Betty Ruzvidzo v Jeremiah Warikandwa

### Preamble
1
HH 816-18
HC 1126/16
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BETTY RUZVIDZO

versus

JEREMIAH WARIKANDWA

IN THE HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 12-14 March 2018; 1, 7-8 June 2018 & 13 December 2018

Civil Trial

C. Warara, for the plaintiff

F.G Gijima, for the defendant

MUREMBA J: This is a divorce matter between the parties who were initially married to each other under customary law in 1994. The defendant was at the material time married to his first wife under general law. The defendant’s first wife subsequently died in 2000 and the parties then solemnised their marriage under the Marriage Act [Chapter 5:11] on 23 October 2006.

The plaintiff sued for divorce and ancillary relief on 5 February 2016. In response the defendant filed his plea and counter claim. He was not contesting the divorce. The pleadings averred that the marriage was blessed with three children: Samantha Mitchell Warikandwa born on 16 April 1997, Nicole Dione Warikandwa born on 5 December 1998 and Jeremy Jayden Warikandwa born on 31 August 2013. At the time the legal proceedings were instituted and at the time of the pre-trial conference only Samantha Mitchel had turned 18. The other two were still minors. At the pre-trial conference held in September 2016 the parties agreed that:

The marriage had irretrievably broken down.

Custody of the minor children Nicole Dion and Jeremy Jayden be awarded to the plaintiff with the defendant having access during alternate school holidays; and

Each party should contribute equally towards the maintenance of the minor children until each child turns 18 years or becomes self-supporting whichever occurs earlier.

The issue that was referred to trial as per joint pre-trial minute conference is, “What constitutes a just and equitable distribution of the parties’ movable and immovable matrimonial assets?” However, the parties were in agreement that each party is entitled to a 50% share of the parties’ movable and immovable matrimonial assets upon distribution.

After the pre-trial conference but before the matter was set down for trial, the plaintiff went to the Magistrates court and sued the defendant for her own maintenance and that of Jeremy Jayden. Samantha Mitchel and Nicole Dion who had now turned 18 years also sued their father for maintenance. In those maintenance proceedings in the Magistrates court the defendant disputed paternity of the children and the issue of paternity became an issue. The end result was that the magistrate awarded maintenance to the plaintiff and Jeremy Jayden and ordered the parties to go for paternity tests with the children. The defendant made the necessary arrangements and payments but the plaintiff on 4 occasions refused to go for the tests. She would simply not pitch up with the children for the tests on the appointment dates. She refused to go until the maintenance order of Jeremy Jayden was discharged by the magistrate. Because of this refusal to take the children for paternity tests by the plaintiff, the defendant before the present trial commenced, amended his pleadings by consent to reflect that the plaintiff should instead of being awarded a 50% share in the properties be awarded a 20% share. The defendant who now doubted paternity of all the three children was now averring that there were no children born out of the marriage. He now wanted the plaintiff punished for having lied to him during the course of the marriage that the children were his when they were not.

