Bekithemba Maphosa v Sithokozile Maphosa (Nee Ncube)

### Preamble
1
HB 72/22
HC 147/18
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BEKITHEMBA MAPHOSA

Versus

SITHOKOZILE MAPHOSA (NEE NCUBE)

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 17 FEBRUARY & 17 MARCH 2022

Civil Trial

E. Mlalazi for the plaintiff

Ms S. Mkhwananzi for the defendant

MOYO J:	This is a claim for divorce and ancillary relief.  At a pre-trial conference the parties agreed that their marriage has irretrievably broken down and that it cannot be salvaged.  They however, failed to resolve the issue of a Mercedes Benz motor vehicle registration number ADH 7024 and the immovable property known as stand 1724 Emganwini in Bulawayo.  The parties were married to each other in terms of the Marriages Act Chapter 37 on the 20th of October 1989.  At the time of divorce there are no minor children born of the marriage, all children are majors.

The parties having agreed that the marriage has irretrievably broken down there is no need to re-look at that issue in this judgment.  I only have to determine 2 ancillary issues, namely whether the Mercedes Benz motor vehicle registration number ADH 7024 is a matrimonial asset and if so how it should be equitably re-distributed.

I also need to determine the equitable re-distribution of stand 1724 Emganwini in Bulawayo being the matrimonial home.

Mercedes Benz motor vehicle

From the evidence led by the parties, this vehicle was purchased by the plaintiff in the United Kingdom and shipped to Zimbabwe where a friend received the motor vehicle and kept it at his house.  Plaintiff averred that the motor vehicle was purchased by him in the United Kingdom on behalf of a brother based in Australia as cars are cheaper in the United Kingdom.  Plaintiff further stated that he had to use his names as the purchaser and shipper of the car and that even upon landing in Zimbabwe, the car had to adopt the names in the shipping documents.

He also told the court that the car has never been kept at his house but was kept at a friend’s house per the instructions of his brother, the owner.  Defendant confirms that the car was bought by plaintiff in the United Kingdom and that it was received in Zimbabwe and kept by a friend but she insists that it belongs to plaintiff.  She however, told the court that plaintiff would not allow the usage of that vehicle for family errands.  With these facts I am unable to find that the Mercedes Benz is a matrimonial asset.  The plaintiff who purchased the car says it is not, it was bought for and on behalf of a brother.  The vehicle has never been in the custody of plaintiff’s family neither has it been used as a family vehicle.  I am therefore unable to find that it is nevertheless a matrimonial asset as clearly, the situation on the ground does not tally with such a finding.

Stand number 1724 Emganwini, Bulawayo

It is common cause that this is matrimonial property.  Where the parties are at variance is how should it be re-distributed at divorce?  Plaintiff offers defendant 30% and that he retains 70% of the asset.  Defendant claims 50% in the asset plaintiff states that he purchased the property through his finance and also provided finance for its renovations.  Defendant claims that as a housewife she looked after the household while plaintiff was working outside the country.  She also claims that she ran around putting together the renovations on the monies sent by plaintiff.  She further stated that she has also been in the business of a tailor and that she contributed something to the renovations.   Plaintiff averred that while he contributed financially to the acquisition and renovation of the property, he also wanted the court to reduce defendant’s share in the immovable property on the strength that defendant committed adultery as evidenced by DNA results for one of the parties’ children, whose DNA results excluded plaintiff as a father.  Defendant denies any wrongdoing but avers that plaintiff himself committed adultery during the marriage and sired a daughter one Tamia Maphosa.  Plaintiff acknowledged that it is true that he sired a daughter one Tamia Maphosa during the marriage.  It therefore follows in my view that if defendant committed adultery and gave birth to the child excluded by the DNA results, looking at plaintiff’s own conduct this court cannot use the aspect of adultery to re-distribute any asset because both parties are equally culpable on that score.  I do not see the reason why defendant should be penalized for her alleged adultery when plaintiff’s own adultery is considered to be irrelevant in the re-distribution of property.  I do not accept plaintiff’s counsel’s submission that plaintiff apologized for his own adultery and it was therefore condoned.  I do not believe that should be used in the re-distribution of the assets.  I accordingly find that both parties being equally culpable, the terrain for the re-distribution of the immovable property is thus level.  This court just has to apply the usual considerations as there is nothing peculiar in this case.  It is for these reasons that I find that the defendant was a housewife who looked after the children and the entire household while plaintiff sourced finances away from home.  Her indirect contributions as a housewife and a mother, whilst they cannot be quantified in monetary terms, household chores, managing a household, raising children and attending to the everyday tasks of a home might not be easy to put a financial tag on but are important and integral aspects of what constitute a home and a family.  It is because the defendant was available to run the home as a housewife, raise and nurture the children that, plaintiff got the opportunity to be away from home and become financially resourceful.  Both parties therefore were important components of the household, both in the acquisition and maintenance of the property and the keeping of the household intact, running smoothly and in existence.  It is for these reasons that I will award either party a 50% share in the immovable asset, also considering that it is the main asset in the matrimonial estate of the parties.

I accordingly make the following order:

A decree of divorce be and is hereby granted.

That stand number 1724 Emganwini in Bulawayo be sold to best advantage and that the net proceeds therefrom be shared equally between the parties.

That, each party bears his/her own costs.

Dube-Banda, Nzarayapenga & Partners, plaintiff’s legal practitioners

Sansole & Senda, defendant’s legal practitioners