GWAUNZA
JA:
[1] This
is an appeal against the whole judgment of the High Court which
dismissed an application by the appellant for a declaratur
and certain relief related to the matrimonial home that she jointly
owned with the first respondent.
[2] Factual
Background
[2.1]
The appellant and the first respondent are husband and wife. They
were customarily married in 1991. In or around that time, the
appellant was an employee of the Ministry of Local Government and
Housing. She was allocated and allowed to rent certain property
called Stand No. 424 Sinoia Township, (“the property”) by her
employer. Sometime in 1994, the Government offered to sell the
property to the appellant. She accepted the offer and allegedly paid
the full purchase price of the property through monthly deductions
from her salary. Upon completion of payment of the purchase price, on
11 June 2012, the property was transferred into the names of both the
appellant and the first respondent, her husband. Prior to that
development, on 28 November 2008, the two had solemnised their union
in terms of the Marriages Act [Chapter
5:11].
[2.2] In
2000, the first respondent joined a certain businessman in the
operation of a grocery store known as Manyene Trading (Pvt) Ltd (“the
company”). The first respondent was a shareholder in the company
and at some point, he acquired goods for the company on credit from
the second respondent and bound himself as surety for the debt owed
by the company. The company failed to repay the debt owed to the
second respondent and the latter instituted proceedings against it
and the first respondent as surety and co-principal debtor, in the
Magistrates' Court. The total sum claimed by the second respondent
was US$138,500.00.
[2.3] On
7 November 2014, the magistrate found in favour of the second
respondent and ordered the company and its directors to pay the
US$138,500 claimed. Neither the company nor the directors managed to
pay the said amount and as a result, the fourth respondent attached
the first respondent's 50 percent share in the property in
execution of the court order because the other 50 percent belonged to
the appellant.
[2.4] Aggrieved
by the attachment, the appellant filed an application in the High
Court seeking a declaratur
to the following effect:
“In
immovable matrimonial property, which is the matrimonial home,
creditors cannot attach the same as a result of debt accrued by
either of the parties.”
She
also sought an order;
(i)
that the attachment of the first respondent's rights in the
property concerned be set aside;
(ii)
that the Registrar of Deeds be authorised to transfer the 50
percent share
of the property held by the first respondent to her; and
(iii)
that the first and second respondents pay costs of suit.
[2.5]
The second respondent opposed the application while the first
respondent did not file any opposing papers thereto.
[2.6] The
court a
quo
found that the first respondent's share of the property was
capable of being attached by the Sheriff and sold in order to
recover the debt that he owed to the second respondent. It found
further that insufficient evidence was led to prove that the
appellant was the sole owner of the property, or that she was
entitled to have the first respondent's share transferred into her
name. In the result, it dismissed the appellant's application.
[3] The
appellant was aggrieved by the decision of the court a
quo
and consequently noted the present appeal on grounds that essentially
raise two issues that is:
(i)
whether or not the first respondent's share in the property can be
transferred to the appellant; and
(ii)
whether or not a share in a matrimonial home jointly owned by spouses
can be attached and sold in execution of a judgment entered against
one of the spouses.
The
appellant raised the following other ground of appeal:
“More
importantly, the court a
quo
ignored, and was timid, in failing to take a robust approach
required by the Constitution in protecting women's rights in the
matter.”
The
appellant's case
[4] The
appellant's main case a
quo
was that the first respondent had acted recklessly in 'exposing'
the matrimonial home and acquiring debts which resulted in his share
of it, being attached by the Sheriff. Further she stated thus in her
founding affidavit:
“…
as a joint owner, it is my respectful contention that a co-owner
does not have jus
abutendi
in respect of the property. A co-owner in my opinion cannot
introduce a structural change in the occupation of the land without
the consent of the other or alternatively the co-owner cannot expose
the property through reckless action such that the rights of the
co-owner can be directed (sic) … I therefore believe that where
matrimonial property is concerned, which is jointly owned, the
common law should be expanded to recognise that property cannot
be
attached or exposed, without the consent of the other co-owner.”
