Division of Assets of the Spouses re: Cohabitation and Customary Law Union

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.

The plaintiff listed her grounds of appeal as follows:

“The learned Magistrate erred in awarding the Appellant only 15% of the value of the property with regard to the following factors:

1. The appellant's contribution to the acquisition of the immovable property, and subsequent construction of the house, whether financially, directly or indirectly, have been undermined, including -

1.1 Appellant's supervision of builders, during the construction period throughout, whilst the Respondent was away from home.

1.2 Appellant's total commitment where she would go on foot to buy most of the building material from Makoni Home Industry and the Builders Market using a push cart.

1.3 Appellant foregoing her social life during the period of construction of the property.

1.4 Appellant's contribution in selling goods brought home by Respondent for resale to raise capital for the construction of the house.

1.5 The parties lived together during which period the Appellant gave the Respondent social well being, companionship, peace of mind, and confidence much that while in his absence the Appellant would be trusted to commit herself to the construction of the property.

2. The learned Magistrate erred in finding that after consideration of the factors outlined in paragraphs 1.1 – 1.5 above, the Appellant deserved a paltry 15% of the value of the property.”

The appellant then prays for a “substantially higher percentage which is both fair and reasonable and commensurate with her contributions” and costs.

In a notice of amendment of grounds of appeal, the appellant submitted the following additional grounds of appeal:

“3. The court a quo erred in failing to make an analysis of the choice of law in order to provide for the application of General Law.

3.1 As a result, the court a quo erred in failing to apply the principle of tacit universal partnership which was the only legal regime available in order to do justice to the parties.

4. The court a quo erred in failing to be guided by the provisions of the Matrimonial Causes Act (Chapter 5:13) in coming to its conclusion.

5. The court a quo erred in dismissing the Appellant's evidence that her brother assisted the parties financially on the basis that the brother can claim his money from the Respondent.”

The appellant also amended her prayer by deleting the original one and substituting it with one calling for the setting aside of the order of the court a quo and awarding her 50% of the value of the immovable property and costs of suit.

Regarding the choice of law submission, the court a quo appears to have exercised its mind over it and made the decision to proceed in terms of General Law, as shown by the following exchange in the record of proceedings…,:

“CROSS EXAMINATION (Appellant being cross examined by respondent's legal practitioner)

Q: Would you have any problems if the sharing of property is done under Customary Law and not General Law?

A: No.

Q: You confirm you don't have an antenuptial contract in your marriage?

A: Yes.

Q: Are you aware that you should have advanced reasons why you have opted this court to proceed in terms of General Law at the expense of Customary Law?

LEGAL PRACTITIONER FOR PLAINTIFF (Objects): These points were raised as points in limine which he later waived. It is also filed of record that after that the matter was referred to Pre Trial Conference for matter to proceed to trial.

LEGAL PRACTITIONER FOR DEFENDANT: I am not referring to points in limine. This court is a Civil and Customary Law Court, and, even if plaintiff has chosen Customary Law, this court was still going to have this procedure. In Mashingaidze's case 1995 (1) ZLR 219, that was stated and I will hand over to court.

COURT: Objection sustained.”

Therefore, the ground of appeal raised by the appellant, in paragraph 3 above, falls away.

Regarding the direct applicability of section 7 of the Matrimonial Causes Act, the respondent is correct in pointing out that the marriage regime in casu is not recognized in that provision, but, the provision can be used as a useful guidance when all the other pre-requisites are met.

However, in seeking to raise the choice of law issue again in heads of argument, the respondent is in error. Had he intended to challenge the basis upon which the court a quo had proceeded, the respondent should have raised the point by way of a cross-appeal, which, in this case, he has not.

It is clear, therefore, that the court a quo proceeded on the basis of General Law principles, with the consent of both parties, and sought to answer the question pertaining to the percentage of the value of the immovable property the appellant was equitably entitled to.

The plaintiff's closing submissions also confirm this, wherein it is stated thus:

“Defendant raised some points in limine citing that the claim was not properly placed before the Honourable Court; for the sake of progress, the Defendant later waived the objections in limine based on the choice of law Mashingaidze v Mashingaidze 1995 (2) ZLR 219, and, by consent, the parties agreed to have the matter tried before this Honourable Court.”…,.

In Chapeyama v Matende & Anor 2000 (2) ZLR 356…, it was held as follows:

“I therefore come to the conclusion that the judgment of the learned trial judge would have been clearer if it had set out the following two consecutive findings, that:

(a) This is a matter where the justice of the case required, in terms of section 3 of the Customary Law and Local Courts Act [Chapter 7:05], that the General Law be applied;

(b) The elements of a tacit universal partnership have been established and that in considering the division of property under that concept useful guidance can be found in the provisions of section 7 of the Matrimonial Causes Act [Chapter 15:13].

It is, however, clear that the learned judge dealt with the distribution of the property between the parties as if he had made those specific findings. In the circumstances, I see no reason to interfere with the decision in that respect.”….,.

I respectfully associate myself with the above opinion, which, at any rate, is binding on this Court.

In dealing with the distribution of the immovable property which is the dispute in casu, the trial court proceeded as if it had made those findings and came to the conclusion that it did.

Many judgements of this Court, and indeed the Supreme Court as well, have rued the fact that where an unregistered customary law union is concerned there is no direct application of the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13]. See, for example, Mashingaidze v Mugomba HH03-99; Chapendama v Chapendama 1998 (2) ZLR; and Chapeyama v Matende & Anor 2000 (2) ZLR 356 where it was stated:

“It is clear that the learned trial judge felt compelled to apply those provisions (section 7 Matrimonial Causes Act) as a guide in the situation stated above, because of what he properly considered would have been an injustice done to the first respondent if Customary Law was applied. He, however, ought to have justified this intervention on the basis of section 3 of the Customary Law and Local Courts Act [Chapter 7:05] and not on what he stated as the court's reformative duty to interpret Customary Law progressively so as to adapt it to the changing social and economic conditions.”

Thus, just to add one's voice to the chorus of calls for legislative intervention in this area, women litigants in unregistered customary law unions seeking equitable relief in the distribution of property on the dissolution of their marriages have been knock, knock, knocking on heaven's door of section 7 of the Matrimonial Causes Act for far too long with varying degrees of success. More often than not they have had the door slammed shut in their faces. Occasionally, they have had the indignity of being grudgingly served from the side-door or even the window. Isn't just time, right now, that this forbidding door was thrown wide open for them as well?

As was pointed out in Chapeyama v Matende & Anor 2000 (2) ZLR 356…,:

“A 'divorce' under the regime of an unregistered customary law marriage is no less a divorce for the parties. It puts an end to co-habitation. It puts an end to other reciprocal obligations of the parties. It is a divorce in everything but name.”

Now, in considering the award of the court a quo, an Appellate Court, such as this one, cannot interfere with the decision of the lower court, unless the trial court exercised its discretion erroneously or if it allowed extraneous or irrelevant matters to guide or affect it, or if it mistook the facts or did not take into account some relevant considerations.

In connection with the division of the immovable property, the lower court reasoned as follows:

“From the evidence adduced, the Plaintiff testified that she was a housewife but everything was acquired during the subsistence of their marriage with defendant and therefore she deserved an equal share of both movable and immovable properties. Plaintiff also submitted that her brother…, used to assist the couple with money specifically for the construction of immovable property…,. Defendant also conceded that during the union the parties acquire an immovable property, being Stand number 16791 Zengeza 4, Chitungwiza. However, defendant testified that he acquired the Stand by his own sole means and also built the same. He even denied getting monetary assistance from plaintiff's brother.”…,.

And, further:

“Defendant, however, wants to share the immovable property with 3 of his ex-wives saying they haven't claimed anything. However, according to the court's view that will be unfair because the Stand was acquired during the matrimonial union with the Plaintiff in case and that means she is the only one with a claim over the property.”

An objective analysis of the contribution of the parties to the acquisition and development of the property shows that:

(a) While the respondent played the greater role in the acquisition of the Stand, by providing the bulk of the financial resources, the appellant also played a significant role, directly and through her brother, in the acquisition, and even a more decisive role in the development of the Stand, and did not seek to exaggerate her contribution in her evidence. See, for example, p.25 of the record:

“Q: You said that your brother gave you $40 million?

A: No, he gave me $28 million and defendant $140 million.

Q: Do you have any evidence to that effect?

A: What I am saying is true.

Q: Do you know the negotiations leading to the purchase of the Stand?

A: Yes.

…,.

Q: What other amount did you borrow from your brother?

A: We borrowed $20 million and whole lots of money.

Q: You said you borrowed $20 million for stones and cement. Is that correct?

A: No, because there was the other R1,000 I used to buy cement.

Q: What was $20 million for?

A: To pay the builders.

Q: You also confirm that the defendant used to send money for building materials?

A: Yes.

Q: Who was cooking for builders?

A: Me.”

(b) The respondent was a cross-border truck driver, and was, more often than not, outside the country and used to send some money to the appellant to purchase some of the building materials. The appellant, as is clear from the evidence above, would use her own initiative, including borrowing from her own brother, in order to purchase some of the required material. She would also sell items sent by the respondent for re-sale in order to raise additional resources.

(c) The court a quo, therefore, erred in failing to take into account money sources from the appellant's brother as the appellant's direct contribution to the acquisition and development of the Stand. The court further erred in assessing her own direct contributions in purchasing building material, supervising, and cooking for the builders, and raising additional resources as amounting to only 15%.

The court correctly rejected the argument that the other three former wives were entitled to shares in the immovable property.

Taking all the above factors, I am of the considered view that the assessment of the appellant's share of the immovable property, by the trial court, was on the low side.

In Murehwa v Murehwa HC2867/08 a wife whose contribution was merely supervising and cooking for builders was awarded 60% of the matrimonial home against the husband's 40%.

In the present case, the direct contribution of the appellant would entitle her to at least 50% of the immovable property. If one were to seek further guidance from the provisions of section 7 of the Matrimonial Causes Act, her share would increase even further. It is not necessary to do so in this case. She has claimed a fifty percent share, and, on the basis of the above analysis, she is perfectly entitled to it.

Accordingly, the appeal succeeds with costs, and it be and is hereby ordered as follows:

(a) The order of the court a quo is set aside and substituted with the following:

“The plaintiff be and is hereby awarded 50% of the value of Stand 16971 Zengeza 4 and costs of suit.”

(b) The respondent shall pay the cost of this appeal.

HH60-11 : CONSTANTINE MABAUDI vs VIOLA MHORA
Ruled By: KARWI J and CHITAKUNYE J

This is an appeal against the order of the Magistrate in the court a quo. The grounds of appeal are that the learned magistrate in the court a quo had erred and misdirected herself in not raising meru motu the issue of jurisdiction as the claim was in excess of the jurisdiction of the ...

This is an appeal against the order of the Magistrate in the court a quo.

The grounds of appeal are that the learned magistrate in the court a quo had erred and misdirected herself in not raising meru motu the issue of jurisdiction as the claim was in excess of the jurisdiction of the Magistrates Court. It was further contended in the notice of appeal that the learned magistrate had misdirected herself by failing to appreciate that as Stand 633 Fletcher Road, Norton had been acquired from a previous marriage and had since been sold. The appellant did not own Mitengo Farm in Marondera but that the said farm was owned by Mitengo Estate (Private) Limited Company in which the appellant has shares, and, as such, should not have been part of any award. It was also part of the appellant's grounds of appeal that the learned magistrate had misdirected herself by failing to take cognizance of the fact that respondent did not make contributions towards the purchase of the property in Zimre Park, Ruwa, and, as such, should not have been subject of any award. The last ground of appeal was that the learned magistrate had erred by awarding the respondent the Honda Civic as it was solely acquired by the appellant and the respondent had been paid $500,000=.

The background of this matter is that parties had been living together without a marriage of any sort. The parties were simply cohabiting between September 1996 to March 2004. It is common cause that the respondent had misled the appellant into believing that she was not married when, in fact, she was married to one Govati Mhora. She had got married to Mr Mhora in 1993 in terms of the Marriages Act [Chapter 5:11] which marriage was only dissolved on 5 November 2004.

