In a case with an extensive judicial footprint, the Gaborone High Court has shot down an attempt by a woman to gain ownership rights to property that her ex-husband acquired after they divorced.
After three years of marriage, Joseph Mokgweetsi and Tumalano Mokgweetsi went their separate ways, their divorce being finalised on February 12, 2010. The couple had been married in community of property and as part of the divorce settlement, was to divide between themselves pieces of land on a joint-estate list that had been authorised by the District Commissioner. The land was spread out across three areas: two residential plots in Tutume, one residential plot in Mogonye and one ploughing field in Rataunyane. In a deal that would be confirmed by the Ramotswa Customary Court, the parties agreed between themselves that the man would get the Mogonye plot and Rataunyane ploughing field while the woman would get both plots in Tutume. At the time of the divorce, the Bamalete Land Board was still processing an application for a residential plot that Joseph had made a year before, while still married to Tumalano.
Some four month after the divorce (June 16), Joseph was allocated a residential plot in Ramotswa which Tumagano laid claim to soon thereafter. The ensuing legal dispute would go to the Ramotswa Customary Court which ruled in favour of Joseph maintaining the status quo but on appeal, the Customary Court of Appeal reversed the decision by ordering that one of the Tutume plots should go to Joseph and that Tumagano should get the one in Ramotswa. Joseph appealed this ruling at the High Court.
A fair bit of the judgement explains the in-community of property regime over which this marriage was contracted. Justice Dr. Zein Kebonang said that this regime does not survive divorce, meaning that after the couple separated they no longer shared property. According to the judge, it is only property in the marital estate on the date of the dissolution of the marriage that must be considered in making any property assignments to the parties.
“It bears no stating that the allocation occurred after the marriage between the parties had been dissolved. For this reason, the property could not form part of the point estate nor could it be allocated to the respondent. The allocation of the Ramotswa plot to the respondent was a dramatic development and a misdirection by the Customary Court of Appeal. For this reason, the appeal must succeed as concerns the Ramotswa plot,” Kebonang’s judgement says.