Charity Ncube v Phanankosi Ncube

The plaintiff and defendant were married on 13 December 1997 at Western Commonage Magistrate's Court in terms of the Marriages Act [Chapter 5:11]. The marriage produced two children: Nkosenhle Nazariel Ncube (born 10 September 1995, now an adult) and Zibusiso Duncan Ncube (born 2 June 1999, a minor). The plaintiff left the matrimonial home in May 2009 due to irretrievable breakdown of the marriage. Both parties initially worked for Zesa in Zimbabwe, then for South African companies. The defendant later worked in Dubai but lost that employment and was unemployed at the time of the proceedings, while the plaintiff remained employed in South Africa earning R14,500-R16,000 per month. The parties acquired several immovable properties during the marriage including properties in Zimre Park, Calton Court, Gope Court, No 14466 Selbourne Park Bulawayo (in plaintiff's name), and Erf 48 Albemarle Township Johannesburg (acquired by defendant during separation). Most properties were sold except the Selbourne Park and Johannesburg properties. The plaintiff issued summons on 7 February 2012 seeking a decree of divorce and ancillary relief.

• Whether a decree of divorce should be granted on the basis of irretrievable breakdown of marriage
• What amount of maintenance should be awarded for the minor child Zibusiso Duncan Ncube
• How the two remaining immovable properties (Selbourne Park property in Bulawayo and Johannesburg property) should be distributed between the parties
• Whether property acquired during separation should be included in the distribution of matrimonial assets
• What constitutes direct and indirect contribution to matrimonial property under s 7 of the Matrimonial Causes Act

1. A decree of divorce was granted. 2. Custody of the minor child Zibusiso Duncan Ncube was awarded to the plaintiff. 3. The defendant was granted access to the minor child for two weeks of every school holiday. 4. The defendant was ordered to maintain and pay school fees for Nkosenhle Nazariel Ncube until completion of undergraduate studies. 5. The defendant was ordered to pay Zibusiso's school fees, meet all school requirements, and pay maintenance of US$150 per month to the plaintiff with effect from 31 August 2015 until the child attains 18 years. 6. The plaintiff was awarded No 14466 Selbourne Park Bulawayo as her sole and exclusive property. 7. The defendant was awarded Erf 48 Albemarle Township Johannesburg as his sole and exclusive property. 8. Each party to bear their own costs.

Under s 7 of the Matrimonial Causes Act [Chapter 5:13], all assets of the spouses—whether acquired before marriage, during marriage, or during separation (except those exempt by s 7(3))—are subject to division, apportionment or distribution upon divorce. The concept of 'assets of the spouses' includes assets owned individually or jointly at the time of dissolution. Property acquired during separation is not automatically excluded from distribution; the court must consider all circumstances including direct and indirect contributions by both parties. In making distribution orders, the court must have regard to all circumstances with the object of placing the spouses in the position they would have been in had a normal marriage relationship continued. Maintenance orders must be justified based on the demonstrated means of the paying party, not on speculation about undisclosed assets. Both parents have responsibility for maintaining their children, and the court will not approve an uneven burden where both parties have the capacity to contribute.

The court observed that if the plaintiff later discovers the defendant's allegedly hidden assets, she can approach the court for variation of the maintenance order. The court noted that it cannot grant maintenance 'without assessing it against the responsible person's means' as that 'will be like shooting in the dark.' The court also made observations about the defendant's lack of candour regarding his savings and the handling of proceeds from the Gope Court property, noting that this lack of transparency made it 'highly probable' that he used those proceeds to help pay the deposit for the Johannesburg property. The court emphasized that maintenance of children is the responsibility of both parents and expressed dissatisfaction that the plaintiff, while employed and able to contribute, sought to place an uneven burden on the unemployed defendant.

This case is significant in Zimbabwean family law as it applies and reinforces the principles established in Gonye v Gonye regarding the distribution of matrimonial assets. It clarifies that assets acquired during separation are not automatically excluded from distribution but must be considered as part of 'the assets of the spouses' under s 7 of the Matrimonial Causes Act. The case demonstrates the court's broad discretion in property distribution, considering both direct and indirect contributions, and emphasizes that the objective is to place spouses in the position they would have been in had a normal marriage relationship continued. It also illustrates the court's approach to assessing maintenance claims against the actual demonstrated means of the paying party rather than speculation about hidden assets.