Sibanda v Sibanda [2026] ZWSC 13 (6 January 2026)

1Judgment No. SC 04/26Civil Appeal No. SC 624/24 REPORTABLE (04) FLORENCE SIBANDA (NEE MUGOMBA) v THANDAZANI SIBANDA SUPREME COURT OF ZIMBABWE MAVANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 1 OCTOBER 2025 & 6 JANUARY 2026 A.S Ndlovu and J. Ndlovu, for the applicant L. Madhuku and H. Tererai, for the respondent MUSAKWA JA: [1] This is an appeal against the judgment of the High Court (the court a quo), which issued a decree of divorce and distributed the assets between the appellant and the respondent. The matter was initially set down for16 September 2025 and it was postponed at the instance of the parties as they wanted to negotiate a settlement. They failed. We heard the matter on 1 October 2025 and reserved the judgment. We now hand down the judgment. BACKGROUND FACTS [2] The parties were married from 1993 till 27 September 2024, when a decree of divorce was granted by the court a quo. From 1993, they were married customarily until 1998 when the marriage was solemnized in terms of the Marriage Act [ Chapter 5:11]. During the subsistence of the marriage, the two had three children of which only one of them is a minor. They formed 4 companies and built four homes, among other assets. In December 2019, the respondent left their matrimonial home, abandoning the appellant and the three children, leading the appellant to institute divorce proceedings in the court a quo. 2Judgment No. SC 04/26Civil Appeal No. SC 624/24 [3] Through summons filed on 27 September 2021, the appellant averred that the marriage between her and the respondent had irretrievably broken down to an extent that they could no longer live together as husband and wife. Further, she stated that there were no reasonable prospects for the restoration of a normal marriage relationship between the parties. The appellant further claimed that she be awarded custody of the minor child whilst the respondent would have the right of access. She also claimed that both parties meet the tertiary and other associated costs of one major child. She further claimed that the parties' proprietary rights be determined with the appellant having 100% ownership and control of the following properties: (a) No. 2220 Mainway, Meadows, Waterfalls, Harare and its household effects and furniture situated therein. (b) A developed stand in Binga. (c) 2 boats. (d) An undeveloped stand in Ruwa. (e) 50% of Civil Works Laboratory (Pvt) Ltd. [4] She further claimed that the respondent be awarded 100% ownership and control of the following properties; Glen Norah House with all its household effects and furniture, (a) House 5516 Pumula Old, Bulawayo, with all its household effects and furniture, (b) House No 15109 Nkulumane 12, Bulawayo, with all its household effects and furniture, (c) An undeveloped stand in Binga (d) 3 boats and 3Judgment No. SC 04/26Civil Appeal No. SC 624/24 (e) 50% of Civil Works Laboratory (Pvt) Ltd [5] The respondent entered appearance to defend and agreed that the parties were no longer communicating as husband and wife and had not been intimate since 2019. He further did not dispute the appellant having custody of the minor child. He, however, stated that the issue of Sithandazile’s upkeep could not be raised in the matter as she was a major who could institute legal proceedings on her own. The respondent disputed the sharing of property as had been proposed by the appellant as not being equitable and justifiable, and further required a description of the property claimed. [6] At the pre-trial conference stage, the parties agreed on the following issues to be referred to trial: 1. What would be a fair and equitable distribution of the assets of the parties? 2. Terms of access to be exercised by the respondent in respect of the minor child, Mthabisi Sibanda, born 2 February 2014. 3. Who should pay the costs of the suit? The parties, however, agreed on the following issues: 1. That the marriage had irretrievably broken down. 2. That custody of the minor child shall be awarded to the appellant. 3. Maintenance of the minor child shall be regulated by the court Order M1034/21, any variation thereof to be dealt with by the Magistrates’ Court. [7] At trial, the appellant stated that she got married customarily to the respondent in December 1993, and upgraded the same to a civil marriage in 1997. She testified that she was visually 4Judgment No. SC 04/26Civil Appeal No. SC 624/24 impaired, could not write or read. Her evidence was that she and the respondent have three children, Thandani, who was 30 years old, Sithandazile, who was 25 years old and Mthabisi who was 10 years old. She gave evidence with respect to the No. 2220 Mainway Meadows, Waterfalls, Harare property. She stated that between 2000 and 2001, both parties purchased the property and it was undeveloped. She stated that the duo started building soon after the purchase. She testified that the construction was financed from the companies they had both started. The property was, however, registered in the respondent’s name. She further stated that she