Whether
or not a share in a matrimonial home jointly owned by spouses can be
attached and sold in execution of a judgment entered against one of
the spouses
A
reading of the papers on record shows that nowhere in her founding
papers was the allegation made by the appellant that the second
respondent had unilaterally pledged ...
Whether
or not a share in a matrimonial home jointly owned by spouses can be
attached and sold in execution of a judgment entered against one of
the spouses
A
reading of the papers on record shows that nowhere in her founding
papers was the allegation made by the appellant that the second
respondent had unilaterally pledged his half share of the property as
security for the debt that he had incurred - and without the
appellant's consent. The appellant's grounds of appeal in this
court similarly do not allude to the question of whether or not it is
legally permissible for a spouse to unilaterally encumber a jointly
owned property without the other spouse's consent. This claim,
whose effect was to improperly introduce a new cause of action, was
only made in the appellant's heads of argument. Focus was then
effectively shifted from the correctness or otherwise of attaching a
spouse's half share in a jointly owned matrimonial home, to whether
or not it was legally permissible for one spouse in such a situation,
to alienate or otherwise encumber his share in the matrimonial home,
without the other spouse's consent. The judge a
quo
fell into this trap and relied for her determination partly on this
dictum
from the learned authors SILBERBERG
and SCHOEMAN's the Law of Property…,:
“Every
co-owner has the right freely and without reference to his co-owners
to alienate his share, or even part of his share subject, of course,
to the provision of the Agricultural Land Act…,. It is this right
which is probably the most important characteristic which
distinguishes a co-owner per
se
from all other forms of co-ownership such as partnerships and
associations. It is clear that the exercise of this right may lead to
friction in that it enables one co-owner to force the others into a
legal relationship with a party or parties they do not desire.”
The
learned judge then concluded as follows:
“In
essence, therefore, the first respondent is, at law, authorised to
alienate his right, encumber the same without reference to the other
co-owner. It
therefore follows that the second respondent (Sheriff) would be
within its rights to attach the 50 percent share of the first
respondent to recover a debt incurred in a purely commercial
transaction.”…,.
Thus,
while the court a
quo
made the correct finding as regards the Sheriff's power to attach
the share of jointly owned property that belongs to one of the
spouses who has incurred but failed to repay a debt, it did so on an
erroneous basis.
The
cause of action was whether or not the Sheriff can attach a share of
jointly owned matrimonial property.
Had
the court addressed its mind to the appellant's cause of action, as
enunciated in her founding affidavit, it would have found that this
issue has been determined and settled by our courts, as a few
authorities show.
In
the leading case of Gonyora
v Zenith Distributors (Pvt) Ltd & Ors
2004 (1) 195 (H) the applicant, a registered co-owner of the
matrimonial home, took issue with the sale of the entire house in
circumstances where the writ of execution should properly have only
related to her husband's half share. The court in that case
correctly held that it was 'inconceivable' that the applicant's
share could be attached and sold in execution without causa.
In
yet another case, Sheriff
of Zimbabwe v Mukoko and Anor
SC805-17,
the claimant and her husband co-owned their matrimonial home and the
property was attached in execution of a debt owed by her husband. She
approached the High Court with an interpleader application contending
that her undivided half share in the property had been wrongfully
attached. The court found that a writ is only enforceable against the
property of a judgement debtor, in this case, the un-divided half
share of the claimant's husband and not the entire property. The
attachment of her share was thus declared a nullity.
In
casu,
while
the appellant's half share of the property was not attached, the
common law principle affirmed in the two cases cited above holds
strong. This is that a writ of execution is properly enforced against
the property of a judgment debtor, notwithstanding that it forms a
part of jointly owned property.
The
warrant of execution issued by the second respondent against the
first respondent's property relates only to his 50 percent share.
The appellant's half share remains unencumbered. On a strict
interpretation of the law, and authorities cited above, her rights as
a co-owner were not infringed. She remains free to enjoy her real
rights in the half share she owns as she sees fit. The contention
made on behalf of the second respondent is that the first
respondent's half share is all that is intended to be sold in
execution in order to settle the debt in question.
