Kundai Josephine Masenda (nee Gombe) v Admire Murambiwa Masenda

### Preamble
1
HH 553-18
HC 10933/16
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KUNDAI JOSEPHINE MASENDA (NEE GOMBE)

versus

ADMIRE MURAMBIWA MASENDA

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 25 & 26 June 2018 and 20 September 2018

Civil Trial

Ms F. Chinwawadzimba, for the plaintiff

T. Zhuwarara, for the defendant

MUREMBA J: The parties having agreed that their marriage has irretrievably broken down to the extent that it can longer be restored to a normal marriage signed a consent paper on 3 July 2017 wherein they agreed on the apportionment of the parties’ movable assets and the issue of the welfare of their major child Shingai Tariro Masenda who is still at university doing his masters degree. The parties could not agree on what immovable property constitutes their matrimonial estate and how it should be shared. Resultantly, 2 issues were referred to trial:

What immovable property forms part of the matrimonial estate?

How should the immovable property in the matrimonial estate be divided?

The plaintiff was the sole witness for her case whilst the defendant led evidence for

his case and also led evidence from his young brother King Darlington Farai Masenda. The parties were married in terms of the Marriage Act [Chapter 5:11] on 30 October 1993, almost 25 years ago. The parties were blessed with two sons, but unfortunately their first born son passed on. The remaining one is Shingai Tariro Masenda.

I now turn to deal with the contested issues.

What immovable property forms part of the matrimonial estate?

In terms of s 7 (1) of the Matrimonial Causes Act [Chapter 5:13] which is the provision which deals with the division, apportionment or distribution of property between spouses upon divorce, what the court distributes are the “assets of the spouses” and not “matrimonial property”. The provision reads:

“7 Division of assets and maintenance orders

(1) 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.”

In Gonye v Gonye 2009 (1) ZLR 232 (S) it was held that:

“The terms used are the ‘assets of the spouses’ and not ‘matrimonial property’. It is important to bear in mind the concept used because the adoption of the concept ‘matrimonial property’ often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are on separation should be excluded from the division, apportionment or distribution exercise. The concept ‘the assets of the spouses’ is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets (my emphasis).

The above cited authorities thus make it clear that the assets to be considered for

division, apportionment or distribution are the assets of the spouse as at the time of the dissolution of the marriage. Such assets may have been acquired by either spouse in his or her name or jointly. The assets may have been acquired before the marriage, during the marriage or after separation of the parties. The only assets or properties that are excluded from division, apportionment or distribution are assets covered in s 7(3) of the Matrimonial Causes Act. These are assets acquired by a spouse:

(a)	by way of 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.

In casu from the evidence that was led by both parties it is common case that the

following property forms the assets of the parties.

Stand No. 195 Northwood Township of Sumben situate in the district of Salisbury being the Mount Pleasant property measuring 4074 square metres. The property was acquired during the subsistence of the marriage and is jointly owned by the parties as it is registered in both their names under Deed of transfer No. 1739/02 dated 5 March 2002.

An undivided 6.1% share being share No. 2 in a certain piece of land situate in the district of Salisbury called Sunny Grove of Lot 35 Newlands Township measuring 3998 square metres, Newlands Harare which is held by Solenex Investments (Private) Limited under Deed of Transfer No. 12140/99 dated 2 December 1999. The parties each hold 50% of the shareholding in Sonelex Investments (Private) Limited. This property is referred to as the Newlands property.

An undivided ½ share in stand 166 Midlands Township 2 of Upper Waterfalls Estate situate in the district of Salisbury measuring 4183 square metres otherwise known as 166 Bruce Road, Waterfalls held by the defendant under Deed of Transfer 4101/12 dated 13 September 2012. The title deed reveals that the defendant is a registered owner of a half share in the property. The other half share is owned by the defendant’s brother, King Darlington Farai Masenda. The two brothers got title to this property in 2012 during the subsistence of the parties’ marriage which was solemnised in 1993. This property is referred to as the Waterfalls property.

