MAWADZE
J:
The
plaintiff on 24 February 2011 issued summons out of this court
seeking an order of sharing of the assets of the parties on the basis
of the common law principle of unjust enrichment.
In
his declaration the plaintiff stated that he entered into a customary
law union with the defendant which union was blessed with four
children two of whom are minor children. At the time he contracted
the union the plaintiff said he was already married to his first wife
and it was also a customary law union.
The
plaintiff stated that he acquired the immovable property in issue
known as Stand No. 2573 Kuwadzana 4 Harare when he was married to his
first wife and had not married the defendant. He said the immovable
property is registered in the joint names of the plaintiff and his
first wife.
It
is the plaintiff's case that the customary union between him and
the defendant has been since dissolved as per the customary rites.
The plaintiff however contended that he would be unjustly enriched if
the defendant does not receive any share in the immovable property
No. 2573 Kuwadzana 4 Harare (hereinafter the house or the property).
The plaintiff states in his declaration that it is fair and equitable
to award the defendant a 20% share of the open market value of the
property, a figure he later amended before the commencement of the
trial to 5% share.
In
her plea the defendant sought the distribution not only of the house
but also of some movable property not stated in the plaintiff's
declaration which include mainly household goods itemised in
paragraph 2 of her plea.
While
the defendant conceded that the house was acquired by the plaintiff
and his first wife, she said in her plea that at the time she married
the plaintiff the house only consisted of a core house of two rooms.
The defendant said she contributed to the extensions and improvements
made to the house which is now a 7 roomed house. In her plea the
defendant alleges direct contribution to the extension of the house
by raising money from the sale of clothes which money was used to
purchase the building materials. She said she bought clothes in
Harare for resale to illegal gold panners in Shamva, Mazowe, Chikuti
and Sanyati. She said the money she raised was specifically used to
pay the builders, carpenters and purchasing building materials. In
her plea she said she also used to sell uniforms sewn by the
plaintiff using the family sewing machine in Makonde area and used
the profits in the same manner already explained. The defendant
further stated in her plea that she indirectly contributed by taking
delivery of the building materials bought when the plaintiff was at
work, assisting the plaintiff in the purchasing of the building
materials and for their safekeeping and preparing food for the
builders and carpenters.
The
defendant said she further contributed in the construction of the
plaintiff's rural home; firstly in Muzarabani where she cleared
virgin land, moulded bricks, constructed a homestead, cattle and goat
pens at the time the plaintiff was in full employment in Harare. The
defendant said she performed the task when the family moved from
Muzabani to Gumbura area, Makonde in Mashonaland West Province where
she said they built a rural home which now remains the sole asset of
the plaintiff. The defendant stated in her plea that it is just and
equitable that the house or property in issue be sold all the
proceeds shared equally.
It
would seem the purpose for replication was lost to the plaintiff as
he did not seek to respond to pertinent issues raised by the
defendant in her plea. The need to do so became apparent during the
trial.
In
terms of the joint pre-trial conference minute adopted by the parties
the following issues were deemed not to be in contention.
“1.
ADMISSIONS
1.1
That Stand No. 2573 Kuwadzana 4 Harare was acquired and jointly owned
by the plaintiff and his late wife Maud Chauraya.
1.2
That the household effects be shared as follows:-
PLAINTIFF
1.
1 Sewing Machine
2.
Delivery bicycle
3.
1 scotch cart
4.
4 plate electric stove
5.
Spraying machine
DEFENDANT
1.
Mountain bicycle
2.
1 sewing machine
3.
2 plate stove
1.3
That the defendant be awarded custody of the minor children.
1.4
Maintenance to be paid in accordance with the order of the
Maintenance Court under case No. M637/09.”
The
following issues were referred for determination, at the trial;
“2.
ISSUES
2.1
Whether or not the plaintiff has already given the defendant the
household effects that were acquired during the subsistence of the
marriage.
2.2
Whether or not the plaintiff sold any assets that were acquired
during the subsistence of the marriage.
2.3
Whether or not the defendant is entitled to any share to the
immovable property Stand No. 2573 Kuwadzana 4 Harare. If she is
entitled to any share what percentage.
2.4
Whether or not the refrigerator is part of matrimonial property. If
yes, which party should be awarded the refrigerator.
2.5
Whether or not the building structure that stood on Number 2573
Kuwadzana 4 at the time the parties got married, was a 2 roomed core
house only.
2.6
Whether or not the 7 roomed house presently stands on Stand Number
2573 Kuwadzana 4, was the result of extensions effected during the
subsistence of the marriage.
2.7
Whether or not the defendant set up the plaintiff's rural home in
Makonde which now remains the sole property of the plaintiff.”
