Gift Nyaude v Fortunate Maramba [2025] ZWCHHC 7 (28 March 2025)

3 HCC 22/25 REF CASE NO: HC 164/22 GIFT NYAUDE Versus FORTUNATE MARAMBA HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 31 January, 19 February, 26 March to 14 April 2025 Civil Trial - Property Sharing S. Chimedza, for the Plaintiff P. Mazvazva, for the defendant BACHI MZAWAZI J: The parties were married under an unregistered customary law union which lasted close to nine years, from 2012 to 2021. They were not blessed with children. The relationship was formally terminated in respect of custom and tradition. The sharing of the movable property, inclusive of two vehicles acquired during the subsistence of the customary marital setup, was resolved amicably at the pre-trial conference stage. It is the division of the immovable property, stand No. 5692, White City Township, Chinhoyi, that has given rise to this trial. In his summons commencing this action, the plaintiff claims an equitable distribution of the said property, citing his direct contribution to both the acquisition of the stand and the construction of the house therein. Though the plaintiff did not have any documentary evidence to prove his direct monetary contribution in either respect mentioned above, he gave oral evidence detailing the manner and nature of his contributions towards the property. It is the plaintiff’s evidence that his relationship with the defendant was strongly embedded on love and trust, to the extent that cash would unflinchingly exchange hands without the need for documentary proof or confirmatory signatures. He never envisaged that the relationship would ever come to an end. As such, due to the nature of his job as a haulage truck driver with limited time in between cross-border routes, he would meet his lover, later his spouse, for the purpose of giving her cash, among other things. The cash was for her general upkeep as well as for the purchase of building materials and other incidentals. It is for the above reasons that the plaintiff claims it did not bother him when he was shown by the defendant a handwritten agreement of sale of the stand which excluded his name but bore only those of the defendant and the seller. The plaintiff did not exaggerate the earning capacity of the defendant nor her contributions to both the purchase price of the stand and the construction of the dwelling house in order to amplify his own. The few receipts he produced in an endeavour to support his claim had dates ranging from 2011 to 2015. They, like the rest of the defendant’s receipts, did not reflect the address where the goods borne in them were destined. Some, like all those from mega and major selling outlets, did not even bear the purchaser’s names. The defendant’s counsel, Mr. Mazvazva, capitalized on this lacuna. As a result, from the receipts produced, it could not be conclusively proved that they reflected building materials that were delivered, bought, or found their way to or were used on the property in question. Nevertheless, there were indeed receipts produced showing the acquisition of considerable quantities of building materials between the year 2011 and the year 2015. A single witness called by the plaintiff could not assist the plaintiff in establishing his contributions towards the acquisition or building of the property. His evidence was only material in that it buttressed that the parties' relationship predated 2012 and the payment of lobola in December 2012. The plaintiff had attested consistently that he had met the defendant in 2010 in Mt. Darwin. Their love blossomed as he used to transport the defendant, a seasonal cotton buyer, to and from her cotton-buying escapades. What is not in dispute is that when both parties met, they had been in other and prior relationships. The defendant was a widow staying at her late husband’s homestead. The plaintiff had a wife and family in Bindura. It was not challenged that truck drivers do operate side jobs and make a lot of extra cash. It was also not disputed that truckers do ferry their own bulky building materials alongside those of their private clients and employers. It is also common cause that the parties' love relationship commenced for some period before the payment of lobola in December 2012. In her defence, the defendant denied any contributions, direct or otherwise, to the property in issue by the plaintiff. She asserts that the stand was purchased in 2011, well before she met the plaintiff in mid-2012. She vehemently argued that she single-handedly constructed the property to completion. It is her evidence that the plaintiff only moved in with her to the new house after the payment of lobola in December 2012; therefore, he is not entitled to any share of the property in question. She produced receipts which were mainly 2011 receipts. Some bore her name, whilst the majority, like those of the plaintiff, did not. The bulk of the receipts were effectively challenged by Mr. Chimedza for the plaintiff as they showed signs