There was thus no customary union of any kind, registered or unregistered.

There had not been any observance of customary procedures like the payment of lobola in a lump sum or instalments to the family of the respondent by the appellant. It would appear that the two led independent lives from the other and only met at the time of their physical needs. This is confirmed by the fact that the respondent actually got married to Mr Mhora in 1993 at a time during which she was cohabiting with the appellant.

The facts of this matter would further show that after the two parties cohabitation ended in 2004, and after the respondent had refused to move out of the house they had been staying in Ruwa, Harare, the appellant issued summons out of the Magistrates Court seeking an order for the distribution of their property between themselves. The two had been blessed with one minor child who had been born in April 2001.The matter was tried at the Magistrates Court after which an order was granted which order awarded the parties different pieces of property. The appellant was aggrieved by the award of the Honda motor vehicle, a computer and a 35% share in Stand 5579, Zimre Park, Ruwa to the respondent.

He then lodged this appeal.

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

This is an appeal against a judgment by the Mutare Magistrates' Court delivered on 16 June 2009. The appellant appeals only against the award made in relation to the immovable property. In the grounds of appeal the appellant attacked the magistrate's findings that she was only entitled to a 5% share in the property ...

The facts giving rise to this appeal may be summarized as follows:

The parties entered into an unregistered customary law union in 1996. Two children were born out of this union. An immovable property as well as various movables were purchased by the parties during the period that they lived together. In 2007, the parties commenced to live apart because of differences which had arisen in their relationship. A full trial was conducted before the trial court and an order was made in the following terms:

“1. By consent, a decree of divorce is hereby granted.

2. By consent, the plaintiff, Plaxedes Mukondo, is awarded custody of the minor children, Nyaradzo Zengeni and Rutendo Zengeni, subject to the defendant's reasonable rights of access over every school holiday.

3. Of the moveable property of the marriage, the plaintiff is awarded all the property in her particulars of claim except the upright refrigerator, the double bed, wooden chairs and the sofas which are awarded to the defendant being property he acquired by the defendant prior to his marriage to the plaintiff.

4. Of the immoveable property known as 1392 Chikanga 1, Mutare the plaintiff is awarded 5% of the total value of the immoveable property and the defendant is awarded the remaining 95%. The value of the house is to be assesses by an evaluator mutually agreed upon by both parties and each party is to contribute 50% towards the cost of evaluation. Either party can buy the other out in an amount equivalent to the percentage awarded by the court of the cost of the immoveable property.

5. Each party to bear its own costs.”

In this case, both legal practitioners, properly in my view, conceded that that the appeal should be allowed and the judgment of the court a quo set aside for the reasons set out below. It is for that reason that I will not dwell on the merits of the appeal as had been raised in the appellant's grounds of appeal….,.

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA
Ruled By: MATHONSI J

The plaintiff instituted proceedings against the defendant alleging, in the declaration, that the two (2) were customarily married in 1998 and that during the subsistence of that union they acquired items of property, namely, Stand 4013, Nkulumane, Bulawayo, Mazda 323 motor vehicle, fridge, stove, kitchen unit, colour television, cellphone and line and lounge suit. He averred ...

He averred that the parties had entered into a universal partnership to own the property in question jointly and that as the union has been dissolved he was entitled to a share of that property. He claimed 60% of Stand 4013, Nkulumane, Bulawayo, a 6 roomed house, which, at the time it was purchased in January 2003, was a ''match box house'' of 3 rooms. He also claimed a lounge suit. In further particulars he supplied at the behest of the defendant, the plaintiff averred that it was only on 14 December 2003 that the customary union was formalised and that Stand 4013, Nkulumane, Bulawayo was purchased for Z$8,000,000= which was paid in instalments. He further averred that the Mazda 323 motor vehicle was purchased from the defendant's uncle for Z$4,000,000.

The defendant contested the claim averring, in her plea, that she did not enter into a customary union as alleged as she was only fifteen (15) years old in 1998 and therefore incapable of contracting. She denied ever entering into a universal partnership with the plaintiff or ever purchasing any property with the plaintiff.

At the pre-trial conference held before a Judge, the issues for trial were identified as follows:

1. Whether the parties were customarily married during the period specified in the declaration.

2. Whether the parties pooled their resources together to form a partnership and bought the property set out in the declaration.

3. Whether the defendant was unjustly enriched at the expense of the plaintiff.

4. Whether it would be just and equitable, in the circumstances, to divide the property as claimed by the plaintiff.

The plaintiff gave evidence, and, in the process of doing so, he abandoned his claim to the movable property and appeared to revise his claim from 60% to 50% of the house. His evidence is to the effect that he met the defendant in 1998 and they fell in love. Soon after that the defendant's father discovered the affair and severely assaulted her before banning her from leaving their home in Luveve. She was grounded.

At that time, the plaintiff was already married to someone else, a police officer based at Western Commonage police station, in terms of the Marriage Act [Chapter 5:11] which marriage did not permit the plaintiff to have a second wife.

Sometime in year 2000, he left Zimbabwe to go and work in the United Kingdom where he remained working hard 18 hours a day for 7 months trying to make as much money as possible. During that time he would send money to the defendant, via Western Union money transfer, for her upkeep. He produced 3 copies of Western Union invoices showing that he had sent to Florence Matika (defendant's sister), BP25= and to the defendant BP70= and BP50=. He went on to say that he was in contact with the defendant whom he requested to search for a house to buy and the defendant advised him that houses were then going for Z$40,000= to 45,000=. He then sent money to the defendant, surprisingly in Zimbabwe currency, in the sum of $45,000= through Abraham Chikozho. The defendant used that money to purchase a 2 roomed house in Nkulumane, Bulawayo but did not give him the details of the house, how much it had cost and did not even show him the purchase documents of the house. According to the plaintiff, the defendant informed him she had used that $45,000= to purchase the house, settle her outstanding account at Topics Store and the balance was used to set her up in a money changing business she is still engaged in to this date. Sometime in 2001, he left the United Kingdom enroute to Zimbabwe via Canada where he spent 2 months on holiday. When he finally arrived in Zimbabwe he was so busy with his company business he did not immediately find time to view the house and see the paperwork for it. On 14 December 2003, he and his relatives met the defendant's family members at their Luveve 5 house to formalise the customary union. He was charged lobola, paid part of the money and told to return at a later date to finish off what was due. He produced an unhelpful document which he claimed was written by Victor Muchichwa recording the customary transaction. Unfortunately, although he had promised to call that individual as a witness, he was never called.

After the customary union, in December 2003, he requested to be given his wife, the defendant, and together they moved to a house in Cowdray Park, Bulawayo where they commenced living together. Sometime, on an unknown date, he requested the defendant to take him to the house she had purchased which she did and he beheld a 2 roomed unplastered house being No.4013 Nkulumane, Bulawayo. They could not move into that house because the defendant told him that there were tenants who needed to be given notice.

He stated that he stayed with the defendant in Cowdray Park for thee (3) or so months before the defendant deserted while he was away in Harare. Quizzed by counsel for the defendant about the period of their cohabitation, he said he could not remember and could not dispute that it was actually only one month.

Much later, he was attending a funeral next door to the house when he discovered it had been extended to a 5 to 6 roomed house. He did not contribute anything towards the development of the house. He prayed that he be awarded 60% and under cross examination he revised that figure to 50% of the house. Asked how he could have paid lobola of 8 cattle at Z$800,000= per beast as recorded on the document he produced (which means that he paid lobola of $6,400,000=) at a time he claimed to had purchased a full house for less than $45,000=, the plaintiff mumbled something to the effect that this was a hyper inflationary period. He did not give a clear explanation….,.

The defendant also gave evidence.

She had a love affair with the plaintiff commencing in 1998 when she was still 15 years old. The plaintiff left for the United Kingdom in 2000 and whilst there he would send her some money as gifts between lovers. She admitted receiving the $45,000= from the plaintiff through her sister Florence Matika in 2001 and stated that the money had been brought by Abraham Chikozho who had visited the United Kingdom but it was in the form of BP30=. Her sister, who was engaged in the money changing business (before she also started doing that business herself), converted the money to the local currency and gave her $45,000=. It was not a lot of money. She used the money to settle her account at Topics Store as it had been outstanding for some time, to purchase airtime to telephone the plaintiff in the UK and the rest was pocket money. At no time did the plaintiff request her to look for a house to purchase and he certainly did not ask her to use that money to purchase any house. It was simply too little to buy a house. She had always known the plaintiff to be married although he claimed that he was on separation in the process of divorcing. She confirmed that the plaintiff also sent her some money through Western Union as a gift. The plaintiff returned to Zimbabwe and immediately started harassing her. They quarrelled when the plaintiff severely assaulted her for questioning him after he had received a call from another woman as they sat in a vehicle. After he had assaulted her, he forcibly took away from her BP50= and Z$250,000=. She then broke up with him. She was already in the money changing business when they broke up and sometime in January 2003 (after they had separated), she purchased, from one Precious Mavone, House No.4013, Nkulumane, Bulawayo which then was a ''match box'' 3 roomed house. The money she used was from her own sweat without any input from the plaintiff and the purchase price was Z$2,1 million. She paid a deposit of $1,5 million with the balance being paid in monthly instalments of $300,000=. She produced an Agreement of Sale signed between herself and the Bulawayo City Council in January and February 2003 showing that as the time she purchased the house. Months later, in November 2003, the plaintiff returned to her life and pleaded with her. They reconciled and he insisted on being introduced to her parents. Before that he took her to his home in Masvingo where his sister confided in her that the plaintiff was married. He was introduced to her parents in December 2003, did not pay any lobola because in her culture as people of the apostolic faith, lobola is unknown. All he did was to buy groceries and give her aunts some money in recognition of the introductions. She did not disclose to him that she had acquired a house during the time they had broken up. When he requested to move in with her, he did not have anywhere to take her. She then requested a relative of hers to allow them to move into her furnished house in Cowdray Park. They did not acquire any property together. Barely a month after they started living together they broke up and this time permanently. She had been given money by a client in the money changing business and the plaintiff staged a robbery which resulted in her losing all the client's money. She is so sure the plaintiff was behind the robbery because she saw him communicating with the robbers signalling where the money was in the car and he refused to drive away as the robbers closed in on them. He immediately left for Harare to spend the money while she remained behind licking her wounds. She left him….,.

It has been submitted, on behalf of the plaintiff, that the parties entered into a tacit universal partnership to own the house and that upon its dissolution the plaintiff is entitled to a share. Alternatively, that the defendant has been unjustly enriched and equity demands that the plaintiff be given a share.

The requisites of a tacit universal partnership were set out in Mtuda v Nduduzo 2000 (1) ZLR 710…, where GARWE J…, stated;

''What amounts to a tacit universal partnership has been considered in several decisions of the courts in this country and in South Africa. The four requisites for a partnership maybe summarised as follows:

(a) Each of the partners must bring something into the partnership or must bind himself or herself to bring something into it, whether it be money or labour or skill;

(b) The business to be carried out should be for the joint benefit of the parties.

(d) The agreement should be a legitimate one.

In addition, the intention of the parties to operate a partnership is also an important consideration. See Muhlmann v Muhlmann 1981 (4) SA 632 at 634; Mashingaidze v Mashingaidze 1995 (1) ZLR 219.''

In casu, the plaintiff's claim fails the first hurdle because I am not persuaded that he contributed anything. I reject the evidence of the plaintiff that the $45,000= he sent to the defendant was for the purchase of the house. His case is compounded by the fact that he did not even attempt to lead evidence to prove that the money was enough to purchase that house.

Having come to that conclusion the matter should really end there.

I wish to comment, however, on the legitimacy of the agreement which is one of the requirements for a valid partnership. For times without number this court receives litigation from the likes of the plaintiff who, while married to someone else in terms of civil rights, they proceed to purchase property for a paramour and when the relationship gets sour they still proceed, behind the back of their spouse, to litigate claiming a share of that property. Finding it difficult to premise that claim, such litigants would allege a variety of issues including a tacit universal partnership.

