the defendant did not make a direct contribution towards its purchase.

The Marlborough house is registered in the joint names of the parties whilst the Mt Pleasant house is not.

Registration in joint names is prima facie proof of a 50:50 ownership in the property.

The question to be answered is whether the justice of the case requires that a spouse's share be awarded to the other, if so, how much of that share?

After a careful assessment of the parties contributions, needs, and other factors, as detailed in section 7(4) of the Matrimonial Causes Act, I am of the view this is a case where a part of the plaintiff's share should be transferred to the defendant to achieve a just and equitable distribution of the assets of the spouses. A deduction of 15% would, in my view, be appropriate in the circumstances. I thus conclude, that, the defendant deserves a 65% share in the Marlborough house and the plaintiff a 35% share.

The defendant will be granted the option to buy out the plaintiff's share within 120 days.

Accordingly, it is hereby ordered that:

1....,. 

2. The movable property be distributed in terms of exhibit 3, with the plaintiff being awarded items under annexure A and the defendant items under annexure B. The document, as agreed by the parties, is hereby attached as part of this order.

3. The plaintiff is hereby awarded a 35% share in the immovable property, namely, No.18 Normanton Close, Marlborough, Harare, also known as Stand 728 of Stand 558A Marlborough Township, Harare.

4. The parties shall agree on the value of the property within 14 days of the date of this order failing which they shall appoint a mutually agreed evaluator to evaluate the property within 30 days of the date of this order.

5. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint one from his list of independent evaluators to evaluate the property.

6. The parties shall share the cost of evaluation in the ratio 35:65 (as per their shares in the property). The defendant shall pay off the plaintiff her share within 120 days from the date of evaluation unless the parties agree on a longer period.

7. Should the defendant fail to pay or to make a payment plan acceptable to the plaintiff within the period stipulated in (6) above, the property shall be sold to best advantage by a mutually agreed estate agent or one appointed by the Registrar of the High Court and the net proceeds therefore shall be shared as per their respective shares in the property.

8. Each party shall bear their own costs of suit.

The plaintiff also testified that when he was employed by the Public Service he was allocated a three bed roomed flat, described as Number 91 Block 7, Francis Flats, Belvedere. 

At some stage, he contributed towards a housing scheme run by the then Ministry of Local Government and National Housing (now Ministry of Housing and Social Amenities). The contract with that Ministry entailed the provision of a Stand, a flat, or a house. He was allowed to occupy the flat until the contractual obligations of the Ministry were fulfilled. 

He, in turn, offered the defendant occupation of the flat and she declined....,.

Regarding the flat, it was the defendant's testimony that it is currently occupied by the plaintiff's sister. It appears there is a legal dispute regarding the flat. According to the defendant, every time an attempt has been made to remove the plaintiff's sister the plaintiff has had recourse to the courts. That is why she is not interested in the flat....,.

The plaintiff's evidence was that he contributed to a housing scheme called “Pay for Your Own Housing Scheme”. In terms of the contract, he was to be provided with a Stand, a house, or a flat. The Ministry of Housing and Social Amenities acknowledged its obligation and allowed him to retain occupation of the flat which he leased when he was employed in the Public Service. It is this flat he said he offered the defendant for her occupation and she declined.

No documentation was tendered to confirm the status of the property. On the evidence available, the Flat does not belong to the parties and cannot constitute matrimonial property. At most, the plaintiff is holding the flat as a lien....,.

It was the plaintiff's evidence that the defendant acquired a residential Stand through her employers. However, he could not give particulars of the Stand....,.

Although the plaintiff put it to the defendant that she owns a residential Stand, this was denied.

The plaintiff and the defendant married on 28 June 2002 in Finland. No children were born of this union. In December 2007 the plaintiff moved out of the matrimonial home, and, on 30 April 2008, he issued summons out of this court seeking a decree of divorce and other ancillary relief.

The defendant opposed the claim on the basis that the marriage had not broken down. She also claimed movable property and an immovable property known as Stand 9 Dorset Road, East Avondale, Harare.

At a pre trial conference held before a judge in chambers, the defendant applied to amend her plea by including four other immovable properties and a list of movable property for distribution. She also sought an amendment to her claim to Number 9 Dorset Road, East Avondale to an award of any of the properties.

This amendment was granted by consent at the pre-trial conference by KUDYA J on 6 February 2009.

