Grace Ndabambi v Chitepo Kasinaubare

### Preamble
1
HH 576-25
HC 8357/23
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GRACE NDABAMBI

versus

CHITEPO KASINAUBARE

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 11, 12 & 19 March, 8 & 22 April, & 29 September 2025

(Matrimonial Action)

C Gohori & M Hondonga, for the plaintiff
F Nyamayaro, for the Defendant

TSANGA J:

The parties entered into an unregistered customary law union on 30 October 1998. Four issues were referred to trial in this matter canvassing the following:

Whether or not there is still an extant customary law union so as to invalidate this action for sharing of property.

Whether or not the Stand 6569 Nkwisi Gardens forms part of the assets of the union.

The equitable distribution of assets between the parties.

The quantum of the maintenance payable in respect of a minor child.

The issue of whether or not there is still an extant customary union was resolved at the onset of the trial. The plaintiff, who is the defendant’s wife made it clear that she is no longer interested in the continuation of their customary marriage and that a family meeting had long since taken place to discuss the breakdown of the marriage. Thereafter, appreciating the breakdown, the defendant had even agreed that the legal issues would be resolved through the court. Whilst the defendant may not have taken the step of giving the plaintiff “gupuro” a token which is the symbolic customary gesture of a breakdown of a customary marriage, a woman cannot and should not be held to ransom by a spouse who refuses to follow customary procedures to their logical conclusion for his own benefit. The breakdown of any union, registered or not is evidenced by the factual circumstances of the lived realities of the parties. Whilst still housed under the same roof, in essence the defendant has created his bachelor pad within the house, keeping all his utensils in that room and taking responsibility of his own meals. There is neither love nor affection remaining between them, the ties that bind being the need to be under that living space they have become accustomed to.

Their union was blessed with three children, one of whom is still a minor having been born on 30 June 2010. The parties are in agreement that the custody of their fifteen-year-old minor child be awarded to the plaintiff. The defendant will exercise access during one-half of every school holiday and on any other special occasions as the parties agree from time to time. The dispute as relates to the minor child is on the quantum of maintenance. The plaintiff claims US$150.00 per month for the minor child whilst the defendant says he can only afford US$50.00.

They also do not agree on the sharing of the immovable properties acquired during their unregistered customary law union, as is detailed more fully in their testimonies below.

THE PLAINTIFF’S EVIDENCE

During the subsistence of their union, the parties acquired three immovable properties, namely, stand 3897 Tynwald North (Tynwald property), which is a matrimonial home registered in both their names and where they both currently reside. The second property, stand 6567 Nkwisi Gardens is registered in a company called Kastepo Trading Private Limited in which she owns 20% of the shares in the company while the defendant owns 80%. This property has a four roomed cottage with tenants. The rentals therefrom are used for school fees. She explained that she only holds a 20% share because her husband had assured her that he should remain with an 80% share so that he could give some of the shares to the children. At the time they entered into this share arrangement they only had one child. The third immovable property called Stand No. 1797 Jacha, Epworth (Epworth property), is registered entirely in the defendant’s name. It has a cottage and a tenant.

The plaintiff’s testimony was that they acquired the three immovable properties using proceeds from a grocery and bottle store which they owned in Epworth. In particular she ran the grocery store whilst he ran the bottle store. She stated that although the businesses later collapsed in 2008 due to the country’s harsh economic environment at the time, she had looked for work and she managed to make improvements to the matrimonial home. The defendant has since the collapse of their business only ever worked intermittently. Therefore, although the matrimonial home is jointly owned she was of the view that she is entitled to a 70% share of its value owing to her greater direct financial contributions whilst the defendant should get 30%. During cross-examination she stated that although the Epworth property is in the defendant’s name, she contributed directly and indirectly as the property was purchased using the money from the bottle store and grocery store in Epworth.

The plaintiff’s primary proposal was that the properties acquired by the parties be placed in a trust with her being given a life usufruct over stand no. 3897 Tynwald North, (the matrimonial home) and the defendant be granted a usufruct over stand no. 3897 Nkwisi Gardens. The Tynwald property is near the minor child’s school and hence her insistence that she be awarded a usufruct over this particular property. Moreover, their agreement being that she be given custody of the child, she also highlighted that this particular property is more in line with the standard of living the child has become accustomed to, compared to the other two. Her reasoning also centred on her greater financial contribution to finishing the property compared to her husband.

She indicated that in the event that her husband is not amenable to donating their property into a trust, it would be ideal for her to get stand 3897 Tynwald North and for the defendant to choose between the stand 6569 Nkwisi Gardens or the stand 1797 Jacha Epworth. As for evidence in support of her greater contribution she had none to show the court and explained that she had seen no reason to keep receipts as they were doing things as a family.

