Nobuhle Macharaga v Gorden Macharaga

### Preamble
1
HB 167/25
HC 72/23
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NOBUHLE MACHARAGA

Versus

GORDEN MACHARAGA

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 6 OCTOBER AND 16 OCTOBER 2025

Civil trial – matrimonial action

S. Mkwananzi, for the plaintiff.

Defendant in person

KABASA J: 	The plaintiff instituted divorce proceedings against the defendant seeking the dissolution of the marriage and ancillary relief.

In her declaration she elaborated that the parties got married on 14 December 2002 in terms of the then Marriages Act [Chapter 5:11].  Two children were born, one of whom is now a major.  The marriage relationship has deteriorated, at the time of issuance of summons, the parties had not lived as husband and wife for over a year and were sleeping in separate bedrooms.  They acquired both immovable and movable property during the subsistence of the marriage.  Of the 2 immovable properties she averred that it would be equitable for her to be awarded 11418 Cowdray Park, whilst the defendant was to be awarded 18811 Cowdray Park and a homestead at Macharaga in Mapanzure village comprising of a 7 roomed structure with a borehole.  She also gave what she believed would be the equitable distribution of the movable property.

On custody of the minor child, she claimed such custody and for the defendant to pay U$100 per month towards the minor child’s maintenance.

The defendant defended the matter and in his plea stated that the parties actually had 3 children, one of whom was a major.  The plaintiff had deserted the matrimonial home and left him with the children.  He had no issues with the proposed sharing of the movable property but contended that the immovable properties should be sold and the parties share the proceeds equally.

The matter was subsequently referred to trial on the following issues:-

1.	Whether the marriage relationship had irretrievably broken down.

2.	Whether it would be in the best interests of the minor child that custody be awarded to plaintiff with defendant granted access.  Whether the defendant should pay US$100 per month as maintenance.

3.	Whether it would be just and equitable that stand number 11418 Cowdray Park be awarded to plaintiff, the Macharaga homestead be awarded to defendant and stand number 18811 Cowdray Park be sold to best advantage and the net proceeds shared equally between the parties.

The onus on all issues was placed on the plaintiff.

At trial the plaintiff gave evidence and closed her case.  The defendant was also the sole witness.

Plaintiff’s Case

The plaintiff testified to the effect that she has not lived with the defendant as husband and wife for a period of 3 years.  The defendant is abusive and she has had to obtain a protection order against him.  She also reported him on a criminal charge for which he was sentenced to perform Community Service.  The marriage cannot be salvaged.

As for the minor child she asserted that she has always enjoyed a cordial relationship with him and helps him with homework.  She is therefore better suited to get custody.  The defendant has no relationship with the child and is not close to him.  She deserted the matrimonial home but left the children behind as she believed it was best that they stay in a familiar environment.  She accepted that the defendant could have bonded with the children during her absence but he leaves home early and comes back late, making him unsuitable to have custody of the minor child.  In the event that she gets custody, she would require US$100 per month as maintenance.

As regards the property she asserted that it would be equitable if stand number 18811 be sold and the proceeds shared equally as the defendant would get the Macharaga homestead which has a borehole.  Stand number 11418 Cowdray Park should be awarded to her.

I must say besides merely stating that she thinks she is entitled to the claims she made, she put nothing else before the court to show why she believed she should get what she was asking for.

This was really a case of he said, she said.  The plaintiff made it difficult to follow her evidence, at times talking in a voice that was barely audible.

Defendant’s Case

The defendant testified to the effect that he married the plaintiff in December 2002 and they were staying in rented accommodation.  In 2004 they bought the 11418 stand and the 18811 stand was bought in 2005.  He actually bought the 18811stand without the plaintiff’s knowledge as he wanted to present it as a surprise. The plaintiff was in training to become a policewoman.  He developed the 11418 stand which is the matrimonial home.  Business was low after purchasing stand 18811 and that property is still at roof level, with no windows and no door frames.

The Macharaga homestead cannot be compared in value to the properties in town and it is also incomplete as the plaintiff took roofing material which was meant to be used to roof that property.

