Hove v Hove (nee Masuku) (307 of 2024) [2024] ZWHHC 307 (23 July 2024)

1 HH 307-24 HCH 7383/22 SHINGIRAYI HOVE versus NTOMBIYEBUTO HOVE (nee Masuku) HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 12 March 2024 & 23 July 2024 Civil Trial C Tawanda, for the Plaintiff E Hwachi, for the Defendant MAXWELL J: On 4 November 2022 Plaintiff sued out summons claiming a decree of divorce and ancillary relief. In the declaration, he stated that the parties solemnized their marriage in terms of the then Marriage Act [Chapter 5:11] now the Marriages Act [Chapter 5:17] at Gweru on 16 April 2010. The marriage was blessed with three minor children – - X - Y - Z He further stated that the marriage between the parties has irretrievably broken down to the extent that there is no reasonable prospect of a reconciliation. The plaintiff submitted that during the subsistence of the marriage, they did not make joint and complimentary efforts to acquire property. Further to that he acquired property through individual efforts, both movable and immovable. He proposed the distribution thereof. He proposed to pay seventy (70) percent of school fees and all school expenses and to buy uniforms whilst Defendant pays thirty (30) percent for the minor children. He also proposed to pay BWP800.00 per child per month as maintenance. He recommended that the children attend Zimbabwean schools from Form 3 onwards. He further proposed that if the children attend boarding school for High School in Zimbabwe, the Defendant pays the full fees. He also proposed that Defendant be given custody of the children with him having access every alternate week, weekend and school holiday at his house. HH 307-24 HCH 7383/22 The Defendant gave notice of entry of appearance to defend. In her plea, she agreed that the marriage had irretrievably broken down and there was no prospect of the restoration of the marital bliss. She accused Plaintiff of having an extramarital affair and pointed out that he married a second wife customarily. She stated that Plaintiff sired a child with his secretary and also had an adulterous relationship with a banker. On the properties, she listed movable assets she alleged were omitted by the Plaintiff. She stated that she significantly contributed to the improvements and developments effected at Plot Number 16 Sabi Ogg Charter Estates, Chikomba. According to her, it is just and equitable for her to be awarded a fifty (50) percent share of all the properties acquired by the parties as she contributed directly and indirectly in their acquisition. She pointed out that she is employed by the Government of Botswana as a pharmacy technician and has channeled most of her finances to the development and acquisition of the properties in question. She disputed that the children will attend boarding school in Zimbabwe pointing out that she is not planning to move to Zimbabwe any time soon or later. She proposed that Plaintiff contribute BWP5 500.00 for rentals if he moves out of the matrimonial home. She agreed on her being awarded custody of the minor children with Plaintiff having access provided he is of fixed abode and provides the address to which he will be taking the children. She proposed that Plaintiff contributes BWP1 500.00 per child per month as maintenance. She offered to contribute BWP2 500.00 towards accommodation should the Defendant and the children move out of the matrimonial home. She agreed to the sharing of school expenses proposed by Plaintiff and proposed that Plaintiff contribute towards the wage of a maid. In his replication, Plaintiff denied having adulterous relationships. He submitted that some of the property listed by Defendant is not matrimonial property. He pointed out that Defendant came into the marriage seven years after the farm operations had commenced and all developments had been made. He denied that Defendant made any contributions directly or indirectly and stated that she did not contribute to the upkeep of the family and did not pool together her earnings but used them for herself. He stated that both parties are primary caregivers at home, do chores, and take care of the family equally. He insisted that Zimbabwean schools provided better education for minor children and produce a well- rounded child in all aspects whether academic, sports, or social. He disputed the existence of a matrimonial home and denied the obligation to pay rent for the Defendant. He prayed for a clean break from the Defendant. He insisted on having access to the minor children without HH 307-24 HCH 7383/22 conditions and that he should have the authority to travel with the children in and out of the country as he would deem fit. He disputed having to contribute to the maid’s wages and pointed out that he would pay his own helper when he has the children. He insisted that Defendant should get 10 percent of the property. After the exchange of pleadings, a Pre-Trial Conference was held. The issues referred to trial were: 1) Whether or not there should be joint custody of the three minor children and if so whether or not the issue of maintenance should arise. 