There is little, or no love, lost between the plaintiff and
the defendant. The former instituted summons proceedings against the latter
seeking:
“(a) An order for the sharing of the parties' property on
the basis of the parties' tacit universal partnership in terms of paragraph 8
of the plaintiff's declaration.
(b) Costs of suit on an ordinary scale.”
Paragraph 8 of the plaintiff's declaration states:
“8. It would be just and equitable that the immovable
property listed in paragraph 6 above be shared in the following manner between
the parties on the basis of tacit universal partnership:
(i) House Number 13496 Nkulumane, Bulawayo be sold and the
net proceeds thereof be shared between the plaintiff and the defendant in the
following manner: plaintiff to be awarded 75% share of the net value thereof
and the defendant be awarded the other 25% share of the net value thereof.
(ii) Phase 2, Stand 70 Unity Village, Bulawayo be sold and
the net proceeds thereof be shared between the plaintiff and the defendant in
the following manner: plaintiff to be awarded 75% share of the net value
thereof and the defendant be awarded the other 25% share of the net value
thereof.”
The plaintiff avers, in this declaration that the parties
had a customary law union since 2004 after all customary rites, in terms of the
parties' customs and traditions, were performed. The union was blessed with one
minor child, namely, Blessed Mikobi Kwete (male) born on 29 January 2007.
Further, he averred that the customary union between the parties has
irretrievably broken down to such an extent that there are no prospects of
restoration to a normal union more specifically in that:
“(i) The parties have since separated and the plaintiff
moved out of their home in 2007.
(ii) As a result, the plaintiff has lost love and affection
for each other (sic).
(iii) During the substance of the customary union, the
parties established a tacit universal partnership where the parties acquired
the following property;
(a) House Number 13496 Nkulumane, Bulawayo.
(b) Phase 2, Stand Number 70 Unity Village, Bulawayo.
(iv) The plaintiff had a direct and indirect contribution
towards the acquisition and purchase of the above-listed property.”
The plaintiff's synopsis of evidence is that the plaintiff
and the defendant met in or about 2003 and started dating each other. They then
moved to stay together at Number 2 Charlotte Street, Saurstown, Bulawayo. While staying together, they pooled their
financial resources together and bought House Number 13496 Nkulumane, Bulawayo.
In her plea to the summons and declaration, the defendant
stated the following:
(1) That House Number 13496 Nkulumane, Bulawayo and the 'flea
market', Stand Number 70, Phase 2, Unity Village were acquired by the defendant
alone before the commencement of the parties' customary union.
(2) The plaintiff never made any direct contributions to
the maintenance, acquisition and/or development of the properties.
(3) There is, therefore, no legal basis for the parties to
share properties that were acquired before the parties' customary union and
where the plaintiff never made any direct contribution towards the purchase,
maintenance and/or development of the properties.
(4) The defendant prayed for the dismissal of the
plaintiff's claim with costs.
The parties attended a pre-trial conference where the
following were agreed as issues for determination in this trial;
“(a) Whether House Number 13496 Nkulumane, Bulawayo and Stand
Number 70, Phase Two, Unity Village, Bulawayo was (sic) acquired jointly by the
plaintiff and the defendant.
(b) Whether the House Number 13496 Nkulumane, Bulawayo and Stand
Number 70, Phase Two, Unity Village, Bulawayo was (sic) acquired during the
subsistence of the parties' customary union.
(c) Whether a tacit universal partnership existed between
the plaintiff and the defendant.
(d) Whether the plaintiff is entitled to a share of 75% of
the net value of the house and the Stand at Unity Village, respectively, on the
basis that the money used to acquire the properties came from the plaintiff.”
R. H. Christie, Business Law in Zimbabwe 2nd
Edition, Juta & Co Ltd 1998…., defines a joint universal partnership as
follows:
“Universal partnerships may be of two types. In a
partnership in all business affairs or societas universorum qual ex quaestu
veniant, the partners retain their separate individual estates in respect of
their private affairs, and this type of partnership will be presumed to be
intended when a partnership is entered into without definition of the proposed
extent of its activities. The second type of universal partnership, the
societas universorum bonorum, is truly universal in that the partners draw no
distinction between their business and private affairs but own everything in
common.”
