The plaintiff started off as the defendants' girlfriend.
They, thereafter, had a child, Rosely Mufaro Maswera, born on 12 March 2007,
graduating her to his small house. The defendant was old enough to be her
father. He was 58 and she was 23 when they had their first child.
The defendant was a married man, and was, at the beginning
of the affair, staying in Umwisdale where the plaintiff was also staying. The
defendant said she knew he was a married man as she used to come to his
Umwisdale plot to buy vegetables and to grind her maize at his grinding mill.
She disputed that but his story is strengthened by her witness, her own brother,
who said she stayed in Umwisdale till 2005. She claimed that the affair started
in 2003, meaning they lived in the same vicinity for two years during the
affair. She therefore cannot be telling the truth when she says she did not
know that he was married.
The plaintiff later admitted that she knew he was married.
The defendant eventually divorced his wife. He then
customarily married the plaintiff by paying lobola for her in May 2010. The
defendant says he, soon after paying lobola, took her to Masvingo were he asked
her to sign an ante-nuptial contract. She refused saying she will, in the event
of their divorce, want a settlement similar to what the defendant had given his
former wife. The defendant said he realised that she was not marriage material,
and, on returning to Harare, took her back to her parents to advise them that
he no longer loved her. She however came back with him claiming that she had
nowhere to go. He made two other attempts to take her back to her people, but
she, as before, came back with him insisting she had nowhere to go. He had to
live with her against his will in a dilapidated cottage in Mandara till he
built another cottage on the property into which he has now moved leaving her
and their two children in the dilapidated cottage. During their alleged
strained cohabitation, they had another child, Cherielyn Maswera, born on 19
January 2014. The defendant says this was a result of temptations she placed in
his way. He alleged she would dress in a sexually tempting manner which
weakened his guard leading to their having sex despite the strained
relationship.
The plaintiff says that is evidence that they were then
happily married and were in a tacit universal partnership.
The plaintiff's claim is for the distribution of property
on the basis that they were in a tacit universal partnership and that the
defendant will be unjustly enriched if she does not get her share of what they
acquired during their cohabitation and customary union. The defendant counter
claimed for the plaintiff's eviction from the Mandara property….,.
During the trial, the parties agreed on the distribution of
some property which the plaintiff brought into the customary union, or the
defendant bought for her, and the property the defendant brought from his
former marriage. The plaintiff agreed that the defendant should be awarded a
bed and the Mercedes Benz he was awarded in the divorce settlement with his
former wife. The defendant agreed that the plaintiff be awarded the following;
(i) The white leather lounge suit.
(ii) 2-plate stove.
(iii) One-door small fridge.
(iv) The single bed.
(v) Television set.
(vi) Glass casserole dish.
(vii) Stainless steel pan.
(viii) Sunbeam blending machine.
The parties have not agreed on the distribution of two
immovable properties, Lot 14A Mandara and No. 60 Gletwyn Township, and the
following movables;
(1) 2 Double Beds.
(2) 18 goats.
(3) 20 herds of cattle.
(4) Golf cart.
(5) Isuzu single cab.
(6) 1 Russell Hobbs microwave.
(7) Thermofan oven.
(8) Big 2-door upright fridge.
(9) 12 road runner chickens.
(10) 2 small-door fridges.
The plaintiff claims the abovementioned property on the
basis that there existed a tacit universal partnership between her and the
defendant. She claims that they, during cohabitation, and, thereafter, the
customary union pooled their resources together for their common good, and complimented
each other in acquiring assets. The plaintiff further said that the defendant
will be unjustly enriched if she does not get her share of the property they
acquired during their cohabitation and customary union.
The defendant denied there ever being a tacit universal
partnership between them.
He, in fact, said he took her to Masvingo where he asked
her to sign an ante nuptial contract, which she refused to do. He had to cancel
their three-day booking and came back to Harare after the second day. He, on
returning to Harare, took her to her parents to formally announce the end of
their customary union, but she came back with him claiming she had nowhere to
go. He denies ever contemplating a tacit universal partnership with her as he
wanted her out of his life. Her staying with him was through her refusal to go
back to her parents and against his will.
