TSANGA J:
This is an opposed application in which the applicant seeks a
declaratur which essentially addresses the tensions between
matrimonial property, real rights and personal rights. What is sought
is an order that a spouse should be able to veto an encumbrance of
the matrimonial home and that they have a right to be consulted.
As
the applicant put it, at its gist is a quest to reverse the common
law position that personal rights, more often than not those of a
wife, against a husband's real rights, are not protected at all.
She
further seeks that the writ of execution on the immovable property
issued by the Registrar be set aside and that the mortgage bond in
favour of the first respondent be declared a nullity.
The
Context
Sometime
in October 2014, the applicant says she came across a writ of
execution and bond of indemnity issued by the first respondent,
Stanbic Bank, (the Bank) against Clever Hama Madzara (her husband)
who is the second respondent in this matter. The writ declared that
certain property, being Stand 17759 Harare Township, was especially
executable. Unbeknown to her, the property had been encumbered by her
husband for a loan advanced by the Bank without her consent.
She
states that she married her husband customarily in 1997 and
subsequently converted this marriage to a registered civil marriage
in 2002. According to her founding affidavit, the property in
question was acquired sometime in 2000. As parties did not have
registered marriage at the time, and since a mortgage loan was needed
to develop the property, which loan her husband was able to get, and
the bond was registered in his name. However, she states that she
paid not only for the deposit on the property but that she was the
central person who serviced the loan and later developed the house to
its present 5 bedrooms and 3 lounges status.
By
way of background to economic enablers, she describes herself as a
professional woman, highly educated with undergraduate and post
graduate qualifications acquired both locally and abroad. She also
says she runs her own organisation and has does work in a
consultative capacity for numerous local and international
institutions. Immediately upon learning of the writ of execution she
states that she had informed the Bank of the reality of the facts
behind the 'real' acquisition of the property and her interest as
'owner'. This was done both orally and in writing. Having
received no response in her endeavour to stem the impending sale, she
had thus brought this application.
Applicant's
argument
In
her application she asserts that she is guaranteed constitutional
rights to the property by virtue of s26 of the Constitution of
Zimbabwe which provides that “the State must take appropriate
measures to ensure that there is equality of rights and obligations
during marriage and its dissolution”. She also draws strength from
s56 (1) which guarantees equality before the law and s56 (2) on equal
treatment, including equal opportunities in the economic, cultural,
and social sphere. Equally harnessed in support of her claim is s80,
which provides that “all customs and traditions which infringe on
the rights of women conferred by the constitution are void to the
extent of that infringement”. The applicant further relies on s7 of
the Matrimonial Causes Act [Chapter 5:13] to assert that since she
would have rights in the property on divorce, that in reality this
right is a continuous one and is not just applicable on divorce.
Mr
Biti, who appeared for the applicant distilled the above provisions
as collectively constituting a genre of rights created by the
Constitution that essentially equalise rights between men and women.
In particular he emphasised that s46 (2) requires the court to be
guided by the spirit and objectives of the Declaration of Rights in
developing common law and customary law. This exhortation, he pointed
out, is further repeated in s176. The core to his argument therefore
was that the common law should be developed in favour of the property
rights of spouses who do not hold title by casting real rights in
relation to matrimonial property against the constitutional rights
thus stipulated. He contended that this court should draw progressive
strength from the thrust adopted in the case of Chawanda v Zimnat
Insurance Co. Ltd 1990 (2) ZLR 143 (SC) at p154 B-D which was guided
by a living approach to developing customary law on the issue of
spousal recognition arising from an unregistered customary law
marriage. He located the gist of the problem as being the adoption by
our courts of the interpretation of real rights vis a vis matrimonial
property as expressed in the English case of National Provincial Bank
v Ainsworth [1965] 2 ALL E.R 472 where it was held that where
property is registered in the husband's name, then the wife's
status gives her personal rights against her husband and that she is
in the house not because of any contract or licence but by virtue of
her marriage. Among the numerous citations placed before the court,
Mr Biti major point was that the reasoning in this decision was
particularly adopted in the cases of Takafuma v Takafuma 1994 (2) ZLR
103 (S) and in Muzanenhamo v Katanga & others 1991 (1) ZLR 182.