I
should confess from the onset that I find it very confusing the
manner the parties approached the pleadings in this matter. The
exhortation made by MAKARAU JP (as she then was) in Feremba
v
Matika
2007
(1) ZLR 337 (H) at 341 F-G seems to have escaped both parties during
the pleadings, and unfortunately even at pre-trial conference stage.
I
shall repeat the relevant poignant remark by MAKARAU JP (as she then
was):
“When
general law is the correct choice, then a recognised cause of action
must be pleaded. Such a cause of action may be unjust enrichment, a
tacit universal partnership or joint ownership. An averment merely to
the effect that the parties were in an unregistered customary law
union is not sufficient to found a cause of action at general law”.
In
casu
the cause of action is not properly pleaded especially by the
plaintiff in the declaration.
The
parties were in an unregistered customary law union which has since
ended. This explains why an amendment was belatedly made to the
declaration just before the trial when I had raised that point with
the parties. While the exhortation I referred to by MAKARAU JP (as
she then was) in Feremba
v
Matika
supra
was mainly directed to trial magistrates, I believe all legal
practitioners must also be wary of this important aspect.
In
casu
when one pays regard to the joint pre-trial conference minute the
impression created is that the parties were in a registered marriage
if one pays regard to not only the improper use of the word
“marriage” but even issues relevant to admissions made in
relation to custody of the children. The issues referred to trial are
also couched in a manner suggestive of the fact that the sharing of
the assets by the parties is in terms of section 7 of the Matrimonial
Causes Act [Cap
5:13].
This confusion arises from the fact that a proper cause of action had
not been clearly pleaded and the issues arising therefrom properly
articulated.
Be
that as it may the plaintiff, with the consent of the defendant
amended the declaration in which it was clearly stated that the cause
of action is unjust enrichment. This matter therefore proceeded on
the clear understanding that the parties have nailed their colours on
the mast of the concept of unjust enrichment. This also necessitated
the changes the parties made in respect of the issues for
determination. The issues which fall for determination as I now
perceive them are as follows;
1.
Whether or not the defendant contributed directly or indirectly to
the improvements done on Stand No. 2573 Kuwadzana 4, Harare.
2.
The state or stage the construction of House No. 2753 Kuwadzana 4
Harare was when the plaintiff and the first defendant entered into
the customary law union.
3.
The nature of the share to the immovable property in issue each party
is entitled to.
4.
Which party should be awarded the refrigerator.
The
issue relating to sharing of household goods was abandoned as it
became clear that the defendant was awarded some “maoko”
property at the dissolution of the union and that the parties further
agreed to share of other assets as for paragraph 1.2 of the joint
pre-trial conference minute.
The
parties also abandoned item 2.2 which relates to whether the
plaintiff sold any assets acquired during the subsistence of the
union. It is not clear what issue was being raised therein. In fact
during the trial the defendant attempted to raise the issue in a
different context alleging that it is the defendant who disposed of
assets and livestock at the rural home in Makonde.
The
issue relating to defendant's role in the setup of the rural home
is only relevant in considering her indirect contribution to during
the union and the share she is entitled to.
I
now turn to the background facts of the matter.
The
plaintiff is employed by Harare City Council in the Dry Cleaning
Department. He has been so employed since 1974. The defendant who is
now 47 years old, has been, throughout the union a full time
housewife.
The
plaintiff first entered into a customary law union with Maud Chauraya
in 1977 and 6 children were born out of this union. The union between
the plaintiff and Maud Chauraya ended in 2006 when Maud Chauraya
passed on. The plaintiff entered into a customary law union with the
defendant in 1989 as per defendant or 1990 as per the plaintiff. Four
children were born out of this union two of which are still minors.
This
means that from either 1989 or 1990 to 2006 the plaintiff was in a
polygamous union with two wives, a period of about 17 years.
The
union between the plaintiff and the defendant was formerly dissolved
in 2009, after being in existence for a period of about 19 years.
When the defendant entered into the union with the plaintiff she had
two children from a previous relationship or relationships.
The
acquisition of the immovable property No. 2573 Kuwadzana 4, Harare is
not in issue. The plaintiff acquired the undeveloped Stand in 1984
with the assistance from his employers the City of Harare. As per
exhibit 1 the agreement of sale of this property is in the joint
names of the plaintiff and his first wife Maud Chauraya.
The
first wife passed on in 2006 and her estate is still to be dealt
with. This includes her interest in the property jointly registered
in the plaintiff and her name. This informs the decision by both Mr
Simango
for the plaintiff and Ms Zvinavashe
for the defendant that all what is available for distribution between
the plaintiff and the defendant, is the plaintiff's 50% share in
the property.
I
find nothing amiss in this approach. Whatever the award this court
would make in respect of the property, the award relates to 50% of
the value of that property not 100% of its value.
