MATHONSI J: The
plaintiff instituted proceedings against defendant alleging in the declaration
that the 2 were customarily married in 1998 and that during the subsistence of
that union they acquired items of property namely stand 4013 Nkulumane
Bulawayo, mazda 323 motor vehicle, fridge, stove, kitchen unit, colour television,
cellphone and line and lounge suit.
He averred that the
parties had entered into a universal partnership to own the property in
question jointly and that as the union has been dissolved he was entitled to a
share of that property. He claimed 60%
of stand 4013 Nkulumane Bulawayo, a 6 roomed house which, at the time it was
purchased in January 2003 was a ''match box house'' of 3 rooms. He also claimed a lounge suit.
In further particulars
he supplied at the behest of the Defendant, the plaintiff averred that it was
only on 14 December 2003 that the customary union was formalised and that stand
4013 Nkulumane Bulawayo (the house), was purchased for Z$8 000 000-00 which was
paid in instalments. He further averred
that the Mazda 323 motor vehicle was purchased from the Defendant's uncle for
Z$4 000 000-00.
The defendant contested
the claim averring in her plea that she did not enter into a customary union as
alleged as she was only 15 years old in 1998 and therefore incapable of
contracting. She denied ever entering
into a universal partnership with the plaintiff or ever purchasing any property
with the plaintiff.
At the pre-trial
conference held before a Judge, the issues for trial were identified as
follows:
1. Whether the parties were customarily
married during the period specified in the declaration.
2. Whether the parties pooled
their resources together to form a partnership and bought the property set out
in the declaration.
3. Whether the Defendant was
unjustly enriched at the expense of the plaintiff.
4. Whether it would be just and
equitable in the circumstances to divide the property as claimed by the
plaintiff.
The plaintiff gave evidence
and in the process of doing so, he abandoned his claim to the movable property
and appeared to revise his claim from 60% to 50% of the house. His evidence is to the effect that he met the
defendant in 1998 and they fell in love.
Soon after that defendant's father discovered the affair and severely
assaulted her before banning her from leaving their home in Luveve. She was grounded.
At that time the plaintiff was
already married to someone else, a police officer based at Western Commonage
police station, in terms of the Marriage Act, Chapter 5:11, which marriage did
not permit the plaintiff to have a second wife.
Sometime in year 2 000, he
left Zimbabwe to go and work in the United Kingdom where he remained working
hard 18 hours a day for 7 months trying to make as much money as possible. During that time he would send money to the
defendant via, Western Union money transfer, for her upkeep. He produced 3 copies of Western Union
invoices showing that he had sent to Florence Matika (defendant's sister), BP
25-00 and to the defendant BP70-00 and
BP 50-00.
He went on to say that he was
in contact with the defendant whom he requested to search for a house to buy
and the defendant advised him that houses were then going for
Z$40 000-00 to 45 000-00. He then
sent money to the defendant, surprisingly in Zimbabwe currency, in the sum of
$45 000-00 through Abraham Chikozho. The
defendant used that money to purchase a 2 roomed house in Nkulumane, Bulawayo
but did not give him the details of the house, how much it had cost and did not
even show him the purchase documents of the house.
According to the plaintiff,
the defendant informed him she had used that $45 000-00 to purchase the house,
settle her outstanding account at Topics Store and the balance was used to set
her up in a money changing business she is still engaged in to this date. Sometime in 2001 he left the United Kingdom
enroute to Zimbabwe via Canada where he spent 2 months on holiday.
When he finally arrived in
Zimbabwe he was so busy with his company business he did not immediately find
time to view the house and see the paper work for it. On 14 December 2003, he and his relatives met
the defendant's family members at their Luveve 5 house to formalise the
Customary Union. He was charged lobola,
paid part of the money and told to return at a later date to finish off what
was due. He produced an unhelpful
document which he claimed was written by Victor Muchichwa recording the
customary transaction. Unfortunately,
although he had promised to call that individual as a witness, he was never
called.
After the Customary Union, in
December 2003, he requested to be given his wife, the defendant and together
they moved to a house in Cowdray Park, Bulawayo where they commenced living
together. Sometime, on an unknown date,
he requested the defendant to take him to the house she had purchased which she
did and he beheld a 2 roomed unplastered house being No. 4013 Nkulumane,
Bulawayo. They could not move into that
house because the defendant told him that there were tenants who needed to be
given notice.