2) Whether or not the parties jointly contributed towards the acquisition and development of the immovable property namely Stand Number 25753 Budiriro, Harare. 3) Whether or not the acquisition of Stand Number 51187 Kglaleview Gaborone has been completed by joint efforts of parties, and if so the distribution thereof. 4) Whether or not the improvements made at the property Plot 16 Sabi Ogg Chikomba were done as a result of joint efforts by the Plaintiff and Defendant, if so, the value thereof and equitable distribution thereof, namely: a) One borehole equipped with casing and pump. b) Two-bedroomed house with fitted kitchen, running water, flushing toilet, and solar geyser. c) 2 x two roomed cottages d) fifteen (15) x 4m storeroom e) Fencing on the farm 5) Whether or not the properties listed on Defendant’s Plea para 2 form part of the matrimonial property, if so, what is their equitable distribution, namely: a) Livestock trailer b) Livestock feed mixer c) Massey Ferguson tractor with front blades and trailer d) Tractor plow e) Tractor harrow f) Incubator g) Electric beef cutting machine h) Fuso truck i) 3 x Generators HH 307-24 HCH 7383/22 j) Grain stalk miller k) Chicken drinkers and feeders l) Double bed set m) 2 x Upright refrigerators n) 2 x Deep freezers o) Dining room table p) 2 x Black leather sofas q) Kitchen utensils, pots and gadgets r) Catering equipment The matter was subsequently set down for trial. On 12 March 2024 Mr Tawanda advised the court of the possibility of a settlement as he said the parties engaged on the eve of the trial and found each other on all issues except one. With the agreement of Mr Hwachi, the matter was deferred to the following day. The following day the matter had to proceed to trial as the parties failed to settle. The Trial The Plaintiff testified on his behalf. He indicated that the parties could not agree on the issue of custody and the sharing of property. Initially, the Defendant was not working. He tried to help her start a company to sell medical equipment. He would finance her orders and she would pay after the equipment had been delivered. After a year she had not made any profit. She left and joined the Government of Botswana. She left everything she was using on the premises she was renting. He was advised that the property was forfeited in lieu of rentals. From the time of marriage, the parties did not have a joint bank account. They paid separately for any purchases made. For the 14 years of marriage, no item was purchased jointly. He bought Stand 25753 Budiriro, Harare through a cooperative. He paid a deposit of $5 000 after getting a bonus from his workplace. The balance of $1 fifty (50)0 was paid through transfer. The property was acquired as a vacant stand. Defendant was not aware of its acquisition. In 2015 he started to build a four-roomed house for rental income. At the time he was involved in the construction of the house, he continued to meet all his family obligations. He bought boer goats at a time he borrowed BWP40 000.00 from Defendant. He paid back the loan as BWP43 000.00. Once it was apparent that the marriage was failing, for the sake of peace, he offered Defendant fifty (50) percent of the total value of the estate. It HH 307-24 HCH 7383/22 was at a time he was taking anti-depressant pills. He has since changed his mind as he is now a bit stable mentally. From the beginning of their marriage, they never had father or mother roles. He taught his children to cook and bake. He makes packed lunch for them. He was in hospital with the first and second-born children when they were hospitalised. He has been a primary caregiver to them. Since 2010 or early 2011 they engaged a helper to do the household chores. He got Plot 51187 Kgaleview Gaborone, Botswana through a mortgage bond. The mortgage bond has not yet been fully paid. It is a ten-year bond ending in 2028. He paid a deposit of BWP200 000.00 Pula and lawyer’s fees of BWP61 000.00. The purchase price is BWP961 798.60. The Defendant did not contribute anything and the family was not inconvenienced in any way as he was meeting his obligations fully. At the time he was paying for the house, Defendant bought herself a Rav 4 motor vehicle, 2019 model for BWP350 000.00. She also bought leather sofas and a cattle trailer she was hiring out as a side business. The business failed and she sold the trailer. At one time he came to Zimbabwe and on return to Botswana, the