of tampering. The corners of the said receipts were deliberately, as correctly challenged by the plaintiff, plucked off to conceal the original information. The court, upon analysis, was convinced that all those receipts came from a similar invoice book to that produced by the plaintiff as his own, from his defunct, then-registered transport business. The defendant failed to satisfactorily explain why the original agreement of sale was destroyed and had dates different from those on the produced typed agreement of sale. She also failed to explain the dates on the preamble of the building inspection form that did not tally with those in the body of the form. The building inspection form shows that the building, from the foundation digging stage up to the excavation time, was done prior to the conclusion of the agreement of sale produced or the dates of the alleged initial sale transaction1. Since the property is still in the original cessionary owner's name, all the documents produced are in this third party’s name. In the face of contradicting dates of completion within the preamble and body of the document, the veracity of the information contained therein is put to the test2. Moreover, when there are two mutually destructive versions from the parties, it cannot be ruled out that, in a bid to out-contest the other from an equitable or at least a share in this property, the dates, just as the receipts mentioned above, were tampered with. Again, the defendant’s single witness’s evidence did not shed light as to the acquisition, building, or contributions of either party to the property. His evidence only served to illustrate that the formalization of the parties’ union took place in December when the lobola negotiations and payments were then made on different dates. This leads to the agreed triable issues, which are whether or not the plaintiff contributed to, firstly, the acquisition of stand No. 5692, White City Township, Chinhoyi; secondly, whether or not he contributed to the construction of property house number 5692, White City Township, Chinhoyi; and lastly, whether or not he is entitled to a 50% share of the property in question. Ordinarily, the sharing of assets or marital property in unregistered customary law unions, unless they exceed that court’s monetary jurisdiction, falls under the jurisdiction of the Magistrates' Cour3t. At the time of this trial, the Magistrates' Court’s monetary jurisdiction had increased significantly to encompass the value of the alleged property4. The parties claim the value of the property in issue falls outside the monetary jurisdiction of the Magistrates' Court at the time of the issuance of the summons. Since there is no valuation report, there is no way of testing that averment. Nonetheless, this in itself is not a bar. I will proceed with the matter on the basis that this court has inherent jurisdiction to hear any civil action by virtue of both statute and the Constitution5. However, litigants are encouraged to constantly appraise themselves of the prevailing monetary jurisdiction of the Magistrates' Court. These are frequently updated by the legislature in consonance with ever-changing economic dictates. This, to some extent, lessens the already overburdened and understaffed High Court bench in comparison to the populace ratio, among other factors. Both parties agreed to the application of general law, correctly so, due to their way of life and the land rights in immovable property involved6.The plaintiff introduced the aspect of unjust enrichment, which was not vigorously pursued. Assessment of Evidence Against The Tenets Of The Law It is a fundamental legal principle that those who seek assistance of the law must prove their claim first before the defendant. It is not for the defendant to disprove an unproven case advanced by the claimant. Simplified, the burden of proof or onus in civil matters lies with the plaintiff. Synonymous with criminal matters, the burden of proof rests with the party asserting an allegation of fact. Invariably, as a general rule, he who avers must prove (incumbit probatio qui dicit, non qui negat)7. Therefore, the facts alleged must be sufficiently proved against the bedrock of the required standard of proof. Whereas, the standard of proof in criminal cases is proof beyond a reasonable doubt, in civil cases it is proof on a preponderance or a balance of probabilities. 