Chiedza Maphosa (nee Mawere) v Lipani Doubt Maphosa

### Preamble
1
HH 194-18
HC 1691/17
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CHIEDZA MAPHOSA (NEE MAWERE)

versus

LIPANI DOUBT MAPHOSA

IN THE HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 16 November 2017 and 29 March 2018

Civil Trial

C. Nyengedza, for the plaintiff

TR Mugabe, for the defendant

MWAYERA J: The plaintiff instituted divorce and ancillary relief proceedings. The defendant defended the matter and filed pleadings thereto. The parties failed to settle and their positions remained contested beyond Pre-Trial conference stage. In an attempt to narrow down triable issues the parties with the help of their legal practitioners and the trial judge attended a pre-trial case management conference. This conference came up with an agreement resolving some of the issues and an agreement on issues to be determined at trial.

The parties agreed that their marriage had irretrievably broken down and that love and affection between the parties had been lost. The parties further agreed on how to share their moveable assets. Further the parties agreed to share in equal shares proceeds from the sale of their jointly owned matrimonial home in Richmond Bulawayo. The parties agreed that the defendant would exercise the first right to buy out the plaintiff, within a period of 6 months from the date of the order.

The pre-trial case management came up with common issues for trial as follows;

Whether the defendant should pay the plaintiff the amount of $29 000 or any amount at all being the plaintiff’s share of proceeds from sale of a Kwekwe property: being stand 1324 QueQue Township of stand 277A QueQue Township.

Who should be the custodian parent and what access rights the none custodian parent was to be awarded:

What quantum of maintenance would be appropriate for each of the two minor children.

Whether or not the defendant should be ordered to pay post-divorce spousal maintenance and if so the quantum thereto and;

Who should bear the costs on an ordinary scale.

Thereafter the trial commenced. I must point out at this stage that the trial was protracted because of firstly the acrimony between the parties and secondly, in an undesirable fashion the acrimony between the lawyers. The lawyers displayed hostility. They clearly took the matter personally and this explains why even issues which could have been settled at pre-trial conference were referred to trial and only settled on the date of hearing through pre-trial case management and consultation. Given the need for legal practitioners or counsel not to be overly involved when dealing with emotive matters like a matrimonial dispute, the opening remarks of  the defendant’s closing submissions are worth looking at.

The opening remarks in the defendant’s closing submission cannot escape scrutiny for they clearly confirm my assertion that the lawyers were overly involved and personalised the matter between their respective clients. These are the opening remarks by Mr Mugabe in para 1:1 of defendant’s closing submission.

“The instant matrimonial proceedings are the sorry tale motivated by the plaintiff’s 	unbridled desire to cash in on the marital dividend without regard to the best interests of 	the 	minor children born out of the marriage.”

This statement clearly betrays selfishness on the defendant, and part of his pretence to cover up under the realm of best interest of children. A wholistic approach to the matrimonial dispute on the contrary reveals that the plaintiff endured over years a violent matrimonial relationship. She lived in an abusive relationship and certainly that environment would not be in the best interest of children. The plaintiff’s claim for property jointly owned and acquired during the subsistence of the marriage is nothing out of the ordinary and cannot be described as a cash in. It is clear and settled that in divorce proceeding the courts endeavour as far as it is practically possible to place the parties in positions they would have been in had the marriage subsisted. By claiming what she is rightly entitled to claim one cannot attribute that to desire to cash in or greed on the part of the plaintiff. The defendant equally did not offer to relinquish his share to the matrimonial estate and he ought not to be criticised for that as he rightly has a right to the property.

Despite their long service standing in the legal profession both Mr Nyengedza are Mr Mugabe stalled proceedings by further widening the gap between the couple. An otherwise fairly straight forward matrimonial case was turned into a protracted and argumentative trial         by the style of presentation. The court remonstrated and reminded the lawyers of the “ethical duty triangle” of being duty bound to clients, duly bound to fellow counsel and duty bound to be genuine with the court, as officers of the court.

Turning to the matter, the determination of the matter was anchored on the evidence of the plaintiff and defendant as they are the only witnesses who testified. I also had occasion to meet with the couple’s two juvenile girls. I viewed the meeting was necessary given that both the plaintiff and defendant appeared keen to use the children for their own interests rather than the best interests of the children. I must mention that the children are sweet, well-mannered girls who loved both their parents but exhibited fear of their father. Going by the meeting with the children and their school reports presented in evidence both girls were doing well at school, both in academics and sporting activities.