A claim based on tacit universal partnership will have to
establish the elements mentioned by GARWE J…, in Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…, where he said;
“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 may be 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.”
The plaintiff's claim can therefore only succeed if it
satisfies these pre-requisites.
Unjust enrichment is easier to prove, as all the plaintiff
has to prove is that she contributed something, which, if not shared equitably,
will leave the defendant enriched at her expense. In the case of Industrial
Equity v Walker 1996 (1) ZLR 269 (H)…, BARTLETT J…, said;
“I have already found that a general enrichment action
providing relief where just, according to the principles expounded by de Vos,
in cases of unjustified enrichment not covered by any existing enrichment
action, exists.”
At p298 C-D, BARTLET J commented on the prerequisites for a
general enrichment action which I summarise as follows;
1. The enrichment of the defendant;
2. At the expense of the plaintiff who should have been
impoverished by the defendant's enrichment;
3. The enrichment must be unjust;
4. Classical enrichment actions should not be applicable;
and
5. There should be no positive rule of law against the
plaintiff's enrichment action.
See also the Supreme Court's comments on general enrichment
action in Walker v Industrial Equity 1995 (1) ZLR 87 (S)…,.
The plaintiff's claims will be closely examined to
determine whether or not she contributed towards the acquisition of the assets
she claimed and such contribution meets the above mentioned pre-requisites.
The plaintiff struggled to prove that she had a tacit
agreement with the defendant to go into a universal partnership with a view to
making profit for their common good. The evidence led does not prove that there
was any joint venture or business they conducted as partners from which any
profit was made which they subsequently used to purchase the claimed property.
The plaintiff's evidence established that the plaintiff and the defendant had
their own independent personal businesses from which she claims they raised
money. She claims she gave to the defendant the money she raised from her
businesses for purposes of buying assets for the family.
That evidence does not prove a tacit universal partnership
but may, if substantiated, prove unjust enrichment.
The Gletween and
Mandara properties
The plaintiff's own evidence established that she did not
have the capacity to make the direct contributions she claimed she did. She
included in her bundle of documents receipts from her tailoring business which
proved that she was not making any profit. Through cross-examination, it was
established that her income was far less than her expenses which means, instead
of bringing money into the union she was an obvious liability to the defendant.
It was demonstrated that she, on occasions, made so little that she had no
money left for her own transport to and from work, let alone for paying her
workers. She, as an explanation, said she did not issue receipts to all her
customers.
This is not convincing as it was only mentioned when she
realised the embarrassing deficits she had at the end of each month.
When she was asked why she brought the receipts to court
she said “to prove that she was making money.” This was before it dawned on her
that according to those receipts she was not making any profits.
She claimed to have been making US$10,000= per year from a
market gardening venture she was running at the Mandara property. This was
proved false by the evidence of her own brother who said he only saw a bed of
tomatoes about seven metres long by about one meter wide. That could not have
raised US$10,000= per year. It was also established that they do not have their
own water at the Mandara property. They rely on borrowing water from a
neighbour. It was therefore not possible to run a flourishing market gardening
venture under those circumstances.
The plaintiff claimed to have raised money from the Forever
Living project and selling of second-hand clothes but proffered no proof of her
income from these alleged ventures. Her say so cannot be relied upon as she
openly lied on several occasions. She is not a reliable witness.
She, for example, lied about the Mercedes Benz being bought
from a local garage using funds they had pooled together. When it was put to
her that it was imported, she conceded, saying that it was imported through
that local garage. The motor vehicle was purchased in 2009 and was awarded to
the defendant in the divorce settlement with his ex-wife. She had sought to
mislead the court that the motor vehicle was purchased from that garage when it
was imported. As if that was not enough, she tried to mislead the court into
believing that it was bought from pooled resources. This was a lie because in
2009 she was merely the defendant's small house. When she was confronted with
proof that it was merely being swopped with a Mercedes Benz the defendant got
from the divorce settlement with his former wife, she conceded that it was so
and changed from having made direct contribution to having indirectly
contributed because the defendant would, though married to his former wife,
also come to her. She had the following exchange with the defendant's counsel;
“Q. The defendant will say he got the Mercedes Benz as part
of his divorce settlement with his ex-wife (Reg. No.13320. See the court order
dated 13 May 2010. Do you dispute it?