leather sofas were no longer there. He ended up buying two- piece sofa couches. She also sold the Rav 4 motor vehicle. She did everything without consulting him because of the way they were living. The Defendant got to know of the purchase of the Plot when she had to sign a form to confirm the type of marriage they have. The property was intended to be a retirement package. He was hoping to sell it when he leaves Botswana so that he will have something to start from in Zimbabwe. The Defendant did not contribute directly or indirectly to the purchase of the Plot. She was only remitting her contribution towards groceries and payment of insurance for a car. Plot 16 Sabi Ogg Charter Estates, Beatrice was offered to his father under the land redistribution programme in 2001. When his father passed on in 2003 he started farming. His late father had not done much on the farm. Since 2003 the farm is operating commercially. The Defendant only contributed floor tiles for a two-roomed cottage. The tiles she contributed are valued at BWP6 500.00. He has acquired a lot of property through hire purchase or lay-bye without contribution from Defendant. He also bought farm equipment from Pakistan through his salary. The Defendant did not contribute even to the customs clearance. He also bought catering equipment from an Egyptian person without Defendant’s involvement. He bought a truck and equipment truck from South Africa and HH 307-24 HCH 7383/22 cleared them at the border. He proposed that there be joint custody of the children so that the children will benefit from co-parenting. Under cross-examination, he maintained that the parties were conducting their finances independently, that they would buy items individually and dispose individually. Further, they would only communicate on common responsibilities like buying groceries and issues to do with the children. The Defendant testified in her case. She indicated that from the time they got married, they were pooling their resources together and sharing responsibilities. She would give the Plaintiff her automated teller machine card as she was a civil servant who would get paid earlier than the Plaintiff whose pay came on the last day of the month. When she got married she was running a pharmaceutical company called Medsurge Pharmaceuticals. It was owned by three individuals, herself, a Tswana, and a Zambian colleague. At one time she made so much money that they decided to buy cows from Ian Douglas Smith’s farm. They bought between twenty and twenty-one cows. They multiplied to ninety in 2017 and Plaintiff sold them. He subsequently replaced them with the current breed. Plot 16 Sabi Ogg is a 105 hectare Plot. They fenced it and put up staff quarters as well as a two-bedroomed house which is thatched, tiled, and had a water system toilet. It has a fitted kitchen stove, gas stove, running water, and Wi-Fi. A solar system supports the lights outside the farm, boreholes, and refrigeration. There are storerooms. At the time of marriage, there was no equipment at the farm. She contributed to the acquisition of farm equipment in cash. She gave Plaintiff money to pay the deposit for the Budiriro stand and she would give him money for the developments that were taking place. At the time the Botswana property was acquired, the amount of the installment of the loan for the purchase of the property was equivalent to the food and helper expenses. The parties agreed that Plaintiff would repay the loan whilst she took care of the home. She assumed that their marriage was in community of property therefore she did not insist on having her name on title deeds. They were planning together. They had agreed to come back to Zimbabwe in 2021 if Covid had not happened. They ran a cattle trailer business. She consulted Plaintiff when the trailer business failed and decided to sell the trailer. They agreed on the selling price and the trailer was sold. The proceeds from the sale of the trailer were utilised at home. She confirmed that the parties did not have a joint account but shared responsibilities. Where one failed to honour their responsibility the other would come to the rescue. They ran HH 307-24 HCH 7383/22 several business ventures together which did not succeed. She is claiming forty (40) percent of the immovable properties and fifty (50) percent of the farming equipment and livestock. She confirmed that she refused to write an affidavit so that Plaintiff would travel with the children to Zimbabwe. She stated the reason as a traumatic experience where two of the children had been enrolled at a school in Marondera where they were weekly boarders. During the weekends they would stay in Bromley with Plaintiff’s cousin. The experience was not good and she did not want a repeat of it as