Further, in the same work, the learned author states;
“It may be, however, that the relationship must be created
expressly, except between spouses married out of community of property (as
in Zimbabwe), putative spouses, and, probably, a man and a woman living
together as if they were married, in which cases, a tacit universal partnership
is possible. The possibility of proving a tacit universal partnership may be to
the advantage of a wife on divorce, as giving her a claim to half the
matrimonial property and this possibility has been considered in a number of
cases: Horne v Hine 1947 SR 128; Jirira v Jirira & Another 1976 (1) RLR
715–7; Chiromo v Katsidzira 1981 (4) SA 746 (ZA). In each of these cases, a
tacit universal partnership was not found to exist, either because it was not
pleaded or because the facts did not support the claim, but it is suggested
that such claims should more frequently be made and upheld.”
In Mtuda v Ndudzo 2000 (1) ZLR 710 (H) GARWE J…, laid out
the essentials of a tacit universal partnership as:
“(1) 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;
(2) The business to be carried out should be for the joint
benefit of the parties;
(3) The object of the business should be to make a profit;
and
(4) The agreement should be a legitimate one.
In addition, the intention of the parties to operate a
partnership is also an important consideration. An ordinary marriage does not,
in itself, found a tacit universal partnership. This does not mean that a wife
seeking a division of property after divorce is not entitled to make a claim,
provided she bases her claim on a suitable cause of action. Where a cause of
action is established, the court is entitled to assess the extent of the wife's
contribution and make an order accordingly.”
In Maenzanise v Ratcliffe NO & Anor 2001 (2) ZLR 250
(H), CHINHENGO J…, held that:
“While a marriage relationship should not be recklessly
converted into a business partnership ex post facto, if a wife makes a
substantial financial contribution or regularly renders services exceeding
those ordinarily expected of a wife, a court may be persuaded to imply a
partnership agreement.”
The courts are loathe to reduce a marriage relationship to
a mere commercial relationship just because there is a need for the division of
property acquired during the relationship. The comments of McCREATH J in
Muhlmann v Muhlmann 1981 (4) SA 632 (N) reinforce the caution that the court
must adopt. At page 634 G–H, he stated that:
“In the situation where one has to do with a relationship
between spouses and there is no express agreement between the parties, the
court must be careful to ensure that there is indeed an animus contrahendi and
that the conduct from which a contract is sought to be inferred is not simply
that which reflects what is ordinarily to be expected of a wife in a given
situation.”
See also HAHLO's South African Law of Husband and Wife 4th
ed…, where the learned author states:
“However, there must be something to indicate that the
parties intended to operate as a partnership, the mere fact that the wife
worked in her husband's business without pay is not sufficient. Unless it can
be shown that she made a substantial financial contribution or regularly
rendered services going beyond those ordinarily expected of a wife in her
situation, the courts will not be readily persuaded to imply a partnership
agreement.”
The plaintiff gave the following evidence at the trial.
In 2003, he met the defendant at a flea market in Bulawayo.
The defendant's sister was operating Stand 52 at that flea market while the
defendant was looking after her sister's children. The plaintiff used to supply
goods to hawkers at the flea market. The two then fell in love in 2004 and
shortly thereafter the defendant's sister left for the United Kingdom. The plaintiff
said he asked the sister for permission to operate Stand 52 but when the
defendant returned from Chinhoyi she told him that there was another Stand,
namely, Stand 70 which was being used by her sister. In 2004, the plaintiff
gave the defendant goods valued at Z$10 million to sell. The parties travelled
to Zambia where they bought goods for sale. It appears from the plaintiff's
evidence that there was a time when the defendant travelled to Zambia to buy
bags which the defendant did not show the plaintiff. Be that as it may, the
parties embarked on another trip to Zambia where the defendant introduced the
plaintiff to her friends as her “future husband.” They started staying together
in 2004 at House Number 5663 Luveve, Bulawayo. According to the plaintiff,
since the defendant told people in Zambia that he was her husband, he took it
that they were husband and wife from that time. The plaintiff said there were
numerous other trips to Zambia to buy goods for resale. He said they had agreed
to operate as partners although there was no arrangement on sharing profits
because they wanted to settle as a family.