In my view, it is completely against public policy for such people to approach the court when in the majority of cases they would be cheating on their spouses and amassing wealth behind them. Even where an agreement exists with the paramour, such cannot be said to be legitimate as it is illegal. How can a person whom the law prohibits from having a second wife proceed to have one against the law and then approach a court of law seeking redress? In applying the principles of a tacit universal partnership, the courts cannot be seen to be legitimising what is otherwise illegitimate. Accordingly, even if the plaintiff had proved contribution in this case, his claim would still fail on the basis of illegitimacy of the agreement.

In the result, the plaintiff's claim is dismissed with costs.

HB77-11 : NUTE NCUBE vs SHEILA MAGLAZI
Ruled By: KAMOCHA J and CHEDA J

This is an appeal against the decision of the Magistrate Court sitting in Bulawayo. The parties were married to each other under customary law and stayed together for a period of six (6) years. The marriage irretrievably broke down and the trial court “dissolved” it and thereafter distributed the shares in the immovable property, ...

This is an appeal against the decision of the Magistrate Court sitting in Bulawayo.

The parties were married to each other under customary law and stayed together for a period of six (6) years. The marriage irretrievably broke down and the trial court “dissolved” it and thereafter distributed the shares in the immovable property, being 7940/16 Sizinda, Bulawayo by awarding 75% to the appellant and 25% to the respondent.The appellant has taken issue with the magistrate's decision arguing that the respondent did not contribute anything toward this property. He further argued that the court erred by awarding the respondent the following property:

1 x 4 plate stove.

7x 20 litre containers.

½ blankets.

1 new double bed.

1 black bin.

Evidence presented and accepted in the court a quo is that the parties were married under customary law and were in that union for six (6) years. At the time of the union, the appellant had already acquired a Stand which Stand they jointly proceeded to develop into a habitable house - albeit their different contributions. The trial court distributed the matrimonial assets as stated above. However, the appellant argued that the respondent should not have been awarded 25% share in the immovable property as she did not procure quotations, look after building materials and look after the appellant's minor child. He went further and argued that she did not make any financial contributions towards this house.

It is now trite law that a spouse's contribution should not only be confined to tangibles but intangibles as well. It is now settled law in our jurisdiction that our courts will not hesitate to lean in favour of women on the principle of unjust enrichment - all in the spirit of law development and justice. I dealt with this principle extensively in Ntini v Masuku 2003 (1) ZLR 638 (H); see also Mtuda v Ndudzo 2000 (1) ZLR 710 (H); Mashingaidze v Mashingaidze 1995 (1) ZLR and Chapeyama v Matende and Another 1999 (1) ZLR 534 (H).

The trial court made a correct finding as far as the parties' contributions are concerned and as such it cannot be faulted. In light of the above, I see no misdirection on the part of the court a quo, and, as such, its reason is well ground in our law and cannot attract interference.

Accordingly, the appeal is dismissed.

HB10-10 : NORAH NCUBE vs ALBERT GUMBO and REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The applicant alleged that it was all her money which was used to purchase the house in 1997 when she worked as a domestic worker. She was financially assisted by her employers to pay for the house. The respondent only came into her life in 1999 long after she had secured the house. She serviced the ...

The applicant alleged that it was all her money which was used to purchase the house in 1997 when she worked as a domestic worker. She was financially assisted by her employers to pay for the house.

The respondent only came into her life in 1999 long after she had secured the house. She serviced the mortgage single handedly. The best that the respondent did was to go and deposit the money she gave him with the Zimbabwe Building Society. She complained bitterly that the respondent, who came into the picture long after the property had been purchased, should be unjustly enriched by an award of 50% of the proceeds. He only lived with her for four ( 4) years and some months. At the end of it he got 50%. She concluded that he had been unjustly enriched grossly.

The respondent alleges the applicant accepted she was customarily married to him and he had even paid lobola to her parents in 1996. The parties met in 1993 when she was working and staying at 14 Blank Close, Emerald Hill, Harare. They had been customarily married from 1993 to 2004. She later moved to Bulawayo with her employers who settled at number 17 Westmount, Burnside, Bulawayo in 1994.

The lobola was paid to her parents at Phelela Village in Tsholotsho in 1996.

He claims to have paid $7,000= to the Zimbabwe Building Society as deposit for the house. He also paid $400= to connect electricity and $100= to the City Health Department. He used his payslip and had to write a letter explaining that he was going to be responsible for the payment of the loan. The respondent explained that he had to produce his payslip because the Zimbabwe Building Society wanted to know how the mortgage was going to be serviced. He alleged that it became necessary that he had to write a letter explaining that he would be responsible for the payment of monies to service the mortgage bond although the property was registered in the name of the applicant.

The respondent cannot be said to have been unjustly enriched in the light of the sums of money that he paid. The applicant does not say how much she paid towards the purchase of the property. She alleged that she was financially assisted by her employers without mentioning any figure. She did not produce evidence from her employers confirming her story.

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

The respondent issued summons out of the Gwanda Magistrates' Court against the appellant to which was attached an affidavit sworn to by herself and annexures to the affidavit listing property valued at US$6,730= acquired by the parties. In the affidavit, she alleged that she was customarily married to the appellant and their union was ...

The respondent further stated in the affidavit that the appellant and herself had separated two (2) years earlier and she prayed that the court should divide the property the parties acquired during the subsistence of the union….,.

During that trial, the respondent gave evidence under oath and even called a witness. The import of her evidence was to the effect that she had married the appellant in 1970 and they have eight (8) children together but the appellant chased her away. While she set out the property that they acquired together, no evidence was led at all as to how that property was acquired and how it should be shared. The appellant, although allowed to cross examine the respondent and her witness, was not accorded an opportunity to lead evidence himself. The trial magistrate went on to deliver judgment in which she concluded:

“In conclusion, the court noticed that the two were married for the past thirty years and they jointly acquired some property, though defendant says he still loves plaintiff, the court noted that the two parties had been staying separately for two years, the plaintiff(s) witness told this court that he even tried to intervene but defendant showed no sign that he still loved his sister and he was assisted by his (defendant's) son. The court therefore found that it was just to have the two parties sharing their property.”

She went on to arbitrarily share the property equally between the parties.

The appellant appealed against the judgment of the Magistrates' Court on the following grounds:

“1. The trial magistrate erred in ordering the division of 'matrimonial property' of the parties when the parties where (sic) not married to each other in terms of the Customary Marriages Act [Chapter 5:07] the only type of marriage which the Magistrates Court has jurisdiction over.

2. In any case, the alleged division of property was not fair and equitable as it made awards in excess of the property appellant owns.”

This matter is fraught with procedural irregularities.

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.

At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he had been customarily married to the appellant in 1995 which union still subsisted and that there were three minor children born of the union, namely, Perfect Dube, born on 2nd April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004.

In that affidavit, the respondent persisted in his claim for custody of the children and a division of the property between himself and the appellant.

On the 6th May 2008, he filed an additional affidavit in which he sought to amend his papers by withdrawing House No.15913 Nkulumane 12, Bulawayo from the list of the property to be shared alleging that it belonged to his employer, Delta Beverages (Pvt) Ltd.

The appellant did not file any notice of appearance to defend, neither did she file a plea or notice of opposition.

The matter was set down for hearing on the 12th May 2008 on which date some kind of a trial commenced with the appellant in attendance.

The appellant verbally told the court that she was opposed to the claim made by the Respondent and both parties gave evidence before the Magistrate.

During the trial, the respondent told the Court that he was claiming the “matrimonial house” because he acquired it with the assistance of his employer who provided a loan for the construction of a two-roomed house. The house was completed in 1997 at which point he and the respondent moved in and although he produced Deed of Transfer No.629/02 with no mortgage bond registered on it, showing that the house is in his name, the respondent maintained that the house belonged to his employer.

The appellant also testified in Court to the effect that herself and the respondent acquired the house together after which they agreed that she should go and work in Botswana to raise money to improve the house as the respondent's income was too meagre for them to develop the house. With the extra income she got from Botswana, they managed to add six (6) more rooms to the house which now proudly stands as an eight (8) roomed house.

The appellant maintained that she wanted to remain in that house with the children and should be awarded custody of the said children.

The court allowed the two elder children to testify and both of them unequivocally told the court that they preferred staying with their mother. In fact, Perfect Dube said he preferred staying with his mother because his father “does not buy vegetables”; and, although Prince Dube insisted he wanted to live with his mother he did not give reasons for that.

In its judgment, the court a quo concluded that as the parties were living together as husband and wife both contributed to the extension of the house, and, for that reason, the appellant was entitled to a share of the house.

As there appeared to be no dispute on the sharing of the movable assets, the court a quo awarded the stove, two (2) blankets, colour television, double bed, and sofas to the respondent. The appellant was awarded another stove, kitchen utensils, three (3) blankets, mosquito net, display, radio, curtains, and a room divider.

The house was shared at the ratio of 80% to the respondent and 20% to the appellant with the respondent being allowed to buy out the appellant in order to retain the house.

The respondent was awarded custody of two (2) of the children, namely, Perfect and Prince - despite their avowed preference to be with their mother; while the youngest child, a girl, was awarded to the appellant.

Unhappy with that decision, the appellant appealed to this Court on the grounds, inter alia, that the division of the assets was not equitable and that she is the better custodian parent.

At the hearing of the appeal, the appellant, who appeared in person, exhorted us to overturn the decision of the court a quo and award her a 50% share of the house and custody of all the children together with maintenance especially as the respondent has now remarried and is unable to look after the children properly in those circumstances.

This matter presents some difficulty.

The first problem arises from the fact that the matter appears to be a hybrid of trial action and application procedure. The respondent issued a summons commencing action which was supported by affidavit. This was an unacceptable mixture of procedure which was not picked by both the Clerk of Court and the trial magistrate.

Without following the Rules relating to the filing of pleadings and the holding of a pre-trial conference before a trial could be conducted, the magistrate proceeded to trial and heard viva voce evidence from the parties while also accepting affidavits filed by the respondent. As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

It is clearly incompetent for the Magistrates' Court to invent a new procedure of dealing with disputes which procedure is not provided for in the Rules of the Court and is a mixture of summons action and application procedure.

That procedure simply does not exist.

The two procedures are mutually exclusive and cannot be employed at the same time to resolve the same dispute. See Mandava v Chasweka HH42-08.

The second problem arising from this matter relates to the choice of law that was applied by the court a quo.

The respondent approached the court seeking a division of property and custody of the children. It is common cause that the parties did not have a registered marriage and that theirs was an unregistered customary law union of 15 years.

Unregistered customary law unions are still not recognised marriages in our law.

For that reason, the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13] do not apply to them.

Section 11(b)(iv) of the Magistrates Court Act [Chapter 7:10], which accords jurisdiction to the Magistrates' Court to adjudicate over divorce cases of persons married in terms of the Customary Marriages Act [Chapter 5:07], equally has no application to unregistered customary unions. See Feremba v Matika HH33-07…, where MAKARAU JP…, stated:

“The court has jurisdiction to apply customary law and can apply such law to the distribution of the assets of the parties who were in such a union. If however the court, for some legitimate reason, is not applying customary law then two further issues arise. Firstly, for it to have jurisdiction, then the value of the assets to be distributed has to be ascertained for the ordinary monetary jurisdiction of the Magistrates' Court will apply. Secondly, for a claim based on common law, a recognised cause of action must be pleaded.”

The existence of an unregistered customary law union does not, standing on its own, clothe the Magistrates' Court with jurisdiction to distribute the property of the parties because that arrangement is not a marriage for purposes of section 7 of the Matrimonial Causes Act [Chapter 5:13].