The farm at Dowa constituted of 2 pieces of land situate in the district of Makoni called Dowa 39 measuring 91.3560 hectares and Dowa 151 measuring 43,4606 hectares held by the defendant under Deed of transfer No. 12761/02 dated 27 November 2002. The farm is registered in the name of the defendant alone.

How should the immovable property be distributed?

In giving an order for division, apportionment or distribution the court exercises an extremely wide discretion in terms of s 7 (1) of the Matrimonial Causes Act which provides that the court in sharing the property may make an order that any asset be transferred from one spouse to the other.

The wide discretion given to the court is meant to ensure that it makes a fair and equitable distribution of the assets between the parties.  However, the discretion is exercised judiciously taking into account all the circumstances of the case which include the circumstances listed in s 7 (4) of the Matrimonial Causes Act. This list is not exhaustive. In Takafuma v Takafuma 1994 (2) ZLR 103 (SC) it was held that;

“In dividing up the assets the court must not simply lump all property together and then divide it up in as fair a way as possible. The correct approach is first to sort out the property into three lots, which may be termed "his", "hers" and "theirs". Then the court should concentrate on the lot marked "theirs". It must apportion this lot using the criteria set out in s 7(1) of the Matrimonial Causes Act 33 of 1985. It must then allocate to the husband the items marked "his", plus an appropriate share of the items marked "theirs". It must then go through the same process in relation to the wife. Having completed this exercise, the court must finally look at the overall result and again, applying the criteria set out in s 7(1) of the Act, consider whether the objective has been achieved of placing the parties in the position they would have been in had the marriage continued, insofar as this is reasonably practicable and just, having regard to the conduct of the spouses.”

In casu the starting point is that the plaintiff does not make any claim to the

Waterfalls property and the farm at Dowa which properties are both registered in the names of the defendant. It was her evidence that the properties were acquired by the defendant without her financial contribution whatsoever. She said that since the defendant will be awarded these 2 properties she should be awarded the Mount Pleasant property. In her declaration she said that the Newlands property which is registered in the name of the company should be sold and the net proceeds be applied towards discharging the indebtedness to CABS under Mortgage Bond 6078/2010 and Collateral Bond 6079/2010 to enable the bonds to be cancelled. She further averred that if the amount realised is insufficient then the defendant shall pay an amount sufficient to have the bonds cancelled. If the amount realised is more than required then the balance should be applied towards the tuition fees for Shingai Tariro, their son.

However, during trial when the plaintiff testified her position with regards to the property had changed. She now wanted it to be awarded to the defendant subject to certain conditions. The property is held in a shelf company called Sonelex Investments (Pvt) Ltd. It holds the title deeds to the property. The property was acquired in 2010 through mortgage bonds from CABS. The parties did not have the 25% deposit that CABS required, so a collateral mortgage bond was registered over the Mt Pleasant property to cover the 25% deposit. She said that both bonds, the mortgage bond and the collateral bond have not yet been cleared. As of October 2017 when she made enquiries with CABS the mortgage bonds stood at $186 000-00. Her evidence was that the repayment of the mortgage bonds had been erratic because of various reasons, but she believed that so far the parties had paid equal amounts towards the repayment of the mortgage bonds. She stated that over and above getting the Mt Pleasant property she proposes to offset or pay off the collateral mortgage bond amount in order to cancel the mortgage bond registered on the Mt Pleasant property, which amount will be 25% of the outstanding debt. She said that she will thus leave 75% of the debt to be repaid by the defendant who should be awarded this property.

