Tafadzwa Macmillan Kambasha v Runyararo Brenda Marewo

### Preamble
1
HH 482/25
HCH 5616/23
---------




TAFADZWA MACMILLAN KAMBASHA

versus

RUNYARARO BRENDA MAREWO

HIGH COURT OF ZIMBABWE

NDLOVU J

HARARE, 06 MAY & 18 AUGUST 2025.

Matrimonial Trial

Mr. W. Bherebhende, for the plaintiff

Ms S. Mangwengwende, for the defendant

NDLOVU J: The plaintiff and defendant got married on 20 September 2014 at Harare in terms of the Marriages Act [Chapter 5:11] (now the Marriages Act [Chapter 5:17]) and the marriage still subsists. The marriage was blessed with one minor child. On August 29, 2023, the plaintiff initiated divorce proceedings, alleging that the marriage had irretrievably broken down and claiming both movable and immovable property for distribution upon dissolution of the marriage. The defendant defended the claim. The issues of divorce, custody of the minor child and movable property other than one motor vehicle are settled between the parties. It is common cause that the parties jointly sold the Chinhoyi property in 2020, for a total of US$13,000.00, and shared the proceeds between them. Each party signed an acknowledgement of the share amount they received.

ISSUES FOR DETERMINATION

Whether or not the parties jointly acquired stand number 36727 Unit L, Chitungwiza, and if so, whether the plaintiff is entitled to a 50% share of the property in question.

Whether or not a Honda Fit motor vehicle is spousal property.

The quantum of maintenance to be paid by the plaintiff in respect of the minor child.

Whether or not the plaintiff should pay the costs of suit on a legal practitioner and client scale.

PLAINTIFF’S CASE

The plaintiff alleged the parties had not lived together since July 2023, when the defendant formally notified his family of her decision to end the marriage.

Custody and Maintenance.

The plaintiff claimed that he be granted reasonable access to the minor child on alternate weekends and for two weeks during each school holiday and offered to pay maintenance of US$50.00 per month, until the child attained the age of majority or became self-sufficient. He argued that his maintenance contribution of US$50.00 per month was reasonable given his limited earning capacity, as demonstrated by his pay slip, which shows a net monthly salary of US$263.63 and ZIG 2,267.95, and his other financial obligations to support his current wife and another child.

The defendant is gainfully employed earning US$1,500.00 per month as an Accountant.

The Chitungwiza Property.

The plaintiff’s case is that the parties jointly owned a house in Chinhoyi. After the defendant’s transfers first to Marondera and then to Bulawayo, the parties agreed to sell that house for US$13,000.00. Among the necessary deductions made from this sum was US$600.00 agent’s commission. The remainder of the funds was given to the defendant for safekeeping and to acquire another property. Makaza Matambanadzo, the estate agent for the sale, confirmed receiving his commission and stated that he observed during the meeting with the lawyers that the balance of the purchase price was handed to the defendant.

The parties then jointly acquired Stand No. 36727, Unit L, Seke, Chitungwiza. He gave his consent for the defendant to purchase the Chitungwiza property while he was managing his farming activities in Marondera. They developed the property into a four-bedroom house. Both parties contributed to the acquisition and development of the Chitungwiza property. He testified that, although the defendant purchased certain materials, such as roofing and windows, he was responsible for hiring builders, supervising construction, and sourcing building materials, including bricks. He used his truck to supply water to the site and sold two of his vehicles to fund the construction. However, he did not specify the amount for which the vehicles were sold. He could not even mention the people who bought the cars.  Furthermore, the plaintiff was unable to identify the materials he had purchased. He produced receipts totalling USD 3,101.00, which he claimed were for the materials he had purchased; however, the defendant stated that they were fake. The defendant was employed full-time during this period, leaving him to oversee the project. The plaintiff testified that the Chitungwiza house was completed by the time of the parties’ separation. He sought a 50% share in this property, stating that the parties had agreed on its distribution.

Movable Property.

The plaintiff identified a Honda Fit motor vehicle, registration number AEV 0057, which he said is registered in his name, as a spousal asset acquired during the marriage. He proposed that the vehicle be sold, with the proceeds to be divided equally.