It was apparent from the evidence of both parties and the marriage certificate tendered that the parties got married in terms of the Marriages Act [Chapter 5:11] on 10 December 2010. It is also not in dispute the couple started off well enjoying good relations as husband and wife and later also as business entrepreneurs. The relations gradually soured culminating in parties obtaining restraining orders against each other and causing arrest of each other. The hostility was even apparent in the manner the parties testified in court and in the manner they fought over their children. The defendant made it difficult or impossible for the plaintiff to have access to the children leading to two orders by the PTC judge and trial judge allowing the plaintiff to have access to the children. Even with court orders and directives access was not easily availed. Such conduct of barring a parent from having access is contrary to the children’s rights as provided for in the Constitution Section 81 (1) (d) is instructive and it states:

“Every child, that is to say every boy and girl under the age of eighteen years, has the 	right to family or parental care or to appropriate care when removed from the family 	environment.”

The plaintiff as deduced from her straight forward testimony left the matrimonial home for safety because of the volatile situations when she would be physically, emotionally and verbally abused by the defendant. Even when she visited to see the children she  would be arrested on allegations of theft or malicious injury to property. The defendant did not refute laying charges against the plaintiff. The defendant actually confirmed he had reported to the police and further made reports to ZIMRA so that the plaintiff would be investigated over their other family business namely Active Sports which went under. It was apparent from the defendant’s testimony that he was determined at all costs to bar the plaintiff from having access to the two juvenile  children.

The court in deciding on custody and access is not guided by the best interest of parents but the best interests of the children are paramount. I must point out that being wealthier and better placed materially is not a primary consideration for one to be awarded custody.

The law is clear that parents have an obligation to provide maintenance for the upkeep of their children. Even the poorer of the two parents can be appointed the custodian parent if the best interests of the children will be catered for by that parent and a maintenance order to cushion the welfare will be put in place. It is settled that the courts consider a broad spectrum in deciding the best interests of a child. I subscribe to the sentiments of the court in Mtengwa v Mtengwa HC 478/09 2010 ZWH HC78 where the court stated as follows;

“In determining what is in the best interest of the child the court must decide which of the 	parents is better able to promote and ensure his physical, moral, emotional and spiritual 	welfare. “

This can be assessed by reference to certain factors or criteria which are set out here under, not in order of importance and also bearing in mind that there is a measure of unavoidable over lapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:-

“a) The love, affection and the emotional ties which exist between the parent and child

and the parent’s compatibility with the child.

The capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires.

The ability of the parent to communicate with the child and the parent’s insight into, understanding of the sensitivity to the child’s feelings.

The capacity and disposition of the parent to give the child the guidance which he requires.

The ability of the parent to provide for the basic physical needs of the child, the so called “creature comforts” such as food, clothing, housing and other material needs generally speaking , the provision of economic security.

The ability of the parent to provide for the educational well-being and security of the child both religious and secular;

The ability of the parent to provide for the child’s emotional, psychological cultural and environmental development.

The mental and physical health and moral fitness of the parent.

The stability or otherwise of the child’s existing environment having regard to the desirability of maintaining the status quo

The desirability or otherwise of keeping siblings together.

The child’s preference if the court is satisfied that in the particular circumstances the child’s preference should be taking into consideration.

The desirability or otherwise of applying the doctrine of same sex matching, particularly herewith a boy of 12 and (Rowan is almost 12) should be placed in custody of his father.

Any other factors which is relevant to the particular case with which the court is concerned.”

See also Chiopofya v Chiopofya  HC 3622/07 [2011] ZWHHC100. Makuni v Makuni 2001 (1) ZLR 189 at 194. Jere v Chitsunge 2003 (1) ZLR  118. MacMall v MacMall 1994 (3) SA 201 and Glante v Glante (3) ZLR. In all these cases cited it was clearly spelt out that in dealing with the question of custody of minor children the court should be guided by the best interests of the children. In Makuni case supra Gowora J (as she then was) made these pertinent remarks;

“In approaching a problem of this nature, the court is of course primarily concerned 	with the welfare of the children that is the paramount consideration. Just as in custody 	cases so also in disputes arising out of custody order, the welfare of the children is the 	predominant consideration which should weigh with the court.”

The principles of law set out above will be considered in coming up with an appropriate decision of who should be the custodian parent in a bid to promote the best interests of the children.