Plaintiff was insisting on enrolling the children in Zimbabwe. Under cross-examination, she maintained that the parties were pooling resources together and that she contributed directly and indirectly to what was acquired during the subsistence of the marriage. That was the trial. Custody In deciding on custody, the paramount consideration is the best interest of the children. This principle appears in Section 81(2) of the Constitution of Zimbabwe Amendment (No. 20) Act of 2013, Article 3 of the United Nations Convention on the Rights of a Child, and Article 4 of the African Charter on the Rights and Welfare of a Child in the following words;- “In all actions concerning the child undertaken by any person or authority, the best interests the child shall be the primary consideration.” of The factors to be considered in determining the meaning of “best interests” are listed in Mcall v Mcall 1994 (3) SA 201 as follows: called (c) (b) “(a) the love, affection and other emotional ties which exist between 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, and sensitivity of 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- “creatures of comfort” such as food, clothing, housing and other material needs – generally speaking the provision of economic security; (f) (d) (e) 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; (g) (h) (i) (j) HH 307-24 HCH 7383/22 (k) (l) (m) the child’s preference, if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration; the desirability or otherwise of applying the doctrine of same-sex matching; and any other factor which is relevant to the particular case with which the court is concerned.” It is common cause that Plaintiff left the matrimonial home, leaving the children in the custody of Defendant. Both parties professed their love, affection, and emotional ties with the children. In Plaintiff’s words, there were no gender roles in their family as they both were primary caregivers. The children enjoyed a very stable environment. The Plaintiff advocated for joint custody to be awarded. He argued that both parents have been involved in the children’s lives and the children should continue to benefit from the different parenting styles. Defendant confirmed that Plaintiff is a dedicated father. But, in her view, joint custody cannot be sustained in their current relationship. She prayed that she be awarded custody of the children. To resolve the issue of custody, the parties’ founding papers will be considered. It is trite that parties are bound by their pleadings and they are not allowed to depart from them without leave. The authors Jacob and Goldrein in Pleadings, Principles and Practice (Sweet et Maxwell London 1990) at pages 8 – 9 make remarks which are cited with approval in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836 @ 898 to the following effect: “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings …… for the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as are themselves. It is not part of the duty or function of the court to enter upon an inquiry into they the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings ……In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to ……” (underlining for emphasis). See also Dube v Bushman Safaris & Anor HB 112-13. On setting the agenda for the issue of custody, Plaintiff stated in para 11 of his declaration; “11. Custody Custody of all the children will be given to the Defendant with the Plaintiff maintaining reasonable access in that he will have the children every alternate weeks, alternate weekends and alternate schools holidays at his house.” HH 307-24 HCH 7383/22 This was accepted by the Defendant in her plea. The Plaintiff maintained that proposition in his Summary of Evidence. In his Pre-Trial Conference Minutes filed on 16 December 2022, Plaintiff stated the second issue as: “Whether or not custody of the minor children should be granted to the Defendant? With the Plaintiff maintaining reasonable access.” The same wording was adopted in the Joint Pre-Trial Conference Minute filed on 28 February 2023. The issue of joint custody was first mentioned in the Amended Joint Pre-Trial Conference Minute filed on 5 October 2023. That is when the first outstanding issue for trial was stated as: “(a) whether or not there should be joint custody of the three (3) minor children and if so whether or not the issue of maintenance should arise.” Plaintiff proceeded to mention the issue of joint custody in his oral evidence and closing submissions. A change of mind after pleadings have been filed is allowed, as long as an application for amendment of pleadings is made. Rule 41 of SI 202 of 2021 gives the parties room and the procedure for amending pleadings. Such amendment can be done at any stage of the