contributed indirectly by taking care of the family. [8] On the contrary, the respondent averred that the property belonged to him as it was registered in his name. In respect of Stand 5109 Glen Norah Township, House No 5516 Pumula Old, Bulawayo and House No 15109 Nkulumane 12, Bulawayo, it was the appellant's evidence that these could be allocated to the respondent. Evidence was adduced in respect of Binga Stands, that is, Stand 363 High Density and Stand 1308 Low Density. The appellant proposed that, of the two stands, she be awarded one and the respondent be awarded the other. The respondent, on the other hand, proposed that the stands be awarded to the appellant with an order for reimbursement of what he had invested. [9] In respect of the undeveloped Ruwa stand the appellant could not produce particulars in respect of the stand; on the other hand, the respondent averred that the property had been repossessed. With respect to the boats, the appellant gave evidence that the parties had 5 boats that were used for commercial fishing in Kariba. He proposed that she be awarded any two boats. The respondent, however, stated that only three boats were registered in his name, and the other two belonged to Saboth Fisheries and produced registration books to this effect. 5Judgment No. SC 04/26Civil Appeal No. SC 624/24 THE COURT A QUO ’S FINDINGS [10] In reaching its decision, the court a quo relied on s 7 (4) of the Matrimonial Causes Act and found that the same obliged the court a quo, when determining the division of assets and maintenance upon divorce, to consider all the circumstances of the case, including the parties’ respective income-earning capacities, financial resources, needs and obligations, the standard of living during the marriage, the age and physical or mental condition of each spouse and child, the duration of the marriage, and both direct and indirect contributions made by each spouse, including domestic and caregiving roles. The court reasoned that these factors must be weighed holistically, with the overarching objective of achieving a just and equitable outcome and, as far as is reasonable and practicable, placing the spouses and children in the position they would have occupied had a normal marriage relationship continued. [11] After a full trial, the court a quo issued a decree of divorce, granted custody of the minor child to the appellant, and distributed the assets. The respondent was ordered to contribute US$5000.00 or its equivalent towards the appellant’s legal costs at the bank rate prevailing on the date of payment. [12] Dissatisfied with the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds of appeal: “GROUNDS OF APPEAL 1. The court a quo grossly erred in fact and in law in dividing the matrimonial home under paras 5 to 12 and 19 to 24 of the Order, by directing the appellant to buy out the 6Judgment No. SC 04/26Civil Appeal No. SC 624/24 Respondent rather than awarding her the full properties as prayed for, in circumstances where the appellant’s poor health financial situation restrict her from being able to buy out the respondent from the matrimonial home and the boats, and making the resulting order unjust and inequitable in the circumstances 2. The court a quo grossly erred and misdirected itself on the facts in finding that the Appellant, in seeking that they be awarded to the respondent, did not lay a claim in Stand 5109 Glen Norah, House No 5516 Pumula Old, Bulawayo and House No. 15109 Nkulumane 12, Bulawayo, [the three properties] thereby failing to treat the three properties as part of assets of the parties available for distribution. 3. A fortiori, in excluding the three properties, the court a quo grossly erred at law by failing to properly and judicially exercise the discretion conferred under s 7 of the Matrimonial Causes Act [Chapter 5:13] in making the order regarding the apportionment and distribution of the parties’ immovable assets 4. The court a quo grossly erred and misdirected itself in fact by failing to find and consider that there was no evidence of the existence of a company called Saboth Fisheries, which owned two boats, KF3075 Sithandazile and KF3076 Cwaka, instead that the boats formed part of the assets of the parties available and subject to distribution as respondent is the beneficial owner. a. Alternatively, the court a quo erred and misdirected itself on the law and when it held that the Defendant had discharged the onus placed on him to prove that the two Boats KF3075 Sithandazile and KF3076 Cwaka were owned by an entity called Saboth Fisheries and do not belong to him, when no such proof was placed before it. 7Judgment No. SC 04/26Civil Appeal No. SC 624/24 5. The court a quo grossly erred and misdirected itself at law and on the facts in making an apportionment and distribution order in respect of the immovable properties which did not place the parties in the position they would have been had a normal marriage relationship continued between them. 6. The court a quo erred and misdirected itself on the law and on the facts when it shifted the onus to the