While the courts have, for some time now, been advocating for legislative intervention in protecting women who find themselves in unregistered customary unions and would have contributed towards the acquisition of the estate of such unions, see Jengwa v Jengwa 1999 (2) ZLR 121 (H) and Mtuda v Ndudzo 2000 (1) ZLR 710 (H), the law has not changed as to allow Magistrates' Court to distribute the estates of parties to an unregistered customary union in terms of the Matrimonial Causes Act [Chapter 5:13].

The import of those decisions is that the courts stand ready to come to the aid of women in such situations and will generally accept well-founded claims for a share of the estate where a proper and recognisable cause of action has been pleaded and established.

The common law principles that can be relied upon to found a claim for a distribution of the property acquired during the subsistence of an unregistered customary law union include joint ownership or partnership, unjust enrichment and/or equity.

Counsel for the respondent conceded that the trial magistrate in this matter appears to have fallen into error by applying the principles set out in section 7 of the Matrimonial Causes Act, to divide the house in the manner that she did. In doing so, she also failed to advert to the choice of law provisions set out in section 3 of the Customary Law and Local Courts Act [Chapter 7:05] and was not alive to the monetary jurisdictional limit which clearly placed the “matrimonial house” outside her jurisdiction.

This Court has stated, time without number, that the Magistrates' Court should always be careful not to fall into these errors when dealing with the estates of unregistered unions. See Mandava v Chasweka HH42-08…, where MAKARAU JP…, said:-

“It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Chapter 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce (laws) of this country. Trial Magistrates who deal with the estates of parties to an unregistered customary union tend to fall into three errors;

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered;

(ii) Secondly, they fail to advert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limits when distributing joint estates at General Law.”

This is exactly what the trial magistrate in casu did as a result of which the proceedings cannot be allowed to stand and the matter will have to be remitted to allow that court to comply with both the Rules relating to trial procedure and the law on such estates.

It remains for us to deal with the issue of custody of the minor children of the parties.

The trial magistrate allowed the two elder children to testify and they made it clear that they preferred to stay with their mother. She ignored their wishes and awarded their custody to the respondent. She awarded custody of the last born to the appellant.

What she has achieved, therefore, is not only to foist the two boys on their father against their will but also to divide the children and split them into two groups.

It is always undesirable to separate siblings who are growing up together only to please the selfish interests of their parents. This Court, as upper guardian of minor children, cannot allow this to happen. The children should be allowed to remain together as this is in their interest.

Pending the trial de novo, to determine the best custodian parent, all the three children should be given to their mother.

As the legal issues arising out of this appeal are of paramount importance, as is the interests of the children, counsel must be appointed to represent the appellant at the trial pro deo in terms of Order 5 Rule 3 of the Magistrates Court (Civil) Rules, 1980.

In the circumstances, I make the following order; that

1. The appeal is allowed.

2. The matter is hereby remitted to the Magistrates' Court for a trial de novo before a different magistrate.

3. The parties are required to file pleadings in terms of the Rules and hold a pre-trial conference before the trial.

4. The Assistant Registrar of this Court shall appoint a pro deo counsel to represent the appellant at the trial.

5. Pending the trial de novo custody of the minor children of the marriage, namely, Perfect Dube, born on 2 April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004 be and is hereby awarded to the appellant and the respondent is directed to provide adequate maintenance for the said minor children.

6. Each party shall bear its own costs.

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI
Ruled By: CHITAKUNYE J

In the alternative, the plaintiff alleged that the plaintiff and defendant entered into a tacit universal partnership and that such partnership had now come to an end. She thus sought an order:(a) Declaring that a partnership existed between the plaintiff and defendant;(b) That the plaintiff be declared the owner of assets in part 1 ...

In the alternative, the plaintiff alleged that the plaintiff and defendant entered into a tacit universal partnership and that such partnership had now come to an end. She thus sought an order:

(a) Declaring that a partnership existed between the plaintiff and defendant;

(b) That the plaintiff be declared the owner of assets in part 1 and the defendant owner of assets in part 11 of her schedule;

(d) That the defendant pays costs of suit.

In his plea, the defendant did not challenge the basis upon which a decree of divorce and other ancillary relief was being sought. He equally did not see anything amiss in the alternative claim. He only disputed assertions that the plaintiff had contributed towards the purchase of the assets to be distributed in terms of the Matrimonial Causes Act [Chapter 5:13].

The approach by the parties was as if their living together was recognized as a valid marriage in terms of the law hence they were now seeking a decree of divorce, to be awarded custody and to have their assets distributed in terms of the Matrimonial Causes Act [Chapter 5:13].

At a pre-trial conference the following was agreed -

1. Maintenance

1.1 That the defendant shall pay school fees, levies and transport and shall further buy uniforms for the minor children of the marriage;

1.2 The plaintiff shall pay the medical bills, buy groceries, pay the housemaid and shall do any other duties of a mother to her children.

2. All the other issues shall be dealt with by the trial court.

The issues referred to trial included:-

1. Whether or not the plaintiff contributed directly or indirectly towards the purchase of any properties listed in Annexure A attached to the plaintiff's declaration, if so, what was the extent of the direct or indirect contribution?

2. Whether or not it is in the best interest of the minor children for custody to be awarded to the plaintiff.

None of the issues dealt with the nature of the relationship between the parties. As a consequence, both parties never addressed their minds to that aspect.

On the date of trial, counsel for both parties indicated that the parties had settled all issues except the issue of custody. Counsel did not, however, indicate the basis upon which the settlement had been reached. For instance, was it on the basis of a valid marriage or a recognition that they were in a tacit universal partnership, or was it a purely out of court settlement without the need to prove a particular cause of action or legal basis for the distribution of the assets.

In the absence of evidence of the basis upon which the parties settled, this court will only take the settlement as a purely an out of court negotiated settlement based on the parties understanding of their relationship.

I say so because from the pleadings filed of record, and the evidence led in court, there was no evidence of a valid marriage as recognized by law nor was a tacit universal partnership proved.

The evidence from both parties showed clearly that their union had not been solemnized either, in terms of the Marriages Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:08]. The evidence, however, showed that the two had gone through the requisite customary law rites in establishing their union. They lived as husband and wife in terms of an unregistered customary law union.

Section 3 of the Customary Marriages Act [Chapter 5:07] states that:

“3(1) subject to this section, no marriage contracted according to customary law, including the case where a man takes to wife the widow or widows of a deceased relative, shall be regarded as a valid marriage unless —

(a) Such marriage is solemnised in terms of this Act; or

(b) …,.

(d) ….,.”

Accordingly, the parties' union was not a valid marriage in terms of the law but an unregistered customary law union. This court does not grant a decree of divorce where parties are in an unregistered customary law union. It was thus improper for the plaintiff to have sought a decree of divorce from this court.

The provisions of the Matrimonial Causes Act [Chapter 5:13], on the distribution of assets of the spouses, have no direct application in such cases. This court has stated on a number of occasions that a party's recourse is to plead a legally recognized cause of action based on the circumstances of each case.

In Feremba v Matika 2007(1) ZLR 337…., MAKARAU J reiterated that -

“This court has, on a number of occasions, exhorted legal practitioners to always plead a recognized cause of action for the distribution of assets of parties in an unregistered customary law union.”

As the issue of distribution of assets is no longer before me the above should only act as advice to counsel for future reference.

1. The movable property shall be distributed according to the parties' agreement as follows:

(a) For plaintiff –

i) 24 inch Colour Television;

ii) Kitchen Utensils;

iii) Microwave;

iv) 2 Rice Cookers;

v) 1 VCR;

vi) Baby tender;

vii) Door wardrobe;

viii) Coat beds;

ix) Metal kitchen unit;

x) 1 maroon carpet;

xi) 2 DVD players

xii) Black leather lounge suite;

xiii) Coffee tables;

xiv) Black room divider;

xv) Dining room suite with dresser;

xvi) 1 rug;

xvii) 1double bed;

xviii) 1 3CD Changer Radio;

xix) Telephone desk.

(b) For defendant:

i) 1 Cream Lounge suite;

ii) Chateau bedroom suite;

iii) Computer;

iv) Computer desk;

v) Washing machine;

vi) Piece bedroom couch;

vii) 1 Rug;

viii) 1x 3CD Changer Radio;

ix) Toyota Corolla motor vehicle;

x) 24 inch colour television set;

xi) 29 inch colour Television set;

xii) 1 VCR;

xiii) King size bed.

Each party shall bear its own costs of suit.

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

The second error related to the fact that although the parties stated that general law principles should apply to their case no recognized cause of action was pleaded in their papers. I can do no better than refer to the case of Feremba v Matika 2007 (1) ZLR 337 where MAKARAU JP…., stated as ...

“I repeat that exhortation herein to all trial magistrates before whom a claim as the one in this appeal comes. It is this: where one party to an unregistered union seeks to have the joint estate distributed before a Magistrates Court, a justification for not applying Customary Law must be made and accepted by the court using the choice of law considerations listed in section 3 of the Customary Law and Local Courts Act [Chapter 7:05]. When General Law is the correct choice, then a recognized cause of action must be pleaded. Such a cause of action may be unjust enrichment, a tacit universal partnership or joint ownership. An averment merely to the effect that the parties were in an unregistered customary union is not sufficient to found a cause of action at General Law. Trial magistrates must be wary of this procedural aspect of the matter.”

In this case, the particulars of claim confuse a marriage and a customary union and use the terms interchangeably throughout the pleadings. The parties stated, in their pleadings, that the application of Customary Law to their case would cause an injustice and asked the court to apply the General Law. However, they then failed to set out the bases of the claim under General Law. The court a quo, in its judgment, having realized the deficiency in the claim before it sought to introduce a cause of action on behalf of the plaintiff. This was misdirection by the trial court, and I, again, urge both legal practitioners and trial magistrates to ensure that where they are dealing with an unregistered customary union and the parties wish General Law principles to apply to their case, there are proper pleadings upon which an award can be made.

HB42-13 : LILIAN MOYO vs DOUGLAS CHIDUMO
Ruled By: NDOU J and KAMOCHA J

The parties were living together between 1988 and 2006. During this period, the appellant acquired and registered, in her name, property known as 23383 Pumula South, Bulawayo. The parties were neither married in terms of the Marriage Act [Chapter 5:11] nor the Customary Marriages Act [Chapter 5:07]. In the Magistrates' Court, the issue was whether the parties had conducted an unregistered customary law union. The trial magistrate held that there was such unregistered customary law union. As a consequence of that finding the court divided 23383 Pumula South, Bulawayo between the parties as follows: 60% for the appellant and 40% for the respondent.

The appellant's case is that the parties were not married and were not in an unregistered customary law union. Her case is that the parties were in a lengthy cohabitation relationship. Such cohabitation did not result in any legal rights attributed to a marriage in terms of the laws of Zimbabwe.

The issue for determination was primarily whether the respondent married the appellant in terms of the Shona custom. This is so because the cause of action is premised on the existence of an unregistered customary union between the parties. In order to be successful in either General Law or Customary Law suit, the plaintiff must plead a recognizable cause of action. In my view, the fact that the parties had a lengthy concubinage does not clothe anyone of the parties with a cause of action in terms of customary law which was used as the basis for the claim in the court a quo. The trial magistrate, in her judgment, made scant findings on the demeanor of the witnesses who testified. This is not surprising because the magistrate misdirected herself in her judgment when she stated:

“…, it is common cause that the parties lived together as husband and wife for a long period of 18 years and that no children born out of this union.”

This is a material misdirection as the parties contested the issue.

The appellant testified that there was no marriage, registered or unregistered between her and the respondent. She was cross-examined at some length on the issue by the respondent. The respondent vehemently asserted on the existence of an unregistered customary union. He averred that he paid lobola to the appellant's brother, the late Kenneth Godzi. The respondent, on the one hand, called Lovemore Dzambu to support his case that the parties were married. The appellant, on the other hand, called witnesses Tebsa Moyo and Casper Godzi, who both supported her testimony that there was no customary union between the parties. Tebsa Moyo is the appellant's elder sister and Casper Godzi is the appellant's elder brother. Both stated that the respondent was merely a “boyfriend” to the appellant. They said, according to their custom, the respondent could not have met and negotiated the customary marriage with Kenneth Godzi alone and secretly. The process would have involved several other relatives like a paternal uncle, paternal aunt, brother, and family members. In short, the issue of the existence of a marriage between the parties was not common cause but, on the contrary, hotly contested….,.