proceedings. The Plaintiff did not seek to amend his pleadings. He is therefore bound by the agenda he set in his founding papers. Accordingly, custody of the children will be awarded to the Defendant. Access to the minor children Access is the right of the non-custodian parent to visit or be visited by the minor children including staying with the children temporarily, like during weekends or holidays. The Plaintiff’s position in the founding papers was that he should be allowed reasonable access in that he would have the children every alternate week, weekend, and school holiday at his house. In response, Defendant took no issue with that proposal. She however put a condition in her prayer in her plea that the Plaintiff: “be awarded access to the minor children provided he is of fixed abode and have provided the address on which he will be taking the children”. In his replication, Plaintiff insisted on having access without any conditions attached to it. During cross-examination, Defendant indicated that Plaintiff is entitled to unlimited and unconditional access to the minor children. There is no legal basis laid for Plaintiff to be subjected to conditional access. There is no justification for him to be required to provide an address before having access to the children. It also follows that if during the period he has access, Plaintiff desires to travel with the children, he should be able to do so without any HH 307-24 HCH 7383/22 hindrance. Maintenance Plaintiff offered to pay seventy (70) percent of school fees and all school expenses and proposed that Defendant pay thirty (30) percent for the minor children. In addition, he offered to pay BWP800.00 per child per month as maintenance. He also proposed that he pay full school fees for the children for High School if they are learning in Zimbabwe. The Defendant did not take issue with the sharing of the children’s educational expenses. She however disputed the need for the children to learn in Zimbabwe. She proposed that Plaintiff contributes BWP1 500.00 per child per month as maintenance. She however conceded that the issue of maintenance was settled at the Pre-Trial Conference where it was agreed that Plaintiff pays BWP800.00 per child per month. In my view, considering that both parents are contributing to the payment of school expenses, they have to agree on the schools their children attend. In the event that they are not agreed as in this case, the custodian parent determines where the children attend school. Stand Number 25753 Budiriro, Harare Plaintiff testified that he bought this property through a cooperative and developed it without Defendant’s contribution. The Defendant’s testimony was that she contributed financially to the acquisition of the stand as well as to the developments on it. Plaintiff produced documents showing that he paid a total of $6 500.00 for the stand. The initial payment of $5 000.00 was acknowledged through an affidavit whilst the balance of $1 500.00 was sent through Western Union. What the documents produced by the Plaintiff confirm is that the payments were made in 2014 and 2015. Defendant indicated that between 2010 and 2014 her employer provided accommodation for them and deductions would be made from her salary. She further stated that she gave Plaintiff money to pay for the deposit of the Budiriro house as well as towards development. Apart from the documents on the acquisition of the stand, no other proof was tendered on the development of the stand. I am of the view that though the Plaintiff paid the initial deposit for the stand, Defendant did contribute both directly and indirectly. Firstly, she provided accommodation through her employer between 2010 and 2014. The affidavit by the seller of the stand is dated 18 December 2014. By that time the parties’ three children were HH 307-24 HCH 7383/22 born. The youngest was born on 23 May 2014. Secondly she testified that she used to give Plaintiff cash. According to her, she contributed forty (40) percent to the development of the property. It is the position of our law that there is no monetary value that can be put to a woman’s contribution as a wife and as a mother. See Usayi v Usayi 2003 (1) ZLR 684. In her closing submissions, Defendant prays that the property be awarded to her as her sole and exclusive property. In terms of section 7(4)(e) of the Matrimonial Causes Act [Chapter 5:13]. I am obliged to consider the direct or indirect contribution made by each spouse to the family. Defendant, in her own words, contributed forty (40) percent to the development of the property. She did not justify why she should be awarded a hundred (100) percent of the property. I am inclined to award her the forty (40) percent she stated as having contributed to the development of