With regards to maintenance of the minor child, she sought that the defendant pays US$150.00 for the child’s needs on the basis that he can afford this as he gets rentals in the sum of US$300.00 per month for Nkwisi Gardens and also US$30.00 for the Epworth property. She stated that he also has a rabbit project from which he gets a maximum of US$100.00 per month. She adduced evidence that she has been the only one catering for the needs of the child without the assistance of the defendant. During cross-examination she acknowledged that she is employed and she stated that she earns US$400.00 which she said she uses to pay rentals for the first and second born children pursuing tertiary education and also meets the minor’s needs.

THE DEFENDANT’S EVIDENCE

The defendant’s evidence was that the properties were acquired from proceeds from the company in which he holds an 80% shareholding and therefore at all times his contribution was 80% whilst her share was 20%. He denied that she had made improvements to the residential home as she claimed. As for the stand 6967 Nkwisi Gardens registered in the company’s name, he submitted that it should simply be dealt with according to the country’s company laws. As for the Epworth stand, his version was that it was entirely his as his wife at the time of its acquisition was not interested in it since Epworth was then an informal settlement. He had proceeded to acquire that property in his own name from the proceeds he got from Kastepo Pvt Ltd. As for putting the properties in a trust, he was not in agreement and stated that they should both continue using the Tynwald property as their matrimonial home even if estranged. He expressed the fear that he might be scammed if the properties are put in a trust. His preferred outcome in the event of lack of agreement was that the Tynwald property be sold whilst he gets a 70% share and she gets 30%. He highlighted that she should get 30% in appreciation of her role in raising the children. As for the Epworth property, he emphasised that it was his in its entirety and he would not want to have it sold. He would, however, not object if she decided to go and stay in that particular property.

As for his income, it was notably somewhat lower than what the plaintiff had told the court. He declared that he receives rentals of US$250.00 for Nkwisi Gardens and US$$30.00 for the Epworth one. He indeed has a rabbit rearing project which gives him between US$50-100 a month. His income if his figures are taken at face value therefore between US$330.00 to US$ 380.00. It is from this monthly income that he pays school fees where he says he has an arrangement with the school to pay US$125.00 a month for the minor child and contributes at least US$100.00 monthly towards groceries. He also contributes a further US$40.00 towards electricity. As with the plaintiff no evidence of earnings was produced.

With regards to maintenance, the defendant stated that he can afford to pay only $50 per month since he is the one paying for the minor child’s fees and that he also needs to live from that outcome. In cross examination, he was tasked about the statement in his plea where he had stated that the Epworth property was acquired by the parties whereas in his evidence he attributed its acquisition entirely to himself.

ANALYSIS

Where parties are married in an unregistered customary law union, immovable property is dealt with in terms of the general law. See Marange v Chirodza 2002 (ZLR) 171 which sets out that in all cases where the distribution of the estate of the parties in an unregistered customary union is raised and the estate includes land or rights to land; the application of general law is justified. Moreover, in this case both parties have registered title to the Tynwald property. The dispute regarding company shares is also a general law issue. Their lifestyle accords with the application of general law. The considerations under s7 of the Matrimonial Causes Act [Chapter 5:13] can also provide useful guidance in considering the division of matrimonial property in an unregistered customary law union once the case for the application of general law in the cause of action is laid out. See Chapeyama v Matende 2000 (2) ZLR 356 (SC) for this principle.

The plaintiff’s proposal to put all properties in a trust has been rejected by the defendant so what this court is faced with is what would be a just and equitable distribution of the property between the two of them. Regarding the Tynwald property it is registered in both names and therefore the assumption is that they each own 50 % of its value. Takafuma v Takafuma 1994 (2) 103 (S). The plaintiff wants a 70% but so does the defendant, each based on reasons they have articulated. Nkwisi gardens is in a company and the issu                                                         e is whether it should be dealt with in terms of the law that governs incorporated companies. The Matrimonial Causes Act which can guide the court in distributing assets in an unregistered customary aw union allows the court to order that an asset be transferred from one party to another where appropriate. Significantly also s 7 of that Act enjoins the court to have regard to assets of the spouses and not matrimonial property. See Gonye v Gonye 2009 (1) ZLR 232 at p 236H to 237B where it was stated that:

“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 regards to the division, apportionment or distribution of such assets.”

This is important in determining whether Nkwisi Gardens as well as the Epworth property are assets of the spouses in the sense of having been acquired as assets during the subsistence of the marriage regardless of whose name they are registered in. This would have a significant bearing on how the assets should be distributed.

Regarding the fact that Nkwisi Gardens is registered in Kastapo Private Limited, the important point is that plaintiff has effectively argued for the lifting of the corporate veil on the basis that the company is effectively theirs. Its directors are herself and her husband and its asset is Nkwisi Gardens.