8 The balance of probability test was outlined in the British case of Re H (minors) (Sexual Abuse: Standard of Proof) [1996]AC 564, per Lord Hoffmann as, ‘There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not’. In Miller v Minister of Pension [1947] 2 All ER 372 at 374, Lord DENNING, The degree of proof is expressed as follows, “It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.” See, Nicholas van Hoogstraten, HH444/18 and Lewenod Enterprises Private Limited v Freight Africa Logistic HH 653‐15. In casu, I am aware that the plaintiff did not produce any documentary evidence to support his claim as regards his contribution to the property in contention. It was mainly his word against that of the defendant. I am also cognizant of the fact that it is the plaintiff who bears the burden of proof to prove his claim. However, as highlighted in the above-explored authorities, the standard of proof is on a balance of probabilities. I am not of the view that, in the circumstances of this case, the lack of documentary evidence is to the detriment of the plaintiff. As a court, I have the duty to assess the credibility of his viva voce evidence to see whether it is improbable or not. At the same time, the evidence of the defendant, though she does not bear any onus of proof, has also to go under scrutiny. Upon evaluation, I am convinced that, given the kind of relationship that existed between the parties, like in many marital setups, it was based on mutual love, trust, and honesty. In reality, it is not alien for one spouse to give the other undocumented cash to purchase goods. It is also not uncommon that the receipts, though prima facie evidence of some purchases, are not conclusive evidence as to who actually handed over the money for the purchases in a marital or family construct. In the context of this case, it is not disputed that the plaintiff is a career haulage truck driver. His evidence of meetings with the defendant whilst he would be in transit was not challenged. He was consistent, honest, and credible. As opposed to the plaintiff, the defendant was not honest, thereby denting her credibility. She unashamedly produced a large bundle of invoices which were evidently tampered with in an effort to extract the corners which bore the plaintiff’s names, credentials, and business address. She concealed the original agreement of sale of the stand, falsely, in my considered view, claiming they tore it up as it was in affidavit form. She then failed to explain why she would destroy a document that also serves as an acknowledgment of receipt of the purchase price. Her explanation that it was because the local authority wanted a typed agreement of sale in order to effect cession does not hold, as up to date, that cession has not taken place, even in view of the fact that the property, at all building stages, had been approved and completed in 2012 according to her version. Her version that she met and married the plaintiff six months after courtship does not add up. Further, her alleged action of moving onto her own singly purchased and constructed property with a man she had only known for less than a year defies logic. In addition, she did not dispute that she earned a decent commission, so the court does not believe that she would simply settle for a man of straw who was not financially beneficial to her, given that she had been recently widowed and a mother. She was not a maiden; therefore, the court could not believe her story that she waited until marriage to move under the same roof with an adult married man. In the final analysis, I am satisfied that the plaintiff’s story is the more probable and that of the defendant is false. I am solidified in this position by what was stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140(S) at 143A-C: “Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199: ‘Where there are two stories mutually destructive, before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A Gany . . .’ Disposition It is thus my conclusion that on a balance of probabilities the plaintiff did contribute directly, both to the acquisition and construction of house stand number, 5692, White City T/ship, Chinhoyi. Though his contribution cannot be easily quantified from the facts he is entitled to a decent share of the property. Though there is no mathematical precision as to the computation of an appropriate share to be allocated to the plaintiff, the justice of the case demands that he be awarded a 40% share in the said property. So, in casu, even if it were to be concluded, though already rejected, that the property may have been purchased before the union, or that the plaintiff did not contribute anything to both its acquisition and construction up to that stage, it still is caught under the rubric or net of spousal assets and subject to division or sharing as per the Gonye case. So, either way, the plaintiff is entitled to a share in the property. What remains to be determined is the percentage of that share. The case of Ranguna v Ranguna HH234/18 is instructive as to one of the determinant factors in apportioning shares in the distribution of marital assets. The duration of the union, in that case, the marriage, assisted the court in deciding the appropriate share. That means even if the plaintiff’s contribution, direct or otherwise, could not be safely ascertained, he stayed with the defendant for close to nine years as a husband. There is no justification for a 50% share, but at least 40% of the value of the property. See Musara v Mawoyo and Melo v Kandibelo supra. Accordingly, it is