According to the respondent, he negotiated and paid lobola to the appellant's late brother. What can be gleaned from his evidence is that these negotiations and payment were made secretly without the knowledge of her elder sister and brother. In customary practices, it is a notorious fact that the payment of lobola is not secretive and the relatives of the bride would not be ignored about the event. In fact, close relatives are the first to know about such a development. This cannot certainly be a private engagement between the prospective son-in-law and the prospective brother-in-law. The negotiation and payment of lobola involves a whole host of go-between, aunts and relatives. The respondent did not garner corroboration to his allegation that he paid lobola. The respondent is the only witness, whose credibility was questioned and disbelieved by the trial court, albeit on a different issue the house being in the sole names of the appellant. The respondent was the plaintiff in the trial, so his failure to establish the agreement on the payment of lobola and other marriage considerations, meant that he failed to establish the existence of an unregistered customary law union. The trial court has jurisdiction to apply customary law and can apply such law to the distribution of the assets of the parties who were in such union – Feremba v Matika HH33-07. The court a quo was dealing with a claim instituted under customary law so that question of unjust enrichment (to achieve equity) is not applicable. The decisions dealing with the General Law concept of unjust enrichment are not applicable to the facts of this case. It was illogical for the trial court to have found the existence of an unregistered customary law union in the face of the above testimony. Once the respondent, as the plaintiff in court a quo failed to establish the existence of an unregistered customary law union, his claim should have been dismissed.

Accordingly, the appeal succeeds and the judgment of the trial magistrate is set aside and substituted by the following:

“The plaintiff's claim is dismissed with costs.”

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

As if that was not enough, the respondent sought a division of property on the basis of an unregistered customary law union. She did not plead any other recognisable cause of action like joint ownership, tacit universal partnership, unjust enrichment and/or equity. Unregistered customary law unions are still not recognised marriages in our law and as ...

Unregistered customary law unions are still not recognised marriages in our law and as such section 7 of the Matrimonial Causes Act [Chapter 5:13] does not apply to them. While the courts have always been willing to assist women who find themselves in the situation of the respondent and would readily divide property acquired during the subsistence of an informal union, that can only be done where well-founded claims for a share of the estate are made and a proper and recognisable cause of action is pleaded and certainly not on the basis of the union per se. Feremba v Matika 2007 (1) ZLR 337 (H); Jengwa v Jengwa 1999 (2) ZLR 121 (H); Mtuda v Ndudzo 2000 (1) ZLR 710 (H).

Section 11(b)(iv) of the Magistrates Court Act [Chapter 7:10] allows magistrates to preside over divorce cases of persons married under the Customary Marriages Act [Chapter 5:07] but it has no application on unregistered customary law unions.

As stated by MAKARAU JP…, in Feremba v Matika 2007 (1) ZLR 337 (H)…,:

“The court has jurisdiction to apply customary law and can apply such law to the distribution of the assets of the parties who were in such a union. If, however, the court for some legitimate reason is not applying customary law, then two further issues arise. Firstly, for it to have jurisdiction, then the value of the assets to be distributed has to be ascertained, for the ordinary monetary jurisdiction of the Magistrates Court will apply. Secondly, for a claim based on common law, a recognised cause of action must be pleaded.”

As the existence of an unregistered customary law union does not, on its own, clothe the Magistrates' Court with jurisdiction to distribute the property, it not being a marriage, other recognisable cause of action should have been pleaded.

It was not.

In my view, the magistrate fell into error in dividing the property as if the parties were married in terms of the Customary Marriages Act and also in not addressing the issue of monetary jurisdiction if she felt that she had to deal with the matter in terms of common law. This, coupled with the fact that the procedure for trial action was not followed and the appellant was not even accorded an opportunity to lead evidence, means that the proceedings cannot be allowed to stand. The matter has to be remitted to allow the court to comply with the Rules and the law relating to such estates.

In the result, I make the order that:-

1. The appeal is allowed to the extent that the order of the court a quo is set aside.

2. The matter be and is hereby remitted to the Magistrates Court for a trial de novo before a different magistrate.

3. The parties are required to file pleadings in terms of the Rules and to hold a pre-trial conference before the trial proper.

4. Each party shall bear its own costs.

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

The plaintiff started off as the defendants' girlfriend. They, thereafter, had a child, Rosely Mufaro Maswera, born on 12 March 2007, graduating her to his small house. The defendant was old enough to be her father. He was 58 and she was 23 when they had their first child.The defendant was a married ...

The defendant was a married man, and was, at the beginning of the affair, staying in Umwisdale where the plaintiff was also staying. The defendant said she knew he was a married man as she used to come to his Umwisdale plot to buy vegetables and to grind her maize at his grinding mill. She disputed that but his story is strengthened by her witness, her own brother, who said she stayed in Umwisdale till 2005. She claimed that the affair started in 2003, meaning they lived in the same vicinity for two years during the affair. She therefore cannot be telling the truth when she says she did not know that he was married.

The plaintiff later admitted that she knew he was married.

The defendant eventually divorced his wife. He then customarily married the plaintiff by paying lobola for her in May 2010. The defendant says he, soon after paying lobola, took her to Masvingo were he asked her to sign an ante-nuptial contract. She refused saying she will, in the event of their divorce, want a settlement similar to what the defendant had given his former wife. The defendant said he realised that she was not marriage material, and, on returning to Harare, took her back to her parents to advise them that he no longer loved her. She however came back with him claiming that she had nowhere to go. He made two other attempts to take her back to her people, but she, as before, came back with him insisting she had nowhere to go. He had to live with her against his will in a dilapidated cottage in Mandara till he built another cottage on the property into which he has now moved leaving her and their two children in the dilapidated cottage. During their alleged strained cohabitation, they had another child, Cherielyn Maswera, born on 19 January 2014. The defendant says this was a result of temptations she placed in his way. He alleged she would dress in a sexually tempting manner which weakened his guard leading to their having sex despite the strained relationship.

The plaintiff says that is evidence that they were then happily married and were in a tacit universal partnership.

The plaintiff's claim is for the distribution of property on the basis that they were in a tacit universal partnership and that the defendant will be unjustly enriched if she does not get her share of what they acquired during their cohabitation and customary union. The defendant counter claimed for the plaintiff's eviction from the Mandara property….,.

During the trial, the parties agreed on the distribution of some property which the plaintiff brought into the customary union, or the defendant bought for her, and the property the defendant brought from his former marriage. The plaintiff agreed that the defendant should be awarded a bed and the Mercedes Benz he was awarded in the divorce settlement with his former wife. The defendant agreed that the plaintiff be awarded the following;

(i) The white leather lounge suit.

(ii) 2-plate stove.

(iii) One-door small fridge.

(iv) The single bed.

(v) Television set.

(vi) Glass casserole dish.

(vii) Stainless steel pan.

(viii) Sunbeam blending machine.

The parties have not agreed on the distribution of two immovable properties, Lot 14A Mandara and No. 60 Gletwyn Township, and the following movables;

(1) 2 Double Beds.

(2) 18 goats.

(3) 20 herds of cattle.

(4) Golf cart.

(5) Isuzu single cab.

(6) 1 Russell Hobbs microwave.

(7) Thermofan oven.

(8) Big 2-door upright fridge.

(9) 12 road runner chickens.

(10) 2 small-door fridges.

The plaintiff claims the abovementioned property on the basis that there existed a tacit universal partnership between her and the defendant. She claims that they, during cohabitation, and, thereafter, the customary union pooled their resources together for their common good, and complimented each other in acquiring assets. The plaintiff further said that the defendant will be unjustly enriched if she does not get her share of the property they acquired during their cohabitation and customary union.

The defendant denied there ever being a tacit universal partnership between them.

He, in fact, said he took her to Masvingo where he asked her to sign an ante nuptial contract, which she refused to do. He had to cancel their three-day booking and came back to Harare after the second day. He, on returning to Harare, took her to her parents to formally announce the end of their customary union, but she came back with him claiming she had nowhere to go. He denies ever contemplating a tacit universal partnership with her as he wanted her out of his life. Her staying with him was through her refusal to go back to her parents and against his will.

A claim based on tacit universal partnership will have to establish the elements mentioned by GARWE J…, in Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…, where he said;

“What amounts to a tacit universal partnership has been considered in several decisions of the courts in this country and in South Africa. The four requisites for a partnership may be summarised as follows;

(a) Each of the partners must bring something into the partnership or must bind himself or herself to bring something into it; whether it be money or labour or skill;

(b) The business to be carried out should be for the joint benefit of the parties;

(d) The agreement should be a legitimate one.

In addition, the intention of the parties to operate a partnership is also an important consideration.

See Muhlmann v Muhlmann 1981 (4) SA 632 at 634; Mashingaidze v Mashingaidze 1995 (1) ZLR 219.”

The plaintiff's claim can therefore only succeed if it satisfies these pre-requisites.

Unjust enrichment is easier to prove, as all the plaintiff has to prove is that she contributed something, which, if not shared equitably, will leave the defendant enriched at her expense. In the case of Industrial Equity v Walker 1996 (1) ZLR 269 (H)…, BARTLETT J…, said;

“I have already found that a general enrichment action providing relief where just, according to the principles expounded by de Vos, in cases of unjustified enrichment not covered by any existing enrichment action, exists.”

At p298 C-D, BARTLET J commented on the prerequisites for a general enrichment action which I summarise as follows;

1. The enrichment of the defendant;

2. At the expense of the plaintiff who should have been impoverished by the defendant's enrichment;

3. The enrichment must be unjust;

4. Classical enrichment actions should not be applicable; and

5. There should be no positive rule of law against the plaintiff's enrichment action.

See also the Supreme Court's comments on general enrichment action in Walker v Industrial Equity 1995 (1) ZLR 87 (S)…,.

The plaintiff's claims will be closely examined to determine whether or not she contributed towards the acquisition of the assets she claimed and such contribution meets the above mentioned pre-requisites.

The plaintiff struggled to prove that she had a tacit agreement with the defendant to go into a universal partnership with a view to making profit for their common good. The evidence led does not prove that there was any joint venture or business they conducted as partners from which any profit was made which they subsequently used to purchase the claimed property. The plaintiff's evidence established that the plaintiff and the defendant had their own independent personal businesses from which she claims they raised money. She claims she gave to the defendant the money she raised from her businesses for purposes of buying assets for the family.

That evidence does not prove a tacit universal partnership but may, if substantiated, prove unjust enrichment.

The Gletween and Mandara properties

The plaintiff's own evidence established that she did not have the capacity to make the direct contributions she claimed she did. She included in her bundle of documents receipts from her tailoring business which proved that she was not making any profit. Through cross-examination, it was established that her income was far less than her expenses which means, instead of bringing money into the union she was an obvious liability to the defendant. It was demonstrated that she, on occasions, made so little that she had no money left for her own transport to and from work, let alone for paying her workers. She, as an explanation, said she did not issue receipts to all her customers.

This is not convincing as it was only mentioned when she realised the embarrassing deficits she had at the end of each month.

When she was asked why she brought the receipts to court she said “to prove that she was making money.” This was before it dawned on her that according to those receipts she was not making any profits.

She claimed to have been making US$10,000= per year from a market gardening venture she was running at the Mandara property. This was proved false by the evidence of her own brother who said he only saw a bed of tomatoes about seven metres long by about one meter wide. That could not have raised US$10,000= per year. It was also established that they do not have their own water at the Mandara property. They rely on borrowing water from a neighbour. It was therefore not possible to run a flourishing market gardening venture under those circumstances.

The plaintiff claimed to have raised money from the Forever Living project and selling of second-hand clothes but proffered no proof of her income from these alleged ventures. Her say so cannot be relied upon as she openly lied on several occasions. She is not a reliable witness.

