Civil
Trial
MAFUSIRE
J:
[1] For
31 years the plaintiff and the defendant lived together as husband
and wife in an unregistered customary law union (“the
union”).
During the subsistence of the union the parties acquired a sizeable
number of assets, both movable and immovable. The plaintiff said they
pooled their resources and acquired those assets jointly. The
defendant denied there was any such pooling of resources, and said
that each of them acquired their own assets separately. He further
said on the dissolution of the union the plaintiff took the bulk of
such items as she herself had acquired.
[2] The
trial before me was the plaintiff's claim for a redistribution of
some of the assets acquired during the subsistence of the union. The
claim was based on unjust enrichment. In the summons she claimed a
lot more property. However, at the pre-trial conference, evidently
with the direction and guidance of my Brother Mawadze J who presided
over it, the parties reached agreement on the distribution of some of
the assets that originally were in contention. The agreement was
this:
(i)
Of the 10 goats, each party to get 5 each;
(ii)
Of the building materials, plaintiff to get 30 asbestos sheets; 6
window frames and 6 door frames, and the defendant to get the
remainder (not specified), (originally the plaintiff claimed 20
asbestos sheets; 4 door frames and 3 window frames);
(iii)
Of the household goods and effects, plaintiff to get a 4-piece lounge
suite; 1 table; 3 chairs; 4 blankets; 7 pots, water tins, dishes,
plates, 10 chickens; 5 turkeys and 1 display unit.
[3] In
passing, I make the comment that for a whole machinery of justice to
be called upon to sit in judgment over pots, plates, chickens and
turkeys, items over which the parties reasonably ought to have agreed
between themselves and their legal practitioners, betrayed
unnecessary stubbornness and vindictiveness.
[4] What
remained for trial were these issues:
(i)
How many cattle were there? Plaintiff said 30. Defendant said 14. Was
the plaintiff entitled to a share of the cattle? Plaintiff said yes,
and wanted 15, but would go down to 10 if it was shown they were only
14. Defendant said plaintiff was not entitled to any cattle, but was
willing to donate to her 1 cattle ex
gratia.
(ii)
How should the irrigation equipment, comprising a 'Jojo'
water tank and equipment installed at the former 'matrimonial'
home in rural Masvingo be redistributed? Plaintiff placed on it a
value of $10,000 and claimed half of that. Defendant said the whole
equipment, comprising the tank itself ($500); solar pump, panels and
stands ($2,800); pipes; sundries and labour, all cost $4,000 to
install. He said he was willing to refund plaintiff no more than
$1,000 which was her direct contribution.
(iii)
Were there 4 beds and 2 mattresses? How were these to be shared?
Plaintiff said there were 4 beds and 2 mattresses and that she was
entitled to 2 beds and 1 mattress. Defendant said there were no more
beds for redistribution as he had donated one to a daughter, taken
another to a town house and that none of those beds had any
mattresses. Nonetheless, he was willing to offer the plaintiff 1 bed.
(iv)
Was an immovable property known as Stand 6681 Victoria Ranch,
Masvingo that the plaintiff had been purchasing from some housing
co-operative still available to her? Plaintiff said it had been
re-possessed for failure to pay the instalments. Defendant said it
was still registered in the name of the Plaintiff and was hers.
Although none of the parties was laying claim to it, the defendant
wanted it taken into account in the re-distribution matrix.
(v)
Should the immovable property known as Stand 19691 Chipembwe Street,
Rujeko C, Masvingo (“the
Rujeko house”),
registered in the name of the defendant, be awarded to the plaintiff
in its entirety, or shared? The plaintiff claimed it all on the basis
that she had also contributed to its acquisition and development and
that the defendant had been awarded their former 'matrimonial'
rural home which had been fully developed. Defendant denied plaintiff
was at all entitled to the Rujeko house or any share of it given that
she had not in any way contributed to its acquisition or development,
except for a once-off supervision of the offloading and counting of
bricks, a task for which he would be willing to make an ex
gratia
payment of $500 (five hundred dollars). Of the rural home, the
defendant said the plaintiff could not possibly award him a communal
lands property because it is State land, and that she had made no
contribution to its development. Furthermore, the plaintiff had
secretly acquired an immovable property of her own, known as Stand
3238 Victoria Ranch, which she had concealed from the pool of the
assets to be re-distributed.
[5] The
parties approached the case from various angles to justify their
individual stances. These included the constitutional provisions; the
general law of the land; their direct or indirect contributions; the
law of equity as well as their treatment of each other during the 31
years of their union.
