Katambare v Tukuta (671 of 2022) [2022] ZWHHC 671 (5 October 2022)

1 HH 671-22 HC 2851/18 FARO KATAMBARARE versus PATRICIA TUKUTA HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 16 March & 5 October 2022 Civil Trial M Muchada, for the plaintiff S Chatsanga & F Chinwawadzimba, for the defendant MAXWELL J: BACKGROUND Plaintiff and Defendant were married in terms of the Marriage Act [Chapter 5:11] on 8 September 2007. On 7 April 2007 their daughter, C was born. On 28 March 2018, plaintiff issued out summons claiming a decree of divorce and ancillary relief. In seeking the dissolution of the marriage the plaintiff alleged that the marriage relationship between the parties has irretrievably broken down to such an extent that there are no prospects of restoration to a normal marriage relationship in that:- a) The plaintiff has lost love and affection for the defendant. b) The parties have been living separate lives independent of each other since December 2017. The plaintiff instituted divorce summons in 2014 under case number HC 3206/14 which was withdrawn at Pre Trial Conference stage when there seemed to be prospects of reconciliation but all efforts yielded no positive results. The marriage has failed. As a consequence of the above factors the plaintiff prayed for a decree of divorce. He also prayed for an order that custody of the minor child be awarded to the defendant with him having access during the first two weekends of every month and that maintenance issues be governed and regulated in terms of the maintenance order issued at Harare Magistrates Court under case number M1012/14. The plaintiff alleged that during the subsistence of the marriage the parties acquired HH 671-22 HC 2851/18 some movable and immovable assets. He thus prayed for the distribution of such assets in a manner he deemed just and fair. Plaintiff also proposed that each party bears its own costs. In her plea, defendant admitted that the marriage between the parties has irretrievably broken down to an extent that there are no reasonable prospects of restoration of a normal marriage relationship. She submitted that plaintiff physically, emotionally and verbally abused her on several occasions till 26 December 2017 when he left the matrimonial home. She pointed out that in 2014 plaintiff instituted divorce proceedings under HC 3206/14 which proceedings were withdrawn when there seemed to be prospects of reconciliation. Further that on 8 September 2017 they celebrated their tenth wedding anniversary at Cresta Lodge, Msasa, Harare. Defendant submitted that plaintiff had deliberately left out several properties acquired during the subsistence of the marriage. Defendant made a counter claim in which she agreed to the custody and maintenance of the minor child proposed by Plaintiff. She however proposed that Plaintiff be granted access to the minor child one week on every school holiday and on special occasions upon prior arrangement with her. She claimed: • Maintenance in the sum of $600.00 per month for five years, • Medical aid cover for five years, • $350 per month for a period of 12 months for her studies for a Masters degree, • Fuel valued at $260.00 per month, comprehensive insurance, licensing and servicing of her motor vehicle for five years, • Payment of $20.00 for part time gardener and $50.00 for a maid per month for five years, and • 25% Equity share in Powerdrive Engineering (Private) Limited, • 25% Equity share in Dynamic Seals and Bearings (Private) Limited • 25% share of all funds deposited and held in a foreign currency account with Bank ABC, Ndola branch in Zambia which she said is transacting in United States Dollar currency, • Toyota Belta registration number AEH 5999, • Mercedes Benz C240 registration number ADQ 6089, • Contribution to her legal costs. HH 671-22 HC 2851/18 In his plea to the counter claim, plaintiff insisted with his proposal of access for two weekends of every month and one week of every school holiday on the basis that the child deserves more time with her father. He disputed that Powerdrive Engineering (Private) Limited and Dynamic Seals and Bearings (Private) Limited are matrimonial property. He further disputed having a foreign currency account in Zambia and stated that a bank account is not an asset. Plaintiff disputed owning the Mercedes Benz and the Toyota Belta claimed by the Defendant. He insisted on his proposal for the sharing of the matrimonial home and disputed the existence of a stand in Madokero. Plaintiff submitted that defendant is active, able-bodied, energetic, young, healthy and very educated and therefore does not deserve post-divorce maintenance. He pointed out that issues of fuel and other expenses relating to the child should be dealt with in terms of the maintenance order of the Maintenance