This is an appeal against part of the judgment given by the High Court on 22 February 2006 in an action for a decree of divorce and ancillary relief commenced by the appellant against the respondent.

The question for determination is whether, in making the order with regard to the division, apportionment or distribution of the assets of the spouses, the court a quo failed to judicially exercise the discretion conferred upon it under section 7(1) of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) as alleged in the grounds of appeal.

The marriage, which was dissolved by the court a quo on 22 February 2006, had been solemnized by the parties on 20 May 1972 in terms of the African Marriages Act [Chapter 238] (now the Customary Marriages Act [Chapter 5:07]). It was a potentially polygamous marriage relationship. For a period of thirty-five years the parties enjoyed a happy marriage relationship which was blessed with four children, two girls and two boys. The children are all adults.

In 2002, irreconcilable differences developed between the parties leading to a voluntary separation on 7 October. On 13 April 2004, the appellant, who had taken another wife, issued out of the High Court summons commencing action in which he claimed against the respondent a decree of divorce and the division of the assets in the manner he considered would be just and equitable.

The respondent conceded that the marriage relationship had irretrievably broken down. She claimed the division of the assets in the manner she too considered would be just and equitable….,.

At the end of the trial, the court a quo made an Order in the following terms:

“1. That a decree of divorce be and is hereby granted in terms of the plaintiff's claim;

2. That the defendant be awarded all the household movable assets except the Imperial upright freezer and a washing machine which are awarded to the plaintiff.

3. That the defendant be awarded:

(a) 25% of the value of the Mazda 626 and No.12 Lomagundi Road which shall be valued by a valuer from the Master's Office's list of valuers.

(b) That the defendant be awarded 25% of the value of the Domboshava House.

4. That the farm (Wonder Valley Farm), the farm equipment, farm movables, including the herd of cattle, be shared at the rate of 70% for the plaintiff and 30% for the defendant.

5. That the defendant is awarded 25% of the value of Wonder Valley (Pvt) Ltd.

6. That the value of the assets to be shared under 3(b), 4 and 5 shall be obtained by adding the plaintiff's and the defendant's valuation and dividing that figure by two.

7. That the plaintiff shall maintain the defendant at the rate of $2,000,000= per month until she dies or re-marries.

8. That the plaintiff is granted the option to buy out the defendant in respect of Orders 3, 4 and 5 by not later than the 30^th of July 2006.

9. That the plaintiff shall pay the defendant's costs.”

The appeal was noted against the orders in paragraphs 3, 4, 5 and 7.

At the hearing of the appeal, counsel for the appellant indicated that the appellant was abandoning the appeal against the orders in paragraphs 4 and 5….,.

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 issued summons out of this court claiming a decree of divorce, distribution of the parties' matrimonial assets, and costs of suit.

The defendant, in turn, counter claimed for a decree of divorce and division of the matrimonial estate.

It was common cause that the parties married on 12 April 2001 in terms of the Marriage Act [Chapter 5:11]. During the subsistence of their marriage they acquired various movable property and an immovable property known as Stand 1822 Chadcombe Township of 1844 Chadcombe Township, Harare.

At a pre trial conference held before a judge in chambers the parties agreed that their marriage had irretrievably broken down and agreed on the distribution of most of their movable assets. The following issues were however referred to trial:

1. Whether or not the deep freeze is matrimonial property and subject to be shared by the parties.

2. How should the matrimonial house, known as Stand number 1822 Chadcombe Township of 1844 Chadcombe Township be apportioned between the parties?

The plaintiff gave evidence in relation to the immovable property and the deep freezer. She testified that she met the defendant in 1999. At that time she was already a qualified teacher. They married, in terms of customary law, in December 2000 and started living together in January 2001.

She stated that Stand 1822 Chadcombe Township of Stand 1844 Chadcombe Township (the property) was purchased in January 2001 through Barclays Bank as that was the defendant's employer. The repayment for the purchase price was deducted every month from the defendant's salary. She produced, as an exhibit, a receipt dated 24 January 2001 for the sum of $61,652=50 from Scanlen and Holderness Legal Practitioners who were dealing with the transfer of the property. The transfer fees were paid by the defendant.

She further testified that she would buy groceries for the family and pay their accounts. She gave an example of the lounge suite which was purchased from Bradlows Furniture Store and the repayments were deducted directly from her salary. At the time they purchased the immovable property it consisted of only two bedrooms, a kitchen, and a dining room. They have since effected improvements on the property. It now has four bedrooms as well as a garage. The developments commenced in 2003 – again, through a loan from the defendant's employer.

At the relevant time, the plaintiff was working in Goromonzi and she would buy maize from the area for resale in Harare. In 2004, they established a phone shop. They set up a company to run the enterprise. She testified that the defendant suggested that he and his young brother should be the directors and shareholders of the company. His brother was a student at Midlands State University at the time.

The company was operating from Mabvuku. She would pass through there every weekday after work and would go with the defendant over the weekends. They decided to have a tuckshop in the same premises. They then took the deep freezer from the house and installed it in the tuck shop. The plaintiff stated that she would order goods for resale at the tuck-shop at Macro Wholesales. The money generated from these sales would be used to construct the house.

She also directly assisted in the construction of the house as she would supervise the builders and cook for them. She also arranged for people to collect water which was used by the builders as there was a shortage of water in the area they lived. She also used the money that she was paid during the voters roll inspection process to buy doors for the property. In 2007, she received some back pay at work. She gave the money to the defendant and it was used to pay for the plumbing.

The plaintiff stated that there was never enough money in the home as they looked after a number of relatives at their house. She named the defendant's young brother, his wife and child, sister, nephew, and an elder brother's son who was attending a nearby school. The defendant also paid maintenance for two children whom he had out of wedlock. They paid fees for the defendant's elder brother's child who came and lived with them whilst going to school.

At the relevant time, they did not have a maid and the plaintiff had to do all the household chores, cook for the family, as well as supervise the child's homework. She stated that no one assisted them in looking after the extended family and the burden fell on her and the defendant.

The plaintiff stated that she was entitled to a 50% share of the property based on her direct and indirect contribution to the purchase of the property.

With regards to the deep freezer, she stated that they had purchased it at Greatermans Department Store. The defendant paid the 40% deposit which was required and she paid the monthly installments. She testified that since she had paid the bigger portion of the purchase price she should be awarded the deep freezer.

In cross examination, she conceded that the defendant paid for the mortgage on the property and paid the utility bills. In her evidence in chief she had denied that they were getting help from the defendants siblings in the United Kingdom but it was apparent from the exhibits produced by the defendant that they were indeed receiving some money to assist in the upkeep of the family. This, to a large extent, dented the plaintiff's assertion that she was single-handedly providing groceries for the family other than the defendant buying meat....,.

The defendant told the court that he was employed by Barclays Bank, and has been so employed for the past twelve years. On 6 December 2000 he entered into an agreement of sale to purchase the immovable property. He had managed to secure a loan from his employer. At the time, he was living at his parents' house in Mabvuku. The property was purchased for $780,000. The money was advanced by his employer and the repayments were deducted every month from his salary. The loan was to be repaid over a period of 30 years. He testified that from his salary the Bank deducted $4,358 for the housing loan. He was earning a net salary of $35,000 per month. He thus had enough money to buy food, service the car, pay accounts, and buy clothes for the plaintiff. He would also assist his wife by buying food for her siblings who were at boarding schools at Gokomere and Plumtree. He would visit the plaintiff's parents in Gokwe and give them loans to pay for their children's school fees. He would also visit her brother who was at the University of Zimbabwe and assist him when he had financial problems.

The defendant testified that the plaintiff did not assist at all with the household bills save for paying the telephone bill.

He would obtain loans from his employer to buy building materials to effect extensions to the house. He stated that the plaintiff had a lot of family responsibilities and was the sole bread winner for nine people from her home as no one else was employed. He thus had to help her so that she meets her family obligations.

He denied that he had used his salary to maintain his children who were born out of wedlock. He stated that he only paid fees for one child and this was paid directly by his employer. He had disputed paternity on the other child and was therefore not paying any maintenance.

The defendant stated that he also had other sources of income, other than his salary, so he could afford to look after his extended family. He owned a commuter omnibus and was in the business of buying and selling cars. He also received rent from his parent's house in Mabvuku.

The defendant stated that…, as the plaintiff had made no contributions at all to the purchase or development of the property, she should not be awarded more than a 10% share.

Turning to the issue of the deep freezer, he stated that he and his brother were the sole shareholders and directors of a company known as Vittinach Enterprise. He stated that the plaintiff was never involved with the company at any stage as she worked out of town. His nephew, Lovemore, who was living with them, would collect money on a daily basis and he would go there on Sundays when the lady who operated the phone shop was off duty.

He denied that the plaintiff went to the shop on a daily basis as she was staying in Mutoko and would only come to Harare over the weekend. He stated that they would go together to the phone-shop with the plaintiff during this time so as to see the progress being made.

The defendant stated that when they started the tuck-shop business they decided to buy the deep freezer from Greatermans. He stated that the freezer was purchased on his personal account specifically for the shop and it was never part of the household goods. He denied that the plaintiff had paid the instalments although she did offer to make the repayments. He stated that he had declined her offer as he did not want to mix company with family business.

In cross-examination, he failed to explain the deductions from his salary to the Clerk of Court in the sum of $2,900. This money was for maintenance which was being deducted directly from his salary. I did not believe him when he stated that Romeo was of independent means as the plaintiff and defendant had to look after him and his family. He was a student at University and had a wife and child. I also did not believe him when he stated that the plaintiff had done nothing at all towards the development of the property.

He conceded that she would cook for the builders and receive construction material in his absence. He however denied that she had purchased any doors or paid for the plumbing....,.

In making an award for the distribution of matrimonial property, a court must apply the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13] (the Act). The court is enjoined to consider the factors set out in subsection (4) of section 7. These factors are;

(i) The income earning capacity of the spouses, assets, and other financial resources which each spouse is likely to have in the foreseeable future;

(ii) Financial needs and obligations of each spouse in the foreseeable future;

(iii) The standard of living of the family;

(iv) The age and physical well being of each spouse;

(v) Direct and indirect contributions to the family;

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

(vii) The duration of the marriage.

These factors, where applicable, must be taken into account together so as to assist the court in making an equitable distribution of the matrimonial estate.

In the case of Hatendi v Hatendi 2001 (2) ZLR 530 (S) it was held that in making an award in terms of section 7 of the Matrimonial Causes Act the court is given very wide discretionary powers so as to enable it to make an equitable distribution between the parties.

The defendant has urged this court to adopt the approach in Takafuma v Takafuma 1994 (2) ZLR 103 where the court proposed that matrimonial assets be divided into categories of “his”, “hers”, and “theirs”.

When applying this approach, it is clear that the immovable property falls in the “his” category as the property is registered in his name. It was apparent from the agreement of sale which was produced that the house was purchased even before the parties had a customary law union. It is not in dispute that the purchase price of the house was made through a loan from the defendant's employers. The purchase price was paid up over a period of six years and this was proved by the Bank statements which were produced in court.

The plaintiff's contributions were thus, to a large extent, indirect.

At the time she married the defendant she was a qualified teacher and was earning a salary. She contributed actively to the household to the extent of her means. When they decided to develop the property, in 2003, the plaintiff used her resources to assist in the construction. She contributed towards the plumbing and the doors. There was no doubt, from the plaintiff's evidence, that she was very enterprising and was involved in various projects to secure additional money for the family such as buying and selling of maize. She was also a mother and caregiver in a house which had a large number of people from the defendant's family.

The importance of this type of contribution is emphasized in the case of Usayi v Usayi 2003 (1) ZLR 684…, where ZIYAMBI J…, remarked as follows:

“How can one quantify, in monetary terms, the contribution of a wife and mother, who, for 39 years faithfully performed her duties as wife, mother, counselor, domestic worker, housekeeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness, and attention to detail that she puts into all routine, and sometimes boring, duties attendant and keeping a household running smoothly and a husband and children happy?…,.”

In the present case, it is accepted that the parties were married for ten years and did not have any children of their own. However, it was apparent from the evidence that there were a large number of people from the extended family who lived with them and for whom the plaintiff had to look after. I accepted the plaintiff's evidence that she had to oversee the building of the house to the extent of arranging for water for construction and cooking for the builders and receiving construction material which was delivered. She also used her money to purchase the doors and contributed towards the plumbing. The house developed from a small two bed-roomed house to a four bed-roomed house with a separate lounge and a garage.

In my view, the defendant, in his testimony, went to great lengths to undermine the plaintiff's contribution with regards to the development of the marital home. As I have already stated, I did not believe his evidence that she used her money only to look after her family. Her evidence, in my view, had a ring of truth which I did not find in the defendant's evidence.

Whilst the deductions for the house were made from his salary, there was no doubt that the plaintiff used her best efforts to look after the home. It was a large extended family but she looked after everyone as her own. When the defendant's sister fell ill, she lived with them because they all knew she would be cared for by the plaintiff.

The property is incomplete seven years after the construction project was commenced. I did not believe the defendant when he said that he deliberately slowed down progress on the development as he foresaw that their marriage was in trouble. The plaintiff's explanation, that the financial resources were so strained because of the burden of looking after the extended family was so great that they did not have the financial resources to complete the building, seems to me much more likely.

The plaintiff claimed a 50% share of the immovable property whilst the defendant offers 10%.

In my view, a consideration of the factors which I have outlined above would not justify an award of a share of 50% to the plaintiff. Taking into account all the above factors, it is my view that an award of 35% would be appropriate. The tender of 10% by the defendant was, in my view, totally unjustified.

The defendant sought, in his submissions, to rely on the case of Tungamirai v Tungamirai HH168-10 where an award of 15% was made.

In my view, the facts of that case can be clearly distinguished from the present one to show that an award of 10% is not justified;

(i) Firstly, the parties were married for only four years whereas in this case they have been together for ten years.

(ii) Secondly, the property in Tungamirai v Tungamirai HH168-10 was purchased at the end of the marriage when the parties were almost separating whereas in the present case the property was purchased at the beginning of their marriage.

(iii) Finally, the parties in Tungamirai v Tungamirai HH168-10 never lived in the house that they sought to share. The plaintiff in that case had used his company loan to purchase the house to which no developments or improvements were made. In this case, the parties lived in the house all their married life and effected major improvements on the property.

The deep freezer, which was a source of conflict in this case, in my view, was never matrimonial property.

From the evidence, the defendant purchased the deep freezer using his VIP credit card. Apart from the plaintiff's mere say so, there is no evidence that she contributed towards its purchase. There was no evidence that the deep freeze was ever used in the matrimonial home before it was taken to the tuckshop. The plaintiff was neither a shareholder nor a director in the company.

I take the view that the deep freeze belongs to the company and is not matrimonial property.

The Order that I make will give the defendant an opportunity to buy out the plaintiff so that he retains the property. Both parties, in their submissions, asked for the court to incorporate their agreement with regard to the movable property. I will therefore incorporate their agreement in the Order that I make.

The plaintiff had asked for her costs in this matter.

In my view, both parties have been relatively successful in their claims and therefore each should bear their own costs.

I thus make the following order:

1....,. 

2. That the plaintiff is hereby declared the sole owner of the movable property set out in Annexure A.

3. That the defendant is hereby declared the sole owner of the movable property set out in Annexure B.

4. That the plaintiff is awarded a 35% share of Stand Number 8122 of Chadcombe Township of 1844 Chadcombe Township.

(i) That the property shall be valued by an estate agent appointed by the Registrar from his list of valuers within 30 days of this order.

(ii) That the defendant is hereby granted the option to buy out the plaintiff of her 35% share within 90 days from the date upon which the valuation is made.

(iii) That the cost of the valuation shall be shared in the ratio of 35% for the plaintiff and 65% for the defendant.

5. In the event that the defendant fails to pay the plaintiff the 35% share, as set out in paragraph 4 of this Order, the property shall be sold at best advantage and the net proceeds shared with the plaintiff getting 35% and the defendant getting 65%.

6. That each party shall bear their own costs.

ANNEXURE A

TENDAYI MAUREEN CHIKOMBA

1. Kitchen Utensils
2. Carpet
3. Curtains
4. 2 x 2 in one blankets
5. 2 pairs of sheets
6. One pillow
7. 2 Comforters
8. Hose pipe
9. CPU
10. 5 x 25 litre containers
11. 3 x cupboard doors
12. Summit – Iron
13. Electric kettle
14. Bed
15. Sofas
16. Microwave
17. Blankets
18. Nissan Sentra

ANNEXURE B

VITALIS TINASHE CHIKOMBA

1. Bed
2. Wardrobe
3. TV
4. DVD Player
5. Wiztech decoder
6. Radio
7. Upright fridge
8. Four plate stove
9. Wall lights, ceiling light spotlight
10. Carpet
11. 3 x 2 in one blankets
12. 1 x bedspread
13. Two pillows
14. Green comforters, brown comforter, and cream comforter
15. Blinds
16. Electric motor
17. Coffee table
18. 6 window frames
19. Aluminium rods
20. CPU
21. Computer desk
22. 4 x 25 litre containers
23. Bricks
24. VW Beetle
25. 2 x wall pictures
26. Electric jug

This is an appeal against part of the judgment of the High Court dividing certain matrimonial property between the parties following the grant of a decree of divorce.

The plaintiff and the defendant were married at Harare on 5 September 1998. Two daughters were born of the marriage. These were born in 2001 and 2004 respectively.

On 31 January 2007, the plaintiff issued summons praying for a decree of divorce to issue on the grounds that his relationship with the defendant had broken down to such an extent that there is no possibility of reconciliation. In the main, the plaintiff lamented the fact that he had been denied conjugal rights by the defendant for a period in excess of three years.

The action was defended, and, after the pleadings in the matter had closed, the parties appeared before a judge in chambers for a pre-trial conference on more than one occasion.

During the discussions, under the guidance of the judge at the pretrial conference, the parties..., also agreed, in the main, as to how to apportion the movable assets they jointly acquired during the subsistence of the marriage.

They also agreed that the immovable property in Ruwa, being a vacant Stand, be registered in the names of the minor children....,.

The parties agreed on how to share their assets in the event of a divorce. I shall give effect to this agreement in the divorce order that I issue.

Regarding the immovable property, the parties agreed, that, it be registered in the joint names of the parties two children as their property, but, that, in the interim, and for the purposes of securing funds to develop the vacant Stand, that it be registered in the name of the defendant....,.

1....,. 

2....,. 

3. The plaintiff shall be awarded, as his sole and absolute property, the following:

3.1 1 x refrigerator.

3.2 1 x DVD player.

3.3 1 x satellite dish and decorder.

3.4 1 x two plate stove.

3.5 1 x bed and mattress.

3.6 1 x 21 inch LG color television set.

4. The defendant is hereby awarded, as her sole and absolute property, the following:

4.1 1 x 4 plate cooker.

4.2 1 x deep freezer.

4.3 1 x lounge suite.

4.4 1 x 21 inch Phillips television set.

4.5 1 x radio cassette player.

4.6 1 x carpet.

5. The immovable property, known as Stand 27 Ruwa, is hereby awarded in equal and undivided shares to Vongai (born 21 March 2001) and Vimbai (born 22 July 2004).

6. Until the younger child attains majority, the immovable property shall be registered in the name of the defendant who shall hold the property in trust, and, to the extent that she is capable, shall develop the property for the benefit of the minor children.

7. Each party shall bear its own costs.

The plaintiff and defendant were married in terms of the Marriages Act [Chapter 5:11] on 14 January 2005 at Harare. Their marriage was blessed with one child born on 25 November 2008.

On 28 June 2010, the plaintiff sued for a decree of divorce on the ground that the marriage has irretrievably broken down to such an extent that restoration to a normal marriage relationship is impossible. He outlined the causes of the breakdown as including the following:-

(a) That the defendant has denied him love, respect, affection, and companionship ordinarily expected of a married couple;

(b) The defendant has demonstrated a quarrelsome and bellicose attitude towards the plaintiff whom she has physically and verbally abused. The plaintiff had to apply for a protection order in terms of the Domestic Violence Act [Chapter 5:16] on 12 February 2010;

(c) Despite the protection order, the defendant has continued to harass the plaintiff making life unbearable for him;

(d) The defendant is in the habit of forcibly taking money from the plaintiff;

(e) The defendant harasses and insults the plaintiff in front of school teachers and pupils at the school where he is the Headmaster;

(f) The parties have, throughout their marriage, exhibited all signs of incompatibility; and

(g) For a period of about 13 months, the defendant lived in an adulteress relationship with a truck driver in South Africa. Here in Zimbabwe, the defendant has a lover whom she has refused to cut ties with.

As a result of this, the plaintiff alleged, that, the marriage has irretrievably broken down.

He therefore prayed for a decree of divorce and that the defendant be awarded custody of the minor child and all the movable property they acquired during their marriage. He wished to retain the property he acquired before the marriage.

The defendant, in her plea, did not concede that the marriage had irretrievably broken down. She made a bald denial of the improper conduct alleged by the plaintiff against her. She, instead, contended, that, it is in fact the plaintiff who committed adultery.

She revealed, in her plea, that, the parties also acquired an immovable property in Domboshawa which is apparently registered in the defendant's name. She contended, that, that property/Stand should be awarded to their child.

The defendant made a counter claim in which she sought that the immovable property in Domboshawa be awarded to their child.

At a pre-trial conference held on 11 February 2011, the parties reached settlement on a number of issues. They agreed that:-

1....,. 

2....,. 

3....,. 

4. The undeveloped residential stand in Domboshawa be registered in the name of their minor child....,.

On 12 September 2011, when the parties appeared before me for trial, they had apparently resolved some of the issues referred to trial....,. The plaintiff had resolved, that, the defendant should get all the movable property of the marriage.

In this regard, the plaintiff amended his prayer in paragraph (f) to now read -

“An order that all property acquired during the subsistence of the marriage be awarded to the defendant.”...,.

1....,. 

2....,. 

3....,. 

4....,. 

5....,. 

6....,. 

7. The defendant is hereby awarded all the movable property acquired during the subsistence of the marriage.

8. The undeveloped immovable property the parties acquired in Domboshawa is hereby awarded to the parties' minor child.

9. As the property is registered in the defendant's name, the defendant shall, within 90 days of the date of this order, sign all necessary documents and take all steps required to have the property registered in the minor child's name. The plaintiff shall pay the costs involved in the registration of the property into the minor child's name.

The parties hold, in equal shares, the following property; Lot 1 of 75 Chisipite Township of Chisipite also known as Number 9 Harare Drive, Chisipite; Stand Number 3471 Warren Park Township of Stand 2372 Warren Park Township of Warren Park; Stand Number 11817 (9809) also known as Number 16 Maruta Crescent, Beatrice Road Cottages, Mbare.

This is the property in which the plaintiff, under oath, conceded that his half shares be awarded to the defendant. That is no longer an issue as the plaintiff has relinquished his claim.

On the immovable property, the defendant averred that he bought that property on his own without the plaintiff's direct contribution. He only registered it in their joint names because he thought that as husband and wife the law demanded so. It was also spurred on by his love for his wife.

In the circumstances, he is prepared to grant the plaintiff twenty per cent of the value whilst he retains eighty per cent.

Accordingly, a default judgment is hereby granted as follows:

1....,.

2....,.

3....,.

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the subsistence of the marriage, the parties acquired both movable and an immovable property known as Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters commonly known as Stand 2209 Mainway Meadows, Waterfalls, Harare (the property).

On 20 January 2007, the plaintiff issued summons seeking a decree of divorce on the basis of irretrievable breakdown, custody of two of the minor children, and division of the parties' matrimonial assets.

The defendant, whilst conceding that the marriage had broken down, disputed the reasons given by the plaintiff and counterclaimed for custody and maintenance of the minor children. She also disputed the suggested distribution by the plaintiff of their assets.

At pre-trial conference, the parties agreed on the distribution of their movable assets and decided to refer seven issues to trial. At the hearing, the parties abandoned three of the issues and only the following issues were referred for determination:

1. Which of the parties should be awarded custody of the minor children?

2. Which party is to be responsible for the maintenance of the minor children and related matters?

3. Whether the Hyundai Excel motor vehicle, registration number AAG 3526, constitutes matrimonial property which is subject to distribution, and, if it constitutes matrimonial property, how is it to be distributed?

4. What is the best way of distributing the matrimonial home between the parties?...,.

The parties agreed on the distribution of their movable assets at the pretrial conference. They seek that their agreement be incorporated as part of the Order that this court will make.

The issue which was referred to trial related to a Hyundai Excel sedan, registration number AAG 3526. The motor vehicle in question is registered in the name of the plaintiff.

He told the court that he purchased it on his own without any contributions from the defendant. The purchase price was deducted directly from his salary and paid to CMED.

The registration book is endorsed " not for resale; on HP with CMED (Pvt) Ltd."

The defendant, on the other hand, argued that this motor vehicle should be sold and the proceeds shared equally between the parties.

During the course of the trial, it became apparent that the parties were in agreement that, instead of selling the two motor vehicles acquired during the course of the marriage and sharing the proceeds, each party should retain one.

In submissions, the plaintiff offered the defendant the Toyota Stallion whilst he kept the Hyundai Excel. This was accepted by the defendant. I will therefore make an order as agreed to by the parties.

Turning to the immovable property, the plaintiff testified as follows;

They are the joint owners of the immovable property.

He purchased the property as an undeveloped Stand from Houses for Africa (Pvt) Ltd in 1999. The Stand was fully paid up in 2001. The house was subsequently built and the property transferred into their joint names.

He produced receipts for building materials purchased by him in his name. The plaintiff stated that although there was no contribution by the defendant he decided to include her as a joint owner to the property so that his family would not encounter any problems in the event that he died first. He stated that he is entitled to 75% share of the property because the property was built and developed solely by him. He testified that he was the sole breadwinner in the family.

Apart from his salary, he would get money from business trips outside the country. When the defendant completed her teachers training program she did not want to pool her resources with him. He did not even know how much she earned.

The defendant testified that she has been married to the plaintiff for the past sixteen years. She is employed as a secondary school teacher and has been so employed since 1997. When she started living with the plaintiff she was employed as a temporary teacher at Highfield Secondary School. From 1994 to 1996 she was at college training to be a teacher. She obtained a loan for her studies. She was also involved in other fund raising projects for the benefit of the family. She taught extra lessons and was involved in a sewing project. The immovable property was bought through her direct and indirect contributions as she used to give the plaintiff all her earnings. She cooked for the builders and her brother looked after the building materials during the period of construction. Between 2002 and 2003 the plaintiff was in Mutare pursuing a Masters Degree program and the defendant remained in charge of supervising the construction of the property. During this time there was no electricity on the premises and she electrified the property. The defendant testified that her name was included in the Agreement of Sale because she had contributed to the purchase of the property. She stated that whilst he paid for the Stand directly her money bought groceries and other household items.

The defendant stated that she was entitled to a 50% share of the property.

In assessing the evidence it seemed to me that the plaintiff was intent on showing that the defendant had not contributed at all in the acquisition and construction of the property. He, however, did not dispute the defendant's evidence that they earned about the same salary and the plaintiff could not have achieved the purchase and construction of the house without her help. I believed the defendant when she said that she had given her salary to the plaintiff to use during the purchase and construction of the Stand. The plaintiff was economic with the truth when he said he was the sole breadwinner in the family and yet the evidence led showed that the defendant had worked throughout her married life with the plaintiff. Her income was thus used for the benefit of the family and the development of the property.

In making an award for matrimonial property, the court is enjoined to consider the factors set out in section 7(4) of the Matrimonial Causes Act [Chapter 5:13] (the Act). These factors are;

(i) The income earning capacity of the spouses, assets, and other financial resources which each spouse is likely to have in the foreseeable future;

(ii) Financial needs and obligations of each spouse in the foreseeable future;

(iii) The standard of living of the family;

(iv) The age and physical well being of each spouse;

(v) Direct and indirect contributions to the family;

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

(vii) The duration of the marriage.

These factors, where applicable, must be taken into account together so as to assist the court in making an equitable distribution of the matrimonial estate.