[6] In
essence, the plaintiff said at first she was unemployed. But
eventually she had improved herself by acquiring secondary and
tertiary education, thanks to the financial assistance given her by
her parents and siblings. She had eventually qualified as a school
teacher. She made direct and indirect contribution to the acquisition
and development of their various assets. With the irrigation
equipment in particular, she had given the defendant some money
towards the drilling of a borehole. During the subsistence of the
union she was expending all her income towards the running of the
household in food, school fees and other necessaries. Above all, she
was cooking for the family and the builders during the construction
of the rural home. She also looked after the cattle and other
livestock in times when there were no herdsmen. She said the law of
the land recognised such contribution in the re-distribution of
assets in the event of dissolution of an unregistered customary law
union. She claimed the defendant was abusive, at times violent and
that he was so stingy that he would count the number of slices of
bread the family should consume.
[7] In
counter, the defendant said he was a very hard working person. He
said even as he was still in secondary school he had managed to
acquire some cattle of his own. He said the education and employment
that the plaintiff was now flaunting was due to his singular effort.
Not only had he conceived the idea that she should improve on her
education after she had failed secondary school, but also that he had
encouraged her to pursue further studies which he himself proceeded
to sponsor. The defendant said the plaintiff kept her money to
herself except on the one instance that she had given him an amount
towards the irrigation equipment. His family was self-sufficient in
food and other necessaries, thanks to his industry and prudent
budgeting. He always employed herdsmen for the livestock. The
plaintiff continuously complained of ill-health which forced him to
employ domestic aid.
[8] The
defendant got his nephew, Pardon Chiware, and his (defendant's)
sister, Vinegar Chiware, to testify in support of the narrative that
he was a very hardworking person. They said of the cattle in his
kraal and on the stock card, only 14 belonged to him. The rest
belonged to other people, like his deceased mother and one of his
deceased nephews.
[9] I
have considered it largely unhelpful, and even futile, to try and
recall the parties union of 31 years duration, place it under a legal
microscope and scrutinise who earned what salary, who paid for what,
who had been the more hardworking, and the like. Thirty one years is
by all accounts a very long time. At times during trial there were
some gratuitous attempts by the parties to interest me with who had
wronged who and in what manner; who had caused the breakup of the
union and, in some cases they both hinted at episodes of
unfaithfulness towards each other.
[10] Redistribution
of assets in a matter like this is not a matter of metaphysics. A
plaintiff cannot be required to establish with some mathematical
precision the causal link between his or her contribution, in cash or
kind, to the acquisition of the assets and their subsequent
appreciation or depreciation in value. After all is said and done the
matter calls for a sensible retrospective analysis of what would
probably have been the contribution of each party, what would be
expected to occur in the ordinary course of human affairs.
[11] I
have considered the evidence placed before me in its totality. I have
discounted the parties emotional hyperbole evident from the breakup
of the union. The parties must appreciate that divorce or the breakup
of any conjugal relationship is costly. It is a drain on resources.
It is a drain on emotions. It strains social relations. It costs
money. Even though the dissolution might have been inevitable and
probably the only reasonable way out of an impossible situation, it
was nonetheless retrogressive. The parties were destroying what they
had built over the years. It is therefore naïve for the one to think
that in parting ways they could get all what they want or what they
perceive to belong to them, and for the other to think that they can
retain all what they claim belongs to them.
[12] My
decision in this matter is largely common sense. It is a value
judgment. The parties invested their lives, their emotions, energy
and resources in a conjugal relationship that lasted 31 years. By
African custom, they were duly married. The relationship produced
three children, all of them now grown up. The defendant thinks the
plaintiff is being greedy and wants to reap where she did not saw. He
insists all the assets in contention were acquired by him alone. He
discounts almost to nothing the plaintiff's contribution during all
those years, though at times he was forced to make some concessions.
[13] Both
parties are, and have been school teachers. Admittedly, as
headmaster, and one in formal employment for a longer period, the
defendant's earnings and contribution to the acquisition of the
assets were greater than those of the plaintiff. But beyond these
general observations I have avoided getting bogged down in the nitty
gritty of how each asset was acquired. The plaintiff is definitely
entitled to more than what she has already got and what the defendant
is offering. As to how much that is will be my value judgment as
explained below.
[14] In
the final analysis, my award is as follows:
[i] Cattle
They
were 30 when the plaintiff left. They are now 28. This is clear from
the plaintiff's evidence and the stock card, marked exhibit 8. The
plaintiff has failed to prove all 28 belong to the defendant. I am
satisfied from the defendant's evidence that only 14 belong to him.
