Tanga v Tanga (836 of 2025) [2025] ZWHHC 532 (15 June 2025)

1 HH 42-26 HCH 836/25 VONAI TANGA (NEE RUSHWAYA) and GABRIEL TANGA HIGH COURT OF ZIMBABWE PHILLIPS J HARARE: 11 & 15 JUNE 2025 N Mugiya for the plaintiff N L Jani for the defendant Summons For Divorce PHILLIPS J Introduction The Plaintiff issued summons for divorce and sharing of matrimonial property on the 13th of September 2024. The parties convened a roundtable meeting wherein they agreed that a decree of divorce be granted by consent, further they agreed on the issues of custody and maintenance of their minor child KT(born 24 October 2013). The parties also agreed on the equal sharing of Plot 2, Dedende, Hwedza and the sharing of other specific movables. The parties, however, failed to agree on the distribution of their livestock, a Honda Fit, a 2 Tonne Truck and Stand number 501 Elmswood, Marondera, the latter being an immovable property which the Plaintiff states no longer exists and is therefore no longer matrimonial property. Relief sought The Plaintiff’s summons and declaration pray for the following: 1. A decree of divorce be granted. 2. An order that custody of the minor child namely KT (born 24 October 2013) be awarded to the plaintiff with defendant exercising access on the last two weeks of every school holiday. 3. An order for maintenance with the defendant being ordered to contribute One Hundred United States Dollars (US$100.00) per month towards the upkeep of the minor child and school fees for Four Hundred United States Dollars (US$400.00) per term. 4. An order for distribution of property in terms of paragraph 11 above. 2 HH 42-26 HCH 836/25 5. The Defendant to pay the costs of suit for the Plaintiff on a client-attorney scale. Issues for determination The minutes to the round table meeting that was held were uploaded on November 8, 2024. The agreed issues for trial were as follows: 1. Whether or not Stand No. 501 Elmswood, Marondera, Honda Fit vehicle Registration No. AFO 6236 and a 2 Tonne Truck exist and form part of the matrimonial property to be shared. 2. What is the equitable distribution of the said assets in the event they are found to be in existence and form part of the matrimonial property. 3. What is the equitable distribution of House No. 2701, Torwood, Redcliff, Kwekwe. At trial, both the plaintiff and the defendant gave evidence. It is clear from the evidence given that the marriage has irretrievably broken down such that it is appropriate for an order for divorce to be granted. On the issue of 501 Elmswood, the Plaintiff led evidence to the effect that this property was registered in her name solely after she had applied for the stand as an individual but she has since sold it therefore it was no longer available for sharing. She provided the agreement of sale which was filed of record. On the cattle, the plaintiff avers that there are 6 cows and disputes that any have died. Regarding the Honda Fit, the Plaintiff’s position was that the said vehicle’s engine “knocked”, in other words, it packed up and she was no longer able to get it back on the road. Her evidence was that she disposed of it. On the 2 Tonne truck, the Plaintiff stated that when the parties separated, the Defendant had the truck but she does not have much more to comment on it. The Defendant questioned and disputed that 501 Elmswood had been sold and raised issues with the conditions within the agreement of sale that the plaintiff had produced stating that the terms and conditions of the offer to the plaintiff included a condition that the property was not to be sold before it had been transferred into the Plaintiff’s name. His testimony was that the immovable property had been allocated on paper to the Plaintiff although it belonged to the family and that that he often resides at the property with the helpers in the cottage. His testimony was that he had applied for the stand at 501 Elmswood in Marondera at the Ministry of Housing but because the scheme benefited one family with one stand, he had to 3 HH 42-26 HCH 836/25 withdraw his name since he already had a property in his name. The defendant disputed the Plaintiff’s testimony and averred that the property name had not yet been changed because there has not been a sale. He produced a letter from the Municipality of Marondera which was dated after the current Summons which confirmed that the name which is entered in municipality records as the one which they considered to be in possession of the property in question. On the issue of the Honda Fit he testified that the vehicle had been bought as a family car and that it was still there for consideration as their matrimonial property since he had confirmed the information with the Central Vehicle Registry – CVR. He told the court that the vehicle could not have been sold because there is no authority to sell it until 2026; he further testified that he saw the Plaintiff driving the very car the previous month. With regards to the cattle, he told the court that five cows had died and that he had informed the Plaintiff about this over the phone. His position on the 2 Tonne truck is that it is dilapidated but if the Plaintiff wishes to have it, it may be awarded to her by the court. The Defendant’s testimony is that he put a lot of effort into working to get assets for the family and prays for everything to be shared equally. The defendant further gave evidence that there were previous summons that the plaintiff had issued in February 2024 under case number HCH 759/24 prior to the ones before the court. Those summons were withdrawn in April 2024 before the current summons under HCHF 836/24 were filed. The significance of the previous summons will be discussed later. The Law In considering the assets that are available for distribution at the dissolution of a marriage the court is guided by the provisions Section 7 of the Matrimonial Causes Act [Chapter 5:13] which guides the court as follows: “(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; (b) the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage. (2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the generality of this subsection— 4 HH 42-26 HCH 836/25 (a) order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order; (b) confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient. (3) The power of an appropriate court to make an order in terms of paragraph (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage— (a) by way of an 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. (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— (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.”  