In the case of Hatendi v Hatendi 2001 (2) ZLR 530 (S) it was held that in making an award in terms of section 7 of the Matrimonial Causes Act the court is given very wide discretionary powers so as to enable it to make an equitable distribution between the parties. It is now settled that in order for the court to achieve an equitable distribution it must take into account all the factors that are set out in section 7(4) of the Matrimonial Causes Act. In making the award, the court must endeavor to place the parties in the position they would have been had the marriage continued.

In Shenje v Shenje 2001 (2) ZLR 160 GILLESPIE J stated that the court must consider all the factors set out in section 7(4) of the Matrimonial Causes Act. He stated as follows…,:

"The factors listed in the subsection deserve a fresh comment. One might form the impression, from the decisions of the court, that the crucial consideration is that of the respective contributions of the parties. That would be an error. The matter of the contributions made to the family is the fifth listed of seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps, it is time to recognize that the legislative intent, and the objective of the courts, is more weighed in favour of ensuring that the parties needs are met rather than that their contributions are recouped."

There can be no doubt that all contributions are important in a marriage whether they be material or otherwise. Some contributions are not even tangible as they relate to the moral support given to a husband as he goes about his work and ensuring that he comes home to a comfortable and happy home. Although such contributions cannot be quantified in any monetary term there is no doubt that they are important in the building of a happy home.

In Hatendi v Hatendi 2001 (2) ZLR 530 (S) the Supreme Court emphasized the wide discretion accorded to the court in the division of matrimonial assets and stated that the court may take into account factors that are not easily quantified.

Section 7(4) of the Matrimonial Causes Act obliges the court to look at the financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future.

I have determined that the defendant should be awarded custody of the minor children. As the custodian parent she will need to look for suitable accommodation for herself and the children. They require a house in a good area as that is what the defendant and the children are accustomed to. The defendant can use her share of the property to purchase a house for her and the children. The youngest child is only 4 years old and he will need to be provided with accommodation for the next 14 years.

In this case, the parties were married in 1993. They have been married for a period in excess of 16 years. They were both gainfully employed as civil servants. Although the plaintiff earned slightly more than the defendant, the defendant's income was used for the support of the household. In my view, the plaintiff could not have bought the Stand and developed it without the full support of the defendant. I did not hear the plaintiff say that the defendant used her money for purposes outside the matrimonial home.

In the case of Chapeyama v Chapeyama 2000 (2) ZLR 175 (S) the court awarded a 50% share to the parties on the basis that the property was registered in both their names and they had pooled their resources to run the family.

In this case, the parties have done exactly the same.

In any event, the disputed house is jointly owned by the parties. The registration of rights in terms of the Deeds Registries Act [Chapter 20:05] is not just a formality. It is a matter of substance as it conveys real rights to the person in whose name the property is registered. See Takafuma v Takafuma 1994 (2) ZLR 103 and Lafotant v Kennedy 2000 (2) ZLR 280.

I can find no justification, in this case, to take away part of the defendant's half share and give it to the plaintiff.

The plaintiff submitted that he could buy out the defendant given a three month period. The defendant has indicated that she does not have the means to purchase the property but would like to be allowed to continue to reside on the property for the period whilst he is raising the money. The plaintiff did not raise any objections to that request either in his evidence or in his submissions. I will therefore take this into account when making the order.

Accordingly, it is ordered as follows:

1....,. 

2....,. 

3....,. 

4....,. 

5....,. 

6. The plaintiff is awarded the movable property set out in Annexure A to this Order as his sole and exclusive property.

7. The defendant is awarded the property set out in Annexure B to this Order as her sole and exclusive property.

8. The plaintiff and the defendant are hereby declared to be the owners of an undivided half share in Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters also known as Stand 2209 Mainway Meadows, Waterfalls, Harare.

9. The plaintiff is granted leave to buy out the defendant's half share of the above-named property.

(a) The property shall be valued by a registered estate agent nominated by the parties within 30 days of this Order.

(b) In the event that the parties fail to agree on the estate agent, as set out in paragraph 9(a) of this Order, the Registrar shall appoint an estate agent from his list of valuers to conduct an evaluation of the property upon request by either party.

(c) The estate agent shall submit the report to the parties within 14 days of his appointment.

(d) The cost of the valuation shall be shared equally between the parties.

(e) The plaintiff shall exercise the option to buy out the defendant's 50% share within 90 days of the date of valuation of the property.

10. In the event that the plaintiff fails to buy out the defendant, in terms of paragraph 9 of this Order, the property shall be sold at best advantage and the net proceeds shall be shared equally between the parties.

11. The defendant shall have the right to remain on the said property until the plaintiff has paid her the 50% share in the property.

12. There shall be no order as to costs.

ANNEXURE A
1. REFRIGERATOR
2. 2 BEDS
3. WARDROBE
4. SHARP RADIO
5. HYNDAI EXCEL REGISTRATION NUMBER AAG 3526
6. DVD PLAYER

ANNEXURE B
1. 21" PHILLIPS TELEVISION
2. 4 PLATE STOVE
3. KITCHEN UTENSILS
4. ROOM DIVIDER
5. KITCHEN UNIT
6. SOFAS
7. COFFEE TABLE
8. TOYOTA STALLION REGISTRATION NUMBER AAV 1996

On 3 April 1998 the parties had their marriage, which had already been blessed with three children, solemnized at Bulawayo. Prior to that, the parties had been living in an unregistered union dating back to 1989.

On 14 January 2000 the plaintiff issued summons against the defendant claiming divorce and other ancillary relief as outlined in her declaration. The grounds for divorce were given, inter alia, as alleged adultery on the part of the defendant. Allied to this were allegations of dishonest and irresponsible behaviour on the part of the defendant, whose cumulative effect was to render continuing of a normal marriage impossible.

The defendant countered the allegations against him by alleging irreconcilable differences with the plaintiff emphasizing it was the plaintiff's conduct which had brought about the sad end to the parties' marriage....,.

Distribution of Movables

These issues were curtailed at the pre-trial conference when the parties struck an agreement hence the court merely granted the order as agreed upon by the parties. The only outstanding issue on movables was the distribution and apportionment of the motor vehicles.

Distribution of Immovables

The parties could not come to a mutual agreement on the distribution and apportionment of two immovable properties, namely, Stand number 12713 Parklands, also known as 15 St Helens' Road, Parklands, Bulawayo as well as a Flat referred to as an undivided 1/36th share, being Share number 102 in and to Stand 585 Bulawayo Township.

I propose to deal with the issues in contention in the order in which the parties dealt with them.

The Evidence

It emerged from the largely uncontroverted evidence of the plaintiff that the bulk of the property, movables, and immovables that were acquired in contemplation of, or during the subsistence of the parties' marriage, was financed by the business venture of the parties.

The plaintiff's version was that at a time when the defendant was out of employment she embarked on trips to South Africa to buy goods for resale in Zimbabwe. According to her, the initial capital was sourced by her from her brothers based in the United Kingdom as well as her late mother. She said, initially, she was buying spices for resale back home before she eventually embarked on selling sausage casings which were to mark the turning point in her enterpreneurship. It was the plaintiff's evidence that to start with she was selling her items to a certain individual who, in turn, introduced her to Colcom for supply of big orders.

The plaintiff was clear that, initially, she was doing this business on her own as the defendant did not have a passport and was out of employment. It was only at a time the defendant had obtained a passport that he joined her in this trade.

The plaintiff went on to say that, with the passage of time, the buyers at Colcom indicated that they preferred dealing with a registered company as opposed to individuals and they encouraged her to register a company.

From the proceeds of their sales, a company called Ronoe Enterprises (Private) Limited was incorporated. The name 'RONOE' was formulated by taking the first two letters of the name of the defendant and “NOE” was reflective of the vernacular slang of the first letters of the plaintiff's first name. The two were recorded in the companies office as co-directors and shareholders with equal shareholding in that company.

The plaintiff's evidence about the formation of Ronoe Enterprises (Private) Limited went unchallenged in the record of proceedings. It was only when the defendant was giving his own testimony in court that he attempted to offer some feeble challenge to the plaintiff's evidence in chief. That did not portray the defendant in good light.

It is through cross-examination of a witness that one's evidence is put to the test. The defendant failed to do so and the plaintiff's version must therefore be regarded as eminently probable.

The court was left in no doubt that Ronoe Enterprises (Private) Limited bore its origins to the industry of the plaintiff. She indeed was the brains behind it.

Despite this, however, the plaintiff did not portray herself as a selfish character. She acknowledged that when the defendant joined her in cross-border trading he brought in additional capital which she could not vividly remember in detail but said was probably half of what she had injected into the business herself at the time of its inception. The plaintiff could have easily denied the contributions made by the defendant but she did not. Such was her credibility.

After failing to challenge the plaintiff's testimony through cross examination, the defendant went on a ruthless attack of the plaintiff when he gave his evidence-in-chief. The defendant portrayed the plaintiff as having started as a vegetable vendor before he eventually roped her as a co-director in Ronoe Enterprises (Private) Limited.

How ironic!

The court had difficulties accepting the version as told by the defendant. His tongue was filled with hate language and was determined to portray the plaintiff as someone who had contributed virtually nothing, or insignificantly, into the formation of Ronoe Enterprises (Pvt) Ltd. The defendant attributed the formation of this company to himself.

The difficulty with the defendant's evidence was that he had allowed the plaintiff to leave the witness box without challenging her version hence the plaintiff's explanation remained intact. Not only that but the defendant did not even want to acknowledge the immense contributions made by the plaintiff in the formation of Ronoe Enterprises (Pvt) Ltd.

It is with this background in mind that one must then look at the distribution and apportionment guided by the guidelines in the Matrimonial Causes Act [Chapter 5:13].

The approach to be followed is aptly summed up by HUNGWE J in the case of Isaac George Takawira v Evengeline Eveline Takawira HC924/97…, where the learned judge states:

“The practice has been for the courts to regard as matrimonial assets the net worth of both the business assets and the personal assets acquired by the parties during the duration of the marriage. In that regard, courts would then proceed to consider what order to make in respect of the division in terms of section 9(1) of the Matrimonial Causes Act [Chapter 5:13].”

The Motor Vehicle

In her declaration, the plaintiff contended that Ronoe Enterprises (Pvt) Ltd had acquired, among other items, a Toyota Corolla and a Mazda B2200DX which the defendant took to form, behind her back, a company called Josro Enterprises (Private) Limited; the directors whereof were himself and his uncle, Joseph Musekiwa, the latter only being a nominal director whose duties were, inter alia, cleaning cars within the company premises and working as a messenger. In the words of the plaintiff; “I do not think he is aware he is a director of that company.”…,.

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.

Immovable Properties

Through her declaration, the plaintiff expressed the desire to be awarded a 50% share of the value of the Parklands house and 25% share of the value of the Flat, namely, Stand number 585 Bulawayo Township (Share 102 thereof).

Whilst accepting the plaintiff's 50% share in the Parklands property, the defendant's position, as captured in his claim in reconvention, but not amplified by his evidence in court, was to the effect that the plaintiff be awarded her claimed 50% - but, after deducting the value of the bond registered on the property.

The evidence led and accepted by the court was that the bond in question was registered against the property without the plaintiff having been consulted and at a time divorce proceedings were in full swing. The directors of a company called Josro Enterprises (Private) Limited had, by their resolution of 23rd March 2000, initiated the registration of this deed of hypothecation against the matrimonial property.

To have a proper appreciation of the issues involved, one needs to understand the historical background of Josro Enterprises (Private) Limited.

The plaintiff gave a fairly detailed explanation about how this company came about. The plaintiff's unchallenged version was that when she started experiencing problems with the defendant she obtained a provisional order to freeze the operations of Ronoe Enterprises (Private) Limited and a liquidator was appointed in this regard. According to the plaintiff, financial indiscipline on the part of the defendant is what prompted her to initiate the liquidation of the company. The following questions and answers in cross-examination give a clear indication as to how Josro Enterprises (Pvt) Ltd was formed;

“Q. But you obtained a provisional order of this company?

A. Correct, but, after that defendant came and apologized to me. After that the Bank then gave us money after which we approached the customer who had been buying from us. After that defendant said he no longer wanted me to go to South Africa. Defendant took the money that we got from the Bank and deposited it into Josro account….,.

Q. What happened to the court order for provisional liquidation?

A. He approached me and apologized. He came thrice, and, on the fourth occasion, we agreed we would see our lawyers. We did that and he admitted before the lawyers that he was wrong and asked me to go back home…,.

Q. What happened to the provisional order?

A. When he apologized he said if I went back home we would continue working together in a transparent manner; that is why we agreed to have the provisional order put aside.

I was surprised, in 1999, that my name had been struck from the company and he had done this in 1998. This happened when we were still reconciling and behind my back he was forming another company….,. “

The record will show that the plaintiff continued to work with the defendant unaware that she had lost the co-directorship of the newly-formed company which was largely financed by the resources of the erstwhile family enterprise – Ronoe Enterprises (Private) Limited.

When challenged, under cross examination, the plaintiff referred the court to an Absa Bank Limited deposit slip which reflected that on 4 March 1999 she deposited a total amount of R165,000. The plaintiff's explanation was that this deposit was payment by Josro Enterprises (Private) Limited for goods supplied to it on credit and she made the deposit in Musina, South Africa….,. This document was produced to counter the defendant's denial that the plaintiff continued to work with him even in Josro Enterprises (Private) Limited.

Page 22 of the plaintiff's bundle of documents further demonstrates the deceitful conduct of the defendant. That document portrayed Joseph Musekiwa as co-director of this company.

Having assessed all the evidence led in this court, I was left in no doubt at all that Josro Enterprises (Pvt) Ltd was conveniently registered to ward off the plaintiff's interests in that company. Further, it became abundantly clear that this company was largely funded by the resources of Ronoe Enterprises (Private) Limited.

The bond registered against the Parklands house was unilaterally registered by the defendant at a time when the defendant knew the plaintiff had staked her claim against that property. Clearly, the motive by defendant was to compromise, if not defeat, the plaintiff's claim.

The assets of Ronoe Enterprises (Private) Limited were, in circumstances that were far less than honest, passed over to Josro Enterprises (Pvt) Ltd. In the court's view, what was raised through Josro Enterprises (Pvt) Ltd was but a continuation of what was raised by Ronoe Enterprises (Private) Limited.

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 and so were the motor vehicles.

It was particularly interesting to note that whereas the defendant tried to convince the court that his late mother was the source of the funds that purchased the flat, he was unable to tell how much was raised by his mother for the purposes of that purchase. He could hardly remember how much his mother had in the form of a retirement package.

Other than alleging it was a mistake, the defendant could not explain why, if the Flat was purchased by his mother, the Agreement of Sale reflected Josro Enterprises (Pvt) Ltd as the purchaser of the Flat.

There were other unconvincing aspects about the circumstances surrounding the acquisition of this Flat. The defendant was unable to explain, to the satisfaction of the court, why, six years after the death of his mother, the flat continued to be registered in her name.

It was also not made clear why it became necessary for Josro Enterprises (Pvt) Ltd to make a donation of the same flat to the defendant's mother after which the mother drew up a Will allocating the same flat to the defendant.

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.

It will be seen that whereas in her pleadings the plaintiff had claimed a 50% share in the value of the Parklands house, when she testified, she shifted from this position and sought to claim the whole house.

The court could not accept that position, for, by doing so, the plaintiff was demonstrating an element of greed or a desperate effort to claim what the disallowed amendment was designed to achieve.

In the final analysis, the court could not fail to see the corporate mischief of the defendant.

The law is clear on those who try to hide behind the corporate veil. The case of Cattle Breeders (Pvt) Ltd v Veldman 1974 (1) SA 169…, immediately comes to mind.

In that case, in an application by a company, of which the respondent's husband was the sole shareholder and the Managing Director, the company sought to eject the wife and children from the dwelling house on a farm leased by the company, which house had been regarded as the family's matrimonial house. The court a quo dismissed the application. On appeal, BEADLE CJ…, did not hesitate to lift the corporate veil to unmask what the husband was up to. It was held that the company was nothing more than the husband's alter ego.

See also the case of Wamambo v Wamambo HB03-92 and In re Budle Pres Ltd 1961 CH.D.270.

In casu, the unilateral and fraudulent de-registration of Ronoe Enterprises (Pvt) Ltd and the subsequent registration of Josro Enterprises (Pvt) Ltd was designed to hide the parties' matrimonial assets.

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 court is also of the firm view that the plaintiff's entitlement to 50% share of the Parklands house cannot be diluted by the registration of a bond which was done behind her back and she is therefore entitled to her claimed share in the house.

Issue of costs

The issue of costs is largely at the discretion of the court. But, that discretion must be judiciously exercised. Kruger Brothers and Wasserman v Ruskin 1918 AD.

In the case of Davidson v Standard Finance Limited 1985 (1) ZLR 173 (HC)…, the court noted;

“Each party must pursue his inquiries with due diligence, and that if one employs defective procedures, then costs may be awarded against him on an attorney and client scale.”

The court has noted, with concern, the manner in which the defendant conducted himself in this case particularly the mischief behind the formation of Josro Enterprises (Private) Limited and the attempt to hide clearly matrimonial property under the wings of that company.

The only mitigating factor is that the plaintiff has not emerged cleaner either by attempting to shift her claim in the Parklands house in a way that was a departure from her pleadings.

The court will make an appropriate order for costs.

In the result, I am satisfied it is eminently proper to make the following order. It is ordered as follows:

1....,. 

2. That the plaintiff be and is hereby awarded the following movable property:

(a) 1 x television set.

(b) 2 beds.

(c) 1 lounge suite.

(d) 1 x 2 sets of curtains in her possession.

(e) All cutlery and scullery in her possession.

(f) A Mazda B2200 bearing registration number 686-646D.

3. That the defendant be and is hereby awarded the following movable property:

(a) 1 x deep freezer.

(b) Garden chairs.

(c) 1 set of curtains (at Parklands house).

4. That the plaintiff be and is hereby awarded 50% of the value of Stand 12713 Parklands, also known as number 15 St Helens' Road, Parklands, Bulawayo.

5. That the plaintiff be and is hereby awarded 25% of the value of the Flat referred to as an undivided 136th share, being Share number 102 in and to Stand 585 Bulawayo Township with the defendant being granted the option to buy out the plaintiff not later than 31 March 2009.

6. That the defendant be and is hereby awarded 75% of the value of the Flat referred to as an undivided 136th share, being Share number 102 in and to Stand 585 Bulawayo Township.

7. That, in respect of Order 4 (supra) either party be and is hereby granted the option to buy out each other not later than 30th of March 2009 failing which the property shall be valuated by a mutually agreed estate agent in the City of Bulawayo and sold with the proceeds being shared in accordance with the ordered ratios.

8. That the defendant shall pay one third of the plaintiff's costs of suit.

Both parties were legally represented during the pleadings, but, by the time the matter came for trial their respective legal representatives had filed notices of renounciation of agency making the parties self actors when the matter came for trial.

The parties attended a pre-trial conference on 11 May 2008 whereat issues for trial had been formulated. However, at the trial, the parties informed the court there were now only two issues for the determination of the court, namely:

(a) Which one of the parents should be awarded the custody of the two minor children?; and

(b) How should the maintenance of the minor children of the marriage be apportioned between the parties?

The parties further informed the court that they stood by what was agreed at the pre-trial conference. The agreement was as follows:

It was agreed that:-

“(a) The defendant retained total ownership of the property at 286 Jaywick Road, Matshemhlophe;

(b) Plaintiff retains total ownership of the property referred to as Stand 6857 Pingstone Road, Khumalo; and

(c) Defendant admits that plaintiff has 34,936533% of the value of the property on Stand 4983200 Mpopoma, Bulawayo.”

The parties sought the assistance of John Pocock and Company (Pvt) Ltd for the valuation of the Mpopoma property. The valuers gave an estimated value for the house in the sum of ZAR90,000 (ninety thousand South African Rands) which was accepted by both parties....,.

(1)...,. 

(2)...,. 

(3)...,. 

(4)...,. 

(5) The plaintiff shall retain sole ownership of the property known as Stand 6857 Pingstone Road, Khumalo, Bulawayo;

(6) The plaintiff shall be entitled to have as his share 35% of the value of the property known as Stand 4983200 Mpopoma, Bulawayo which shall be paid to him on or before 30 September 2009 failing which the property shall be sold so as to pay the plaintiff from the proceeds of such sale;

(7) The defendant shall retain sole ownership of the property known as 286 Jaywick Road, Matshemhlophe;

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]. Two children were born of the marriage, Diana Musonza (born 24 March 1993) and Tafadzwa Musonza (born 24 January 2000). The parties resided at Number 3 Dunmore Avenue, Queensdale.

The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006, however, things came to a head and the plaintiff decided that she had had enough. The plaintiff moved out of the matrimonial home and left the two minor children in the care of the defendant. In February 2007, following an incident between the defendant and his daughter, Diana, the plaintiff obtained custody of both children.

In June 2007, the plaintiff instituted summons seeking a decree of divorce, custody, and maintenance of the minor children and division of the parties' matrimonial estate.

The defendant, whilst conceding that the marriage had broken down, opposed the claim for custody, maintenance, and the proposed division of the estate. At a pre-trial conference, held before a judge in chambers, the following issues were referred to trial:

1. Who should be awarded custody of the minor children?

2. If the plaintiff, how much maintenance should be paid by the defendant for each child?

3. What constitutes a fair and equitable distribution of the matrimonial estate?

At the commencement of the trial, it appeared to me, from the pleadings, that there was a further issue between the parties in that they were not in agreement as to the constitution of the estate. With the consent of both parties, a fourth issue was introduced, being what constitutes the matrimonial estate.

Counsel for the plaintiff also sought an amendment, which was granted by consent of the defendant, to remove the claim for maintenance for the plaintiff and change the claim for the minor children to US$280 per month per child.

The plaintiff testified as follows:

She resides at 5649 New Canaan, Highfield, Harare and is self employed as a cross-border trader. She started living together with the defendant in November 1991 and registered their marriage on 13 December 2002. The marriage was fraught with problems as the defendant started physically abusing her when she was only eight months pregnant with their first child. Her parents took her to the police but she later withdrew the charges because she loved the defendant. He used to assault her about twice a week whenever he was drunk. In 2002, the defendant brought home another woman whom he introduced as his second wife. The plaintiff moved out of the matrimonial home in 2006 and the woman in question moved into the matrimonial home....,.

In respect to the immovable property, she testified that in 1995 they were renting premises in Houghton Park when she saw an advertisement in the daily press for the sale of a house. She went with the defendant to view the property which was at 3 Dunmore Avenue in Queensdale. The estate agents who were handling the property were not very forthcoming and she advised the defendant to go and see the owner of the property who was a Mr Finch who was a manager at Dynamos Football Club.

Upon agreement, they paid a deposit of $80,000. The purchase price for the property was $215,000. Mr Finch allowed them to take up occupation before transfer whilst they renovated it.

She stated that although the property was registered in the defendant's name she had assisted him in acquiring it. She was employed by the defendant's company and would not receive a salary as all the money was used for renovating the property. She stated that she was also cooking for the builders who were working on the property.

She stated that she was entitled to 45% of the value of the property because of her direct and indirect contributions.

She denied that Yolanda Madondo had contributed to the acquisition of the property. She stated that Yolanda had never lived with them but was living with her mother.

The plaintiff stated that they subsequently bought another property in Glen View in 2004. The property was purchased as an undeveloped Stand and is registered in both their names.

The plaintiff stated that she was claiming her 50% share in that property.

She produced the Memorandum of Association for Mainland Business Merchants (Pvt) Ltd which showed that they were both directors of the company. The company's main business was commodity broking. They were dealing in business machines. The property was purchased using proceeds from this business.

In relation to the movable property, the plaintiff stated that she was entitled to the property claimed in her declaration. She denied that she had included property which had been left by the defendant's first wife. She also denied that some of the property had been bought by Yolanda Madondo.

The plaintiff and the defendant owned four motor vehicles during the subsistence of their marriage. The plaintiff claimed the Mercedes Benz and the Honda Prelude. She claimed that the two Cressidas should be awarded to the defendant.

She stated that all the motor vehicles are registered in the defendant's name.

She stated that the defendant purchased the Mercedes Benz for her as she was a pastor at their church. She also stated that they had gone to Messina in South Africa with the children to collect the Hyundai Prelude which had also been purchased for her....,.

The defendant also gave evidence and told the court as follows:...,.

He told the court that he purchased the Queensdale property in 1991 and registered it in 1995. He produced the Agreement of Sale and the acknowledgment of receipt of the deposit of $80,000. He finished paying the purchase price in 1992. He however could not take transfer of the property because it was not in the seller's name. He confirmed that he purchased the property from Mr Finch. He started renovating the property in 1993 by putting up a wall around the property. He would get the money to effect developments from Mediocre (Pvt) Ltd. He denied that the plaintiff was involved in the renovations. He also denied that the plaintiff was employed by that company in any capacity at all.

He stated that the Glenview property belongs to the City Council as he has no title over it. He purchased it using funds from Mediocre (Pvt) Ltd in 2001. He confirmed that according to the Council documents the purchasers of the Stand were the plaintiff and himself. He stated that he has developed the Stand extensively with no help at all from the plaintiff. The development took place after the plaintiff had left the home. In his view, she would be entitled to a 15-20% share.

The defendant confirmed that Yolanda Madondo was his "wife" and she started living with him in the matrimonial home in 2007. He stated that she also contributed towards the development of both properties and any award that the court will make should take this into account.

Turning to the motor vehicles, he stated that the Mercedes Benz was purchased in 2001 by Mediocre (Pvt) Ltd as a company asset. He denied that he purchased it for the plaintiff as the plaintiff has never taken a driver's license.

The Hyundai Prelude was acquired in 1997 from Japan. He stated that he purchased it through the internet and then contracted a company to have it delivered at his offices in Harare. He produced all the documents relating to the purchase and shipment of the Hyundai Prelude. He denied that he had gone to Messina with the plaintiff to collect it. He stated that prior to 1997 the plaintiff did not have a passport and could not have travelled to South Africa.

The two Cressidas were acquired in 1987 and 1991. The defendant stated that they were acquired as company assets. He produced a business statement, dated 1999, which listed the two Cressidas and the Hyundai as company property.

He further testified that part of the movable property claimed by the plaintiff was not owned by him but by other people and some had been stolen.

In support of this averment, he produced a stolen property list which was reported at the local police station. He also produced a number of lists which put the property in various categories depending on the owner. He produced a cash sale invoice for Tonum Investments and indicated that whilst he was in possession of the property it did not belong to him and he was keeping it for the owner. He also produced a cash sale invoice for Redport (Pvt) Ltd and stated that he took possession of the listed property because the owner owed him some money. He stated that the money has not yet been repaid and he cannot find the owner.

Turning to the company, the defendant stated that Mainland Business Merchants is a shelf company which has never operated since it was registered. The directors of the company are the defendant's children. He and the plaintiff were never directors of the company. He stated that the only company which ever operated was Mediocre Business Merchants (Pvt) Ltd. He also said that the plaintiff did not have any shareholding in that company.

The defendant also called Nicholas Musonza.

He confirmed that the parties married in accordance with customary law in December 1992 after the plaintiff had eloped. He was working at Mediocre Business Merchants (Pvt) Ltd at the time. He denied that the plaintiff ever worked at the company. He stated that the matrimonial home was purchased in 1991. He explained that at some stage, during the time that the property was purchased, Mr Finch would phone the office and on one occasion came looking for the defendant. He identified exhibit 8 as a copy of the letter that he was asked to give to the defendant.

Yolanda Madondo also gave evidence before the court.

She testified that she married the defendant under customary law in 1993 during the subsistence of the plaintiff's marriage. She said that they have always had a good relationship and would travel together to their communal home with their children. She stated that she contributed in the construction of the Glen View house as the defendant had told her that she would live there. She stated that prior to moving to Queensdale she had lived in rented accommodation which was paid for by the defendant. She stated that she contributed towards the construction of the chalets at the matrimonial home. She purchased the rocks that built the chalets and the grass for the thatching.