During the course of this trial the defendant continued to argue the issue of paternity. It was clear that the plaintiff was still very reluctant to have the children go for paternity tests yet she continued to insist that they were the defendant’s children. It took a lot of persuasion from this court for her to comply because the plaintiff was not making sense by refusing to go with the children for those tests. The tests were important because the issues of custody, access and maintenance in respect of the minor child Jeremy Jayden formed part of the present proceedings. Although the parties had reached a settlement on them at the pre-trial conference, the defendant was now in doubt that he is the one who fathered this child. Moreover, as already stated above, in the maintenance court an interim maintenance order in respect of this child had been discharged after the plaintiff had refused to go for paternity tests with this child. It would have been unfair for this court to order the defendant to pay maintenance in respect of the same child until the child reaches 18 years or becomes self-supporting in the absence of proof that he is the father. After some persuasion by this court the parties ended up going for the paternity tests in respect of all the children during the course of the trial and it turned out that the girls were fathered by the defendant but the boy Jeremy Jayden was not. Evidence led by the parties showed that the last born child Jeremy Jayden was conceived when the parties had started having protected sexual intercourse. The defendant said that it was not until the plaintiff was about 5months pregnant that he noticed that she was pregnant and he asked her and took her to the doctor for a pregnancy test. He said that she had not told him about the pregnancy. The pregnancy test was positive and that is when she said that the condom had burst resulting in the pregnancy. The defendant said the whole story was unconvincing to him because from what he remembered no condom had ever burst. He said be that as it may he decided to accept the child for the sake of their marriage and family. He said that as a result he participated in the whole birth process, a thing which the plaintiff disputed heavily. Whilst she said that he did not buy any clothes for the child or make payments for the delivery of the child because he had always been abusive to her, she however said that the defendant had never disputed that he was the father of the child. She said that he only started disputing it when she sued for maintenance because he was irked by the divorce proceedings she had instituted. Anyway, it is water under the bridge now since the defendant now knows that the little boy was not fathered by him. However, with this new information that the girls are his children and the boy is not, the defendant now wants the plaintiff to be punished by being awarded a 40% share of all the properties instead of a 20% share that he had asked for in his amended pleadings.

From the evidence that was led by the parties, it emerged that seven immovable properties constitute the assets of the parties as stated in s 7 (1) (a) of the Matrimonial Causes Act [Chapter 5:03]. In terms of that provision what is subject to distribution between the parties upon divorce are the, “assets of the spouses.” What constitute assets of the spouses are the assets the parties acquired individually or separately and jointly before marriage, during marriage and after separation, but before divorce. See Gonye v Gonye 2009 (1) ZLR 232 (S). In casu the seven immovable assets the parties acquired are;

Two rural homesteads in Domboshava.

Number 17 Maidenhead Road, Helensvale, registered in the name of True Cause Enterprises (Private) Ltd.

Stand 90 Maidenhead Road, Helensvale, registered in the name of True Cause Investments (Private) Ltd.

17 Duiker Crescent, Borrowdale registered in both parties’ names.

8 Stour Road, Vainona, Harare registered in the name of True Cause Investments (Private) Ltd.

10 Tiger Close, Borrowdale West, Harare registered in the defendant’s name.

The properties were duly valuated save for the two Domboshava rural homesteads which were not given values by the valuer.	The five properties that are situated in Harare were valued as follows.

17 Duicker Crescent - 	$200 000 – exh 3

17 Maidenhead Lane-		$170 000 – exh 6

10 Tiger Close	-		$150 000 – exh 2

8 Stour Road			$220 000 – exh 4

90 Maidenhead Lane		$170 000 – exh 5

Total 				$910 000.00

The defendant said that 40% of $910 000.00 which he wants the plaintiff awarded is $364 000.00. The total value for 17 Duicker Crescent and 67 Maidenhead Lane is $200 000 plus $170 000 which is equal to $370 000.00 which is 40.65%. He said these two properties should be awarded to the plaintiff. He said he chose these two because 17 Duicker Crescent was purchased as a vacant stand for the plaintiff and was built as her matrimonial home. He said that this is why her name appears as a joint owner with him on the title deed.  He said that 17 Maidenhead Lane is at an advanced state of completion than 90 Maidenhead Lane which is adjacent to it.

The defendant further suggested that the remaining 3 properties whose values add up to $540 000 should be awarded to him since they constitute 59.35%. He said that over and above that he should be awarded the two homesteads in Domboshava under Chief Chinamhora. The two homesteads are a few metres apart and are separated by a road. They were acquired and built for the defendant’s two wives since by tradition each wife would want to have her own kitchen and bedroom. Mr. Gijima submitted that if the homesteads are shared between the parties as the plaintiff wants, how will the parties live if either party decides to re-marry in future? He further submitted that in any case the homesteads are known as the Warikandwa homestead, so no rural homestead can be awarded to the plaintiff. Mr Gijima further submitted that awarding one of the rural homesteads to the plaintiff will be unjust and against public policy considering that the plaintiff committed adultery and bore a child, a fact which is now known in Chief Chinamhora area since the defendant had since reported the paternity results to the chief. Mr Gijima submitted that an award of the homestead to the plaintiff will be seen as a partial condonation of the plaintiff’s behaviour. For this submission Mr Gijima referred to the case of Mpofu v Mpofu 2005 (2) ZLR 228 (H) wherein the defendant, a married woman with six children committed adultery resulting in pregnancy.  The adultery was committed in the matrimonial home in the communal lands and the defendant was caught red handed.  CHEDA J said,