A. No. I will not dispute it.
Q. Do you dispute the authenticity of the document?
A. No.
Q. Agree it's the one he swopped to get the other motor
vehicle?
A. Yes.
Q. Realise this is at variance with your saying you
acquired it together. You did not contribute?
A. I believe I did.
Q. In what way?
A. It comes under complimentary effort as when he was with
his ex-wife he was also with me.
Q. He would go to his wife and also come to you?
A. Yes.
Q. Now agree he had a wife?
A. Yes.
Q. From whom he would run away and come to you?
A. I believe. Yes.
Q. Also, agree you were his small house?
A. I would say yes.”
The plaintiff eventually abandoned her claim to the
Mercedes Benz.
She, again, lied in her evidence in chief when she said
that, their customary union had not been dissolved yet in her further
particulars…, it is clearly stated;
“The unregistered customary law union has been dissolved.”
She told several other lies which are on record.
This level of dishonesty disqualifies her from being the
witness whose word can be relied on without it being supported by other
reliable evidence. It is therefore not believable that the plaintiff could have
made any contributions towards the purchase of the immovable and movable assets
she is claiming.
The defendant is, as per common cause evidence, a
businessman who the plaintiff admits had a Stand in Glen Lorne he got as part
of his divorce settlement. He produced evidence on how he sold it and used the
proceeds to buy No. 60 Gletween. He produced agreements of the sale and
purchase of the two properties. The defendant's divorce settlement from his
former wife, under case no.5975/10, stamped by the Magistrates Court on 13 May
2010, and produced as exhibit 1, confirms that the defendant was awarded Stand
2609 Umwisdale. Exhibit 2 is the Agreement of Sale of that Stand to Muedzo
Nebarwe, dated 12 December 2010. Exhibit 3 is an Agreement of Sale through
which Benjamin Hore sold No, 60 Gletween to the defendant on 26 August 2010.
The defendant explained that he had negotiated with the seller for a delayed
payment from proceeds of the Glen Lorne property he was going to sell.
This is evidence proving that the defendant had capacity to
buy the Gletween property. He is a businessman, who, even without the proceeds
of Stand 2609, Glen Lorne would have had the capacity to buy the Stand.
According to exhibit 4, the defendant sold the Gletween Stand to Kezina Sibanda
on 28 November 2011 for $110,000=. Exhibit 5 is a Sale Agreement through which
the defendant purchased Remainder H of Lot 14A Mandara from Interworks
Enterprises (Pvt) Ltd on 14 December 2011 for US$70,000=. He had just sold No.60
Gletween for US$110,000=. There is no doubt that the defendant purchased the
Mandara property through the sale of his divorce settlement, Stand No. 2609,
which he sold to buy No.60 Gletween which he subsequently sold to buy the
Mandara property. He had substantial sums of money at his disposal.
On comparison, the plaintiff, who, according to the
evidence of her brother and the defendant, had been working at Creamy Inn,
Borrowdale till 2007 and had just been assisted by the defendant to start the
tailoring business, which, according to her receipts, was not doing well, could
not have, by any stretch of the imagination, contributed half of the purchase
price of the Mandara property. The Gletween property was purchased from
proceeds of the defendant's Glen Lorne divorce settlement Stand. The plaintiff
made no contributions towards its purchase. It was sold on 28 November 2011 -
long before the plaintiff issued summons on 29 August 2013.
The court cannot distribute non-existent property.
The plaintiff was, until she was shown the agreement, of
the view that it still belonged to the defendant. She did not know that the
defendant sold Stand 2609 Umwisdale to fund the purchase of No.60 Gletween.
This demonstrates that they were not in a tacit universal partnership because
if a partnership existed, the plaintiff would have known that the Gletween Stand
had been sold. It also proves that the defendant was doing as he pleased with
his assets - without her involvement. The plaintiff, who the defendant said was
then living with him against his will, was obviously being ignored and not told
what the defendant was doing because she was by then a divorced customary law
wife who was refusing to go back to her people.