It
should be noted that the first respondent in casu did not formally or
directly 'alienate' his share of the property. A perusal of the
Deed of Suretyship shows that what he did was bind himself as surety
and co-principal debtor with his company, Manyene Trading (Pvt) Ltd,
for the due payment of its debt to the second respondent (it is noted
that the Deed of Suretyship purports to have been entered into and
signed for by both the appellant and the first respondent. However,
it can be assumed, and was so accepted by the court a quo,
that
the appellant had no knowledge of the transaction and that her
signature thereto was forged. Indeed, a casual look shows a marked
difference between her supposed signature in the Deed of Suretyship
and that in her founding affidavit).
Nowhere
in the Deed of Suretyship does it state that the matrimonial home was
being pledged as security for the repayment of the debt in question.
Nor did the appellant tender any other evidence to that effect, for
instance a Surety Mortgage Bond over the first respondent's half
share in the property. It was therefore a mis-characterization of the
evidence before the court to allege that the first respondent
unilaterally encumbered the property by binding it as security for
the repayment of the debt owed to the second respondent. At the stage
of signing the Deed of Suretyship, all that the first respondent did
was to create the possibility, in the event that he failed to repay
the debt in his capacity as surety and co-principal debtor, of his
share in the matrimonial home being attached in order to raise funds
to repay the debt in question….,.
Be
that as it may, it cannot be denied that, while the signing of the
Deed of Suretyship, in reality, might per se not have interfered with
the family's daily enjoyment of the matrimonial home, the danger,
presumably unknown to the appellant, was always there that the first
respondent might default in his repayment of the loan, giving rise to
the judicial attachment of his share of the property. This having
then transpired, the consequence is that, in practical terms, the
appellant's and the family's enjoyment of the matrimonial home,
as a whole, has been jeopardised. Were the first respondent's
undivided half share to be sold, the appellant would be forced to
co-own what was hitherto the family's matrimonial home, with a
complete stranger. The appellant has indicated that she has no desire
to relinquish her rights therein by, for instance, allowing the sale
of the entire property and being paid 50 percent of the proceeds
thereof. One may comment that sales in execution, being forced sales,
generally do not realise the true value of the property concerned.
Such an outcome would clearly prejudice the appellant who, through no
fault of hers, would be forced to accept a fraction of the true value
of her half share of the property and possibly not be able to use it
to purchase a property of the same value.
The
court a quo,
in
my view,
correctly
highlighted the legitimate concerns that arise out of a situation
where a spouse who, with his spouse, jointly owns what is in effect a
matrimonial home, puts such home at risk by raising debts that he may
fail to pay back.
Albeit,
not addressing a situation where the Sheriff has attached such
spouse's share, the concerns highlighted by the court a quo
apply
equally to that situation.
The
court also ventured a suggestion as to how these concerns may best be
addressed. It opined as follows:
“It
cannot be disputed that the exercise of a co-owner's rights brings
outright hardship to another co-owner in a matrimonial set up. This
is particularly so when the property in issue is a matrimonial home.
A house, being indivisible; the property being a family home, as in
this case, it becomes, in my view, virtually impractical that the
property be owned by two unrelated parties.”
It
is against this background that the appellant appealed to the High
Court imploring it, among other relief, to 'expand' the common
law to recognise that jointly owned matrimonial property should not
be attached or 'exposed' without the consent of the other
co-owner. She argues for a change in the law so that the Sheriff is
restrained from attaching and selling in execution any jointly owned
matrimonial property that lawfully belongs to the judgment debtor.
This
part of the claim, in my view, was misconceived on two main respects;
(i)
Firstly, as I have above highlighted, at least one Supreme Court
judgment, Sheriff
of Zimbabwe v Mukoko and Anor
SC805-17,
has affirmed the correctness of the attachment and sale in execution
by the Sheriff of the undivided share of a jointly owned matrimonial
home in order to satisfy a debt incurred by one of the spouses. Being
accordingly bound by this decision, the High Court could not have
made a determination in
casu
other than the one that it made.
(ii)
Secondly, and to the extent that the High Court is empowered, in
terms section 176 of the Constitution, to, among other things,
'develop' common law, it could, in my view, not have properly
done so if the effect was to override a Supreme Court judgment on the
exact same issue.
The
court therefore correctly declined the invitation to 'expand'
common law, in an exercise of judicial activism, in order to grant
the order sought by the appellant.
Be
that as it may, I find it instructive to consider the issue as argued
by the appellant and as determined by the court a
quo
in this respect.