Mwayera J (as she was then) in Duncan v Duncan (HC 3068 of 2015; HH 232 of 2017) [2017] ZWHHC 232 (30 march 2017) discussed spouses assets and equitable distribution and quoted GILLESPIE J (as he then was) on Section 7 of the Matrimonial Causes Act in Shenje v Shenje 2001 (2) ZLR 160 (H) wherein he said as follows: “… In deciding what is reasonable, practical and just in any division, the court is enjoined to have regard to all the circumstances at the case. A number of more important and more usual circumstances are listed in the subsection. This list is not complete. It is not possible to give a complete list of all factors. The decision to a property division order is an exercise of judicial discretion, based on relevant factors aimed at achieving a reasonable, practical and just division which secures for each party the advantage they can fairly expect from having been married to one another, and avoids the disadvantages to the extent they are not inevitable of becoming divorced…” In the case of Isaac Sithole v Lucia Sithole HH 6674/14, Chitakunye J (as he was then commented as follows: “It is trite law that a wife cannot bar her husband from selling assets registered in his name more so when no divorce action requiring the distribution of those assets is instituted.” 5 HH 42-26 HCH 836/25 In the same case, the Honourable Judge also covered what assets are distributed at the dissolution of a marriage stating as follows: “The assets to be considered for division and distribution are assets of the spouses. The term ‘assets of the spouses’ connotes assets that maybe in either spouse’s name or jointly owned. Gonye v Gonye 2009 (1) ZLR 232 (S). Such assets include all assets purchased whether before or during the marriage and property acquired after separation unless such property is specifically excluded in terms of section 7(3) of the said Act. Musonza v Musonza HH35/10 and Ncube v Ncube 1993 (1) ZLR 39 (S).” In the case of Muswere v Makanza and Others 2004(2) ZLR 262(H) MAKARAU J (as she was then) had occasion to deal with a situation where a husband had a disposed of the house that the wife believed she had a share in. The wife had argued that the husband should not have disposed it without her consent. The learned judge at page 26 stated that: “The position in our law is therefore that a wife cannot even stop her husband from selling the matrimonial home or any other immovable property registered in his sole name but forming the joint matrimonial estate. There must be some evidence that in disposing of the property, the husband is disposing it at under value and to a scoundrel. (See  Muganga’s case (supra).) Mere knowledge that the seller of the property is a married man who does not have the consent of his wife to dispose of the property is not enough. (See  Pretorius v Pretorius  1948 (1) SA 250 (A).” Application of Law to the Facts. The plaintiff led evidence that the parties acquired beasts and the defendant alleges that most of them have died. The defendant failed to present any evidence to show this court that most or more specifically, five of the beasts had died during the course of the proceedings. The plaintiff’s evidence was to the effect that she was not informed of this position by the defendant and that the defendant had failed to produce a stock card to show that the beasts are no longer in existence as he claimed. He had also failed to bring in the herd boy to give the relevant evidence before the court. There is therefore no evidence before this court to show that the five beasts are no longer in existence for distribution. The plaintiff led evidence to the effect that stand no. 501 Elmswood, Marondera was registered in her name, that it was sold shortly before filing these summons and that it is no longer available for distribution as matrimonial property. The Defendant raised the issue that the plaintiff had instituted initial summons which she had withdrawn in an effort to resolve issues with the defendant. The Defendant’s averments were that 501 Elmswood was included in those previous summons but excluded in the current summons because the Plaintiff seeks to unjustly enrich herself to his prejudice. Although the initial summons are not a part of the record before this court, the plaintiff did not dispute the fact that she had indeed previously included 501 Elmswood for distribution in those initial summons and now excluded them 6 HH 42-26 HCH 836/25 since that property had just been sold. The evidence is also clear that the agreement of sale for the disputed immovable property – 501 Elmswood, was then signed 6 days after the withdrawal of the initial summons. When the plaintiff instituted the current summons, she then excluded 501 Elmswood. From the court’s point of view the plaintiff’s withdrawal of the initial summons had a purpose and that was to ensure that that disputed property would no longer be available by the time the current summons had been filed. This demonstrates an intention to deprive the defendant his share of that specific matrimonial property. The alleged sale of the disputed property has a direct effect on the rights of the defendant in the distribution of the matrimonial property. A letter produced by the defendant from the Marondera District National Housing and Social Amenities dated 15 August 2024 is clear that 501 Elmswood was acquired as a family property. This being the case, along with the fact that the District