In the present case we are looking at the father and mother of the children who

displayed hostility towards each other even in court. I must mention that the defendant could not hide his temper and hostility towards the plaintiff in court and in chambers even in the presence of the children. The defendant impressed the court as an egocentric extremist.

He made expressions in court and even laughed as if to mock the plaintiff and failed to appreciate seriousness of the matter before the court. The impression created was that he is a dangerous person who needs help for him to come to terms with the reality. His cruelty as envisaged by his refusal to allow the mother of children to have access to the children portrayed his weakness when one considers suitability or otherwise of being a custodian parent. He went to the extreme of taking photos of the children’s shaven heads to display dandruff and showing exaggeration over measles as skin disease showing that the plaintiff was not capable of taking care of the children. The defendant is a shrewd, calculating, cold and manipulative person. He sought in an exaggerated manner to paint himself as a saint but this did not detract the court from a fair assessment of the defendant’s abhorable personality. At every turn his temper would be displayed as he insulted, even by email the plaintiff’s legal counsel and plaintiff’s uncle one Dr Mawere, a neurosurgeon. The defendant’s domineering character could not be hidden when he gave evidence in chief, during cross-examination and even as the plaintiff was testifying. He made gestures which left the court to wonder if he was mentally sound.

The bundle of documents tendered by the defendant in excess of 300 pages to a large extent confirms my observation of a man bent towards ensuring that the mother of the children be denied access and custody of the children at all costs. The twitter “tweets” messages by the plaintiff were not misread by the court as intended by the defendant. If anything the messages confirmed that the plaintiff endured a domestic violence infested marriage so as to ensure the children benefitted from parental care. This volatile situation which exposed her to extreme stress caused her to have panic attacks. The defendant in an uncaring and cruel fashion attached prescription from a Pyschiatrist one Dr E G Poskochinova who prescribed drugs for the plaintiff. It was clear from the uncontroverted evidence of the plaintiff that the defendant just took her to Dr EG Poskochinova and obtained the prescription. There is no evidence placed before the court of a proper psychiatric evaluation which led to such prescription being issued out. The doctor in question was not called to testify. In fact the calculative and wicked nature of the defendant was exposed as he clearly was acting in preparation for an anticipated impending divorce and ancillary issues. The plaintiff fortunately sought counsel before partaking the prescribed medication and that she did not partake the medication was not disputed. In any event the plaintiff did not strike the court as having any mental challenge issues. The condition of panic attack even as deduced from the defendant’s bundle is not a mental handicap or disorder but a stress induced condition which in most cases is resolved by life style changes. The plaintiff by making a bold move to flea from domestic violence infested home found herself in a better condition. She remained a focused mother despite the trauma of the home atmosphere, arrests, and frequent police station visits and court sessions.

As if the court room drama was not enough after I held audience with the minor children in chambers the parties and their legal practitioners were ushered in. The defendant portrayed his wicked and domineering personality when he sought to unnecessarily win the affection of the children as if there was competition in chambers. The purpose of the gathering was simply for the judge to enlist the children’s views. Indeed the interview revealed naturally, the girls missed their mother whom they were not staying with hence the provisional order for access during the trial.

It must be pointed out that the defendant, despite seeking to have custody of the children made it abundantly clear that he relied on a child minder (referred to as auntie) to take care of the girls. The plaintiff on the other hand testified that she was a caring mother who desired to have custody of the children awarded to her as that would be in the best interest of the minor children. The plaintiff testified that she would be better placed to take care of the children given their tender age when they would require the presence of their mother as opposed to a child minder. The older girl Mandisa, born in 2009 would soon be approaching puberty and that goes with hormonal changes and developments which would best be taken care of by the mother. The plaintiff had stayed on in the abusive relationship so as to cushion and protect her children. The plaintiff’s uncontroverted evidence that as a result of living in an abusive relationship she ended up having panic attacks and would suffer and cry was clear testimony of the length to which she was prepared to suffer for her children. Although the defendant sought to use that condition as an advantage for him to be considered a better custodian parent, this court did not lose sight of the fact that a panic attack is not an indication of mental instability. It was triggered by the violence and stress to which the plaintiff was subjected to by her husband who could not hide his dictatorial tendencies even in court, solely because he considered himself the “man of the house”. The plaintiff despite being harassed and subjected to arrest whenever, she attempted to have access of the children did not give up as a mother. She went to see the children at school and was in communication with the teachers.