She, for example, lied about the Mercedes Benz being bought from a local garage using funds they had pooled together. When it was put to her that it was imported, she conceded, saying that it was imported through that local garage. The motor vehicle was purchased in 2009 and was awarded to the defendant in the divorce settlement with his ex-wife. She had sought to mislead the court that the motor vehicle was purchased from that garage when it was imported. As if that was not enough, she tried to mislead the court into believing that it was bought from pooled resources. This was a lie because in 2009 she was merely the defendant's small house. When she was confronted with proof that it was merely being swopped with a Mercedes Benz the defendant got from the divorce settlement with his former wife, she conceded that it was so and changed from having made direct contribution to having indirectly contributed because the defendant would, though married to his former wife, also come to her. She had the following exchange with the defendant's counsel;

“Q. The defendant will say he got the Mercedes Benz as part of his divorce settlement with his ex-wife (Reg. No.13320. See the court order dated 13 May 2010. Do you dispute it?

A. No. I will not dispute it.

Q. Do you dispute the authenticity of the document?

A. No.

Q. Agree it's the one he swopped to get the other motor vehicle?

A. Yes.

Q. Realise this is at variance with your saying you acquired it together. You did not contribute?

A. I believe I did.

Q. In what way?

A. It comes under complimentary effort as when he was with his ex-wife he was also with me.

Q. He would go to his wife and also come to you?

A. Yes.

Q. Now agree he had a wife?

A. Yes.

Q. From whom he would run away and come to you?

A. I believe. Yes.

Q. Also, agree you were his small house?

A. I would say yes.”

The plaintiff eventually abandoned her claim to the Mercedes Benz.

She, again, lied in her evidence in chief when she said that, their customary union had not been dissolved yet in her further particulars…, it is clearly stated;

“The unregistered customary law union has been dissolved.”

She told several other lies which are on record.

This level of dishonesty disqualifies her from being the witness whose word can be relied on without it being supported by other reliable evidence. It is therefore not believable that the plaintiff could have made any contributions towards the purchase of the immovable and movable assets she is claiming.

The defendant is, as per common cause evidence, a businessman who the plaintiff admits had a Stand in Glen Lorne he got as part of his divorce settlement. He produced evidence on how he sold it and used the proceeds to buy No. 60 Gletween. He produced agreements of the sale and purchase of the two properties. The defendant's divorce settlement from his former wife, under case no.5975/10, stamped by the Magistrates Court on 13 May 2010, and produced as exhibit 1, confirms that the defendant was awarded Stand 2609 Umwisdale. Exhibit 2 is the Agreement of Sale of that Stand to Muedzo Nebarwe, dated 12 December 2010. Exhibit 3 is an Agreement of Sale through which Benjamin Hore sold No, 60 Gletween to the defendant on 26 August 2010. The defendant explained that he had negotiated with the seller for a delayed payment from proceeds of the Glen Lorne property he was going to sell.

This is evidence proving that the defendant had capacity to buy the Gletween property. He is a businessman, who, even without the proceeds of Stand 2609, Glen Lorne would have had the capacity to buy the Stand. According to exhibit 4, the defendant sold the Gletween Stand to Kezina Sibanda on 28 November 2011 for $110,000=. Exhibit 5 is a Sale Agreement through which the defendant purchased Remainder H of Lot 14A Mandara from Interworks Enterprises (Pvt) Ltd on 14 December 2011 for US$70,000=. He had just sold No.60 Gletween for US$110,000=. There is no doubt that the defendant purchased the Mandara property through the sale of his divorce settlement, Stand No. 2609, which he sold to buy No.60 Gletween which he subsequently sold to buy the Mandara property. He had substantial sums of money at his disposal.

On comparison, the plaintiff, who, according to the evidence of her brother and the defendant, had been working at Creamy Inn, Borrowdale till 2007 and had just been assisted by the defendant to start the tailoring business, which, according to her receipts, was not doing well, could not have, by any stretch of the imagination, contributed half of the purchase price of the Mandara property. The Gletween property was purchased from proceeds of the defendant's Glen Lorne divorce settlement Stand. The plaintiff made no contributions towards its purchase. It was sold on 28 November 2011 - long before the plaintiff issued summons on 29 August 2013.

The court cannot distribute non-existent property.

The plaintiff was, until she was shown the agreement, of the view that it still belonged to the defendant. She did not know that the defendant sold Stand 2609 Umwisdale to fund the purchase of No.60 Gletween. This demonstrates that they were not in a tacit universal partnership because if a partnership existed, the plaintiff would have known that the Gletween Stand had been sold. It also proves that the defendant was doing as he pleased with his assets - without her involvement. The plaintiff, who the defendant said was then living with him against his will, was obviously being ignored and not told what the defendant was doing because she was by then a divorced customary law wife who was refusing to go back to her people.

I have considered the possibility of the plaintiff having been impoverished through indirect contributions which could have unjustly enriched the defendant as was commented on by GILLESPIE J…, in Jengwa v Jengwa 1999 (2) ZLR 121 (H)…, where he said;

“Whenever the general law applies to a relationship and a wife has contributed to the marital weal, either by her financial contributions or by suppressing her income-earning capacity in favour of home-making and relieving her husband to accumulate capital, it should be recognised that she did so in order to promote the family's wealth and with a view to sharing in it. By her selflessness, she incurs personal impoverishment in favour of communal enrichment. She risks future impoverishment in the event of divorce. That she does so without any contractual protection or exigency merely highlights, rather than excuses, the injustice of denying her a share in that wealth when the family is sundered by divorce. To permit such an injustice to remain is offensive.”

The evidence led excludes such a possibility because the defendant raised the status of the plaintiff from a young girl, who was an employee of Creamy Inn, to a businesswoman who ran a tailoring shop, mostly at his expense. I say it was mostly at his expense because he was paying the rentals for the shop at US$150=, and, later, at US$350= per month and subsidising her in many other areas as demonstrated by the analysis of her tailoring business as exposed through her cross examination. He was also paying rentals for her flat. The following exchange took place between her and the defendant's counsel after several monthly deficits were exposed;

“Q. When did you earn US$500= per month?

A. Not according to receipts.

Q. Transport is US$44= so had minus $39=?

A. Yes.

Q. Appreciate I have not factored in food at home and at work?

A. Yes.

Q. Also appreciate those expenses had to be paid by someone else?

A. Yes.”

I therefore find that the plaintiff's claim for the Mandara property has not been proved.

Distribution of Livestock

The plaintiff claimed 9 goats 10 herd of cattle and 6 road runner chickens. She claimed that they acquired them through joint contributions. The defendant disputed that the plaintiff contributed towards the purchase of livestock. He said he acquired them before the plaintiff came into his life. He told the court that she was not involved with the operations of his A2 farm in Nyabira.

When the plaintiff was cross-examined on how they acquired the goats, she had difficulties in explaining how they were acquired. The following exchange took place between her and the defendant's counsel;

“Q. When were they purchased?

A. In 2011.

Q. From whom?

A. Not sure who sold but we bought them.

Q. For how much?

A….,. I was told estimate - let me remember it's a long time ago (looks up and down). Price was between $15= and $20= I believe.

Q. Believe?

A. I know.”

On the other hand, the defendant told a straight forward story of how he bought them before she came into his life.

The plaintiff had similar difficulties on how, and from whom, the cattle were purchased. She took long to answer simple questions. She said the 10 herd of cattle were purchased at between $250= and $300= each. She then said she contributed $200= but wanted a half share of those cattle and their progeny. When asked why she wanted half of the 20 herd of cattle when she only contributed $200= when the 10 herd of cattle were bought she said because they increased. The following exchange took place between her and the defendant's counsel;

“Q. How much contribute?

A. …, (works out on paper) - for goats $100=, started with 5 goats.

Q. Price per goat?

A. $25=.

Q. So bought the goats by yourself and he only contributed $25=?

A. We also bought cattle (works out).

Q. Don't have to work it out.

A. …, (continues to work out) I contributed $200-00.

Q. How many cattle bought?

A. Roughly 10.

Q. Don't know number of cattle bought?

A. They were roughly 10.

Q. If they were 10 and you contributed $200= how much was each?

A. $250= to $300=.

Q. So contributed for less than 1 cow?

A. If you look at it that way.

Q. Why asking for 10 herd of cattle?

A. I should get a share.

Q. Asking for half but did not contribute 1 cow; that's greedy?

A. No, I don't feel that I am greedy. I contributed towards food and salaries of workers who took care of goats and cows.

Q. Why not say so in chief?

A. I would contribute cash.

Q. Appreciate the problem you are in?

A. Yes, maybe.”

The exchange demonstrates the unreliability of the plaintiff as a witness.

She had earlier said the goats were costing $15= to $20= each, but changed to $25=. She had to work out answers instead of speaking from what she knew. She twice said roughly 10 herd of cattle were bought because she was not sure of how many cattle the defendant bought because she did not take part when they were bought.

She, due to the confusion arising from having to work out answers instead of speaking from what she knew, fell into the error of saying she contributed $100= for the 5 goats which were costing $25= each and $200= for the 10 herd of cattle which were costing $250= to $300= each. This demonstrates she did not contribute towards the purchase of the cattle and goats.

Her story about the cattle is not convincing. She failed to prove that she contributed towards the purchase of the cattle and goats.

On the chickens, she was even confused on their number. She, in evidence, said they were 19. When she was referred to her summons she then changed to say they were 12. She gave the impression of a greedy woman who is seeking to get as much as she can from the defendant by exaggerating the assets to be shared. She failed to prove her entitlement to the cattle, goats and chickens.

The Isuzu

The plaintiff conceded that the defendant bought the Isuzu with his own money. She conceded that it is registered in his name but claims he bought it for her use. She later changed and said he bought it for her. The defendant said he bought the Isuzu for use by his company and is being used by the company. The plaintiff admits that it is being used by the company.

She, again, gives the impression of a claimant who is claiming for the sake of self- enrichment at any cost instead of entitlement.

The Golf Cart and Russell Hobbs Microwave

The plaintiff admits that the golf cart belongs to the defendant who bought it with his own money, but she wants a share of it as his customary law wife. She also admits that the defendant won the Russell Hobs microwave at a Golf tournament, but says it should be awarded to her because she cooked for him before he went to the tournament.

She seems to be mistaking her entitlements to those of a wife under a registered marriage as provided in terms of the Matrimonial Causes Act [Chapter 5:13]. She seems to forget that her claim is based on tacit universal partnership and unjust enrichment. Her claims over these assets cannot succeed.

The Thermofan oven

The plaintiff told the court that it was acquired by the defendant in early 2013. She does not know how he acquired it but she claimed it.

As there is no universal partnership nor unjust enrichment she is not entitled to the thermofan oven.

Big 2 door upright fridge

The plaintiff also claimed a big 2-door upright fridge. The following exchange took place when she was cross examined about it;

“Q. Big 2 door upright fridge when was it acquired?

A. In…, 20…,11.

Q. For how much?

A. I do not remember, estimate at around $300=.

Q. A big 2 door fridge costing $300= you are ignorant of reality?

A. It's a 1 door fridge.

Q. You are the plaintiff?

A. Yes.

Q. The summons authored at your instance?

A. Yes.

Q. So its correct. If you dispute yourself how do we know the truth?

A. It's an error of 2 instead of 1.”

The exchange shows the plaintiff was in agreement about there being a big 2-door fridge. She only changed the number of doors when her estimated price was questioned. It seems she was adjusting her description of the fridge to the price she had mentioned. That, coupled with her hesitant response to the question on when the fridge was bought betrays a claim to an asset she knows the defendant has but has no clue as to how it was acquired.

She cannot succeed as she will not be impoverished if the defendant is awarded the big 2 door upright fridge.

2 small-door fridges

The plaintiff, in her declaration, had offered the small 2 door fridge to the defendant. She, under cross-examination, had the following exchange with the defendant's counsel;

“Q. The two small door fridges?