The latter case he
stated has been confirmed in numerous other decisions which he also
pointed out.1
He further drew attention to the real difficulties the court had with
the common law position as fundamentally disadvantaging women in the
case of Muswere v Makanza 2004 (2) ZLR 262.
In
addition to the call for judicial activism, Mr Biti emphasised the
need to take into account international conventions ratified by
Zimbabwe which advance equality such as the Convention on the
Elimination of all forms of discrimination against owned (CEDAW). He
contended that this court is only being asked to confine itself to
the sphere of the law of marriage as opposed to making a finding that
would affect all registered property that are subject to claims. He
argued that lenders and bankers would be forced to seek the other
partner's consent where matrimonial property is involved. He
pointed out that this is something that local authorities are already
doing where a married person seeks to dispose of rights in immovable
property.
He
further espoused that litigants have duty to test the legality of
laws and that what applicant seeks is to test the legality of the
common law rule in light of the constitution. He argued that whether
Parliament decides to pass a law or not would be another matter.
The
Bank's position
Only
the Bank as the first respondent submitted papers in response to this
application. The second to fifth respondents did not submit any
papers and will be bound by the decision of this court. The Bank
vehemently opposed the application on a number of grounds explored
below. The Bank's standpoint was that there is a material dispute
of fact in that the claim by the applicant that she purchased the
property singlehanded is not supported by any concrete evidence.
According to the Bank, this is more so given that the agreement of
sale, the loan agreement, and the title deed are all in the husband's
name. The husband's failure to depose to an affidavit in support of
his wife's assertions was put forward as a pointer to the falsity
of the position. Its position as argued by Mr Mpofu in court, was
that there is no factual basis as presented by the papers that could
lead to a finding that the applicant is the owner of the property. He
also argued that there is in reality no cause of action since
applicant admits that she does not have real rights which means that
she has personal rights which are not enforceable against the whole
world.
According
to Mr Mpofu that the applicant's claim, if any, is for
contributions made to the development of the property in the event of
divorce. The Bank's further position argued on its behalf was that
the applicant is estopped from making her claim because she did
nothing for more than a decade to let the world know that she has
rights which she now seeks to assert.
It
countered that the constitutional provisions cited by the applicant
do not advance the matter in favour of the applicant because the law
does not disentitle her from being registered as a joint owner. It
was argued that evidence of title is not conclusive evidence of
ownership and that the respondent could have, at an earlier stage,
sought to have her name added. As such it maintains that there is no
infringement of constitutional rights.
It
is also denied that the bond is voidable as the property belongs to
the person who has full dominium. Mr Mpofu further indicated that s2
as read with s14 of the Deeds Registry Act [Chapter 20:05] which
conveys real rights, is not about women and is not about a cultural
practice. The law, he emphasised, is for the protection of everyone's
interests and in his view though this particular law may affect
women, it is not about them. He was of the view that this is a matter
for legislative reform in terms of the ambit of any protection to be
accorded the matrimonial home.
Another
major objection raised by Bank to this application was that it has
been brought against a backdrop of an existing judgment granted by
MUSAKWA J on the 18 June 2014, which in essence authorised the
disposal of the property.
It
is the Bank's position that with this judgment not having been set
aside the, there is effectively no litigant before this court as that
judgment remains extant. The gist of the objection that was
articulated by Mr Mpofu was that this court cannot interfere with the
order of another judge of parallel jurisdiction since such order can
only be set aside in terms of r63 of the High Court rules 1971 which
deals with a default judgment; or alternatively in terms of r449
whereby a judgment can be set aside if it was made in error; or it
can be set aside on appeal by the Supreme Court. He emphasised that
regardless of applicant's arguments, her position boils down to
asking this court to set aside the execution process. It was thus
argued that addressing this primary issue will effectively dispose of
this matter.
