Annabell Matipedza (née Panjiwa) v Pearson Patience Matipedza

### Preamble
1
HH 323-2012
HC 3399-2010
ANNABELL MATIPEDZA (nee PANJIWA)
and
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==============================

ANNABELL MATIPEDZA (nee PANJIWA)
and
PEARSON PATIENCE MATIPEDZA

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, February 27, 2012 and September 20, 2012

MATRIMONIAL ACTION

P. Mukono for plaintiff
T. Mpofu for defendant

CHITAKUNYE J. The plaintiff and defendant were married in terms of the Marriages Act [Cap 5:11] at Harare on the 16th January 1997. The marriage still subsists. The defendant is domiciled in Zimbabwe as he was born and bred in this country. Their marriage was blessed with two children who are still minors. The first child was born on 27 August 1997 and the second child on 27 July, 1999.

On 20 May 2010 plaintiff issued summons out of this court seeking, inter alia, a decree of divorce, custody and maintenance of the minor children and the division of property which she alleged was acquired during the subsistence of the marriage. The property comprised movable and an immovable property, namely Stand 2648 Njiva Crescent, Ruwa

The plaintiff alleged that the marriage relationship has irretrievably broken down to an extent were there are no reasonable prospects of reconciliation or restoration of a normal marriage relationship. The grounds for the breakdown included that:-

1) the parties have lost all love and affection for each other;
2) the parties have not lived together as husband and wife and thus have not shared conjugal rights since 2007;
3) the plaintiff moved out of the matrimonial house in 2009; and
4) the defendant has been financially irresponsible, abusive towards the plaintiff and has engaged in adulterous affairs to the extent of inviting one of his consorts into the matrimonial home.

All these grounds make it impossible to reconcile or restore a normal marriage relationship.

In his plea, the defendant conceded that the marriage has irretrievably broken down. He however denied that he had adulterous affairs. He instead pointed at the plaintiff as the one who left the matrimonial home and eloped to live with her workmate. He conceded on custody but contended that he was unemployed and so he cannot afford the sum of maintenance being claimed.

On the property, the defendant contended that the manner of distribution of movable property suggested by plaintiff was not fair. He counter-suggested that plaintiff should only get the property she bought.

Regarding the immovable property, defendant contended that the immovable property the parties lived in was bought by his mother and so should not be considered as matrimonial property. It should thus not be subject to division, apportionment or distribution upon the granting of a decree of divorce.

At the time of concluding the pre-trial conference on 15 November 2010 parties had reached settlement on all issues except on the immovable property. They agreed on custody, maintenance and access to be enjoyed by the non-custodian parent. They also agreed on the distribution of the movable property. The settlement was recorded as ‘Deed of Settlement’ and is dated 20 September 2010. The deed of settlement will be part of the order to be granted.

The issue for trial was captured as:-

Whether or not Stand 2648 Njiva Crescent, Ruwa, constitutes matrimonial property and, if so, what proportion should either party get.

The plaintiff gave evidence and tendered a bundle of documents in support of her claim to a 50% share of the immovable property. She argued that the property was acquired during the subsistence of the marriage. At some point she conceded that she married defendant when defendant was already in the process of paying for the vacant stand through Zvichanaka Housing Co-operative. When they were now married she joined him in making payments for the stand. She tendered her pay slips showing loan deductions that were being effected by her employer. She argued that she obtained a loan of £200 000 in 1998 which went towards the construction of the property. That loan was repayable over a period of 5 years at the rate of £65.00 per month. (See pp 6 to 39 of the plaintiff’s bundle of documents).

The defendant on the other hand contended that the acquisition of the vacant Stand was done by his mother. His mother joined Zvichanaka Housing Co-operative in 1989. She used his name on joining the co-operative hence the stand and all receipts from 1989 are in his name. At that time he was an Advanced level student not earning an income. In that regard he tendered documents including receipts showing payments from the year 1989 in respect of the vacant stand.


In 1990 he enrolled at the University of Zimbabwe for a degree course. He only got to know that his mother was paying for the stand, which she had registered in his name in 1994. It was his evidence that the last payment towards the purchase price for the stand was made in 1994 well before he married the plaintiff and so the plaintiff could not have contributed towards the acquisition of the stand. He contended that payments made after 1994 were towards other things such as for the plan, transfer fees and other legal fees.

Though in his plea the defendant had indicated that his mother after paying off the stand went on to build the house without plaintiff’s contribution, in his viva voce evidence he conceded that his mother did not contribute much towards the construction of improvements on the stand. The improvements, comprising a cottage and main house, were constructed using his resources with a bit of contribution from the plaintiff.

He categorically denied that the plaintiff obtained a Z$200 000 loan in 1998 for construction. To his knowledge such an amount would have been adequate for the completion of construction work yet the main house is not yet completed. He also put into question how the plaintiff would have been expected to repay a loan of such magnitude in 5 years’ time at a rate of Z$65 per month. Indeed if one calculates the repayments it is clear that at Z$65 per month the plaintiff would have repaid only $65 x 12 x 5=Z$3900. What he recalled is that the plaintiff told him she wanted to obtain a loan of about Z$6000 for purposes of buying her own residential stand. That loan was not for purposes of contributing to the construction of the matrimonial house as the plaintiff felt it belonged to the defendant’s mother as the one who had purchased the vacant stand.