(my
emphasis)
The
appellant also made reference to the effect that the attachment of
the first respondent's half share of the property would have, in
particular, that it would result in the imposition on her, of another
co-owner with equal rights over the property. She accordingly sought
in this respect, an order setting aside the attachment of the first
respondent's half share in the property. The appellant in her heads
of argument argued that the attachment of the first respondent's
share in the property amounted to an interference with her rights as
a co-owner. She further argued that the rights enjoyed by co-owners
do not include the right to alienate the property jointly owned
without the consent of the other party. Accordingly, the first
respondent had no right to pledge his share in the property as
security for a debt without her consent. In advancing this argument,
the appellant relied on the cases of Van
de Merwe v Van Wyk 1921
EDC 298;
Erasmus v Afrikander Proprietary Mines Ltd 1976
(1) SA 950 at 959 D-E and Masubey
v Masubey 1993
(2) ZLR 36.
[5] The
appellant argued that she was offered the option to buy the property
by her former employer, the Government, accepted the offer and paid
the full purchase price of the property. Consequently, the first
respondent's share must be transferred to her because the first
respondent had not paid anything in the acquisition of the property.
Finally, the appellant advanced the argument that the first
respondent's unilateral encumbrance of their matrimonial home
constituted an infringement of her constitutional rights to equal
treatment as enshrined in sections 56 and 80 of Constitution.
Respondents'
case
[6] It
has already been noted that the first respondent did not put up any
challenge to the appellant's case a
quo.
The consequence of this is that what the appellant averred in
relation to how the immovable property in question was acquired and
who contributed what to its acquisition, remained undisputed. The
same applies to the averment that the first respondent had 'exposed'
the property to judicial attachment without the appellant's
consent.
[7] The
second respondent, who was in no position to dispute these averments,
argued that in terms of property law, ownership of immovable property
is proved by way of registration of title. Once the right of
ownership is proved, it confers the most complete and comprehensive
control over property to the extent that a co-owner has the right to
alienate or dispose of his or her share in the property without
seeking the consent of the other co-owner(s). The second respondent
however accepted that before a co-owner can alienate his or her share
in the property, it is desirable that they seek the consent of the
other co-owner. However, it took the view that failure to obtain such
consent cannot, alone, be taken as a basis to interdict a co-owner
from alienating his rights in the property unless it is proved that
such alienation was done in an unreasonable manner. The second
respondent thus argued that in this case the first respondent had not
exercised his right of ownership unreasonably, since he used it as
security, 'to honour a commercial transaction'.
[8] The
second respondent further argued that the constitutional right to
equality applies to every person, man or woman and consequently, the
fact that the appellant is a woman does not exempt her from the
consequences of the law where there are legal obligations which must
be met.
Whether
or not the first respondent's share in the property can be
transferred to the appellant.
[9] It
is trite that property, either movable or immovable, may be owned
jointly by two or more persons. In respect of immovable property,
each co-owner has real rights in the property to the extent of their
defined share. In this respect the learned authors Silberberg and
Schoeman in their book 'The
Law of Property',
4th
Ed at page 32 state as follows:
'THE
CONCEPT OF A REAL RIGHT
A
real right is a jus
in rem.
It establishes a direct connection between a person and a thing in
the sense that the holder of a real right is entitled to control the
use of a thing within the limits of his right. In
other words, a real right is enforceable against the world at large –
that is against any person who seeks to deal with the thing to which
a real right relates in any manner which is inconsistent with the
exercise of the holder's right to control its use (and
in so far as a person may have a real right in another person's
property, a real right is also enforceable against the owner of that
property.” (my
emphasis).
What
is emphasised in this excerpt
is that every owner or co-owner enjoys real rights over the property
registered in his or her name and such real rights cannot be lightly
interfered with. In
casu,
the property is registered in the names of the appellant and the
first respondent, meaning that both parties are owners of part of the
property and have real rights over their respective shares therein,
which cannot be lightly interfered with.
[10] The
right of ownership to immovable property must be registered with the
Registrar of Deeds. A title deed is thus prima
facie
proof that a person enjoys real rights over the immovable property
defined in the Deed. In the case of Fryes
(Pvt) Ltd v Ries 1957 (3) SA
575 at 582,
the court held that;
“Indeed
the system of land registration was evolved for the very purpose of
ensuring that there should not be any doubt as to the ownership of
the persons in whose names real rights are registered. Generally
speaking, no
person can successfully challenge the right of ownership against a
particular person whose right is duly and properly registered in the
Deeds Office.”