court. According to him, there is no need and basis for a gardener and for a maid. He disputed the need for him to contribute to Defendant’s legal costs. PRE-TRIAL CONFERENCE On 31 January 2019, the parties appeared before a Judge for a Joint Pre-Trial Conference (PTC) during which they resolved the access issue and agreed that an Isuzu motor vehicle registration number ACI 8925 be awarded to the Plaintiff. It was also agreed that plaintiff shall purchase a Mercedes Benz registration number ADQ 6089 which is already in defendant’s possession to be awarded to the defendant. Plaintiff admitted owning 50% equity shares in Powerdrive Engineering (Pvt) Ltd and 42.5% equity shares in Dynamic Seals and Bearings (Pvt) Ltd. Defendant dropped her claim over funds held in a foreign currency account with Bank ABC and contribution towards her legal costs. The issues referred for trial were: 1. Whether or not a Toyota Belta registration number AEH 5999, Ford Ranger registration number AEX 5002, Stand number 13433 Madokero Phase 2, Plaintiff’s equity shares in Powerdrive Engineering (Pvt) Ltd and Dynamic Seals and Bearings (Pvt) Ltd constitute matrimonial property. If so, what would be the equitable distribution thereof? 2. What would be the equitable distribution of the parties’ immovable property, namely Stand 4662 Mainway Meadows, Waterfalls, Harare? And, 3. Whether or not Defendant is entitled to post-divorce maintenance. If so, how much and for how long? HH 671-22 HC 2851/18 REQUEST TO AMEND THE PRAYER IN THE COUNTER CLAIM A Consent Paper was drawn up but was not signed by the parties. The unsigned Consent Paper is on record and shows that parties had intended to sign it on 16 September, 2019. At the commencement of the trial, Advocate Chinwawadzimba sought to amend the prayer in the Defendant’s Counter Claim by inserting paragraph (e) worded as follows; - “ (e) The Defendant be and is hereby awarded the Waterfalls property in terms of the Consent Paper and the Plaintiff be and is hereby directed to transfer the property to the Defendant within 90 days of this order failing which the Sheriff is directed to ensure that transfer is passed to the Defendant in terms of this order.” Advocate Chinwawadzimba sought to enforce para 7 of the draft Consent Paper which stated; - “7. IMMOVABLE PROPERTY House Number 4662 Mainway Meadows, Waterfalls, Harare shall be awarded to the Plaintiff provided he pays the Defendant the sum of Fifty Thousand United States Dollars only (US$50 000.00), or its ZWL$ equivalent at the prevailing interbank exchange rate on the day of payment, within four (4) years of the date of signature hereof. The first payment shall be the sum of Fourteen Thousand United States Dollars (US$14 000.00) payable on or before 31st December 2019. The balance of Thirty-Six Thousand United States Dollars (US$36 000.00) shall be paid in three yearly instalments of Twelve Thousand United States Dollars each to be paid on or before 31st December 2020, 2021 and 2022. The immovable property is already registered in the plaintiff’s name. In the event that the plaintiff default payment of any one instalment above by the due date, the defendant shall forthwith be entitled to take full ownership of the immovable property in question without repaying the plaintiff any sums paid to her. In the latter case, the plaintiff shall be obliged to facilitate change of ownership of the immovable property in question into Defendant’s name within three (3) months of a written demand by the Defendant to do so.” The request was opposed. Mr Muchada pointed to the fact that the Consent Paper was not signed and is therefore a draft. He submitted that plaintiff paid the first instalment in good faith expecting the conclusion of the agreement. He further submitted that by letter of 9 January 2020, Defendant’s Legal Practitioners indicated that settlement was premised on defendant getting a student visa to New Zealand. Further that as she had failed to get the student visa, parties must have another round of discussions to discuss settlement terms. He also further submitted that the fact that defendant requested for discussions means the parties had not reached agreement. He stated that the issues that were settled are those in the Joint Pre-Trial Conference Minute on record. According to him, should defendant want parties to proceed in terms of the Consent Paper, it has to be amended in terms of the timelines. HH 671-22 HC 2851/18 In reply Advocate Chinwawadzimba referred to the case of Farisai Nando v Godwills Masimirembwa HH 154/17 as authority that a Deed of Settlement is capable of enforcement. She submitted that there was partial performance therefore the agreement is binding on the parties. The request for amendment was not granted. The calculation of the