Mr
Biti's response to the above arguments was that what the court is
being asked to do is make a finding that the applicant has a right in
the immovable property. He emphasised that the core of his argument
is that anything that treats the property as belonging exclusively to
the husband is not binding. His position was that the declaration
sought will not release the husband's indebtedness to the Bank. He
also argued that the declaration will not naturally have consequences
on what to do with the immovable property as the issue is about
declaring ownership and rights. He further maintained that the rights
that are sought to be spelt out are those of a spouse in relation to
a home that is registered in the name of the other spouse only and
that the declaration seeks to inform the Bank in particular of the
rights and interests of such spouse.
Analysis
of Declaration sought
The
applicable provision which empowers the court to make a declaratory
order in an appropriate case is s14 of the High Court Act [Chapter
7:06]. The purpose of a declaration is to define rights of the
parties. Issues such as one before me, to declare title to property
are generally the subject matter of declarations in addition to a
wide range of other issues that hinge on the construction of
instruments be they wills, leases, policies, among others. Generally
also, where a declaration is sought the facts will not be
contentious. Where rights are spelt out the expectation is that the
other party will obey. Only if the other party fails to take action
does the other party seek to enforce. Key to the exercise of its
discretion is that the court must be satisfied that the person is an
interested party in an existing, future or contingent right or
obligation. If satisfied on this point then the court must also
decide whether the case is a proper one for the exercise of the
discretion conferred. (See Munn Publishing (Pvt) Ltd v ZBC 1994 (1)
ZLR 337; MDC v President of Zimbabwe & Ors 2007 ZLR 257 (H) at
p267. In MDC v President of the Zimbabwe it was also stated that the
court must be satisfied that that there are interested person upon
whom the declaration will be binding and that by binding is meant
that the decision of the court operates as res judicata between the
parties.
The
applicable procedure , on the other hand, for rescission or setting
aside an existing judgment has been amply dealt with by our courts as
resting on three possible avenues; an application brought in terms of
Rule 63 for a judgment granted in default; an application in terms of
r 449 where a judgment is granted in error; an application in terms
of the common law. Outside these avenues it is incompetent for a
judge to set aside the judgment of another judge of parallel
jurisdiction.(See for instance Mushoto v Mudimu & Anor HH 443-13
which goes into depth about the use of each of these procedures.)
In
Mutyasira v Gonyora NO and others HH 180/14 in which MAWADZE J put it
thus:
“In
my view applicant cannot seek to have this court review its own
orders under the guise of a declaratory relief. This court can only
vary or rescind its judgments and orders in terms of r449 (1) (a) to
(c) of the High Court Rules, 1971. The applicant has not approached
the court on that basis but seeks a declaratory relief”.
It
thus necessary to examine the content of the declaration to assess
whether it indeed seeks to vary a judgment that is in place. The
order sought was initially couched as follows:
“IT
IS ORDERED THAT:
1.
The Applicant owns stand 17759 Blakeway Drive Lincoln Green , Harare
2.
That the rights of the applicant in the property cannot be defeated
by the mortgage bond registered in favour of the First Respondent.
3.
The mortgage bond registered in favour of the First Respondent by the
second Respondent be and is hereby declared null and void.
4.
The execution and implementation of the Writ of Execution of
immovable property issued by the Registrar of the High Court at the
special instance of the First Respondent under Case Number HC 495/12
on the 29th of September 2014 be and is hereby set aside forth with.
5.
The Respondents to pay costs of suit each paying the other to be
absolved.”
At
the hearing the applicant sought to amend the first paragraph so that
it addresses the constitutional issue at the nub of the matter. The
quest in the first paragraph was therefore altered to read as
follows:
“1.
The common law position that recognises real rights in the
matrimonial property as superior to personal rights held by the other
spouse in the same property is in breach of section 80(3) and section
56 of the Constitution.”