(my
emphasis)
It
therefore follows that where two or more names appear on a title
deed, a presumption exists that the property is owned by both or all
the persons whose names appear on the Deed. The court explained the
effects of registration of ownership in Chapeyama
v Chapeyama
2000 (2) ZLR 175 (S) at p. 177 B as follows:
“In
the first place, as already stated, the property was and is
registered in the names of both parties. What this means is that
Susan has real rights to an undivided half share of the property. In
other words, she is the registered owner of an undivided half share
in the property.”
A
few years ago, this Court dealt with a similar issue in Takafuma
v Takafuma
1994 (2) ZLR 103 (S). At 105H-106A, MCNALLY JA had this to say:
“The
registration of rights in immovable property in terms of the Deeds
and Registries Act [Chapter
139]
(now [Chapter
20:05])
is not a mere form. Nor is it simply a device to confound creditors
or the tax authorities. It is a matter of substance. It conveys real
rights upon those in whose name the property is registered.”
[11] The
title deed in
casu
does not define the shares owned by the appellant and the first
respondent in the property. However, where property is co-owned,
there is a presumption that the parties own the property in equal
shares. The position was enunciated in Lafontant
v Kennedy
2000 (2) ZLR 280 (S), where the court held that;
“Where
two persons own immovable property in undivided shares (as is the
case here) there must, I think, be a rebuttable presumption that they
own it in equal shares. That presumption will be strengthened when
(as here) the parties are married to each other at the time ownership
was acquired. Thus Jones Conveyancing in South Africa 4 ed p 118
states:
'Where
transferees acquire in equal shares it need not be stated in the
deed that they acquire 'in equal shares', as this fact is
presumed in the absence of any statement to the contrary.'”
On
the basis of this authority therefore, nothing turns on the fact that
the Title Deed in relation to the property in
casu
(a Deed of Grant), simply 'grants' the property to the appellant
and the first respondent. The property in this case was acquired in
2012, after the parties had solemnised their union in terms of the
Marriages Act (Chapter
5.11).
Thus by virtue of their names appearing on the Deed the two own the
property in equal undivided shares.
The
contention by the appellant that she solely purchased the property
does not alter the legal effect of its registration in the parties'
joint names. In other words, it does not legally undermine the second
respondent's ownership and entitlement to the enjoyment and use of,
real rights over the 50 percent share of the property that is
registered in his name.
In
the absence of a court order, fraud, undue influence, mistake, gross
irregularity or other factor vitiating such registration, this right
cannot be lightly interfered with.
The
appellant has neither claimed nor established any such circumstance.
By all accounts, she voluntarily chose to have the property that she
had solely paid for, jointly registered in her name and that of her
husband.
[12] In
our law, the legal regime governing ownership of immovable property
by spouses within a subsisting marriage, reinforces rather than
derogates from the principle that ownership of real rights is to be
protected. In simple terms it provides for marriages out of community
of property in the absence of an antenuptual contract executed by the
spouses according to the relevant law. Specifically, section 2 of The
Married Persons Property Act [Chapter
5:12]
provides as follows:
“1.
…………………………….
2.
Community of property excluded from marriages after 1 January 1929,
except where agreements made to the contrary
(1)
Community of property and of profit and loss and the marital power or
any liabilities or privileges resulting therefrom shall
not attach to
any marriage solemnized between spouses whose matrimonial domicile is
in Zimbabwe entered into after the 1 January 1929, unless such
spouses shall, by an instrument in writing, signed by each of them
prior to the solemnization of their marriage and in the presence of
two persons, one of whom shall be a magistrate, who shall subscribe
thereto as witnesses, have expressed their wish to be exempt from
this Act.” (my
emphasis)
The
import of this provision is that a spouse whose name appears for
instance, in the Title Deed of any immovable property enjoys full
ownership rights therein. He or she can deal with the property in any
way he wishes, including alienating his rights therein or otherwise
encumbering such property. Similarly, if both spouses are registered
as joint owners of the property, each one enjoys full ownership
rights over his or her share in the property.
I
have already found that in
casu,
the appellant and the first respondent each legally and independently
own an undivided half share in the property in dispute. On the basis
of common law as well as our matrimonial property regime, the shares
owned by each of them, being real rights, cannot lightly be
interfered with.