In Gonye v Gonye the Supreme Court also stated as follows regards assets held by a company when it comes to property sharing between spouses:

“Where the issue arises of whether the property rights, a proportion of the value of which is claimed by the one of the spouses, in reality lay with the other spouse or a company run by him, it is permissible to ‘lift the corporate veil’ in order that justice could be done in the apportionment of the assets in terms of s 7(1) of the Act. Where the company can be said to be the spouse’s alter ego, the company’s assets and proceeds can be said to be the spouse’s and thus can be subject of an order under s 7(1).”

There are other cases such as Sibanda & Anor v Sibanda 2005 (1) ZLR 97 (S), Mangwendeza v Mangwendeza 2007 (1) ZLR 216(H) and Christane Kwedza v Johnson Kwedza HH 34/12 where the company veil was been lifted in distributing property between spouses. In this instance there is no doubt that Kastapo was merely a vehicle for registering the property and is effectively a company owned by the parties. It should be considered as an asset of the parties.

In terms of other factors to consider this court notes that their income earning capacity is similar if what they told the court is anything to go by since neither produced concrete evidence of actual earnings. Whilst she will have custody of the minor child, he will contribute to fees at the very minimum. The child as stated is fifteen years old and has a while to go if she pursues tertiary education after 18. Both have become accustomed to living in the Tynwald property but their marriage having broken it would be toxic to continue doing so. Their union was a lengthy one at 26 years even if the level of tolerance of each other may have diminished as the yeas wore on. Putting each in the position they would have been had the marriage continued requires a delicate balancing act.

The three properties in question have not been valued although the defendant in his evidence in chief estimated the Tynwald property as being the most valuable followed by Nkwisi Gardens and lastly the Epworth property. The plaintiff prefers to have the Tynwald property for the reason that she put more into it and that it is also nearer the child’s school. She does recognise its greater value hence her offer of paying him 30%. All three properties need to be valued with the following in mind as resolutive of their dispute.

Given that the defendant already holds a greater share of Kastapo Pvt Ltd under which Nkwisi Gardens is registered it would appear to make sense for him to have that property and for the plaintiff to relinquish her share in it. He should also have the Epworth property. As for the Tynwald property the plaintiff should have this property and the defendant should surrender his 50% share, subject to the difference in the valuation of this property that would put the defendant on a level footing, being paid over to the defendant by the plaintiff. In other words, should after the valuation, the value of the Tynwald property alone which is to be awarded to the plaintiff exceed the value of the Nkwisi and Epworth properties put together, then the plaintiff shall pay the defendant the difference that would equalise their shares.

As for the maintenance claim, it is not in dispute that the defendant was largely reliant on rentals from Nkwisi and Epworth to meet his expenses. He pays the child’s school fees. Both parents have an obligation to support their minor child. Since their income as declared to the court appears to be on even keel, if one is paying for school fees the other should contribute to the child’s living expenses. They will simply both have to live within their means to preserve their assets. Both are able bodied and can find ways of supplementing their income.

The following order is therefore granted as follows:

A decree of divorce be and is hereby granted.

Custody of the minor child Sandra Kasinaubare born 30 June 2010 is awarded to the plaintiff by consent with the defendant exercising access during one-half of every school holiday and on any other special occasions as the parties agree from time to time.

The plaintiff shall be responsible for the minor child’s day to day living expenses whilst the defendant shall be responsible for school fees, uniforms and school related expenses.

The plaintiff is hereby awarded stand 3897 Tynwald North whilst the defendant in awarded stand 6569 Nkwisi Gardens, Harare and Stand 1797 Jacha, Epworth subject to the following conditions:

The parties shall agree on the value of three properties within 14 days of the date of this order failing which they shall appoint a mutually agreed valuator to evaluate all three properties within 30 days of the date of this order.

Should the parties fail to agree on a valuator the Registrar of the High Court shall be and is hereby directed to appoint one from his list of independent valuators to evaluate the properties.

The parties shall share the cost of evaluation in the ratio 50:50.

In the event that the value of stand 3897 Tynwald North exceeds the value of Stand 6569 Nkwisi Gardens and stand 1797 Jacha, Epworth combined, then the plaintiff shall pay the defendant over a period of 180 days, the difference that would result in the parties having received an equal share. Should the opposite be the case and the value of Stand 6569 Nkwisi Gardens and Stand 1797 Jacha, Epworth combined exceeds the value of stand 3897 Tynwald North then the defendant shall pay the plaintiff the difference within the same period.

The plaintiff shall relinquish her 20% share in Kastapo Trading Company Private Limited over to the Defendant.

Each party shall take measures where needed to sign and transfer to the other the requisite share or title in the relevant properties failing which the Sheriff of the High Court of Zimbabwe or the Deputy is hereby authorised to sign the necessary papers on the defaulting party’s behalf.

Each party shall bear their own costs of suit.

Tsanga J:…………………………..

Mangachena Attorneys, Plaintiff’s Legal practitioners
Farai Nyamayaro Law Chambers, Defendant’s Legal Practitioners