“Her behaviour and conduct is profoundly reprehensible. It is her immoral conduct 	which has solely caused the breakdown of the marriage. The rural home and bottle 	store are both in the rural areas. In my view it will be improper for her to be awarded 	these properties taking into account that her stay in the same community where she 	committed adultery will no doubt be frowned upon.

The court takes judicial notice that a home in general and in the rural areas in 	particular 	largely derives its dignity from the conduct of the woman who runs it. Such woman is 	therefore expected to exhibit high moral standards as she is a beacon of uprightness. 	Defendant having brazenly committed adultery under those circumstances cannot be expected 	to wholesomely benefit from her misdemeanour, this in my view will be both unjust and 	against public policy.  While recognising her contribution in my opinion it will be improper to 	award her substantially as  to do so maybe viewed as partial condonation of her behaviour.”

Mr Gijima said that the ratio decidendi by CHEDA J can simply be uprooted and applied in the present matter. He submitted that whilst the fault factor is no longer part of our law, the courts however have discretion to punish either party for brazen misdeeds committed during the marriage. He submitted that just like in the Mpofu v Mpofu case, the plaintiff should be punished by being denied her 10% share of the properties.

Mr Warara submitted that the defendant’s request to punish the plaintiff is based on an equal society where men commit adultery and will have no consequences suffered. They can have children outside marriage and hide them whereas women cannot as what happened in the present matter. He said that in the present matter the defendant’s infidelity only manifests as HIV infection but he wants the court to ignore it or justify it because he is a man. That the defendant was HIV positive and the plaintiff was not is common cause. Both parties testified to that. It was as a result of their discordant status that the parties started to use protection during sexual intercourse. It was during this time that the plaintiff committed adultery and conceived Jeremy Jayden. Whilst the defendant denied it, the plaintiff said that Jeremy Jayden was conceived at a time the parties were at the height of their marital problems in 2012. She said that the defendant was denying her conjugal rights as he would tell her to go and sleep with her brother. She said that generally the defendant was just an abusive husband physically, psychologically and emotionally but despite that in 2006 the defendant fell seriously ill and was bedridden for two months and she nursed him back to life. She said that the parties’ sexual life had gone very bad long before the child in question was conceived as they would have sexual intercourse after a year.

Mr Warara submitted that the defendant’s H.I.V status is evidence that both parties were involved in adultery during the course of their marriage and as such the plaintiff should not be punished by having her 10% share taken away from her.

I am not inclined to punish the plaintiff for the adultery that she committed by taking 10% off the 50% share the parties initially agreed she was entitled to at the pre-trial conference. This is because whilst the plaintiff tested H.I.V negative, the defendant tested H.I.V positive when the parties got tested long back before Jeremy Jayden was conceived.  This might be evidence that the defendant was also involved in adultery during the course of the marriage. His salvation could be that he is a man and men cannot fall pregnant. Otherwise if he was a woman he could have fallen pregnant just like what happened to the plaintiff. He did not even attempt to explain how he could have contracted H.I.V thereby leaving room for speculation that he might have engaged in adultery resulting in him contracting the virus. It is even worse for him in that as far back as 2006 when he fell ill and was bedridden for 2 months it was because he was already positive. He did not dispute that he was unable to walk and had to be nursed back to life by the plaintiff. It was not made clear when exactly the parties started having protected sexual intercourse but it was when the defendant tested H.I.V positive. It was only in 2013 that Jeremy Jayden was born. This means that the plaintiff engaged in adultery which resulted in the birth of this child in 2012. Only the plaintiff would know if she had engaged in adultery before otherwise there is no proof. The evidence led in this case clearly showed that the plaintiff lied to the defendant that the child was his. I believe the defendant’s story that she lied to him that the condom had burst. Her refusal to go with the child for paternity tests when on the other hand she was insisting that the defendant was the father said it all.  The guilty are afraid. She only admitted to having committed adultery during the present trial after the paternity results were out. That is when she sought to explain herself by saying that she had engaged in adultery out of frustrations in her marriage. She said that it happened when she was running a lodge and she got to click with a client with whom she ended up having a one night stand. She said this is what resulted in her falling pregnant. Whether this is what really happened or not, she is the one who knows the truth. The bottom line though is that she engaged in adultery.