As regards Stand 70 at Unity Village, the plaintiff stated
that he bought the Stand with his own money and the defendant did not
contribute “directly” but only did so 'morally i.e. cooking etc.' Later, he
explained that the money used to purchase this Stand i.e. R10,000= was from the
business transactions in which he had injected capital. When it was put to him
that the defendant would testify that the Stand was purchased by her alone,
well before the customary union commenced, the plaintiff said “she introduced
me to her parents and friends in 2004 as he husband;” by this, the plaintiff
believed that they were indeed husband and wife.
Commenting on how House Number 13496 Nkulumane was
acquired, the plaintiff said he paid for the defendant's trip to Dubai which
trip made her “very rich” and they opened a shop at Bulawayo Centre. While he was in South Africa, on another
business trip, in October 2005, the defendant used the proceeds from the sale of
goods from Dubai to buy a house without his consent. Upon his return, he
confronted the defendant about the missing money but the defendant was evasive
until the defendant's sister met the plaintiff and congratulated him for
purchasing a house. He then confronted the defendant who told him that she had
done so as an 'investment for our future' in view of the high rate of
inflation. The defendant then took the plaintiff to a lawyer called Zenzo Moyo
where she again introduced the plaintiff as her husband. Later, they developed
the property by constructing a durawall. All in all, the plaintiff said he
sired seven (7) children as follows:
(a) Four (4) he brought to Zimbabwe from the DRC;
(b) One (1) son with the defendant; and
(c) Two (2) with another woman.
He lives with all the children except the defendant's son.
Under cross-examination, the plaintiff conceded that he
paid “lobola” or 'roora' in 2006 when the defendant was pregnant but quickly
pointed out that negotiations started in 2004 when he met the defendant's
father in Luveve and was made to pay some money before he could be allowed to
enter the house. Because of this, he believed that he paid “roora” twice, once
in 2004 and secondly in 2006 in Chivhu when the defendant was pregnant. When
asked whether they sat down and decided to enter into a partnership, his reply
was;
“I do not know how to explain…, but the relationship was
that of husband and wife doing things together.”
The union lasted four years, from 2004 to September 2006.
Asked about further details pertaining to the ticket for the Dubai trip, the
plaintiff's answer was simply that the defendant 'knows better.' He said the defendant
would buy clothes and food for the family, while rentals were paid for from the
business operations. Further, he said the business made no profits resulting in
the failure to work out the formula for sharing profits. Finally, he stated
that there was a lot of interference from the defendant's relatives in their
business operations….,.
The plaintiff closed his case and the defendant opened her
case by giving the following evidence.
In mid-2004, while she was visiting her brother in
Chinhoyi, the plaintiff phoned her and gave her his name. She fell in love with
the plaintiff in 2005 and got married to him, customarily, in 2006. Meanwhile,
she had purchased Stand 70 Unity Village in June 2005 and House Number 13496
Nkulumane, Bulawayo on 5 October 2005. These properties were acquired from the
proceeds of sales at Stands 52 and 70 Unity Village as well as from her family
business at Bulawayo Centre. She referred to this shop as “Gunda Family
Business.” She said her sister, who now resides in the United Kingdom, contributed
Z$250,000=. She later said the correct figure was Z$240 million. Asked about
the plaintiff's contribution towards the purchase of these properties, she said
the plaintiff never paid a cent since at that time they were just lovers who
were not even staying together. The defendant and her sister started operating Stand
52 and 70 as way back as 1995. When she fell in love with the plaintiff, in
2005, she already had her goods that she was selling at Stand 70. When she
found a house to buy, she took Z$250 million from the 'businesses', negotiated
the price down to Z$240 million, and she then bought the house.
The defendant stated that she would frequently go to
Tanzania via Zambia for purposes of buying goods for resale back home. She
admitted travelling in the company of the plaintiff. In her own words, she said;
“I agree we were moving together because we were in love
but each one was involved in his or her own business. He had not married me and
we were not in partnership at all.”
The defendant also admitted travelling to the Democratic
Republic of Congo to see the plaintiff's parents' home before he married her.