the property. In addition, it is my view that Defendant is entitled to a further ten (10) percent for taking care of the family. I will therefore award Defendant a fifty (50) percent share in Stand Number 25753 Budiriro, Harare. Stand Number 51187 Kgaleview, Gaborone It is not in dispute that this property is under a mortgage bond which will run until 2028. The mortgage bond is in Plaintiff’s name. He produced documentary evidence showing that the payments towards the mortgage bond had been coming from his bank account. Defendant’s evidence was that she contributed indirectly as the parties had agreed that Plaintiff would service the loan whilst she took care of the family, food, and helper costs. She stated that the loan repayment’s installment was equivalent to the cost of the food and helper. That an agreement was reached on sharing obligations was not put to the Plaintiff in cross-examination. Neither was the fact that the installment was equivalent to the financial needs of the family that Defendant took care of. The Defendant’s version must therefore have been an afterthought. Plaintiff’s evidence that he paid the installments and met his family obligations was not challenged. In any event, Defendant’s prayer in the closing submissions was that the property be awarded to Plaintiff. Considering that the property is in reality a liability that the Plaintiff will remain saddled with, it is appropriate that it be awarded to him. The Defendant demonstrated that she has no intention of sharing in the loan repayments. Accordingly, the property will be awarded to the Plaintiff. Improvements at Plot 16 Sabi Ogg, Chikomba HH 307-24 HCH 7383/22 Five items are listed as the improvements in contention. The parties had agreed that one of the issues to be determined was whether or not the improvements were done as a result of joint efforts by the Plaintiff and Defendant. In my view, the answer to that is in the positive. The Defendant said she contributed to the improvements. Plaintiff limited the Defendant’s contribution to tiling two rooms of a cottage only. That evidence tilts the balance of probabilities in favour of a conclusion that there was a joint effort in effecting the improvements on the plot. The next issue for consideration was the value of the improvements and their equitable distribution. None of the parties spoke of the value of the improvements. They both enumerated the improvements under consideration, a borehole, a two-bedroomed house (with fitted kitchen, running water, flushing toilet, and solar geyser), two-roomed cottages, a store room and fencing on the farm. Section 7 of the Matrimonial Causes Act [Chapter 5:13] gives the court a very wide discretion in distributing the assets of the spouses. In Shenje v Shenje 2001 (1) ZLR 160 GILLESPIE J (as he then was) saw the legislative intent and the objective of the courts as one which met the needs of the parties rather than recoup their contributions. It therefore follows that whilst the parties’ contributions should not be ignored, the objective of the court is not to ensure that each party gets what he or she contributed. As no monetary values were tendered by either party on all the improvements under consideration, I am inclined to award each of them a fifty (50) percent share. Movable Property Both parties proposed the distribution of the movable property. Although in the issues referred to trial there was a question of whether the movable property was part of the matrimonial property, the proposals from both parties confirm that the property belongs to them and is available for distribution. There are items on which the parties agree as to their distribution. There are also other items that both parties claim should be awarded to them. The items that are not in contention will be awarded in accordance with the parties’ proposals. On the disputed items there is a double bed set. Plaintiff’s evidence was that he bought it before he met the Defendant. The Defendant did not dispute that. It will therefore be awarded to the Plaintiff. There are also Black leather sofas which Plaintiff indicated he bought on hire purchase. He stated that at one time his finances were not in order and he HH 307-24 HCH 7383/22 asked the Defendant to pay an installment and she refused. He indicated that he paid for the customs and excise duty alone and that Defendant did not contribute anything to the acquisition of the sofas. Again Defendant did not dispute the very specific averments made by Plaintiff against her. Accordingly, the Black Leather Sofas will be awarded to the Plaintiff. There is also a dining room table, kitchen utensils, and catering equipment in contention. The Plaintiff stated that he bought the catering equipment from an Egyptian national. No specific