In relation to the Glen View property, she stated that she paid for the water to mold the panels for the wall and cooked for the builders.

She also claimed some movable property which she said she purchased. She produced a receipt as proof of purchase. She explained that the property was being kept at the matrimonial home as she had nowhere to keep it.

The plaintiff gave her evidence in an honest and forthright manner. Her demeanor was good, and, although she was subjected to a lengthy and detailed cross examination she did not get angry or lose patience. She stuck to her story and answered questions put to her politely. She was candid with the court and made concessions which were against her interests. For instance, she admitted that Tafadzwa's grades at some point were very low and that was because their living conditions were not good. When testifying about the distribution of the property she conceded that the defendant deserved a greater share as he had contributed more. I have no difficulty in accepting her evidence over that of the defendant's wherever there is a material conflict.

It was apparent to the court that the defendant was not being honest with the court. The truth had to be forcibly prised out of him. For instance, he insisted that Yolanda Madondo was his wife and denied that he was committing adultery when he was quite aware that he was married in terms of a law which only allowed him to have one wife. He denied that he had been convicted of an assault on Diana until the plaintiff produced the admission of guilt fine receipt which he paid at the police station. He was also asked if the plaintiff was a director and shareholder of Mainland Business Merchant and he denied this only to change his story when the counsel for the plaintiff referred him to the relevant exhibits which show that she was indeed a director and shareholder of the company. He further stated that the matrimonial home was purchased in 1991 and yet he could not explain why during that period he moved his family on no less than three occasions going into rented accommodation when he owned the house. At some stage he even rented the property next door to the matrimonial home.

It was also pertinent to note that during this period Mr Finch was not the owner of the property as he only became an owner in February 1995 before he transferred it into the defendant's name.

The defense witnesses, in my view, did not take his case any further. Nicholas's evidence was only relevant in so far as he corroborated the defendant's evidence that the plaintiff was not an employee of Mediocre Business Merchants and Yolanda's evidence merely to prove her claim to some of the movable property.

Taking into account the findings I have made on the credibility of the witnesses I will now deal with each of the issues which were referred to trial in turn....,.

DIVISION OF ASSETS

The division of matrimonial assets is governed by section 7 of the Matrimonial Causes Act [Chapter 5:13].

The plaintiff claimed a 45% share in the Queensdale property and 50% share in the Glen View property. The defendant, on the other hand, has offered her a 20% share in the Glen View property arguing that the plaintiff made no contribution into the acquisition of both properties and that, in any event, the Queensdale property was bought before the marriage and was thus not matrimonial property.

The Queensdale property was acquired, according to the defendant, in 1991. He produced as exhibit 8 a document acknowledging receipt of $80,000 from Mr Finch as a deposit for the Queensdale property. The document was dated 20 December 1991.

This document was disputed by the plaintiff who alleged that it was a forgery and challenged the defendant to produce the original document - which he failed to do.

The plaintiff produced a copy of the title deeds showing that transfer was effected in 1995. She also showed that this property was only transferred into Mr Finch's name in February 1995.

It seems to me that the plaintiff's story is more probable than that of the defendant. Mr Finch could not possibly have sold a house which he did not own in 1991. It also seems highly unlikely that after having purchased the house in 1991 the defendant would continue living the life of a tenant and moving from one house to the next when he owned his own home. I also do not believe that he would even rent a property next door to the house he had purchased instead of exercising his rights of ownership of the house.

I thus find that the property was purchased after the parties were married. Even if I am wrong in this finding, I take comfort in the fact that this property would still constitute matrimonial property as it is trite that matrimonial property includes all property purchased whether before or during the marriage and includes property acquired after separation unless it is specifically excluded in terms of section 7(3) of the Matrimonial Causes Act. See Ncube v Ncube 1993 (1) ZLR 39 (S).

The defendant's evidence did not seek to show that the property falls under any of the exceptions set out in the Matrimonial Causes Act.

The plaintiff and the defendant went to great lengths to show the extent of their contributions in the purchase and development of both the Queensdale and Glen View properties. Whilst it was apparent, from the evidence, that the plaintiff was not employed as a secretary at Mediocre Business Merchants (Pvt) Ltd it was conceded that even if she had been so employed her contribution would not have been as high as that of the defendant who was also a director and shareholder in the company.

The plaintiff is, however, a co-owner of the Glen View stand.

It is now settled that in order for the court to achieve an equitable distribution it must take into account all the factors that are set out in section 7(4) of the Matrimonial Causes Act [Chapter 5:13]. In making the award, the court must endeavor to place the parties in the position they would have been had if the marriage continued. In Shenje v Shenje 2001 (2) ZLR 180 (H) GILLESPIE J stated that the court must consider all the factors set out in section 7(4) of the Matrimonial Causes Act. He stated as follows…,:

"The factors listed in the subsection deserve a fresh comment. One might form the impression, from the decisions of the courts, that the crucial consideration is that of the respective contributions of the parties. That would be an error. The matter of the contributions made to the family is the fifth listed of seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps, it is time to recognize that the legislative intent, and the objective of the courts, is more weighted in favour of ensuring that the parties needs are met rather than that their contributions are recouped."

There can be no doubt that all contributions are important in a marriage whether they be material or otherwise. Some contributions are not even tangible as they relate to the moral support given to a husband as he goes about his work and ensuring that he comes home to a comfortable and happy home. Although such contributions cannot be quantified in any monetary terms they are no doubt important in the building of a happy home.

In Hatendi v Hatendi 2001 (2) ZLR 530 (S) the Supreme Court emphasized the wide discretion accorded to the court in the division of matrimonial assets and stated that the court may take into account factors that are not easily quantified.

Section 7(4) of the Matrimonial Causes Act obliges the court to look at the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future.

In making an award of the immovable property in this case, I will take into account the fact that the parties were married for a period of 16 years. This is by no means a short period. The plaintiff and the minor children will need a suitable house for their accommodation following divorce. They require a house in a good area as that is what the plaintiff and the children are accustomed to.

I have also been asked by the plaintiff's counsel, in his closing submissions, to take into account the fact that there was gross marital misconduct on the part of the defendant which led to the breakdown of the marriage.

He submitted that the defendant was in an adulterous relationship for the greater part of the marriage to the plaintiff. The defendant called Yolanda Madondo as his witness and she testified that they had been together since 1993 and have two children.

The power of the court to take into account the conduct of the parties, in making an award of property, is set out in section 7(4) of the Matrimonial Causes Act [Chapter 5:13] which provides as follows:

"The court is enjoined to endeavour as far as is reasonably and practically possible, and, having regard to their conduct, is just to do so, to place the spouses…, in the position they would have been had a normal marriage relationship continued…,."

In deciding when a court should apply this principle it should be mindful that it is not merely allowing the re-introduction of the fault principle, which was removed by the Matrimonial Causes Act, through the back door.

In Marimba v Marimba 1999 (1) ZLR 87 (H) GILLESPIE J said…,;

"…,. The related principle is more difficult to formulate when it is suggested that the conduct of a party is such that it should have a bearing on a property distribution order. Mindful of the move away from the fault system of divorce, judges in this jurisdiction have set their faces against any invitation to delve into the 'minutiae of ancient domestic grievances.' They have declined to permit counsel to 'resurrect the old spectre of guilt and innocence and drag the judge to hear their mutual recriminations and go into their petty squabbles of days on end.'”

It seems to me, therefore, that a court should not easily permit the use of marital misconduct when making an award of division of property upon divorce. The difficulty appears to be in defining when it would be just to permit misconduct to influence the award of property. Thus, judges in this jurisdiction, while emphasizing the reserve and caution that must affect any decision to permit the misconduct of a spouse to affect any apportionment on the grounds of misconduct, have merely been bound to acknowledge the possibility of doing so in a proper case.

GILLESPIE J goes on to say the following at page 93F–94C of his judgment:

"It seems to me that just such a principle emerges. The relevant legislation entrusts to the court a wide discretion to achieve a just result in the division of the assets of the spouses and the maintenance of a spouse or a child. That discretion is a judicial discretion to be exercised upon a proper consideration of all relevant factors. The aim is expressly to place the parties in the position they would have been in had a normal marriage relationship persisted. This aim is qualified by considerations of reasonableness, practicality, and justice. The overall desideratum of justice, however, is itself expressly related by the clear words of the Act to the conduct of the parties.

The principle may thus be stated: in its overall effort to order a fair division of assets or of maintenance, the court may permit considerations of the conduct of the parties to affect the final order to the extent to which that would be just. What is just in any case is left to the judicial discretion of the court. It may generally be said, however, that it is never just to penalise a person for an unhappy marriage. Only serious cases of predominantly one-sided misbehaviour will be permitted to influence the order that would otherwise have been made based on considerations excluding the question of misconduct."

The question which arises is whether this is a proper case upon which the court may exercise its discretion and permit the evidence of misconduct to influence the division of assets?

While, in my view, it is clearly wrong for a man to marry a woman under a law which obliges him to have only one wife and to thereafter proceed to marry another under customary law and proceed to live with both of them in a polygamous setting the plaintiff in this case did nothing about it for almost 14 years. The law allows parties to a marriage to make an election with regards the type of marriage they wish to enter into. Once one has elected to marry under the Marriages Act [Chapter 5:11] one cannot thereafter marry another in terms of customary law as the defendant did.

However, the plaintiff seemed to have condoned the affair as her only complaint during her testimony was that Yolanda Madondo had moved into the matrimonial home after she left. She does not allege in her pleadings, nor in her evidence, that the defendants conduct with Yolanda Madondo was the major cause of the breakdown. She merely refers to the defendant having “committed acts of adultery and is now staying with another woman which plaintiff regards as incompatible with the continuation of a normal marriage relationship."

In my view, where a plaintiff wishes to rely on marital misconduct, for the purpose of influencing a decision of the assets, this must be specifically pleaded in the declaration so that it is apparent that it is an issue at trial.

In this case, the submission that the court should take into account gross marital misconduct was merely made in the plaintiff's closing submissions and in response to the fact that the defendant had called Yolanda Madondo as a witness before the court.

During the trial, only evidence relating generally to the breakdown of the marriage was led by the plaintiff. Most of her evidence related to the parties contributions to the acquisition of the assets of the marriage. It thus seems to me that this is not a proper case in which the court should take into account marital misconduct in the division of assets as insufficient evidence was led to make the finding that this was the conduct that led to the breakdown of the marriage.

Yolanda Madondo, in her evidence, told the court that she contributed in the development of the Glen View stand and the Queensdale property.

I did not believe her and merely saw it as a ploy by the defendant to defeat the plaintiff's claim in that property as the property is in the name of the plaintiff and the defendant. In my view, if she did make any contributions she did so in the clear knowledge that the defendant was married to another woman in terms of a civil marriage and she could have no claim to their joint estate.

I now turn to the movable assets.

The defendant denied that all the property claimed by the plaintiff was matrimonial property. He essentially divided the movable assets into three categories that is; those owned by the parties, those owned by third parties, and those that do not exist. The defendant produced as exhibit 14 items which he stated were acquired by the parties during their marriage.

It was interesting to note that the list did not include a bed where the parties slept or any kitchen utensils.

The defendant challenged Annexure "A" to the plaintiff's declaration which was a list of the movable assets. He indicated to the court that most of the property does not exist. However, some of the property was listed in exhibit 14 (which were on the defendant's list of property acquired during the marriage); in his plea (which was property which should be awarded to the plaintiff), and in exhibit 19, the list of stolen property. I was thus able to make a specific finding that some of the property did exist.

Of the property which was challenged by the defendant as none existent the plaintiff was unable to show any proof of the properties existence. I was therefore unable to make any finding in respect to that property. The property which was stolen was not capable of division as it was no longer in existence.

The defendant produced, as exhibit 15, a list of property which he stated belonged to Mildred Shata, his sister, Viola Edith Musonza, and Yolanda Madondo.

The defendant's explanation that he and the plaintiff had used the bed left by his second wife, Mildred Shata, did not ring true. He separated from Mildred Shata in 1989. They have been separated for eighteen years and she now lives in Canada. It seems to me that if this was truly her property she would have taken it by now. She did not come to court to testify in relation to the property nor did she produce proof of ownership. I thus do not accept the defendant's evidence that this property belongs to his first wife and his sister. In my view, he was clearly using their names to hide matrimonial assets from the court. I thus find that the property listed as belonging to Mildred Shata and Viola Edith Musonza is matrimonial property which is available for distribution between the parties.

Yolanda Madondo, in her testimony, claimed property which was set out in exhibit 21 which was an invoice setting out property which she purchased at Anisha Nadat on 17 April 1998. She stated that when she purchased the property she did not have anywhere to put it as the place she was renting was small. The property was thus held in storage at Queensdale. The plaintiff did not really challenge her claim to this property in cross-examination, and, as such, I will not make an award in respect to this property.

The defendant also produced two cash sale invoices in the name of Redport (Pvt) Ltd setting out property purchased by that company. The property was purchased in 2003 and he is keeping the property. The cash sale invoices appear to be authentic documents, and, in the absence of other evidence to show that the property does not belong to them, I am inclined to find that the property does not belong to the parties.

Exhibit 16 shows a pro-forma invoice issued by ABC Auctions to Tonum Investments in July 2003. There is no evidence that the property was indeed bought by this company or by the defendant. In the absence of such proof, it is my view that the property belongs to the parties. I will thus also award this property between the parties using the principles already stated.

Exhibit 19 was a list of property which was alleged to have been stolen in April 2007. It lists the Panasonic VCD player, Pioneer 3 CD changer HI FI, Superior turn table and Panasonic HI FI speakers. The defendant stated that although the property was being claimed by the plaintiff it had been stolen and never recovered.

The plaintiff denied that the property was stolen and stated that it was still at their matrimonial home. She however could not explain how the items would be on the stolen property list provided to the police. In my view, therefore, this property was stolen and is no longer available for distribution.

In making an award for the movable property, I will distribute this property as fairly as I can taking into account the principles set out in section 7 of the Matrimonial Causes Act.

I will distribute the property set out in the defendant's plea, the property in exhibit 15 under the names of Mildred Shata and Viola Edith Musonza, the property listed in exhibit 14 and exhibit 16. This, in my view, was property which was in existence, from the evidence, and is matrimonial property.

I now turn to the motor vehicles.

The plaintiff claimed the Mercedes Benz and the Honda Prelude and offered the two Toyota Cressidas to the defendant.

It was clear from the evidence that all the motor vehicles were purchased during the duration of the marriage. The defendant, in his evidence, testified that the motor vehicles were bought by Mediocre Business Merchants. He produced, as exhibit 13, a document entitled Business Statement dated 1999 which showed that the two Cressidas and the Honda Prelude were listed as business assets. However, in cross examination, he conceded that the motor vehicles were registered in his name and not the company name. It seems to me that the defendant has sought to hide behind the company at his convenience. If the motor vehicles were indeed company assets they would have been registered in the name of the company. In my view, therefore, the motor vehicles are matrimonial property and are available for distribution.

The plaintiff asked the court to award to her the Mercedes Benz and the Honda Prelude. She stated that the Mercedes Benz was bought for her by the defendant and she would use it to go church. However, when it was put to her that the defendant could not have bought the car for her as she did not have a driver's licence she was evasive in her response. It was apparent to me that these were all family assets which were bought for the enjoyment of the family. Whilst the defendant argued that the plaintiff should not be awarded a motor vehicle at all in his testimony he, however, stated in his submissions that the plaintiff could be awarded a Cressida.

It seems to me, however, that such a distribution would be clearly against the principles set out in section 7 of the Matrimonial Causes Act which require that the distribution should be equitable and just and ensure that the parties continue to live as they would have had the marriage continued.

In this case, if the marriage had continued, the plaintiff would have continued to have a motor vehicle at her disposal with or without a license. I thus take the view that she is entitled to at least one motor vehicle. The two Cressidas were bought soon after their marriage and the Honda Prelude and Mercedes Benz a little later. In my view, an award of the Honda Prelude to the plaintiff would meet the justice of this case....,.

The plaintiff claimed costs against the defendant on a higher scale.

In my view, there was no basis for such a claim. The defendant was entitled to call Yolanda Madondo so that she could claim her property. I do not consider that to have been an unnecessary witness. The plaintiff has been largely successful in her claim and the cost must thus follow the cause.

Having taken all the factors in this case into consideration I thus make the following order:

1....,. 

2....,. 

3....,. 

4....,. 

5....,. 

6. The plaintiff is hereby awarded the movable property set out in Annexure A attached to this order.

7. The defendant is hereby awarded the movable property set out in Annexure B attached to this order.

8. The plaintiff is hereby awarded a 45% share of the immovable property, being Stand 5654 Salisbury Township, situate in the district of Salisbury measuring 2,057 square metres, also known as No.3 Dunmore Avenue, Queensdale, Harare.

9. The plaintiff is hereby awarded a 50% share in Stand 11571 Glenview Township, Harare.

10. The defendant is hereby granted the option to buy out the plaintiff her share in each of the properties set out in paragraphs 8 and 9 of this Order.

(a) The properties shall be valued by a registered estate agent appointed by the Master of the High Court from his list of valuers within thirty days of this Order.

(b) The defendant shall pay the plaintiff her share of each of the properties set out in paragraphs 8 and 9 of this Order within ninety days of service of the valuation report.

(c) The cost of the valuation of the properties shall be met by both parties equally.

11. In the event that the defendant fails to pay out the plaintiff her share in each of the properties set out in paragraphs 8 and 9 of this Order, in accordance with paragraph 10, the properties shall be sold at best advantage and the plaintiff awarded her share of the net proceeds.

12. The defendant shall pay the plaintiff's costs of suit.

Between 1993 and 1998 the plaintiff worked for the Ministry of Information and Publicity. In 1995 he was allocated House Number 143, 16 Honde Close, Nyameni, Marondera on a rent-to buy basis. He paid off the purchase price by way of a lump sum in 1999. Repayments used to be deducted from his salary. He claimed that the defendant did not contribute anything towards the purchase of the house. As a result, he claimed a seventy percent share of the house. He stated that he would be able to purchase the defendant's share within one month. He also sought to remain in occupation of the house, and offered to secure alternative accommodation for the defendant.

The defendant said she contributed towards the family's welfare. The only thing she did not contribute was school fees. She dyed clothes which she sold. The proceeds were used on food and household utensils. She also purchased clothes for herself and the children as well as purchasing a carpet. This was between 1999 and 2002. The plaintiff chased her away from Mutare and she went to stay in Marondera. As regards the matrimonial home, she indicated that she wants to be awarded a forty-five percent share. She also indicated that she wants to reside in the matrimonial house until the younger child is eighteen years old.   

In respect of the matrimonial property, counsel for the plaintiff submitted that the defendant had conceded that she did not make a direct contribution. He indicated that the plaintiff wants to buy out the defendant's share within a month of the divorce being granted. In the alternative, he submitted that the house should be sold and the proceeds shared in the ratio of seventy percent for the plaintiff and thirty percent for the defendant.

Regarding the division of assets, section 7 of the Matrimonial Causes Act [Chapter 5:13] provides that -

“(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or  at anytime 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;

(b) 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.

(2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purposes of giving effect to the order, or for the purpose of securing that the order operates fairly as between the spouses and may, in particular, but without prejudice to the generality of this subsection -

(a) Order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;

(b) Confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient.

(3) The power of an appropriate court to make an order in terms of paragraph (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.

(4) 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-generating 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 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 made by each spouse to the family, including contributions made by looking after the home 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 children in the position they would have been in had a normal marriage relationship continued between the spouses.

(5) In granting a decree of divorce, judicial separation, or nullity of marriage, an appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred to in paragraph (a) and (b) of subsection (1).”

The bone of contention centered on the bedroom suite, coffee table and chairs.

The plaintiff's evidence was that he purchased all the movables save for a carpet. On the other hand, the defendant testified that she also contributed towards the purchase of sofas. This was after the plaintiff defaulted in paying instalments to Pelhams. In addition, she stated that she also purchased the coffee table and chairs – albeit having received some money from the plaintiff.

Although the plaintiff disputed that the defendant ever contributed to the purchase of movables it is inconceivable that the defendant never engaged in any income-generating activities. This is especially so when it is not disputed that she embarked on cross-border trading in order to supplement the family income. In addition, it was never challenged that the defendant was once locked out of the matrimonial home for two nights. This happened after she had returned from selling some wares. The defendant also told the court that she used the money she earned on clothes for herself and the children as well as for food.

As for the refrigerator, the plaintiff did not want it awarded to the defendant but preferred that it be awarded to the children. Since I am going to award custody of the minor child to the defendant I will exercise my discretion and award the refrigerator to the defendant as that will, in essence, benefit the child as well.

The plaintiff has a better earning capacity than the defendant. I will therefore also award the lounge suite to the defendant.

As for the immovable property, it is not in dispute that the defendant did not make any direct contributions. However, she supplemented the family income and assisted in the upbringing of the children, let alone cooking and washing for the plaintiff as well up to such time the marriage relationship deteriorated. Up to the time of the trial, the parties had been married for eighteen years, which period must be taken into account in distributing the matrimonial assets.   

I will award the defendant a share of forty percent of the matrimonial home having taken into account that it is difficult to quantify the precise value of her indirect contribution.

The plaintiff has an obligation to provide accommodation for the minor child. Under cross-examination he stated that he could provide US$100= for such accommodation. This would be in lieu of the defendant's occupation of the matrimonial house.  

The plaintiff did not challenge the defendant's testimony that he moved out of the matrimonial house to put up with one of his mistresses. This means that as between the plaintiff and the defendant, the former has ready access to alternative accommodation.

It would meet the justice of this case if the court orders that the defendant is to remain in the matrimonial home until the minor child attains the age of eighteen years. However, the defendant will have to forego a part of her share of the house as the plaintiff's enjoyment of his share will be put in abeyance. Since the minor child is now fourteen years old it means the defendant will live in the house for only four years. I will therefore take away five percent of her share and give it to the plaintiff.

In the result it is ordered that -

(c) The plaintiff is awarded the following items – bedroom suite; radio with CD player; colour television set; video cassette recorder; coffee table and chairs.

(d) The defendant is awarded the following items – bed; four-plate stove; wardrobe; three-piece wall unit; dining-room suite with folding table; sewing machine; all kitchen utensils and cutlery; as well as the refrigerator.

(e) The plaintiff is awarded sixty-five percent and the defendant is awarded thirty-five percent of the value in respect of House Number 143, 16 Honde Close, Nyameni, Marondera.

I am aware that Stand 3687 Old Highfield, Harare is jointly owned by the parties. However, section 7(1) of the Matrimonial Causes Act [Chapter 5:13] empowers the court to order that any asset be transferred from one spouse to the other.  

I will therefore order the plaintiff to transfer her half share in that property to the defendant....,.

1. ...,.

2. ...,.

(a) ...,.

(b) Stand 3687 Old Highfield, Harare be and is hereby awarded to the defendant as his sole and exclusive property; and

This now leaves the issue of the Nissan Sunny as the only outstanding issue.

On this issue, counsel for the plaintiff, in her closing submissions, said that the defendant has shown no justification for claiming this vehicle as he disposed of two family motor vehicles without account to the plaintiff. The plaintiff did not benefit from the proceeds of the two vehicles. Furthermore, the vehicle was purchased by the plaintiff during a period when he was absent from home, and he did not make any contribution towards its purchase. The defendant thus wants to reap where he did not sow. He also has no need for the vehicle whilst it has been the plaintiff's mode of transport during the defendant's absence - and continues to be even as at the date of trial.

I am in agreement with counsel for the plaintiff's submissions which, in my view, succinctly lay bare the futility of the defendant's claim to the motor. The defendant has not justified his claim. I will award the Nissan Sunny motor vehicle to the plaintiff....,.

1. ....,.

2. ...,.

(a). ...,.

(b). ...,.

(i). ....,.

In respect of the matrimonial home, the plaintiff testified that she paid the entire purchase price for the Stand without a contribution from the defendant. Development of the Stand commenced in 1999 and was completed in 2001. She conceded that whilst she solely funded the construction of the house the defendant was responsible for food. She furnished proof of payments she made either in her name, or, in some instances, their joint names, or through the company in which she was a Director.  The plaintiff produced proof of various payments that were made to the contractor who constructed the house. They cover the period between 4 February 1999 and 12 June 2001. The payments were receipted to Tadex Trading (Private) Limited and Zectopine Investments (Private) Limited – which are the two companies in which the plaintiff holds directorships. These payments, including the purchase price for the Stand, amounted to Z$3,532,230=. The plaintiff also produced invoices relating to quotations for other work done, or items supplied but in relatively smaller amounts.

The plaintiff claims seventy percent share of the matrimonial home with the defendant getting the balance. According to the plaintiff, the house should be valued within forty days of the granting of the divorce order with the parties sharing the costs equally. Thereafter, the house should be sold with the parties sharing the net proceeds as suggested.

In respect of the matrimonial home, the defendant stated that he paid for all the electrical wiring. He also paid the transfer fees. He also assisted in the operations of the companies in which the plaintiff is a Director. This was by way of making deliveries to Gweru and sourcing clients such as the Zimbabwe National Army's 4 Brigade, Wha Wha Prison, the Magistrates Civil Court in Harare and Bindura Prison.

By virtue of his indirect contributions he wants fifty percent share.

Apart from claiming that he made some indirect contributions, the defendant did not tender any documentary proof. For example, it should not have been difficult to give evidence on the value of the contracts he secured with the clients he mentioned. From the payslips belonging to the defendant, that were produced by the plaintiff, the defendant's earnings between April 1999 and September 2001 roughly averaged Z$12,488= per month.

Counsel for the defendant submitted that the court should take into account the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13] in as far as, among other things, it provides that in making an award the court should place the parties in the position they would have been had a normal marriage relationship continued. She also submitted that the defendant should not be impoverished by the divorce. This court was also referred to the case of Shenje v Shenje 2001 (2) ZLR 160 (H) in which GILLESPIE J, in considering the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13] had this to say..., -

“In deciding what is reasonable, practical, and just in any division, the court is enjoined to have regard to all the circumstances of the case. A number of the more important, and more usual circumstances, are listed in the subsection. The list is not complete. It is not possible to give a complete list of all the possible relevant factors. The decision as to a property division order is an exercise of judicial discretion, based on all relevant factors, aimed at achieving a reasonable, practical, and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantages, to the extent they are inevitable, of becoming divorced.

The factors listed in the subsection deserve fresh comment. One might form the impression, from the decisions of the courts, that the critical consideration is that of the respective contributions of the parties. That would be an error. The matter of contributions made to the family is the fifth listed of seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps, it is time to recognize that the legislative intent, and the objective of the courts, is more weighed in favour of ensuring that the parties' needs are met rather than that their contributions are recouped.”

In the exercise of my discretion, and taking into account the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13], I am satisfied that notwithstanding that the plaintiff contributed more to the matrimonial home awarding her a greater share than the defendant would result in an overall inequitable distribution. This is because she has another property to fall back on; whereas the defendant has none. Consideration must also be taken that the defendant is going to shoulder the burden of looking after the parties' daughter....,.

1. ...,.

2. ...,.

3. That the movable assets of the marriage be shared in accordance with paragraph 10 of the declaration.

4. That Stand 6295 Warren Park Township of Warren Park be shared equally between the parties.

5. That within forty days of this order the property described in paragraph 4 above shall be valued by an estate agent agreed to between the parties, failing which the Registrar shall appoint one such estate agent, and, in either case, the parties shall equally share the costs of such valuation.

The property is registered in their joint names.

On the matrimonial home, the starting point is that the parties have equal shares as the property is registered in their joint names. In the case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC), cited by the plaintiff's counsel, McNALLY JA had this to say..., -

“The registration of rights in immovable property in terms of the Deeds Registries Act [Chapter 139] is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of “real rights” in s2 of the Act. The real right of ownership, or jus in re propia is the “sum total of all the possible rights in a thing” – see WILLE'S Principles of South African Law 8ed p255.