appellant to prove the existence of the Ruwa Stand when such was common cause. Consequently, it erred and misdirected itself in accepting the respondent's allegation that the Ruwa Stand was repossessed when there was no such evidence that was placed before it. 7. The court a quo erred and misdirected itself in awarding the appellant 100% shares in the companies where the parties were shareholders without an inquiry into the liabilities and financial exposures of the companies.” THE APPELLANT’S SUBMISSIONS ON APPEAL [13] At the hearing, Ms Ndlovu, for the appellant, indicated that the parties had failed to reach an out-of-court settlement. She stated that the appellant had, however, abandoned the preliminary point regarding the respondent having dirty hands. The court questioned whether the third and fifth grounds of appeal were clear and concise, to which the appellant conceded that the grounds were superfluous and proceeded to abandon the third and fifth grounds of appeal. [14] Ms Ndlovu averred that on appeal, the appellant was simply attacking the division of property by the court a quo. She argued that in distributing the properties, the court a quo did not apply the circumstances of the parties and did not conduct a proper enquiry, as required by s 8Judgment No. SC 04/26Civil Appeal No. SC 624/24 7 of the Matrimonial Causes Act [Chapter 5:13]. She stated that the order of the court a quo required the appellant to buy out the respondent from the matrimonial house without considering the appellant's health and financial capacity, which could not permit such. The court questioned counsel's submission in light of the right to buy out the other from the matrimonial property being reciprocal, as the respondent could also buy out the appellant. In response, Ms Ndlovu submitted that none of the parties had prayed for either party to buy out the other; as such, the order granted by the court a quo was divorced from what was pleaded by the parties. She stated further that the court a quo in its judgment did not address the issue of a buy-out option and the considerations that led to such an order. It was her submission that the buy-out option did not achieve a just and equitable result, as it only benefited the respondent. [15] Ms Ndlovu contended further that the court a quo only focused on a few provisions of s 7 of the Matrimonial Causes Act. She submitted further that the Court should look at the overall result of the order, as the appellant simply wanted a roof over her head for the rest of her life. She submitted that the appellant was adamant on this desire to the extent that she let the respondent have the rest of the properties. She submitted that the Solomonic wisdom of splitting all the properties in half was not appropriate or equitable in the circumstances of their case. [16] She contended further that the court a quo erred in excluding the other three immovable properties in the division simply because the appellant was willing to forgo them. She submitted that the appellant merely proposed how the property was to be shared if the parties were to be divorced, but did not waive her right to the three properties. She contended that it 9Judgment No. SC 04/26Civil Appeal No. SC 624/24 was common cause that these properties were matrimonial, and as such, the properties must be shared in a manner that is fair and equitable. [17] The Court questioned whether the appellant had satisfied the test for the Court to interfere with the exercise of discretion of the court a quo. Ms Ndlovu submitted that the test was that the decision made by the court a quo must be such that it is outrageous in defiance of logic, and such was the case when the court a quo did not look at the financial situation and the health of the appellant, as she was visually impaired and that a buy-out option was not in the parties’ pleadings. She, however, conceded that the appellant had agreed that she and the respondent had equally contributed towards the matrimonial property. The Court further questioned whether s 7 (2) (a) of the Matrimonial Causes Act did not allow the court to order a buy-out. The appellant agreed that the court could grant such an order, but only if invited by the parties. THE RESPONDENT’S SUBMISSIONS ON APPEAL [19] On the other hand, Mr Madhuku for the respondent argued that there was no ground of appeal which attacked the exercise of discretion by the court a quo. He highlighted that two grounds of appeal had been abandoned and that the seventh ground of appeal was meaningless, leaving four grounds of appeal which did not attack the court's exercise of discretion. He submitted that the duty of the court by virtue of s 7 of the Matrimonial Causes Act involves the exercise of considerable discretion. He submitted that both parties wanted 100% of the matrimonial property, hence the court a quo divided the property. He further submitted further that the heads of argument filed by the appellant abandoned the grounds of appeal as 10Judgment No. SC 04/26Civil Appeal No. SC 624/24 they do not state which ground of appeal they are dealing