details were given on the acquisition of the dining room table and the kitchen utensils. The Defendant insisted that she contributed to the acquisition of these items. Considering that the evidence in this case is inconclusive, I am inclined to award each party a fifty (fifty (50) percent share in the value of the items. The Defendant proposed the distribution of cattle and goats equally between the parties. Her evidence was that in 2010 one of her business ventures yielded a lot of profit which the parties used to purchase about twenty-one (21) herd of cattle from Ian Douglas Smith’s farm. She stated that she withdrew the money from her account and gave it to the Plaintiff who tried to change it to United States of America dollars but got arrested in the process. The Plaintiff did not dispute that evidence. Defendant further stated that by the year 2017, the cattle had multiplied and Plaintiff sold all of them to a relative and subsequently bought the current breed. She stated that a Brahman and some heifers were bought from South Africa. On the goats, her evidence was that Plaintiff indicated that he wanted to buy Boer goats from South Africa. She advanced him BWP40 000.00 which was never paid back. The Plaintiff stated that the BWP40 000.00 was a loan that he paid back. The amounts he said were repayments were stated to be his contribution towards school fees and a birthday gift to the Defendant. The Plaintiff confirmed that even in times when the parties were not on good talking terms, they would help each other and that is how he got the BWP40 000.00 loan. There was no conclusive evidence on whether or not there were still goats and cattle at the plot. If they are there, the number thereof was not established. The evidence before the court is of both parties claiming to have contributed to the acquisition of the livestock. Plaintiff stated in his evidence that at the time of marriage, there was a herd of twenty (20) cattle at the plot. By the year 2016, the herd had increased and he sold a lot of them and used some of the proceeds to buy farm equipment. When he was asked if the number sold could be ninety (90) he answered in the affirmative. I am therefore of the view that as there was HH 307-24 HCH 7383/22 already a herd at the time of marriage, a distribution of sixty (60) percent to Plaintiff and forty (40) percent to Defendant is a just and equitable distribution. The last items in contention are the Massey Ferguson Tractor with front blades and trailer, a tractor plow, and a tractor harrow. The Plaintiff stated that he bought this property in 2021 from Pakistan. He said he paid for it whilst in Botswana and it was delivered to Harare. According to him, the Defendant only saw it when the parties came to Zimbabwe. Defendant on the other hand stated that her contribution was in the form of cash and also that at times she would hand over her automated teller machine card to Plaintiff for use. Furthermore periodically she received gratuities from her employer which were utilised for the good of the family. Moreover, Plaintiff stated that some of the proceeds from the sale of cattle were used to buy equipment. As stated above, the Defendant contributed to the herd that was sold. Considering the duration of the marriage, the indirect contribution she made as well as the cash she said she gave to the Plaintiff. I am persuaded that Defendant is entitled to a share of the property. Throughout the trial, Plaintiff emphasised the fact that the parties ran their finances independently of each other. He however did not dispute the Defendant’s evidence that though their finances were separate, every time there was a need, each party would contribute. Each of the parties vehemently disputed the assertions of the other. There was no corroboration of either party’s evidence. I am of the view that an award of eighty-five (85) percent of the value of the property to Plaintiff and fifteen (15) percent of the value of the property to Defendant would be just and equitable. Accordingly, it is hereby ordered that: 1) A decree of divorce be and is hereby granted. 2) Defendant be and is hereby awarded custody of the minor children – - X - Y - Z 3) Plaintiff will have access to the minor children every last weekend of the month and in the first two weeks of the school holidays where there are no school commitments. 4) In the period in which Plaintiff has access to the minor children, he is authorised to travel with them without requiring the consent of Defendant. HH 307-24 HCH 7383/22 5) Plaintiff be and is hereby ordered to pay maintenance amounting to BWP800.00 per child per month until they reach the age of 18 years or become self- supporting whichever occurs first. 6) Plaintiff be and is hereby ordered to pay seventy (70) percent of the minor children’s educational expenses. 