Although
the union between the parties ended in 2009 both parties are still
sharing the same house with the children. Apparently the plaintiff
has moved on as he has entered into yet another customary law union
with another woman in July 2013.
Both
the plaintiff and the defendant gave evidence and did not call any
witnesses.
The
plaintiff told the court that he secured the property in issue
through a facility provided by his employer Harare City Council in
1984. He paid an initial deposit of then Zimbabwean $50-00 and was
awarded a loan to develop the Stand. The loan was disbursed in
trunches of Zimbabwe $500-00 at every stage of the developments. He
said this loan was not enough hence when he developed the Stand
further he had to use his salary. He said it took him 10-15 years to
repay this loan.
The
plaintiff said he started to develop Stand in 1985 with his first
late wife. He was unable to give any concrete dates as to how the
developments unfolded. Despite probing by his counsel the plaintiff
was unhelpful on this rather material issue. He however said he built
4 rooms initially and a slab for further three rooms with his first
wife before he entered into this union with the defendant. He was
unable to say the dates when he further constructed the 4 rooms and
the slab. All he emphasized was that he had built 5 rooms before he
entered into union with the defendant in 1990.
The
plaintiff said he only constructed further 2 rooms after he had
entered into the union with the defendant.
The
import of his evidence is that the defendant's direct or indirect
contribution, if any, is in respect of the 2 rooms only.
The
plaintiff said the defendant never made any direct contribution as
she was a full time housewife who alternated with the first wife in
staying either at his rural home or in Harare with the plaintiff. He
denied that the defendant contributed in any manner in the
construction of either the Muzarabani rural home or Makonde rural
home. Instead he said he financed the construction of these rural
homes from his sole income. The plaintiff denied that he derives any
benefit from Makonde rural home saying the defendant destroyed all
the huts there in 2007 when she abandoned the home and disposed of
all stock and household goods at the rural home.
The
defendant testified that all that the defendant is entitled to is a
5% share of the 50% value of the property in issue which share only
relates to her indirect contribution.
It
was clear during cross examination that the plaintiff was not willing
to acknowledge any contribution, direct or indirect made by the
defendant during the union.
He
grudgely accepted that defendant did cook, wash, and perform all
wifely duties. He was at pains to accept that she looked after the 4
children they have, instead choosing to emphasise that he looked
after the defendant's child from another relationship.
The
plaintiff was clear that he has no financial means to buy out the
defendant whatever the share the defendant may be awarded. He told
the court that he may attempt to secure a loan from his employer but
he does not believe this would be successful. Instead he would rather
have the property sold and the proceeds shared.
The
defendant who did only Grade 6 denied that when she entered into this
union with the plaintiff the house in issue was a 5 roomed house. She
insisted that it was a core house of 2 rooms with a toilet and a
bathroom. She said the two rooms were not even complete as they used
zinc tiles for window panes. She even said she vividly recalls their
first tenant or lodger, a Tshuma who shared one room and they used
the other room.
The
defendant said all the improvements done of additional 5 rooms was
done after she had entered into the union with the plaintiff.
She
insisted as per her plea that she made direct contributions by
selling clothes and gave the money to plaintiff to use in the
improvements of the property. She was unable to quantify her direct
contribution. As regards indirect contribution she said she used to
cook, wash and look after the plaintiff and the children and attend
to the rural home, tilling the land. She maintained that she directly
contributed to the construction of firstly the Muzabani rural home
and later Makonde rural home.
The
defendant accepted the plaintiff's evidence that she did not
directly contribute in the purchase of the refrigerator. This then
puts to rest her claim in respect of the refrigerator.
Our
courts have now accepted that despite the inapplicability of the
Matrimonial Causes Act [Cap
5:13]
in cases like the instant one, a woman or man married according to an
unregistered customary law union can institute a claim for sharing of
assets of the parties at the dissolution of the union under the
common law principles of unjust enrichment, tacit universal
partnership or joint ownership.
See
Zimnat
Insurance Company v
Chawanda
1990 (2) ZLR 143 (S); Mashingaidze
v
Mashingaidze
1995
(2) ZLR 219 (H); Feremba
v
Matika
2007
(1) ZLR 337 (H).
In
this case of Ntini
v
Masuku
2003
(1) ZLR 638 (H) at 642 C–F the court outlined the factors to be
considered in a case where the cause of action is unjust enrichment.
These include the direct contribution of the party, the indirect
contribution and even the duration of the union among other things.
These principles are applicable in this case.
While
the parties are agreed that they can only share 50% of the value of
the property or house they are not agreed as to what share should be
awarded to each party. This emanates from the failure to either
acknowledge or appreciate the direct or indirect contribution of each
party.