On
the other hand, the order that was granted by MUSAKWA J on the 18th
of June in the matter of Stanbic Bank Zimbabwe Limited v HBD (Pvt)
Ltd t/a Kalamazoo Business Systems 2) Clever Madzara 3) Elias Nhamo
Madzara 4) Commercial Suppliers and Equipment (Pvt) Ltd HC 495 /12
reads as follows:
“IT
IS ORDERED THAT
1.
The 2nd, 3rd and 4th defendants shall, jointly and severally, one
paying the other to be absolved, pay the plaintiff the amount of US
$96,348=99.
2.
The 2nd, 3rd and 4th defendant shall, jointly and severally, the one
paying the other to be absolved pay interest on the amount of
US$96,348=99 at the rate of 31.85% per annum from 04 November 2011 up
to the date of payment in full.
3.
Certain piece of land situate in the District of Salisbury called
Stand 17759 Harare Township Salisbury Township Lands held under Deed
of Transfer Number 11912/2001, dated 23rd November 2001, be and is
hereby declared especially executable.
4.
The 2nd, 3rd and 4th defendants shall, jointly and severally, the one
paying the other to be absolved, pay plaintiff's costs of suit on
the higher scale of legal practitioner and client.”
Juxtaposing
the existing order with the declaration sought, there is no denying
that the declaration seeks instant coercive relief that impacts on
the judgment that has been granted in favour of the Bank which has
not been set aside. It seeks coercive relief in the active setting
aside of the mortgage bond, the basis upon which the Bank regards the
property as executable. The Declaration also seeks to declare the
bond null and void. It also seeks to set aside the writ of execution
and its implementation. All these are the issues that are at the
heart of what informed the order that was sought before MUSAKWA J on
18 June 2014.
This
leaves no doubt that that it seeks to set aside an existing court
judgment while circumventing the main grounds and avenues upon which
such a judgment can be set aside.
But
even if I am wrong in concluding that this matter is hampered in its
tracks by procedural irregularities of a judgment in place which has
not been set aside, the issue of whether this is a proper case for
the exercise of the court's discretion in light of the
circumstances and arguments advanced by the applicant needs to be
considered.
The
import of the Deeds Registry Act on real rights
A
real right is defined in s2 of the Deeds Registry Act [Chapter 20:05]
as 'any right which become is a right upon registration'. Section
14 of the same Act essentially deals with how such real rights are
transferred. For instance, ownership of land is transferred from one
person to another through a deed of transfer executed or attested by
a registrar. The reality of having the property registered in one's
name is that during the course of they can dispose of it at will.
Where however a party owns ones half the property then a party as the
right to dispose of that half share. (See Linda Mudawadzuri v Kingdom
Bank and Ors HH 95/15).
Mr
Biti attributes the real problem in failing to make headway on this
issue with regards to matrimonial property, to what he sees as
slavish adherence to precedents. Yet from examining the above legal
provision on real rights, Applicant's problem is not one that
emanates from any inherent bias in the application of the law but
more fundamentally from the legal rights that are accorded any
property owner regardless of their sex. When courts accord centrality
to real rights they are thus governed by the meaning as articulated
in the appropriate legislation. It is the content of the law that
accords the person with registered title full legal rights to that
property.
The
order by MUSAKWA J was not in any manner or form, erroneously granted
since the title deeds upon which the Bank sought to execute were in
the husband's name. It cannot be said that legally the husband
acted wrongfully in using the title deed that was in his name to
secure the loan. The Bank was right in accepting the deed at face
value in terms of who the owner of the property was. In entering into
the loan agreement and accepting the deed, the Bank did not act
outside any legal parameters. It relied for its security on the title
deeds which were clearly in the borrower's name. Thus for all
intents and purposes, the agreement that the Bank had with the
husband was in accordance with procedural and substantive
requirements relating to real rights.
Mr
Biti's argument is that the manner in which the law on real rights
has gendered effects in practice must be recognised and addressed by
this court. In other words, to put his argument in context that
feminists have articulated the problem, this is a “gender neutral
law that encounters a gender specific reality”. That being the case
the argument put forward by Mr Biti is that the court must of
necessity recognise the inappropriateness of this aspect of the law
of property on real rights when applied to a matrimonial context and
hold the resultant gendered reality that emerges unconstitutional.