In terms of s 7 (4) of the Matrimonial Causes Act, the conduct of the spouses during the marriage can be taken into account in the distribution of property between the parties which means that a party can be penalised and have his or her share in the property reduced on the basis of his or her conduct. In casu I am however not inclined to penalize the plaintiff because in my view no party is better than the other here. It is highly likely that the defendant also committed adultery. Each party blames the other for the breakdown of the marriage. Whilst the defendant says it was because of the adultery that was committed by the plaintiff, the plaintiff says their marital problems started long before Jeremy Jayden was conceived. He was denying her conjugal rights even before he fell sick in 2006. They would have sexual intercourse once after a year. During cross examination it was even put to her by the defendant’s counsel that their marital problems had started 5 years into the marriage as the defendant suspected her of infidelity. It was also put to her that in 2012 they reached the height of their marital problems. This line of questioning in a way confirmed that the marital problems of the parties were not in any way related to the conception and birth of Jeremy Jayden.

In terms of s 56 (1) of the Constitution of Zimbabwe Amendment Act No. 2013,

“All persons are equal before the law and have the right to equal protection and benefit of the law.”

In terms of s 56 (2):

“Women and Men have the right to equal treatment---.”

If both parties are likely to have committed adultery why should the plaintiff be the only one to be punished? Do they not deserve equal treatment? In any case in Ncube v Ncube 1993 (1) ZLR 39 (SC) it was held that since divorce is now based on the “no fault” concept, the conduct of the parties cannot play any role in the determination of the distribution of the matrimonial property. In interpreting s 7 (3) of the then Matrimonial Causes Act, 1998, a provision similar to the current s 7 (4) of the Matrimonial Causes Act [Chapter 5:13] KORSAH JA at p 41 said,

“It is true that the provisions make reference to a division of assets having regard to the conduct of the parties, but as LORD DENNING MR explained in Wachtel v Wachtel [1973] 1 All ER 829 (CA), when the parties come to an agreement that their marriage has irretrievably broken down, what place has conduct in it? The proper approach to adopt is to accept that both parties have contributed to the breakdown and then to get on with the distribution of the assets on that basis. To invite a court to take cognisance of who was responsible for the breakdown after such an agreement, as the appellant requested of the trial court, is to resurrect the old spectre of guilt and innocence and drag the judge" to hear their mutual recriminations and go into their petty squabbles for days on end, as he used to do in the old days. “If that was the intention of Parliament then the concept of the irretrievable breakdown of the marriage in s 5 of the Act is shorn of almost all meaning. For as the learned MASTER OF THE ROLLS observed at 835h-836b of the report, supra, of a similar provision in the United Kingdom:

"It has been suggested that there should be a 'discount' or 'reduction' in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation ... There will be many cases in which a wife (although once considered guilty or blameworthy) will have earned for the home and looked after the family for very many years. Is she also to be deprived of the benefit otherwise to be accorded to her by s 5 (1) (f) because she may share responsibility for the breakdown with her husband? There will no doubt be a residue of cases where the conduct of one of the parties is in the judge's words 'both obvious and gross', so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life."