Costs.

The plaintiff argued that a punitive costs order against him would be unjustified. Each party must be ordered to bear its costs.

DEFENDANT’S CASE

The defendant disputed the plaintiff’s version, maintained that the parties separated in 2018, not in July 2023.

Custody and Maintenance.

Regarding the minor child, the defendant rejected the plaintiff’s proposed figure of US$50.00 per month as maintenance, insisting that the child’s needs exceeded the suggested amount, contending that the plaintiff should contribute US$100.00 per month in maintenance until the child attained majority. She argued that the plaintiff be ordered to contribute half of their child’s school fees.

The Chitungwiza Property.

The defendant disputed the plaintiff’s claim regarding the Chitungwiza property. She stated that after separating from the plaintiff in 2018, the parties agreed to sell the Chinhoyi property in 2020. She bought a stand in Chitungwiza on which the Chitungwiza property is built in her name, anticipating divorce. She acquired the stand independently with her share of proceeds from the sale of their Chinhoyi property, her income, and the loans. She attached bank statements and loan applications to prove how she financed the building, along with receipts for the materials purchased. The defendant called a witness who told the court that he is the Estate Agent involved in the purchase of the Chitungwiza property. She financed its development and covered all costs alone, and the plaintiff did not contribute anything.

She admitted that at some point, the plaintiff negotiated with builders; however, she paid for all services and attached the receipts as proof that she paid for the services. She stated that the receipts that the plaintiff submitted were fake. The defendant told the court that the plaintiff was paid for any services he rendered, and that she made it clear to him that the new house was for their child. She argued that the plaintiff should not benefit from the Chitungwiza property, as he had already received his share from the Chinhoyi property sale and therefore had already received his fair share of the matrimonial property. The defendant denied that the parties had agreed on a property distribution arrangement and presented evidence from one Chenesai Marewo, who testified that the plaintiff had given up any claim to the Chitungwiza house.

Movable Property.

The defendant stated that the Honda Fit in question belongs to her sister and is not a spousal asset; therefore, it is not available for distribution.

Costs.

The defendant sought legal costs against the plaintiff on a punitive scale because he initiated the divorce.

THE LAW

The division of assets during divorce is governed by s 7 of the Matrimonial Causes Act [Chapter 5:13], which provides as follows-

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

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

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

the standard of living of the family, including how any child was being educated or trained, or expected to be educated or trained;

the age and physical and mental condition of each spouse and child;

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

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

The duration of the marriage;

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

In the case of Manyoni v Manyoni HH4/16 p.3, it was stated that,

“It is clear from the wording of the Matrimonial Clauses Act that matrimonial assets include almost everything the spouses acquired and accumulated during their marriage. It does not matter whether the property is in one spouse’s name. All matrimonial assets fall for distribution and sharing. In the case of Gonye v Gonye 2009 (I) ZLR 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 is 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 it is practically possible, placed in a position where they would have been had the marriage subsisted. The court, in dealing with the division of matrimonial assets, has wide discretion per the Matrimonial Causes Act. However, sight of the presumption of equal sharing should not be lost. This is more so when one considers the legislative intention when it opted to use spousal assets in s 7 as opposed to matrimonial assets. The central intention is to ensure minimal hardships occasioned to either of the spouses at the dissolution of marriage. The principle of equality is buttressed in the supreme law of the country, the Constitution of Zimbabwe Amendment (No 20) Act 2013. Section 26 on marriage is relevant.”

In Masiwa v Masiwa 2007(2) ZLR 167 (S), the Supreme Court reiterated the necessity for courts to consider both direct and indirect contributions made by each spouse.

The maintenance amount payable by each parent is determined by their respective means and resources. The court must perform a value judgment based on the income and assets of both parties. Tapera v Tapera HH 513/23.

The award of costs is entirely at the court's discretion. Hebstein and van Winsein in The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa (5th ed., Vol. 2).

