Hubert Timburwa v Vimbai Timburwa (nee Lunga)

### Preamble
1
HB 64/19
HC 435/16
---------




HUBERT TIMBURWA

versus

VIMBAI TIMBURWA (nee Lunga)

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 2 OCTOBER 2018

Civil Trial

H Shenje for plaintiff

Miss Ngwasha for the defendant

MOYO J:	The plaintiff and defendant were married to each other on the 11th of October 2002.

The marriage still subsists.  There is one minor child of the marriage namely Tinotenda Timburwa a boy born on 9 November 2005.  Both parties agree that the marriage relationship has irretrievably broken down.  They agreed on all issues save for the redistribution of the matrimonial home namely stand number 16631 Cowdray Park, Bulawayo.

The defendant initially stated that she solely built this home, and that plaintiff should not benefit.  Evidence led in court, even from defendant herself showed that plaintiff moulded the bricks for the construction of the house and the builder that was called one Elliot Ngwenya confirmed that both parties built this home.  The court is therefore satisfied from the evidence before it that both parties contributed to the construction of this home as husband and wife.  In terms of section 2 of the Matrimonial Causes Act, this court should redistribute matrimonial property in a fair, just and equitable manner, from the facts of this matter, no other justice or equity can be achieved same to give the parties equal shares.  Defendant averred that there is a mentally challenged adult child that must be catered for.

The issue of the mentally challenged child has the problem that it was firstly not medically proven through Doctor’s reports since plaintiff denies this.  Secondly, even if it had been proven it would not be relevant to the issue of the shares that the parties should get in the immovable asset in terms of the law but it would be relevant only for purposes of maintenance of such a child if the need is medically shown.  This court would not be persuaded to deny a spouse a right to a share in a matrimonial home on this sole basis.  A mentally challenged child’s rights are no different from those of a minor in my view.

It is their care that the court should be concerned about in as far as financial and medical provisions are concerned but not that a property cannot be redistributed as a result of that.

The issues of custody, maintenance and the movable items were all by consent and I will only incorporate then in the court order.

I accordingly make the following order:

It is ordered that:

a)	A decree of divorce be and is hereby granted.

b)	The custody of the only minor child of the marriage namely Tinotenda Timburwa born on 9 November 2005 be and is hereby awarded to the defendant with plaintiff being allowed reasonable access.

c)	The maintenance order in case number M1743/15 remains effective until either varied or discharged by the maintenance court.

d)	All the household goods are awarded to the defendant.

e)	The plaintiff is awarded the following:

(i)	a steel cupboard

(ii)	toolboxes with tools

(iii)	brick moulds

(iv)	a wheelbarrow

f)	The immovable property namely stand 16631 Cowdray Park shall be sold to best advantage through a reputable estate agent and the net proceeds therefrom shared equally between the parties.

g)	If there are any cession/transfer documents that need to be signed by either party pursuant to such a sale, and such a party refuses or neglects to sign same, the Sheriff is hereby authorized to sign such documents.

h)	Each party bears its own costs.

Shenje and Company, plaintiff’s legal practitioners

Legal Resources Foundation, defendant’s legal practitioners