period within which full payment was to be done was from the date of signature of the Consent Paper. The fact that the Consent Paper was not signed means default cannot be established as there is no date from which to ascertain compliance. In any event, the case referred to by Advocate Chinwawadzimba is distinguishable on the basis that it dealt with a signed Deed of Settlement. The matter proceeded to trial without amendments. DISTRIBUTION OF ASSETS The law relating to the sharing of the assets of the spouses is set out in s 7 of the Matrimonial Causes Act [Chapter 5:13], (the Act). The assets subject to distribution are those that were acquired by the parties during the subsistence of the marriage which they consider to be belonging to the family. The Court’s power to distribute the family assets however does 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.” See s 7 (3) of the Act. In subsection 4 of the same section, the Court is enjoined to 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;…” HH 671-22 HC 2851/18 The Act further directs that in distributing the assets, the court shall endeavor as far as is reasonable and practicable and, having regard to the conduct of the parties, where it is just to do so, place the spouses and child in the position they would have been in had a normal marriage relationship continued between the spouses. The distribution of the assets of the spouses will therefore be considered in the light of the above. MOVABLE ASSETS HOUSEHOLD GOODS AND EFFECTS The PTC minute records, amongst other things, that it is agreed that there is no dispute insofar as household goods are concerned. The household goods and effects will therefore be awarded to the defendant as agreed. ISUZU MOTOR VEHICLE REGISTRATION NUMBER ACI 8925 An agreement was also reached concerning the Isuzu motor vehicle registration number ACI 8925. Accordingly, the Isuzu motor vehicle registration number ACI 8925 is awarded to the Plaintiff. TOYOTA BELTA REGISTRATION NUMBER AEH 5999 Plaintiff submitted that this motor vehicle does not belong to any of the parties. It was being sold by someone known to them. He considered buying it for defendant but she indicated that she preferred a Harrier. The car was subsequently bought by his brother. On the other hand defendant testified that the vehicle was bought for her as a gift. She used the vehicle for a year. On 22 December 2017 Plaintiff left with the vehicle and on his return indicated that he had given it to his brother. She however retained the spare keys which she still has. She testified that the vehicle was gold in colour. The registration book for this vehicle is on p 70 of the record. The owner is reflected as Kudakwashe Given Njitimana. The vehicle colour is green. If defendant received a golden Toyota Belta as a gift, it was not the one in dispute. No proof has been tendered showing that this vehicle belongs to the spouses. I therefore find that it is not subject to distribution. FORD RANGER REGISTRATION NUMBER AEX 5002 Plaintiff testified that this vehicle is registered in the name of Shepherd Rupapa and was used by the sales manager at Powerdrive Engineering (Pvt) Ltd. In his closing submissions he stated that the vehicle was bought after the parties had separated and defendant never claimed it in HH 671-22 HC 2851/18 her pleadings. Shepherd Rupapa testified confirming that the vehicle belongs to him. He explained how he acquired two vehicles from South Africa. He produced the vehicle’s registration book which confirmed his evidence. Defendant testified that she is entitled to 50% of the vehicle as it was a family asset. She said the registration in Shepherd’s name was immaterial as plaintiff started registering assets in his friend and relatives’ names from 2014 when he issued divorce summons. In her closing submissions she stated that the registration books are a façade meant to deprive her of her entitlement. She however surprisingly stated, contrary to her evidence-in-chief, that plaintiff should be given the Ford Ranger. Shepherd Rupapa testified that the vehicle belongs to him. His evidence is corroborated by the vehicle registration book in his name. I find that defendant has failed to prove that this vehicle belongs to the spouses. Accordingly I find that it is not subject to distribution. PLAINTIFF’S SHARES IN POWERDRIVE ENGINEERING (PVT) LTD Plaintiff indicated that his shareholding stands at 45% as one Tapiwa Mutinhima joined the company. This was confirmed by Shepherd Rupapa. Plaintiff argued that the shares are not subject to distribution as the company was registered in 2005, a year before the parties were married. In the alternative, plaintiff submitted that the shares fall under s 7 (3) (c) of the Act as he has sentimental attachment to them. He further