He stated that he stayed with
the defendant in Cowdray Park for 3 or so months before the defendant deserted
while he was away in Harare. Quizzed by
counsel for the defendant about the period of their cohabitation, he said he
could not remember and could not dispute that it was actually only one month.
Much later, he was attending a
funeral next door to the house when he discovered it had been extended to a 5
to 6 roomed house. He did not contribute
anything towards the development of the house.
He prayed that he be awarded 60% and under cross examination he revised
that figure to 50% of the house. Asked
how he could have paid lobola of 8 cattle at Z$800 000-00 per beast as recorded
on the document he produced (which means that he paid lobola of $6 400 000-00)
at a time he claimed to had purchased a full house for less than
$45 000-00, the plaintiff mumbled something to the effect that this was
a hyper inflationary period. He did not
give a clear explanation.
The plaintiff called Abraham
Chikozho who confirmed having been sent by the plaintiff to deliver $45 000-00
to the defendant in 2001. After failing
to locate the defendant he handed the money over to the defendant's sister, one
Florence Matika. He did not know what
the money was for and whether it was passed on to the defendant. He did not explain how a sum of Z$45 000-00
was sent from the United Kingdom.
The defendant also gave
evidence. She had a love affair with
the plaintiff commencing in 1998 when she was still 15 years old. The plaintiff left for the United Kingdom in 2
000 and whilst there he would send her some money as gifts between lovers. She admitted receiving the $45 000-00 from
the plaintiff through her sister Florence in 2001 and stated that the money had
been brought by Chikozho who had visited the United Kingdom but it was in the
form of BP30-00. Her sister, who was
engaged in the money changing business (before she also started doing that
business herself), converted the money to the local currency and gave her $45 000-00. It was not a lot of money.
She used the money to settle
her account at Topics Store as it had been outstanding for some time, to
purchase airtime to telephone the plaintiff in UK and the rest was pocket
money. At no time did the plaintiff request
her to look for a house to purchase and he certainly did not ask her to use
that money to purchase any house. It was
simply too little to buy a house.
She had always known the
plaintiff to be married although he claimed that he was on separation in the
process of divorcing. She confirmed that
the plaintiff also sent her some money through Western Union as a gift.
The plaintiff returned to
Zimbabwe and immediately started harassing her.
They quarrelled when the plaintiff severely assaulted her for
questioning him after he had received a call from another woman as they sat in
a vehicle. After he had assaulted her he
forcibly took away from her BP50-00 and Z$250 000-00. She then broke up with him.
She was already in the money
changing business when they broke up and sometime in January 2003 (after they
had separated), she purchased from one Precious Mavone, house No. 4013
Nkulumane, Bulawayo which then was a ''match box'' 3 roomed house. The money she used was from her own sweat
without any input from the plaintiff and the purchase price was Z$2,1
million. She paid a deposit of $1,5
million with the balance being paid in monthly instalments of $300 000-00.
She produced an agreement of
sale signed between herself and the Bulawayo City Council in January and
February 2003 showing that as the time she purchased the house. Months later in November 2003, the plaintiff
returned to her life and pleaded with her.
They reconciled and he insisted on being introduced to her parents. Before that he took her to his home in
Masvingo where his sister confided in her that the plaintiff was married. He was introduced to her parents in December
2003, did not pay any lobola because in her culture as people of the apostolic
faith, lobola is unknown. All he did was
to buy groceries and give her aunts some money in recognition of the
introductions.
She did not disclose to him
that she had acquired a house during the time they had broken up. When he requested to move in with her, he did
not have anywhere to take her. She then
requested a relative of hers to allow them to move into her furnished house in
Cowdray Park. They did not acquire any
property together. Bearly a month after
they started living together they broke up and this time permanently. She had been given money by a client in the money
changing business and the plaintiff staged a robbery which resulted in her
losing all the client's money. She is so
sure the plaintiff was behind the robbery because she saw him communicating
with the robbers signalling where the money was in the car and he refused to
drive away as the robbers closed in on them.
He immediately left for Harare to spend the money while she remained
behind licking her wounds. She left him.
The plaintiff did not impress
as a good witness and his case is fraught with inconsistencies and
contradictions. While in the pleadings
he claimed that he entered into a customary union with the defendant in 1998,
when he gave evidence this turned out to be December 2003. In the pleadings he
claimed that the house and indeed all the other property, was acquired during
the subsistence of the union, the evidence shows that the house was acquired in
January 2003 long before the Union was formalised.