The duty of a court in terms of s7 of the Matrimonial Causes Act involves the exercise of a considerable discretion, but it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest, by sorting out the property into three lots, which I will term “his”, “hers” and “theirs”. Then it will concentrate on the third lot marked “theirs”. It will apportion this lot using the criteria set out in s7(3) of the Act. Then it will allocate to the husband the items marked “his” plus the appropriate share of the items marked “theirs”.  And the same to the wife. That is the first stage.

The plaintiff issued summons claiming a decree of divorce, rights of access to the minor child, a division of matrimonial assets and costs of suit. The defendant also filed a counter-claim seeking similar relief.

The parties agreed that the marriage had irretrievably broken down.

They had also settled on custody of the minor children as well as division of most of the movable assets.

The only outstanding issues are the distribution of two refrigerators, two motor vehicles, and two immovable properties.

The plaintiff testified to the effect that he married the defendant under customary law in 1990. The marriage was later solemnized in 1992.

The plaintiff confirmed that Flat Number 3 Selmont Gardens, Belvedere was purchased by the defendant through a loan facility granted by her employer. They agreed that the mortgage would be serviced through the defendant's salary whilst the plaintiff's income would be used to maintain the family. The flat was registered in the defendant's name. The parties resided in the flat for about three years. The plaintiff contributed towards maintenance of the property, levies, and rates.

He put his indirect contribution at fifty percent.

The plaintiff told the court that he applied for Stand Number 17170 Borrowdale. They moved in prior to its completion in 1995. Around that time, he had secured a loan from the Reserve Bank of Zimbabwe, financed through the Credit Guarantee Company. He purchased a bus from whose proceeds he constructed the house. He engaged a contractor. The mortgage on the flat was still being serviced by the defendant.

According to the plaintiff, the defendant's contribution towards the construction of the house equates to thirty percent.

According to the plaintiff, ninety percent of the house's construction was done on a cash basis as he had disposable income and was operating a transport business. He later secured a mortgage to complete the house. By then, he was an Assistant Manager with T.A. Motors.

The main house was completed in 2000. In 2005, they made extensions comprising lockable garages, second lounge, and balcony. By the time he left the matrimonial home, the extensions had reached roof level.

The plaintiff had no idea when the mortgage on the flat was repaid in 2003 as he had been transferred to Marondera.

On vehicles, the plaintiff stated that he preferred the Daihatsu Move. If the vehicles cannot be shared then they should be sold with the proceeds being shared equally.

Between 2005 and 2006, he purchased foreign currency amounting to US$7,000 from the Bank. The family then went to South Africa where they purchased the Daihatsu and a Toyota Corolla. At the border, the plaintiff caused the Daihatsu to be registered in the defendant's name whilst the Toyota Corolla was registered in his name. Within a month, he sold the Toyota Corolla and invested the proceeds in Unit Trusts. The income thus earned was used to develop the Borrowdale house.

Later, the defendant was offered to purchase a Nissan Ex Saloon by her employer, Agribank. The deposit of ten percent that was required was paid from the Unit Trust account.

In respect of household goods, the plaintiff testified that he only claimed a stove and a refrigerator. The four plate stove was non-functional. Since there are two stoves and two refrigerators, he was only claiming one of each. Since the refrigerators are an upright one and a freezer, the defendant could choose what she preferred. The items were acquired by the defendant as family property after the parties had consulted each other....,.

It was put to the plaintiff that the deposit for the Borrowdale property was provided by the Reserve Bank and he stated that he would need to verify that. He also stated that he overlooked to disclose, during his evidence in-chief, that the extensions to the house were funded from money he served when he was seconded to Toyota South Africa. Regarding duty for the imported vehicles, it was put to him that the money had been provided by the defendant and the plaintiff replied that he had reservations.

The plaintiff also indicated that he was residing in a house provided by his employer for which he paid some rent. He also insisted that he was in a stronger financial position than the defendant as he now held the post of Divisional Director whereas the defendant had remained a Personal Assistant....,.

The defendant testified that between 1988 and 2004 she worked for The Reserve Bank. Apart from basic salary she was entitled to vehicle loans, personal loans, and housing loans. In 1990, she purchased the flat through a mortgage bond financed by the Reserve Bank. She was then still single. She resided in the flat until 1991.

She subsequently sold the flat and surrendered the proceeds to the Reserve Bank. In 1995, following cancellation of the bond, she acquired Number 3 Selmont Gardens. The purchase price came from the proceeds of the disposal of the flat. The plaintiff did not make any direct contributions.

Part of the funds for development of the Borrowdale property came from the rentals received for the flat. The rentals from the flat used to be deposited into the plaintiff's account but he sometimes squandered it. She then caused the rentals to be deposited into her account with Standard Chartered Bank. She uses the rentals to pay school fees for the child who is at Heritage School.

She further stated that she purchased the Stand for the Borrowdale house after securing a loan from the Reserve Bank. She was adamant that the plaintiff made no contribution. She also stated that she used to earn more than the plaintiff as they used to receive frequent salary increments at the Central Bank. She was able to tell the court details about who drew the plan; where building materials were sourced.

The bus that was purchased by the plaintiff was a twenty-five seater. The income derived from it was negligible as most of the money went for loan repayment, wages, and running costs. At some stage, loan repayments were in arrears and the defendant had to chip in. The bus was later disposed of.

Extensions to the house were the plaintiff's idea although he contributed nothing. Most resources came from the defendant's retrenchment package whose proceeds had been deposited into the Standard Chartered account. She then deposited part of the money with Highveld Financial Services.

Extensions to the house comprised a guest bedroom with ensuite, guest toilet, passage, double lock-up garage, balcony, and a second lounge. She also used proceeds from the retrenchment to purchase a 29 inch colour television set, a television stand, 12 cubic feet single door refrigerator, microwave oven, and a four plate stove. Part of the funds was used to purchase a Toyota Corolla motor vehicle which was subsequently sold to a Mr. Khan. The money received from Mr. Khan was initially deposited into the plaintiff's account and he later transferred it into the Highveld account.

Regarding the importation of vehicles from South Africa, it was the defendant's evidence that she transferred money into the plaintiff's account for the purchase of traveller's cheques. She also obtained R2,500 from Agribank for their subsistence and accommodation. Money for duty in respect of the Daihatsu was withdrawn from the plaintiff's Agribank account. The defendant then used her visa card to clear the Toyota Corolla.

The defendant indicated that she wants to retain the matrimonial home for the sake of the children. She expressed her willingness to buy out the plaintiff's share.

In his submissions, counsel for the plaintiff cited section 7 of the Matrimonial Causes Act [Chapter 5:13] as the provision that guides a court in apportioning matrimonial assets. He further submitted that the provision is not specific on what constitutes matrimonial property. He also cited the case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC) as authority on how a court should divide matrimonial assets.

In respect of the movables, counsel for the plaintiff submitted that the established evidence was that the refrigerators were purchased from proceeds of investments with Highveld Investment Services. Therefore, the plaintiff should be awarded one of the refrigerators.

Counsel for the plaintiff further submitted that there was evidence to show that the plaintiff contributed towards maintenance of the Belvedere property. He also submitted that the evidence shows that the plaintiff is the one who acquired the Borrowdale stand and that both parties contributed towards its development.

Overall, he submitted that the plaintiff should be awarded fifty percent of the Belvedere flat and seventy percent of the Borrowdale house. It was also submitted that the plaintiff will be able to buy out the defendant's share within thirty days.

On the other hand, counsel for the defendant submitted that the dispute between the parties centres on the children whose custody was awarded to the defendant. In making an award, he submitted that the court should take into account the interests of the children who regard the Borrowdale house as home. In this respect, he cited section 7(4) of the Matrimonial Causes Act.

Counsel for the defendant correctly submitted that since the Borrowdale property is jointly owned by the parties, the starting point is that the parties own equal shares.

The next stage, according to Takafuma v Takafuma 1994 (2) ZLR 103 (SC) is to take away from one party and awarding to the other according to their respective contributions.

In this respect, counsel for the defendant submitted that the plaintiff's evidence on the nature of his contribution is unreliable as he did not provide any documentary proof. He further attacked the plaintiff for not disclosing the sources of his income during his evidence in-chief. In short, he submitted that the plaintiff generalized his contributions in respect of the Borrowdale property. In essence, he contended that the evidence speaks for itself that the defendant made more contributions than the plaintiff.

Although the evidence, in respect of the flat, shows that it was acquired solely from the defendant's resources, counsel for the defendant did point out that the defendant conceded that the plaintiff contributed towards its maintenance.

In accordance with the case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC), the starting point is that the Borrowdale property is jointly-owned by the parties.

Although the plaintiff claimed a greater share on account of a greater contribution, he did not proffer evidence to prove that.

Each party testified on the nature of contributions they made in respect of the development of the Stand without tendering actual receipts on the payments made.

The court's overall assessment is that none of the parties is entitled to a greater share than the other. Therefore, this property will be apportioned equally to both parties, with the defendant being given the right to remain in occupation until the younger child attains majority status. Thereafter, the defendant shall buy out the plaintiff's share, failing which that option will be given to the plaintiff.

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. However, its acquisition was solely financed by the defendant - albeit from the proceeds of an earlier property. It is in fact registered in the defendant's name and would fall in the category of “hers”.

The plaintiff claims a share of the property on the basis of his contribution towards its maintenance. This was basically in the form of rates, levies, and telephone bills. The amount involved was not stated. The parties only stayed in the property for about three years. I would hold that the plaintiff is entitled to a share, albeit it would be very negligible, on account of his small indirect contribution. This is in accordance with section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13] which provides that -

“(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or at anytime 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;

(b)…,.”

Therefore, although the flat belongs to the defendant, it can be subject to division by virtue of the above provision. However, in making such a decision the court must take into account the provisions of section 7(4) of the Matrimonial Causes Act which provides 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 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 made by each spouse to the family, including contributions made by looking after the home 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 children in the position they would have been in had a normal marriage relationship continued between the spouses.”

In the court's discretion, the plaintiff will be awarded a five percent share in the flat.

As regards the movables, the documentary evidence before the court shows that the Nissan Sunny vehicle was acquired by the defendant through a loan from her employer. It would not constitute her property until the loan was discharged. It is therefore not subject to distribution.

As for the Daihatsu Move, the documentary evidence shows that the defendant received a substantial retrenchment package from the Reserve Bank in 2004. She invested the money with Highveld Financial Services. She subsequently applied for holiday travel allowance. When the vehicle was imported, she paid for the duty from funds from her Agribank account, and, in this case, she accessed the account through the Agribank branch at Beitbridge.

Taking into account that the defendant played a more significant role in the vehicle's acquisition, and the fact that she is going to be awarded custody of the minor child, it is only fair that the Daihatsu Move be awarded to her.

In respect of household goods, the only contested items are the two refrigerators.

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. To award both of them to the defendant would result in an unequal division taking into account the purpose of the Matrimonial Causes Act.

Therefore, the defendant will be given the option to choose one of them and hand over the other to the plaintiff. In reaching this decision, I have taken into account that the defendant is being awarded the bulk of the movables.

Accordingly, it is ordered that -

1....,. 

2....,. 

3....,. 

4....,. 

5. In respect of Flat Number 3 Selmont Gardens, the plaintiff is awarded a five percent share whilst the defendant is awarded a share of ninety-five percent.

6. Both parties are awarded equal shares in Stand Number 17170 Sable Street, Borrowdale.

7. The defendant is given the right to remain in occupation of Stand Number 17170 Sable Street, Borrowdale until Dennis Tawanda Simango attains the age of eighteen years. Upon Dennis Tawanda Simango attaining the age of eighteen years, the defendant shall buy out the plaintiff's share failing which the plaintiff is given that option.

8. All the movable assets, including the Daihatsu Move vehicle, are awarded to the defendant save that the defendant shall choose one of the functional refrigerators and hand over the other to the plaintiff.

9. Each party shall bear their own costs.

The plaintiff testified that the parties married in 1970. However, they had commenced living together in 1969. The plaintiff now resides at Flat Number 4 Inverurie Court, 137 King George, Avondale, Harare. Initially, the plaintiff was unemployed whilst the defendant was employed as a nursing sister at St. Anne's Hospital. The defendant secured a flat to rent in 1970 and the plaintiff subsequently moved in. Later, they rented a cottage in Ballantyne Park. The plaintiff had now secured a job with Farmers Club. Both parties contributed towards rent and household expenses although the defendant earned more than the plaintiff. They resided in Ballantyne Park for several years until their first child was born.

In 1970, the plaintiff was offered a fishing concession in Darwendale. He purchased Crebilly 'A' Farm..., for Z$14,000=. The money was provided by his parents. He claims he did not refund them as it was part of his inheritance. He then secured a loan and established a factory.

The plaintiff took over the bond in respect of 46 Glenara Avenue in the early 1970's from his parents. According to the plaintiff, he got the house as part of his inheritance. Whilst he serviced the bond the defendant contributed towards household expenses. They stayed in this house until 1977.

The Eastlea house was subsequently sold for Z$46,000= and the bond paid off. The plaintiff still worked for Farmers Club whilst the defendant now worked at Dr. Hamilton's surgery. The plaintiff claimed he now earned more than the defendant as he did military call-up duties. However, they combined their incomes.

When the plaintiff's father fell ill he was allowed to withdraw money from his account. Some of the money was deployed in the family business. The homestead at Crebilly 'A' Farm was built from funds generated by V & M Fisheries (Private) Limited. Part of the income generated by V & Fisheries (Private) Limited was used on holiday by the family. They travelled to the United States of America, United Kingdom, South Africa and Israel. He also paid for their son's university fees and purchased a motor vehicle for him.

The flat in which the plaintiff resides was purchased for between 23,000= pounds and 25,000= pounds. It was acquired from proceeds of the offshore account he opened in the Isle of Man. It is registered under Showbel Investments of which the plaintiff is the majority shareholder. The plaintiff prefers the flat and the plaintiff can retain Crebilly 'A' Farm.

The plaintiff also purchased a generator and a Nissan Double Cab vehicle. He also bought a yatch which he subsequently sold.

The plaintiff also testified about setting up a company called Ultra Light Aviation. He purchased the first plane using money from his inheritance. He subsequently sold the company to his son.

He also offered the defendant US$5,000= by way of a lump sum...,. The defendant was of the view that after thirty years of marriage she deserves more than the US$5,000= that was offered by the plaintiff.

Under cross-examination, the plaintiff conceded that as part of her indirect contribution the defendant maintained the home and took the children to school. She also maintained the company's records and took fish deliveries to town. Both the plaintiff and the defendant visited Israel in 1985 where they learnt fish breeding. The plaintiff also confirmed that Crebilly 'A' Farm was not acquired by the State.

On the other hand, the defendant testified that she now resides with her daughter and son-in-law. She helps her son-in-law with his business and also helps with the grandchildren. She quit nursing in 1978. The defendant disputed that the Eastlea house was inherited by the plaintiff. Rather, it was a donation to them to help them get started in life. The bond was serviced from their salaries. The money to purchase Crebilly 'A' Farm was borrowed from the plaintiff's parents. She was very much involved in the fishery business. They purchased Riverside Farm for the family although it was registered in her name. They leased the farm and the proceeds went to V& M Fisheries (Private) Limited. When the plaintiff was involved with Ultra Light Aviation she looked after their business at the farm. The defendant confirmed that money from property inherited by the plaintiff was ploughed into the fishery business, Riverside Farm and the crocodile business. She was involved in the crocodile business between 1994 and 2002. The last records regarding the crocodiles were prepared by their son and she confirmed them. According to the defendant the breeders laid between 500 and 600 eggs and they sold about 400 crocodiles yearly. She was not consulted when the crocodiles were sold. She thus claims half the value of the crocodiles.

In determining this matter, I will take into account that the parties agreed that the household effects at Crebilly 'A' Farm should be shared equally.

The plaintiff's counsel cited the well-known case of Takafuma v Takafuma 1994 (2) ZLR 103 (SC) as authority on the approach to be made in making an award on assets following a divorce. In that case, McNALLY JA had this to say..., -

“The duty of a court in terms of s7 of the Matrimonial Causes Act involves the exercise of a considerable discretion, but it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest, by sorting out the property into three lots which I will term “his”, “hers” and “theirs”. Then it will concentrate on the third lot marked “theirs”. It will apportion this lot using the criteria set out in s7(3) of the Act. Then it will allocate to the husband the items marked “his” plus the appropriate share of the items marked “theirs”. And the same to the wife. That is the first stage.

Next, it will look at the overall result, again applying the criteria set out in s7(3), and consider whether the objective has been achieved, namely, “as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses...., in the position they would have been in had a normal marriage relationship continued...,.”  

Only at that stage, I would suggest, should the court consider taking away from one or other of the spouses something which is actually “his” or “hers”.

Using the above approach, the following property falls under the category of “his”:

(i) Crebilly 'A' Farm;

(ii) Flat Number 4 Inverurie Court, King George Road, Avondale;

(iii) Kipnor generator; and

(iv) Nissan Double Cab vehicle.

V & M Fisheries (Private) Limited constitutes “theirs” as both parties have equal shares in the company.

However, the above distribution would not be equitable in the circumstances as the defendant would not be placed in the same position she would have been had a normal marriage relationship continued. In apportioning these assets, the court has to take into account the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13] which reads that -

“(4) 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-generating 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 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 made by each spouse to the family, including contributions made by looking after the home 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 children in the position they would have been in had a normal marriage relationship continued between the spouses.”

Although both spouses are no longer employed, it is not in doubt that the plaintiff has better resources. The financial needs of the parties are balanced in favour of the plaintiff if one takes into account the resources available to them. The court will have to consider what to take away from the plaintiff and award to the defendant. This is in accordance with section 7(1) of the Matrimonial Causes Act [Chapter 5:13] which states that -

“Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at anytime 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;

(b) 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.”

In making an order in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13] the court is enjoined to take into account the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13]. Going by the ages stated in the marriage certificate the plaintiff and the defendant are now sixty three years and sixty four years respectively. They would be pensioners now. I have already pointed out that the plaintiff has better financial resources and it will be equitable, in the court's discretion, to order that part of those resources be transferred to the defendant.

It is also noted that in his testimony the plaintiff offered the defendant US$5,000=. He has about 61,000= in his offshore account in the Isle of Man. The Standard Bank account, South African account has a balance of R11,500= whilst there is about 3,000= pounds in the Lloyds TSB account.

The court will take into account the duration of the marriage, which, in this case, lasted thirty-one years before they separated.

There is no doubt that the defendant made considerable indirect contributions to the development of Crebilly 'A' Farm during the course of the marriage. In the first place she quit her nursing job to devote to the fishing operations and family commitments; prior to that they used to pool their earnings together in order to meet their financial obligations and household needs. The plaintiff also testified that he used part of his inheritance to develop the farm without giving a breakdown of any specific funds. If he did use part of his inheritance for that purpose it was for the benefit of the entire family. In any event, Crebilly 'A' Farm homestead was developed from funds generated by V & M Fisheries (Private) Limited in which both parties have equal shares. Taking into account the duration of the marriage and the defendant's indirect contribution to Crebilly 'A' Farm it is equitable that she be awarded a fifty percent share. This takes care of the fact that she is only getting compensation in respect of improvements to Riverside Farm which was acquired by the State. In addition, the defendant has no home to retire to in her old age. I have taken into account that the Flat was acquired by the plaintiff after the parties had separated. In the result, it is ordered as follows -

“(a) That a decree of divorce be and is hereby granted.

(b) That compensation for improvements to Riverside Farm shall be payable to the defendant.

(c) That the plaintiff be awarded Flat Number 4 Inverurie Court as his sole property.

(d) That V& M Fisheries (Private) Limited be wound up with the proceeds being shared equally between the plaintiff and the defendant.

(e) The Kipnor generator is awarded to the plaintiff.

(f) The parties shall keep the motor vehicles and any other movables in their respective possession as their sole property.

(g) The defendant is awarded a fifty percent share of Crebilly 'A' Farm.

(h) The movable property in Crebilly 'A' homestead shall be shared equally between the parties.

(i) The plaintiff shall maintain the defendant, at his cost, on a suitable medical and dental aid scheme and pay all shortfalls until the latter remarries or dies.

(j) The amounts in the following bank accounts shall be shared equally between the parties – Standard Bank, South Africa, ABSA, and Lloyds Bank.

(k) Within three months of the granting of this order the plaintiff shall pay the defendant an amount of 10,000= pounds.

At the time of the marriage they lived in a single room as tenants/lodgers. Soon after marriage they moved to now rent two rooms. In the year 2001 they eventually acquired an immovable property, namely Stand Number 10771 Kuwadzana Extension Harare…,. Thus, from being lodgers, they were now proud owners of an immovable property. In that same period they also acquired movable property.

Unfortunately in that same period differences began to emerge leading to this divorce action.

As there are no children, the contentious issue pertained to the distribution of the matrimonial estate they acquired during the subsistence of the marriage. At the pre-trial conference counsel for both parties indicated that the issue of movable property had been resolved and so was no longer an issue before this court. The only issue referred for trial pertained to the equitable distribution of the immovable property, which is the parties' matrimonial home.

In granting a decree of divorce this court is enjoined to also decide on the proprietary and other ancillary issues as between the parties. In that regard section 7(1) of the Matrimonial Causes Act [Chapter 5:13] 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;

(b) 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.”

Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] outlines some of the principle considerations the court must take into account in making an order in terms of section 7(1) of the Matrimonial Causes Act [Chapter 5:13]. Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] states that -

“(4) 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 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 made by each spouse to the family, including contributions made by looking after the home 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 doing so the court shall endeavour, as far as is reasonable and practical, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

It is clear that the court is enjoined to consider all the circumstances of a case. It is thus incumbent upon the parties to candidly place before the court all the circumstances from which the court will have to decide the case. The guidelines in section 7(4) (a)-(g) of the Matrimonial Causes Act [Chapter 5:13] can only be appropriately applied where the parties have adduced evidence on the aspects. Without such evidence court may not be able to apply due weight to each of the factors in arriving at its decision.

In their closing submissions, counsel for both parties implored the court to consider the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13] in favour of their respective clients. Unfortunately, they could not adequately address on the aspects of their clients evidence that touched on many of the factors in question. The predominant feature in the evidence by the parties was that of the contribution to the purchase and development of the house.

The plaintiff's evidence was to the effect that when they got married they briefly lived in a single room. Soon thereafter they rented two rooms. He thereafter obtained a loan to purchase the immovable property in question. He began servicing the mortgage bond from his salary. This was in 2001. In August 2003 he paid off the mortgage bond using funds he had received as a gift from his late young brother Bernard. That gift was his alone, and so the entire loan for the house was paid by him alone without the defendant's contribution. When the house was bought it was a core house. After paying off the bond he set upon rebuilding the house to a five-roomed house. That processes involved demolition of the core house and rebuilding a new house all together. That house is almost complete. It was the plaintiff's evidence that the defendant did not make any financial contribution towards both the purchase and the rebuilding of the house. The plaintiff went to great lengths to show that the house was bought and rebuilt from his own financial resources with no contribution from the defendant. He felt that because the defendant did not make any such contribution she did not deserve any meaningful share in the house. To that end he initially offered the defendant a 10% share. When asked why he had made such an offer he said that “the 10% is meant to be a token of appreciation of the time we shared as husband and wife.” When asked about his offer at the pre-trial conference of 20% he said: “I offered the increase from 10% to 20% meant to cushion the defendant so that we could meet halfway.”

Clearly, in my view, the plaintiff had no appreciation of any meaningful contribution to the matrimonial estate by the defendant. This is why he offered a token percentage. The word token connotes a symbol, sign or just an indication. The plaintiff was asked to outline the contribution, if any, that the defendant did, to which he said that the defendant was involved in all the chores a housewife does. She would prepare food for the builders. After demolition of the core house by builders she would clean up around the construction site. She would also clean up as the builders built the new house. He clearly belittled the defendant's contribution to the purchase and development of the new house to something inconsequential.

The plaintiff's attitude has been a subject of judicial correction in a number of cases. For instance, in Shenje v Shenje 2001 (2) ZLR 160 GILLESPIE J alluded to the need to seriously consider the first two factors in section 7(4) of the Matrimonial Causes Act [Chapter 5:13] which deal with the parties' needs then the parties expectations. The learned judge went on to indicate that those factors should not be overshadowed by the fifth factor of contribution.

In Sithole v Sithole & Anor HB14-94 the court held that even if a wife made only indirect contributions, she cannot leave empty-handed merely because she did not contribute financially towards the acquisition and development of the matrimonial home.

In Muteke v Muteke SC88-94 the wife made no direct financial contribution, except as a housewife, but the court awarded her a substantial share. The court considered primarily her needs and expectations rather than her contribution.

It is apparent from the above cases that in deciding on what share to award in the matrimonial estate, a party's direct financial contribution is only but one of the factors to be considered. It is, however, not the defining factor. In as far as the court's endeavour is to ensure that each party lives a life as near as possible to a life they lived before the divorce, the parties' needs and expectations must always be seriously considered irrespective of the differences in contributions. It is also important to appreciate the importance of indirect contribution made by a party as more often than not such indirect contribution makes it possible for the other party to divert most of their resources to the acquisition and development of the matrimonial estate.

In casu, the defendant contended that she contributed to the matrimonial estate, both directly and indirectly. Though her direct financial contribution was less than the plaintiff's, it must, nevertheless, be considered as entitling her to a reasonable share in the estate. There was no doubt about her indirect contribution in taking care of the home and providing a homely environment to the plaintiff. The plaintiff admitted to that. She also attended to the builders when the plaintiff was at work. The defendant indicated that she engaged in the trade of buying and reselling of various wares. On about five occasions she went out of the country on such buying and re-selling missions. The money she realized from her trade was utilized for family needs. The plaintiff, in his evidence and under cross examination, acknowledged this contribution - save to say he deemed it insignificant.

The defendant contended that the gift from Bernard that the plaintiff said was used to pay off the mortgage bond was in fact for both of them as a family and not for the plaintiff alone. This is a point the parties did not agree. It is my view, that this would not be decisive to the distribution.

The defendant went on to outline her needs and expectations. I did not hear the plaintiff to seriously challenge the defendant's evidence on this. It is common cause that as husband and wife the parties had graduated from being lodgers to being proud houseowners or landlords. With the divorce, the defendant will no longer be an owner of a house unless she gets a share big enough to enable her to buy another house. Currently she is living in squalid conditions in Matererini Flats, Mbare, where she has to use communal toilet and ablution facilities. The defendant's expectation of living as a house owner has been shattered. The standard of living she had attained as the plaintiff's wife is no more. The plaintiff, on the other hand, continues to enjoy the comfort and status of a house owner with all the security that goes with it.

I am of the view that the 20% that the plaintiff offered the defendant is not commensurate with the defendant's contributions, both direct and indirect, for the fourteen years they lived together. It is also not adequate, taking into account the defendant's needs and expectations. The defendant needs such a share as would enable her to start a new life at almost the same standard of living as was the case when she lived with the plaintiff at their matrimonial home. If what they accrued as a couple is not enough for both to sustain that standard of living then both should share the disadvantages brought about by the divorce. A share in the region of 35% would, in my view, meet the justice of this case.

Accordingly it is hereby ordered that:-

1. ...,.

2. The plaintiff is awarded a 65% share in the matrimonial home, being Stand 10771 Kuwadzana Township of Fontainbleau Estate situate in the district of Salisbury; also known as Stand 10771 Kuwadzana Extension, Harare.

3. The defendant is hereby awarded 35% share in the said matrimonial home.

4. The parties shall agree on the value of the property within seven days of this Order. If the parties fail to agree on the value they shall appoint a mutually agreed evaluator to evaluate the property within fourteen days of the date of this Order. If the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his panel of evaluators to evaluate the property. The plaintiff shall meet the cost of valuation.

During the subsistence of the marriage they had acquired both movable and immovable property. The plaintiff put forth his proposition of how best such property should be shared.

The issue of distribution of the matrimonial property was also resolved serve for the motor vehicles.