At the hearing, it was conceded, by the defendant, that the marriage between the parties has irretrievably broken down. The issues which were thus before the court for determination were:

1. What constitutes the parties matrimonial estate; and

2. How the property should be distributed.

The issue of the assets was seriously contested and the parties did not agree on anything.

The plaintiff's position was that the property was not matrimonial property, and, in any event, the defendant had made no contribution towards their purchase. The defendant, on the other hand, took the view that the property was matrimonial property and she was entitled to a share.

The plaintiff testified that he married the defendant under customary law on 2 February 2002 and registered the marriage in June 2002. He stated that it was a short, unhappy marriage characterized by abuse, by the defendant, of his father and children. He had terminated his first marriage to Maseline Makani on 15 January 1999. He and his ex-wife purchased Number 9 Dorset Road for their daughter Diana. The property was purchased in May 2001 and registered in her name on 6 July 2001. This was well before he started dating the defendant.

When the plaintiff married the defendant he was living at Number 46 Masocha Ndhlovu Road, Hatfield. The property is registered in the name of Tarbell Trust which was established in 2001. The beneficiaries of the Trust are the defendant's children.

He denied that he owned a property at Number 9 Kirsten Borsch Mews in Josiah Chinamano Avenue. He stated that he tried to purchase it but the agreement fell through because he had insufficient funds.

Buckingham Gate was acquired in early 2002 and it is registered in the name of Tarbell Trust.

Stand 7740 Tynwald was acquired in 1999. He does not have title to the property though the Agreement of Sale was signed in 2000.

Stand 1120 Prospect Township was acquired by the plaintiff in 1997; he purchased it together with his first wife who is now late. It was transferred into his name in 1999.

He denied that any of these properties were purchased with the defendant, as, at that time, she was married to another person. It was the plaintiff's evidence that the property thus did not constitute matrimonial property and was not available to the defendant for distribution....,.

He stated that although he drives the Mercedes Benz it did not belong to him but to a company known as Linridge Trading (Pvt) Ltd. He produced the registration book for the motor vehicle. He stated that it is not part of the matrimonial property as he is not a shareholder of the company concerned. He stated that he merely does consulting work for the company and he drives the motor vehicle as part of his benefits.

The defendant testified that she met the plaintiff in 1996 and they started dating. He married her in accordance with African custom on 17 March 2001. She was living in Finland at the time and had come home on a visit. She returned to Finland on 17 March 2001. They were supposed to register the marriage in June 2001 but they failed to do so due to some problems. They eventually registered their marriage in June 2002.

In 2001, the plaintiff was staying in Hatfield. He then suggested that they purchase a house. At the time, she had received 50,000 Finnish marks which translated to about US$20,000. She gave the plaintiff US$10,000 towards the purchase of a house. When she returned to Zimbabwe, in January 2003, Number 9 Dorset Road had been purchased. She assumed that it had been purchased from some of the money she had given the plaintiff. She only learnt, later, that it was registered in the name of Diana his daughter.

She stated that the Tynwald property, and Stand 1120 Prospect, were purchased as undeveloped Stands. The properties were subsequently developed in 2003 - after the parties married. She stated that she assisted by delivering building materials to the Stands.

The property at Number 9 Kirsten Bosch Mews was purchased after they were married. She stated that at some stage they furnished the property as they were letting it out to a tenant. She was however unable to disprove the plaintiff's assertions that he did not eventually purchase the property.

Buckingham Gate was also purchased after they were married but she does not know when it was bought.

With respect to the movable property, she stated that they purchased household furniture together with the plaintiff. She stated that they purchased the washing machine, microwave oven, Technics Hifi, two leather lounge suites, two stoves, six television sets, a bedroom suite, three VCRs, a DVD player, Dual decoder, a dining room suite, a Prado, and a C200 Mercedes Benz.

She conceded that she had not contributed financially towards the purchase of these goods but they were purchased during the subsistence of the marriage....,.

It was apparent from the plaintiff's evidence that he has worked hard in his life and has accumulated considerable wealth. His prime pre-occupation appears to safeguard this property for his children. In order to achieve his purpose he established a Trust and he used this as a vehicle to own the immovable property that he has acquired....,.

The plaintiff submitted that all the movable and immovable property that the parties have was acquired before he married the defendant, and, therefore, does not constitute matrimonial property. He argues that it should therefore not be distributed upon divorce.

Section 7(3) of the Matrimonial Causes Act [Chapter 5:13] provides as follows:

"(3) The power of an appropriate court to make an order in terms of para (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage -

(a) By way of an inheritance; or

(b) In terms of any custom, and which, in accordance with such custom, are intended to be held by the spouse personally; or

(c) In any manner, and which have particular sentimental value to the spouse concerned.”