The plaintiff left home, leaving him with the children who he single-handedly looked after, two are now majors and the minor child was in Grade 7when the plaintiff left.  He is now in Form 3.

He does not want to be unfair to the plaintiff and so selling the properties and sharing the proceeds equally would be fair so each one moves on with their lives.

Since there was not much to go by regarding the custody of the minor child, the court asked to see the child in chambers.  He impressed as an intelligent and well-grounded young man with ambitions of being an entrepreneur like his father.  The court took note of the fact that he was comfortable staying with either parent.

Analysis of the Evidence

From the evidence led it was clear the parties’ marriage has broken down and irretrievably so.  They have not stayed as husband and wife for 3 years and have taken each other to court over allegations of abuse.

The defendant appears to have also acknowledged that the marriage relationship cannot be salvaged.

There is therefore no doubt that the marriage has irretrievably broken down.  The plaintiff was able to demonstrate that the relationship cannot be salvaged.

Custody of the minor child

The minor child is now 15 years old.  He was born on 16 February 2010.  The plaintiff left him in the custody of the defendant when he was in Grade 7.  He is now in Form 3.  The issue is what is in the best interests of this 15 year old boy and not what the parents want.

At 15 he is a teenager who would require guidance from a father figure.  He fared well in his mother’s absence and has not shown that staying with his father impacted negatively on him.  The plaintiff also said she left him with the father as she did not want to disrupt him and the other children from the environment they were used to.  At that time 2 of the children were still minors.  All the children stay with the defendant.

Is it in the best interests of this minor child to remove him from the environment he has been accustomed to for all these years?  What is it that justifies disrupting the routine he is used to by removing him from the father’s custody?

Surely the plaintiff cannot say she can help him with school when she left him when he was in Grade 7 and there is nothing to show that his being with the defendant adversely affected him.  He is 3 years shy of turning 18 and it would be in his best interests that he be left in the environment that has nurtured him. He also has the other siblings, who are now majors, staying under the same roof, ensuring some continuity for him, albeit minus the mother.

There was therefore nothing placed before me justifying changing the status quo.  I would have looked at the issue in a different light had this been a girl child and had the minor child expressed reservations about staying with the father.

The plaintiff failed to show why custody should be taken away from the father and be awarded to her.

With the custody issue resolved against the plaintiff, the issue of maintenance falls away.  The defendant in his testimony said he has provided for these children and continues to do so.  He has not counter-claimed for maintenance and for that reason I do not intend to give such an order against the plaintiff.

Property Sharing

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] provides for the division of assets upon the granting of a decree of divorce.  Section 7(4) provides that:-

“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 –

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)….

(c)….

(d)….

(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)….

And in so doing the court shall endeavor 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.”

In Khoza v Khoza HB 169-24 NDLOVU J alluded to the principles of equity and fairness as espoused in s7 of the Act when distributing the spouses’ assets.

There is need for the court to strike a balance so as not to disadvantage either of the spouses. (Shenje v Shenje 2001 (1) ZLR 160 (H), Dzaramba v Dzaramba HH 38-16, Simba v Simba HH 410-20). Their marriage has ended after almost 23 years, albeit with the last 3 years of virtual separation. Whatever each one contributed to the assets they have may not have been clearly articulated but the fact is both were bringing in income, the defendant as an entrepreneur and the plaintiff as a police officer, although now retired.

The court has a wide discretion and equally a wide range of factors to consider.  In Usayi v Usayi S 22-24 MATHONSI JA put it thus:-

“Clearly … the law provides a wide range of factors that go into the division of the assets thereby giving the court an extremely wide, if not unfettered, discretion to divide the assets.  In doing so, the overarching consideration is to place the parties in the position they would have occupied if the marriage had continued, as far as possible in the circumstances.”

The learned JA quoted, with approval, from Mhora v Mhora S 89-20 where the court said:-

“It is trite that in matters involving the distribution of property, the court has to exercise its discretion in deciding what is a just and equitable distribution of the parties’ property.  As a result, a lot of authorities, in construing s7 as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce.  This court’s view on the discretion of the trial court on the distribution of assets of the parties was aptly stated in the Ncube case, supra, at p 41A where the court said:

“the determination of the strict property rights of each spouse in such circumstances, involving, as it may, factors that are not easily quantifiable in terms of money, is invariably of theoretical exercise for which the courts are indubitably imbued with wide discretion.”