Having considered the totality of the evidence and having assessed the two parents and children, the following observations are worth highlighting; the defendant is a hot tempered angry man who is violent and has no respect for women and children as evidenced by the contemptuous attitude towards his wife. The defendant sought to use the minor children as a pawn to punish and exact vengeance on his wife for having been bold to move out of the abusive relationship. Such a personality as displayed by the defendant would not only be dangerous but harmful to the development and day to day upbringing of juvenile female children of tender ages. The law is clear when dealing with matters concerning children. The child’s best interests are paramount. Section 81 (2) and (3) of the Constitution is instructive.

On the other hand the plaintiff impressed the court as a mother eager and willing to raise her children well. Before being driven out of the home by violence she would carry out school runs, do home work with the girls and attend school activities for the children. She even made efforts after having fled from the violent relationship to get access to the children. The plaintiff impressed the court as an emotional mother who endured hardship to sustain a marriage. She portrayed herself as a mother who is ready and willing to play the roll in raising her female children. In stark contrast to the defendant she did not seek to bar the defendant from having access to the children. The plaintiff‘s evidence was well balanced and she did not seek to exaggerate or be extreme about the proprietress of her being better placed as a custodian parent. The defendant on the other hand seemed to labour erroneously under the impression that if he was to remain in the matrimonial home then he would automatically be the custodian parent. I must mention that the matrimonial home is jointly owned and even if it was not, in divorce proceedings such as these, the court endeavours to ensure that the spouse and children are placed in positions they would have been in had the marriage subsisted. There is no room for extremism and vengeance. In this case there is no justification in separating the 2 girls from their mother. The girls are of tender age and they require guidance and upbringing which is well balanced to cater for their psychological and cultural development. To award custody to the defendant so that the children can be taken care of by a childminder and deprive the natural mother who is for all intents and purpose suitable and available as the best caregiver would not only be unjust but not in the best interest of the children. There is nothing militating against the plaintiff being awarded custody of the two female young children. The children are entitled to parental care and although the defendant is viewed as a man requiring anger management sessions there is nothing warranting his deprivation of reasonable access to children and this will be awarded to the defendant. Note should however, be taken that since for almost a year the defendant had the children all to himself his access rights during school holidays will only commence in August 2018.

The law places an obligation on parents to wholistically take care of the welfare of their children. The parties seemed to have no arguments as regards the obligation to maintain the children. The issue that falls for determination is what would amount to reasonable maintenance given the income at the disposal of the responsible persons and the needs of the children. It is common cause the couple owns a business run by the defendant fairly well and generating income on which the couple sustains the family. It is also not in dispute the business generates profit. The only argument was on amount of turn over. However, going by the defendant’s testimony and having assessed the financial statements tendered as exh 2, the defendant’s bundle, one can easily deduce that the couple’s lifestyle is of fairly high standards. Further, going by the monthly household expenses outlined by the defendant one can easily assess reasonable maintenance for the dependants.

At the time of hearing the children were at a private school and no evidence was placed before the court to show that the financial situation of the parents was such that the children cannot continue learning at a private school. However, given the agreement of the parties that the defendant is retaining the matrimonial house and buying out the plaintiff who has made it clear she will reside in Harare, it is in the best interest of the children that they move to a private school of similar standards in Harare. I am alive to the disruption that goes with change of school but in this case given the custodian parent is based in Harare it will be inevitable that the children move. To minimise the effects of disruption, a private school of the same standards has to be secured for the children upon transfer. The defendant and the plaintiff’s life style as deduced from the evidence cannot be of low class and as such in the spirit of trying to maintain the parties as far as it is practically possible, in the same position had the marriage continued there is need for the defendant to be ordered to pay all school fees and educational expenses at the private school of same ranking as Whitestone School Bulawayo. The school fees and educational expenses ought to be paid at a private school in Harare, where the children will have enrolled for the 2nd term of 2018. It is worth noting that the defendant conceded he is also to pay maintenance for the upkeep of the children.

The plaintiff is a young able bodied lady capable of taking care of her children and self, as such I find no reason why she should be awarded holiday allowance and perpetual maintenance. She can also contribute towards clothing for the children to beef up the maintenance from the defendant. It is appreciated that the plaintiff at the time of hearing was not employed but she is a professional woman. She has been trying to secure a job and has attended interviews. She claimed post-divorce maintenance at the rate of $1000 per month for a period of 6 months. This maintenance in my view would fall under the umbrella of the rehabilitative maintenance which would enable the plaintiff to adjust and set herself up so as to sustain herself and also contribute towards the upkeep of the couple’s children.