Of these, plaintiff wants 10. That is too much. The defendant offers
1. That is too little. Given her efforts in generally looking after
the union's household and tending to all aspects including
livestock, and given the benefit that she herself must have derived
from the livestock, like drought power and milk, I consider a fair
award to the plaintiff to be 4 cattle, or their monetary value.
[ii] Beds
and Mattresses
I
accept the plaintiff's evidence that there were an extra 4 beds and
2 mattresses when she left. The defendant said he donated one of the
beds to their daughter. That was his generosity, but should obviously
not be at the plaintiff's cost. I have not accepted that the beds
had no mattresses. I accept the plaintiff's evidence that these
were items that the family had been using. Therefore, the plaintiff
should be entitled to 2 beds and 1 mattress, or their monetary
values.
[iii] Irrigation
Equipment
The
defendant demonstrably tried to downplay the value of the irrigation
equipment. This probably stemmed from the plaintiff's persistent
reference to the 'Jojo'
tank which cost only $500. But it was clear the plaintiff was
claiming half the value of the irrigation equipment and system as a
whole. The plaintiff claimed $5,000. The defendant offered $1,000.
Obviously with depreciation and appreciation the replacement value
should be far different now from the installation cost. I consider
the plaintiff should be entitled to one-third of the value of the
equipment at the time of this judgment.
[iv] Stand
19691 Chipembwe Street, Rujeko C, Masvingo
I
reject the plaintiff's claim for the whole house. But I also reject
the defendant's offer of a paltry $500. I accept the plaintiff's
evidence that Stand 6681 Victoria Ranch was repossessed and therefore
cannot be taken into account in the redistribution matrix. I accept
the defendant's evidence that the plaintiff acquired the other
property, Stand 3238 Victoria Ranch during the subsistence of the
union, despite the fact that the formal allocation agreement, exhibit
3, is post the breakup of the union. The agreement is dated 3 May
2017. The union broke up in April 2017.
I
also take cognisance of the fact that apart from the fully developed
rural homestead that the defendant retains, he also has another
property, Stand 6725 Victoria Ranch. There were allegations by the
defendant that the plaintiff did not refute that she also has a
counter bottle in the rural areas. So taking all these factors into
account I consider that a fair award to the plaintiff in respect of
the Rujeko house is one third of its value at the time of judgment.
[15] My
judgment has to be efficacious. The defendant must deliver or pay
within defined time limits. But he must know what to deliver or how
much to pay. Unless the parties are able to reach agreement by
themselves, it is necessary for the court to fix these. But there is
no information to guide me. I have no evidence of the defendant's
capacity. But that should not be a deterrence to a judgment that is
effectual.
[16] Therefore,
I direct that unless within thirty (30) days of the date of this
judgment the defendant complies by delivering to the plaintiff the 4
head of cattle; the 2 beds and 1 mattress, and paying her the
stipulated values of the irrigation equipment and the Rujeko house as
shall have been agreed upon by the parties within the same time
frame, the plaintiff shall be free to approach the Registrar of this
court, or her Deputy, to appoint evaluators for the assessment of the
values of the awards due to her in terms of this judgment, whereafter
the defendant shall comply within a further sixty (60) days from the
date the evaluation report is made available.
[17] Both
parties claimed costs of suit, the defendant on an attorney and
client scale. The Plaintiff has largely been successful, but only to
the extent of roughly a third of her original claim. Therefore, she
should be entitled to a third of her costs.
[18] In
the final analysis the operative part of this judgment reads:
Judgment
be and is hereby entered for the plaintiff as indicated below.
(a)
The following assets are awarded to the plaintiff:
(i)
four (4) head of cattle;
(ii)
two (2) beds;
(iii)
one (1) mattress;
(iv)
one-third of the value of the irrigation equipment installed at the
defendant's rural homestead at Nemarundwi, Zimuto, Masvingo;
(v)
one-third of the value of the immovable property situate Stand 19691
Chipembwe Street, Rujeko C, Masvingo.
(b)
Unless within thirty (30) days of the date of this judgment the
defendant delivers to the plaintiff the awards aforesaid, or pays the
values thereof in the ratios stipulated as shall have been agreed
upon by the parties within the same time frame, the plaintiff may
approach the Registrar of this court, or her Deputy, to appoint
evaluators for the assessment of the values, whereafter the defendant
shall pay within a further sixty (60) days from the date the
evaluation report is made available.
(c)
The defendant shall pay one-third of the plaintiff's costs of suit.
7
January 2019
Legal
Resources Foundation,
plaintiff's legal practitioners