7) Defendant be and is hereby ordered to pay thirty (30) percent of the minor children’s educational expenses. 8) The following property be and is hereby awarded to the parties by consent. To the Plaintiff a) b) c) Livestock feed mixer Electric beef cutting machine 3 x Generators d) Grain stalk miller e) f) g) h) i) j) k) l) Drilling machines Chicken feeders and drinkers 2 x Upright fridges 2 x Deep freezers JVC Disco radio Fence Piller Spraying cans Chainsaw m) LG Television n) Wood Chipper o) p) q) Incubator 2 x Seater Couches Fuso Truck To the Defendant a) b) c) Grass trimmer Samsung television Television stand HH 307-24 HCH 7383/22 d) Mazda Demio Registration Number B 511 HP 9) The following property be and is hereby awarded to the parties: To the Plaintiff a) Stand 5117 Kgaleview Gaborone, Botswana b) A fifty (50) percent share in Stand 25753 Budiriro, Harare c) A fifty (50) percent share of the value of the improvements at Plot 16 Sabi Ogg, Chikomba Sixty (60) percent of the cattle and goats at Plot 16 Sabi Ogg, Chikomba Eighty-five (85) percent of the value of the: (i) Massey Ferguson tractor with front blades and trailer (ii) tractor plow (iii) tractor harrow Fifty (50) percent of the kitchen utensils Fifty (50) percent of the catering equipment Fifty (50) percent of the value of the dining room table A Double bed set 2 x Black leather sofas d) e) f) g) h) i) j) To the Defendant a) A fifty (50) percent share in Stand 25753 Budiriro, Harare. b) A fifty (50) percent share of the value of the improvements at Plot 16 Sabi Ogg, Chikomba. 40 percent of the cattle and goats at Plot 16 Sabi Ogg, Chikomba. Fifteen (15) percent of the value of the – i) Massey Ferguson tractor with front blades and trailer ii) tractor plow iii) tractor harrow Fifty (50) percent of the kitchen utensils Fifty (50) percent of the catering equipment Fifty (50) percent of the value of the dining room table c) d) e) f) g) 10) The parties shall agree on the value of the following property within thirty (30) days from the date of this judgment failure of which they shall appoint a mutually agreed HH 307-24 HCH 7383/22 estate agent and/or valuer to evaluate the property within twenty-one (21) days from the date of such failure. a) b) c) d) e) f) Stand 25753 Budiriro, Harare Improvements at Plot 16 Sabi Ogg, Chikomba Massey Ferguson tractor with front blades and trailer Tractor plow Tractor harrow Dining room table 11) Should the parties fail to agree on an evaluator, the registrar of the High Court be and is hereby directed to appoint an evaluator from his list of evaluators. 12) The Defendant be and is hereby granted the option to buy out the Plaintiff’s share in Stand 25753 Budiriro, Harare, within twelve (12) months, or such longer period as the parties may agree, from the date of receipt of the evaluation report. 13) If Defendant fails to buy out Plaintiff’s share in Stand 25753 Budiriro, Harare, within the stipulated period, Plaintiff will have the option to buy out Defendant’s share within six (6) months of such failure, or such longer period as the parties may agree. 14) The Plaintiff be and is hereby granted the option to buy out the Defendant’s share in the following property at Plot 16 Sabi Ogg , Chikomba, within twelve (12) months, or such longer period as the parties may agree, from the date of receipt of the evaluation report. a) Improvements b) Massey Ferguson tractor with front blades and trailer c) d) e) Tractor plow Tractor harrow Dining room table 15) Should the parties fail to buy each other out within the stated period, or such longer time as the parties may agree, the property shall be sold to the best advantage, and the 16) 17) proceeds therefrom shall be shared in the ratios stated above. The cost of the evaluation shall be shared equally by the parties. The Defendant be and is hereby ordered to vacate stand Number 51187 Kgaleview, Gaborone, on or before 31 December 2024. HH 307-24 HCH 7383/22 18) The Plaintiff be and is hereby ordered to contribute seventy (70) percent towards the accommodation of the minor children until the youngest child attains the age of majority or becomes self-supporting, whichever occurs first. 19) Alternatively, the Defendant shall be granted a usufruct over stand Number 51187 Kgaleview, Gaborone, until the youngest child attains the age of majority or becomes self-supporting, whichever occurs first. 20) If Defendant is granted a usufruct as stated in eighteen (18) above, Plaintiff will be relieved of the obligation to contribute to the cost of accommodation stated in seventeen (17) above. 21) Each party shall bear its own costs. Tawanda Law Practice, Plaintiff’s legal practitioners Gowere Law Chambers, Defendant’s legal practitioners