That
in practice the effect of a husband having real rights in his name
may have deep seated gendered implications that play out differently
for women is true but by no means a peculiarity to this aspect of the
law. With the standard in law having been for a long time essentially
male, almost every aspect of the law when scrutinised with gender
lenses will fall foul of gendered-ness in its effects. Gender-ness
also does not lead automatically to an inference of
unconstitutionality unless this can be illustrated. It may be more
illustrative of the ways in which existing laws need to be gender
sensitised for their efficacy. Thus gender neutral laws encountering
such gender specific realities has in fact been at the root of the
use of law reform as one of the central strategies in addressing
problematic areas of the law that hamper substantive equality between
men and women.
The
applicant in her founding affidavit, states that in reality she is
the one who acquired the property and offers the motivation for the
sole registration in her husband's name as having been 'mortgage'
related. A mortgage was required to acquire the property. It was the
husband who was in a position to acquire a mortgage. They had no
marriage certificate so the mortgage was acquired solely in his name
although she says in reality she serviced it.
The
details of how this was done are however not provided.
The
bottom line is that it had nothing to do with the law. This is more
so given that the registration of the property in a party's name
who is not the actual owner for reasons that can be explained is
legally something that can be reversed. Although applicant rests her
argument on the new constitution, this issue has been a thorn in the
flesh for the court in a number of instances that have been handled
by this court. Admittedly the new constitution has run the extra mile
compared to its predecessor in articulating fundamental rights that
impact on the private sphere of people's lives in very specific
detail. Yet it is also a reality that the core constitutional
arguments that are at the heart of this case in interpreting the
common law on real rights vis a vis matrimonial property were just as
easily made with the previous constitution.
(See
Deputy Sheriff v Jurai Jesina Kingsley and Cold Chain Zambia Limited
HH 507/14).
In
that case BERE J in 2011, declined to refer a matter that was before
him to the Supreme Court on the constitutionality of the effects of
the common law on real rights in a matrimonial setting on the basis
that there was no discrimination or violation of any constitutional
rights. His reasoning in the case that was before him was that the
applicant could have taken steps to have the property registered in
her name. He relied on relevant authorities such as Lafontant v
Kennedy 2000 (2) ZLR 280 (S); Nyamweda v Georgia 1988 (2) ZLR 42 (S);
Menezer v McGaili 1971 (2) SA 12 at p14; Young v Van Ransburg 1991
(2) ZLR 149 (SC).
The
customs, traditions and cultural argument
It
is with regard to the applicant's failure to act that Mr Biti draws
on the negative effects of culture and tradition to locate her
inaction. His argument is that the applicant being a married woman
for whom culturally 'lobola' had been paid, she could not have
acted as freely as it is assumed, to have the house later registered
in her name. This is because its payment supposedly results in 'power
over' the woman for whom it is has been paid. He thus asks this
court to be guided by s80(3) of the constitution which elaborates
rights of women and states as follows regarding laws customs
traditions and cultural practices which infringe the rights of women.
(3)
“All laws, customs, traditions and cultural practices that infringe
the rights of women conferred by this constitution are void to the
extent of the infringement.“
Whilst
I acknowledge this argument that culture and tradition may indeed act
as strong factors militating against action and that her inaction in
this case may be an indicator of the power imbalances within a
marriage particularly where 'lobola' has been paid, the reality
is complex and is certainly not so linear as to lead to the inference
that it is culture and tradition that bear the responsibility for
inaction. The payment of “lobola” is also a cultural practice of
choice. The formal law is admittedly far from being centre stage in
the everyday lives of people in our normatively plural African
context. Religion and culture are important and may be far more
central tenets upon which women negotiate marriage as well as their
everyday existence. It is these equally powerful “social fields”
that in reality may have more gravitas in people's lives than the
law. Moreover, some women may indeed harbour imagined fears of being
single as a result of divorce in a context where the socialisation
puts the status of being married at a premium. Some may not wish to
sacrifice their marital status on the altar of assertiveness. Despite
its widespread reality, the status of being single attracts the
social stigma somewhat worse than that of a leper especially in
religious circles. Regrettably too, an inordinate amount of energy is
often expended denouncing 'rights activism' at social gatherings
such as kitchen tea parties and some women's church meetings which
urban women attend and tune in on societal expectations regarding
appropriate marital behaviour. Furthermore, inaction may simply be
because a person could not have foreseen that this kind of situation
would arise. Also, legal consequences may be unappreciated by most
women until trouble comes knocking at the door. Nonetheless, the
reality is also that in a modern social setting, the options in the
nature of social messages being channelled are all too often legion.