Turning to the facts of this case, the plaintiff did not have much to say to counter the defendant’s assertions that as a businessman he bought and developed stand 11418 as the plaintiff was still training to be a police officer. She also conceded that the defendant bought the 18811 stand but averred that she helped develop it. The lack of specifics speaks to the fact that parties are not expected to consider a marriage union as some business enterprise, taking stock at every turn of what they are adding to the ‘empire’ as one would when in business. One should therefore not read too much into such lack of specifics in terms of how much each one contributed into the acquisition of the assets that now stand to be shared. However where a party claims entitlement to an asset to the exclusion of the other, there must be some justification for it.

Granted it is not so much the financial contributions that carry the day as indirect contributions are a factor to be considered but when it comes to the share to apportion to each party the direct financial contributions do come into play.  The plaintiff did not assist the court in this regard as all she said was that she was getting a salary even when she was under training and also had other side ‘hustles.’  What these were and what they brought onto the table remained embedded in her mind.

Counsel for the plaintiff did not assist much in ensuring all that was relevant to assist the court to arrive at a fair and equitable distribution of the assets was ventilated.

The defendant considered the sale of the 2 immovable properties with the parties sharing the proceeds equally as equitable.  There really was nothing from the plaintiff to counter this except her assertion that as the mother of the children it would be fair for her to have the completed house, 11418 Cowdray Park.  She had at one stage sought to amend her declaration so the defendant would not get 18811 as she had initially proposed, but that 18811 be sold and the proceeds shared equally between the parties.

It was not clear whether these properties are held under title and if so in whose name such title is.  The Macharaga homestead is however not complete and the plaintiff did not dispute that.  She also did not dispute the assertion that she took the roofing materials from the Macharaga homestead which was what was of value compared to the building materials that had been used to build the roofless structure.

A rural home cannot possibly have the same value as an immovable property located in an urban area.

Whilst the two Cowdray Park properties are assets of the parties and therefore subject to be distributed, the sale of the two properties with each one getting an equal share of the proceeds would be an equitable distribution of these assets.

I find no basis to award the completed house to the plaintiff and order the sale of the yet to be completed property with the plaintiff getting a half share from the proceeds.

From the foregoing, the marriage relationship has undoubtedly irretrievably broken down.  The minor child of the marriage ought not to be uprooted from the current environment as it would not be in his best interests.

The plaintiff appropriated the building materials for the Macharaga homestead and awarding that homestead to the defendant would not be unfair in the circumstances. For completeness, the order of the court will include the property that was not contested to ensure both parties are aware of who gets what.

In the result I make the following order:-

1.	A decree of divorce be and is hereby granted.

2.	Custody of the minor child, Jeremiah Thamsanqa Macharaga (M) born 16 February 2010 be and is hereby awarded to the defendant.  The plaintiff shall exercise her right of access every week-end and every school holiday.

3.	The two properties, stand 11418 and 18811 Cowdray Park shall be valued by an estate agent appointed by the Registrar of the High Court within fourteen days of this order.  Such valuation shall be done within 3 months of such appointment.

5.	The costs of such valuation shall be shared equally between the parties.

6.	The properties shall be sold to best advantage by an Estate Agent appointed by the Registrar of the High Court and the proceeds shared equally between the parties after deducting the costs of the sale.

7.	The Macharaga homestead in Mapanzure Village  is awarded to the defendant.

8.	The movable properties are awarded as follows:-

The Plaintiff

½ of the ultimate unit

TV set

Sideboard

Deep freezer

4 plate gas stove plus cylinder

1 double bed

Kitchen utensils

The Defendant

½ of the ultimate unit

Set of sofas

Corner divider

4 plate electric stove

Double bed (matrimonial)

Upright fridge

9.	Each party shall pay own costs.

Sansole and Senda, plaintiff’s legal practitioners