The Dubai trip was admitted, but the defendant denied that the plaintiff
sponsored it. She said when they were in the Democratic Republic of Congo, the plaintiff
bought laptops while she bought 'worms.' Each was using his or her money. When
it was put to her under cross examination that the partnership started in 2004
and the property was acquired in 2005, her reply was;
“No. I was never in partnership in business with anyone
else except my siblings.”
As regards the improvements, she admitted that the
plaintiff accompanied her to buy bricks but he did not give her the money. He
simply accompanied her since they were lovers. At times, her sister, in the
United Kingdom, would send her money since she was not only involved in the
family business, but had also left her three minor children in the defendant's
custody. The defendant stated that they were engaged in two different lines of
business with the plaintiff in that, the latter was selling skin lotions,
creams, socks for both men and women, African attire, cell phones and laptops,
while the defendant sold clothes.
She admitted that after their marriage, in 2006, the plaintiff
would give her money to buy food but not to buy goods for sale.
In terms of the Agreement of Sale for the house, the defendant
is indicated as the buyer. The same applies to ownership documents for Stand Number
70 Unity Village.
As regards the improvements to House Number 13496
Nkulumane, all the receipts for materials purchased are in her name….,.
Facts that
are common cause
1. The plaintiff and the defendant were lovers who
subsequently entered into a customary law union.
2. The union was blessed with a son, namely, Blessed Mikobi
Kwete-Minga, born on 29 January 2007.
3. The union collapsed in 2007.
4. The Agreement of Sale in respect of House Number 13496
Nkulumane, Bulawayo, shows the defendant as the sole buyer of that house.
5. In terms of documents kept by Masakhane Association,
that administers Unity Village Flea Markets, the defendant is the sole
registered owner of Stand 70, Phase Two, Unity Village.
6. Both, the plaintiff and defendant were cross border
traders or hawkers.
7. The plaintiff and defendant travelled together to
Democratic Republic of Congo for purposes of meeting the plaintiff's parents
and buying merchandise.
8. The defendant's sister used to run Stand 70, Phase Two,
Unity Village before she migrated to the United Kingdom.
Turning to the disputed facts, the issues were set out in
the joint pre-trial memo. I shall start with issue (b) relating to whether or
not the property in dispute was acquired “during the subsistence of the
customary law union.”
It is indisputable that the house was purchased in October
2005, while Stand 70 was purchased in June 2005. The plaintiff admitted that he
paid 'roora' in Masasa in July 2006 when the defendant was pregnant. However, the plaintiff, in a bid to prove
that the property was acquired during the subsistence of the customary union,
backdated the date of the commencement of the union to 2004. His evidence on
this aspect was that negotiations started in 2004.
I am not persuaded by this argument for a number of
reasons.
In the first place, the plaintiff, in paragraph 3 of his
declaration, stated:
“3. The parties have a customary law union since 2004. All
the customary rites in terms of the parties' customs and traditions were performed
in accordance.”…,.
Yet, in his evidence in chief, he said he considered the
defendant to be his “wife” because she 'introduced him to her parents and
friends as her husband.' Later, he said negotiations started in 2004 when he
was asked, under cross-examination, to explain what exactly started in 2004,
his answer was both vague and contradictory in that he said this was when he
paid damages to the plaintiff's father after being introduced to him in Luveve.
However, he contradicted himself by stating that he paid damages in 2006 in
Masasa.
More importantly, the plaintiff does not explain or provide
reasons why these negotiations would be so protracted as to last two years in
light of the defendant's evidence that she loved the plaintiff very much and
was happy to be his wife. Further, the plaintiff does not mention who he was
negotiating with; he does not disclose the go between; he does not state where
these negotiations took place. Also, he said he was made to pay “roora” twice
without giving full details of where the first payment was made and to whom it
was paid. He also does not say who was present when it was paid.
It is trite that a customary law union is created upon
payment and acceptance of roora at a ceremony involving the groom or his relatives
and the father, guardian, or some relative of the bride. The parties negotiate
through a go-between whose services are paid for by the groom's family.
In casu, the plaintiff paid roora in 2006 when the
defendant was already pregnant. This explains why, according to the plaintiff,
on the list of items to be paid appeared 'damages.'
I agree with counsel for the defendant that this, in Shona
culture, as in most Bantu traditions, occurs when the bride-to-be is pregnant.