with; rather, the appellant adopts an omnibus approach. [20] Counsel argued further that, even if the Court was to look at the exercise of discretion by the court a quo, it was clear that the court a quo having looked at both parties' position, was clear as to the appellant’s situation and financial position, and ordered, in the exercise of its discretion, that the property be shared equally. Mr Madhuku submitted that there was nothing unreasonable about dividing the property equally. He argued that the other immovable properties were not part of the matrimonial property, and that if they were, the appellant would have laid a claim on them. Further that it was common cause that they were not registered in the name of either party. [21] In reply, Ms Ndlovu refuted that the appellant did not attack the discretion of the court a quo. She submitted that the decision made by the court a quo was entirely divorced from the provisions of s 7 of the Matrimonial Causes Act. She argued that the expectation created by the court a quo’s order does not align with the requirements in s 7 of the Matrimonial Causes Act, as there was no factual basis to cause the division of the matrimonial property. She pointed the Court to a letter from the City of Harare, which she stated confirmed the respondent’s ownership of the Glen Norah property. She submitted further that the issue as to which properties were subject to distribution was common cause. The court questioned counsel as to why she had not motivated the distribution of the boats and the Ruwa house. Ms Ndlovu submitted that the legal argument already made applied with equal force to the distribution of the boats and the Ruwa house. Regarding the house in Ruwa, she submitted 11Judgment No. SC 04/26Civil Appeal No. SC 624/24 that the court a quo shifted the burden to the appellant when the evidence to prove the same was within the purview of the respondent, who would not avail the same. ISSUE FOR DETERMINATION [22] Considering the grounds of appeal raised by the appellant and the appellant having abandoned the third and fifth grounds of appeal, the main contention is on: 1. Whether or not the court a quo injudiciously exercised its discretion in a bid to reach a fair and equitable distribution of property. APPLICATION OF THE LAW TO THE FACTS [23] Applying the principles governing appellate interference with the exercise of discretion, it is settled that this Court will not lightly interfere with a decision of the court a quo unless it is shown that the court acted on a wrong principle, misdirected itself on the facts or arrived at a decision that is so unreasonable as to induce a sense of shock. Section 7 of the Matrimonial Causes Act vests the trial court with a wide discretion to achieve a fair and equitable distribution of matrimonial assets, having regard to all the circumstances of the case, including the duration of the marriage, the contributions of the parties both direct and indirect and their respective needs and capacities. The discretion, though wide, must be exercised judicially and in accordance with the evidence placed before the court. [24] Turning to the facts of the present matter, the appellant contends that the resulting order failed to achieve substantive equity in light of her personal circumstances and the manner in which certain assets were treated. In particular, the order directing a buy-out of the matrimonial home, notwithstanding that such relief was not expressly sought by either party and the 12Judgment No. SC 04/26Civil Appeal No. SC 624/24 exclusion or treatment of certain immovable properties and movable assets, forms the crux of the appellant’s complaint. The question for determination is therefore not whether a different court might have reached a different conclusion, but whether, on the totality of the evidence, the distribution ordered by the court a quo can properly be said to reflect a fair and equitable outcome as envisaged by s 7 of the Act or whether the impugned order discloses a misdirection warranting appellate interference. [25] Section 7 (4) of the Matrimonial Causes Act sets out the factors which the Court is enjoined to consider when determining the division of assets and the making of maintenance orders in divorce proceedings, and provides as follows: “In making an order in terms of subs (1) an appropriate court shall have regard to all the circumstances of the case, including the following- (a) the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future; (c) the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained; (d) the age and physical and mental condition of each spouse and child; (e) 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; (f) 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; (g) 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” [26] Section 7 (4) of the Matrimonial Causes Act requires the court, when making orders for the division of assets and maintenance, to conduct a holistic and fact-sensitive enquiry that goes 13Judgment No. SC 04/26Civil Appeal No. SC 624/24 beyond a rigid or arithmetical approach