The
applicant and the first respondent are husband and wife being married
in terms of the Marriage Act [Chapter 5:11] and the marriage still
subsists. What has brought the parties before the court is not a
matrimonial dispute but consequences arising from a commercial
transaction concluded between the first respondent and the second
respondent, Tynserve Distributors (Pvt) Ltd.
The
latter has attached half share of a jointly owned property. The facts
of the matter are as follows;
The
applicant and the first respondent started life together in 1991
after customary rites had been performed. It was only in 2008 that
the parties solemnized their marriage in terms of the Marriages Act
[Chapter 5:11]. Of the three children born of the marriage one (1)
was a minor at the time of hearing of this matter. At the time of
marriage, the applicant was employed by the Ministry of Public
Construction and National Housing and was allocated Stand 424 Sinoia
Township (hereinafter called “the property”) on rental terms.
Subsequently, in 1994, the property was offered to the applicant to
buy; she accepted the offer. She paid fully the purchase price which
was directly deducted from her salary as a Government employee.
It
is not in dispute that on 11 June 2012 the property was transferred
into the applicant and her husband's names under Deed of Grant
2350/2012.
The
applicant's husband has been running a grocery business under
Manyene Trading (Pvt) Ltd since 2000. The second respondent supplied
goods to the business on credit and the first respondent stood as
surety and co-principal debtor for the due payment of monies due to
the second respondent. Upon the business defaulting payment, the
second respondent successfully sued the first respondent in the
Magistrates Court for payment of the sum of $138,000=. The applicant
purports that she was unaware of these developments.
The
second respondent, in pursuit of execution, has attached 50% of the
property to recover what is owed to it. It is this act which has led
the applicant to approach this court. The applicant seeks the
following order:
1.
The attachment by the second respondent of rights in the property,
being Stand 402 Sinoia Township situate in the district of Lomagundi
measuring 2,025 square metres, arising out of a judgment of the
Magistrates Court in case number HC23332/14, dated 7 November 2014,
be and is hereby set aside;
2.
In immovable matrimonial, which is the matrimonial home, creditors
cannot attach the same as a result of debt accrued by either of the
parties.
3.
The Registrar of Deeds be and is hereby authorised to transfer the
50% ownership of the property held by the first respondent to the
applicant and the Sheriff of Zimbabwe be and is hereby authorized to
execute all such documents and do all such things to effect this
transfer.
4.
The first and second respondents pay costs of suit.
The
first respondent, the applicant's husband, has not opposed the
application. The second respondent vehemently opposes the relief
sought.
Applicant's
Submissions
Counsel
for the applicant submitted that the first respondent (hereinafter
referred to as “applicant's husband”), as co-owner, is not
entitled to introduce structural changes in occupation, expose the
property or encumber the property which is jointly owned. He argued
that the applicant's husband, the first respondent, and his company
pledged the property in question as security without the applicant's
consent. That being so, that pledge is null and void as the
applicant, a joint-tenant to the property, was not a party and never
consented to that.
Relying
on “ius abutendi,” he submitted that no co-owner has a right to
destroy the property. Relying on Erasmus v Afrikander Proprietary
Mines Limited
1976
(1) SA 950 counsel
for the applicant submitted that a co-owner has a right to reasonably
use that property but if the use puts a premium or creates a nuisance
on the rights of a co-owner then that right does not exist. He
further referred to the decision of Masubey v Masubeyz
1993
(2) ZLR 36 (HC)
where the court held that the actions of a husband (now late) in
granting his mother a usufruct on part of the property jointly owned,
without the consent of his wife, infringed upon the rights of his
wife.
In
essence, counsel for the applicant submitted that the attachment of
the first respondents' half share was null and void for it ran
contrary to the common law principle on joint ownership.
The
applicant asserted in her application that her rights as co-owner are
so critical as to determine who she could co-own the property with.
She further advocates for the expansion of the common law to
recognize that jointly owned matrimonial property should not be
attached or exposed without the co-owner's consent. This, counsel
for the applicant argued, could be achieved through judicial activism
duly supported by the Constitution, which, in section 176, gives
power to this court, among the other superior courts, to develop the
common law or customary law taking into account the interests of
justice and the provisions of the Constitution.
Following
on the applicant's assertion that she contributed the entire price,
counsel for the applicant urged the court to consider that the
applicant has a far greater share in the property - it having been
acquired through her employment and therefore entitled to transfer of
the whole property. This submission he premised on the fact that
whilst jointly owned, the property is held in shares proportionate to
respective contributions. Adopting this perspective would result in
the declaration of the applicant as the sole owner of the property.