The
appellant argued, at length, and cited numerous authorities from our
jurisdiction and beyond, on the need for courts, through judicial
activism, to play their role in outlawing laws and practices that
adversely affect the advancement of women's development in all
spheres of life. It was argued in this and other respects, that, at
common law, the courts are obliged to be 'judicially active' and
develop the common law. Reliance for this argument was, inter
alia,
placed on the case of Zimnat
Insurance Company Ltd v Chawanda 1990
(2) ZLR 143…, where GUBBAY ACJ…, stated:
“It
sometimes happens that the goal of social and economic change is
reached more quickly through legal development by the judiciary than
by the Legislature. This is because judges have an amount of freedom
or latitude in the process of interpretation and application of the
law. It is now acknowledged that judges do not merely discover the
law but they also make law. They take part in the process of
creation. Law making is an inherent and inevitable part of the
judicial process.”
Special
mention was made of section 176 of the Constitution, which vests, in
our higher courts, the power to protect and regulate their own
processes and “to
develop common law or the customary law, taking into account the
interests of justice and the provisions of this Constitution.”
It
was the appellant's argument that the circumstances of this case,
and the issue at stake therein, constituted a proper case for the
exercise of this power.
The
court a
quo
was not persuaded by the submissions made on behalf of the appellant
in this respect and stated thus:
“It
is this undesirable and impractical situation that, in my view, Mr
Biti
sought to demonstrate and seek solution to by referring to dynamic
constitutionalism. No
doubt, legislative intervention is required to protect a family home.
This may constitute law reform providing legal mechanisms for the
prevention of encumbering a matrimonial home in the absence of
meeting certain criteria.”
As
TSANGA J stated in Madzara
v Stanbic Bank Zimbabwe Limited and Others
HH546-15;
“The
absence of mechanisms for the protection of a matrimonial home is
indicative of a lacuna
in the law which needs to be addressed legislatively in terms of
spelling out the exact parameters of the protection of the
matrimonial home.”
The
court a
quo,
thus, in my view, was correct in the following assertion;
“Attainment
of such a milestone can never be achieved through judicial activism.
This is a pertinent issue which touches on the concept of real rights
as constituted by ownership and the will to deal with property and
the limiting of such rights where matrimonial property is juxtaposed
with the dictates of commerce.”
Having
considered the lengthy submissions made on behalf of the appellant,
and, given the circumstances of the case and the relief sought, I do
not find any fault with the reasoning of the court a
quo
on this point.
Judicial
activism, while having a place in our legal system, as in many
others, and, in appropriate cases, however, has its limits. The major
limitation to the law-making role of the courts is the need for the
judiciary not to step onto the toes of the Legislature, whose primary
mandate is to make laws through Parliament. I have no doubt in my
mind that section 176 of the Constitution is not meant to vest the
judiciary with authority to usurp the legislative responsibility of
the Legislature. In this respect, I associate myself with the
sentiments of TSANGA J as expressed in the case of Madzara
v Stanbic Bank Zimbabwe Limited and Others
HH546-15
as
follows:
“In
sum, much as judicial activisim has its place in law's advancement
given the absence of constitutional breach in the manner averred by
the Applicant in this case, and the clear recognition of a
legislative gap that the State can be pressed to rectify, these are
not issues that can be addressed through the enthusiastic pen of an
overly activist judge. These
issues require informed dialogue and the legislator's engagement
with relevant stake holders on what would be realistic.
Sight should not be lost of the significance of participation, for
efficacy of laws, by those on whom they will have a bearing.”…,.
It
should be noted in this case that the appellant's call was for the
exercise of judicial activism taking the form of 'expanding' the
common law, based only on the facts of the dispute at hand. The
dispute clearly has a bearing on both social and economic issues but
does not reflect the full ambit and reach of the problem sought to be
addressed. The interests of other players, like banks and building
societies, whose business includes the lending of money upon the
pledging of immovable property as security would most likely be
affected. One may envisage a situation where such entities may, to
their detriment, become wary of extending mortgage bond facilities to
a married couple aspiring to acquire and jointly own a matrimonial
home, to any married person for that matter, or to a married couple
wishing to raise funds to develop their jointly owned property! One
may also not rule out collusion between an unscrupulous married
couple, who may borrow money from a lending agency and then hide
behind their joint ownership of a matrimonial home in order to
frustrate the creditor's efforts to recover its money. Furthermore,
it must be accepted that the second respondent was unable to find any
other property belonging to the first respondent that could have been
attached and sold in execution in order to raise the not
inconsiderable amount that it is owed. It falls to reason that
granting the relief sought by the appellant would leave the second
respondent with no recourse - much to its prejudice. These and other
related matters are weighty and complex. They need proper
consideration before such a fundamental change to the common law as
is sought by the appellant can be effected - even by the Legislature
should it be so persuaded. The Judiciary, by nature, lacks the
resources or any capacity to undertake such a task.