It was the plaintiff’s evidence that the Mt Pleasant property is of sentimental value to her because she invested financially into it in that she is the one who with the help of her family raised the 25% deposit in the sum of 800 pounds in 2002 which the sellers needed. CABS provided a mortgage bond of 25 years over the property. The purchase price was ZW$12.5 million and because of hyperinflation the defendant was able to repay the mortgage bond in just 8 years instead of 25 years. The plaintiff said that apart from contributing the 800 pounds deposit she fully furnished the property and did the interior decoration, curtaining, landscaping the garden, bought the water tank, when the borehole breaks down she contributes 50% of the repairs and she has replaced the motor of the gate on the few times it has been stolen. She said that she also did some renovations to the house and modernised the kitchen. She went to South Africa and bought the hob, the oven and the tiles. She said that she also renovated the bathrooms, renewed the tiles and sanitary ware. She produced documentary proof in the form of receipts mainly.  She said that the money she spent on the decorations and renovations was much more than what the defendant spent in repaying the mortgage bond because the amount of the mortgage bond was significantly reduced due to hyperinflation. She said that when she was renovating this house the defendant was renovating the houses at the farm, building a dam and buying a water tank at the farm. She said that the defendant would buy groceries at home, pay school fees for the children and pay the utility bills. She said that over and above what she was doing at home, she was also running the home and taking care of the defendant and the boys and ensuring that everything was in order.

The plaintiff further said that the Mount Pleasant home is of sentimental value to her because this is where her sons grew up, where her late son was born and where her son who is at university still comes home to. This is where he used to share a bedroom with his late brother and up to today the bedroom is still as it was before he died. The plaintiff said that it is fair for the defendant to get the Newlands property because he will end up with three properties including the farm and the Waterfalls property. It was the plaintiff’s evidence that the defendant bought the farm at an auction in 2002 after the then owner Ronnie Masenda, the defendant’s uncle had failed to settle a debt he owed to UDC Limited. The plaintiff said that whilst she made no financial contribution to its acquisition she would help give moral support to the defendant who was running the farm. He has a piggery project, a few herd of cattle and grows tobacco.

The plaintiff further said that the Waterfalls home belonged to the defendant’s maternal grandfather Mr Nyandoro. Mr Nyandoro owed his son-in-law one Vernon Mwamuka some money. The defendant and his brother King Darlington Masenda paid the debt on his behalf to Vernon Mwamuka. In return the grandfather said that the 2 brothers would have his house. However, no transfer was made during his life time. When Mr Nyandoro passed on the house became part of his estate. The transfer was subsequently made from his estate to the defendant and his brother. The plaintiff said that this information was common knowledge in the family and people used to talk about it. She said that the defendant’s brother stays at this property. The plaintiff said that she made no financial contribution towards the acquisition of this property. The plaintiff said that she has no other property which is in her name except the Mount Pleasant property.

During cross examination the plaintiff admitted that with regards to the Newlands Property both herself and the defendant are sureties for the full debt of the mortgage bonds to CABS. She said that despite this, she wants this court to order that she pays 25% of the debt which constitutes the collateral bond and the defendant awarded the property and pay 75% of the mortgage bond. She said that once she pays the 25% of the outstanding debt CABS will release the title deeds to the Mt Pleasant property. She said that she had been advised so by CABS.

The defendant’s evidence was to the following effect. For the Mount Pleasant property the deposit that was required was 10 000 pounds and the two of them had 4 500 pounds, 2 500 pounds was loaned to them by the plaintiff’s mother, another 2 500 pounds was loaned to them by a friend John Musabayana and the balance was given to them as a gift by a cousin, Gift Adam Malaya. The problem is that all this was never put to the plaintiff during cross examination despite the fact that she had said that the deposit was 800 pounds and that she is the one who raised it without the assistance of the defendant. The defendant confirmed that he is the one who paid off the rest of the mortgage bond during the time of hyperinflation, but he disputed that he paid less because of hyperinflation. He said that the bank adjusted the repayments to ensure that it got full value for the mortgage bond. He confirmed that the plaintiff did renovations to the house but was unable to put a value to her contribution since she would also ask him for money. It was his evidence that he must have paid 70% towards the purchase of the property. He however said that the property is jointly owned by the parties equally with each party holding 50% shares.