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] provides 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;

(b) ...,.”

In the exercise of the power to distribute the property section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that -

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

(a) The income–earning capacity, asset 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 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 made by each spouse to the family, including contributions made by looking after the home 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.”

From the evidence by both the plaintiff and the defendant it was clear that the motor vehicles in question were acquired for the family by the plaintiff. The motor vehicles were being used for the benefit of the family. The contention was mostly on who is in need of which motor vehicle.

The plaintiff's evidence was to the effect that from the time of purchase the B1800 motor vehicle was intended for his use. The Opel Kadett was for the defendant's personal use and for ferrying the children to and from school. He also said that these two motor vehicles were the only motor vehicles he owned. As he was the one who had always been using the B1800 he should be awarded that motor vehicle whilst the defendant is awarded the Opel Kadett - which car she has always been using. When asked about the motor vehicle he had been using since separation, the plaintiff said that is a motor vehicle provided by his employer on a temporal basis.

It, however, became clear that, by virtue of his employment, the defendant is entitled to be provided with a motor vehicle by his employer as a condition of service. Things being equal, he would be entitled to purchase that motor vehicle at the end of five years from the date of its issuance.

The defendant's evidence on the motor vehicles was to the effect that she needed the B1800 motor vehicle for her personal use and for ferrying the children to and from school. She indicated that the Opel Kadett was bought as a hedge against inflation and not that it was bought for her personal use. She, however, acknowledges to have used it for personal use and for ferrying the children to school. She also said that the Opel Kadett broke down, and, due to its old age and state, is not a reliable motor vehicle. She needed a reliable motor vehicle to ferry the children to school. She further testified that she has, in fact, been using the B1800 to ferry the children to and from school. The only reliable motor vehicle she would have is the B1800. When the plaintiff's offer to have the Opel Kadett repaired, at his expense, was put to her, the defendant said that it would still not be reliable due to its old age.

The evidence by the two was essentially a battle for the B1800. It is my view that the issue can be resolved by referring to section 7(4)(a)–(c) of the Matrimonial Causes Act [Chapter 5:13] as the primary considerations in this case with other considerations as ancillary. Whilst the plaintiff may have been the one in regular use of the B1800 whilst he lived with his family; since his departure from the matrimonial home, about three years ago, he has not used it as it remained at the family home. He, nevertheless, has been able to survive without evident hardships. For the past three years the B1800 has been at the family home where the defendant said she has been using it. It was clear from the evidence adduced that of the two parties, the plaintiff has better income-earning capacity, and is better positioned to find another motor vehicle. The basic needs of the spouses, now and in the near future, are in favour of defendant retaining a more reliable motor vehicle. I am of the view that the defendant has a greater need for the more reliable motor vehicle, especially that she needs to ferry the children to and from school, than the plaintiff. The plaintiff may have the Opel Kadett and decide on what to do with it, if it is as dysfunctional as the defendant said, or if it is repairable as the plaintiff contended.

1. ...,.

2. ...,.

3. ...,.

4. ...,.

5. ...,.

6. In consideration of the minor children's welfare, the parties have agreed that the plaintiff shall be entitled to 45% of the value of the immovable property, namely Stand No. 61 Alfred Road, Greendale, Harare, and 55% to the defendant and the minor children, after its valuation by a qualified valuer agreed to by both parties' legal practitioners, or, in the event of disagreement on the identity of the valuer, such valuer shall be appointed by the Registrar of the High Court (at the joint instance of the parties' Legal Practitioners) within thirty(30) days of the date of this Order. In the event of the evaluation being undertaken, the defendant shall effect full payment of the plaintiff's entitlement, within three (3) months of the delivery of the Valuation Report on either parties Legal Practitioners and the Registrar of the High Court, proof of which shall be done by a certificate of service, by the plaintiff's Legal Practitioners on the defendants legal practitioners and the Registrar of the High Court. Failing payment within the aforesaid period, the property shall be put for sale to best advantage and the proceeds shared as to 45% for the plaintiff and 55% for the defendant and the minor children.

7. The movable property shall be shared as follows:

(1) The plaintiff is awarded the following as his sole and exclusive property:

Opel Kadett motor vehicle registration no.535-710S;

Desk fan;

Video Cassette Recorder;

Refrigerator;

3 Plate stove.

(2) The defendant is hereby awarded the following as her sole and exclusive property:

Mazda B1800 motor vehicle registration no. AAK 7389;

At the pre-trial conference, the parties agreed that the defendant's issues be referred for trial. These were-

(a) What property was acquired during the course of the marriage?

(b) What is a just and equitable distribution of the property that was acquired during the course of the marriage?

(c) What is reasonable maintenance for the minor child Julie (born on 29 November, 2005)?

During the course of the trial the issue of maintenance for the minor child was settled. The same applies to the division of the movable property which the plaintiff conceded should all be awarded to the defendant.

The only remaining issue is whether House Number 5 Rainbrant Close, Strathaven, Harare constitutes matrimonial property, and, if so, how it should be apportioned.

The parties got married in 2003. The plaintiff testified that problems commenced a few months into the marriage. The parties would separate for a few days until in 2006 when the defendant went away with their child for more than two months. It was the plaintiff's testimony that as from June 2006 they started living apart although they remained under the same roof. Summons were issued in January 2007 and the defendant moved out during the same month. The plaintiff obtained a loan from his employer in August 2006 and purchased House Number 5 Rainbrant Close, Strathaven, Harare. He produced all relevant documentation in respect of the purchase and transfer of the immovable property. The Agreement of Sale shows that the transaction was concluded in August 2006. The loan was serviced from deductions from his salary. It was his evidence that the house was identified through a mutual friend to the parties. The plaintiff further told the court that prior to their marriage the defendant was employed by Nissan Zimbabwe, and subsequent to their marriage she was no longer employed. Prior to the marriage, the plaintiff was staying in the United States of America. Three weeks after the wedding they went to stay at his in-laws' place for about two months. Thereafter, they moved to his parents' house in Kambanji. As regards his employment history, the plaintiff told the court that he first worked for a company that dealt in satellite technology called Integrated Digital Technology. Thereafter, in January 2004, he formed a company dealing in similar business called Trinity Networks. He also worked for a financial services company. He got employed by the Reserve Bank of Zimbabwe around June/July 2004.

On the other hand, the defendant testified that prior to the marriage she worked for Nissan and left for AMC in 2001. Later, she also sold vehicles on behalf of Borrowdale Car Sales as well as Eastlea Motors. Prior to marriage she purchased a Nissan Sunny vehicle for the plaintiff as well as a cell phone and line. She was engaged in a variety of income-generating activities like selling cement, furniture and clothes. When they rented the Kambanji house from her in-laws she is the one who paid the rent. It was her evidence that she even effected some improvements like the erection of pillars and bird baths. The plaintiff occasionally purchased some groceries. He was said to be given too much drink and had an obsession with buying vehicles for himself. The defendant testified that she encouraged the plaintiff to secure a loan from the Reserve Bank. She assisted in scouting for a suitable house. As a result they went to view a house in Christon Bank and a Stand in Nyanga. She also told her friend Portia and Julie - her hairdresser. Around June or July 2006 the defendant was given the telephone number of Mrs Du Toit. The house that was being rented by Portia, through Julie, was up for sale. She and plaintiff went to view the house. The defendant then discovered that the plaintiff was having an affair with her former maid of honour. According to the defendant when summons for divorce were served on her, in February 2007, they were now using separate bedrooms. She was adamant that between the purchase of the house and January 2007 they were still living as husband and wife. She had agreed that the house be registered in the plaintiff's name. She wants a half share as she looked after the plaintiff before they got married. In addition, she claimed that her income went towards the family's subsistence as most of the plaintiff's salary went towards the loan repayment.

Counsel for the plaintiff further submitted that the defendant did not prove the extent of her indirect contribution. The defendant also did not tender proof of her earnings. In this respect it was counsel for the plaintiff's submission that the defendant was not entitled to a share of the property since the evidence only shows that she took care of the plaintiff for three months before their marriage.

On the other hand, counsel for the defendant submitted that the plaintiff was bound by his pleadings in which he denied owning the house. The claim that the house was acquired when the parties had separated is not part of the plaintiff's pleadings. Hence, he submitted that the defendant made her case and was entitled to a 50% share of the house.

It is..., not in doubt that the purchase of the house was funded through the plaintiff's employer. The loan was deducted from the plaintiff's salary. What has to be determined is the extent of the defendant's indirect contributions. It does not really matter whether the house was purchased before or after the parties had separated. This is so because of section 7 of the Matrimonial Causes Act [Chapter 5:13]. Suffice though to note from the evidence before me that the defendant's evidence regarding how the house was purchased was not discredited. The defendant could not have made efforts to negotiate the purchase if the parties were already living apart as the plaintiff wanted the court to believe. The only shortcoming in the evidence before me is the extent of the defendant's indirect contribution. No proof of her income was tendered. Even proof of the household expenses she incurred was not tendered. The same shortcomings apply to the plaintiff's evidence. For example, the plaintiff could not state his earnings prior to joining the Reserve Bank. Even his income at the Reserve Bank was not stated. Nonetheless, the defendant wants a half share without having taken into account the provisions of the Matrimonial Causes Act [Chapter 5:13] - especially regarding the direct or indirect contributions towards the home and family. However, despite the lack of evidence regarding the extent of the defendant's contribution, the court has a wide discretion by virtue of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The provision in question was given consideration in the case of Ncube v Ncube 1993 (1) ZLR 39 (SC) in which KORSAH JA had this to say..., -

“For the determination of what is a fair and just division, apportionment or distribution, so as to place the spouses in the position they would have been in had a normal marriage relationship continued between them, consideration must be given to all the surrounding circumstances including, but not limited to, the matters specified under s7(3) of the Act.

Clearly, there is a difference between the phrases "assets of the spouses" and "family assets", which latter phrase the learned MASTER OF THE ROLLS said in Wachtel v Wachtel, supra, "refers to those things which are acquired by one or other or both of the parties, with the intention that they there should be a continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole". The English authorities abundantly establish that in respect of “family assets” a spouse cannot reap where he or she has not sown and that to deserve a share of such assets a spouse must have contributed money or money's worth. See Wachtel v Wachtel supra at p 837f. Notwithstanding this difference between the phrases "assets of the spouses" and "family property", the provision by s7(3) (d) that, in the distribution of the assets of the spouses, regard must be had to the direct and indirect contribution made by each spouse to the family, seems to me to suggest that it is only in very exceptional circumstances that a spouse may benefit from assets to which he or she has not contributed money or money's worth. I am in agreement with the learned trial judge that the rationale for taking into consideration the matters specified under s7(3) of the Act is to empower the courts to prevent a spouse from acquiring a morally indefensible financial advantage from the failed marriage. To achieve this, the court must take an overall view of how justice can best be achieved between the parties. See Beaumont v Beaumont 1987 (1) SA 967 (A) at 992D-F; Archer v Archer 1989 (2) SA 885 (E) at 894A.”

In making a determination on this issue the court will take into account that the marriage between the parties was of limited duration as it did not last four years. Of those four years the house was purchased towards the end of that marriage. I will take into account that the defendant contributed towards the upkeep of the family, although the extent of such contribution is not known as no figures were adduced before the court.

I will also take into account that the parties never lived in the house in question. Both parties are gainfully employed, although the plaintiff indicated that his salary is quite low on account of the economic set-up currently prevailing. However, that does not discount the prospects of better earnings in the future. Therefore, in terms of future earning capacity I would say the parties' circumstances are evenly balanced.

However, in terms of resources or assets at the disposal of the parties, the plaintiff would be in a better position by virtue of his ownership of the house. Had the marriage relationship between the parties continued, the defendant would have benefited from the house even if she was not a part-owner. The manner in which she could have benefited would be varied. It could have been from occupation as the matrimonial home or from proceeds of rentals if they decided to lease it. However, taking into account the limited duration of the marriage, and the unproven extent of the defendant's indirect contribution, I would award her a fifteen percent share of the house.

In the result, it is ordered as follows-

(a) ...,.

(b) All movable assets that were in dispute be awarded to the defendant.

(c) ...,.

(d) ...,.

(e) ...,.

The plaintiff testified that they married in 2002. He is a property analyst with Kingdom Financial Holdings. He confirmed that they settled all other issues other than that of the immovable property. According to the plaintiff the defendant only started to work in 2001. She got a job as a property negotiator with Eagle Estate Agents. She was not in receipt of a regular salary but was paid a commission based on a concluded sale. She could go for three months without concluding a sale. The few sales she concluded were jointly concluded with other employees. He therefore subsidized the defendant apart from also paying the rates and fending for the family. The plaintiff further testified that between February and June 2003 the defendant worked for an interior decoration company. She earned a small basic salary and was also to be paid a commission. However, she was said not to have concluded any sale. In August 2003 she got a job with the National Social Security Authority. She worked there until February 2004. Thereafter, she got a job at the Births and Deaths Registry and was deployed to Concession. Sometimes he had to offer her a car and fuel as her salary was low. When the defendant was working for Eagle Estate Agents she secured a loan with which she paid a deposit towards the purchase of a Stand in Ruwa. The plaintiff made the repayments on her behalf. They subsequently sold the Stand. According to the plaintiff the money they realized was not substantial as they used it for the payment of school fees and to meet other needs. He was adamant that they disposed of the Stand after he had paid off the mortgage. The mortgage on the house was paid off in December 2004. Currently, the plaintiff occupies the main wing whilst the defendant and the children occupy the guest wing.

The plaintiff estimated his contribution at 80%. He preferred to be given an option to buy out the defendant's share failing which the house should be sold and the proceeds shared in accordance with his evidence regarding their respective contributions. He stated that he would be able to buy out the defendant's share within twelve months.

The defendant testified that they used to reside in Mutare. When they relocated to Harare she quit her job. She had to look for employment in order to supplement the plaintiff's income as it could not meet all their needs. Although she conceded that whilst at Eagle Estate Agents she did not earn a basic salary, she stated that she did not spend more than three months without concluding a sale. She claimed that she was paid commission at the rate of forty percent. Thus, she worked for Eagle Real Estate Agents between 2001 and 2003. She quit because she could no longer secure clients. She then joined Looking Glass where she was in receipt of a basic salary and commission. Her stint with Looking Glass was for four months. They combined their earnings. After Looking Glass, the defendant worked in the data capturing department at the National Social Security Authority...,.. She claimed that she earned a good salary and that her bank book was kept by the plaintiff. In August 2000 she joined the Registrar-General's Office where she worked in The Births and Deaths Registry. At the time of the trial she worked for Motor City Ford. Apart from confirming the various engagements with the different employers, as stated by the plaintiff, the defendant also told the court she did household chores like cooking, washing, ironing and gardening. This was on account of the size of the house which she said a single maid could not cope with on her own.

Counsel for the plaintiff further submitted that the parties should be awarded in terms of their contributions. In this respect he cited the case of Ncube v Ncube 1993 (1) ZLR 39 (SC).

Although counsel for the plaintiff conceded that the defendant made non-financial contributions, he also pointed out that the parties employed a maid. He submitted that the defendant's evidence on the nature of her contributions was generalized as she did not produce any payslips or other supporting documentary proof. Counsel for the plaintiff also submitted that the defendant should not benefit from a marriage whose end she precipitated by virtue of the sexually transmitted infection. In his view, the defendant should be awarded a twenty percent share. Counsel for the plaintiff also submitted that the court has discretion to order that the plaintiff should provide the defendant with accommodation similar to the one she is currently occupying for the sake of the children.

On the other hand, counsel for the defendant submitted that the defendant should be awarded a fifty percent share. He based this on the duration of the marriage as well as the fact that the defendant was gainfully employed and did other domestic chores for the family....,. Above all, counsel for the defendant submitted that the court should apply section 7(4) of the Matrimonial Causes Act [Chapter 5:13] in making a determination on the distribution of the house.

To give effect to section 7(1) of the Matrimonial Causes Act [Chapter 5:13], section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that -

“4) 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 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 made by each spouse to the family, including contributions made by

looking after the home 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 children in the position they would have been in had a normal marriage relationship continued between the spouses.”

There is no doubt that the house in question was solely purchased through a loan obtained by the plaintiff from his employer. The loan was deducted from his salary. The only issue is the extent of the defendant's indirect contributions.

The first thing to note is that the defendant was not constantly employed during the subsistence of the marriage. She changed jobs frequently. She did not give evidence on what she earned with the various employers. That notwithstanding, she insisted that she is entitled to fifty percent of the house by virtue of her indirect contribution as well as the duration of the marriage.

The marriage was of limited duration as it did not last more than four years. From the available evidence the parties have not lived as husband and wife since 2004 when they made accusations and counter-accusations of infidelity against each other.

In view of the parties' respective occupations, and taken that the matrimonial property is registered in the plaintiff's name, it is clear that the plaintiff has better resources than the defendant. The court should endeavour to place the parties' in the position they would have been had a normal marriage relationship continued. In this case, the defendant would have continued to enjoy the use and comfort of the matrimonial home. However, in light of the limited duration of the marriage, and the lack of direct contribution on the part of the defendant, I am satisfied that her share does not amount to fifty percent.

I am mindful that it is not easy to quantify the indirect contribution of a spouse who, apart from being formally employed, also doubles as wife, counsellor, and a jack of many trades within the home. But the duration of a marriage is a useful guiding factor; the longer the marriage, the greater the value of indirect contribution such that it is unavoidable to award the parties' equal shares.

On appeal, ZIYAMBI JA in Usayi v Usayi 2003 (1) ZLR 684 (S)  had occasion to comment on section 7(4) of the Matrimonial Causes Act [Chapter 5:13] and stated as follows..., -

“…,.The Act speaks of direct and indirect contributions. How can one quantify, in monetary terms, the contribution of a wife and mother who for thirty nine years faithfully performed her duties as wife, mother, counselor, domestic worker, housekeeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly, and a husband and children happy? How can one measure, in monetary terms, the creation of a home and the creation of an atmosphere therein from which both husband and children can function to the best of their ability? In light of these many and various duties, how can one say, as is often remarked: “throughout the marriage she was a housewife. She never worked”. In my judgment, it is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of “direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties.” A fair approach is that set out by PROFESSOR NCUBE in his book Family Law in Zimbabwe. At p.178 he said:

'Our courts, when formulating a legal approach to the re-allocation of property on divorce, should not attempt to attach a monetary value to the intangible and unquantifiable domestic contributions of a housewife. As GRAY aptly puts it:

'A just and realistic evaluation of her efforts depends instead upon the avoidance of the absolute terms of cash value in preference for the relative approach of differential equality between financial and non-financial contributions to the acquisition of matrimonial assets.'

Thus, the evaluation process should not seek to determine how much a housekeeper is worth in comparison with, for example, a university lecturer, nor should the process seek to determine the value of a wife's cooking, washing and rearing of children as compared to, say, a Government Minister's work. The proper approach would be to presume that in the majority of marriages the spouses assume equivalent, though different, duties which are equally beneficial to the welfare of the family.'”

The learned judge adopted this approach. At p110 of the record, she said -

“This, in my view, is a proper case in which to adopt the approach set out by PROFESSOR NCUBE in his book whereby it should be presumed that the plaintiff assumed equivalent, though different duties, which were equally beneficial to the welfare of the family. It is she who for many years was left at the communal home as sole custodian of the children in charge of the family. In that role, she enabled her husband, the defendant, to engage in the academic pursuits abroad which placed him in a position to improve the family's standard of living. It is her contribution on the domestic front which freed her husband to work outside the home. But for her efforts, the home and family may not have remained intact. Such a contribution cannot be undervalued. She is over 60 years of age and has no income of her own. By virtue of her age and lack of training, she has no prospects of obtaining employment.

In my view, no basis has been shown for altering the judgment of the High Court. The appeal is therefore dismissed with costs.”

In my view, the above approach is fair as it is not possible to quantify a spouse's indirect contribution during the course of a marriage. However, in the present case the defendant was also relying on direct financial contributions since she was employed. It is only the nature of her earnings that was not proven. It should have been possible for her to prove her earnings in order to assist the court in assessing how the earnings compared to those of the plaintiff as well as how those earnings, combined with the indirect contributions of a wife and mother compared with those of the plaintiff. Obviously, had the marriage lasted considerably long, the proportion of her share should have increased considerably.

Based on the duration of the marriage I am of the view that the defendant is entitled to a thirty percent share of the matrimonial home. I have taken into account that the plaintiff offered to secure alternative accommodation for the children comprising two bedrooms within Waterfalls.

(a) ...,.

(b) ...,.

(c) ...,.

(d) ...,.

(e) ...,.

(f) ...,.

(g) The movable assets shall be shared in accordance with a settlement reached by the parties prior to trial.

(h)The plaintiff is awarded a seventy percent share of subdivision A of Lot 20-23 Inclusive Parktown Extension of Upper Waterfall whilst the defendant is awarded a thirty percent share.

(i) The Registrar shall appoint an estate agent for valuation of the matrimonial home. The costs of valuation shall be borne by the parties in proportion to the shares awarded to them.

(j) The plaintiff is given an option to buy out the defendant's share within twelve months from the granting of this order failing which the property shall be sold to best advantage on the open market with the parties sharing the net proceeds in proportion to the shares awarded to them.

The parties were married to each other out of community of property on 21 September 1996 and that marriage was blessed with one (1) child, a boy by the name of Adrien Andisa Manyathela, born on 14 July 1997. He is currently a pupil at Christian Brothers College in Bulawayo. The plaintiff is a former train driver at the National Railways of Zimbabwe who retired from employment on medical grounds in 2005 after 24 years of service. He is now a successful businessman running a retail shop in Bulawayo and is now 52 years old. The defendant is a 42 year old former sales lady who took up a tailoring business sewing items after receiving orders from customers. She currently runs a flea market stand at Geddes Building in Bulawayo.

After 13 years of marriage, the plaintiff instituted divorce proceedings against the defendant in June 2009. He says what prompted him to do so is that she had obtained a protection order against him after he had assaulted her. 

She contested the action.

ASSETS

When asked by her legal practitioner, as he led her in her evidence in chief, as to what she wanted from the property listed in the joint pre-trial conference minute, the plaintiff said that she wanted everything to be awarded to her because she had solely raised the funds that resulted in the acquisition of all the listed property.

The plaintiff's evidence was that she was employed by the Council in Rusape in 2001 and that the defendant was employed by the then Post Office Savings Bank…, as from 1995. She said that in 2003 she was working in the front office at the Council. During the execution of her duties she would be given gifts in the form of agricultural produce from councillors, headmen, farmers and chiefs in appreciation of the service that she was providing. She would then, together with the defendant, repackage these gifts into five and ten kilogram packets which they would sell. An amount of ZW$33 million was realized in this way. This amount was then used to start up a general dealer business called Millionaire Investments in Rusape. She said that she did the repackaging of the produce given to her as gifts together with the defendant. She also said that the defendant did not make any financial or monetary contribution to this business. She produced as an exhibit, with the defendant's consent, a document titled “P. Sagandira Trading as Millionaire Investments 31 December 2003;” the document records that the business, Millionaire Investments, received a loan in the sum of Z$33,920,400=, apparently from one D.M. Sagandira, presumably the plaintiff. It further states that the loan was unsecured with no fixed terms of repayment.

Despite having said that the defendant had not made any contribution to the business the plaintiff proceeded to state that they (notably not she) used the money from the business to purchase a commercial stand No.CBD 2473 and develop on it a single storey building which is not yet complete. Throughout her testimony she kept interchanging “We” and “I” as she narrated how various items of property were acquired. She then said that she also used proceeds from the business to purchase a commercial stand No.242 Headlands which she developed to slab level only. She said that she was also given an agricultural plot, No.17 Lee Farm, Nyazura, by Chief Makoni. She said that from the proceeds from this business they acquired the Kriste Mambo homestead in Rusape. She said that they also acquired Shop No.5 Pamusika, Rusape and a residential stand, No.UVE 2606 Vengere Township. She said that after they had acquired the residential stand she then built a ten-roomed house from foundation to roofing level and that the defendant only contributed the last 6 asbestos sheets that were needed for the roofing. She said that they then did the finishing touches using funds generated from the business. The finishing touches included painting, putting up a perimeter wall, commonly referred to as a durawall, putting up a gate and a carport. She said that all this was possible as she continued receiving gifts as described above which they continued to repack and sell. The plaintiff was asked by her legal practitioner whether the defendant was not assisting in all the businesses that she was conducting. Her answer was as follows -

“In terms of monetary value the business was just flowing because of the $33 million which had been ingested (sic) (injected?) in 2003 and the defendant was assisting me in terms of administration and I want to point out that on these properties whatever we acquired, because of love, trust and respectable teachings from background, I, together with defendant were putting all these properties in defendant's name as we have been instructed by our background teachings that the man is the head of the house.”

Whilst being cross-examined, the plaintiff said that although the plaintiff's Declaration states that the defendant moved out of the matrimonial home in July 2006, that, in fact, was not a formal separation and that the formal separation was only in February 2007. When asked how the defendant's salary from the POSB was spent, the plaintiff's answer was that both parties' salaries were expended on household expenses. It was put to the plaintiff that the defendant would accept that she had lent money to the business but would dispute that the said money was raised from the sale of goods received as gifts as she alleged. Furthermore, that the defendant would say that the plaintiff stole the money from her employer, Makoni Rural District Council which money she had to pay back in order to prevent the law taking its course.

The plaintiff denied this…,.

The plaintiff further said that she wished to emphasize that she resigned from Makoni Rural District Council in February 2005 whilst the defendant resigned from the Post Office Savings Bank in June 2006. The parties then separated in February 2007. When the defendant resigned from his formal employment with the Post Office Savings Bank…, he had no other source of income apart from what he would get from the business in which she had singly invested the $33 million loan….,.

It was put to the plaintiff that at the Kriste Mambo homestead there was no structure of value like a modern house. She said that it is approximately 5 hectares in extent and that they had built two huts on it. She said that its value was in the fact that it is meant for cattle ranching.

It was put to the plaintiff that the defendant would admit that she owned an Isuzu twin cab motor vehicle registration number AAL 9911 but that when the parties separated he exchanged it for a Nissan Patrol; furthermore, that the defendant would have no objection if it be awarded to the plaintiff.

The plaintiff's response was that the said transaction was done without her consent and she therefore wanted her Isuzu twin cab back….,.

It was put to the plaintiff that the defendant would admit that he purchased a Toyota Corolla registration number 840-722C from Brincom Trading (Pvt) Ltd in January 2007 after they had already separated.

Her response was that the defendant purchased the said vehicle in January 2007 when they were still together and that they separated afterwards in February 2007.

It was suggested to the plaintiff that for her contribution to the marriage she should be awarded the Headlands business Stand, that is, Stand No.242 Lease No.MKN 153 Headlands and the Kriste Mambo homestead and that this would be in addition to Plot No.17 Lee Farm which she was given in 2005.

Her response was that all these properties were acquired from what she had worked for and that the defendant thus cannot apportion to her property that is hers anyway. She denied that she was exaggerating her contribution to the matrimonial property.

It was put to the plaintiff that she was a mere Finance Clerk at Makoni Rural District Council for a period of less than five (5) years and that her contributions were commensurate with that job description or status and not what she was alleging. She said that she was an Executive Clerk. Furthermore, it was the defendant himself who had compiled the Financial Statements for Multimillionaire Investments which clearly indicated that she was the only contributor or injector of financial resources into the company. She denied ever stealing any money from Makoni Rural District Council. She emphatically denied having been given Lee Farm by the defendant on separation. She emphasized that when they separated the defendant remained in possession, occupation and use of all the matrimonial property. She reiterated that all the matrimonial property must be awarded to her to the exclusion of the defendant.

The defendant gave evidence.