I am of the view that once the parties finally consented to the dissolution of their 	marriage on the ground of irretrievable breakdown, and their mutual recriminations 	appeared to counter-balance each other, and the conduct of one was not more gross 	than the other, there was no duty on the court to dwell on the conduct of the parties in its assessment of what would otherwise be a fair and just apportionment of the assets 	of the spouses.”

In casu the parties are	 agreed that the marriage has irretrievably broken down and that it should be dissolved. Their blameworthiness seems to counter balance each other. There is therefore no reason why I should reduce the share the wife should get. Besides, all the properties were acquired between 2001 and 2005 as the title deeds reflect. This was well before the child in question was conceived and born. I do not see how the child affects the issue of distribution of property. In any case in acquiring the properties the parties had worked together in a family business they had set up together before the defendant’s first wife passed on in 2000. They were operating a second hand goods shop buying and selling fridges, stoves, etc. The defendant would go out to source for the goods from peoples’ homes whilst the plaintiff was selling the goods at the shop. Obviously it was in recognition of the role each party played in the running of the business and the acquisition of the properties that at the pre-trial conference the parties settled for an equal distribution of the properties. I will thus distribute the properties equally between the parties. The adultery the plaintiff committed will only affect the issues of access and maintenance of Jeremy Jayden. The defendant made it clear that he cannot continue to maintain a child that is not his. He even said that he would like to be compensated for having to look after this child. In light of this I will not order the defendant to maintain the child. In turn he will not have access rights over the child.

The plaintiff wants the following immovable property awarded to her:

8 Stour Road, Vainona, Borrowdale where the family especially the plaintiff and the children have been residing since 2014.

10 Tiger Close, Borrowdale where the parties were doing business all these years, but currently it is the defendant who is doing business there alone.

The homestead in Murove village where she stayed with her children during the early days of her marriage before the parties had acquired all the other immovable properties in Harare.

The plaintiff wants the defendant awarded 17 Duicker Crescent, Borrowdale; any one of the two Maidenhead Lane properties in Helensvale and the other rural homestead in Domboshava. She wants the one property which remains between the two Maidenhead Lane properties in Helensvale shared by the two of them equally so that they can pay their legal expenses and pay for their two girls who did not proceed with their education after ‘A’ Level to start school as soon as possible.

If the properties are shared in the manner suggested by the plaintiff each party will get two immovable properties worth $370 000.00. However, this type of distribution is not possible because both parties want 8 Stour Road, Vainona, Borrowdale and 10 Tiger Close, Borrowdale awarded to them. In his pleadings the defendant had even wanted 10 Tiger Close awarded to his two sons with his first and late wife his reason being that it is a property he acquired with the help of his late wife. The plaintiff disputed this. She said that although the first wife spent her last days in the cottage at 10 Tiger Close, Borrowdale as she was ill, she had not been involved in the acquisition of that property. The plaintiff said that when the first wife was staying in the cottage, they were actually using the main house for their business, i.e. selling second hand goods. She said that the house he bought with his first wife had been in Warren Park. That the defendant and his first wife had a property in Warren Park was not disputed. In the light of this, the defendant did not prove to the court on a balance of probabilities that he had not purchased 10 Tiger Close, Borrowdale with the plaintiff but with his first wife. The plaintiff had been his second wife since 1994 and they had been working together in their projects. The plaintiff said that right from the time they got married they were working together whilst the first wife was involved in a knitting business by herself. The defendant did not quite challenge this. It is pertinent to not that transfer of 10 Tiger Close was effected into the name of the defendant in October 2001 after the first wife had died in 2000.  I thus reach the conclusion that 10 Tiger Close is subject to distribution between the parties.

In the interests of justice, I will order that each party gets one of the two properties they are fighting over. I will award 8 Stour Road, Vainona to the plaintiff since this is where she is staying with the children. The family has been staying there for quite some time. Title is registered in the name of the company called True Cause (Pvt) Ltd a company which was created by the defendant for purposes of registering the parties’ immovable properties. Although the defendant also resides at 10 Tiger Close, he uses a separate bedroom from the plaintiff and he does not stay there full time. He partially stays there as he comes and goes as he pleases according to the evidence both parties gave.