As such, choosing to operate within a cultural or religious bubble is
significantly also a choice which the court cannot ignore. Women are
not an undifferentiated whole. Just as there are women who are
hampered by the power and pull of tradition and culture from taking
action, there are just as many who assert their rights in spite of
societal expectations. Married women, in particular, are constantly
bombarded with messages surrounding law and marriage. There are a
plethora of women's organisations working on women's legal rights
issues ranging from organisations such as ZWLA2,
WLSA3;
WAG4
to the weekly televised “Mai Chisamba Show” a talk show which
examines a range of social issues mostly those impacting on women and
children.
Thus,
women have choices.
Women
make choices. Others, even when they have the knowledge, may still
choose to adhere to the influences of religion and culture. Others
still may move from silence to voice and make a deliberate choice to
confront patriarchy in the face by recognising that “she whom
patriarchy calls bad, is in fact good”. They thus use their
knowledge to assert their rights and consciously fashion alternative
realities. In this regard, many have heeded the call by women's
groups to approach marriage as a partnership from the onset and to
have the matrimonial home registered in the names of both spouses and
also not to shy away from owning their own property. It would
therefore be inaccurate to portray the vibrational pulse of women's
engagement with issues that affect them as being at the level of
simple 'victimology' purportedly emanating from culture and
tradition. This would be pure expediency to facilitate the
applicant's case.
The
applicant herself makes a substantial issue of being well educated -
a reality that could, from a logical perspective, been harnessed in
her favour to familiarise herself with the marital consequences of
her marriage and to act accordingly to protect her rights. This court
is being asked to believe that a woman of her calibre, not only
highly educated but of economic prowess and running an entire
organisation, nonetheless lacks personal empowerment to navigate
culture and tradition. This is for even the minimum act of having at
least insisted that she keeps the title deed, given her claim to
having ploughed money on her own into the property. That she did not
act is indicative of her own choice and can hardly be laid on the
door of any supposed unconstitutionality of culture and tradition.
Also if, as Mr Biti has argued on behalf of his client, that she may
have subsequently failed to take action to have the property
registered in her name because of cultural constraints, when she
clearly could have done so to avert the problem at hand, then the
core problem has nothing to do with the application of the law on
real rights or its supposed unconstitutionality. Knowing where the
problem lies is vital in adopting the correct strategy. Where the law
is in place that could have been harnessed to prevent the problem in
question and where despite this reality, action is not taken, this
has everything to do with changing attitudes that prevent women from
being assertive. It is about giving meaning to 'empowerment'
which eventuates when women who not only know their rights but also
take steps to assert them and actively to change their reality. The
strategy for this to occur is thus awareness and consciousness
raising. Locating the applicant's problem in this regard as one of
empowerment and consciousness raising rests on appreciating the
symbiotic relationship and interplay between the substantive,
structural and cultural components of any legal system. Where a
problem emanates from the content and substance of the law, the
strategy is generally law reform. Where it relates to its structural
component that is as arising from the law's application by the
courts and other related agencies then the strategy is generally
advocacy and representation within these structures. Where the
problem relates to the cultural component as exemplified by attitudes
and shared values, the strategy is education. 5
The
issue of inaction on the applicant's part is not about the content
or the application of the law within its structures. It is about
attitudes and personal choices. The applicant in her affidavit did
not proffer the payment of 'lobola' as the explanation for her
inaction. It would be far too simplistic for to lay the blame on
culture and tradition as primary causes for inaction without any real
evidence having been articulated of how these realities actually
played themselves out in the applicant's case. It is hard to
imagine that a woman in her position who by her own admission is
economically independent, would have been cowed by the payment of
what would today in all probability amount to no more than a few
hundred dollars of 'lobola'. Her husband's evidence is also
conspicuous by its absence and tends to bolster Mr Mpofu's argument
of likely collusion. Whether the absence of his evidence is from
collusion or from any sense of guilt as to the consequences that have
befallen the family as a result of his action, or some solace in
having the blame thrust at the bank, the reality is that its absence
takes no further the wife's assertions that she is owns the whole
property. The affidavit from the sellers of the property cannot be
the sole foundation of her factual claim and neither can counsel's
speculation regarding the effects of culture or tradition on her
failure to assert her rights. I will address her 50% argument when I
examine the full import of s26 (c).
