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…,:
“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.”…,.
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 SC805-17, 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 un-divided 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.
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.
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 (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).
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-characterization 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….,.
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.
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.”
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;
(i) Firstly, as I have above highlighted, at least one Supreme Court judgment, Sheriff of Zimbabwe v Mukoko and Anor SC805-17, 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.
(ii) 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.
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…, where GUBBAY ACJ…, 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.”
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 of the Legislature. In this respect, I associate myself with the sentiments of TSANGA J as expressed in the case of Madzara v Stanbic Bank Zimbabwe Limited and Others HH546-15 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.”…,.
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.
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.”
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.'”…,.
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!”
Order in the Courts: Judicial Activism and Restraint, 1997, Legal Forum…,.
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 in the case of Madzara v Stanbic Bank Zimbabwe Limited and Others HH546-15 “requires informed dialogue and the legislator's engagement with relevant stakeholders on what would be realistic.” Thus, thorough, systematic legislation informed by views garnered from consultation with relevant players and stake-holders 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….,.
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.”