It is settled that with the emergence of working class women and the notion of equality courts should not grant post-divorce spousal maintenance for the mere asking see Chiomba v Chiomba 1992 (2) ZLR 198 Manyarara JA stated:

“..Today courts are no longer prepared to award maintenance to a young woman who has been working before marriage, and can be expected again after divorce at least if there are no young children of the marriage …. middle aged women, who have for years devoted themselves to full time to marriages  are awarded “rehabilitative maintenance” for a period sufficient to enable them to be trained or retained for job or profession.

Permanent maintenance is a reserve for the elderly wife who has been married to the

husband for a long time and is too old to earn a living and unlikely to remarry.”

I subscribe to the sentiments of the Honourable Judge in that case. See also Kangai v Kangai  (HC 211/02) [2007] ZWHH C51.

Applying the same reasoning to the facts of this case, it is worth noting that there are young children in the present case. The plaintiff, the mother of children is a young professional woman. She does not qualify for permanent maintenance. However, she qualifies for a provisional maintenance order, because she is going to be bought out of the matrimonial home yet she will be having custody of the minor children. The parties have agreed that the defendant will buy her out within a period of 6 months from the date of the order. The plaintiff and the children will require accommodation during that period. Pending the receipt of what is rightful due to her there is therefore need for bridging finance to cater for accommodation and utility bills.

It is expected that the plaintiff will secure employment given her age and that no perpetual maintenance from the defendant will be justified. Going by the type of accommodation and life style the couple and children were accustomed to and bearing in mind the need to minimise disruptions brought about by divorce maintenance to cater for accommodation and utility bills in region of $1000 per month for a period of 6 months from the date of order is viewed as appropriate.

The parties entered into a pre-trial agreement on how to share their movable property and also agreed on sharing the matrimonial house at the rate of 50% each. Evidence was adduced in respect of the couple’s jointly owned Kwekwe immovable property. The property was disposed of and after deduction of legal fees, capital gains tax and rates clearance the net proceeds were locked up in a safe. The parties’ relations had already started to deteriorate and the situation culminated in the plaintiff moving out. The net proceeds of roughly $55000-00 of a property jointly owned by the parties are still to be shared equally. The plaintiff claimed the half share as per email communication between the parties. The defendant pointed out that he was living on the proceeds email p 145 plaintiff’s document para 2.3:

“as time passes, we are living on those as we are both unemployed wonder which court will see it differently “There is no doubt that the plaintiff and defendant are co-owners of the property just like the arrangement pertaining to the matrimonial house.”

The division of assets consequence to a divorce is governed by s 7 of the Matrimonial

Causes Act [Chapter 5:13]. Section 7 (1) reads:

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

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

Of interest in s 7, are the guidelines the court should consider in deciding on sharing

division and apportionment of property is the use of words “assets of spouses as opposed to matrimonial property.

The court has a wide discretion regarding division of property. In Gonye v Gonye ZLR 2009 (1) 232 Malaba JA (as he then was) remarked on the leeway the court had in the exercise of discretion regarding the granting of an order for division of property. The underlying principle being that, the court has to as far as practically possible come up with the fairest possible settlement where each of the spouses is, as far as practically possible, is placed in a position where they would have been had the marriage subsisted. See also Shenje v Shenje 2001 (2) ZLR 16 and Usayi v Usayi 2003 (1) ZLR 684. The bottom line in considering the wide spectrum of considerations on distribution of property includes direct and indirect contributions, protection of spouses, equality of rights and as far as possible a just and fair distribution.