I will award 10 Tiger Close to the defendant for the reason that since I have awarded 8 Stour Road, Vainona to the plaintiff which the defendant also wanted it is only fair to award this property to the defendant in order to balance the interests of the parties. Besides, the property seems to have sentimental value to the defendant who says that this is where his first wife spent her last days.

The two properties in Maidenhead Lane, Helensvale valued at $170 000-00 each registered in the name of the company True Cause (Pvt) Ltd are both not complete. I will award one property to each of the parties. I will award 17 Maidenhead Lane to the plaintiff and 90 Maidenhead Lane (Winchendon) to the defendant. I have made this award on the basis that the defendant had offered 17 Maidenhead Lane to the plaintiff and he offered to take 90 Maidenhead Lane. No tenants had been put in any of these 2 properties because they are not yet complete. It is only fair that each party gets an uncompleted property.

What remains is 17 Duicker Crescent, Borrowdale which is registered in both parties’ names valued at $200 000. Each of the parties wanted the other party to get this property. It is a completed property and is currently being rented out by the defendant. The parties hold equal shares by virtue of being joint owners. Each party thus holds a 50% share. I am however, going to tinker or temper with this shareholding in order to compensate the defendant for the value of $70 000-00 that he has so far lost to the plaintiff. This is the difference that exists so far in respect of the properties that I have awarded to the parties. The plaintiff got:

8 Stour Road - 			$220 000

17 Maidenhead Lane			$170 000

Total	$390 000

The defendant got:

10 Tiger close				$150 000

90 Maidenhead Lane			$170 000

Total	$320 000

The difference being $70 000-00, I will compensate for it by making adjustments in the parties’ shares in the property at 17 Duicker Crescent. The property being worth $200 000 it means that each party is entitled to $100 000. From the $100 000 of the plaintiff $70 000 should be taken away and awarded to the defendant. This means that the plaintiff remains with $30 000-00 whilst the defendant gets $170 000-00. In terms of percentages this translates to 15% for the plaintiff and 85% for the defendant. With the defendant getting 85% and the plaintiff getting 15%, I will give the defendant the option to buy out the plaintiff, failure upon which the property can then be sold and the net proceeds shared as per these percentages between the parties.

In respect of the two rural homesteads in Domboshava, I will award to each party a homestead. These were bought by the parties when they got married and they were bought in Domboshava where the plaintiff comes from. They are not situated in Chivhu where the defendant who is the husband hails from. Evidence led by the parties show that the plaintiff’s father and uncle played a major role in the acquisition of these homesteads. It is only fair that the plaintiff retains the homestead which was acquired for her and the defendant retains the homestead that he had acquired for his first wife. Obviously it has sentimental value to him. The argument by the defendant that the two homesteads are of the Warikandwa family and that none can be awarded to the plaintiff as the wife is without substance because he does not hail from Domboshava but from Chivhu. The Warikandwa family is found in Chivhu not in Domboshava. If anything it is the defendant who is a stranger in Domboshava not the plaintiff.  That the properties are a few metres apart and are separated by a road is immaterial. Whether or not the parties will remarry in future is immaterial again. These factors cannot be a bar to awarding each party with one of the two homesteads. The party who will not be able to withstand the heat and the pressure in the event of the other remarrying can always dispose of his or her homestead. Had the marriage between the parties continued, the plaintiff would have kept her homestead which she bought in the rural area of her origin. Her situation is distinguishable from the situation of the wife in Mpofu v Mpofu supra in that in that case the wife who was staying at the rural home in the communal lands committed adultery at the rural home. It was not stated how this home had been acquired. In casu the plaintiff did not commit adultery at the rural home and this home is situated in her place of origin.