In respect of this property, both the plaintiff and the defendant directly contributed financially towards the purchase and the renovation of the property. Both were employed. Each one believes they contributed more than the other party but none of them was able to quantify these contributions. It is thus a case where this court is unable to say who between the two contributed more than the other because the parties did not make this clear. In a case where the contributions of the parties are not clear, the assumption is that they contributed equally. See Nyoni v Nyoni HB 74-90. In the present matter I will also make the assumption that the parties contributed equally.

In respect of the Newlands property the defendant’s evidence was not different from the plaintiff’s in terms of how it was acquired. Just like what the plaintiff said, the defendant said that they have struggled to repay the mortgage bond to CABS as the principal payment structure is through leasing the property out and channelling the rentals towards repayment of the mortgage bond. There are periods in which the property has not had tenants and there are periods rentals collected from the property have been diverted to some other use. He said that as at December 2017 the debt stood at $189 000-00. He said that because of the interest charges the debt continues to go up. He said that for the debt to return to normal $68 000-00 should be paid. The bond is in arrears of $68 000-00. He said that both of them are responsible for the repayment of mortgage bond debt jointly and severally, the one paying, the other to be absolved. He said that they are both sureties on this debt.

About the farm the defendant said that this is a Masenda family property which is passed down the Masenda family. He said that it was acquired in 1957 by his paternal grandfather Masenda John Nyakuromba. This is indeed reflected on the title deed. The defendant said that when his grandfather passed on in 1986, his eldest surviving son Ronnie Jonah Masenda inherited it from him and got title to it. The title deed reflects so. The defendant said that Ronnie Jonah Masenda used this farm as security in some financial dealings with UDC Limited. When he failed to pay the debt, the farm was put up for sale by the Sheriff. The defendant said that the family came together and agreed to put resources together to rescue the farm. One William Chikumbu Masenda, a family member is the one who went to Mutare and participated at the auction as the buyer. After that the family sat down again and agreed that the defendant be the custodian of the farm on behalf of the family. He said that the farm is held as a family property for all of the Masenda family. He said that there are 16 graves including that of his grandmother who passed on in 2016. He vehemently denied that the farm forms part of the matrimonial estate. He said that he was not the only one who contributed towards the rescuing of the farm. With regards to distribution, the defendant said that the farm is not matrimonial property between him and the plaintiff. He said when he passes on the farm will be passed on to another Masenda male family member as a cultural practice. He said that in light of this he is only holding it on behalf of the Masenda family.

About the Waterfalls property, the defendant said that he and his brother inherited it from their maternal grandfather when he passed on. He said that his parents had divorced in 1980 and his maternal grandfather Elijah Nyandoro bought this property for his daughter (the defendant’s mother) to stay with her children. At the time of the grandfather’s death it was his wish that the property be passed on to him and his brother Darlington. This is where they grew up until they got married and left home. The defendant said up to this day, this is where his mother still stays. He said that although the Waterfalls property is an inheritance for him and his brother, in reality it is his mother’s house since she resides there and has always resided since her divorce in 1980. He said that no decision can be taken on it without her consent or approval. Under cross examination the defendant admitted that his maternal grandfather owed his son-in-law Vernon Mwamuka $6500-00 which the defendant and his brother paid off but this was not the value of the property. He said that they did not pay any consideration for the property.