When asked about the plaintiff’s claim for a 50% share the defendant denied that such would be fair. He would rather she asked for 50% of her contribution.

It is clear from the evidence adduced that at the time of their customary law marriage in 1995 the Stand in question had been paid for as a vacant stand. The probability is that it was paid for by the defendants’ mother as the defendant was not gainfully employed but attaining education. The construction of the improvements on the stand was however contributed to by the parties. Though the parties were not agreed on the quantum of contributions it was clear each did make some contribution. In fact at some point the defendant was asked by his counsel a question to the effect that:-

“Did the plaintiff make any contributions at all?”

To which he replied-

“Yes she did. What I dispute is the loan thing. One thing I vividly recall is towards the end of the superstructure; she came and started paying towards people doing the tiles”
 Under cross-examination he was asked whether plaintiff made any contributions towards the superstructure to which he confirmed. For the cottage he said he recalled she contributed $1000 for bricks.

When further asked what the plaintiff did with her salary the defendant said she would use it to buy groceries for the family while he bought construction material.

This serves to confirm that the plaintiff contributed towards the construction of the superstructure both directly and indirectly.

It is my view that the parties’ approach to the issue of the property in question was erroneous. The use of the term ‘matrimonial property’ led to the parties believing that only property proved as ‘matrimonial property’, whatever they understood that to mean, is subject to division, apportionment and distribution. Unfortunately section 7 of the Matrimonial Causes Act [Cap 5:13], in terms of which the division apportionment and distribution of assets is supposed to be done upon divorce does not use such a term. Section 7(1) (a) states that:-

“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; ……… “

The terms used for property subject to division, apportionment or distribution is ‘assets of the spouses’ and not ‘Matrimonial property.’

In Gonye V Gonye 2009 (1) ZLR 232 at 237B-D MALABA JA aptly stated that;-

“The terms used are the ‘assets of the spouses’ and not ‘matrimonial Property’. It is important to bear in mind the concept used, because the adoption of the concept ‘matrimonial property’ often leads to the erroneous view that assets acquired by one spouse before marriage or when the parties are separated should be excluded from the division, apportionment or distribution exercise.

The concept ‘assets of the spouses’ is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.”

In casu the parties were so engrossed in the use of the term matrimonial property to an extent whereby they failed to realise that assets for consideration are assets of the spouses. Whether such assets were acquired before or during marriage, or when the parties were on separation, is not vital to whether the property should be considered or not. The vital point is whether or not it is an asset of the spouses (whether jointly or individually).

Once a determination is made that the property falls within the ‘assets of the spouses’ the next question is: - are there any reasons why it should not be considered in the division, apportionment or distribution of assets of the spouses.

In casu evidence adduced confirmed that the purchase of the vacant stand started in 1989 and ended in 1994. Thereafter legal fees were paid in 1996. As already alluded to, payments between 1989 and 1994 were made by defendant’s mother. No credible evidence was adduced to rebut that.

It is therefore my conclusion from the entire evidence adduced on this aspect that the vacant stand was bought by the defendant’s mother. It was however registered in the defendant’s name from inception giving the impression that it was bought for the defendant.

As the defendant himself admitted his mother did not contribute in any significant way towards the construction of the cottage and the main house on the stand. That was his task. In his evidence and submissions attempt was made to say that the property though in defendant’s name should in fact be considered as his mother’s property. Because of that it should not be subject to the provisions of section 7(1) of the Act.

I am however of the view that the registration of the property in defendants’ name and the fact that defendant is the one who effected most of the improvements per his own version, the property is in fact and in truth his property. As stated in Kassim v Kassim 1989 (3) ZLR 234(H) at p 237B-C by KORSAH JA –

“On the authority of Cunningham v Cunningham 1984 (4) SA 585 (T) cited in Mr. Gillespie’s written arguments, the registration of the property in the name of one party raises a presumption in her favour, that that person has the sole right and exclusive beneficial ownership of the property unless the defendant proves to the contrary…”

Further in Takafuma v Takafuma 1994(2) ZLR 103 (S) at p105H—106B McNALLY JA had this to say on the effect of registration of immovable property-

“The registration of rights in immovable property in terms of the Deeds Registries Act [Cap139] is not a matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.…”

Clearly the registration of the property in the defendant’s name at the Deeds registry confirms that it is now defendant’s property. Any contrary position would need to be proved.


As a property registered in defendant’s name it is his asset and so is subject to consideration in terms of section 7 of the Act.

The defendant also contended that the land on which the improvements were effected has a sentimental value to him and so the property as a whole should be excluded from division. Section 7(3) of the Act in terms of which he sought the exemption states that;

“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.”

The defendant’s counsel argued that this property was acquired by way of an inheritance. This argument is difficult to follow. An inheritance may be defined as ‘the action of inheriting; something inherited’. To inherit is to receive under a will or by right of legal succession; to possess by genetic transmission; to succeed as heir.’ See p257 Webster’s Universal Dictionary & Thesaurus 2003, Geddes & Grosset.