In respect of the movable property the evidence led shows that the parties have numerous movable properties in the form of household goods. They also have three motor vehicles. Again the parties could not agree on who should get what property. There are household goods at 8 Stour Road, Vainona in the main house, in the two cottages and in the lock up garage. The goods in the lock up garage were not listed but they are said to include a trailer. There were goods at the veranda which the plaintiff said included a deep freezer and 4 generators which the defendant took away. The plaintiff said she does not know what he did with them. A lot of proposals and counter proposals were made by the parties about who should get what but they failed to agree. The household goods were too numerous for the parties to mention them one by one. They thus resorted to identifying them by simply referring to the rooms containing them, e.g. kitchen, lounge, bedroom, garage, etc.

I will go with the proposal made by the defendant in his closing submissions because the distribution is not only just and equitable but simpler too. Besides, to a certain extent the plaintiff is in agreement with it. Since I have awarded the plaintiff the immovable property at 8 Stour Road, it only makes sense that she gets most of the property at that immovable property in order to maintain the status quo. I will thus award to her all the movable properties in cottage 1 and in the main house except the goods which are in the defendant’s bedroom which I will award to the defendant. To the defendant I will award to him the goods in cottage 2, the veranda and the garage excluding the trailer which he has offered to the plaintiff.

In respect of the movables at the rural homesteads it was said that only one homestead has furniture the other one does not have. I will award to the defendant all the goods there.

The plaintiff said that there are movables at 10 Tiger Close, Borrowdale where the defendant continues to do business but it was not mentioned what property it is. The same applies to the building material that is said to be at the Maidenhead Lane properties in Helensvale. The building material was not listed. The parties did not make proposals of how the property should be shared.  It was even put to the plaintiff during cross examination that the building material is subject of criminal litigation which is still ongoing in the Magistrates’ court. She said that she had not been aware of it.  In view of the foregoing I am unable to distribute the property between the parties.

There are 3 motor vehicles a Nissan 2.0 litre truck, a Toyota Raider 2.4 and a Nissan Hardbody. Again the parties could not agree on which party should get which vehicle or vehicles. Each wants to be awarded two of the three vehicles, the Toyota Raider 2.4 included so that the other party can be awarded the remaining vehicle. The plaintiff wants the Toyota Raider and the Nissan Hardbody which is a non-runner. The defendant wants the Toyota Raider and the Nissan 2.0 litre truck. The values of the 3 motor vehicles were not given. It is therefore difficult to know what would constitute equal distribution of these motor vehicles. It is therefore difficult to distribute these motor vehicles. The parties are just difficult as they fight over every little thing between them. It is not in dispute that the Nissan Hardbody is a non-runner. The evidence by the plaintiff was that initially she was using the Nissan Hardbody but it then broke down 2 years ago and it was not fixed. She said that she had to foot to work while defendant was using the other 2 cars. She said that when the parties attended the pre-trial conference she spoke about the issue to the judge who then asked the defendant to have it fixed for her. Instead of fixing it, the defendant dismantled it by removing its tyres. He instead gave her the Toyota Raider 2.4. It was her evidence that the Nissan Hardbody has not been fixed up to now. However, despite this she said she wants the motor vehicle awarded to her together with the Toyota Raider.

It is my considered view that with the fight the parties are having over the Toyota Raider the party who will be awarded this vehicle should get this vehicle alone. The party who gets the Nissan Hardbody also gets the Nissan 2.0 L truck.  In any case it was suggested during cross examination of the plaintiff that the combined values of the Nissan Hardbody and the Nissan 2.0 L truck are equivalent to the value of the Toyota Raider. That was not disputed. In light of this, I will award to the plaintiff the Toyota Raider since it is the one that she has been using lately having failed to fix the Nissan Hardbody herself. To the defendant I will award the Nissan Hardbody and the Nissan 2.0 L truck. Further there is no point in awarding her the Nissan Hardbody that she failed to fix for 2 years. She even footed to work instead of having it repaired.