to distribution. The provision obliges the court to have regard to all the circumstances of the case, including the parties’ respective income- earning capacities and financial resources, their present and foreseeable needs and obligations, the standard of living enjoyed during the marriage, the age and physical or mental condition of each spouse, the duration of the marriage, and both direct and indirect contributions made by each spouse, including domestic and caregiving roles. These factors must be weighed cumulatively, with the overarching objective of achieving substantive fairness rather than formal equality. In doing so, the court is enjoined, as far as is reasonable and practicable, to place the spouses in the position they would have occupied had a normal marriage relationship continued, thereby ensuring that the exercise of discretion is guided by justice, practicality and the realities facing the parties upon dissolution of the marriage. [27] An examination of the record shows that the court a quo was alive to the need to distribute the parties’ assets in terms of s 7 of the Matrimonial Causes Act. However, the enquiry mandated by s 7 (4) is not a mechanical one, nor is it satisfied by a mere reference to the statute. The court was required to actively engage with the relevant factors and to demonstrate, on the face of its judgment, that such factors were weighed cumulatively in order to arrive at a just and equitable outcome. While equality may, in appropriate circumstances, achieve equity, s 7 (4) does not prescribe a default position of equal division, but rather obliges the court to consider the particular circumstances of the spouses and the realities they face upon dissolution of the marriage. [28] The test set out in s 7 mandated the court a quo to exercise its discretion in reaching a just and equitable distribution of assets. In Gonye v Gonye SC 15/09, the Court stated as follows: 14Judgment No. SC 04/26Civil Appeal No. SC 624/24 “It is important to note that a court has an extremely wide discretion to exercise regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides that the court may make an order with regard to 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.’ The rights claimed by the spouses under s 7(1) of the Act are dependent upon the exercise by the court of the broad discretion.” In light of the above authority, the court a quo had a wide discretion in ordering the division and apportionment of the parties’ matrimonial property in casu. This Court can only interfere with such discretion when there are allegations and proof that the discretion was injudiciously exercised. The law in this regard is well settled. In the case of Ceck Enterprises (Pvt) Ltd v Sithole & Ors SC 87/20 at p 8, GWAUNZA DCJ stated the following: “It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court, unless it is shown that it was not judiciously exercised. See Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S) where it was stated as follows at 62G – 63A: - ‘…. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.’” [29] The reason for the above holding is that the trial court had the privilege of scrutinizing evidence before coming up with a decision, which privilege this Court does not enjoy. It seems that all odds are against the appellant as there are no allegations that the court a quo injudiciously exercised its discretion. We agree with Mr Madhuku that the appellant does not attack the court a quo’s failure to properly exercise its discretion. In the absence of such allegations, the present appeal ought to fail. 15Judgment No. SC 04/26Civil Appeal No. SC 624/24 [30] It is settled law that an appellate court will not lightly interfere with a lower court’s exercise of discretion unless it is shown to have been exercised in error, or on a wrong principle, irrelevant considerations, omission of relevant factors, or a mistake of fact. In this case, the court a quo properly considered the parties’ financial circumstances, contributions to the matrimonial home, and the evidence that both parties contributed equally. It thus did not err in ordering an equal division with a buy-out option. Similarly, the distribution of the boats was equitable and did not prejudice the appellant, as the buy-out option applied to both parties. The court also correctly declined to deal with other properties not pleaded or placed before it, as a court cannot determine issues not raised by the parties. Accordingly, there is no basis for appellate interference with the court a quo’s decision. DISPOSITION [31] In light of the foregoing, this Court is satisfied that the court a quo properly exercised its discretion in coming up with its decision. No meaningful arguments were advanced in attacking the court a quo’s exercise of its discretion. Accordingly, it is ordered as follows: “The appeal be and is hereby dismissed with costs.” MAVANGIRA JA : I agree BHUNU JA : I agree 16Judgment No. SC 04/26Civil Appeal No. SC 624/24 Ndlovu Attorneys, appellant’s legal practitioners Tererai Legal Practice, respondent’s legal practitioners