I have considered the possibility of the plaintiff having
been impoverished through indirect contributions which could have unjustly
enriched the defendant as was commented on by GILLESPIE J…, in Jengwa v Jengwa
1999 (2) ZLR 121 (H)…, where he said;
“Whenever the general law applies to a relationship and a
wife has contributed to the marital weal, either by her financial contributions
or by suppressing her income-earning capacity in favour of home-making and
relieving her husband to accumulate capital, it should be recognised that she
did so in order to promote the family's wealth and with a view to sharing in
it. By her selflessness, she incurs personal impoverishment in favour of
communal enrichment. She risks future impoverishment in the event of divorce.
That she does so without any contractual protection or exigency merely
highlights, rather than excuses, the injustice of denying her a share in that
wealth when the family is sundered by divorce. To permit such an injustice to
remain is offensive.”
The evidence led excludes such a possibility because the
defendant raised the status of the plaintiff from a young girl, who was an
employee of Creamy Inn, to a businesswoman who ran a tailoring shop, mostly at
his expense. I say it was mostly at his expense because he was paying the
rentals for the shop at US$150=, and, later, at US$350= per month and
subsidising her in many other areas as demonstrated by the analysis of her
tailoring business as exposed through her cross examination. He was also paying
rentals for her flat. The following exchange took place between her and the
defendant's counsel after several monthly deficits were exposed;
“Q. When did you earn US$500= per month?
A. Not according to receipts.
Q. Transport is US$44= so had minus $39=?
A. Yes.
Q. Appreciate I have not factored in food at home and at
work?
A. Yes.
Q. Also appreciate those expenses had to be paid by someone
else?
A. Yes.”
I therefore find that the plaintiff's claim for the Mandara
property has not been proved.
Distribution of
Livestock
The plaintiff claimed 9 goats 10 herd of cattle and 6 road
runner chickens. She claimed that they acquired them through joint
contributions. The defendant disputed that the plaintiff contributed towards
the purchase of livestock. He said he acquired them before the plaintiff came
into his life. He told the court that she was not involved with the operations
of his A2 farm in Nyabira.
When the plaintiff was cross-examined on how they acquired
the goats, she had difficulties in explaining how they were acquired. The
following exchange took place between her and the defendant's counsel;
“Q. When were they purchased?
A. In 2011.
Q. From whom?
A. Not sure who sold but we bought them.
Q. For how much?
A….,. I was told estimate - let me remember it's a long
time ago (looks up and down). Price was between $15= and $20= I believe.
Q. Believe?
A. I know.”
On the other hand, the defendant told a straight forward
story of how he bought them before she came into his life.
The plaintiff had similar difficulties on how, and from
whom, the cattle were purchased. She took long to answer simple questions. She
said the 10 herd of cattle were purchased at between $250= and $300= each. She
then said she contributed $200= but wanted a half share of those cattle and
their progeny. When asked why she wanted half of the 20 herd of cattle when she
only contributed $200= when the 10 herd of cattle were bought she said because
they increased. The following exchange took place between her and the
defendant's counsel;
“Q. How much contribute?
A. …, (works out on paper) - for goats $100=, started with
5 goats.
Q. Price per goat?
A. $25=.
Q. So bought the goats by yourself and he only contributed
$25=?
A. We also bought cattle (works out).
Q. Don't have to work it out.
A. …, (continues to work out) I contributed $200-00.
Q. How many cattle bought?
A. Roughly 10.
Q. Don't know number of cattle bought?
A. They were roughly 10.
Q. If they were 10 and you contributed $200= how much was
each?
A. $250= to $300=.
Q. So contributed for less than 1 cow?
A. If you look at it that way.
Q. Why asking for 10 herd of cattle?
A. I should get a share.
Q. Asking for half but did not contribute 1 cow; that's
greedy?
A. No, I don't feel that I am greedy. I contributed towards
food and salaries of workers who took care of goats and cows.
Q. Why not say so in chief?
A. I would contribute cash.
Q. Appreciate the problem you are in?
A. Yes, maybe.”
The exchange demonstrates the unreliability of the
plaintiff as a witness.
She had earlier said the goats were costing $15= to $20=
each, but changed to $25=. She had to work out answers instead of speaking from
what she knew. She twice said roughly 10 herd of cattle were bought because she
was not sure of how many cattle the defendant bought because she did not take
part when they were bought.