That
being the case, it is patently evident that granting the relief
sought by the appellant, while it may solve her particular problem,
would create problems for many others on whom it would impact. It is
not the type of relief that the court may properly grant. This
dilemma is aptly captured by FRANKFURTER J in the USA case of Sherrer
v Sherrer
334
US 343, 366 (1948), as follows:
“Courts
are not equipped to pursue the paths for discovering wise policy. A
court is confined within the bounds of a particular record, and, it
cannot even shape the record. Only fragments of a social problem are
seen through the narrow window of litigation. Had we innate or
acquired understanding of a social problem in its entirety we would
not have at our disposal adequate means for constructive solution.”
This
is in line with the sentiments of GUBBAY CJ in Walker
v Industrial Equity Limited
1995 (1) ZLR 87 (S) when he stated:
“Almost
ninety years ago, in Blower
v Van Noorden
1909 TS 890 at 905, INNES CJ aptly observed that:
'There
comes a time in the growth of every living system of law when old
practice and ancient formulae must be modified in order to keep in
touch with the expansion of legal ideas and to keep pace with the
requirements of changing conditions. And it is for the courts to
decide when the modifications, which time has proved to be desirable,
are of a nature to be effected by judicial decision and
when they are so important or so radical that they should be left to
the legislature.'”…,.
In
my view, this is a proper approach to judicial decision-making which
strikes the correct balance between excessive caution, on the one
hand, and judicial over-reach, on the other.
HLATSHWAYO
JA had occasion to comment on the same dilemma in his former life as
an academic some two decades ago, thus:
“In
point of fact, though, there is no great difference between the two
approaches, especially given the very limited scope of judicial
law-making. However, the consequences of adopting one approach as
against the other are far-reaching on the maintenance of the rule of
law structure, the development and consolidation of human rights and
human rights culture. To use a homely description, judicial law
making could be likened to 'grazing over the fence'. Now, it is
one thing when judges stretch their necks to graze on the sweet green
grass bordering the judicial paddock and quite another for them to go
trip, trap, trip, trap, billy goat Gruff style, across the bridge to
graze on the other side. Then, one never knows what ugly trolls they
might disturb and the constitutional havoc that might ensue. In this
illustration, judicial restraint can be compared to stretching the
neck as far as it can go to graze on the sweet green grass, while
remaining within the judicial constitutional space and judicial
activism, to bolting out of the paddock and going round to eat
perhaps the very same grass or a little bit more further afield. The
extra mouthful of grass, I submit, is not worth the consternation
that the act of bolting out of the judicial enclosure causes!”
Order
in the Courts: Judicial Activism and Restraint, 1997, Legal Forum…,.
It
is not to be denied that the relief sought by the appellant is one
that would resonate with women's rights activists and many married
women who jointly own matrimonial property with their husbands. This
is because it would deal a killing blow to one of the major social
and cultural pressures that serve to stifle the economic empowerment
of married women, their access to vital resources like reliable
shelter and the security that all this brings to women and families
as a whole. I however agree with the learned judge a
quo,
and the authorities cited, that the complexity of the matter at hand
and its undeniable impact on other players who are not parties to
this claim, are issues that should properly be left to the
legislature to address. The issue at hand is one that, to use TSANGA
J's words in the case of Madzara
v Stanbic Bank Zimbabwe Limited and Others
HH546-15
“requires
informed dialogue and the legislator's engagement with relevant
stakeholders on what would be realistic.”
Thus, thorough, systematic legislation informed by views garnered
from consultation with relevant players and stake-holders is
necessary in addressing problems like the one at hand that impinge on
matters to do with the country's social and economic development.
I
do not entertain any doubt, when all is said, that the exercise of
judicial restraint is properly called for in relation to the legal
changes sought in
casu….,.
Disposition
In
the light of the foregoing, the appeal fails on all grounds.
It
is accordingly ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