APPLICATION OF THE LAW

Movable Property

Regarding the Honda Fit, bearing registration number AEV0057, the defendant asserts that this vehicle is not available for distribution, as her sister owns it. The plaintiff stated that this vehicle is matrimonial property registered in his name; however, no evidence was presented to demonstrate that the car belonged to him. Therefore, the court will accept that the Honda Fit rightfully belongs to the defendant's sister. Accordingly, the Honda Fit registration number AEV 0057 is not matrimonial property and is not available for distribution.

Immovable Property

The parties differ on when they separated. I prefer the defendant's version for the following reasons. The Estate Agent involved in the purchase of the Chitungwiza property testified that upon being approached by the defendant in 2020, he observed that she was a Mrs. and asked where her husband was. The defendant responded, saying they were separated. That could not have been the answer in 2020 if the parties were still living together, but were separated in 2023. That evidence was not challenged. Additionally, the plaintiff was prosecuted in 2019 for selling the matrimonial property.

The plaintiff did not contest the defendant's claim that the receipts he produced were fake. When challenged to call the person who wrote him the receipts to come and testify, he declined the opportunity to prove their authenticity. This was telling. The plaintiff failed to prove his contribution to the acquisition of this property, to substantiate his claim. This failure was because he did not contribute to the acquisition of this property. He only supplied water, for which he was paid.

While non-direct contribution is per se not fatal to a noncontributory spouse’s claim upon divorce, the facts of this matter are different from the ordinary position provided for by the law in that, in this case, the parties’ matrimonial property was sold. The proceeds were shared between the parties after the parties separated in anticipation of a divorce.

The defendant thereafter acquired a property alone. The agreement of sale is in her name, and the property is registered in her name alone. The defendant, therefore, has successfully proven that she acquired and built the Chitungwiza property alone.

The totality of the evidence proves that the plaintiff made no contributions to the acquisition of the Chitungwiza property, and has therefore failed to prove his direct or indirect contribution, let alone to justify his claim of a 50% share in the property. His claim is duly dismissed in this regard.

Maintenance

The Plaintiff produced a pay-slip indicating a monthly income of US$263.63 and 2,267.95 ZIG. He has a wife and another child to support, while the defendant earns US$1,500. The plaintiff stated that he can afford to pay US$50 per month but cannot manage US$100. Given his earning capacity and financial obligations, the proposed maintenance of US$50 is reasonable. The plaintiff initially offered to pay half of the child’s school fees. During the trial, he stated that he is unable to cover half of the school fees. School fees are not paid daily but termly, with an option to pay monthly at most Schools. The minor child’s right to education cannot and should not be sacrificed at the altar of the comfort and convenience of the biological parent. Accordingly, the Plaintiff shall pay US$50 for the maintenance of the minor child, in addition to contributing 50% of the School fees, school-related expenses at a mutually agreed-upon school, and clothing expenses.

Costs

Both parties agree that the marriage has irretrievably broken down. In light of the circumstances, it would be unjust to penalise a party by imposing costs on it, especially since both parties sought to end the marriage. Therefore, it is appropriate for each party to bear its legal fees.

DISPOSITION

The parties’ marriage has irretrievably broken down. The claim for divorce by the plaintiff is hereby granted. I accordingly make the following order.

ORDER

A decree of divorce is hereby granted.

The custody of the minor child, namely, VANESSA MUFARO KAMBASHA [Female, Born 31 May 2016], is hereby awarded to the defendant, with the plaintiff enjoying access to the minor child on alternative weekends and 2 weeks of each school holiday.

The plaintiff shall pay US$50.00 maintenance per month for the minor child until she reaches the age of 18 years or becomes self-supporting, whichever occurs earlier, in addition to contributing 50% of the School fees, school-related expenses at a mutually agreed-upon school, and clothing expenses.

House No. 36727 Unit L, Seke, Chitungwiza, is hereby awarded to the defendant as her sole and exclusive property.

Each party shall keep the movable property in its possession as its sole and exclusive property.

The plaintiff’s claim of a 50% share in House No. 36727 Unit L, Chitungwiza, is hereby dismissed.

Each party shall bear its costs.

NDLOVU J:

Bherebende Law Chambers, plaintiff’s legal practitioners

Phillips Law, the defendant’s legal practitioners