submitted that this asset has sentimental value to him, it being his source of income and can be said to be his tools of trade as he earns his living from doing business in this company. He disputed defendant’s submission that she injected $5000.00 in the company to boost its capital. Defendant argued that the shares are subject to distribution and she contributed to the growth of the company when she sold her vehicle and gave $5000.00 to the plaintiff to inject into the business. It has been held in several cases that in some instances the needs of the parties have outweighed direct financial contributions such that where a spouse may not have made any significant direct financial contribution they were nevertheless awarded a half share in consideration of their indirect contributions and their needs at the dissolution of the marriage. See: Usayi v Usayi 2003 (1) ZLR 684 (S) and Govati Mhora v Emmaculate Mhora SC-617-18. Defendant testified that she took care of the household and child which enabled Plaintiff to grow the company. HH 671-22 HC 2851/18 Section 7 (3) (c) of the Act states; - “(3) 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— ……………… (c) in any manner and which have particular sentimental value to the spouse concerned.” The question is whether or not Plaintiff is correct that the shares are subject to s 7 (3) (c) of the Act. Can they be said to hold sentimental value as claimed by plaintiff? The Online Dictionary defines sentimental value as the personal value of an object, derived from the personal memories associated with it. The Merriam Webster Dictionary says sentimental value is the importance to someone because of a connection with a happy time of life, a special person, etc. It is personal as it is based entirely on an individual’s connection with an item. A thing might have sentimental value to an individual because it was given to him by someone he loves or because he acquired it at an important time in his life. In Family Law in Zimbabwe, Legal Resources Foundation, 1989, by W. Ncube, the author gives examples of property with sentimental value such as affectionate jewelry and other personalized works of art. Even though to plaintiff there may be sentimental value to the company, I am not persuaded that a source of income or where one earns his living is in the category of the assets the legislature intended to exclude from distribution. I therefore find that the shares are subject to distribution. Considering the defendant’s testimony, it is just and equitable that she gets 50% of the shares plaintiff holds. Accordingly, Defendant is awarded 22.5% shares in Powerdrive Engineering (Pvt) Ltd. PLAINTIFF’S SHARES IN DYNAMIS SEALS AND BEARINGS (PVT) LTD Plaintiff admitted owning 42.5% shares in this company. In his evidence he indicated that Defendant is free to have them as the company is not operating. In her evidence, Defendant disputed that the company was not operating and accepted the shares. Accordingly Defendant is awarded 42.5% shares in Dynamic Seals and Bearings (Pvt) Ltd. IMMOVABLE ASSETS HOUSE NUMBER 4662 MAINWAY MEADOWS, WATERFALLS Plaintiff proposed that the defendant be awarded a 30% share in house number 4662 Mainway Meadows, Waterfalls while he gets a 70% share on the basis that the defendant was never employed during the marriage and therefore did not make any direct contribution to its HH 671-22 HC 2851/18 acquisition and development. He stated that he used his funds to purchase the stand and to effect improvements thereon. Plaintiff further proposed that the parties engage the services of two independent and professional valuers at his cost to evaluate the property following which the average of the two values would be considered as the value of the property. He further proposed that each party have an option to buy the other out within three months of the last valuation date and that the party bought out should vacate the property within ten days of payment failing which the Sheriff of Zimbabwe shall evict same from the property. Defendant, on the other hand, proposed that she be awarded the matrimonial home as she had contributed significantly towards its acquisition. She narrated how she had been involved from choosing the plan of the house to cooking for the builders. She testified that she has invested time, labour and effort in it and is emotionally attached to it. A wife’s indirect contribution to the family cannot be disregarded. This has been established in the case of Muzongondi v Muzongondi SC 66/17, in which the court had regard to the dicta by ZIYAMBI JA in Usayi v Usayi 2003 (1) ZLR 684 (S), at 688A-D, where she said: “The Act speaks of direct and indirect contributions. How can one quantify in monetary terms the contribution of a wife and mother who for 39 years