[13] It
should be noted that the appellant, having used her own resources to
fully purchase the property, could have effectively safeguarded her
real rights therein by having the property registered in her name
only. It is contended on her behalf that her decision may have been
motivated by societal and cultural pressures and considerations that
shape and impact on gender relations within the family set up. In
other words, factors that fall outside the dictates of the law. As
this may very likely be true, one may sympathise with the appellant
given the predicament she now finds herself in. Unfortunately for her
however, there is no gainsaying the fact that the inclusion of the
first respondent's name in the Title Deed in question, clearly
reposed in him real rights that at law, cannot lightly be interfered
with. This includes depriving him of property that he rightfully
owns.
One
circumstance that may constitute an exception to this principle would
be the division of immovable matrimonial property between a divorcing
couple irrespective of whose name the property may be registered in
accordance with section 7 of the Matrimonial Causes Act [Chapter
5:13].
The case at hand not being a divorce matter, does not constitute any
such exception.
[14] In
light of the above I fully concur with the reasoning of the court a
quo
in holding, as it did, that the appellant had not established a legal
basis for the transfer of the first respondent's share of the
property in question, into her name. The court stated as follows in
its judgment:
'… there
is no establishment of a solid foundation or a basis why the first
defendant's share should be awarded to her. Without any recognised
ground, mere contribution not being enough as mere grounds of equity
do not suffice, (the) applicant cannot get the relief sought.'
As
no fault can be found in this finding, this issue is determined
against the appellant.
Whether
or not a share in a matrimonial home jointly owned by spouses can be
attached and sold in execution of a judgment entered against one of
the spouses.
[15]
A reading of the papers on record shows that nowhere in her
founding papers was the allegation made by the appellant that the
second respondent had unilaterally pledged his half share of the
property as security for the debt that he had incurred, and without
the appellant's consent. The appellant's grounds of appeal in
this court similarly do not allude to the question of whether or not
it is legally permissible for a spouse to unilaterally encumber a
jointly owned property without the other spouse's consent. This
claim, whose effect was to improperly introduce a new cause of
action, was only made in the appellant's heads of argument. Focus
was then effectively shifted from the correctness or otherwise of
attaching a spouse's half share in a jointly owned matrimonial
home, to whether or not it was legally permissible for one spouse in
such a situation, to alienate or otherwise encumber his share in the
matrimonial home, without the other spouse's consent. The judge a
quo
fell into this trap and relied for her determination partly on this
dictum
from the learned authors Silberberg
and Schoeman's
the
Law of Property
at p 258:
“Every
co-owner has the right freely and without reference to his co-owners
to alienate his share, or even part of his share subject, of course,
to the provision of the Agricultural Land Act … It is this right
which is probably the most important characteristic which
distinguishes a co-owner per
se
from all other forms of co-ownership such as partnerships and
associations. It is clear that the exercise of this right may lead to
friction in that it enables one co-owner to force the others into a
legal relationship with a party or parties they do not desire.”
The
learned judge then concluded as follows:
“In
essence therefore the first respondent is at law authorised to
alienate his right, encumber the same without reference to the other
co-owner. It
therefore follows that the second respondent (sheriff) would be
within its rights to attach the 50 percent share of the first
respondent to recover a debt incurred in a purely commercial
transaction.” (my
emphasis).
[16] Thus
while the court a
quo
made the correct finding as regards the Sheriff's power to attach
the share of jointly owned property that belongs to one of the
spouses who has incurred but failed to repay a debt, it did so on an
erroneous basis. The cause of action was whether or not the Sheriff
can attach a share of jointly owned matrimonial property. Had the
court addressed its mind to the appellant's cause of action as
enunciated in her founding affidavit, it would have found that this
issue has been determined and settled by our courts, as a few
authorities show. In the leading case of Gonyora
V Zenith Distributors (Pvt) Ltd & Ors
2004 (1) 195 (H) the applicant, a registered co-owner of the
matrimonial home, took issue with the sale of the entire house in
circumstances where the writ of execution should properly have only
related to her husband's half share. The court in that case
correctly held that it was 'inconceivable' that the applicant's
share could be attached and sold in execution without causa.
In yet another case, Sheriff
of Zimbabwe v Mukoko and Anor, SC
805-17, the claimant and her husband co-owned their matrimonial home
and the property was attached in execution of a debt owed by her
husband. She approached the High Court with an interpleader
application contending that her undivided half share in the property
had been wrongfully attached. The court found that a writ is only
enforceable against the property of a judgement debtor, in this case,
the undivided half share of the claimant's husband and not the
entire property. The attachment of her share was thus declared a
nullity. In
casu, while
the appellant's half share of the property was not attached, the
common law principle affirmed in the two cases cited above holds
strong. This is that a writ of execution is properly enforced against
the property of a judgment debtor, notwithstanding that it forms a
part of jointly owned property.