She, due to the confusion arising from having to work out
answers instead of speaking from what she knew, fell into the error of saying
she contributed $100= for the 5 goats which were costing $25= each and $200=
for the 10 herd of cattle which were costing $250= to $300= each. This
demonstrates she did not contribute towards the purchase of the cattle and
goats.
Her story about the cattle is not convincing. She failed to
prove that she contributed towards the purchase of the cattle and goats.
On the chickens, she was even confused on their number. She,
in evidence, said they were 19. When she was referred to her summons she then
changed to say they were 12. She gave the impression of a greedy woman who is
seeking to get as much as she can from the defendant by exaggerating the assets
to be shared. She failed to prove her entitlement to the cattle, goats and
chickens.
The Isuzu
The plaintiff conceded that the defendant bought the Isuzu
with his own money. She conceded that it is registered in his name but claims
he bought it for her use. She later changed and said he bought it for her. The
defendant said he bought the Isuzu for use by his company and is being used by
the company. The plaintiff admits that it is being used by the company.
She, again, gives the impression of a claimant who is
claiming for the sake of self- enrichment at any cost instead of entitlement.
The Golf Cart and
Russell Hobbs Microwave
The plaintiff admits that the golf cart belongs to the
defendant who bought it with his own money, but she wants a share of it as his
customary law wife. She also admits that the defendant won the Russell Hobs
microwave at a Golf tournament, but says it should be awarded to her because
she cooked for him before he went to the tournament.
She seems to be mistaking her entitlements to those of a
wife under a registered marriage as provided in terms of the Matrimonial Causes
Act [Chapter 5:13]. She seems to forget that her claim is based on tacit
universal partnership and unjust enrichment. Her claims over these assets
cannot succeed.
The Thermofan oven
The plaintiff told the court that it was acquired by the
defendant in early 2013. She does not know how he acquired it but she claimed
it.
As there is no universal partnership nor unjust enrichment
she is not entitled to the thermofan oven.
Big 2 door upright
fridge
The plaintiff also claimed a big 2-door upright fridge. The
following exchange took place when she was cross examined about it;
“Q. Big 2 door upright fridge when was it acquired?
A. In…, 20…,11.
Q. For how much?
A. I do not remember, estimate at around $300=.
Q. A big 2 door fridge costing $300= you are ignorant of
reality?
A. It's a 1 door fridge.
Q. You are the plaintiff?
A. Yes.
Q. The summons authored at your instance?
A. Yes.
Q. So its correct. If you dispute yourself how do we know
the truth?
A. It's an error of 2 instead of 1.”
The exchange shows the plaintiff was in agreement about
there being a big 2-door fridge. She only changed the number of doors when her
estimated price was questioned. It seems she was adjusting her description of
the fridge to the price she had mentioned. That, coupled with her hesitant
response to the question on when the fridge was bought betrays a claim to an
asset she knows the defendant has but has no clue as to how it was acquired.
She cannot succeed as she will not be impoverished if the
defendant is awarded the big 2 door upright fridge.
2 small-door fridges
The plaintiff, in her declaration, had offered the small 2
door fridge to the defendant. She, under cross-examination, had the following
exchange with the defendant's counsel;
“Q. The two small door fridges?
A. This is the second of the two it was a small 1 door
fridge.
Q. Not claiming it?
A. I am claiming it. There are two fridges I am not
claiming the small one.
Q. Departing from your declaration?
A.No, they said 2 by error there are two fridges one big
one small.”
If the plaintiff is not claiming the small fridge, and it
is the one she had offered to the defendant, no issue arises….,.
In the result, by consent of the parties, the following
property is awarded to the parties as follows;
1. The plaintiff is awarded the following; the white
leather lounge suit, 2 plate stove, one door small fridge, the single bed,
television set, glass casserole dish, stainless steel pan, sunbeam blending
machine.
2. The defendant is awarded a bed and the Mercedes Benz.
3. The plaintiff's claim on Lot 14A Mandara Stand and the
rest of the movable assets is dismissed.
4….,.
5. Each party shall bear his or her own costs.