faithfully performed her duties as wife, mother, counsellor, domestic worker, house keeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy?How can one measure in monetary terms the creation of a home and therein 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 how can one say as is often remarked: “throughout the marriage she was a housewife. She never worked? In my judgment, 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. A fair approach is that set out by Professor Ncube in his book Family Law in Zimbabwe. At p 178 he said: - ‘Our courts, when formulating a legal approach to the re-allocation of property on divorce, should not attempt to attach a monetary value to the intangible and unquantifiable domestic contributions of a housewife.’” (my emphasis) Indirect contributions encompass much more than the performance of domestic duties. It encompasses all aspects of a spouse’s role in the life of the other spouse and their children in the day to day running of a family. See Mhora v Mhora SC 89/20. Courts have awarded considerable shares in immovable property to spouses who did not make a direct contribution to their acquisition. An analysis of the case law reveals that the longer HH 671-22 HC 2851/18 the duration of the marriage, the lesser the weight to be attached to direct contributions. For instance, in Mutizhe v Mutizhe HH 483/18, a wife who been a housewife for over 20 years was awarded a 35 per cent share of the immovable property to which she had made no direct financial contribution. In Sithole v Sithole & Anor HB 14/94 the wife who made indirect contributions in a marriage of 10 years was awarded a 40 per cent share of the immovable property. In Mufunani v Mufunani HH 32/16 a wife who was not formally employed but contributed indirectly to the needs of the family and had been a devoted housewife for over forty years was awarded a 50 per cent share of the immovable property. However, each case must be dealt with according to its own circumstances and merit. I am of the view that in the circumstances of this case, the offer by the Plaintiff meets the justice of the case. Accordingly defendant is awarded a 30% share in house number 4662 Mainway Meadows, Waterfalls while plaintiff gets a 70% share. Plaintiff proposed that defendant continues to reside at this property until the minor child attains majority status whereupon plaintiff can either buy the defendant’s share out or that the house be sold and the proceeds be shared in accordance with the parties’ shares. This proposal safeguards the interests of the minor child. Accordingly it is so ordered. STAND NUMBER 13433 MADOKERO PHASE 2 Plaintiff testified that Stand 13433 Phase 2 Madokero belongs to Powerdrive Engineering (Pvt) Ltd. It was bought in 2013 through instalments which were paid up in 2018. The company did not have cash and he agreed with his colleague to buy the properties on behalf of the company. The properties were in their names but the instalments came from the company. After the full payment the property was transferred to the company. It is not family property. It belongs to the company. His evidence was supported by Shepherd Rupapa who testified that the property was initially bought using an individual’s name as the company did not have collateral to get a loan, and that there were payment terms offered to individuals. Shepherd also stated that it was the company which paid for the property and after full payment, title deeds for the property were acquired in 2018, in the company’s name. Defendant submitted that the property belongs to the parties and its transfer to the company was a scam which should be disregarded. On a balance of probabilities, the Madokero property belongs to Powerdrive Engineering (Pvt) Ltd. Accordingly this property is not subject to distribution. HH 671-22 HC 2851/18 POST-DIVORCE MAINTENANCE Section 7 (1) (b) of the Act empowers the court “in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, ………[to] make an order with regard to— (a) ….. (b) the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.” In EH v SH 2012 (4) SA 164 (SCA), it was held: “…that a person claiming maintenance must establish a need to be supported by the other party and that if no such need is established, it would not be just and equitable for a maintenance order to be made.” Defendant submitted that she has not worked during the subsistence of the marriage and is currently furthering her studies so that she will be able to look for a job. She argued that in the transition it is important for plaintiff to pay maintenance. She pointed out that plaintiff admitted that he is the one financing her education and giving her financial support. As such, he should continue providing the support until she completes her studies and will be in a