The parties were married for more than 8 years and both contributed immensely as husband and wife, father and mother of children and business partners. From the totality of the evidence there is no basis of coming up with a distribution plan which will occasion hardship on either of the spouses. A fair, just and equitable distribution is called for in this case. The couple had a business which sustained their livelihood. The disposal of the Kwekwe property was by agreement but use of proceeds was by the defendant without the consent of the plaintiff. It is not practical that all proceeds to the sum of $55 000 were for household upkeep only over the period of 1 year when the plaintiff moved out of the house for safety. Going by the bundle of documents tendered as exhibits the couple’s business was not doing badly such that income for daily household upkeep was available. The defendant did not proffer any satisfactory explanation why the plaintiff’s half share of the Kwekwe property was not disbursed to her given the propriety ownership structure of the couple in the property in question. The plaintiff is entitled to half share the net proceeds of the Kwekwe property which she jointly owned with the defendant. In the same manner that the parties who are joint owners of the matrimonial home have agreed to share 50% each, I find no reason why the Kwekwe property should not be shared in equal proportions. Given the property was co-owned and that the proceeds were expended by the defendant without the consent of the plaintiff a co-owner, leaving the loss to lie were it falls would in my view amount to violation of proprietary rights of the plaintiff. It would further lead to an absurdity where one spouse would be enriched to the detriment of the other. In dealing with the issue of division, apportionment and sharing of property it is important for the court in exercise of its discretion, to look at the wide spectrum of factors which fall for consideration cumulatively and not individually as that would bring about an injustice and unnecessary hardship and inconvenience to the parties and children.

As regards costs the parties agreed on the scale but argued over who should bear the costs. It is settled the issue of costs is in the discretion of the court. In the present case given the circumstances of the parties and the nature of the matter before the court the following observations are worth noting on determination of who should bear the costs. Spouses owe each other duty of support and care as provided for by the legislature and by the Constitution. Further given litigation contribution is provided for by the rules of this court there is nothing militating against an award of costs on the affording spouse. Order 35 r 274 (1) of the High Court Rules 1971 acknowledges the obligation on the affording spouse. The learned author Hahlo in his book the South African Law of Husband and Wife 4th ed at p 520 confirmed the obligation of the spouse with means to assist on costs. He remarked as follows:

“Where the husband is a rich man, the wife is not obliged to realise her possessions in order to finance her action and is entitled to litigate upon a scale commensurate with the means of the husband.”

See Borass v Borass 1978 RLR 384 and also Botes v Botes 1909 (3) SA 169.

In casu the plaintiff and defendant are husband and wife pursuing divorce and ancillary issues thereto, to be resolved. The defendant is able to contribute and provide costs given his earning from the company Maphosa projects. The plaintiff on the other hand was rendered unemployed as she moved out of the matrimonial home due to abuse and acrimony. The engagement of counsel to deal with the matrimonial matter was necessary. The defendant as the spouse with means is accordingly to bear the costs in fulfilment of the obligation and duty of care clearly provided by the law.

Having considered the totality of the evidence and the length of the marriage, the contributions and earning capacities of the parties, the ages of the parties, the physical and mental condition of the parties, the future needs of the parties, children and the concessions agreed to by the parties. It is ordered that:-

A decree of divorce be and is hereby granted.

The plaintiff be and is hereby awarded sole custody of the two minor children namely Mandisa Taboka Maphosa, born on 17th April 2009 and Bokani Nozipho Maphosa born on 21st January 2012.

The defendant be and is hereby awarded the right to reasonable access to the minor children by arrangement of the parties for 2 weeks of every school holiday and every alternate exit weekend during the school term, commencing August 2018.

The defendant is to provide transport to and from Harare for the two children in order for him to have access specified in para 3.

The defendant shall pay maintenance for the two minor children as follows

The defendant shall pay all school fees and educational needs of the children at a private school of similar or equivalent standing to Whitestone School Bulawayo, which school the children are to be transferred to commencing 2nd term 2018.

The defendant shall pay all medical expenses for the minor children namely Mandisa Taboka Maphosa and Bokani Nozipho Maphosa.

The defendant shall contribute a total of $1 000 monthly maintenance being $500 for Mandisa Taboka Maphosa and $500 for Bokani Nozipho Maphosa. The maintenance contribution shall be deposited into the plaintiff’s bank account to be supplied to the defendant through his legal practitioner of record, on the date of the order. Maintenance to be paid on the last day of the month in which the order is issued and thereafter on the last working day of every subsequent month.

The maintenance is to be paid till the children attain their first tertiary degree or become self sustaining whichever occurs earlier.