ordered that: The Plaintiff is awarded 40% of the value of Stand No. 5692, White City Township, Chinhoyi, and its improvements, while the Defendant retains the other 60%.The parties shall appoint a mutually agreed-upon valuator within 60 days of this order to determine the respective values each is entitled to, failing which the Registrar of the High Court is directed to appoint an independent valuator from their list of valuators.The parties shall pay the costs of valuation in equal shares.The Defendant is given the option to buy out the Plaintiff's 40% share within 12 months of the date of valuation, unless the parties mutually agree in writing to a longer period.In the event that the Defendant is unable to buy out the Plaintiff, then the property shall be sold through an agreed-upon estate agent, or if there is no agreement on one, then the Registrar of the High Court shall appoint one from their list of estate agents, and the proceeds, minus any attendant costs stemming from the sale, shall be shared according to the percentages outlined in point 1.All the movables shall be distributed as agreed to by the parties at the roundtable and pre-trial conference meetings.Each party shall pay their own costs. Mudimu Law Chambers, the plaintiff’s legal practitioners Legal Aid Directorate, the defendant’s legal practitioners 1 27 /10/09 excavations to foundation level ,01/11/to 07/11foundation to brick level2012 to 12 /12 2012 lintel to plastering 2 submission date 18 /08 2011….. approval 2020 3 The monetary jurisdiction of the Magistrates court is outlined in its enabling Act and rules. These are constantly updated to match the prevailing economic changes. 4 (Civil Jurisdiction) (Monetary Limits) Rules, 2023, as set out in SI 45 of 2023 5 Section 53 of the High Court Act [Chapter 7:06], 171 of the Constitution of Zimbabwe Amendment No. 20 Act 2013, Rutsate v Ndaveni Wedzerai, SC 22/2020, 6 See, Melo v Kandibero 323/24, Marange v Chirodza 2002 (2) ZLR (H) 171. 7 The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). 8 Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182 (25 November 2014). 3 HCC 22/25 REF CASE NO: HC 164/22 3 HCC 22/25 REF CASE NO: HC 164/22 GIFT NYAUDE Versus FORTUNATE MARAMBA HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 31 January, 19 February, 26 March to 14 April 2025 Civil Trial - Property Sharing S. Chimedza, for the Plaintiff P. Mazvazva, for the defendant BACHI MZAWAZI J: The parties were married under an unregistered customary law union which lasted close to nine years, from 2012 to 2021. They were not blessed with children. The relationship was formally terminated in respect of custom and tradition. The sharing of the movable property, inclusive of two vehicles acquired during the subsistence of the customary marital setup, was resolved amicably at the pre-trial conference stage. It is the division of the immovable property, stand No. 5692, White City Township, Chinhoyi, that has given rise to this trial. In his summons commencing this action, the plaintiff claims an equitable distribution of the said property, citing his direct contribution to both the acquisition of the stand and the construction of the house therein. Though the plaintiff did not have any documentary evidence to prove his direct monetary contribution in either respect mentioned above, he gave oral evidence detailing the manner and nature of his contributions towards the property. It is the plaintiff’s evidence that his relationship with the defendant was strongly embedded on love and trust, to the extent that cash would unflinchingly exchange hands without the need for documentary proof or confirmatory signatures. He never envisaged that the relationship would ever come to an end. As such, due to the nature of his job as a haulage truck driver with limited time in between cross-border routes, he would meet his lover, later his spouse, for the purpose of giving her cash, among other things. The cash was for her general upkeep as well as for the purchase of building materials and other incidentals. It is for the above reasons that the plaintiff claims it did not bother him when he was shown by the defendant a handwritten agreement of sale of the stand which excluded his name but bore only those of the defendant and the seller. The plaintiff did not exaggerate the earning capacity of the defendant nor her contributions to both the purchase price of the stand and the construction of the dwelling house in order to amplify his own. The few receipts he produced in an endeavour to support his claim had dates ranging from 2011 to 2015. They, like the rest of the defendant’s receipts, did not reflect the address where the goods borne in them were destined. Some, like all those from mega and major selling outlets, did not even bear the purchaser’s names. The defendant’s counsel, Mr. Mazvazva, capitalized on this lacuna. As a result, from the receipts produced, it could not be conclusively proved that they reflected building materials