Office still has the plaintiff as the registered holder some months after the alleged sale gives credence to the defendant’s position. The defendant further gave evidence that he still randomly goes to stay at 501 Elmswood but the plaintiff was unable to positively dispute that or comment on that. Surely the plaintiff ought to have been able to confidently state that that would not have been possible since the property had been sold. The plaintiff instead insisted that the property had been sold but she did not share the proceeds with the defendant as she had used them to pay for school fees. The Plaintiff proposed that the parties share the property called stand number 2701 Torwood Redcliff, Kwekwe at 50% share each and the Defendant in his evidence had conceded that he has no issues with such sharing on condition that they share both properties 50 %. This is despite the fact that the defendant’s evidence that he solely purchased the Kwekwe property before the plaintiff was gainfully employed. The plaintiff’s evidence is that she contributed to the construction of the house thereon so she is entitled to a share thereon. If the plaintiff really sold 501 Elmswood, a family property and did not share the proceeds, would it still be fair to share 2701 Torwood Redcliff. The Plaintiff testified that indeed the said truck exists and the defendant conceded that the truck is in existence though delipidated. His testimony was that if the plaintiff wants it, she can have it and that she is aware of where it is. The plaintiff testified that the Honda Fit, AFO 6236 was sold as a body due to the fact that the engine had “knocked” and she had failed to get the vehicle fixed to bring it back to 7 HH 42-26 HCH 836/25 good running condition. The defendant’s evidence was that the vehicle had been purchased on a tax rebate which prohibits its sale before the lapse of a 5-year period after its purchase. This court therefore questions the legality of the alleged sale. Moreso the defendant gave evidence of documentation from the vehicle registry which shows that the vehicle still exists. There is therefore prima facie proof of the existence of the Honda fit which the plaintiff failed to disprove. In coming up with an order, the court is obligated to take various factors into consideration which include amongst other things the parties’ financial positions, income earning capacities and their standard of living. If the defendant is now a pensioner and he has to share the only other property that is in his name, would justice have been served. If indeed 501 Elmswood had been sold, he would not have benefited anything from its sale since the proceeds were not shared. 501 Elmswood is or was clearly a family property although it had been registered in the plaintiff’s name solely. I do not find it fair that the plaintiff should also then share in the other family property. Disposition 1. A decree of divorce be granted. 2. An order that custody of the minor child namely KT (born 24 October 2013) be awarded to the plaintiff 3. An order that the defendant exercise access on the minor child namely KT(born 24 October 2013) on the last two weeks of every school holiday. 4. An order for the maintenance of the minor child namely KT (born 24 October 2013). The defendant shall contribute One hundred United States Dollars, US$100.00 per month towards the upkeep of the minor child KT(born 24 October 2013) until the child turns 18 years old or becomes self-sufficient. 5. An order that the defendant pay school fees for the minor child namely KT (born 24 October 2013) in the amount of Four Hundred United States Dollars per term until the child turns 18 years old or becomes self-sufficient. 6. An order for distribution of property in the following terms:- 6.1. That the movable property be shared by the parties as follows: Plaintiff Defendant 8 HH 42-26 HCH 836/25 6 cattle (3 of each sex) 6 cattle (3 of each sex) 6 goats 6 goats Cultivator horse power engine Harrow 1 wardrobe Plough 1 upright fridge Electric 4 plate stove 1 bigger TV 1 small TV 2 double beds 1 double bed 1 kitchen unit 1 table with 6 chairs Lounge suite 6.2. That the plaintiff is awarded one half share of Plot No. 2 Dedende, Hwedza whilst the defendant retains the other half share; 6.3. That the plaintiff retain 501 Elmswood, Marondera or value of the proceeds of the sale of the same as her sole property 6.4. That the defendant retain the property called stand number 2701 Torwood Redcliff Kwekwe as his sole property. 6.5. That the Honda Fit bearing number plates AFO 6236 be valued, and each party be awarded a 50% share. The defendant shall be entitled to be paid his 50% share in the motor-vehicle by the plaintiff within six months of this order. 6.6. The plaintiff shall be awarded the 2 Tonne truck as her exclusive property. The defendant is to make all necessary arrangements to ensure that the said truck is transferred to the plaintiff within two months of this order. The parties are to share the costs involved in the said transfer. 6.7. Both parties shall be entitled to 50% share of the beasts acquired during the subsistence of the marriage. The plaintiff shall be entitled to be paid her 50% share value by the defendant within six months of this order. 9 HH 42-26 HCH 836/25 6.8. In respect of values of the property and or assets in this clause, the parties shall agree on the values of the respective property and or asset within 14 days of the date of this court order failing which they shall appoint a mutually agreed valuer to do the valuation within 30 days of the date of such failure to agree. 6.9. Should the parties fail to agree on a valuer the Registrar of the High Court shall appoint such valuer from his list of valuators within 14 days of their failure to agree. 6. 10. Both parties shall equally share the costs of any of the valuations to be done. 7. Each party to bear its own costs. PHILLIPS J……………………………………. Mugiya Law Chambers, Plaintiff’s Legal Practitioners Legal Aid Directorate, Defendant’s Legal Practitioners