Further,
the applicant's application has a constitutional dimension to it.
She seeks to rely on section 56(1) which guarantees equality and
equal protection of the law and section 56(2) on equal treatment
including the right to equal opportunities in political, economic
cultural and social sphere.
Counsel
for the applicant submitted that allowing the husband to unilaterally
mortgage the jointly owned matrimonial property is an infringement of
the above-stated rights.
Section
80(1) is brought in and the same provides that every woman has full
and equal dignity of the person with men including equal
opportunities in political, economic and social activities. Thus,
allowing the attachment and sale of the property without the
applicant's consent will amount to discriminating against the
applicant and will maintain the “inherent” disadvantages which
women in Zimbabwe experience. Reference was made to the Committee on
Economic, Social and Cultural Rights wherein its General Comment
No.16 (2005) placed emphasis on equal enjoyment of the rights for men
and women in practice. The vulnerability of women was discussed at
length with reference to different International Conventions or
Committees, the UN Committee on Economic Social and Cultural Rights
General Comment No.7 (1997) on the right to adequate housing for this
vulnerable group.
Counsel
for the applicant called upon the court to live to its obligation
under section 44 of the Constitution to respect, protect, promote and
fulfil rights and freedoms set out in the Constitution.
In
summary, counsel for the applicant submitted that the attachment was
unlawful as the husband did not have ius abutendi. If the applicant
were to be deprived of her home this would be an infringement of her
rights to dignity, equality, equal protection and benefit of the law
and her right to property. Counsel for the applicant sought to
persuade the court to adopt the English position, as espoused by LORD
DENNING in William and Glyn's Bank Limited v Boland, which makes it
a duty of creditors to do due diligence when dealing in matrimonial
properties, which principle is utilized in Malawi and Zambia.
Second
Respondent's Case
For
ease of reference, the second respondent shall be referred to as
“Tynserve”. Counsel for Tynserve submitted that on the common law
aspect the case of Erasmus v Afrikander Proprietary Mines Limited
1976
(1) SA 950 sets
out the standard. The applicant has to establish that the manner in
which title has been used is unreasonable. This is not the case in
casu. The law of property, and section 72 of the Constitution,
provide that everyone has a right to property. That being so, the
respondent has a right to deal with his share as benefits him as an
owner. In that regard, there is no need to set the attachment aside.
She further submitted that the attachment is proper as it flows from
an order of court, which, in terms of section 164(3) of the
Constitution, is binding on all persons. She checked the relevance of
all the sections of the Constitution which counsel for the applicant
referred to being section 19, 25, 26, 56, 78, and 81 as having no
bearing to the matter at hand. She stated that there is no evidence
of which right is being infringed.
It
was further submitted on behalf of the second respondent that the
relief sought in the draft order, that creditors cannot attach
immovable property which is the matrimonial home, is not supported by
any authority.
Further,
there is no basis for the court to order transfer of the 50%
ownership of the property held by the first respondent to the
applicant.
In
response, counsel for the applicant indicated that the founding
affidavit does not have to state the constitutional aspect
characterizing the application. The second respondent should have
sought a declaration that the first respondent owns 50% before
proceeding. Further, this case is different from Linda Mudawadzuri v
Kingdom Bank Africa Ltd
HH95-15
as there was distinct ownership as the shares were indicated.
According to counsel for the applicant, the attachment of the 50%
amounted to unilateral allocation of shares.
Analysis
It
is common cause that the property in issue is jointly registered,
therefore, it is co-owned. Unlike in Linda Mudawadzuri v Kingdom Bank
Africa Ltd
HH95-15,
the
Deed of Grant which is filed of record does not specifically state
that either party owns an un-divided half share. The preamble to the
Deed which refers to the State as the transferor or simply states;
“I
do hereby grant unto Antony Ishemunyoro (born 10 January 1964) and
Judith Mandidewa (born 28 February 1970).”
“I
do hereby grant unto Antony Ishemunyoro (born 10 January 1964) and
Judith Mandidewa (born 28 February 1970), their
heirs, executors, administrators or assigns hereinafter referred to
as the owner, or a piece of land measuring 2,085 square meters called
Stand 424 Sinoia Township.”