[17] The
warrant of execution issued by the second respondent against the
first respondent's property relates only to his 50 percent share.
The appellant's half share remains unencumbered. On a strict
interpretation of the law and authorities cited above, her rights as
a co-owner were not infringed. She remains free to enjoy her real
rights in the half share she owns as she sees fit. The contention
made on behalf of the second respondent is that the first
respondent's half share is all that is intended to be sold in
execution in order to settle the debt in question.
[18] It
should be noted that the first respondent in
casu
did not formally or directly 'alienate' his share of the
property. A perusal of the Deed of Suretyship shows that what he did
was bind himself as surety and co-principal debtor with his company,
Manyene Trading (Pvt) Ltd, for the due payment of its debt to the
second respondent.
Nowhere in the Deed of Suretyship does it state that the matrimonial
home was being pledged as security for the repayment of the debt in
question. Nor did the appellant tender any other evidence to that
effect, for instance a Surety Mortgage Bond over the first
respondent's half share in the property. It was therefore a
mis-characterisation of the evidence before the court, to allege that
the first respondent unilaterally encumbered the property by binding
it as security for the repayment of the debt owed to the second
respondent. At the stage of signing the Deed of Suretyship, all that
the first respondent did was to create the possibility, in the event
that he failed to repay the debt in his capacity as surety and
co-principal debtor, of his share in the matrimonial home being
attached in order to raise funds to repay the debt in question. It
should be noted too that had the first respondent been possessed of
other assets besides his share in the matrimonial home, such share
would not have been attached.
[19]
Be that as it may it cannot be denied that, while the signing of
the Deed of Suretyship in reality might per
se
not have interfered with the family's daily enjoyment of the
matrimonial home, the danger, presumably unknown to the appellant,
was always there that the first respondent might default in his
repayment of the loan, giving rise to the judicial attachment of his
share of the property. This having then transpired, the consequence
is that in practical terms, the appellant's and the family's
enjoyment of the matrimonial home as a whole has been jeopardised.
Were the first respondent's undivided half share to be sold, the
appellant would be forced to co-own what was hitherto the family's
matrimonial home, with a complete stranger. The appellant has
indicated that she has no desire to relinquish her rights therein by,
for instance, allowing the sale of the entire property and being paid
50 percent of the proceeds thereof. One may comment that sales in
execution, being forced sales, generally do not realise the true
value of the property concerned. Such an outcome would clearly
prejudice the appellant who, through no fault of hers, would be
forced to accept a fraction of the true value of her half share of
the property and possibly not be able to use it to purchase a
property of the same value.
[20] The
court a
quo in
my view
correctly
highlighted the legitimate concerns that arise out of a situation
where a spouse who with his spouse jointly owns what is in effect a
matrimonial home, puts such home at risk by raising debts that he may
fail to pay back. Albeit
not addressing a situation where the Sheriff has attached such
spouse's share, the concerns highlighted by the court a
quo apply
equally to that situation.
The
court also ventured a suggestion as to how these concerns may best be
addressed. It opined as follows:
“It
cannot be disputed that the exercise of a co-owner's rights brings
outright hardship to another co-owner in a matrimonial set up. This
is particularly so when the property in issue is a matrimonial home.
A house being indivisible, the property being a family home as in
this case, it becomes in my view virtually impractical that the
property be owned by two unrelated parties”.
[21] It
is against this background that the appellant appealed to the High
Court imploring it, among other relief, to 'expand' the common
law to recognise that jointly owned matrimonial property should not
be attached or 'exposed' without the consent of the other
co-owner. She argues for a change in the law so that the Sheriff is
restrained from attaching and selling in execution, any jointly owned
matrimonial property that lawfully belongs to the judgment debtor.
This
part of the claim in my view was misconceived on two main respects.
Firstly, as I have above highlighted, at least one Supreme Court
judgment, Sheriff
of Zimbabwe v Mukoko and Anor, SC
805-17,
has affirmed the correctness of the attachment and sale in execution
by the Sheriff, of the undivided share of a jointly owned matrimonial
home in order to satisfy a debt incurred by one of the spouses. Being
accordingly bound by this decision, the High Court could not have
made a determination in
casu
other than the one that it made. Secondly, and to the extent that the
High Court is empowered in terms section 176 of the Constitution, to
among other things 'develop' common law, it could in my view not
have properly done so if the effect was to override a Supreme Court
judgment on the exact same issue.