position to take care of her welfare need. She further pointed out that she is of ill health and therefore her capacity to be readily employed after divorce is diminished. She is claiming USD 600.00 per month for a period of five years. In addition, she also claimed USD 350.00 per month for a period of 12 months for her Masters studies which commenced in 2017, USD 260.00 per month for fuel, insurance and servicing of her motor vehicle, USD 20.00 for a part-time gardener and USD 50.00 for a maid per month. In plaintiff’s view, the claim for post-divorce spousal maintenance is without basis. He argued that the reciprocal duty of maintenance of married spouses end upon divorce unless there are special conditions warranting continued maintenance where the other is unable to look after himself or herself. He argued that defendant is able to look after herself after having empowered her through advancement of education. Further that she is of average age, 42 years old, with two undergraduate degrees, more than one Master’s degrees and is a PHD student who is not in any way physically disabled. Plaintiff pointed out that Defendant has been on her own since 2017, started the PHD program after separation and has been managing without his input. He further pointed out that there was no medical report to prove the allegations of ill health. HH 671-22 HC 2851/18 Plaintiff referred to the case of Cressy Magumise v Alpheus Magumise SC 14/14 in which reference is made to a passage taken from the headnote in the case of Chiomba v Chiomba 1992 ( 2 ) ZLR 197. The passage is to the effect that young women who worked before marriage and are able to work and support themselves after divorce will not be awarded maintenance if they have no young children. In this case, no evidence was led to show that defendant ever worked before the marriage. Plaintiff testified that in 2007, defendant had been offered a job at Stanbic Bank but had worked only for a day saying the pay was too low. According to him, between 2008 and 2009 she received two job offers in Dubai, accepted both and was disqualified because double jobs were not acceptable. In his view, defendant wants a luxurious life therefore she was not willing to work in Zimbabwe. On the other hand defendant said it was plaintiff who indicated that the salary from Stanbic Bank was too low and that it was better for her to stay at home. She testified that it was Plaintiff who asked her to come back from Abu Dhabi University where she had found a job. According to her, she was asked to choose between her marriage and the job. I find it most probable that defendant was not allowed to work. Plaintiff did not give the impression that he had problems with Defendant staying at home and pursuing her studies. The evidence before this court is actually that Plaintiff was funding the educational pursuits. For that reason, defendant cannot be placed in the same category as the woman mentioned in the case of Chiomba v Chiomba (supra). I therefore find that defendant is entitled to post-divorce maintenance in this case. Defendant proposed that she be paid USD 600.00 for a period of five years. On being taken to task on the amount claimed, she indicated that it was based on the standard of living she was used to and that in any event plaintiff had offered to give her that amount. I see no reason to deny her the amount she claimed as maintenance. It was not disputed that the standard of living during the subsistence of the marriage required that much. Regarding the duration, she has proposed five years. Section 8 of the Act provides for the duration of maintenance orders in the following terms. “8. Duration of maintenance orders (1) An order for the periodic payment of maintenance in respect of a spouse shall cease— (a) when the spouse dies or remarries; or” Defendant had the right to demand maintenance until she remarries or die. I therefore find no reason to deny her request for five years. HH 671-22 HC 2851/18 Defendant had also prayed for payment of USD350 per month for twelve months for her Masters Studies. In her counter-claim she stated that plaintiff had ceased paying the fees in January 2018 and she was in arrears. In her evidence in chief, defendant testified that she completed her Masters Degree and is pursuing a PHD. She however stated that she requires the balance of fees for her Masters Degree, but did not amend her pleadings to demand fees for her PHD. It is trite that a litigant is bound by her pleadings but an amendment may be made at any stage of the proceedings. However in the event of an objection, an application to the Court may also be made at any stage before judgment and can accordingly be granted at different stages in the proceedings. See Herbstein & Van Winsen The Practice of the High Courts