MWAYERA
J:
The
plaintiff and the defendant were customarily married for about seven
years from 2002 to 2009 when the union became dysfunctional. During
the subsistence of the union the parties who were in universal
partnership acquired movable and immovable property.
The
parties agreed on issues for referral to trial namely:-
1.
What constituted the property of the parties as at the date of
separation.
2.
How was this property both movable (livestock), and immovable
acquired.
3.
Whether or not the Nyanga property has been sold, and if so, whether
or not the plaintiff was aware of such sale.
4.
Whether the property in issue should be distributed in the manner
described in the schedules attached to the plaintiff's declaration
or the manner described in para 14 of the defendant's plea.
At
commencement of trial, it became abundantly clear that the property
which formed the subject of the dispute included a Nyanga residential
property, Chitungwiza residential property, and movable property in
the form of livestock at the Masvingo residential rural home.
The
plaintiff in the pleadings and evidence claimed a 100 percent share
in the Chitungwiza residence and three cattle, four goats and two
sheep pointing out that the defendant would take 100 percent share of
the Nyanga home and the remaining livestock.
It
was apparent from the plaintiff's evidence that she has five minor
children with the defendant whom she married in 2002. They separated
in 2009. The plaintiff narrated that she married the defendant when
she was employed by OK Zimbabwe as a closed circuit television
operator (CCTV). It became common knowledge she was employed as such
since the defendant did not dispute the evidence and the plaintiff
also tendered as Exh 1 a letter of confirmation of the employment.
According
to the complainant all the money from her salary and also money
raised from a market stall operated from home was controlled by her
husband. She recalled how the Nyanga stand was first purchased and a
house constructed and then the Chitungwiza stand also followed by
construction of a house.
The
plaintiff argued that she contributed directly and indirectly. She
also pointed out that her husband contributed through earnings from
his clients since he was endowed with a gift of healing as a
spiritual healer.
According
to the plaintiff, at the time they separated, the house in Nyanga was
still theirs and it was occupied by a tenant who paid rentals.
She
vehemently denied knowledge of disposal of the property by sale to
one Mr Muringani and pointed out that if there was a sale agreement,
it was after she had instituted the current proceedings and that she
did not agree to or even benefit from the same. She pointed out that
the property which the defendant alleges to have sold five years ago
is still registered or at least at the time of trial was registered
in the defendant's name.
The
plaintiff maintained her evidence that during the marriage to the
defendant she contributed directly and indirectly to acquisition of
the property and that she was entitled to her claims.
The
defendant on the other hand, told the court that he was customarily
married to the plaintiff from 2002 to 2009 for about eight years. He
disputed paternity of the last born child and accepted having had
their union with the plaintiff blessed with four children.
In
pleadings and evidence, he told the court that he acquired the
property which forms subject of dispute solely on his own. He stated
that in his capacity as preacher and healer he had many well to do
patients who gave him tokens of appreciation inclusive of the Stands
and resources with which he built the immovable properties. He argued
he was in a better financial standing than the plaintiff a security
guard who earned a meagre salary. He argued that he solely
contributed to the acquisition of the properties using proceeds he
got from the patients he helped, some of whom were foreigners and
senior Government officials.
It
was crystal clear from both the plaintiff and the defendant that the
property was bought during the subsistence of the customary union.
The
defendant recalled that on 2 January 2009, after they separated, he
sold the Nyanga house to one Mr Henry Mugore Muringai with whom he
entered into an agreement of sale.
I
must hasten to point out that such agreement of sale was not
satisfactorily supported by both the defendant and Mr Muringani's
evidence.
The
plaintiff disputed there was ever a sale transaction as she continued
to receive rentals from the tenant even after the separation. Also at
the time of trial after five years from the purported sale no
transfers of ownership had been made. The property remains registered
in the defendant's name.
Mr
Muringani, the alleged buyer's testimony, did not change the
complexion of the matter. Mr Muringani's version was riddled with
inconsistencies and was difficult to follow. It was not clear why he
took so long to pay for the house and the manner they conducted sale
was not consistent with the contract. Further Mr Muringani appeared
not well versed with the nature, type and extent of property he
deemed to be his. He could not explain satisfactorily why if he had
bought the property the tenants would pay rentals to the defendant
and/or his wife. He did not even know the rental amount.
Other
than his mere say so, there was no proof that he paid for the house
in question.
In
fact the picture painted by the witness of having paid more than 10
instalments contrary to the sale agreement and the unavailability of
receipts when payment was made for purchase of an immovable property,
painted the defence witness and the defendant's story as
incredible. Mr Muringani's evidence about him having bought a
house whose specifications he was not well versed with and making
payment of up to $19,500-00 with no record whatsoever was not only
unsatisfactory but unbelievable, given his background as a lawyer.
He
would naturally be expected to appreciate the difference between
buying a loaf of bread and a house. The manner in which he testified
left a lot to be desired.
His
testimony did not bolster the defence's claim of a sale. If
anything, it painted a picture that the Nyanga house was still the
defendant's property, acquired during the customary law union.
It
is not in dispute the two houses and livestock constitute the entire
property which forms the subject of dispute.
The
plaintiff agreed that some of the livestock might have died in the
five years of separation and that she did not know how much was left
as livestock.
In
the absence of specific quantities on the stock it is difficult for
the court to speculate and come up with a formula for distribution.
From
the plaintiff and the defendant's evidence, it is clear that the
relationship and property regime falls under tacit universal
partnership.