[22] The
court therefore correctly declined the invitation to 'expand'
common law in an exercise of judicial activism, in order to grant the
order sought by the appellant. Be that as it may I find it
instructive to consider the issue as argued by the appellant, and as
determined by the court a
quo
in this respect. The appellant argued at length and cited numerous
authorities from our jurisdiction and beyond, on the need for courts,
through judicial activism, to play their role in outlawing laws and
practices that adversely affect the advancement of women's
development in all spheres of life. It was argued in this and other
respects, that at common law, the courts are obliged to be
'judicially active' and develop the common law. Reliance for this
argument was inter
alia
placed on the case of Zimnat
Insurance Company Ltd v Chawanda (1990
(2) ZLR 143 at 145 B-D) where GUBBAY ACJ (as he then was) stated:
“It
sometimes happens that the goal of social and economic change is
reached more quickly through legal development by the judiciary than
by the Legislature. This is because judges have an amount of freedom
or latitude in the process of interpretation and application of the
law. It is now acknowledged that judges do not merely discover the
law, but they also make law. They take part in the process of
creation. Law making is an inherent and inevitable part of the
judicial process”.
Special
mention was made of section 176 of the Constitution, which vests in
our higher courts, the power to protect and regulate their own
processes and 'to
develop common law or the customary law, taking into account the
interests of justice and the provisions of this Constitution.' It
was the appellant's argument that the circumstances of this case
and the issue at stake therein, constituted a proper case for the
exercise of this power.
The
court a
quo
was not persuaded by the submissions made on behalf of the appellant
in this respect and stated thus:
“It
is this undesirable and impractical situation that in my view Mr Biti
sought to demonstrate and seek solution to by referring to dynamic
constitutionalism. No
doubt legislative intervention is required to protect a family home.
This may constitute law reform providing legal mechanisms for the
prevention of encumbering a matrimonial home in the absence of
meeting certain criteria”.
As
TSANGA J stated in Madzara
v Stanbic Bank Zimbabwe Limited and Others HH546/15;
“the
absence of mechanisms for the protection of a matrimonial home 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.”
The
court a
quo
thus in my view was correct in the following assertion;
“Attainment
of such a milestone can never be achieved through judicial activism.
This is a pertinent issue which touches on the concept of real rights
as constituted by ownership and the will to deal with property and
the limiting of such rights where matrimonial property is juxtaposed
with the dictates of commerce.”
[23] Having
considered the lengthy submissions made on behalf of the appellant
and given the circumstances of the case and the relief sought, I do
not find any fault with the reasoning of the court a
quo
on this point. Judicial activism, while having a place in our legal
system as in many others, and in appropriate cases, however has its
limits. The major limitation to the law making role of the courts is
the need for the judiciary not to step onto the toes of the
Legislature, whose primary mandate is to make laws through
Parliament. I have no doubt in my mind that section 176 of the
Constitution is not meant to vest the judiciary with authority to
usurp the legislative responsibility ofthe Legislature. In this
respect I associate myself with the sentiments of TSANGA J as
expressed in the case of Madzara
v Stanbic Bank
(supra)
as follows:
“In
sum, much as judicial activisim 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 not be lost of the significance of participation for
efficacy of laws by those on whom they will have a bearing.” (my
emphasis)
It
should be noted in this case that the appellant's call was for the
exercise of judicial activism taking the form of 'expanding' the
common law, based only on the facts of the dispute at hand. The
dispute clearly has a bearing on both social and economic issues but
does not reflect the full ambit and reach of the problem sought to be
addressed. The interests of other players like banks and building
societies whose business includes the lending of money upon the
pledging of immovable property as security would most likely be
affected. One may envisage a situation where such entities may, to
their detriment, become wary of extending mortgage bond facilities to
a married couple aspiring to acquire and jointly own a matrimonial
home, to any married person for that matter, or to a married couple
wishing to raise funds to develop their jointly owned property! One
may also not rule out collusion between an unscrupulous married
couple, who may borrow money from a lending agency and then hide
behind their joint ownership of a matrimonial home in order to
frustrate the creditor's efforts to recover its money. Furthermore,
it must be accepted that the second respondent was unable to find any
other property belonging to the first respondent that could have been
attached and sold in execution in order to raise the not
inconsiderable amount that it is owed. It falls to reason that
granting the relief sought by the appellant would leave the second
respondent with no recourse, much to its prejudice. These and other
related matters are weighty and complex. They need proper
consideration before such a fundamental change to the common law as
is sought by the appellant can be effected, even by the Legislature
should it be so persuaded. The Judiciary by nature, lacks the
resources or any capacity to undertake such a task.