The defendant said that the distribution of the assets between him and the plaintiff should be confined to the Mt Pleasant property and the Newlands property. In his plea the defendant had proposed that he be awarded the Mount Pleasant property with the plaintiff being awarded the defendant’s 50% shareholding in Sonelex Investments (Pvt) Ltd such that she becomes the sole shareholder of the company. He had proposed that thereafter both the company and the Mt Pleasant property be valued and the parties apportion responsibility for settlement of the CABS Mortgage Bond over the Newlands property between themselves such that the net value of the company and the Mt Pleasant is equal. However, when he testified he said that they should buy each other out, failure upon which the properties should be sold and the CABS mortgage bond be paid off. Thereafter the residue should be shared  equally between the parties. He said that this should be so because their indebtedness to CABS is jointly and several in respect of the full sum. He said that should CABS not be able to recover its money it will sell the Mount Pleasant property. He said that the cleanest break will be to sell the two properties and pay off the CABS debt. He said that the plaintiff’s suggestion that she be awarded the Mt Pleasant property and ordered to pay 25% of the Newlands property debt will leave the bulk of the debt sitting on him when in fact he is a 50% shareholder of the Mt Pleasant property and should be entitled to it. He said that he does not have the capacity to pay off 75% of the debt. He said that he is unable to pay a loan of more than $150 000.00. He said he will be turning 56 years old in September of this year and expects to retire at 65 yet there are no retirement plans in place at the moment. He said that the organisation he works for ACVAZ has not paid him a salary since April 2017 because it relies on donor funding. He said that he survives on the board fees he gets from sitting on various boards. However, there are no magnificent board fees.

King Darlington Farai Masenda the defendant’s young brother testified for the defendant in respect of the farm and the Waterfalls property. His evidence was similar to that of the defendant in respect of how these properties were acquired and registered in the name of the defendant. He said that the farm belongs to the Masenda family and does not constitute the plaintiff and defendant’s matrimonial property. He said that he also contributed towards its purchase at the auction but he does not regard it as his matrimonial property. He said that after William Masenda had bought the farm at the auction, the family members were not happy with how he was running it so they agreed that it be registered in the name of the defendant.

Analysis

It is common cause that the title deed to the farm is in the name of the defendant. Registration of title is proof of ownership in an immovable property. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) at 105-106 A it was held that;

“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 right" in s 2 of the Act. The real right of ownership, or jus in re propria, is "the sum total of all the possible rights in a thing" - see Wille's Principles of South African Law 8 ed p 255.”

In casu the title deed further shows that the property was transferred to the defendant after a sale in execution by the Sheriff. Despite this, the defendant insisted that this is property that he holds on behalf of the Masenda family. His brother King Darlington Farai Masenda confirmed the story. However, to strengthen his case the defendant ought to have adduced documentary evidence. An agreement of sale could have sufficed. He could also have led evidence from William Masenda who is said to have participated in the auction on behalf of the family. No auction documents were placed before the court to show that it is William Masenda who participated in the auction. No evidence was placed before the court to show how the Sheriff registered title in the name of the defendant when the buyer at the auction had been William Masenda. The defendant ought to have gone a step further to prove that he did not buy the farm for himself. However, despite the failure by the defendant to adduce this evidence his viva voce evidence and that of his brother convinced this court that there was some story behind the acquisition of the farm. They corroborated each other in all material respects. I do not believe that they connived to mislead the court. Apart from the mere fact that the farm is registered in the name of the defendant, the plaintiff had no evidence to controvert the defendant’s story. She did not say under what circumstances the defendant bought the farm at the auction, whether it was him who participated at the auction or not and whether or not he had single handedly raised the money to buy the farm at the auction. On a balance of probabilities the story which underlies the purchase of the farm at the auction cannot be said to be false. There is no law which requires property held on behalf of the family to be held under a Family Trust. The history of the farm as shown on the title deeds shows that it had always been held under the name of one of the male members of the Masenda family. As such the story that the family then came together to save it when it was about to be lost through a judicial sale sounds plausible. It further appeared to the court that the defendant actually had documents to corroborate his story, but it is his legal representatives who did not do a good job in presenting his case in court. I say this because it was only after the defendant’s brother had testified that Mr Zhuwarara indicated that he intended to apply to produce the relevant documents by way of a chamber application. Ms Chinwawadzimba for the plaintiff said that the plaintiff would oppose that application because she would not be able to confirm these documents. Mr Zhuwarara then indicated that in light of the opposition the defendant was abandoning the intended application.  I am puzzled that the defendant’s counsel only came to the realisation that these documents needed to be produced only after the defence witnesses had finished giving their evidence yet it was so obvious even before trial commenced.  Be that as it may, I am satisfied that the defendant is holding the farm on behalf of the Masenda family.