It seems to me that a proper interpretation of this provision allows a court, in making an award, to take into account all the property acquired by the parties whether before or during the marriage provided that it does not fall in the exceptions outlined in the section.

I take this view because section 7(4) of the Matrimonial Causes Act does not just look at the question of contributions when a court is called upon to distribute property upon divorce. The court is enjoined to take into account all the factors which are set out in subsection 4 and then make an equitable distribution.

Clearly, it was the intention of the legislature to include all the property owned by the parties.

The whole thrust of section 7 of the Matrimonial Causes Act is to place the parties, as far as is reasonable and practical, in the position they would have been had the marriage relationship continued between them.

A property may only be excluded from consideration if it was inherited, acquired in terms of custom, or it is of sentimental value to a party.

The plaintiff has not sought to rely on any of these exceptions. His only argument was that he acquired the property prior to his marriage to the defendant. That, in itself, is not, in my view, sufficient and all property proved to belong to the plaintiff would fall for distribution in terms of section 7 of the Matrimonial Causes Act.

It was apparent, from the evidence, that some of the immovable property claimed by the defendant did not belong to the plaintiff.

House number 9 Dorset Road, Avondale was purchased in May 2001. It is registered in the name of Diana Kumbirai Makani who is the plaintiff's daughter. Whilst the defendant was aware that the property was registered in Diana's name she did not seek to join her as a party to the proceedings. The defendant's evidence, in relation to how and when she gave the plaintiff the money for the purchase of this property, was not convincing and was totally unsubstantiated. I thus accept the plaintiff's evidence that this property does not constitute matrimonial property.

Stand 9 Kirsten Borsch Mews was allegedly purchased during the subsistence of the marriage. However, there was no evidence produced to show that this property exists. The defendant stated, in her discovery affidavit, that she had the title deeds to the property but she failed to produce them at the trial. During her evidence in chief the defendant persisted that the property was purchased and is still owned by the plaintiff. However, in cross examination she conceded that she had carried out a search at the Deeds registry and had failed to find the property registered either in the plaintiff's or the Trust's name. I thus accept the plaintiff's evidence that he had indeed tried to purchase the property but the negotiations had collapsed after the owner kept increasing the purchase price.

The flat at Buckingham Gate is owned by Tarball Trust. Although the defendant sought to argue that it belonged to the plaintiff there was overwhelming evidence that it was registered in the name of the Trust. There was no evidence that it was ever registered in the name of the plaintiff and that he had transferred ownership to the Trust merely to defeat a claim by the defendant. I thus find that this property does not constitute matrimonial property.

Stand 1120 Prospect Township of Subdivision C of Prospect situate in the District of Salisbury is registered in the name of the plaintiff. The plaintiff stated that he had purchased the property in 1997. He did not dispute the defendants evidence that it was an undeveloped Stand at that time and that it was only developed after he married her. In the absence of any evidence to the contrary, I accept the defendant's evidence that she had assisted during the development of this Stand. She told the court that she would purchase building material if the plaintiff was not present and supervise the builders. She worked as a dressmaker and brought an income into the household. She stated that although she did not contribute directly into the construction of the Stand she gave her time and labour.

Stand 7740 Tynwald was purchased in 1999.The plaintiff stated that he does not have title to this property but accepted that it was owned by him.

In my view, Stand 1120 Prospect Township, and Stand 7740 Tynwald, and all the movable property, would fall for distribution as these are all matrimonial property.

In her declaration, the plaintiff contended that Ronoe Enterprises (Pvt) Ltd had acquired, among other items, a Toyota Corolla and a Mazda B2200DX...,. 

The plaintiff's only desire was to be allocated a Toyota Corolla motor vehicle.

The defendant countered this by alleging that the motor vehicle claimed by the plaintiff had been “written off following a road accident during the month of February 2001.”…,.

The evidence which was led by the plaintiff, and which was canvassed at length both in her evidence-in-chief and under cross-examination, was to the effect that this vehicle was there and had been given to the defendant's mistress, Fiona Dick. The plaintiff checked with the City Council and confirmed that indeed this motor vehicle had been registered in the name of Fiona Dick.

The court accepts the evidence as told by the plaintiff. There is every indication that this vehicle was registered in a third party's name to ensure that the plaintiff would not be able to lay her hands on it. It was quite curious that having been served with the plaintiff's claim on the Toyota Corolla, the defendant would swiftly move to have the same motor vehicle registered in his mistress's name. 