[24] That
being the case, it is patently evident that granting the relief
sought by the appellant, while it may solve her particular problem,
would create problems for many others on whom it would impact. It is
not the type of relief that the court may properly grant. This
dilemma is aptly captured by FRANKFURTER J in the USA case of Sherrer
v Sherrer 334
US 343, 366 (1948), as follows:
“Courts
are not equipped to pursue the paths for discovering wise policy. A
court is confined within the bounds of a particular record, and it
cannot even shape the record. Only fragments of a social problem are
seen through the narrow window of litigation. Had we innate or
acquired understanding of a social problem in its entirety, we would
not have at our disposal adequate means for constructive solution”.
[25] This
is in line with the sentiments of GUBBAY CJ in Walker
v Industrial Equity Limited
1995 (1) ZLR 87 (S) when he stated:
“Almost
ninety years ago in Blower
v Van Noorden
1909 TS 890 at 905 INNES CJ aptly observed that:
'There
comes a time in the growth of every living system of law when old
practice and ancient formulae must be modified in order to keep in
touch with the expansion of legal ideas, and to keep pace with the
requirements of changing conditions. And it is for the courts to
decide when the modifications, which time has proved to be
desirable, are of a nature to be effected by judicial decision and
when they are so important or
so radical that they should be left to the legislature.'”
(my
emphasis)
In
my view this is a proper approach to judicial decision-making which
strikes the correct balance between excessive caution, on the one
hand, and judicial over-reach, on the other. HLATSHWAYO JA had
occasion to comment on the same dilemma in his former life as an
academic some two decades ago, thus:
“In
point of fact, though, there is no great difference between the two
approaches, especially given the very limited scope of judicial
law-making. However, the consequences of adopting one approach as
against the other are far-reaching on the maintenance of the rule of
law structure, the development and consolidation of human rights and
human rights culture. To use a homely description, judicial
law-making could be likened to “grazing over the fence”. Now, it
is one thing when judges stretch their necks to graze on the sweet
green grass bordering the judicial paddock and quite another for them
to go trip, trap, trip, trap billy goat Gruff style, across the
bridge to graze on the other side. Then one never knows what ugly
trolls they might disturb and the constitutional havoc that might
ensue. In this illustration, judicial restraint can be compared to
stretching the neck as far as it can go to graze on the sweet green
grass, while remaining within the judicial constitutional space, and
judicial activism to bolting out of the paddock and going round to
eat perhaps the very same grass or a little bit more further afield.
The extra mouthful of grass, I submit, is not worth the consternation
that the act of bolting out of the judicial enclosure causes!”
[26] It
is not to be denied that the relief sought by the appellant is one
that would resonate with women's rights activists and many married
women who jointly own matrimonial property with their husbands. This
is because it would deal a killing blow to one of the major social
and cultural pressures that serve to stifle the economic empowerment
of married women, their access to vital resources like reliable
shelter and the security that all this brings to women and families
as a whole. I however agree with the learned judge a
quo
and the authorities cited, that the complexity of the matter at hand
and its undeniable impact on other players who are not parties to
this claim, are issues that should properly be left to the
legislature to address. The issue at hand is one that, to use
TSANGA J's words (supra),
'requires
informed dialogue and the legislator's engagement with relevant
stake holders on what would be realistic'.
Thus thorough, systematic legislation informed by views garnered from
consultation with relevant players and stakeholders is necessary in
addressing problems like the one at hand, that impinge on matters to
do with the country's social and economic development.
I
do not entertain any doubt, when all is said, that the exercise of
judicial restraint is properly called for in relation to the legal
changes sought in
casu.