A. This is the second of the two it was a small 1 door fridge.

Q. Not claiming it?

A. I am claiming it. There are two fridges I am not claiming the small one.

Q. Departing from your declaration?

A.No, they said 2 by error there are two fridges one big one small.”

If the plaintiff is not claiming the small fridge, and it is the one she had offered to the defendant, no issue arises….,.

In the result, by consent of the parties, the following property is awarded to the parties as follows;

1. The plaintiff is awarded the following; the white leather lounge suit, 2 plate stove, one door small fridge, the single bed, television set, glass casserole dish, stainless steel pan, sunbeam blending machine.

2. The defendant is awarded a bed and the Mercedes Benz.

3. The plaintiff's claim on Lot 14A Mandara Stand and the rest of the movable assets is dismissed.

4….,.

5. Each party shall bear his or her own costs.

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

There is little, or no love, lost between the plaintiff and the defendant. The former instituted summons proceedings against the latter seeking: “(a) An order for the sharing of the parties' property on the basis of the parties' tacit universal partnership in terms of paragraph 8 of the plaintiff's declaration. (b) Costs of suit on an ...

There is little, or no love, lost between the plaintiff and the defendant. The former instituted summons proceedings against the latter seeking:

“(a) An order for the sharing of the parties' property on the basis of the parties' tacit universal partnership in terms of paragraph 8 of the plaintiff's declaration.

(b) Costs of suit on an ordinary scale.”

Paragraph 8 of the plaintiff's declaration states:

“8. It would be just and equitable that the immovable property listed in paragraph 6 above be shared in the following manner between the parties on the basis of tacit universal partnership:

(i) House Number 13496 Nkulumane, Bulawayo be sold and the net proceeds thereof be shared between the plaintiff and the defendant in the following manner: plaintiff to be awarded 75% share of the net value thereof and the defendant be awarded the other 25% share of the net value thereof.

(ii) Phase 2, Stand 70 Unity Village, Bulawayo be sold and the net proceeds thereof be shared between the plaintiff and the defendant in the following manner: plaintiff to be awarded 75% share of the net value thereof and the defendant be awarded the other 25% share of the net value thereof.”

The plaintiff avers, in this declaration that the parties had a customary law union since 2004 after all customary rites, in terms of the parties' customs and traditions, were performed. The union was blessed with one minor child, namely, Blessed Mikobi Kwete (male) born on 29 January 2007. Further, he averred that the customary union between the parties has irretrievably broken down to such an extent that there are no prospects of restoration to a normal union more specifically in that:

“(i) The parties have since separated and the plaintiff moved out of their home in 2007.

(ii) As a result, the plaintiff has lost love and affection for each other (sic).

(iii) During the substance of the customary union, the parties established a tacit universal partnership where the parties acquired the following property;

(a) House Number 13496 Nkulumane, Bulawayo.

(b) Phase 2, Stand Number 70 Unity Village, Bulawayo.

(iv) The plaintiff had a direct and indirect contribution towards the acquisition and purchase of the above-listed property.”

The plaintiff's synopsis of evidence is that the plaintiff and the defendant met in or about 2003 and started dating each other. They then moved to stay together at Number 2 Charlotte Street, Saurstown, Bulawayo. While staying together, they pooled their financial resources together and bought House Number 13496 Nkulumane, Bulawayo.

In her plea to the summons and declaration, the defendant stated the following:

(1) That House Number 13496 Nkulumane, Bulawayo and the 'flea market', Stand Number 70, Phase 2, Unity Village were acquired by the defendant alone before the commencement of the parties' customary union.

(2) The plaintiff never made any direct contributions to the maintenance, acquisition and/or development of the properties.

(3) There is, therefore, no legal basis for the parties to share properties that were acquired before the parties' customary union and where the plaintiff never made any direct contribution towards the purchase, maintenance and/or development of the properties.

(4) The defendant prayed for the dismissal of the plaintiff's claim with costs.

The parties attended a pre-trial conference where the following were agreed as issues for determination in this trial;

“(a) Whether House Number 13496 Nkulumane, Bulawayo and Stand Number 70, Phase Two, Unity Village, Bulawayo was (sic) acquired jointly by the plaintiff and the defendant.

(b) Whether the House Number 13496 Nkulumane, Bulawayo and Stand Number 70, Phase Two, Unity Village, Bulawayo was (sic) acquired during the subsistence of the parties' customary union.

(d) Whether the plaintiff is entitled to a share of 75% of the net value of the house and the Stand at Unity Village, respectively, on the basis that the money used to acquire the properties came from the plaintiff.”

R. H. Christie, Business Law in Zimbabwe 2^nd Edition, Juta & Co Ltd 1998…., defines a joint universal partnership as follows:

“Universal partnerships may be of two types. In a partnership in all business affairs or societas universorum qual ex quaestu veniant, the partners retain their separate individual estates in respect of their private affairs, and this type of partnership will be presumed to be intended when a partnership is entered into without definition of the proposed extent of its activities. The second type of universal partnership, the societas universorum bonorum, is truly universal in that the partners draw no distinction between their business and private affairs but own everything in common.”

Further, in the same work, the learned author states;

“It may be, however, that the relationship must be created expressly, except between spouses married out of community of property (as in Zimbabwe), putative spouses, and, probably, a man and a woman living together as if they were married, in which cases, a tacit universal partnership is possible. The possibility of proving a tacit universal partnership may be to the advantage of a wife on divorce, as giving her a claim to half the matrimonial property and this possibility has been considered in a number of cases: Horne v Hine 1947 SR 128; Jirira v Jirira & Another 1976 (1) RLR 715–7; Chiromo v Katsidzira 1981 (4) SA 746 (ZA). In each of these cases, a tacit universal partnership was not found to exist, either because it was not pleaded or because the facts did not support the claim, but it is suggested that such claims should more frequently be made and upheld.”

In Mtuda v Ndudzo 2000 (1) ZLR 710 (H) GARWE J…, laid out the essentials of a tacit universal partnership as:

“(1) Each of the partners must bring something into the partnership or must bind himself or herself to bring something into it, whether it be money, or labour or skill;

(2) The business to be carried out should be for the joint benefit of the parties;

(3) The object of the business should be to make a profit; and

(4) The agreement should be a legitimate one.

In addition, the intention of the parties to operate a partnership is also an important consideration. An ordinary marriage does not, in itself, found a tacit universal partnership. This does not mean that a wife seeking a division of property after divorce is not entitled to make a claim, provided she bases her claim on a suitable cause of action. Where a cause of action is established, the court is entitled to assess the extent of the wife's contribution and make an order accordingly.”

In Maenzanise v Ratcliffe NO & Anor 2001 (2) ZLR 250 (H), CHINHENGO J…, held that:

“While a marriage relationship should not be recklessly converted into a business partnership ex post facto, if a wife makes a substantial financial contribution or regularly renders services exceeding those ordinarily expected of a wife, a court may be persuaded to imply a partnership agreement.”

The courts are loathe to reduce a marriage relationship to a mere commercial relationship just because there is a need for the division of property acquired during the relationship. The comments of McCREATH J in Muhlmann v Muhlmann 1981 (4) SA 632 (N) reinforce the caution that the court must adopt. At page 634 G–H, he stated that:

“In the situation where one has to do with a relationship between spouses and there is no express agreement between the parties, the court must be careful to ensure that there is indeed an animus contrahendi and that the conduct from which a contract is sought to be inferred is not simply that which reflects what is ordinarily to be expected of a wife in a given situation.”

See also HAHLO's South African Law of Husband and Wife 4^th ed…, where the learned author states:

“However, there must be something to indicate that the parties intended to operate as a partnership, the mere fact that the wife worked in her husband's business without pay is not sufficient. Unless it can be shown that she made a substantial financial contribution or regularly rendered services going beyond those ordinarily expected of a wife in her situation, the courts will not be readily persuaded to imply a partnership agreement.”

The plaintiff gave the following evidence at the trial.

In 2003, he met the defendant at a flea market in Bulawayo. The defendant's sister was operating Stand 52 at that flea market while the defendant was looking after her sister's children. The plaintiff used to supply goods to hawkers at the flea market. The two then fell in love in 2004 and shortly thereafter the defendant's sister left for the United Kingdom. The plaintiff said he asked the sister for permission to operate Stand 52 but when the defendant returned from Chinhoyi she told him that there was another Stand, namely, Stand 70 which was being used by her sister. In 2004, the plaintiff gave the defendant goods valued at Z$10 million to sell. The parties travelled to Zambia where they bought goods for sale. It appears from the plaintiff's evidence that there was a time when the defendant travelled to Zambia to buy bags which the defendant did not show the plaintiff. Be that as it may, the parties embarked on another trip to Zambia where the defendant introduced the plaintiff to her friends as her “future husband.” They started staying together in 2004 at House Number 5663 Luveve, Bulawayo. According to the plaintiff, since the defendant told people in Zambia that he was her husband, he took it that they were husband and wife from that time. The plaintiff said there were numerous other trips to Zambia to buy goods for resale. He said they had agreed to operate as partners although there was no arrangement on sharing profits because they wanted to settle as a family.

As regards Stand 70 at Unity Village, the plaintiff stated that he bought the Stand with his own money and the defendant did not contribute “directly” but only did so 'morally i.e. cooking etc.' Later, he explained that the money used to purchase this Stand i.e. R10,000= was from the business transactions in which he had injected capital. When it was put to him that the defendant would testify that the Stand was purchased by her alone, well before the customary union commenced, the plaintiff said “she introduced me to her parents and friends in 2004 as he husband;” by this, the plaintiff believed that they were indeed husband and wife.

Commenting on how House Number 13496 Nkulumane was acquired, the plaintiff said he paid for the defendant's trip to Dubai which trip made her “very rich” and they opened a shop at Bulawayo Centre. While he was in South Africa, on another business trip, in October 2005, the defendant used the proceeds from the sale of goods from Dubai to buy a house without his consent. Upon his return, he confronted the defendant about the missing money but the defendant was evasive until the defendant's sister met the plaintiff and congratulated him for purchasing a house. He then confronted the defendant who told him that she had done so as an 'investment for our future' in view of the high rate of inflation. The defendant then took the plaintiff to a lawyer called Zenzo Moyo where she again introduced the plaintiff as her husband. Later, they developed the property by constructing a durawall. All in all, the plaintiff said he sired seven (7) children as follows:

(a) Four (4) he brought to Zimbabwe from the DRC;

(b) One (1) son with the defendant; and

He lives with all the children except the defendant's son.

Under cross-examination, the plaintiff conceded that he paid “lobola” or 'roora' in 2006 when the defendant was pregnant but quickly pointed out that negotiations started in 2004 when he met the defendant's father in Luveve and was made to pay some money before he could be allowed to enter the house. Because of this, he believed that he paid “roora” twice, once in 2004 and secondly in 2006 in Chivhu when the defendant was pregnant. When asked whether they sat down and decided to enter into a partnership, his reply was;

“I do not know how to explain…, but the relationship was that of husband and wife doing things together.”

The union lasted four years, from 2004 to September 2006. Asked about further details pertaining to the ticket for the Dubai trip, the plaintiff's answer was simply that the defendant 'knows better.' He said the defendant would buy clothes and food for the family, while rentals were paid for from the business operations. Further, he said the business made no profits resulting in the failure to work out the formula for sharing profits. Finally, he stated that there was a lot of interference from the defendant's relatives in their business operations….,.

The plaintiff closed his case and the defendant opened her case by giving the following evidence.