About the Waterfalls property, the title deed states that the two brothers were awarded this property as beneficiaries in terms of the Deceased Estates Succession Act [Chapter 6:02].  The defendant and his brother said that they inherited the property from their maternal grandfather contrary to the plaintiff’s averments that the 2 brothers bought the property from their grandfather. The plaintiff did not adduce any evidence to show that the two brothers bought the property from their grandfather. If they had bought it, then it would not have formed part of their grandfather’s estate. The court’s finding is that they acquired it by way of inheritance and thus it is covered under s 7(3) of the Matrimonial Causes Act. It is not subject to distribution between the parties. Just as well the plaintiff is making no claim to this property. She wants the defendant to retain his half share in the property.

Whilst the plaintiff makes no claim to the farm and the Waterfalls property, she wants the court to bear in mind that the defendant already has these two properties that are registered in his name in distributing the Mt Pleasant property and the Newlands property. It was argued for the plaintiff that by virtue of these two properties, the defendant already has an upper hand over the plaintiff and as such this should be used to ward off the defendant’s claim to the Mt Pleasant property. Ms Chinwawadzimba submitted that consequently, the plaintiff should be awarded the Mt Pleasant property together with the collateral mortgage bond of 25% of the total outstanding debt. The defendant should be awarded the Newlands property together with 75% of the outstanding debt.

Having made a finding that the defendant holds the farm on behalf of the Masenda family, I cannot say that in respect of this farm he holds an upper hand over the defendant. The same applies to the Waterfalls property. He holds a half share to that property and his mother who is still alive is in occupation. Other than having title it is not a property which can be said to be benefitting him at all. He is likely not to benefit anything from it for as long as his mother lives. Thus it cannot be said that he holds an upper hand against the plaintiff to the extent that this should be used to ward him off against the Mt pleasant property and overburden him with the 75% of the debt which is on the Newlands property.

I have already made a finding that both parties contributed to the acquisition of the Mt Pleasant and Newlands properties. The parties also hold equal shares in the properties. They are registered joint co-owners to the Mt Pleasant property. The Newlands property is held in the name of Sonelex Investments (Pvt) Ltd which the parties jointly own in equal shareholding. Both two properties are encumbered by mortgage bonds which they are liable to repay jointly and severally in solidum as sureties. I see no justification why they should not share both the assets and the mortgage debt equally. The plaintiff’s proposal that the defendant be overburdened with repaying the bulk of the debt is rejected. They signed suretyship agreements with CABS. This court cannot therefore grant an order that is contrary to the suretyship agreements the parties signed with the bank without the involvement of the bank. The plaintiff can only be released from her obligations in terms of the suretyship   contract if CABS as the creditor agrees to a variation of the suretyship terms. See RH Christie Business Law in Zimbabwe p 458. The plaintiff led no evidence from CABS to show that it was agreeable to a variation of the suretyship terms. Consequently, the parties should share the debt equally between the two of them since they have the joint responsibility of discharging the debt. Evidence led shows that the two parties have been struggling to repay it to the extent of accumulating arears in the sum of $68 000.00. If the two of them were struggling, whatmore the defendant by himself?

The defendant’s proposal during trial that the parties be afforded an option to buy each other out is sensible and just. If they fail to do so, the properties can then be sold to pay off the debt to CABS and thereafter the residue can then be shared equally between the parties.  I will award to each party 50% share in each of the 2 properties. I will then give the plaintiff the option to buy out the defendant from the Mt Pleasant property and the defendant the option to buy out the plaintiff from the Newlands property with both parties being liable to pay off the mortgage bonds which are outstanding. My reason for giving the plaintiff the option to buy out the defendant from the Mt Pleasant property is that it is of great sentimental value to her. She raised her sons there including the one who passed on. It holds memories of her late son. Moreover, the other son who is in the United Kingdom for studies always comes back to this very home where he has memories of his late brother with whom he used to share the bedroom which to date has not been changed. The defendant did not dispute this.