Conclusion

In view of the foregoing, it be and is hereby ordered that:

1.	A decree of divorce is granted

2.	The plaintiff is awarded the following movable properties as her sole and exclusive property:

(a)	The movable property in cottage 1 and in the main house except the property in the defendant’s bedroom at 8 Stour Road, Vainona, Harare

(b)	The Toyota Raider 2.4 Registration No. AAW 2852 and the trailer.

3.	The defendant is awarded the following movable properties as his sole and exclusive property:

(a)	The movable property in his bedroom at 8 Stour Road, Vainona, Harare.

(b)	The movable property in cottage 2 at 8 Stour Road, Vainona, Harare.

(c)	The movable property at the rural homestead in Domboshava.

(d)	The Nissan 2.0 L Truck registration No. AAW 0101.

(e)	The Nissan Hardbody 2.7 registration No. AAW 0330.

4.	The plaintiff is awarded the following immovable properties as her sole and exclusive property:

(a)	8 Stour Road, Vainona, Borrowdale, Harare (registered in the name of True Cause Investments Pvt Ltd.)

(b)	Stand 67 Winchendon Township of Lot D of Borrowdale Estate also known as 17 Maidenhead Lane, Helensvale (Deed of Transfer 408/2003 registered in the name of True Cause Enterprises (Private) Ltd.)

5.	The defendant is awarded the following immovable properties as his sole and exclusive property:

(a)	Stand 17371 Harare Township of Salisbury Township Lands situate in the District of Salisbury otherwise known as 10 Tiger Close Borrowdale West, Harare (Deed of Transfer 10576/2001 registered in the name of the defendant).

(b)	Stand 90 Winchendon, Township of Lot D of Borrowdale Estate also known as 90 Maidenhead lane, Helensvale. (Deed of Transfer 6435/2005 registered in the name of True Cause Investments (Private) Ltd )

6          (a)      Both parties shall meet the costs of transfer of the immovable properties held in the names of True Cause Investments (Private) Ltd and True Cause Enterprises (Private) Ltd equally within 6 months of this order or such longer period as the parties may agree.

(b)	True Cause Investments Private Ltd and True Cause Enterprises (Private) Ltd shall sign the transfer documents of the properties in favour of the parties upon the parties paying transfer costs.

(c)	In the event of True Cause Investments (Private) Ltd and True Cause Enterprises (Private) Ltd failing to sign the requisite transfer documents, the Sheriff is directed to sign the documents to effect transfer of ownership of the properties awarded to the plaintiff and the defendant respectively.

7         (a)	The immovable property registered in the plaintiff’s and the defendant’s names known as stand 17284 Harare Township of Salisbury Township Lands in the District of Salisbury otherwise known as 17 Duicker Crescent registered under Deed of Transfer 7609/2002 is hereby distributed by awarding 85% share to the defendant and 15% share to the plaintiff.

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

(c)	In the event that the parties fail to agree on the estate agent, the Registrar shall appoint an estate agent from his or her list to conduct a valuation of the property upon request by either party.

(d)	The estate agent shall submit his or her report to the parties within 30 days of his or her appointment.

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

(f)	The defendant is hereby granted the right to buy out the plaintiff’s 15% share within 6 months of the date of valuation of the property.

(g)	Upon the defendant buying out the plaintiff, the plaintiff shall sign the transfer documents transferring her 15% share to the defendant.

(h)	In the event of the plaintiff failing to sign the transfer documents, the Sheriff is directed to sign the requisite transfer documents.

(i)	In the event of the defendant failing to buy out the plaintiff within the period stipulated in para 6 (f) or such longer period as the parties may agree, the property shall be sold by an estate agent mutually agreed upon by the parties, failing which one shall be appointed for them by the Registrar from his or her list of independent estate agents and the net proceeds shall be shared between the parties as per their percentage shares in para 6 (a) above.

8.	            Each party shall bear its own costs.

Warara and Associates, plaintiff’s legal practitioners

F. G. Gijima and Associates, Defendant’s legal practitioners