The
defendant, in his evidence, admitted that the plaintiff contributed
indirectly by looking after the children and buying grocery items as
and when she felt like doing so. He equated this contribution to
entitling the plaintiff to 20% share in the Chitungwiza house which
according to the defendant, is the only immovable property that
remained for distribution.
It
is worth noting that the defendant's version of claiming 100%
contribution towards the purchase and development of the Nyanga and
Chitungwiza home was rendered porous by the defendant's own
evidence.
First
the defendant submitted fraudulently obtained receipts for a small
fraction of the building material as was exposed by the insertion in
the receipts of current cell numbers which were not in operation back
then in 2007 and 2008. The receipts were clearly produced to raise
dust so as to mislead the court on the defendant's contribution.
Having
considered the totality of the evidence before the court it is
apparent both the plaintiff and defendant contributed directly and
indirectly to the acquisition of the two immovable properties.
It
is important at this stage to look at the law in respect of
unregistered customary law unions. The law is settled that general
principles of law including unjust enrichment be resorted to in a bid
to achieve just and equitable distributing of customary law estate
such as the present case. The cases Matibiri
v
Kumire
2000
(1) ZLR 495 and Marange
v
Chiroodza
2002
(2) ZLR 171 are also instructive.
Inroads
have been made in recognising customary law unions as marriages for
proprietary, maintenance and children's issues as evidenced by not
only precedent but legislative measures.
The
administration of Estates Act [Chapter
6:01]
section 68 thereof recognises a surviving spouse as a beneficiary
regardless of the marriage registration status. The Matrimonial
Causes Act [Chapter
7:05]
section 7 is handy when it is comes to division of property even for
unregistered union were the general law principles of unjust
enrichment and universal partnership existed or have been shown to
exist.
The
principle of equitable sharing on jointly acquired property is
internationally recognised and our courts in pronouncements in
decided cases have endevoured to uphold such a principle, were
universal partnership has been established.
It
is also worth noting that also to buttress this approach is the
constitution of Zimbabwe Amendment (No. 20) Act 2013 which prohibits
discrimination. Section 56 reads:
“All
persons are equal before the law and have a right to equal protection
and benefit of the law.”
and
section 56(3) reads:
“Every
person has the right not to be treated in an unfairly discriminatory
manner on such grounds as nationality, race, colour, tribe, place of
birth, ethnic or social language, class, religious belief, political
affiliation opinion, custom, culture, sex, gender, marital
status,
age, pregnancy, disability or economic or social status, or whether
they were born out of wedlock.”
In
casu
both the plaintiff and the defendant have contributed to the
acquisition of the estate. The houses are situated in different
locations namely Nyanga and Chitungwiza clearly entailing they are of
different values. It would in my view not be just and equitable to
order each to get one of the houses but to apportion an appropriate
share in each of the properties with an option for the parties to buy
each other out. Given the background of the matter and the
contributions of each of the parties it would not be appropriate to
award 100 percent share in Chitungwiza and Nyanga property to either
of the parties.
In
Mashangedza
v Mutsvangwa
HH214/13 MAWADZE J took the approach that general law should apply in
cases where land rights are involved irrespective of whether the
union was customary or not as to do otherwise would be discriminatory
against those women married customarily.
I
entirely associate with Honourable MAWADZE J's sentiment when he
quoted with approval remarks in Ntini
v Masuku
2003 (1) ZLR 638 were the judge stated that time has come for a
customary union to be recognised as a marriage institution for all
intents and purpose, it serves the same purpose as a registered
marriage.
It
is that discrimination on nature of marriage which the Constitution
sought to outlaw by outlawing custom or law that is discriminatory.
It
would not be progressive in the 21st
century to allow a party to be unjustly enriched because he
contracted an unregistered marriage in the face of clear evidence of
contribution by both spouses in acquisition of property.
It
is not in dispute that in our jurisdiction unregistered customary law
union should be treated like any other marriage when it comes to
dissolution and division of assets jointly acquired by the parties
during the subsistence of the marriage were tacit universal
partnership is established. For this pronouncement I am guided by the
words of MUCHECHETERE JA in Chapeyama
v Matende
2000 (2) ZLR 356.
I
am satisfied that the plaintiff contributed directly and indirectly
through the monthly earnings while the defendant also contributed
directly and indirectly through his earning as a spiritual healer. It
would in the circumstances be just and fair that the parties share
the Nyanga and Chitungwiza properties at the rate of 50 percent share
each.
Accordingly
it is ordered:
1.
That the plaintiff be awarded 50 percent share of House Number 24444
Unit P Extension, Chitungwiza and that the defendant be awarded the
other 50 percent share of the said property.
2.
That the defendant be awarded 50 percent share of House Number 410
Nyamhuka Government Complex, Nyanga and that the plaintiff be awarded
the other 50 percent share of the said property.
3.
The property shall be evaluated by an independent evaluator appointed
by the Registrar within a period of 30 days from date of judgment.
4.
That the cost of evaluation shall be borne by the parties at the rate
of 50 percent each.
5.
That the parties have on option to buy each other out within a period
of 3 months from date of judgment.
6.
In the event of the parties failing to buy each other out the
property shall be sold at open market to the best advantage by an
Estate Agent to be appointed by the Registrar of High Court within a
period of 14 days from date of failure by the parties to buy out each
other out and the proceeds shall be shared at the ratio of 50 percent
each in respect of both properties.
7.
Each party is to bear its costs.
Mahuni
& Associates,
plaintiff's legal practitioners
Mugiya
and Macharaga,
defendant's legal practitioners