Why
legislative reform
Even
in those countries where 'lobola' is not paid women may still
face similar challenges regarding the matrimonial home if it is not
legislatively protected as an asset of joint interest in the course
of the marriage. That the protection of the matrimonial home is
legally desirable does not need much argument because of its
important role in any family context. That being the case it is
nonetheless crucial to address the issue of whether the problem is
one to be addressed through creative judicial interpretation or
whether it is an issue best addressed by comprehensive law reform
given that no law is being violated. Notably, by arguing for the most
apart that the house is in fact hers, applicant has nothing against
real rights as such. The law is the same for both men and women so
there no violation of s 56 of the constitution regarding
non-discrimination and equal treatment. Her argument in any event is
not that the home cannot be used as security for a loan but rather
that where a matrimonial home is used then the other spouse should
play a role in consenting and that where consent has not been given
such encumbrance should not be sanctioned. This 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. I say this for a number of reasons which I detail
below.
Section
26 (c) which Mr Biti relies on from his argument on equal rights
during marriage and at its dissolution is couched as follows:
“The
State must take appropriate measures to ensure that -
a)……..
b)…….
c)
There is equality of rights and obligations during marriage and at
its dissolution. (My emphasis).”
The
provision is part of the national objectives in the Constitution
which are designed to guide the State and all its institutions in
formulating and implementing laws and policy decisions. Materially it
does not fall under fundamental rights whereby the applicant can say
her rights have been violated. Its primary thrust is to guide the
state and its institutions. It can thus be used to its fullest to
cajole the state to take concrete action and measures on an issue
that requires its intervention. The state includes its rule making
and its rule implementing bodies. Appropriate measures are to be
taken in anticipation of an event that may hamper equality or in the
event of their being needed to effect equality. Legislative
intervention is what is needed herein for the following reasons. The
legislature already has measures in place that articulate what should
happen to property rights on divorce or on death in the context of
marriage. However, there is less legislative detail articulating
property rights during marriage since how people get on with the
business of being married is generally left to them. Ordinary rules
regarding property apply in the context of every day existence
without regard to sex. There is no doubt that s7 of the Matrimonial
Causes Act [Chapter 5:13] kicks in where the marriage is ending.
Section 7 (1) is prefixed thus:
“Subject
to this section, in granting a decree of divorce, judicial separation
or nullity of a marriage or at any time thereafter, an appropriate
court may make an order with regard to…..”
Other
key pieces of legislation that impact on the matrimonial home include
the Deceased Estates Succession Act [Chapter: 6:02] and the
Administration of Estates Act [Chapter 6:01]6
which kick in on dissolution of a marriage by death.
The
facts in this case, and indeed those from cases that have come before
this one on this very issue, point to one overwhelmingly one
conclusion - which is that married couples, particularly women, do
expect the law to intervene with normative guidelines on the
matrimonial home not just on divorce or death but during the course
of the marriage. Thus legislative reform is where the energy should
have been placed a long time ago.