In
the absence of the specificity regarding the shares, the legal
position where property is jointly registered was enunciated by
McNALLY JA as follows in Lafontant v Kennedy (2000 (2) ZLR 280 SC;
“What,
then is the Zimbabwean law relating to joint ownership of immovable
property? It seems on that joint ownership is the same as
co-ownership, which in turn coincides with what the Deeds Registry
Act [Chapter 20:05] calls a land held by two persons in undivided
share. See
sections 24, 25 and 26 of that Act.
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.”
He
further cites JONES, Conveyancing in South Africa,
4ed…,
which 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 on
the absence of any statement to the contrary.”
In
essence, the starting point is that parties are prima facie owners in
equal shares. The court held in the same case that “the court
cannot move from that position on mere grounds of equity. There must
be a more solid foundation in law than that. Examples of facts
amounting to evidence which may lead to successful rebuttal of the
presumption are stated as instances where the co-owner is a nominee
or agent of the other owner, where there is fraud, mistake, or a
donation which can be voided by the donor.”
I
am not satisfied that the applicant presented to court any evidence
which would persuade the court to declare her the sole owner of the
property. Apart from absence of any evidence to prove her extent of
contribution (except mere say so), and, further, 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 degree
of rebuttal of the presumption on equal shares is very high as
enunciated above.
Following
the finding that the applicant has failed to establish grounds why
she should be entitled to the whole property, it follows therefore
that the first respondent remains the owner of 50% share in the
jointly owned property.
That
being so, to what extent can he deal with his property?
The
answer can be extricated from SIELBERG and SCHOEMAN's The Law of
Property, 5th edition…, where the rights of a co-owner are
enunciated as follows;
“Every
co-owner has the right, freely and without reference to co-owners, to
alienate his or her share, or even part of his or her share subject
of course to the provision of the subdivision of 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 association. It is
clear that the exercise of this right may lead to friction on that it
enables one co-owner to force the others into a legal relationship
with a party or parties they do not
desire.”
Thus,
a co-owner has a right to deal with his rights.
As
rightly put by the author referred to above, an undesirable situation
may arise where the other co-owner may then own property with a
stranger.
In
essence, therefore, the first respondent is, at law, authorised to
alienate his rights, encumber the same without reference to the other
co-owner. It therefore follows that the second respondent would be
within its rights to attach the 50% share of the first respondent to
recover a debt incurred in a purely commercial transaction.
It
cannot be disputed that the exercise of a co-owner's rights bring
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. It is this undesirable
and impracticable situation that, in my view, counsel for the
applicant sought to demonstrate and seek solution to by referring to
dynamic constitutionalism.
No
doubt, legislation intervention is required to protect a family home.
This
may constitute in 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.”
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 in property and the
limiting of such rights where matrimonial property is juxtaposed with
the dictates of commerce. Entities like banks and other lenders rely
on security which is guaranteed by ownership rights. It is upon the
trust and security that whatever is lent out can be recovered that
holds the confidence of banks and lenders. Given that scenario, the
clandestine interference by the courts in upturning the law may
create an imbalance if not supported by the necessary legislative
intervention. The situation obtaining in Malawi and Zambia cannot be
brought about by the courts.
In
my view, no constitutional provision, in terms of equality of rights
during marriage, or equal treatment including equal opportunities in
economic, cultural and social spheres was infringed. Neither was the
right to acquire property.
The
applicant worked and acquired property of which she, out of her free
will and volition, decided to register jointly with the husband. No
cogent reason was advanced to explain why she decided to include, in
title, her husband who did not, according to her evidence, contribute
to the acquisition. It can only be concluded that she donated the
half-share to her husband and it was only after she was faced with
the disposal of the husband's half share that she panicked and
raised this application.
In
conclusion, it is time that the legislature listens to the outcry
that has resulted from the disposal of family homes by either spouse
encumbering or selling a matrimonial home without the knowledge of
the other leaving the family destitute. The Constitution recognizes
the right to family and its protection to shelter and indeed
protection of children. These rights will remain on paper unless
effective measures and timeous intervention is made regarding
protection of matrimonial homes. The dictates of commerce need be
considered against the backdrop that family is what ultimately
constitutes a nation upon which commerce is subsequently built.
Although
this application cannot succeed, it counts towards the statistics of
reflecting the extent of the problems associated with the legislative
gap viz protection of the matrimonial home. Accordingly, for the
aforegoing reasons, the following order is made;
The
application is dismissed with costs.