See Mvana and their children: The language of the Shona people as it relates to
women and women's space, where MOREBLESSINGS
BUSI-CHITAURO-MAWENA of the African Languages Research Institute, University of
Zimbabwe states:
“Damage is payment paid by a man to the father of the woman
he has impregnated, for having 'damaged' her (physically, taken her virginity,
metaphorically damaged her reputation and that of her family). Consequently, the man responsible has to pay
the girl's father for making his daughter 'damaged goods.' This 'damage' is believed to compensate the
father for his child's defilement by a man who has not married her.”
The plaintiff's evidence on when the union commenced is
totally unsatisfactory. I am satisfied, from the totality of the evidence, that
whatever association the plaintiff and defendant engaged in prior to the
payment of roora in 2006 did not create a customary law union. If at all they
lived together or had sexual intercourse, as evidenced by the pregnancy, they
were simply cohabiting – hence the penalty of 'damages' imposed on the
plaintiff. For these reasons, I take the view that the plaintiff was an
incredible witness.
In my view, the two properties were acquired before the
parties were customarily married. The house was purchased in October 2005 while
the Stand was acquired in June 2005. The customary law union was entered into
in July 2006. I take the view that for these reasons issue (b) must necessarily
be answered in the negative.
Issues (a) and (c) ask the same question. I therefore deal
with these two as one consolidated issue, namely, whether a tacit universal
partnership existed between the plaintiff and the defendant.
The question here is whether the facts in casu support a conclusion
that a tacit universal partnership existed between the plaintiff and the
defendant. Can it be inferred or implied from the parties conduct that indeed
there was animus contrahendi? Can it be said the defendant rendered services
going beyond those ordinarily expected of a boyfriend in his situation?
Bearing in mind that the onus is on the plaintiff to prove,
on a balance of probabilities, that there was a tacit universal partnership, it
is instructive to examine the plaintiff's evidence closely in order to answer
the above questions.
On the plaintiff's evidence, he gave the defendant goods
worth Z$10 million to sell. He said he considered this to be “capital injected
into the business.” What he does not say is what agreement, if any, had been
reached between the two of them. Under cross-examination, he stated that he
gave the defendant the goods because she had 'no goods to sell.' Even if it is
accepted that he gave her goods to sell, can it be concluded that the sole
reason was to create a partnership? I think not because it could be that the
plaintiff simply gave his girlfriend a donation i.e. a donatio inter vivos. It
is not unusual for people in love to exhibit a great deal of generosity driven
by nothing else but love. It may also stem out of pure liberality.
The defendant denies that such a contribution was ever
made.
I must say that the probabilities in this case favour her
version in that at the time she met the plaintiff, she already had expertise to
run her own business, having done so for some years with her sister. She had
the infrastructure, in the form of two Stands, and she could rely on funds from
her sister in the United Kingdom. If, indeed, she had entered into an agreement
with the plaintiff she would most probably have done so expressly in a written
document. The defendant's version that although they were deeply in love, each
was conducting his or her own business, with plaintiff supplying hawkers at the
flea market with goods, especially electrical gadgets, while she concentrated
on buying and selling clothes, is credible. The plaintiff failed to provide
proof of how much money they made from the so-called partnership. There is no
proof that the parties intended to bind themselves into a partnership. It is
most unlikely that the defendant would enter into such an agreement involving a
business owned, not by herself alone, but by her sister and other siblings.
It is strange that the plaintiff did not indicate how he
benefited from this partnership during its short life. Before the acquisition of the property in
dispute, the alleged partnership had been in existence for barely one (1) year.
It lasted for another year after the property had been acquired. While a tacit
universal partnership can be created between putative spouses and between a man
and a woman living together as husband and wife; in my view, the duration of
such a relationship is a relevant consideration.
In casu, it is difficult to conclude that the plaintiff, in
a space of 12 months or less, rendered substantial financial contributions
exceeding those ordinarily expected of a boyfriend. It would be a sad day
indeed if an ordinary love relationship is recklessly converted into a business
partnership. There is no express agreement in casu and I am not persuaded that
I must imply one. Logically, issue (d) falls away in that the plaintiff is not
entitled to a share of the net value of the properties.
In the result, the plaintiff's claim is
dismissed with costs.