It is only fair, in such circumstances, that the plaintiff be awarded the other vehicle that is there, that is, a Mazda B2200 bearing registration number 686-646D....,.

Through her declaration, the plaintiff expressed the desire to be awarded a..., 25% share of the value of the Flat, namely, Stand number 585 Bulawayo Township (Share 102 thereof)....,.

It is clear to the court that the defendant barricaded himself behind the corporate veil to register the Flat in the name of Josro Enterprises (Pvt) Ltd...,.

In the court's view, all these factors, taken cumulatively, demonstrated the defendant's stout effort to hide behind the corporate veil. All these efforts by the defendant were contrived to conceal the fact that all these assets are clearly matrimonial property....,.

I hold the view that the Flat was part of the joint matrimonial property and require to be distributed and apportioned between the parties. 

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

The Outstanding Movable Property

Agreement having been reached on all the other movable assets acquired by the parties, the only outstanding items on which this court is asked to make a determination would appear to be the five door frames and one window frame.

The plaintiff's position was that these items cannot be distributed by this court as they do not belong to either of them.

He said that the property was brought to their residence by his workmate and subordinate, one Simbarashe Matibenga, for safekeeping. He said that Simbarashe is constructing a house in Damofalls and comes to collect the items as and when they are needed. He said that Simbarashe had in fact initially brought five door frames and seven window frames but that, as at the time of trial, there were five door frames and one window frame left. He also said that Simbarashe's mother had recently died and Simbarashe had been granted seven days' compassionate leave to attend to his mother's burial in Zhombe. As a result, he could not call him to give evidence as he was consequently unavailable.

The defendant's position, on the other hand, was that she had purchased the five door frames and one window frame at Magaba in Mbare in 2002 for the development of a residential Stand which the parties had acquired in Waterfalls.

During cross-examination of the plaintiff, by the defendant's legal practitioner, it was also put to him that the defendant's contention was that there were four window frames which were in the carport since 2002 but that the plaintiff had since sold three of them.

It was at this juncture that the plaintiff stated that there were in fact seven window frames and five door frames that were brought by Simbarashe.

It is common cause that the defendant had earlier instituted proceedings in the Magistrates Court for the distribution of the property acquired during the subsistence of the parties' union. The Order made by the Magistrates Court, for the distribution of the property between the parties, was apparently appealed against by the plaintiff in the instant matter and subsequently nullified or set aside by this court. It is also common cause that in her claim in the Magistrates Court the defendant had not included these items.

When she was asked to explain why, her response was that she forgot to mention the said items.

As the defendant was the initiator of the proceedings in the Magistrates Court, it must be assumed that she obviously placed before the court that which she contended to be property available for distribution between the parties. She did not then include these items.

Similarly, in her pleadings in casu, she did not include these same items.

From the appeal case number, “CIV 'A' 534/06”, the appeal must have at least been noted in or around 2006. The defendant's counterclaim in the instant matter was filed in June 2009 - some three years later.

Had it not been for the appeal noted in that matter by the plaintiff in casu the said items would have remained undistributed.

No plausible reason has, in this court's view, been proffered why these items have only surfaced this very late after the filing and closing of pleadings by the parties.

In the circumstances, the plaintiff's explanation, as to the ownership of these items, appears more probable. The defendant's claim to them cannot be sustained and she therefore cannot succeed on this claim.

Since the death of the plaintiff's business partner, 59 Caledon Avenue, Prospect, has been distributed to the surviving spouses.

This was not disputed by the defendant.

As regards Number 3 Selmont Gardens, the starting point to note is that it was acquired during the subsistence of the marriage and therefore constitutes matrimonial property....,.

Although the defendant claimed that she is the one who purchased the two refrigerators it is not in dispute that they were acquired during the course of the marriage. Had the marriage subsisted, both parties would have continued to enjoy the use of the refrigerators jointly.

According to the plaintiff, the Lloyds account was opened in the 1980's after his parents had died. The funds came from his inheritance. Some funds were deposited into Standard Bank, South Africa account. The account was opened when the parties intended to settle in South Africa. There is also an account with ABSA which he opened with funds from his inheritance. A third of the inherited funds remained in Zimbabwe. An account with Standard Bank in the Isle of Man was opened in 2004. He opened it with a deposit of 10,000= pounds withdrawn from the Lloyds account...,.