He said that in June 2002 he applied to Council to be allocated a small shop to trade in kapenta fish. He was allocated Shop No.5 Pamusika on 10 June 2002. He produced as exhibit 2 a letter dated 10 June 2002 which was addressed to him by the Town Engineer of Rusape Town Council. It reads -

“RE: APPLICATION FOR A SHOP FOR WHOLESALING OF KAPENTA FISH AND FREZITS

Your application was tabled before Council and your proposal was approved by Council. You will be allocated a shop once renovation to convert existing market stall into small shops has been completed.”...,.

He talked of having had humble beginnings, having started with a bag of fertilizer which he repacked into small packets for resale. He said that he worked tirelessly to bring his sole trader business into operation. The money that the plaintiff keeps talking about as having financed the business was in fact stolen money which the plaintiff stole from the drought relief programme in which she occupied the position of a Paying Officer. He later got to know that she had stolen this as he was summoned by the Makoni Rural District Council authorities who wanted him to pay the money back to Council. This became the source of their problems because when he sought to find out from the plaintiff why she had stolen the money that is when she started saying that she had done everything using that money, including building their house at Stand UVE 2606 Vengere. He said that he had purchased the Stand at a time when they were having conflicts and they had almost broken up until the parents of both intervened. It was then resolved that he would pay to the plaintiff a lump sum in the amount of $73,200,000= and that he would also give to the plaintiff Plot No.17 Lee Farm as she was claiming that it had been given to her by Chief Makoni. The defendant produced as exhibit 3 a handwritten document dated 7 October 2005. It reads -

“The case of Sagandira vs Kasu

We are paying the Stand initially purchased by Doreen Kasu Patrick's wife in Headlands. The building and completion of a residential house in Rusape and the amount she had invested into the business which they calculated and totaled $73,200,000=. She said she had stolen this amount from Makoni Rural Dist Council. This amount was to have been settled soon after 23 September 2005 the proceeds from Lee Farm Plot No. 17 The recipient being the Kasu:

Signed (no signature appears after this word)

Witnessed by Elder Makuyana the paying person on behalf of the Sagandira = H. N. Sagandira (a signature appears immediately after the name “Sagandira”)

NB My signature is basing on the receiving of cash by Kasu family = $73,200,000= (a signature appears here as well as the date, “07/10/05”)”

The defendant said that the plaintiff demanded that she be reimbursed the amount..., which she had contributed to the business together with interest. She then personally calculated the amount, and, with interest, arrived at a total of $73,200,000=.

The defendant disputed the plaintiff's averment that when she moved out of the matrimonial home in 2007 they had almost completed building a structure on Stand 2473. He said they finished paying for the Stand in July 2006 when he had already moved out of the matrimonial home and construction started in November 2006. He maintained that he started his business without any contribution from the plaintiff. He produced…, the Memorandum of Agreement of Sale between him and Rusape Town Council in respect of Stand 2473. The Agreement was signed on 19 July 2006. The Agreement states, among other things, that the Stand shall be used for commercial purposes only.

Regarding his employment history he said that he got employed by the then Post Office Savings Bank…,. in February 1995. He went on voluntary retirement in 2006 and was paid a retrenchment package in an amount of $18,000= (revalued) which amount he invested in the business. He said that the plaintiff's salary was always far less than his as she was employed as a clerk with Makoni Rural District Council whilst he was employed by a financial institution. He started off as a Teller and was later promoted to an Internal Auditor with the bank. He would also benefit from soft loans from the bank and at one stage he was offered a housing loan which he however failed to utilise as he later found out that the house that he intended to purchase had been sold to two other people.

The defendant insisted that the capital used to construct the building where the company is now housed and to run the business was not generated from the capital which was contributed by the plaintiff at the beginning. He said that the business was self-sustaining. However, because of the hyperinflation that was then experienced in the country all business was eroded. The money that was in the banks was frozen and price controls affected the stocks of the business. In 2009 the defendant had to start all over to revive the business and he is still struggling to put it back in good standing.

With regard to the Isuzu twin cab the defendant agreed that they purchased it together. It was his personal car and because it was giving problems he exchanged it for a Nissan Patrol which he still has in his possession.

The vehicle referred to as a Toyota Corolla is in fact a Toyota Corona and it was purchased in January 2007 after they had separated. He produced…, the Agreement of Sale pertaining to the vehicle. It is dated 19 January 2007. He said that the plaintiff did not contribute in any way to the acquisition of the vehicle.

As regards how the property which he agrees that they acquired together should be distributed, the defendant said that Plot 17 Lee Farm has already been given to the plaintiff; she could also have Stand 242, Headlands which they acquired together and on which construction is at slab level; she could also have the Nissan Patrol although it used to be his personal car. He said that the Kriste Mambo homestead was given to them by the headman and there are no title deeds to it. He acquired Stand 2473 on his own after they had separated and this is the premises from which he is running the business which generates the money for the support and sustenance of the children and the plaintiff. He has no other source of income.

While the source of the money remains unexplained, it is not in dispute that the plaintiff lent the sum of ZW$33,920,226= to “T. Sagandira trading as Millionaire Investments.' This is reflected in exhibit 1 and although I have already indicated that exhibit 3 will not be relied on in the resolution of this dispute, it does not escape observation that therein the defendant mentions that the plaintiff invested some money in the business.

It appears to me that this is a matter in which during the happier times of their marriage the parties pooled resources and efforts with a view to building a viable and successful matrimonial estate for their mutual benefit in the setting of a family unit. It also appears to me that having come upon stormy times each party now seeks to minimize the other party's contribution and in the process enhance, if not exaggerate, their own contribution. More of this attitude is discernible in the plaintiff's case. This is no indication that the defendant is an angel in this regard…..,.

In the circumstances of this case, because of the respective parties' lack of candour with the court, the court is not in a position to evaluate the levels of their respective contributions to the matrimonial estate. What cannot be denied, however, is that both parties must have made great contributions thereto regard being had to the number and type of assets that have, at one stage or another, been part of it. Whether the injection of ZW$33 million into the business was done by the plaintiff before or after the business was already running (the parties disagree on this) does not, in my view, alter the fact of her financial contribution and it may be noted that the amount in question, ZW$33 million, was not an insubstantial amount during that time. Yet, it is not only the levels of their contribution that the court is enjoined by section 7 of the Matrimonial Causes Act [Chapter 5:13] to take into account in arriving at an appropriate distribution. The court must also consider a host of other factors including those listed therein.

One of the factors that the court is enjoined to have regard to is the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future. The three minor children of the marriage were born 31 December 2000, 26 March 2003 and 25 December 2006 respectively. They are thus all below the age of ten. None of them has any income-earning capacity. None of them has any assets or other financial resources and there is no indication of this state of affairs changing in the foreseeable future.

The defendant is apparently a Director and Shareholder in the company which runs the business Millionaire Investments, apparently from Stand CBD 2473. He is also licensed to conduct wholesale trading of Kapenta fish and freezits at Shop No.5 Pamusika. This has been the family's source of livelihood after both parties left formal employment. The plaintiff is no longer benefiting from these ventures except for the contribution towards the minor children's maintenance which is currently being made by the defendant in the sum of US$60=. She no longer participates, as she says, she used to do, in the businesses. She must have been very enterprising hence her capacity or ability to lend money to the business and to also participate therein and enter into asset acquiring ventures. There is, however, no evidence she is now earning a living besides the money received from the defendant. She did not favour the court with this information. She did not, however, state that she has tried or is trying and failing to find employment or other means of sustaining herself and also making her contribution to the upkeep of the children.

The court is also enjoined to consider the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future.

The children's basic needs include the need for a roof over their heads, food, clothing, education and incidental matters as well as medical attention as and when necessary. The children are and will be in the plaintiff's custody and their day to day care thus falls on her alone.

The court must also consider the standard of living of the family including the manner in which any child was being educated or trained. No peculiar information was placed before the court in this regard.

The age and physical and mental condition of each spouse and child must also be taken into account. Again, the court was not alerted to any peculiar condition of any of the members of this family.

The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties is another factor that the courts should consider.

I have already commented on this aspect, though it was mainly in relation to the parties' financial contributions which I estimate to be of equal value. I would only add that it was not contended by the defendant that the plaintiff did not carry out her wifely and motherly duties in this family. Indeed, she continues to carry out her motherly duties and is likely to do so for several more years. By the same token the defendant will also have to contribute to the children's maintenance for several years to come.

The court is also called upon to take into account 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. In this regard, no pertinent information or evidence was placed before the court.

The duration of the marriage is another pertinent factor. The parties' marriage was solemnized on 2 September 2000. The parties have thus been married for ten years.

In Hatendi v Hatendi 2001 (2) ZLR 530…, SANDURA JA stated -

“As KORSAH JA said in Ncube v Ncube 1993 (1) ZLR 39 (S) at 40H-41A, whilst referring to the facts which the court should take into account in the division of matrimonial assets in terms of s 7(1) of the Matrimonial Causes Act [Cap 5:13]:

'The above provisions, to my mind, do no more than furnish broad guidelines for deciding what is a fair order in all the circumstances, adjusting property rights if need be, under the wide powers bestowed in the court. The determination of the strict property rights of each spouse in such circumstances, involving, as it may, factors that are not easily quantifiable in terms of money, is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion.'”

From the evidence adduced by the parties it would appear that the from the property listed in their joint pre-trial conference minute the following are the only assets that might still be within the estate even though each asset will need to be considered separately and individually for purposes of clarity-

“IMMOVABLE PROPERTY

3.2 The business known as Million Hardware;

3.3 Stand CBD 2473;

3.4 Stand 242 Lease MKN 153 Headlands;…,.

3.6 Kriste Mambo Stand Homestead;

3.7 Shop No.5 Pamusika.

MOVABLE PROPERTY

3.8 Nissan Patrol (allegedly swapped with Isuzu Twin cab);…,

3.12 Toyota Corolla.”

Of the above listed assets the defendant has indicated…, that he has no objection to the following being awarded to the plaintiff; Stand 242 MKN 153 Headlands, the Kriste Mambo Stand and homestead and the Nissan Patrol.

These will be awarded to her.

The result of the defendant's proposal would be that of the listed items the plaintiff would be awarded two, being one vehicle and one Stand on which has been constructed a slab only, whilst the defendant would be awarded and/or benefit from five.

It appears, in my view, that all considerations being taken into account an appropriate award to the plaintiff would include not only the three assets in respect of which the defendant has agreed that an award be made in the plaintiff's favour. Note is taken in this regard of the plaintiff's legal practitioner's following statement, amongst other things, in his closing submissions -

“It was undeniable in the proceedings that the defendant was in possession of all the motor vehicles listed in the joint pre-trial conference minute. It again cannot be a factor admissible from the defendant that he alleges that he knows nothing of item 3.9, that he sold vehicle 3.10, that he exchanged vehicle 3.8 with a Nissan Patrol. It is submitted that vehicles 3.11 and 3.12 should be awarded to the plaintiff and a proportionate replacement value of the rest of the motor vehicles should be paid by the defendant to the plaintiff. This especially in light of the fact that the defendant was disposing of the motor vehicles after the issuance of the summons for divorce and he actually had to be stopped by way of a court order under Case No.HC1961/09…,. It is common cause that prior to the commencement of business the parties had not acquired any property of value. According to the defendant, under cross examination, the parties acquired property after commencement of trading as Millionaire Hardware…,.”….,.

In my view, the award to the plaintiff should also include the Toyota Corolla registration number 840-722C despite the defendant's claim that he purchased it after they had separated.

For the above reasons the following order is made. It is ordered -

1. That a decree of divorce shall issue.

2. ...,.

3. …,.

4. …,..

5. That the plaintiff be and is hereby awarded as her sole and exclusive property the following assets:

(a) Stand 242 Lease MKN 153 Headlands;

(b) The Nissan Patrol currently in the defendant's possession;

(c)  Toyota Corolla Registration No. 840-722C;

(d) The Kriste Mambo Stand and homestead.

6. That the defendant shall, where applicable and/or necessary, in relation to the assets listed from a to d above, take all the requisite steps including the signing of any necessary documents to effect registration or change of ownership as necessary into the plaintiff's name.

7. That the defendant be and is hereby awarded as his sole and exclusive property the following:

(a)The business known as Millionaire Hardware;

(b) Stand CBD 2473;

(c) Shop No.5 Pamusika;

The parties were married to each other in terms of the then African Marriages Act [Chapter 238] on 26 June 1980. Under Bulawayo Magistrates, case number CC32/10, the respondent instituted proceedings seeking the dissolution of the marriage and ancillary relief.

This appeal is basically about the sharing of the matrimonial house known as Number 4369 Nkulumane, Bulawayo.

The trial magistrate ordered that the said property be shared equally between the parties. The appellant was given six (6) months to buy out the respondent's 50% share of the property, failing which the property was ordered to be sold and the proceeds thereof shared equally. The property was acquired during the subsistence of the customary union between the parties. The appellant does not seem to appreciate the provisions of section 7(4) of the Matrimonial Causes Act [Chapter 5:13]. What is taken into consideration is not just the direct financial contributions and the party in whose name the property is registered. The court is enjoined, by section 7(4) of the Matrimonial Causes Act [Chapter 5:13] to also take into account the indirect contributions made by each spouse to the family.  Such indirect contributions include, inter alia, looking after the home and caring for the family and any other domestic duties. Other relevant factors include the age of the respondent, her future financial needs, obligations and responsibilities – Usayi v Usayi 2003 (1) ZLR 684 (S). In this case, the Supreme Court upheld a judgment of the High Court awarding the wife a half share of matrimonial house. At pages 687-688, ZIYAMBI JA had this to say:-

“Mr Gijima, who appeared for the appellant, was persistent in his submission that the respondent, having made no financial contribution to the acquisition of the house, was not entitled to an award of 50 percent of the sale price. Having regard to the provisions of section 7(4) of the Act, this submission is unsound. The Act speaks of direct and indirect contributions. How can one quantify, in monetary terms, the contribution of a wife and mother, who, for 39 years, faithfully performed her duties as a wife, mother, counselor, domestic worker, housekeeper, day and night nurse, for her husband and children?  How can one place monetary value the love, thoughtfulness and attention to detail that she puts into the routine and sometimes boring duties attendant or keeping a household running smoothly and a husband and children happy? How can one measure, in monetary terms, of creation of a home and the creation of an atmosphere therein from which both husband and children can function to the best of their ability? In light of these many and various duties, how can one say as it is often remarked “throughout the marriage she was a housewife. She never worked”?  In my judgment, it is precisely because no monetary value can be placed on the performance of the duties that the Act speaks of “direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties.” 

See also Gonye v Gonye SC15-09; Takafuma v Takafuma 1994 (2) ZLR 103 (S) and Mangwedeza v Mangwendeza 2007 (1) ZLR 216 (H).

In this case, the parties were married for around thirty (30) years. The respondent spent most of her married life looking after the party's rural homestead. There was no evidence led during the trial in the court a quo which suggests that she failed in her duties and responsibilities as a wife. There is no misdirection on the part of the magistrate in sharing the matrimonial house equally. What the appellant is pleading in the appeal is essentially poverty i.e. that he cannot buy out the respondent's 50% share. There is a provision in the magistrate's order that caters for such inability to buy out the respondent. The property should just be sold and the proceeds thereof shared equally as directed by the magistrate. The magistrate's judgment in this regard cannot be faulted. There is no merit in this appeal at all.

Accordingly, the appeal is dismissed with costs.

The parties are also agreed that the property that they acquired individually during spells of living in separation should be retained by whoever acquired such property and is not subject of the trial.

It is that property which the parties acquired jointly which is in dispute.

The plaintiff gave evidence. He met the defendant and they commenced living together as husband and wife in 1982. They registered their marriage on 3 September 1983. It was blessed with two children, Kholwani Peter Dube, now 28 and Kuthula Dube, now 21. The marriage has been punctuated by endless problems to the extent that although it has subsisted for 27 years, they have stayed together on three different periods totalling 13 years. There has been three periods of separation totalling fourteen years.  He has another child Kwanele Peter Patrick Dube, born in 1991 outside marriage. The plaintiff maintained that it was during one such period of separation in 1988, when he was then employed by National Fencing, that his employer assisted him access a loan facility to purchase Stand 2605 Nketa 8, Bulawayo and had it registered in his name. A mortgage bond was registered on the title deed of the house. When he reconciled with the defendant, she found him already staying at the house. After reconciliation, they used their joint earnings to build an estate including paying off the mortgage. When they separated again in 1991, he was left saddled with debts created by both of them which he could not service forcing him to surrender Stand 2605 Nketa 8, Bulawayo for foreclosure by the bondholder. It was these debts which led to him being detained by virtue of a warrant of civil imprisonment. The defendant came to his rescue and paid for his release even though they were separated. According to the plaintiff, the proceeds of the sale of Stand 2605 Nketa 8, Bulawayo were used to pay off the balance on the mortgage bond and although he says that balance had “more than trebled” when the house was sold to Anglo American he was left with sufficient money to pay off some of the outstanding bills. He said that it was during yet another period of separation that he approached his then employers ABF for a loan which he used to purchase from the Bulawayo City Council a vacant Stand No.153 Mahatshula, Bulawayo in 1992. He signed a Sale Agreement on 23 March 1992 and the purchase price was $9,000= (Zimbabwe currency).  He started putting up a cottage at that Stand and moved into the cottage with his young brothers and first son at a later stage. He says he started purchasing building material, mainly second hand, from the destroyed Grand Hotel which was now paving way for construction of Bulawayo Centre. It is this building material he says he gave to the defendant for safekeeping in Nkulumane, Bulawayo.

He then joined Zimpapers Group and relocated to Harare in 1994 where he was to remain for a number of years until his return to Bulawayo in 2005. He says he bought the 1970 Toyota Bakkie in Harare. It was registered in the name of the defendant in 1996 not because he bought it for her but in order that she would find it easy to use it on her cross border trips she was engaged in to supplement the family income.  He bought it using proceeds from the sale of another vehicle which he had bought after borrowing money from her mother who had received a war victims' compensation for the death of his father during the war of liberation. During his stay in Harare, he says he used to buy building material as well as irrigation equipment for the rural home from auctions and send it to Bulawayo. The building material was for construction of both the Mahatshula house and the rural homestead in Garanyemba, Gwanda. He later moved the family from their lodgings in Nkulumane to a house in Mahatshula North so that they could work on construction at 153 Mahatshula, from close by. As he had been promoted to a managerial post he was able to earn commission in foreign currency which he gave to the defendant to change in the black market. With it, they bought roofing timber from PG Timbers and roof tiles from Turnall Fibre Cement. He says bricks for the foundation of the house were bought from the material available after the destruction of Grand Hotel while those for the construction of walls were moulded free of charge by his young brother. He later conceded that the defendant was hardworking and that she is the one who was running around with construction work at both the town house and the rural homestead although he says he was sending the money to her for construction expenses. During that time, he also purchased a 1967 Ford Transit truck while the defendant purchased a dining room suite on her own. He says that after his return from Harare in 2005 he later moved the family into 153 Mahatshula when it was habitable. Construction work has not been completed but the parties are residing at that house. In the year 2000, while he was still in Harare, he had given the defendant a letter he had addressed to the Bulawayo City Council Treasurer authorizing them to include the defendant's name on the utility bills. This was to enable the defendant to approach Women's Organisations for funding with proof of residence as the Mahatshula property was held in the plaintiff's name only. He has since discovered that Bulawayo City Council fraudulently included the defendant's name on the Agreement of Sale as she is now a joint holder without his authority. All he authorized was her inclusion on the bills.

The Agreement of Sale with the defendant's name has been produced as part of the bundle of documents.

The plaintiff has strongly argued that Stand 153 is his sole property acquired without any assistance from the defendant. Initially, he claimed it for himself. At the pre-trial conference, he relented and suggested that it be shared equally. At the trial, he reverted to his original claim arguing that this was because of the fraud he had uncovered at which the defendant tried to steal his other half share.

Under cross examination, he did not dispute that the defendant was involved throughout during the construction of both the rural home and the town house. He accepted that she is the one who was purchasing some of the building material like the roofing tiles purchased from Turnall and was paying the builders. In his own words, the defendant distinguished herself as a hardworking woman.

On the rural home, the plaintiff took the view that the defendant is exaggerating the quality of that home in order to make it appear like a modern homestead when it is a simple rural home. He, however, conceded that it comprises a 3 bedroomed house with other outbuildings; it is solar electrified; and has running water; irrigation equipment has been installed and it is fairly comfortable. He, in fact, moved to that home after his return from Harare and only came back to Bulawayo after he secured employment. While admitting the availability of most of the items listed as being in the rural home, he denies that there is a dam constructed there preferring to refer to it as a well the size of the courtroom.  He however conceded that the parties had to hire machinery from DDF Gwanda to do escavation of the dam….,.

The plaintiff is claiming the rural home and all the items of property located on it. He conceded that in addition to it, he applied for and was allocated, under the land reform programme, an A2 farm known as Subdivision 2 of Pirie in West Nicholson.

The defendant also gave evidence.

She said that the marriage has experienced problems because of the plaintiff's pathological thirst for other women. Each time he was caught in compromising positions he would assault her; but because she loved her husband very much she persevered and would reconcile with him all the time. When they had problems, the plaintiff was always quick to pack and leave but their periods of separation were always very short. The plaintiff would soon come back to her, humble himself and ask her to take him back - which she always did. She said after paying for the plaintiff's release from civil imprisonment, he had approached her, and, as usual, humbled himself asking for forgiveness for his wayward ways. He pleaded with her that as he was incapable of settling down on his own, seeing he was then moving from place to place and incurring debts for other women, he wanted them to build a proper home together, and, having realised that she was a hard worker, he could only succeed with her. She said it was at that stage when the plaintiff was begging her to build a home with him that he disclosed to her that after he had unilaterally sold the then matrimonial home, No. 2605 Nketa 8, Bulawayo. He had used the proceeds of the sale to purchase the vacant Stand No. 153 Mahatshula from Bulawayo City Council. He invited her to come and build a house with her at that Stand - she agreed only on condition that they changed the ownership of that Stand to include herself. She did not want to fall into the trap which allowed the plaintiff to sell their previous home without her knowledge or consent. According to the defendant, in his excitement at having her back in his life, the plaintiff offered to transfer the entire Stand to her name as a sign of his commitment. He then initiated the process of doing so but Bulawayo City Council refused a complete transfer and asked him to write another letter authorizing joint ownership. As the plaintiff had relocated to Bulawayo at the time, working at Typocrafters, the two of them attended at the Bulawayo City Council offices and ensured the inclusion of the defendant's name on the Sale Agreement. It was only due to his presence that Council officials agreed to effect the change.

During the same deliberations about their reconciliation, the plaintiff had also offered to buy her a car to show his commitment to her. He then bought the Toyota Bakkie which was later registered in the defendant's name but not before she was forced to pay the balance of $3,000= (Zimbabwe currency), to the Seller, Mrs Gumede, because the plaintiff had run out of money. She therefore lays a claim to that vehicle for that reason.

Using that vehicle, she started working very hard buying and selling goods to raise money to construct the Mahatshula house. They were already staying together as a family where she had been lodging in Nkulumane and the landlord asked them to leave because they could not all be accommodated there after the return of the plaintiff. This acted as an incentive to build in Mahatshula with zeal. She played the leading role in the construction; with the plaintiff only giving directions. She says she personally moulded the bricks for the house with the assistance of the plaintiff's young brother and people used to poke fun at her as they passed by. In her enthusiasm to build the house she criss-crossed Bulawayo buying material like cement and quarry stones and hiring constructors. She would pay them, and, in doing so, made them sign invoices acknowledging receipt of payment.

These were produced as exhibits.

She says the plaintiff wanted to short circuit the process by constructing a flat roof due to a shortage of money but she pleaded with him to let her work hard for a proper roof. She eventually succeeded in purchasing roof tiles at Turnall, and, together with the plaintiff, they went to purchase roofing timber at PG Timbers. When part of the house was complete they moved in so as to save money which was being spent on rentals. It was uncomfortable but she persevered even as the plaintiff suggested they rent a flat in town. That way the house was constructed and they stopped construction about 2002 before they completed to concentrate on building the rural home. Up to now the house is incomplete with electrical fittings still outstanding.

In respect of the rural home, she says it was her initiative again as she felt that they needed a rural home.  As it is located in the plaintiff's place of origin, his elder brother allocated them a Stand adjacent to her mother-in law's homestead and they put up an impressive 3 bedroomed house with other outbuildings. It is a modern home with an excellent toilet and jacuzzi. They constructed a dam and she would travel to Harare where she and the plaintiff bought irrigation equipment from auctions. He is the one who applied for a water engine from AFC which was set up to pump water.

The defendant maintained that all the movable property at the rural homestead was acquired together, including the Ford truck, and should be shared. She played a pivotal role in putting the rural home together at a time when he was away in Harare but when he briefly retired in 2005, he moved to the rural home refusing to have anything to do with the town home. She says this was because that home is more comfortable. She says when she paid him a surprise visit at the rural home, on 21 June 2006, which was to be her last visit, he found another woman he was introducing to his mother as his new wife. He was so angry that he armed himself with a knobkerrie and threatened to kill her if she dared set foot at that homestead again…,.

She says that when the plaintiff returned to town, having come out of semi-retirement, he started taking his property out of the Mahatshula house to his girlfriend in Paddonhurst and that right now he has nothing left in that house. Although he conveniently returns to that house from time to time to keep an eye on her, there is nothing of him left there and he now uses their son's bed and other items at the house…..,.

The parties are generally agreed how most of the movables, except for the livestock, should devolve.  They actually tried to share that property among themselves. I will, as much as possible, give effect to their agreement.

Section 7(2) of the Matrimonial Causes Act [Chapter 5:13] requires me to make an order that will operate fairly between the spouses. In doing so, I am required to have regard to what is reasonable, practicable and just taking into account the factors set out in section 7(4) of the Matrimonial Causes Act [Chapter 5:13]. See Rich v Rich SC16-01….,.

In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, MCNALLY JA stated -

“The duty of a court in terms of s7 of the Matrimonial Causes Act involves the exercise of a considerable discretion, but it is a discretion which must be exercised judicially. The court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest, by sorting out the property into three lots, which I will term 'his', 'hers', and 'theirs'. Then it will concentrate on the third lot marked 'theirs'. It will apportion this lot using the criteria set out in Section 7(3) of the Act.  Then it will allocate to the husband the items marked 'his', plus the appropriate share of the items marked 'theirs'. And the same to the wife. That is the first stage.”

The court went on to say that if looking at the overall result, it must assess whether the objective of placing the spouses in the position they would have been in had a normal marriage relationship continued, is achieved. If not, the next stage would be to consider taking away from one or other of the spouses something which is actually “his” or “hers”. See also Ncube v Ncube 1993 (1) ZLR 39 (S).

Applying these legal principles to the case at hand, in respect of the immovable property, I consider 153 Mahatshula as falling under “theirs” and the Garanyemba rural homestead, only by virtue of the fact that it is located at the plaintiff's family village, and the A2 West Nicholson farm as falling under “his”. In respect of the motor vehicles, the Toyota Bakkie falls under “hers” while the Ford Transit falls under “his”.

The movable property at the rural home, including the livestock, farming and irrigation equipment, fall under “theirs”. The rest of the movable items have been dealt with by the parties and placed under the categories of “his” and “hers”.

Accordingly, it be and is hereby ordered as follows:-

(1) That a decree of divorce be and is hereby granted.

(2) …,. 

(3) That the plaintiff be and is hereby awarded, as his sole property, the Ford Transit Registration number AAP-4777.

(4) That the defendant be and is hereby awarded, as her sole property, the Toyota Corona Bakkie Registration number 63-840Q.

(5) That the plaintiff be and is hereby awarded, as his sole property, the dressing table, ¾ bedbase, wardrobe, 2 small cupboards, lounge suite, bedroom suite, all of which are in the rural home in Garanyemba and any other household property in that rural home not herein specifically mentioned as well as the wood shelf, single white wardrobe and cupboard situated at the Mahatshula home in Bulawayo.

(6) That the plaintiff be and is hereby awarded, as his sole property, all the irrigation and farming equipment situated in Garanyemba, including the ploughs, pipes, sprinklers, water pumps, water tanks and knap sacks.