This is not what occurred here. The defendant did not inherit the stand at all. His mother bought the vacant stand for him. It is more of a gift or donation than an inheritance. The mother having bought the stand for the defendant, upon getting married the defendant decided to make the donated stand a place to build his matrimonial home with the plaintiff. Hence they moved onto the stand after constructing a cottage in 1996 and they have lived there since. During the marriage he invited the plaintiff to contribute towards the construction of a matrimonial home. In his own admission she did contribute in some way. The sentimental value the defendant seemed to allude to was the receiving of the vacant stand from the mother. But should that affect the plaintiff’s legitimate share in the improvements she contributed to?

In any case that gift has not remained in the same state but has been improved upon by efforts involving a third party and at the defendant’s invitation. In those circumstances the improved property as a whole cannot be exempt. At the most court may take into account the fact that the stand was donated to the defendant by his mother and, where justified, grant him the opportunity to buy out the plaintiff.

I am of the view that this is a case where court can exercise the wide discretion under section 7 of the Act.


Section 7(4) of the Act 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;-

(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.”

From the above the defendant’s contention that the plaintiff’s claim be dismissed because the property was not jointly acquired is not sustainable. The above considerations give court wide discretion in determining such issues. All aspects of the case must be considered including the above cited s 7(4) (a) – (g).

The overriding desire is to endeavor as much as is reasonable and practicable to place the spouses in the position they would have been in had a normal marriage relationship continued.

In this endeavour these courts have said on a number of occasions that no party should go out empty handed whilst the other is awarded all. In Sithole v Sithole HB 14/94 court held that even if a wife made only indirect contributions, she cannot leave empty handed merely because she did not contribute financially towards the acquisition and development of the matrimonial home.


In emphasizing the need to consider other contributions other than direct contributions in Usayi v Usayi 2003(1) ZLR 684 (S) the Supreme Court held that:-

“… it is not possible to quantify in monetary terms the contribution of a wife and mother who for many years faithfully performed her duties as a wife, mother, counsellor, domestic worker, house keeper, and day and night nurse for her husband and children. It is not possible to place a monetary value on the love, thoughtfulness and attention to detail that she put into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy; nor can one measure in monetary terms the creation of a home and an atmosphere from which both husband and children can function to the best of their ability. In the light of these many and various duties, one cannot say, as is often remarked: ‘throughout the marriage she was a housewife. She never worked.’ It is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of 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.”

In casu the plaintiff was gainfully employed for a greater part of the marriage. Apart from making direct contributions albeit not as much as defendant, she made indirect contribution to the development of the improvements in that she bought groceries for the family whilst the defendant expended his income on construction material. She also performed other duties as expected of a wife and mother to their children.

In the circumstances of this case a just and equitable distribution of the asset in question would be to order an assessment of the value of the Stand and the improvements. The plaintiff can then be awarded a portion of the improvements.

The question is what proportion should each party get. Considering the evidence adduced, the duration of the marriage and other circumstances peculiar to the case, I am of the view that an award of 25% of the value of improvements to plaintiff would be just and equitable.

Accordingly it is hereby ordered that:-

1. A decree of divorce be and is hereby granted
2. The plaintiff be and is hereby awarded a 25% share of the value of improvements effected on stand 2648 Ruwa Township of Stand 856 Ruwa Township also known as Stand No. 2648 Njiva Crescent, Ruwa.
3. The defendant is hereby awarded 75% of the value of improvements on the said stand and the Stand as his sole and exclusive property.


4. The parties shall agree on the value of the improvements within 30 days from the date of this judgment failure of which they shall appoint a mutually agreed estate agent to evaluate the property within 21 days from the date of such failure’.

5. Should the parties fail to agree on an evaluator the registrar of the High Court is hereby directed to appoint an evaluator from his list of evaluators.

6. The defendant is hereby granted the option to buy out the plaintiff’s share within 12 months, or such longer period as the parties may agree, from the date of receipt of the evaluation report.

7. Should the defendant fail to pay the plaintiff’s share within the stated period, or such longer time as the parties may agree, the property shall be sold to best advantage and proceeds there from shall be shared as 25:75 of the value of improvements. The defendant shall be entitled to receive full value of the Stand.

8. Custody of the minor children, namely Mitchelle Lisa Matipedza, born on 27 August 1997, and Leslie Matipedza, born on 27 July 1999, is hereby awarded to the Plaintiff with the Defendant being granted reasonable rights of access. Such access shall be for half of the school holidays and at such other times or occasions as the parties may agree. Access shall be exercised in consultation with plaintiff.

9. The Deed of Settlement entered into by the parties on 20 September 2011 and annexed hereto, shall govern other ancillary matters referred to therein such as;- maintenance, rights of access, the distribution of movable property as between the parties and any other ancillary issue, referred to therein.

10. Each party shall bear their own costs of suit.

Nyamushaya, Kasuso & Rubaya, plaintiff’s legal practitioners
Muringi Kamdefwere, defendant’s legal practitioners.
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