that were delivered, bought, or found their way to or were used on the property in question. Nevertheless, there were indeed receipts produced showing the acquisition of considerable quantities of building materials between the year 2011 and the year 2015. A single witness called by the plaintiff could not assist the plaintiff in establishing his contributions towards the acquisition or building of the property. His evidence was only material in that it buttressed that the parties' relationship predated 2012 and the payment of lobola in December 2012. The plaintiff had attested consistently that he had met the defendant in 2010 in Mt. Darwin. Their love blossomed as he used to transport the defendant, a seasonal cotton buyer, to and from her cotton-buying escapades. What is not in dispute is that when both parties met, they had been in other and prior relationships. The defendant was a widow staying at her late husband’s homestead. The plaintiff had a wife and family in Bindura. It was not challenged that truck drivers do operate side jobs and make a lot of extra cash. It was also not disputed that truckers do ferry their own bulky building materials alongside those of their private clients and employers. It is also common cause that the parties' love relationship commenced for some period before the payment of lobola in December 2012. In her defence, the defendant denied any contributions, direct or otherwise, to the property in issue by the plaintiff. She asserts that the stand was purchased in 2011, well before she met the plaintiff in mid-2012. She vehemently argued that she single-handedly constructed the property to completion. It is her evidence that the plaintiff only moved in with her to the new house after the payment of lobola in December 2012; therefore, he is not entitled to any share of the property in question. She produced receipts which were mainly 2011 receipts. Some bore her name, whilst the majority, like those of the plaintiff, did not. The bulk of the receipts were effectively challenged by Mr. Chimedza for the plaintiff as they showed signs of tampering. The corners of the said receipts were deliberately, as correctly challenged by the plaintiff, plucked off to conceal the original information. The court, upon analysis, was convinced that all those receipts came from a similar invoice book to that produced by the plaintiff as his own, from his defunct, then-registered transport business. The defendant failed to satisfactorily explain why the original agreement of sale was destroyed and had dates different from those on the produced typed agreement of sale. She also failed to explain the dates on the preamble of the building inspection form that did not tally with those in the body of the form. The building inspection form shows that the building, from the foundation digging stage up to the excavation time, was done prior to the conclusion of the agreement of sale produced or the dates of the alleged initial sale transaction1. Since the property is still in the original cessionary owner's name, all the documents produced are in this third party’s name. In the face of contradicting dates of completion within the preamble and body of the document, the veracity of the information contained therein is put to the test2. Moreover, when there are two mutually destructive versions from the parties, it cannot be ruled out that, in a bid to out-contest the other from an equitable or at least a share in this property, the dates, just as the receipts mentioned above, were tampered with. Again, the defendant’s single witness’s evidence did not shed light as to the acquisition, building, or contributions of either party to the property. His evidence only served to illustrate that the formalization of the parties’ union took place in December when the lobola negotiations and payments were then made on different dates. This leads to the agreed triable issues, which are whether or not the plaintiff contributed to, firstly, the acquisition of stand No. 5692, White City Township, Chinhoyi; secondly, whether or not he contributed to the construction of property house number 5692, White City Township, Chinhoyi; and lastly, whether or not he is entitled to a 50% share of the property in question. Ordinarily, the sharing of assets or marital property in unregistered customary law unions, unless they exceed that court’s monetary jurisdiction, falls under the jurisdiction of the Magistrates' Cour3t. At the time of this trial, the Magistrates' Court’s monetary jurisdiction had increased significantly to encompass the value of the alleged property4. The parties claim the value of the property in issue falls outside the monetary jurisdiction of the Magistrates' Court at the time of the issuance of the summons. Since there is no valuation report, there is no way of testing that averment. Nonetheless, this in itself is not a bar. I will proceed with the matter on the basis that this court has inherent jurisdiction to hear any civil action