(7) That the plaintiff be and is hereby awarded, as his sole property, all livestock (cattle and goats) at Garanyemba home as well as at Subdivision 2 Pirie Farm West Nicholson.

8) That the plaintiff be and is hereby awarded, as his sole property, the rural homestead in Garanyemba Gwanda as well as the A2 farm known as Subdivision 2 of Pirie Farm West Nicholson.

(9) That the defendant be and is hereby awarded, as her sole property, the double door fridge, lounge suite, 2 double beds, kitchen table set, kitchen unit, 3 plate stove, 2 plate stove/oven, dining room suite, 2 x ¾ beds, wardrobe, hifi, TV, decoder and satellite dish, VCR, DVD player, kitchen utensils, room divider, glass top centre table, bed linen and curtains all of which are located at 153 Mahatshula Bulawayo.

(10) That the matrimonial home, being number 153 Mahatshula, is to be valued by an estate agent agreed to by the parties, or by one appointed by the Assistant Registrar from his list of approved valuers, and the parties shall be entitled to the net value of the property as assessed at the ratio of 60% to the Defendant and 40% to the Plaintiff.

(11) That within a period of six months after the valuation referred to in paragraph 10 above the Defendant shall have the option to pay to the Plaintiff his 40% share of the matrimonial property as indicated in paragraph 10 above. The exercise of such option shall be in writing and is to be made within fourteen days of the valuation report being made available; and once the Defendant has paid the Plaintiff's share she shall become the sole owner of the property in question and the Plaintiff shall be obliged to pass transfer to the Defendant.

The parties also agreed that the movable property would be awarded to the defendant…,.

1. …,.

2. …,.

3. …,.

4. …,.

The sole issue which was referred for determination was the distribution of the parties' immovable property being Stand Number 3629 Mainway Meadows, Waterfalls, Harare.

The plaintiff, in the summons, claims a 50% share of the property whilst the defendant submits that he is not entitled to more than 13, 5% to 18, 5%. It was common cause that the property in question was acquired during the duration of the marriage in 2007.

The property is registered in the parties' joint names.

The plaintiff opened his case by giving evidence in connection with the purchase of the immovable property. He stated that he paid Z$1.5 billion whilst the defendant contributed Z$300 million. The property was purchased as an undeveloped Stand. He stated that, at the time, he was working as a car dealer and operating from Analaby House. He was last formally employed in 1993 and thereafter he was running his own business. At the time, his wife, the defendant, was employed as a nurse aid at Medicare. Payment for the property was made in two batches. The first payment was for Z$1,5 billion and the balance of Z$300 million was paid later. The defendant made the payments as he was busy. She was accompanied by his brother's son. The plaintiff stated that he had paid the bulk of the money which he had raised from his car sales business and the defendant paid Z$300 million. It took them a month to raise the money as they had not saved for it. The Agreement was only signed after they had finished paying for the property. He stated that he was entitled to 50% share of the property as he had paid the bulk of the purchase price. The plaintiff submitted that he wanted his share immediately and could not wait until the youngest child attained the age of 18 years.

In cross examination, the plaintiff conceded that he may have made a mistake with regards to the actual purchase price of the property when he was shown the receipts. They showed that the property had cost Z$1,968 billion. He also confirmed that the defendant was staying at the property with the minor children. When asked where they would live if the property is sold, the plaintiff stated that he would provide alternative accommodation. He, however, conceded that he has not been paying maintenance for the children but providing whenever he could. He was unaware of the improvements that have been effected on the property by the defendant and had not contributed to such improvements.

The defendant testified that she is employed by a nursing agency called BE MED. She explained that at the time she joined the agency, in 1999, it was called MEDCARE and it changed its name 5 years ago. She stated that she has been married to the plaintiff for 19 years. At the time they got married, the plaintiff was employed by National Carpets. After that, they had their own company called Jackson Carpets but it got broke after a year. During the marriage, they acquired both movable and immovable property. They purchased three motor vehicles and household goods and the immovable property in Waterfalls. The defendant stated that she purchased the immovable property on her own after she changed some foreign currency that she had saved. She stated that they had initially bought a Stand in Norton which they sold and shared the purchase price equally. She changed her share into foreign currency whilst she did not know what the plaintiff had used his money for. She further explained that as a nurse aide when a patient whom they have been looking after dies the relatives give a token of appreciation. She would convert the money she received and save it as foreign currency. She did not tell the plaintiff of her savings as he was in the habit of selling household goods but kept the money hidden under her mattress. She only told him of the Stand after she had purchased it. She denied that the plaintiff had given her any money for the purchase of the Stand. She stated that when she told him of the Stand he was not happy and the dispute was only resolved when she agreed to include him as a co-purchaser on the Agreement of Sale. She produced, as exhibit, the receipts for the purchase of the Stand which showed that she had, in fact, paid Z$1,9 billion and not Z$1,8 as testified by the plaintiff.

She testified that the plaintiff left home in August 2010 and she has been struggling on her own with the children. She stated that the plaintiff has not been maintaining the children and she was of the opinion that he would not be able to maintain them even after the divorce and he received a share of the property. She stated that she was happy to buy out the plaintiff his share of the property so that she can remain on the Stand with the minor children. She offered US$1,500= to the plaintiff as his share which she changed to US$2,000=. When questioned by the court, the defendant stated that the Stand was valued at about US$12,000= and she would be able to pay the plaintiff 35-40% of that amount with the help of her employer.

The plaintiff stated, in his closing submissions, that the court should apply the principles that were set out in the case of Takapfuma v Takapfuma 1994 (2) ZLR 103. It was argued on his behalf that as the property is jointly owned by the parties the court should make an award of 50% share of the immovable property to each of the parties. The defendant, on the other hand, contended that the court should apply the principles which are set out in the Matrimonial Causes Act [Chapter 5:13]. It was submitted for the defendant that if a proper application of the principles is made the defendant should get a higher percentage of the immovable property than the plaintiff.

In my view, the plaintiff correctly submitted that the court should apply the principles set out in the case of Takapfuma v Takapfuma 1994 (2) ZLR 103. However, it is apparent from a proper reading of the case that the award of his and her share is only the starting point when the court makes a distribution of matrimonial property. In dealing with the distribution of matrimonial property, the court is always enjoined to take into account section 7 of the Matrimonial Causes Act [Chapter 5:13] in order to come up with an equitable share of the property of the parties. Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] sets out the factors that the court should take into account when considering such an award and these include some of the following: income-earning capacity of the parties, financial needs, obligations and responsibilities of the parties, and their direct or indirect contributions.

It was apparent from the evidence led by the parties that they were focusing on the direct and indirect contributions of the parties in seeking an award. The plaintiff was at pains to show that he had contributed most of the purchase price whilst the defendant was also trying to show the same. It was apparent from the evidence that the plaintiff and the defendant were both bringing an income into the home. I did not believe the plaintiff when he stated that he had raised Z$1,5 billion of the purchase price. Indeed, it was apparent during cross examination that he did not know what the purchase price of the property was. In the same vein, the defendant exaggerated when she stated that she had raised the whole purchase price on her own. It was not in dispute that in 2005, that is, prior to the purchase of the property, the family's financial position was in a very bad way. At some stage, the plaintiff had to go to the communal home to sell an ox to feed the family. In my view, it was highly unlikely that the defendant would have kept money hidden in her mattress when the family was literally starving. It seems to me that the parties did both contribute to the best of their abilities to the purchase price of the property.

However, when one applies the factors which I outlined above it was apparent that the defendant would be entitled to a bigger share than the 50%...,. Section 7(4)(b) of the Matrimonial Causes Act [Chapter 5:13] also provides that the court should  take into account the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future. It seems to me that if the plaintiff was in a position to look after the minor children the appropriate award would have been to give each of the parties a 50% share of the property. However, in view of what has been stated…., the plaintiff should get a lesser share as his obligations are mainly to himself.

The defendant has effected some improvements on the property since the plaintiff left in 2007. She has built a more permanent structure and put up a wall around the property. The difference in the award will also take that into account. 

The defendant stated, in response to questions from the court, that she would be able to pay out the plaintiff 35 to 40% share of the value of the property. Taking into account that the defendant is going to bear the responsibility of taking care of the children she should get a slightly higher share than that of the plaintiff. Although the defendant had submitted that she was offering to buy out the plaintiff over a period of six months it is my view that this period is too long. The plaintiff stated that he would like to move on with his life. He cannot do so until he has received his share of the immovable property. The defendant is employed, and with the assistance of her employer, she can pay him off. The plaintiff indicated in his evidence that he was not opposed to the defendant buying him out as long as he received his share without waiting until the youngest child attains the age of eighteen.

In view of these factors, it seems to me that the defendant should get the opportunity to buy out the plaintiff.

In the result, I make the following order:

1. …,.

2. …,.

3. …,.

4. …,.

5. …,.

6. The plaintiff is hereby awarded a 40% share and the defendant a 60% share of the immovable property known as Stand 3629 Mainway Meadows, Waterfalls.

a) The defendant is hereby awarded the right to buy out the plaintiff his share of the property.

b) The property shall be valued by an estate agent appointed by the Registrar from his list within 30 days of this Order.

c) The defendant shall pay the plaintiff his 40% share in the property within three (3) months of the date of valuation of the property.

d) In the event that the defendant fails to buy out the plaintiff in terms of this Order the property shall be sold at best advantage through a registered estate agent and the parties shall be paid out their shares from the net proceeds.

e) The plaintiff shall pay 40 % of the cost of the evaluation and the defendant shall pay 60%.

During the subsistence of the marriage, the parties acquired numerous movable properties. In 2005, they acquired an immovable property, namely Stand 104 Rusape Township, also known as House No. 12 Nyanga Drive Rusape….,.

On the immovable property, the plaintiff claimed a share of 75% with the defendant retaining 25%.

The defendant made a counter claim for a decree of divorce, a 50: 50 share of the immovable property and sharing of the movable properties in terms of her own schedule. She also claimed custody of the minor child….,.

1. …,.

2. …,.

3. …,.

1. Whether the defendant made any direct or indirect contributions to the acquisition of the matrimonial home.

From the evidence adduced from both parties, it is common cause that the immovable property in question, that is, Stand 104 Rusape Township, also known as 12 Nyanga Drive, Rusape, was bought and registered in the joint names of the parties. The Agreement of Sale shows the purchasers as Samuel Kanoyangwa and Winifreder Charlie. The Deed of Transfer is also in the joint names of Sarudazayi Samuel Kanoyangwa and Winifreder Charlie.

That per se shows that the property is jointly owned.

It is common cause that the plaintiff, who was employed by TEL-ONE, opted to go on voluntary retirement in the year 2005. As a result, he was paid a retrenchment package in the sum of $597,285,061=92 Zimbabwean dollars. It was from this sum that he paid the purchase price of $315,000,000= and the transfer fees in the sum of $24,096,985=. This was all in Zimbabwe dollars.

The plaintiff, on his part, argued that as the property was paid for entirely from his retrenchment package the defendant did not deserve a 50% share. When asked why the defendant's name was included in both the Agreement of Sale and the Deed of Transfer, the plaintiff said that as someone who had divorced before, his experience had taught him that even if a spouse's name is not included on the Deed of Transfer she will still be entitled to a share. Thus, in this case, when the estate agent advised him that the defendant wanted her name to be included on the Agreement of Sale he agreed because, from his experience, she would still be entitled to a share even if her name was not included. He, however, emphasized that when he agreed to the inclusion of the defendant's name, it was not that he intended her to be an owner of 50% of the property or even that he was donating to her a 50% share in the property.

The defendant, in her evidence, confirmed that both the purchase price and the transfer fees were paid from the plaintiff's retrenchment package. None of her earnings went towards the purchase price or transfer fees. The defendant's evidence was more on her indirect contribution. She contended that though she did not make a direct contribution to the purchase price and transfer fees, as the plaintiff's wife for 10 years, and as someone who contributed in her own way to other household needs, and also as a registered joint owner, she was entitled to a 50% share.

The issue of distribution of matrimonial property is dealt with in section 7 of the Matrimonial Causes Act [Chapter 5:13]. Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that-

“In making an order in terms of subs (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 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 made by each spouse to the family, including contributions made by looking after the home 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 endeavor, as far as is reasonable and practicable, and having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

It is apparent that at the end of the inquiry or trial, the court must endeavour to distribute the property in such a way as to place the parties and the children in the position they would have been had a normal marriage relationship continued.

That task, in my view, is not an easy one.

In casu, the parties concentrated on the considerations in section 7(4)(e) and (g) of the Matrimonial Causes Act [Chapter 5:13]. Where, as in this case, the immovable property is registered in the joint names of the spouses, our courts have, in a number of cases, advocated the need to recognize this fact as a starting point. This is so because where a property is registered in joint names the presumption is that it is held in equal shares unless proved otherwise. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the court was faced with a similar situation. In that case, the immovable property had been bought using a 100% guarantee provided by the husband's employer. All loan repayments were deducted from the husband's salary. The property was, however, registered in the parties' joint names. On divorce, the husband contended that the wife did not deserve a 50% share. On appeal against the lower court's decision by the husband McNALLY JA…, stated that -

“The registration of rights in immovable property in terms of the Deed Registries Act [Cap 139] is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

In Ncube v Ncube SC06-93, another case where the property was registered in the joint names of the spouses yet the wife was alleged not to have contributed towards the purchase price; KORSAH JA …, had this to say -

“It is incorrect to say that appellant, as a registered joint owner, is not entitled to a half share of the value of the Napier Avenue property because she did not contribute money or money's worth towards the acquisition of the property. As a registered joint owner she is, in law, entitled to a half share of the value of that property. The proper approach is to accord her share of that property and then, taking into account all the assets of both spouses, to endeavour as far as is reasonable and practicable and is just to do so, to place the spouses in the position they would have been in had a normal marriage relationship continued between them. In the performance of this duty, a court is empowered, in the exercise of its discretion, to order that any asset be transferred from one spouse to the other.”

In order to take a spouse's share and transfer it to the other there ought to be some solid ground for so doing. In Lafontant v Kennedy 2000 (2) ZLR 280 (S) the court had occasion to deal with such a scenario and stated…., that -

“The court cannot move from that position on mere grounds of equity. It cannot give away A's property to B on the mere grounds that it would be fair and reasonable, or just and equitable to do so. There must be a more solid foundation in law than that.”

Some of the instances where the court was persuaded to move from the 50:50 share the court referred to were -

1. Nyamweda v Georgias 1988 (2) ZLR 422 (S) where the reason advanced was that

Miss Nyamweda was found by the court to have been an agent for her undisclosed principal, Mr. Georgias. She was in effect his nominee at will.

2. In Young v van Rensburg 1991 (2) ZLR 149 (S) where KORSAH JA held that Van Rensburg created Young a nominee for the respondent (van Rensburg) and that on demand the appellant would transfer the farm to the respondent.

3. In the Lafontant v Kennedy 2000 (2) ZLR 280 (S) case where…., the judge said that -

“I think, by claiming and proving that she alone paid for the property, it must necessarily follow, if it was registered in their joint names, that she effectively gave him the half share as her nominee, for convenience. By instituting action she is terminating that nomination. The cases of Nyamweda supra and Young supra are appropriate precedents.”

In casu, it is common cause that the entire purchase price and transfer fees were paid from the plaintiff's retrenchment package. That package was not the couple's savings over a period of time. It was not like a loan where repayments would be needed and whereby during the period of repayment the defendant would take care of some aspects to cushion the plaintiff. Clearly, in my view, the circumstances show that this is an appropriate case where the defendant's share may be tampered with in favor of the plaintiff.

As for her contribution, the defendant contended that she operated a video club and did some interior décor work making curtains. She also was a Director of a family company, SAMECORD.

I did not, however, hear her to seriously say that the ventures brought in substantial income to the family. Indeed, the plaintiff said he had to subsidize the defendant in the video club. The video club was more to keep the defendant occupied than anything viable. The interior décor business, even from the defendant's evidence, was not a big income generating venture. It was more of a hobby or pastime activity than a serious business. As for the family company, SAMECORD, not much could be gathered on its operations and contributions to the family estate. What is unquestionable is that no income from that venture went towards the purchase of the immovable property in question. Its insignificancy can also be discerned from the fact that both spouses never brought it up in their pleadings. It is something that came up as they testified. Had it been a serious venture with substantial income I am of the view that either of the spouses would have mentioned it in their pleadings.

This must, however, not be taken to demean the defendant's contribution to the matrimonial estate. She did contribute in her own way for those 10 years they were married by doing the usual household chores expected of a wife and providing moral support to the plaintiff. Financially, she contributed in her own way.

I am, however, of the view that a proper foundation has been laid for the reduction of the defendant's share from 50%. A reduction by 15% would, in my view, meet the justice of the case….,.

1. …,.

2. …,.

3. …,.

4. …,.

5. The plaintiff is hereby awarded a 65% share in the matrimonial home being Stand 104 Rusape Township, also known as House No. 12 Nyanga Drive Rusape.

6. The defendant is awarded 35% of the said matrimonial property.

7. The parties shall agree on the value of the property within 7 days of the date of this order failing which they shall appoint a mutually agreed evaluator to evaluate the property within 14 days of the date of this order. Should the parties fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his panel of evaluators to evaluate the property. The plaintiff shall meet the costs of such evaluation.

8. The plaintiff shall pay off the defendant her 35% share of the value of the property within120 days from the date of receipt of the evaluation report unless the parties agree otherwise. Should the plaintiff fail to pay the defendant's share in full within the stipulated period 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 thereof shall be shared in the ratio 65:35.

In paragraph 3 of her declaration, the plaintiff outlined how the movable property should be distributed.

The defendant…., disagreed with the manner of distribution of the matrimonial property. He provided his own schedule of how the movable property should be shared.

What constitutes a fair and equitable distribution of the immovable property, namely Number 16 Exton Close, Marlborough, Harare.

A number of aspects were common cause as evident from their evidence. The following factors were common cause.

The parties were married on 2 March 1996 at Bulawayo. At that time, neither of them had any immovable property. Towards the end of 1996, the defendant obtained a loan at concessionary interest rate from his then employer, Barclays Bank, to purchase the immovable property in question. The property comprised double Stands; that is Stand 1093 and 1094. The residential house was on Stand 1093. It is common cause that at the time of the purchase both parties were gainfully employed and contributing in their own way to the family needs.

All loan repayments were being met from the defendant's salary by way of direct deductions from his salary.

In 1998, the defendant resigned from Barclays Bank. The bank adjusted the interest rate from the concessionary rate of 5% per annum to the punitive rate of 26% per annum. According to the defendant, that increase in interest rates would have doubled the indebtedness in a short time. There was therefore need to urgently find a way to pay off the Barclays Bank loan. In order to pay off that loan they settled for a mortgage bond with Beverly Building Society. This option was facilitated by the plaintiff. The plaintiff obtained a letter from her friend indicating that the defendant was employed in that friend's entity and earning a certain salary per month. Apart from that letter there was also the plaintiff's friend who was used to influence a Board member at Beverly Building Society to grant the application. The letter provided by the plaintiff's friend and the plaintiffs' pay slip were furnished to Beverly Building Society in support of the application. As a result of the plaintiff's efforts in this regard Beverly Building Society granted the defendant a mortgage bond and with it he was able to pay off the Barclays Bank loan which had ballooned to Z$767,000= from an initial loan of Z$620,000=. Repayments of the bond were arranged as before whereby the defendant's income went mostly towards meeting the bond repayments.

The defendant did not seriously deny that during the time he was paying the Barclays Bank loan the plaintiff's income was used to meet other family household needs. When the Beverly mortgage bond was obtained the plaintiff continued meeting household needs. There was no denying that as parties who were both gainfully employed they both contributed to the family estate/welfare.

The defendant's contention that the plaintiff's contribution was negligible, deserving only a 10% share, was not well supported by evidence from both parties. For instance, in her evidence, the plaintiff said that -

“We agreed with defendant as a couple seeing that repayments were being deducted from his salary. I was responsible for the day to day household needs, namely, monthly and weekly grocery, I would pay the maid, I purchased clothes for the children and all other incidentals. From extras from his salary he would pay rates and electricity.”

She emphasized that –

“We were pulling our resources together.”

When asked about the defendant's offer to her of only 10% she said -

“Firstly, I do not think it is fair to think that my contribution to our house is worth 10%. Secondly, we were pulling our resources together. Though he would have put more we were each putting our 100%. Thirdly, I was gainfully employed. I tried to run here and there to raise money for the family. Fourthly, though he was paying the mortgage bond we could have swapped to say my 3,500= dollars goes to repay the loan. I was not just an ordinary housewife who spent days looking after the children and is a helper.”

The defendant's response to the plaintiff's position, as outlined above, was not a categorical denial of the contribution by the plaintiff. When asked why he thought that the plaintiff should only get 10% he said words to the effect that -

“I have a lot of information but a lot has been said. The short of it is that I applied for all the loans. I got the loans that bought the property and I paid all the loans. Of course I got help from the plaintiff here and there.”

When asked to explain the plaintiff's involvement in the purchase of the immovable property his explanation was to the effect that -

“Her involvement came much later in 1998. When I left Barclays Bank in 1998 there was need to get another arrangement to pay off Barclays Bank because interest rate being charged was now high.”

He described the interest rates being charged as skyrocketing. He alluded to the fact that he had other options which included a mortgage bond from Founders Building Society but the interest rate for Founders Building Society was higher than Beverly's and so they opted for Beverly Building Society because of its low interest rate. This is what he said of this option –

“On this option, plaintiff said she had someone she knew who knew the Managing Director. We went for Beverly. My wife did the ground work. There was this person so I applied for a loan. As my company was not yet doing well this is when plaintiff asked her friend to prepare a pay slip/letter indicating that I worked there and I earned so much.”

When submitting the loan application, the defendant confirmed that the plaintiff's pay slip was also submitted. Apparently the income the plaintiff's friend said the defendant earned at the plaintiff's instance together with the plaintiff's income satisfied decision makers at Beverly Building Society that the defendant and the plaintiff were able to repay the loan hence the loan was granted.

There was also the influence by the plaintiff's contacts to consider.

As regards the plaintiff's direct payment towards the loan repayment, the defendant said that the plaintiff did not make any payments towards the bond at any time except a little payment she made to pay off the second Beverly bond for home improvement.

Under cross-examination, the defendant was asked -

“Was it not the arrangement of your family that whilst servicing the loan, your salary would be deducted whilst plaintiff met household needs?”

To which he replied: - “I would say yes.”

When further asked - “At all times when this was happening was it not a family arrangement that you would meet the bigger costs and she would meet smaller costs?”

And his reply was - “Yes she has always met the weekly things.”

Further on, he was asked -  

“When you were paying for the immovable property did you consider it to be yours alone?

To which he replied: -

“Yes, but I was alive to the fact that there were contributions by plaintiff.”

The above responses by the defendant confirm that the plaintiff's contribution was substantial bearing in mind she earned much less than the defendant. For 14 years of their marriage the plaintiff met the family's weekly needs. She also paid wages for the maid and bought clothes for the children. She also paid off the balance of the second mortgage bond which they had obtained to make improvements to the family home using her retrenchment package.

To crown it all, the defendant confirmed that the way in which they contributed to the family needs was as per their arrangement as a couple. That arrangement should now not be used as proof that one spouse did not deserve a fair share from the estate.

Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides the factors to be taken into account by a court in the distribution of the matrimonial estate. Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that -

“In making an order in terms of subs (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 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 made by each spouse to the family, including contributions made by looking after the home 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 endeavor, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

I have no doubt that in taking all or some of the above factors into account, the appropriate court is enjoined to try as far as it is practicable and reasonable, to place the spouses and the children of the marriage in a position they would had been in had a normal marriage relationship continued.

See Takafuma v Takafuma 1994 (4) ZLR103 (S); Marimba v Marimba 1999 (1) ZLR 87 (H) and Masimirembwa NO v Chipembere 1996 (2) ZLR 378 (S)…,.

In an endeavour to meet the task, this court has held that even a fulltime housewife is entitled to a sizable share for the role she plays looking after the home and looking after the children, and, one would also say, and in providing a comfortable home for the husband. See Sithole v Sithole HB14-94.

In cases where the wife is gainfully employed and makes some contributions from her salary towards the welfare of the family, there should be no doubt that she would ordinarily deserve a reasonable share.

In casu, it was common cause that as a result of a family arrangement the defendant's income went towards loan repayments whilst the plaintiff's income went towards groceries and other weekly needs of the family. The plaintiff paid off the balance of the second mortgage bond which was for home improvements.

It is admitted that at a time when the defendant needed an urgent option to pay off the Barclays Bank loan the plaintiff provided that option through her friend and her pay-slip. Though the defendant said that apart from the Beverly Building Society option he had other options which he could have resorted to, those options, according to his own words, were more expensive than the option facilitated by the plaintiff. In any case, I did not hear the defendant to say that those other options would not have required him to prove that he was employed and earning a salary. I also did not hear him to say that the use of the plaintiff's pay-slip to prop up the family income would not have been necessary. So clearly, whichever financial house he would have approached would have required the letter procured by the plaintiff on his purported income and the plaintiff's pay-slip. It may also be said that by opting for the option facilitated by the plaintiff the defendant was saved the extra costs he would have incurred had he gone for any of his own options. That saving must surely be credited to the plaintiff. The plaintiff was doing all this believing this was a family home she was helping to acquire.

The duration of the marriage is also an important consideration in this case.

The marriage lasted for about 14 years and during that period the plaintiff was gainfully employed and contributing to the family needs to the best of her ability. The plaintiff's contributions towards the family needs over such a long period cannot be easily quantified. This is especially so because her contributions were according to an arrangement between the spouses. It was never said that she failed to meet what had been agreed she would utilize her income on. One may say that the parties designed how they were to use their respective incomes as a couple and each met their side of the arrangement. This is akin to the parties pulling their resources together for their common good. This arrangement was so that they attain a certain lifestyle as a family.

In situations where spouses have pulled their resources together this court has considered that as a basis not to differentiate much in the share to be distributed to the spouses. In Muwalo v Mugunga 2006 (1) ZLR 485 …., BHUNU J said that -

In their evidence in court, the parties concentrated on aspects pertaining to:

1. The sharing of immovable property; and

2. Post-divorce maintenance for the defendant including her claim for a motor vehicle.

The basic considerations in resolving the above issues are provided for in section 7 of the Matrimonial Causes Act [Chapter 5:13]. Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] 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 of, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other;

(b) 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 any child of the marriage.”

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

Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that:-

“In making an order in terms of subs (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 or 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 expected to be educated or trained;

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

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

(f) The value to either of the spouses or 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 children in the position they would have been in had a normal marriage relationship continued between the parties.”

In Takafuma v Takafuma 1994 (2) ZLR 103 (S) the Supreme Court enunciated a three tier approach in the division of matrimonial assets. This involves categorizing the assets as 'hers', 'his' and 'theirs'. After allocating each what is 'hers' or 'his' the remaining category of 'theirs' would then be shared. If 'theirs' leaves one party in a worse off situation then the  court is empowered to take from one spouse's share and give it to the other. In that exercise, it has been said that consideration of relevant factors that are not easily quantifiable in terms of money is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion. In the exercise of that wide discretion the question is what would be a fair and just distribution of the matrimonial estate? (See Ncube v Ncube 1993 (1) ZLR 93 (S)).

In terms of the joint pre-trial conference minute, the immovable property being seriously contested is the Westgate matrimonial house.

The Chishawasha Stands were not part of the minutes, and, in any case, it is clear that they were acquired many years after the parties were no longer living together and have since been disposed off. The same applies to the remaining property in South Africa. This property, known as the Donnington property was acquired several years after the parties had ceased living together.

The defendant's contribution, both direct and indirect, in respect of these properties, was almost none. These properties are clearly the plaintiff's and as such would be placed in the 'his' category.

There was apparently no immovable property registered in the defendant's name for which we can refer to as 'hers'.