CONSTITUTIONAL
ARGUMENTS
[27] I
do not find any merit in the constitutional arguments made for the
appellant. The facts of the matter show that no constitutional
guarantees in terms of equality of rights during marriage, or equal
treatment including equal opportunities in the economic, cultural and
social spheres, were infringed. Nor did this happen with respect to
the appellant's right to acquire property. The appellant was
gainfully employed, freely acquired the property in question, but
voluntarily chose to have it registered in her and her husband's
joint names. No coercion or undue pressure on her by anyone is
alleged. She therefore effectively donated one half-share of what was
rightfully her property, to her husband. It is this action that lies
at the root of the problems that led to her bringing the matter to
court. It thus becomes difficult to comprehend how the lawful
consequences of such an action can be said to have mutated into an
infringement of her rights to equality in marriage, to acquire
property and to shelter.
[28] When
all is said, there is in my opinion, a clear need for those who
advocate for the protection of the rights of women, children and the
family as whole, to lobby the Legislature to enact laws that address
the problem in
casu
and similar issues. As indicated, I concur with the view taken by the
court a
quo,
that this is a matter to be properly dealt with by substantive law,
rather than through the court taking 'a robust approach' in
protecting women's constitutional rights as contended for the
appellant. Other jurisdictions, no doubt prompted by similar
concerns, have successfully been moved to pass legislation that
outlaws the alienation or encumbrance of a matrimonial home by one
spouse without the consent of the other. Where that happens the court
is empowered to set aside the transaction. In Canada (Nova Scotia),
section 8 of the Matrimonial Property Act, provides as follows:
“Disposition
of matrimonial home
(1)
Neither spouse shall dispose of or encumber any interest in a
matrimonial home unless;
(a)
the other spouse consents by signing the instrument of disposition or
encumbrance, which consent shall not be unreasonably withheld;
(b)
the other spouse has released all rights to the matrimonial home by
a separation agreement or marriage contract;
(c)
the proposed disposition or encumbrance is authorized by court order
or an order has been made releasing the property as a matrimonial
home; or
(d)
the property is not designated as a matrimonial home and an
instrument designating another property as a matrimonial home of the
spouses is registered and not cancelled.
Disposition
contrary to subsection
(1)
(2)
Where a spouse disposes of or encumbers an interest in a matrimonial
home contrary to subsection (1), the transaction
may be set aside by the other spouse upon an
application
to the court unless the person holding the interest or encumbrance
acquired it for
valuable consideration, in good faith and without notice that the
property was a matrimonial
home.”
(my
emphasis)
There
is in my view no doubt that legislation along these lines would be
desirable in our law, as it would go a long way in safeguarding the
family's rights to shelter. It would also protect the integrity of
a matrimonial home and promote the economic empowerment of women. It
is precisely because such legislation is absent in our law, that the
appeal in
casu
must fail.
[29] It
should be noted though that as far back as 2005, MAKARAU J (as she
then was) dealt with a similar dispute in Muswere
v Makanza HH
16/2005. She more forcefully stated the need for law reform in this
respect thus:
“… while
accepting the current position at law, I am of the firm view that the
principles of family law that this Court is enjoined to apply to
restrict the rights of a wife to the realm of personal rights against
her husband are anachronistic and have outlived their raison
d'etre.”
It
is in my view, therefore, a matter of regret that no concerted effort
has to date been made by activists in the field of gender and women's
rights to lobby the legislature to effect the desired changes in our
law. As evidenced by the many disputes of this nature that have been
brought before our courts, a need for such change has clearly been
demonstrated.
[30] Disposition
In
the light of the foregoing, the appeal fails on all grounds.
It
is accordingly ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
HLATSHWAYO
JA: I
agree
ZIYAMBI
AJA: I
agree
Tendai
Biti Law,
appellant's legal practitioners
Dhlakama.
B Attorney's, second
respondent's legal practitioners
1.
This situation is to be contrasted with a regime for instance, the
South African one, that imposes community of property in marriage.
Since all the property is owned equally by the spouses, neither is at
liberty to deal with any share thereof as he/she wishes without the
consent of the other.
2.
It is noted that the Deed of Suretyship purports to have been entered
into and signed for by both the appellant and the first respondent.
However, it can be assumed and was so accepted by the court a
quo
that
the appellant had no knowledge of the transaction and that her
signature thereto was forged. Indeed, a casual look shows a marked
difference between her supposed signature in the Deed of Suretyship,
and that in her founding affidavit.
3.
Order
in the Courts: Judicial Activism and Restraint, 1997, Legal Forum,
p.14