The defendant shall pay $1 000 monthly maintenance as contribution for accommodation and utility bills to the plaintiff, for a period of 6 months from the date of the order commencing on the last day of the month in which the order is issued and thereafter on the last day of the subsequent months. The maintenance contribution is to be deposited into the account given in para 5 (iii).

i) The defendant shall be awarded all movable assets outlined on property schedule CM 2 being;

1 x recliner sofa

1 x 32” LG TV

1 x HD PVR Decoder

2 x ¾ beds new

1 x Double bed (black)

1 x Russel Hobbs Desk Fan

2 x ¾ Duvet Bed Inners move with custody

1 x Russel Hobbs Iron

1 x Russel Hobbs new and boxed cutlery set

2 x kids bikes (new) – custody

2 x kids bicycles (old)

1 x sewing machine

1 x old sofa set

1 x 32” Panasonic TV + 21” Panasonic

1 x Panasonic radio set

1 x leather sofa set (excluding 1 recliner)

1 x 40” TV

1 x HD PVR Decoder

1 Grey TV stand (old)

1 x Adam Bede Bedroom Suit

3 x ¾ Beds (new)

1 x ¾ bed (old)

1 x King size bed

1 x double bed

2 x water makers

1 x Nikon binoculars

1 x Adam Bede coffee  table

1x office desk

1 x office display cabinet

1 x Samsung fridge

1 x 4 plate stove

1 x ruseel hobbs toaster

1 x ruseel hobbs sandwich maker

1 x russel hobbs boiler

2 x sunbeam desk fans

1 x hp colour printer

1 x heater

1 x lawn mower

1 x hp laptop (personal to L.D Maphosa)

3 x queen size bedding sets

2 x ¾ bed duvet inners

2 x ¾ bedding sets

Other bedding linen

1 x Polo duffle bag

1 x Samsonite travelling suitcases (brown)

2 x centre carpets

1 x Russel Hobbs iron

1 x ADIS plastic laundry basket

2 x Russel Hobbs cutlery set (everyday home use)

2 x dinner sets (everyday home use)

1 x set curtains

1 x lawn mover

1 x wheelbarrow

Garden tools

1 x cape union big camping bag

7ii) The plaintiff shall be awarded all movable assets outlined on property schedule CM1 being;

1  x black TV stand

1 x Old Coffee Tab1le Set (grey and black)

1 x D 400 Nikon Camera

1 x Defy Washing Machine

1 x Microwave Defy

1 x Heater

1 x Laptop (Personal Chiedza)

1 x Queen Size Bedding Set

1 x Queen Size Duvet Inner

1 x American Tourister Duffle Bag

1 x Samsonite Duffle Bag

1 x Samsonite Travelling Suitcase

2 x Aids Plastic Laundry Baskets

1 x Fonting Cutlery Set and Knives Set (boxed new)

1 x Dinner set (everyday home use

1 x Russel Hobbs Pot Sets (boxed and new)

1 x Curtain set

The defendant shall be awarded 50% share of the market value of no. 20 Victoria Falls Road, Richmond, Bulawayo property and the defendant is further granted the option to buy out the plaintiff’s 50% share within a period of 6 months of the date of the order.

In the event that the defendant fails to buy out the plaintiff’s 50% share within the prescribed 6 months the property shall be sold to the best advantage and the net proceeds thereof shared at the ratio of 50% each between the parties.

9a) In the event that the defendant fails to buy out the plaintiff’s share within the prescribed time the defendant and or plaintiff shall sign all documents to facilitate sale and transfer of the property 20 Victoria Falls Road, Richmond, Bulawayo within 14 days of expiration of the buyout period.

9b) In the event that the defendant or plaintiff fails to sign the documents to facilitate sale and transfer within 14 days of request the Sheriff of the High Court is hereby directed and authorised to sign all documents to facilitate the sale and transfer of the property 20 Victoria Falls Road, Richmond, Bulawayo.

9c) The evaluation of the property shall be effected by an evaluator to be appointed by the Registrar of the High Court within a period of 14 days upon request by either of the parties.

9d) The evaluation costs shall be borne by both parties in equal proportion.

i) The plaintiff shall be paid $27 523.50 by the defendant being the half share proceeds from the sale of the Kwekwe property namely stand 1324 Que Que Township of stand 277A QueQue Township which shall be deposited into the plaintiff’s account provided in 5 (iii).

ii) The payment shall be effected within a period of 6 months from the date of the order failing which the amount shall be deducted from the defendant’s share of proceeds from no. 20 Victoria Falls Road, Richmond Bulawayo and in either case be deposited in the stated account of the plaintiff.

The defendant shall bear the costs of the suit.

Scanlen & Holderness, plaintiff’s legal practitioners

Nyakutombwa Mugabe Legal Counsel, defendant’s legal practitioners