As regards the category of 'theirs', the immovable property acquired when they were living together, that is the Westgate property, was registered in the plaintiff's name. The Westgate property was admittedly the matrimonial home. The defendant's contribution was mostly indirect. It is not disputed that the property was registered in the plaintiff's name and that it was paid for by the plaintiff through bond repayments from his earnings from his employment with Pro-weld Engineering (Pvt) Ltd. As the sole matrimonial home as at the time of separation, it is only fair that the defendant be accorded a share thereof.

On the Westgate property, the plaintiff offered a 50% share to the defendant. The defendant, on the other hand, asked for a 100% share in the Westgate property.

It is my view that taking into account the defendant's contributions, both direct and indirect, as a wife, she deserves a fair share. I am, however, of the view that such a share cannot be the entire value of the property. The defendant argued her case for a 100% share on the basis that the plaintiff had other properties. As was shown during the trial, the plaintiff's businesses have fallen on hard times. The only property remaining beside the matrimonial home is the Donnigton property which is under mortgage bond. That property was acquired after separation and should be considered. The defendant, not having contributed anything towards its purchase, should logically not expect much from this property.

I am of the firm view that a sharing of the matrimonial home in equal shares would meet the justice of this case….,.

1. …,.

2. The defendant is hereby awarded a 50% share of the value of the matrimonial property being, Stand 1417 Bluffhill Township of Stand 1644 Bluffhill Township of Stand 1180 Bluffhill Township also known as 1417 Sugar Bush Avenue, Westgate, Bluffhill, Harare.

3. The parties shall agree on the value of the property within 14 days of the date of this order failure of which they shall appoint a mutually agreed evaluator to evaluate the property within 21 days of the date of this order. Should the parties fail to agree on an evaluator the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his panel of independent evaluators to evaluate the property. The plaintiff shall meet the costs of such evaluation.

4. The plaintiff shall pay off defendant her share of the value within six (6) months of the date of receipt of the evaluation report.

5. …,.

The plaintiff claimed for an 80% share in the matrimonial home, being 7 Orchard Lane, Hatfield, Harare with the defendant retaining 20% share.

The defendant objected to the distribution of the immovable property as suggested by the plaintiff. He contended that No. 7 Orchard Lane, Hatfield, Harare is registered in the joint names of the plaintiff and defendant. The property was jointly acquired and so he owns 50% of the property and not 20%.

The defendant also pointed out that there is another immovable property jointly acquired but registered in the plaintiff's name, that is Stand number 4620 Chikanga Township of Stand 4966 Chikanga Township, Mutare. As this property was also jointly acquired he is entitled to a 50% share thereof.

On movable property, the defendant said they jointly acquired a Nissan Sunny motor vehicle and so he is entitled to 50% of its value.

It also transpired, under cross examination, that there were other immovable properties the plaintiff had purchased but which she had not disclosed in her pleadings.

The defendant cross examined her on these properties in an effort to show that the properties were acquired during the subsistence of the marriage and so he should get a share in each of the properties. The plaintiff, on her part, maintained that those properties were acquired through her efforts, those of her sister and other members of her family and the defendant never contributed anything towards the acquisition….,.

The defendant went on to say that he no longer wished to raise issue with the Mutare house, the Chitungwiza properties and even the Nissan Sunny motor vehicle. All he now desired was that No. 7 Orchard Lane, Hatfield, Harare be registered in the a names of their two last born children and that he be given about 6 months to move out of the house.

In their evidence in court, each party chronicled how the properties in question were acquired and how they felt the property should be shared. They seemed to digress from their pleadings in some aspects. For instance, whilst in her declaration the plaintiff said that the defendant should be awarded 20% share of the matrimonial house, 7 Orchard Lane, Hatfield, Harare, in her viva voce evidence she now offered the defendant 10% and argued that she is entitled to a 90% share.

In his evidence in chief, the defendant did not adhere to his stance as per his pleadings. He now said that after thinking about the issue, the matrimonial property, that is, 7 Orchard Lane, Hatfield, Harare should now be registered in the names of their youngest children. He was no longer seeking that the house be in his name or that they share equally with the plaintiff.

In her cross examination of the defendant, the plaintiff did not go along with the defendant's suggestion. She insisted that the house must be apportioned according to her claim. She alluded to the fact that during the pre-trial conference meeting she had suggested to the defendant that the house be registered in the names of their children but the defendant had refused to which the defendant denied contending that it is the plaintiff who had changed her mind about that suggestion.

It was clear to me that the parties had indeed, at some stage, entertained the idea of registering the house in the names of their children but perhaps due to lack of proper legal guidance they could not agree on some aspects of that suggestion.

In her closing submissions, the plaintiff altered her position. She now said that: “I now agree to the proposal given by Mr Mhlanga that the house be registered in the children's names, that is Samson Mhlanga and Lesley Mhlanga twins born on 25 April 1992.”

She thus no longer wished to be awarded 90% share of the house with the defendant getting 10% share.

That, in a way, disposed of the immovable property.

The plaintiff, for some reason, went on to suggest that their other daughter, Lynet Memory Nashe (nee Mhlanga), be included for the purposes of her seeing to it that Samson and Lesley keep the house nicely, that is, as an overseer.

This suggestion was not accepted by the defendant who felt the two, who are now adults, do not need an overseer.

I am of the view that all that needs to be done as regards the properties is to grant the order in the manner the parties seem to have now agreed and to allow the defendant a reasonable period within which to vacate the house and an order that ownership be transferred within a reasonable period. Neither party indicated who is going to meet the transfer costs. As both parties seem capable of earning income they will have to share transfer costs. Accordingly it is hereby ordered that:

1. A decree of divorce be and is hereby granted.

2. The matrimonial home, that is No.7 Orchard Lane, Hatfield, Harare is awarded to the parties' children namely Samson Mhlanga born 25 April 1992 and Lesley Mhlanga born 25 April1992 in equal shares.

3. The plaintiff and defendant shall sign all the necessary documents to enable transfer within 90 days of the date of this order.

4. The defendant shall vacate the matrimonial home within six (6) months of the date of this order. Should he fail to do so the Deputy Sheriff, Harare be and is hereby directed to eject him at the instance of the registered new holders of title.

5. The plaintiff and defendant shall pay the costs of transfer in equal proportions.

The plaintiff gave evidence and testified that he resides at House Number 1990 Unit L in Chitungwiza which is rented accommodation. He is employed at Chrystal Sweets (Pvt) Ltd as a Quality Assurance Officer. He testified that when he married the defendant she was employed as a Till Operator at a shop in Chitungwiza. She then stopped working after their first child as she had had a disagreement with her employer. They had four children during their marriage. He explained that during the time they were living together they had marital problems such that the marriage broke down and they separated in July 2008. The plaintiff stated that he wanted to be awarded the following property:

(a) Stand No. 2231 Unit N Seke, Chitungwiza;

(b) Mazda B2500 pick-up truck;

(c) One metal TV stand;

(d) 24 inch LG television set;

(e) Phillips DVD player;

(f) 3 door wardrobe;

(g) A refrigerator; and

(h) Building materials.

He stated that he should be awarded the property as he acquired it prior to his marriage to the defendant. He also stated that the defendant made no direct contributions to property acquired after the marriage as she was not employed. He explained that he acquired the pick-up truck from proceeds that he received from a Lancer Mtsibishi motor vehicle that he purchased before he married the defendant. As this money was not enough he received a loan from his employer which he topped up to purchase the B2500. He testified that he repaid the loan on his own without the assistance of the defendant.

The plaintiff also stated that he should be awarded the building materials as he acquired them without the assistance of the defendant. He stated that he purchased 10,000 bricks, window frames and a French door after he received a loan from his employer.

Stand 22321 Unit N Seke was acquired in 2002. The plaintiff told the court that in 1993 he was employed by Blue Ribbon Foods. As part of the company's Employee Retention Scheme he registered with Chitungwiza Municipality. When he was allocated the Stand in 2002 his employer had to guarantee the loan as he did not earn enough money to purchase the Stand. He stated that the property is an undeveloped Stand and should not be awarded to their children as they did not have the money develop it or to pay Municipal charges. It had already accrued debts from non-payment of rates. In the event that the property is allocated to him he would develop the Stand whereas the defendant had stated that she was not prepared to contribute to its development.

In regard to the two Stands in Dema, he stated that Stand 385 is registered in his name and Stand 811 is registered in the defendant's name. He would like to be awarded the Stand in his name whilst the defendant is awarded the Stand in her name.

With regards to her claim for the property she testified that she wanted the B2500 sold and the proceeds shared equally as she had assisted him in paying back the loan. At the time the loan for the truck was being deducted from the plaintiff's salary she was operating the tuckshop and therefore supplementing the family's income.  She also stated that she wanted the television awarded to the person who would get custody of the children. She stated that she was not claiming the building materials because she wants the house to be built. In 2004, a cottage with three rooms was constructed on the Stand. When the cottage was constructed she was at home with the pregnancy of their third child. She contributed indirectly by assisting the builders. Tenants are staying on the Stand and are paying rent to the plaintiff. She stated that she would want the property registered in the names of the four children.

In assessing the evidence, it was my view that the plaintiff gave his evidence well. He came across as a person who was genuinely concerned about the well-being of his family - especially his children. Although I did not believe him on the level of contribution by the defendant towards the upkeep of the household I however took the view that her contribution, being mainly indirect, may have been difficult for him to quantify. In his submissions to the court, he stated, with regard to the movable property, that he be awarded the motor vehicle, refrigerator, television and the wardrobe and indicated that the rest of the property should be awarded to the defendant.

DIVISION OF PROPERTY

In making an award of matrimonial property, the court is enjoined to apply the principles set out in section 7(1) of the Matrimonial Causes Act [Chapter 5:13]. This provision gives the court very wide discretion in regards to sharing and distribution of matrimonial property. (See Gonye v Gonye SC15-09).

The defendant has claimed a 50% share of the immovable property on the basis that she contributed indirectly to its acquisition and development. The plaintiff, on the other hand, submits that the defendant is not entitled to a share of this Stand since he has already agreed to her getting the Dema Stand and her contribution to the acquisition of this Stand was indirect.

In my view, however, the plaintiff's submission is not the proper approach to take.

The Stand in Dema was in the defendant's name. It was already hers and the plaintiff would have had great difficulty in making out a case to deprive her of that property. (See Takafuma v Takafuma 1994 (2) ZLR 103).

In making an award in respect to the Chitungwiza Stand, however, the court must take into account that the defendant did make an indirect contribution to its acquisition and development. Although the defendant was unemployed she contributed considerably as a wife, mother, counsellor, housekeeper and day and night nurse for the family. In the ten years she was married to the plaintiff she had four children - which is not an easy task. She was a wife and mother and ensured that the plaintiff had her support to get his Degree. In the case of Usayi v Usayi 2003 (1) ZLR 685 ZIYAMBI JA said such contributions cannot be quantified in monetary terms.

In my view, the defendant is entitled to a 50% share of this property. In view of the sentiments expressed by the defendant that she would like the property preserved for the children of the marriage I will give the plaintiff an opportunity to buy out the defendant of her share.

The defendant also claimed a 50% share of the value of the sale of the motor vehicle.

In considering this claim, I am of the view that the motor vehicle should be retained by the plaintiff.  In making this award, I have considered that I have awarded custody of the four children to the plaintiff. The children attend school in town - which is 25km away from where they reside. In my view, it would be more comfortable for the children to be driven to school in the morning. In this way they will not arrive at school tired and stressed due to transport problems.

The defendant also stated that she would not claim the television but that it should be awarded to the parent who is awarded custody of the children. She also stated in her evidence that she would not claim the building material so that it is used for the development of the Chitungwiza property. I will therefore not make an award in respect to these items.

Having made the above findings I thus make the following order:

1. …,.

2. …,.

3. …,.

4. The plaintiff is awarded the movable property set out in Annexure A of the order and the defendant is awarded the property set out in Annexure B.

5. The plaintiff is awarded Stand 385 Dema Township as his sole and exclusive property.

6. The defendant is awarded Stand 811 Dema Township as her sole and exclusive property.

7. The defendant is hereby awarded a 50% share of Stand 2231 Unit N, Seke Chitungwiza.

(a) The plaintiff is granted the right to buy out the defendant's 50% share of the property.

(b) The property shall be evaluated by a valuer from the Registrar's list of valuers within 30 days of the grant of this Order.

(c) The plaintiff shall pay out the defendant her 50% share of the property within 90 days reckoned from the date upon which he is served with the valuation report.

(d) In the event that the plaintiff fails to pay out the defendant of her 50% share as set out in this Order the property shall be sold at best advantage and the parties shall share the net proceeds equally.

(e) The parties shall pay for the cost of valuation equally.

On the distribution of properties, the plaintiff suggested that the property be distributed as per his Annexure 'A' to the summons.

The defendant further agreed with the manner of sharing the movable property as per the plaintiff's Annexure 'A'.

C. ISSUE FOR TRIAL

The only issue the parties could not agree on and which was referred for trial was - “Whether or not the defendant is entitled to an equal share of the immovable property, specifically, House Number 25 Ambleside Crescent, Braeside, Harare”; in other words, 'how the matrimonial home should be divided between the parties.'

Both parties gave evidence.

From the evidence adduced, certain aspects are common cause. It is common cause that at the time of marriage the defendant had just completed her Ordinary Level education. She, thereafter, with the assistance of the plaintiff, attended a teacher training college from where she obtained a Diploma in Teacher Education. She went on to obtain a Degree in Education from a local University. As a qualified teacher she started working in January 1994. At that time, the couple had no immovable property. The plaintiff was working for Merchant Bank of Central Africa.

It is further common cause that the immovable property in question was acquired in 1995 through a loan facility provided by the plaintiff's employer. The loan repayments were being deducted from the plaintiff's salary. In as far as the purchase price is concerned there was no direct contribution by the defendant. It is because of this lack of direct financial contribution towards the purchase price that the plaintiff argued that the defendant did not deserve any share in the immovable property. In his evidence-in-chief, the plaintiff was asked -

“At this stage you are not prepared to offer anything to defendant?”

To which he replied -

“Yes. The reasons are that when she went for training as a secondary school teacher I paid for her fees. She has been awarded everything and I am walking onto the ground. When my employer bought the house they were buying it for their employee, not for employee and wife.”

When asked if the defendant had made any direct and indirect contribution to the house, the plaintiff was categorical that the defendant made no direct contribution; all she could do, as a normal wife, was to suggest what the couple should do and he would then use his resources to do that. On indirect contributions, the plaintiff admitted that the defendant made indirect contributions. The defendant paid the salary for the maid for the duration of their marriage since she started working. The defendant also bought grocery items for the family. The plaintiff's response in this regard was in these words -

“Yes, I agree she would pay maid's salary as she engaged them and I would pay gardeners I engaged. I let her buy perishables whilst I would buy capitals like meat.”

It was clear that the plaintiff, whilst admitting that the defendant used her income for the benefit of the family, tried to belittle that contribution. Under cross-examination, he admitted that the defendant, besides grocery items, also bought clothes for their children.

The defendant, in her evidence, contended that whilst she did not make a direct contribution towards the purchase price, she made a direct contribution towards improvements such as the extension of sections of the house. She also bought household goods such as furniture on hire purchase and through loans she got from financial institutions. She used to pay the maid, buy clothes for the family, pay telephone landline bills, buy movables, and buy groceries except meat which the plaintiff used to buy. When asked about her contribution to the loan for the purchase of the house she replied that -

“The major contribution I made to the purchase of the matrimonial home is the emotional support I gave defendant during our time together.”

Besides that emotional support, it was also her evidence that she “paid for the extension of the house, paid for construction of the veranda, paid for slab at the backside of the house.” She went on to say that she has been paying all bills for the house since 2007 when the plaintiff moved out such as owner's charges/ rates and maintaining the house.

In his cross-examination of the defendant, I did not hear the plaintiff to deny that the defendant used her income for the benefit of the family though, of course, he denied that she expended any of her money on improvements/extensions to the house. One can thus safely say that since she started working the defendant has contributed her income towards the needs of the family. The question is: does that entitle her to any share in the matrimonial home? If so, what share is she entitled to?

The plaintiff's position was simply that whatever contributions the defendant did entitled her to only the movable items the parties agreed she should get.

The question of distribution of the matrimonial estate is dealt with under section 7 of the Matrimonial Causes Act [Chapter 5:13]. Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] provides 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;

(b) 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.”

As regards the basic considerations in deciding on how best to distribute the assets or property, section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that:-

“In making an order in terms of subs (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 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 made by each spouse to the family, including contributions made by looking after the home 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 endeavor, as far as is reasonable and  practicable, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

It is apparent, therefore, that the fact of direct contribution to the purchase of a particular asset is not the only consideration to be taken into account. The court is enjoined to consider all the circumstances of the case, including the above stated factors. The crux of the matter is in deciding on what weight to place on each of the factors to be considered. Whatever weight is placed on the factors must be such as to place the spouses in the position they would have been in had a normal marriage relationship continued.

In Sithole v Sithole and Another HB14-94…, CHEDA J…, remarked that -

“It is accepted that even a wife who is not employed makes a contribution if she looks after the family's affairs and the parties' children enabling the man to be away to work and earn a living for the family. Such a wife cannot, on divorce, go empty handed just because she did not contribute financially.”

In that case, both spouses had been employed throughout their marriage with the wife earning far much less than the husband. The matrimonial home was acquired through a mortgage bond whose repayments were deducted from the husband's salary. The wife took care of other expenses such as telephone bills and groceries. She also bought most of the movables. The wife claimed a 50% share of the matrimonial home whilst the defendant offered her a 25% share. After a careful consideration of the matter, the court awarded the plaintiff a 40% share of the matrimonial home.

Equally, in Muteke v Muteke SC88-94, the wife made no direct financial contribution except as a housewife but the court considered primarily her needs and expectations rather than her contribution.

In casu, there is no denying that the defendant made direct financial contribution towards the household needs of the family throughout the period of their marriage from when she started working. I did not hear the plaintiff to complain that the defendant did not commit most of her income to the needs of the family. By such contributions, the defendant enabled the plaintiff to comfortably repay the housing loan from his employer. In a way, the defendant did contribute indirectly to the purchase of the house. Her contribution cannot be trivialized as it enabled the plaintiff to concentrate on repaying the loan knowing fully well that the other needs of the family were being taken care of by the defendant.

In Usayi v Usayi 2003 (1) ZLR 684 (S) the Supreme Court, in upholding a High Court decision to award a 50% share to a non-working housewife of many years, held that:-

“It is not possible to quantify, in monetary terms, the contribution of a wife and mother who for many years faithfully performed her duties as wife, mother, counselor, domestic worker, housekeeper, and day and night nurse for her husband and children. It is not possible to place a monetary value on the love, thoughtfulness and attention to detail that she put into the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy; nor can one measure, in monetary terms, the creation of a home and an atmosphere from which both husband and children can function to the best of their ability. In the light of these many and various duties, one cannot say, as is often remarked: 'throughout the marriage she was a housewife. She never worked.'”

In that case, the parties had been married for a period of about 35 years. In casu, the marriage lasted about 20 years and the defendant contributed most of her salary and other income to the needs of the family. A period of 20 years is certainly long. It is a period whereby the plaintiff and the defendant lived as husband and wife, each contributing, to the best of their ability, to the well-being of their family. They were amassing their estate as a family and not that each was amassing their individual estate. The defendant's contribution cannot, in my view, be trivialized in those circumstances.

The plaintiff's argument that the movable property allotted to the defendant suffices for her contribution was without merit. A careful analysis of the movable property shared between the parties shows that the plaintiff got valuable movables as well. In the absence of given values, it is my view that the sharing of the movables should not prejudice the defendant in the sharing of immovable property.

In casu, both parties are still in employment and so capable of earning their own living. They had reached a stage in their lives where they owned an immovable property. If anyone is to move out he/she must go out with a reasonable share to probably be able to acquire or secure accommodation for him or herself. It is also important to consider that both of them committed their salaries to their family during the 20 years of their marriage. It is only fair and just that the sharing ratio reflect the above key considerations in this case.

After a careful analysis of the evidence and circumstances of the parties I am of the view that a 55:45 sharing ratio would meet the justice of the case…,.

1. …,.

2. …,.

3. ..,.

4. The plaintiff is awarded the following movable property -

(i) Mazda 323 motor vehicle registration No. AAI 4843.

(ii) Peugeot 504 motor vehicle registration No. AAI 7792.

(iii) LG 21 inch television set.

(iv) Satellite dish.

(v) Multichoice 720 satellite dish.

(vi) 210 litres Chest Freezer (KIC).

5. The defendant is awarded the following movable property -

(i) Maroon lounge suite (including tables).

(ii) Black center cabinet.

(iii) Black and brass TV Stand.

(iv) Samsung stereo 3 CD Changer.

(v) Phillips Video Player/ Recorder.

(vi) Phillips 21 inch TV set.

(vii) Fortech Star Satellite Decoder.

(viii) 9 piece Dining room suite.

(ix) Display Cabinet.

(x) Upright Imperial Fridge/Freezer Double door.

(xi) Princess 4 Plate stove.

(xii) Akira Microwave.

(xiii) Dutchess Bedroom suite (3 piece).

(xiv) Ortho King bed.

(xv) Foam double bed.

(xvi) Zambezi nomadic wardrobe.

(xvii) Spare lounge suite.

(xviii) Two plate stove with oven.

On the immovable property.

6. The plaintiff is awarded a 55% share of the matrimonial property, being Stand 8670 Salisbury Township of Salisbury Township Lands also known as House No. 25 Ambleside Crescent, Braeside, Harare.

7. The defendant is awarded a 45% share in the above described matrimonial property.

8. The plaintiff is hereby granted the option to buy out the defendant in respect of her 45% share in the matrimonial property.

(i) The parties shall agree on the value of the property within 14 days of the date of this order. If parties fail to agree on the value they shall, within 28 days of this order, appoint a mutually agreed evaluator to evaluate the property.

(ii) Should they fail to agree on an evaluator, the Registrar of the High Court shall be and is hereby directed to appoint an independent evaluator from his panel of evaluators to evaluate the property.

(iii) The plaintiff shall meet the cost of such evaluation.

9. The plaintiff shall pay off the defendant her 45% share of the value of the property within 120 days from the date of receipt of the evaluation report unless the parties agree otherwise. Should the plaintiff fail to pay the defendant 's share in full within the stipulated period, 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 therefrom shall be shared in the ratio 55:45.

The plaintiff offered the defendant a stove, fridge, television, kitchen chairs and kitchen utensils, which they acquired during the subsistence of their marriage, but claimed the matrimonial home he said he acquired long before he married the defendant.

The defendant, in her counter-claim, claimed, in addition to the movables offered by the plaintiff, a sum of US$2,000= being half of the value of improvements to House Number 324/8 Mbizo during the subsistence of the marriage. The defendant further claimed a half share of a fridge, colour television, double bed, and Toyota Land Cruiser she alleges they acquired in South Africa during the subsistence of the marriage….,.

The defendant has proved that she contributed to the maintenance of the matrimonial home - even though she did not contribute towards its acquisition. She painted it, maintained it, and looked after it for three years after the plaintiff had abandoned the matrimonial home. Counsel for the plaintiff, in recognition of the defendant's contributions and her preservation of the house, offered her an amount of US$2,000=.

That is the amount the defendant had claimed for her contributions towards the immovable property….,.

There is no dispute over the movables. They will be awarded to the defendant…..,.

1. …,.

2. That the defendant be awarded the following movables; a stove, fridge, television, kitchen chairs and kitchen utensils.

3. That the plaintiff shall pay to the defendant a sum of US$2,000=, being her contribution towards the maintenance of the matrimonial home.

4. That the plaintiff shall have House Number 324/8 Mbizo Township Kwekwe as his exclusive property.

The parties also agreed, at the pre-trial conference, on the sharing of the matrimonial property.

The parties agreed that in respect of all movable property each party should keep whatever property is in his or her possession as his or her sole and exclusive property….,.

1. …,.

2. …,.

3. …,.

On the distribution of property, the plaintiff proposed that it is just and equitable that the parties' matrimonial assets be distributed as follows:

For plaintiff:

i) Satellite dish and decoder;

ii) 10 cattle; and

iii) 9 goats.

For defendant:

i) DVD player;

ii) 1 blanket and bed cover; and

iii) 4 cattle.

On immovable property:-

The plaintiff to retain, as her sole property, the Goromonzi house and the defendant to retain, as his sole property, House Number 3335 School Drive Glen View 4, Harare.

The defendant…., disagreed on the manner of distribution of their assets as suggested by the plaintiff….,. He went on to suggest that the matrimonial property be distributed as follows:-

For plaintiff -

i) 50% share of the Goromonzi property.

ii) 9 goats.

iii) 4 plate stove.

iv) Room Divider.

v) Radio.

vi) Satellite Dish and Decoder.

vii) 2x 2-in-one Blankets.

viii) Refrigerator.

ix) Kitchen Drawer.

x) Bedroom Suite.

xi) DVD Player.

For defendant -

i) 50% share of the Goromonzi property.

ii) 14 cattle.

iii) Lounge suite.

iv) Bedroom suite.

v) 1 blanket and bedcover.

At a pre-trial conference, the couple agreed that -

1. The marriage had irretrievably broken down and that there were no prospects of restoration to a normal marriage relationship.

2. That all the goats be awarded to the plaintiff.

3. All household property/goods, including a 6 piece lounge suite be awarded to the plaintiff.

The issues referred for trial were as follows:-

1. Whether or not House No. 105 Takadiyi Village, Goromonzi was purchased and/ or constructed through the joint contribution of the plaintiff and the defendant and therefore is part of matrimonial estate; and, if so, what proportion did each party contribute?

2. Whether or not the cattle form matrimonial property, and, if so, in what proportion should it be divided between the parties?

3. Whether or not the plaintiff made improvements to the defendant's Glen View property (Stand No. 3335 Glen View), and, if so, what were the improvements and their value?

The plaintiff gave evidence after which the defendant testified and called one witness.

On the contentious issues of the immovable property and cattle, both maintained their positions that they should be awarded what they were claiming. Section 7(1)(a) of the Matrimonial Causes Act [Chapter 5:13] provides 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 the division of, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other.”

Section 7(4) of the Matrimonial Causes Act [Chapter 5:13] provides that in making the decision in subsection (i) “…., court shall have regard to all the circumstances of the case.”

The subsection goes on to enumerate some of the circumstances to be considered in section 7(4)(a)-(g) of the Matrimonial Causes Act [Chapter 5:13]. The subsection concludes by stating that -

During the subsistence of the marriage, the parties did not acquire any immovable property. According to the plaintiff, the matrimonial estate consists of “a set of sofas, 24 inch colour TV, upright fridge, two plate stove, bedroom suite, DVD player, DSTV decoder and kitchen utensils.”

Out of this property, the plaintiff only lays claim to the set of sofas, headboard of the bedroom suite and the DSTV decoder….,.

At the commencement of the trial, the parties agreed to share the matrimonial estate as per paragraph 4 of the defendant's counter claim which proposes as follows:-

(i) That the plaintiff be awarded, as his sole and exclusive property, the following:-

“Radio, DVD player, dressing table, one big sofa, and one small sofa.

(ii) That the defendant be awarded, as her sole and exclusive property, the following:-

DSTV decoder satellite dish, bedroom suite, head board, upright fridge, 2 plate stove, one big sofa, one small sofa, TV cabinet  and all kitchen utensils.”…,.

1. …,.

2. ….,.

3. …,.

4. …,.

5. Each party be and is hereby awarded as his/her sole and exclusive property the following movable property:

(a) For the plaintiff:

(i) Radio.

(ii) DVD player.

(iii) Dressing table.

(iv) One big sofa.

(v) One small sofa.

(b) For the defendant:

(i) DSTV decoder.

(ii) Satellite dish.

(iii) Bedroom suite.

(iv) Headboard.

(v) Upright refrigerator.

(vi) 2 plate stove.

(vii) One big sofa.

(viii) One small sofa.

(ix) TV cabinet.

(x) All kitchen utensils.

6. Each party be and is hereby ordered to bear its own costs.