by virtue of both statute and the Constitution5. However, litigants are encouraged to constantly appraise themselves of the prevailing monetary jurisdiction of the Magistrates' Court. These are frequently updated by the legislature in consonance with ever-changing economic dictates. This, to some extent, lessens the already overburdened and understaffed High Court bench in comparison to the populace ratio, among other factors. Both parties agreed to the application of general law, correctly so, due to their way of life and the land rights in immovable property involved6.The plaintiff introduced the aspect of unjust enrichment, which was not vigorously pursued. Assessment of Evidence Against The Tenets Of The Law It is a fundamental legal principle that those who seek assistance of the law must prove their claim first before the defendant. It is not for the defendant to disprove an unproven case advanced by the claimant. Simplified, the burden of proof or onus in civil matters lies with the plaintiff. Synonymous with criminal matters, the burden of proof rests with the party asserting an allegation of fact. Invariably, as a general rule, he who avers must prove (incumbit probatio qui dicit, non qui negat)7. Therefore, the facts alleged must be sufficiently proved against the bedrock of the required standard of proof. Whereas, the standard of proof in criminal cases is proof beyond a reasonable doubt, in civil cases it is proof on a preponderance or a balance of probabilities. 8 The balance of probability test was outlined in the British case of Re H (minors) (Sexual Abuse: Standard of Proof) [1996]AC 564, per Lord Hoffmann as, ‘There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not’. In Miller v Minister of Pension [1947] 2 All ER 372 at 374, Lord DENNING, The degree of proof is expressed as follows, “It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.” See, Nicholas van Hoogstraten, HH444/18 and Lewenod Enterprises Private Limited v Freight Africa Logistic HH 653‐15. In casu, I am aware that the plaintiff did not produce any documentary evidence to support his claim as regards his contribution to the property in contention. It was mainly his word against that of the defendant. I am also cognizant of the fact that it is the plaintiff who bears the burden of proof to prove his claim. However, as highlighted in the above-explored authorities, the standard of proof is on a balance of probabilities. I am not of the view that, in the circumstances of this case, the lack of documentary evidence is to the detriment of the plaintiff. As a court, I have the duty to assess the credibility of his viva voce evidence to see whether it is improbable or not. At the same time, the evidence of the defendant, though she does not bear any onus of proof, has also to go under scrutiny. Upon evaluation, I am convinced that, given the kind of relationship that existed between the parties, like in many marital setups, it was based on mutual love, trust, and honesty. In reality, it is not alien for one spouse to give the other undocumented cash to purchase goods. It is also not uncommon that the receipts, though prima facie evidence of some purchases, are not conclusive evidence as to who actually handed over the money for the purchases in a marital or family construct. In the context of this case, it is not disputed that the plaintiff is a career haulage truck driver. His evidence of meetings with the defendant whilst he would be in transit was not challenged. He was consistent, honest, and credible. As opposed to the plaintiff, the defendant was not honest, thereby denting her credibility. She unashamedly produced a large bundle of invoices which were evidently tampered with in an effort to extract the corners which bore the plaintiff’s names, credentials, and business address. She concealed the original agreement of sale of the stand, falsely, in my considered view, claiming they tore it up as it was in affidavit form. She then failed to explain why she would destroy a document that also serves as an acknowledgment of receipt of the purchase price. Her explanation that it was because the local authority wanted a typed agreement of sale in order to effect cession does not hold, as up to date, that cession has not taken place, even in view of the fact that the property, at all building stages, had been approved and completed in 2012 according to her version. Her version that she met and married the plaintiff six months after courtship does not add up. Further, her alleged action of moving onto her own singly purchased and constructed property with a man she had only known for less than a year defies logic. In addition, she did not dispute that she earned a decent commission, so the court does not believe that she would simply settle for a man of straw who was not financially beneficial to her, given that she had been recently widowed and a mother. She was not a maiden; therefore, the court could not believe her story that she waited until marriage to move under the same roof with an adult married man. In the final analysis, I am satisfied that the plaintiff’s story is the more probable and that of the defendant is false. I am solidified in this position by what was stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140(S) at 143A-C: “Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199: ‘Where there are two stories mutually destructive, before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A Gany . . .’ Disposition It is thus my conclusion that on a balance of probabilities the plaintiff did contribute directly, both to the acquisition and construction of house stand number, 5692, White City T/ship, Chinhoyi. Though his contribution cannot be easily quantified from the facts he is entitled to a decent share of the property. Though there is no mathematical precision as to the computation of an appropriate share to be allocated to the plaintiff, the justice of the case demands that he be awarded a 40% share in the said property. So, in casu, even if it were to be concluded, though already rejected, that the property may have been purchased before the union, or that the plaintiff did not contribute anything to both its acquisition and construction up to that stage, it still is caught under the rubric or net of spousal assets and subject to division or sharing as per the Gonye case. So, either way, the plaintiff is entitled to a share in the property. What remains to be determined is the percentage of that share. The case of Ranguna v Ranguna HH234/18 is instructive as to one of the determinant factors in apportioning shares in the distribution of marital assets. The duration of the union, in that case, the marriage, assisted the court in deciding the appropriate share. That means even if the plaintiff’s contribution, direct or otherwise, could not be safely ascertained, he stayed with the defendant for close to nine years as a husband. There is no justification for a 50% share, but at least 40% of the value of the property. See Musara v Mawoyo and Melo v Kandibelo supra. Accordingly, it is ordered that: The Plaintiff is awarded 40% of the value of Stand No. 5692, White City Township, Chinhoyi, and its improvements, while the Defendant retains the other 60%. The parties shall appoint a mutually agreed-upon valuator within 60 days of this order to determine the respective values each is entitled to, failing which the Registrar of the High Court is directed to appoint an independent valuator from their list of valuators. The parties shall pay the costs of valuation in equal shares. The Defendant is given the option to buy out the Plaintiff's 40% share within 12 months of the date of valuation, unless the parties mutually agree in writing to a longer period. In the event that the Defendant is unable to buy out the Plaintiff, then the property shall be sold through an agreed-upon estate agent, or if there is no agreement on one, then the Registrar of the High Court shall appoint one from their list of estate agents, and the proceeds, minus any attendant costs stemming from the sale, shall be shared according to the percentages outlined in point 1. All the movables shall be distributed as agreed to by the parties at the roundtable and pre-trial conference meetings. Each party shall pay their own costs. Mudimu Law Chambers, the plaintiff’s legal practitioners Legal Aid Directorate, the defendant’s legal practitioners 1 27 /10/09 excavations to foundation level ,01/11/to 07/11foundation to brick level2012 to 12 /12 2012 lintel to plastering 1 27 /10/09 excavations to foundation level ,01/11/to 07/11foundation to brick level2012 to 12 /12 2012 lintel to plastering 2 submission date 18 /08 2011….. approval 2020 2 submission date 18 /08 2011….. approval 2020 3 The monetary jurisdiction of the Magistrates court is outlined in its enabling Act and rules. These are constantly updated to match the prevailing economic changes. 3 The monetary jurisdiction of the Magistrates court is outlined in its enabling Act and rules. These are constantly updated to match the prevailing economic changes. 4 (Civil Jurisdiction) (Monetary Limits) Rules, 2023, as set out in SI 45 of 2023 4 (Civil Jurisdiction) (Monetary Limits) Rules, 2023, as set out in SI 45 of 2023 5 Section 53 of the High Court Act [Chapter 7:06], 171 of the Constitution of Zimbabwe Amendment No. 20 Act 2013, Rutsate v Ndaveni Wedzerai, SC 22/2020, 5 Section 53 of the High Court Act [Chapter 7:06], 171 of the Constitution of Zimbabwe Amendment No. 20 Act 2013, Rutsate v Ndaveni Wedzerai, SC 22/2020, 6 See, Melo v Kandibero 323/24, Marange v Chirodza 2002 (2) ZLR (H) 171. 6 See, Melo v Kandibero 323/24, Marange v Chirodza 2002 (2) ZLR (H) 171. 7 The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). 7 The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). 8 Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182 (25 November 2014). 8 Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182 (25 November 2014).