Conclusion

It be and is hereby ordered that:

A decree of divorce is granted

The major child Shingai Tariro Masenda

The parties shall each pay 50% for Shingai Tariro Masenda’s university tuition fees and accommodation until he completes his Masters Degree. The payments shall be made directly to the university and to Shingai Tariro Masenda as may be appropriate.

The parties shall each pay 50% of the airfare for Shingai Tariro Masenda’s travel to Zimbabwe once a year until he completes his Masters Degree.

3. Movable property

3.1. The plaintiff shall retain as her sole and exclusive property the following:-

(a) Motor vehicles being a Mercedes Benz registration number 8001, a 	             Toyota Rav ABX 3526, and a Golf 4 ADB 0407; and

(b) Various goods and furniture at 73 Garlands Ride, Northwood, Mount 			Pleasant, Harare.

3.1 The defendant shall retain as his sole and exclusive property the following:-

(a) All motor vehicles registered in his name;

(b) The bed, the office desk and the compact disc stand all in the parties’ main 		bedroom, the headboard and the bookshelf in the parties’ spare bedroom, the 		surround sound system in the parties’ main lounge, the console in the parties 		dining room, the lounge suite in the parties’ 2nd lounge, the white fridge and 		microwave in the parties’ kitchen, the dining room suite and the dining room 		mirror, all the garden tools, the washing machine, the generator and a 5000  		litre water storage tank.

(c)  Selected items of sentimental value that belonged to the parties’ late son 		Munyaradzi Matida Masenda.

4. The mortgage bonds

4(1) 	Both the plaintiff and the defendant shall remain jointly liable for the repayment of the Mortgage Bond 6078/2010 and Collateral Mortgage Bond 6079/2010 to CABS.

5. Immovable property

5 (1) 	The immovable property registered in the plaintiff’s and the defendant’s names known as Stand No. 195 Northwood Township of Sumben situate in the district of Salisbury measuring 4074 square metres otherwise known as 73 Garlands Ride, Northwood, Mt Pleasant, Harare registered under Deed of transfer No. 1739/02 dated 5 March 2002 is hereby distributed by awarding 50% share to the plaintiff and 50% share to the defendant.

5 (2) 	An undivided 6.1% share being share No. 2 in a certain piece of land situate in the district of Salisbury called Sunny Grove of Lot 35 Newlands Township measuring 3998 square metres, otherwise known as No.2 Somerset Mews, Newlands, Harare which is held by Solenex Investments (Private) Limited under Deed of Transfer No. 12140/99 dated 2 December 1999 wherein the plaintiff and the defendant each hold 50% of the shareholding is hereby distributed by awarding 50% share to the plaintiff and 50% to the defendant.

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

5 (4) 	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 properties upon request by either party.

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

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

5 (7) 	The plaintiff is hereby granted the right to buy out the defendant’s 50% share within 12 months of the date of valuation of the Mt Pleasant property.

5 (8) 	The defendant is hereby granted the right to buy out the plaintiff’s 50% share within 12 months of the date of valuation of the Newlands property.

5 (9) 	In the event of either of the parties failing to sign the requisite transfer documents after buying out has been effected by the other party, the Sheriff is directed to sign the documents to effect transfer of ownership of the immovable property.

5 (10) 	In the event that the parties fail to buy out each other within the period stated in paras 5(7) and 5 (8) or such longer period as the parties may agree, the properties 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 proceeds shall be applied towards discharging the mortgage bonds mentioned in para 4 above. The net proceeds shall be shared equally between the parties.

6 Each party shall bear its own costs.

Honey & Blackenberg, plaintiff’s legal practitioners

Nyika Kanengoni & Partners, defendant’s legal practitioners