I
have no doubt that the defendant has indirectly contributed to the
union between the parties in an immeasurable way. The value of
domestic labour is usually downplayed. See Matibiri
v
Kumure
2001
(1) ZLR 492 (H). It is also difficult to quantify.
As
already said this union lasted for 19 years. The defendant gave birth
to 4 children two of whom are now majors. As she is correctly pointed
out she is too old to contemplate to start any meaningful new life or
to remarry. All her useful and productive life was put in this union.
The fact that the plaintiff had two wives should not diminish the
defendant's indirect contribution as a wife. She remained with the
plaintiff even after the demise of his first wife until the
dissolution of the union.
I
am not satisfied that the defendant made any meaningful direct
contribution. While it may be true that she raised money by selling
clothes I do not believe that this meaningfully contributed to the
construction of the house. I accept her role and contribution in the
establishment of the two rural homes in Muzarabani and Makonde. She
should however accept that there was also the first wife who should
have played a role.
I
accept the plaintiff's evidence that he was the sole bread winner
in the family and therefore directly contributed to the acquisition
of the house. The plaintiff was however not an impressive witness in
explaining how the house was constructed and the time frame. I do not
believe that the plaintiff suffered from some amnesia but he simply
was not willing to give dates which will show that the defendant was
his wife” when extension and developments to the house were done.
I
accept the defendant's evidence that when she entered into the
union with the plaintiff only a 2 roomed core house was in existence.
I am inclined to accept that version as the plaintiff was not able to
give dates on when he carried out the various developments. No
documentary evidence was produced. In fact the plaintiff was
unwilling to commit himself on this aspect in the pleadings or even
at pre-trial conference stage.
The
defendant's stance was clear throughout the pleadings that only two
rooms had been constructed. The plaintiff only came out with his
version of 4 or 5 rooms during the trial. This is an afterthought
designed to downplay the defendant's role or contribution.
The
same can be said about the plaintiff's inconsistence on what he
perceives to be a fair award to the defendant. Initially he believed
a 20% award was fair. Just before the trial he believed that an award
of 5% is just and equitable. This vacillation is unexplained. The
only conclusion I can make is that the plaintiff has always been
unwilling to acknowledge the defendant's contribution to the house
and consequently a fair and just award to her.
The
award I will make in respect of the defendant is informed mainly by
her indirect contribution.
The
circumstances of this case and the parties are such that I find no
useful purpose to be served by giving either party the option to buy
the other one out. Neither party has the means and capacity to raise
any meaningful income in the forceable future. The only option would
be to order the sale of the house as soon as possible and allow
parties to benefit immediately from such proceeds. I shall order the
valuation of the property and the award made to each party relates to
50% of the value of the property as the other 50% belongs to the
estate of the late Maud Chauraya, the plaintiff's first wife.
Having
considered all the circumstances of the case I believe an award out
of the 50% share available of 30% to the plaintiff and 20% to the
defendant is just and equitable in the circumstances.
No
order for costs is made as the defendant is represented informa
pauperis.
Accordingly
it ordered as follows:
1.
The plaintiff is awarded a 30% share and the defendant a 20% share in
the 50% share of the value in the immovable property known as Stand
No. 2573 Kuwadzana 4, Harare.
1.1
The parties shall agree and appoint a registered Estate agent within
30 days from the date of this order to value the property or failing
which the Registrar of the High Court shall within 15 days appoint a
valuer from the Master's list of valuers.
1.2
The valuer shall evaluate the property within 15 days of the
appointment.
1.3
The plaintiff shall pay the costs of valuation.
1.4
The appointed Estate Agent shall sell the property by private treaty
to the best advantage of the parties and pay the net proceeds
therefrom to the parties at the ratio of 30% share of the plaintiff
and 20% share for the defendant as assessed from the 50% value of the
property as provided for in clause (1) above.
1.5
The Sheriff of the High Court of Zimbabwe shall be empowered to sign
all necessary transfer papers and to do all necessary to pass
transfer to the purchaser of the immovable property in terms of
clause 1.4 above.
2.
The plaintiff is awarded the following movable property as his sole
and exclusive property;
(a)
Sewing machine
(b)
Delivery bicycle
(c)
1 scot cart
(d)
4 plate electric stove
(e)
Spraying machine
3.
The defendant is awarded the following movable property as her sole
and exclusive property;
(a)
Mountain bicycle
(b)
1 sewing machine
(c)
2 plate electric stove
4.
The plaintiff shall continue to pay maintenance in respect of the
minor children in accordance with the order of the Maintenance Court
Order Case No. M637/09.
5.
There is no order as to costs.
Nyikadzino,
Simango & Associates, plaintiff's
legal practitioners
G.N.
Mlotshwa and Co. defendant's
legal practitioners