of South Africa 5th ed, p 675. It is stated in Robinson v Randfontein Estates GM Co Ltd 1925 AD 173@ 198 that; - “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the Court has a wide discretion. For pleadings are made for the Court, not the Court for pleadings.” Defendant testified that plaintiff ceased paying her fees in 2018 and she is in arrears. Defendant’s education was being funded by the plaintiff therefore he has an obligation to pay any arrears for the fees for the Masters’ Degree. Defendant, however did not quantify any such arrears. To that end, no award will be made. Defendant also sought an award of USD260 per month for fuel, comprehensive insurance, registration licence fees and servicing of her vehicle. In addition, she also sought a total of USD70 for a part-time gardener and maid. These claims are not allowed on the basis that they fall into the category of expenses that determine the standard of living. As such, they are covered in the USD 600.00 awarded to the defendant as maintenance. USD 14000.00 PAID TO DEFENDANT In his closing submissions, plaintiff requested that the USD14000.00 already paid to the defendant pursuant to the provisions of the draft consent paper be taken into account in considering what is due to her as her share of matrimonial assets. Though the defendant did not respond to this, it is not in the interest of justice to grant it. Plaintiff did not amend his pleadings to include this issue prior to the conclusion of the trial. As stated above, a litigant is bound by his pleadings, and as the issue was not made part of plaintiff’s pleadings, no full inquiry was made on whether or not the money paid ought to be taken into account in considering what is due to Defendant. For that reason the request is not granted. HH 671-22 HC 2851/18 COSTS The Joint Pre-Trial Conference Minute records that defendant dropped her claim for contributions towards her legal costs. Accordingly each party will bear its own costs. DISPOSITION 1. A decree of divorce be and is hereby granted. 2. Custody of the minor child, Chesla Rufaro Katambarare (born 7th April, 2007) be and is hereby awarded to the Defendant. 3. Plaintiff shall have access to the minor child, Chesla Rufaro Katambarare (born 7th April, 2007), during two weekends of every month and one week of the school holidays and at any other time upon prior arrangement with the Defendant. 4. Maintenance issues in respect of the minor child, Chesla Rufaro Katambarare (born 7th April, 2007), shall be governed and regulated in terms of the maintenance order issued at Harare Magistrates’ Court under case number M 1012/14. 5. The household good and effects be and are hereby awarded to the Defendant. 6. The Isuzu motor vehicle registration number ACI 8925 be and is hereby awarded to the Plaintiff. 7. Defendant be and is hereby awarded 22.5% shares in Powerdrive Engineering (Pvt) Ltd. 8. Defendant be and is hereby awarded 42.5% shares in Dynamic Seals and Bearings (Pvt) Ltd. 9. Defendant be and is hereby awarded a 30% share in house number 4662 Mainway Meadows, Waterfalls while Plaintiff gets a 70% share. a) Defendant will continue to reside at this property until the minor child, attains majority status. b) Thereafter the parties shall engage the services of two independent valuers, at Plaintiff’s cost, to value the property within 30 days of the minor child, attaining majority status, the average of which shall be taken as the value of the property. Should the parties fail to agree on the evaluators the Registrar of the High Court is hereby directed to appoint evaluators from his list of evaluators. HH 671-22 HC 2851/18 c) The Plaintiff be and is hereby granted the option to buy out the Defendant’s share within 3 months, or such longer period as the parties may agree, from the date of receipt of the last evaluation report. d) Should the Plaintiff fail to pay the Defendant’s share within the stated period, or such longer time as the parties may agree, the Defendant will also have the option to buy out the Plaintiff within 3 months of the Plaintiff’s failure to buy her out, failing which the property shall be sold to best advantage and proceeds there from shall be shared in accordance with the proportions in the award. e) In the event that a party has been paid his/her share, the paid party shall have ten days after such payment to vacate from the immovable property failing which the Sheriff for Zimbabwe shall evict same from the property. 10. Plaintiff be and is hereby ordered to pay the Defendant the sum of USD600.00 or the equivalent at the interbank rate for five years from the date of this order. 11. Each party bears its own costs. Chatsanga & Partners, plaintiff’s legal practitioners. Maguchu & Muchada Business Attorneys, defendant’s legal practitioners.