Although the plaintiff claimed that the money that he used to open the Lloyds account came from his inheritance he was not able to specify exactly how much that was. In any event, the estate of his late father was wound up in local currency and it is not clear how he converted it to foreign currency and hence externalized the funds...,. The same applies to the export of crocodile skins. The proceeds appear to have been externalized...,. It seems money from the plaintiff's inheritance got mixed with earnings from the business and other sources. The distinction between what constitutes inherited funds and income from other sources is blurred as a result.

Jewellery valued at 25,000= pounds was bequeathed to the defendant by the plaintiff's mother. It was initially kept in safe but subsequently exported to England. Part of it was stolen and the agent's father paid a sum of 5,000= pounds which was deposited in the Lloyds account. Concerning the defendant's jewellery, the plaintiff testified that a total of 9,000= pounds was received and deposited in the Lloyds account.

In respect of the jewellery, the defendant stated that it was exported without her consent. It had been bequeathed to her by her late mother-in-law. The money earned from the jewellery was not accounted for.

On movables, the plaintiff testified that there is a Nissan double cab which is registered under Transelectrical (Private) Limited...,.

On generators, the plaintiff stated that they belong to Transelectrical (Private) Limited....,.

The plaintiff also stated that the Unit 'L' property and the Norton stand were acquired through the defendant's brother in whose names they are registered. The defendant's brother is Munyaradzi Muguti. The plaintiff was adamant that the plaintiff's brother could not afford to purchase these properties as he was not employed. He further contended that the defendant's share in the Ridgeview property should be diminished proportionate to her interest in these two properties....,.

The defendant maintained that the Norton property belongs to her brother. She further explained that she happened to have the building plan for the property since the person who drew it was based in the United Kingdom....,.

The defendant also sought a division of assets belonging to Transelectrical (Private) Limited.

The plaintiff's evidence was that this company was incorporated in 1995 before he got married to the defendant. He has a fifty percent share. Apart from the claim that the plaintiff used some of the company's assets, like the Nissan motor vehicle and generator, there was no evidence on which the court could conclude that it is a family business. The court was not urged to pierce the corporate veil in order to determine whether the plaintiff was solely in control of the company. No documentation was produced to show who the directors of the company are.

I will therefore proceed on the basis that the company is a separate legal entity and that assets that are registered in its name are not subject to distribution. That means the generators and the Nissan motor vehicle will not be shared between the parties.

At the time of trial, the plaintiff told the court that the company was not operating and that is why some of the company's assets were being kept at home.

I will therefore not consider whether the defendant is entitled to that portion of the plaintiff's shares in the company. In any event, no evidence was led on what the plaintiff's share in the dormant company amounted to....,.

It is common cause that out of the immovable properties, only the Ridgeview house is registered in the plaintiff's name. The rest of the properties are either in the defendant's name or that of her nominee or that transfer of title had not taken place.

It was not disputed that the defendant purchased all the immovable properties during the course of marriage without the plaintiff's knowledge....,.

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high. In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue. There was also evidence to the effect that the defendant was in possession of building plans for the Stand. The court was not furnished with proof of purchase of the Stand to show who purchased it.

To demonstrate the defendant's stealth, the plaintiff produced an Agreement of Sale in relation to Stand 22468 Unit 'L' Seke which was entered into by Munyaradzi Muguti on behalf of the defendant. Part of the agreement reads as follows:

“1. That the Stand No. 22468, Unit 'L', Seke, Chitungwiza shall be ceded to Munyaradzi Muguti as if he is the real owner (purchaser) thereof.

2. In the event that there is a dispute between Vivian and Munyaradzi resulting in Munyaradzi refusing to cede right, interests and title in this Stand to the real purchaser, namely, Vivian Mukomberanwa, Walter Makwili shall not be liable to Vivian Muguti in any way i.e. either to provide another property nor to refund the purchase price.”

Therefore, in making a distribution in terms of the Matrimonial Causes Act the court will take into account the defendant's interest in the Norton property...,.

Section 7(3) of the Matrimonial Causes Act [Chapter 5:13] provides for assets that the court may not consider in the exercise of its powers in terms of section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13]; these include assets acquired by inheritance, in terms of any custom and which in terms of that custom, are intended to be held by the spouse personally, or which have a sentimental value to the spouse concerned.

The Nissan Hardbody the defendant had alluded to was involved in a road traffic accident and was declared a write off. The only motor vehicles available are, therefore, the B1800 and the Opel Kadett.