What
constitutes a matrimonial home if a spouse is to be prevented from
encumbering such a home, whether by sale, mortgage or pledge for a
debt, needs to be legislatively articulated. What constitutes an
encumbrance itself needs to be spelt out. Furthermore, the conditions
under a party may be allowed to encumber the property, whether by
consent or court order would need to be fully spelt out, given that a
spouse may have no objections to the matrimonial home being used as
security where they envisage that likely benefits will flow from
being given a loan. The rights of the untitled party also need to be
addressed where the property is not jointly owned as in this case.
In sum, much as judicial activism 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 also not be lost of the significance of
participation for efficacy of laws by those on whom they will have a
bearing. When there is such appropriate legislation outlining the
operative framework for dealing with the matrimonial home, then
indeed it would be the full responsibility of lenders to ensure that
what they are dealing with is not a matrimonial home. In addition,
what these facts also point to, is that apart from clear legislative
guidelines, there is also a need for local banks to adopt best
practices and a Code of Ethics in how they engage with parties in
relation to matrimonial property given the tremendous impact that the
sale inevitably has on the family.
Purely
by way of example as to how some jurisdictions have addressed the
issue of protecting the matrimonial home from encumbrances, in Canada
(Ontario) for instance, the issue is comprehensively addressed under
the Family Law Act R.S.O. 1990, Chapter F.3. The gist of their
legislative provisions in s19 (1) of the above Act is to the effect
that a person has an interest in that property if it was ordinarily
occupied by the person and his or her spouse as their family
residence or their matrimonial home. Furthermore, both spouses have
an equal right to possession of a matrimonial home. The Act also
clearly sets out in s21 (1) when and how a spouse can dispose of
encumber an interest in a matrimonial home. On alienation of the
matrimonial home, the other spouse for instance, must join and
consent to the instrument; or the other spouse must release all
rights by a separation agreement; or a court order must have
authorised the transaction; or the property must not have been
designated as a matrimonial home.7
In
England too following the case of Ainsworth (supra) in 1967, which Mr
Biti says is the basis upon which our courts have followed the real
rights argument slavishly, the Matrimonial Homes Act of 1967 was
passed whose main thrust was to ameliorate the effects of this
decision by providing for the interests of a married spouse to the
matrimonial home regardless of the fact that it is not registered in
their name. Banks in England have also subsequently adopted an
Ethical Code of Conduct regarding the sale of the matrimonial home.
In
summary, in my view legislative intervention that addresses the
rights of the spouse to the matrimonial during the course of the
marriage is where the energy should be. Even when cases such as this
one are lost, they nonetheless play an important role in
fore-fronting the types of problems that need the legislator's
attention. Accordingly for the reasons I have outlined above, I pass
the following order: It be and is hereby ordered that this
application is dismissed with costs.
Tendai Biti Law,
Applicants Legal Practitioners
Mawere &
Sibanda, 1st Respondent's Legal Practitioners
1. These were stated
as Maponga v Maponga & Ors 2004 (1) ZLR 63 (H); Chivise v Dimbwi
2004 (1) ZLR 12 (H); Semwayo & Anor v Chatara & Anor HH
48/07; Musariri v Ndavayi & Ors 2010 (1) ZLR 475 (H); Muganga v
Sakupwanya 1996 (1) ZLR 217 ( S); and Tewe v Hanoki & Ors S-
55-03.
2. Zimbabwe Women
Lawyers Association.
3. Women and Law in
Southern Africa.
4. Women's Action
Group.
5. I draw here on
the general structure and interactions of the of the legal system
articulated in the book: M Schuler (Ed) Empowerment And The Law:
Strategies Of Third World Women (Washington: OEF International) 1986
at p22-23.
6. Reference here
is with particular to Part IIIA of the Administration of Estates Act.
7. See more fully
s19 & s21 of the Ontario Family Law Act R.S.O 1990 Chapter F.3
which can be accessed on the internet. The issues that deal with the
matrimonial home are addressed comprehensively under Part II of the
Act devoted to the matrimonial home.