He claims in the pleadings
that the house was purchased for $8 million but in his evidence he claims it
was bought for less than $45 000-00. His
pleadings state that the 323 vehicle was bought for $4 million yet he would
have us believe in his evidence that the house was bought for just a fraction
of the price of a small vehicle.
While he claims to have sent
$45 000-00 from the UK, it has not been explained how this was possible as one
would have expected him to send the money in British Pounds. In addition, he did not bother to check the documents
recording the purchase, did not even know the house and what it cost.
Glaringly he did not even have
the correct description of the house. He
testified that it was a 2 roomed unplastered house at the time of purchase and
that it is now a 5 or 6 roomed house. It
turns out that when it was purchased it was a 3 roomed house and that 3 more
rooms have since been added. To say he
lacked knowledge because he was busy at his company is simply disingenuous.
The plaintiff could not
explain why they did not move into the house from 2002 when he returned to
Zimbabwe when they appeared to struggle for accommodation, if indeed they had a
house of their own. I find it extremely
amazing that the plaintiff would insist that the house was purchased during the
subsistence of a union which subsisted for only one month.
Equally amazing is his
insistence on a claim of 60%, or is it 50%, of the house when, by his own
admission, he was not involved at all when it was extended to what it is today.
On the other hand the
defendant was clearly an impressive witness who did not attempt to distort the
facts at all. She struck me as a very
truthful witness and I have no hesitation what- so ever in accepting her
evidence. She readily accepted that the
plaintiff sent her money from the UK, even the $45 000-00 which was not
documented which she could have easily denied.
She stated however that the money was a gift.
Regarding her relationship
with the plaintiff, she did not deny that it commenced in 1998 even as she was
15 years old. She again readily accepted
that the plaintiff was introduced to her parents and that she moved in with him
albeit for 1 month, even as he was already married to someone else.
It has been submitted on
behalf of the plaintiff that the parties entered into a tacit universal
partnership to own the house and that upon its dissolution the plaintiff is
entitled to a share. Alternatively that
the defendant has been unjustly enriched and equity demands that the plaintiff
be given a share.
The requisites of a tacit
universal partnership were set out in Mtuda
v Nduduzo 2000(1) ZLR 710 at 716 E-G where Garwe J (as he then was) stated;
''What amounts to a tacit
universal partnership has been considered in several decisions of the courts in
this country and in South Africa. The
four requisites for a partnership maybe summarised as follows:
(a) each of the partners must
bring something into the partnership or must bind himself or herself to bring
something into it, whether it be money or labour or skill;
(b) the business to be carried
out should be for the joint benefit of the parties.
(c) the object of the business
should be to make a profit; and
(d) the agreement should be a
legitimate one.
In addition the intention of
the parties to operate a partnership is also an important consideration. See Muhlmann
v Muhlmann 1981 (4) SA 632 at
634; Mashingaidze v Mashingaidze 1995
(1) ZLR 219.''
In casu, the plaintiff's claim fails the first hurdle because I am not
persuaded that he contributed anything.
I reject the evidence of the plaintiff that the $45 000-00 he sent to
the defendant was for the purchase of the house. His case is compounded by the fact that he
did not even attempt to lead evidence to prove that the money was enough to
purchase that house.
Having come to that
conclusion the matter should really end there.
I wish to comment however on the legitimacy of the agreement which is
one of the requirements for a valid partnership. For times without number this court receives
litigation from the likes of the plaintiff who, while married to someone else
in terms of civil rights, they proceed to purchase property for a paramour and
when the relationship gets sour they still proceed behind the back of their
spouse to litigate claiming a share of that property. Finding it difficult to premise that claim
such litigants would allege a variety of issues including a tacit universal
partnership.
In my view, it is
completely against public policy for such people to approach the court when in
the majority of cases they would be cheating on their spouses and amassing
wealth behind them. Even where an agreement
exists with the paramour, such cannot be said to be legitimate as it is
illegal. How can a person whom the law
prohibits from having a second wife proceed to have one against the law and
then approach a court of law seeking redress?
In applying the
principles of a tacit universal partnership, the courts cannot be seen to be
legitimising what is otherwise illegitimate.
Accordingly even if the plaintiff had proved contribution in this case,
his claim would still fail on the basis of illegitimacy of the agreement.
In the result, the
plaintiff's claim is dismissed with costs.
Messrs Cheda and Partners, Plaintiff's Legal
Practitioners
Messrs Majoko and Majoko,
Defendant's Legal Practitioners