Regarding Plot No.17 Lee Farm, it was put to the plaintiff that the defendant would say that he had given it to her at the same time that the lump sum payment of $73,200,000= was made and that he has no control over it as it is her property.

The plaintiff denied this.

The defendant said that it was also the plaintiff who demanded Plot 17 Lee Farm which she had been given as a gift by Chief Makoni. He said that it was, in fact, not a gift but that she had used her influence as she worked for Council, to secure the Plot. He then moved out of the Plot in 2005 leaving it under the control of the plaintiff while he relocated to a rural resettlement area in Kriste Mambo area where he got a two hectare plot.

Although he states that the plaintiff is already in control of Plot 17 Lee Farm and that it may be awarded to her, it was also the plaintiff's undisputed evidence that she has discovered that the said piece of land is now registered against another person's name and that this happened without her knowledge. She did not, however, say that the defendant was instrumental in this “dispossession.”

The fact is that this property is no longer within the realm of the matrimonial estate and it would thus not be competent for the court to now award it to either of the parties.

It was also put to the plaintiff that the defendant would say that they never owned a Mazda B1800 registration number AAM 1183.

The plaintiff said that they did own such a vehicle but that the defendant donated it to ZAOGA Church in Rusape without her consent. She did not, however, have any documents on her to prove such ownership and such donation.

It was put to the plaintiff that the defendant would deny owning a Mazda B1600 registration number AAM 1146.

She said, in response, that they bought the said vehicle together but the defendant had it registered in his brother's name without her consent. She said that she did not have, on her, the documentary proof to support her allegation.

The plaintiff also denied that a Toyota Dyna motor vehicle registration number AAJ 3536 is the property of Multimillionaire Investments. She said that they bought the vehicle in Nyanga and that it was thereafter registered in the defendant's name and not in the name of the company.

The defendant denied that they ever owned a Mazda B1800 as claimed by the plaintiff. However, they once owned a Mazda B1600 which the plaintiff sold some time in 2006 while they were still together but after they had both agreed to sell it. He was not involved in the sale transaction. The Toyota Dyna vehicle is owned by the company Multimillionaire Investments and it is still in the possession of the company.

The plaintiff's insistence that she specifically wants the Isuzu twin cab and not the Nissan Patrol to be given back to her is no longer capable of enforcement at this stage, the vehicles having been swapped.

Of the five vehicles listed in the joint pre-trial conference minute, the defendant has, by various explanations, placed then outside the realm of the matrimonial estate. It is not clear whether their inclusion in the dispute, presumably by the plaintiff was based on a misconception of prevailing facts or whether this is a case of the defendant trying to frustrate the plaintiff's bid to benefit from the matrimonial estate.

The plaintiff also denies the existence of livestock, as alleged by the defendant, saying that a lot of livestock died during long drought spells and that at present there are five (5) head of cattle and a calf, three (3) of which he inherited from his father.

He could not explain why only those survived the drought. 

Under cross examination he said there may be a couple of goats.

The defendant says they bought livestock and when she last visited the homestead, in June 2006, there were 15 head of cattle and 30 goats. Most of the goats were obtained from her own rural home in Manama. Some were given to them as gifts by her relatives while they used to buy some from Mtshabezi area each time they took their maid to her home area. The number of cattle mentioned by the defendant seems to tally with documentary evidence in the form of letters submitted belatedly by the plaintiff which he had addressed to Police Commissioner Chihuri. In a letter dated 24 July 2009, when this matter was already pending, the plaintiff complained that police in the area were not investigating cases of stock theft he had reported. For instance, he refers to 10 head of cattle stolen from his West Nicholson property in December 2005. He says between September and October 2008, 6 cattle were stolen. Some of these cattle were recovered.

In his evidence, the plaintiff had said cattle were wiped out by drought and never mentioned stock theft.

Clearly, therefore, quite a substantial number exists at the rural home…..,.

In the year 1995, the plaintiff married the defendant in terms of customary law. They had apparently commenced living together prior to the formalization of the union in terms of customary law. On 31 March 2000 their marriage was solemnized in terms of the Marriages Act Chapter 5:11]. The marriage still subsists. The marriage was not blessed with any child.

On 8 April 2008, the plaintiff filed a suit seeking a decree of divorce and other ancillary relief. The plaintiff alleged that the marriage had irretrievably broken down to such an extent that there were no reasonable prospects of the restoration of a normal marriage relationship between them. He went on to say that during