In mid-2004, while she was visiting her brother in Chinhoyi, the plaintiff phoned her and gave her his name. She fell in love with the plaintiff in 2005 and got married to him, customarily, in 2006. Meanwhile, she had purchased Stand 70 Unity Village in June 2005 and House Number 13496 Nkulumane, Bulawayo on 5 October 2005. These properties were acquired from the proceeds of sales at Stands 52 and 70 Unity Village as well as from her family business at Bulawayo Centre. She referred to this shop as “Gunda Family Business.” She said her sister, who now resides in the United Kingdom, contributed Z$250,000=. She later said the correct figure was Z$240 million. Asked about the plaintiff's contribution towards the purchase of these properties, she said the plaintiff never paid a cent since at that time they were just lovers who were not even staying together. The defendant and her sister started operating Stand 52 and 70 as way back as 1995. When she fell in love with the plaintiff, in 2005, she already had her goods that she was selling at Stand 70. When she found a house to buy, she took Z$250 million from the 'businesses', negotiated the price down to Z$240 million, and she then bought the house.

The defendant stated that she would frequently go to Tanzania via Zambia for purposes of buying goods for resale back home. She admitted travelling in the company of the plaintiff. In her own words, she said;

“I agree we were moving together because we were in love but each one was involved in his or her own business. He had not married me and we were not in partnership at all.”

The defendant also admitted travelling to the Democratic Republic of Congo to see the plaintiff's parents' home before he married her. The Dubai trip was admitted, but the defendant denied that the plaintiff sponsored it. She said when they were in the Democratic Republic of Congo, the plaintiff bought laptops while she bought 'worms.' Each was using his or her money. When it was put to her under cross examination that the partnership started in 2004 and the property was acquired in 2005, her reply was;

“No. I was never in partnership in business with anyone else except my siblings.”

As regards the improvements, she admitted that the plaintiff accompanied her to buy bricks but he did not give her the money. He simply accompanied her since they were lovers. At times, her sister, in the United Kingdom, would send her money since she was not only involved in the family business, but had also left her three minor children in the defendant's custody. The defendant stated that they were engaged in two different lines of business with the plaintiff in that, the latter was selling skin lotions, creams, socks for both men and women, African attire, cell phones and laptops, while the defendant sold clothes.

She admitted that after their marriage, in 2006, the plaintiff would give her money to buy food but not to buy goods for sale.

In terms of the Agreement of Sale for the house, the defendant is indicated as the buyer. The same applies to ownership documents for Stand Number 70 Unity Village.

As regards the improvements to House Number 13496 Nkulumane, all the receipts for materials purchased are in her name….,.

Facts that are common cause

1. The plaintiff and the defendant were lovers who subsequently entered into a customary law union.

2. The union was blessed with a son, namely, Blessed Mikobi Kwete-Minga, born on 29 January 2007.

3. The union collapsed in 2007.

4. The Agreement of Sale in respect of House Number 13496 Nkulumane, Bulawayo, shows the defendant as the sole buyer of that house.

5. In terms of documents kept by Masakhane Association, that administers Unity Village Flea Markets, the defendant is the sole registered owner of Stand 70, Phase Two, Unity Village.

6. Both, the plaintiff and defendant were cross border traders or hawkers.

7. The plaintiff and defendant travelled together to Democratic Republic of Congo for purposes of meeting the plaintiff's parents and buying merchandise.

8. The defendant's sister used to run Stand 70, Phase Two, Unity Village before she migrated to the United Kingdom.

Turning to the disputed facts, the issues were set out in the joint pre-trial memo. I shall start with issue (b) relating to whether or not the property in dispute was acquired “during the subsistence of the customary law union.”

It is indisputable that the house was purchased in October 2005, while Stand 70 was purchased in June 2005. The plaintiff admitted that he paid 'roora' in Masasa in July 2006 when the defendant was pregnant. However, the plaintiff, in a bid to prove that the property was acquired during the subsistence of the customary union, backdated the date of the commencement of the union to 2004. His evidence on this aspect was that negotiations started in 2004.

I am not persuaded by this argument for a number of reasons.

In the first place, the plaintiff, in paragraph 3 of his declaration, stated:

“3. The parties have a customary law union since 2004. All the customary rites in terms of the parties' customs and traditions were performed in accordance.”…,.

Yet, in his evidence in chief, he said he considered the defendant to be his “wife” because she 'introduced him to her parents and friends as her husband.' Later, he said negotiations started in 2004 when he was asked, under cross-examination, to explain what exactly started in 2004, his answer was both vague and contradictory in that he said this was when he paid damages to the plaintiff's father after being introduced to him in Luveve. However, he contradicted himself by stating that he paid damages in 2006 in Masasa.

More importantly, the plaintiff does not explain or provide reasons why these negotiations would be so protracted as to last two years in light of the defendant's evidence that she loved the plaintiff very much and was happy to be his wife. Further, the plaintiff does not mention who he was negotiating with; he does not disclose the go between; he does not state where these negotiations took place. Also, he said he was made to pay “roora” twice without giving full details of where the first payment was made and to whom it was paid. He also does not say who was present when it was paid.

It is trite that a customary law union is created upon payment and acceptance of roora at a ceremony involving the groom or his relatives and the father, guardian, or some relative of the bride. The parties negotiate through a go-between whose services are paid for by the groom's family.

In casu, the plaintiff paid roora in 2006 when the defendant was already pregnant. This explains why, according to the plaintiff, on the list of items to be paid appeared 'damages.'

I agree with counsel for the defendant that this, in Shona culture, as in most Bantu traditions, occurs when the bride-to-be is pregnant. See Mvana and their children: The language of the Shona people as it relates to women and women's space, where MOREBLESSINGS BUSI-CHITAURO-MAWENA of the African Languages Research Institute, University of Zimbabwe states:

“Damage is payment paid by a man to the father of the woman he has impregnated, for having 'damaged' her (physically, taken her virginity, metaphorically damaged her reputation and that of her family). Consequently, the man responsible has to pay the girl's father for making his daughter 'damaged goods.' This 'damage' is believed to compensate the father for his child's defilement by a man who has not married her.”

The plaintiff's evidence on when the union commenced is totally unsatisfactory. I am satisfied, from the totality of the evidence, that whatever association the plaintiff and defendant engaged in prior to the payment of roora in 2006 did not create a customary law union. If at all they lived together or had sexual intercourse, as evidenced by the pregnancy, they were simply cohabiting – hence the penalty of 'damages' imposed on the plaintiff. For these reasons, I take the view that the plaintiff was an incredible witness.

In my view, the two properties were acquired before the parties were customarily married. The house was purchased in October 2005 while the Stand was acquired in June 2005. The customary law union was entered into in July 2006. I take the view that for these reasons issue (b) must necessarily be answered in the negative.

Issues (a) and (c) ask the same question. I therefore deal with these two as one consolidated issue, namely, whether a tacit universal partnership existed between the plaintiff and the defendant.

The question here is whether the facts in casu support a conclusion that a tacit universal partnership existed between the plaintiff and the defendant. Can it be inferred or implied from the parties conduct that indeed there was animus contrahendi? Can it be said the defendant rendered services going beyond those ordinarily expected of a boyfriend in his situation?

Bearing in mind that the onus is on the plaintiff to prove, on a balance of probabilities, that there was a tacit universal partnership, it is instructive to examine the plaintiff's evidence closely in order to answer the above questions.

On the plaintiff's evidence, he gave the defendant goods worth Z$10 million to sell. He said he considered this to be “capital injected into the business.” What he does not say is what agreement, if any, had been reached between the two of them. Under cross-examination, he stated that he gave the defendant the goods because she had 'no goods to sell.' Even if it is accepted that he gave her goods to sell, can it be concluded that the sole reason was to create a partnership? I think not because it could be that the plaintiff simply gave his girlfriend a donation i.e. a donatio inter vivos. It is not unusual for people in love to exhibit a great deal of generosity driven by nothing else but love. It may also stem out of pure liberality.

The defendant denies that such a contribution was ever made.

I must say that the probabilities in this case favour her version in that at the time she met the plaintiff, she already had expertise to run her own business, having done so for some years with her sister. She had the infrastructure, in the form of two Stands, and she could rely on funds from her sister in the United Kingdom. If, indeed, she had entered into an agreement with the plaintiff she would most probably have done so expressly in a written document. The defendant's version that although they were deeply in love, each was conducting his or her own business, with plaintiff supplying hawkers at the flea market with goods, especially electrical gadgets, while she concentrated on buying and selling clothes, is credible. The plaintiff failed to provide proof of how much money they made from the so-called partnership. There is no proof that the parties intended to bind themselves into a partnership. It is most unlikely that the defendant would enter into such an agreement involving a business owned, not by herself alone, but by her sister and other siblings.

It is strange that the plaintiff did not indicate how he benefited from this partnership during its short life. Before the acquisition of the property in dispute, the alleged partnership had been in existence for barely one (1) year. It lasted for another year after the property had been acquired. While a tacit universal partnership can be created between putative spouses and between a man and a woman living together as husband and wife; in my view, the duration of such a relationship is a relevant consideration.

In casu, it is difficult to conclude that the plaintiff, in a space of 12 months or less, rendered substantial financial contributions exceeding those ordinarily expected of a boyfriend. It would be a sad day indeed if an ordinary love relationship is recklessly converted into a business partnership. There is no express agreement in casu and I am not persuaded that I must imply one. Logically, issue (d) falls away in that the plaintiff is not entitled to a share of the net value of the properties.

In the result, the plaintiff's claim is dismissed with costs.

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

It is common cause that the parties are not legally married. The parties entered into a customary law union in 2002 and have been staying together as “husband and wife” to date….,. The appellant and the respondent are not legally married hence they may not be afforded the same protection as is provided in respect of parties ...

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

This matter was initially set down for hearing on 11 June 2009 on which date it was postponed to 10 July 2009. It was again postponed a number of times and was finally heard on 3 February 2011 after which date the court called for supplementary heads of argument from both legal practitioners for reasons appearing later in this judgment.

The applicant seeks the following order:

“IT IS ORDERED THAT;

1. The second respondent be and is hereby compelled to uplift caveat she noted on Stand 7813 Fountainbleau Township of Fountainbleau Estate measuring 200 square metres. (sic).

2. The first respondent be and is hereby ordered to transfer Stand 7813 Fountainbleau Township of Fountainbleau Estate measuring 200 square metres (sic).

3. The first and second respondents and all those claiming possession through them be and are hereby ordered to vacate the above property within ten (10) days of this order failing which the Deputy Sheriff be and is hereby authorized to evict the respondent.

4. Or, alternatively, the first respondent be and is hereby authorized to pay the applicant the current market value of the property within (10) ten days of this order.

5. The first and second respondents be and are hereby ordered to pay costs of suit.”

The applicant's case is as follows;

On 19/09/07, and through Amazon Real Estate Agents, the applicant entered into an Agreement of Sale with the first respondent. In terms of the agreement, the applicant purchased from the respondent an immovable property, namely, Stand No.7813 Fountainbleau Township or Fountainbleau Estate, also known as House No.7813 Kuwadzana 4, Harare.

The purchase price for the property was $5 billion ($5,000,000,000).

In terms of clause 2 of the Agreement of Sale, payment for the property was to be made through the estate agents. It was also a term of the agreement that Mushuma Law Chambers, legal practitioners, were to transfer the property into the applicant's name.

The applicant alleges that despite the fact that he has paid the purchase price in full, the first respondent has not transferred the property into his name.

The applicant avers that sometime in January 2008 he approached Mushuma Law Chambers with a view to ascertaining the cause for the delay in effecting transfer of the property into his name. He avers that it was at that stage that he then learnt that the first and second respondent were formerly husband and wife and that their divorce order had awarded 30% of the market value of the immovable property to the second respondent.

He avers that he was also surprised to learn that Mushuma Law Chambers had also acted as the first respondent's legal practitioners in the divorce proceedings. He avers that Mushuma Law Chambers had not disclosed to him the circumstances in which the house was being sold to him.

The applicant also avers that before buying the property he had done or conducted a Deeds search and had verified that the first respondent was the registered owner of the property.

Mushuma Law Chambers then assured him that everything was under control and that the property would be transferred into his name within a short period of time.

Thereafter, Mushuma Law Chambers made an application to the Magistrates Court and obtained an order which, inter alia, barred the second respondent from denying him the right of occupation to four rooms of the house. The second respondent appealed against the order. The applicant, however, managed to occupy part of the house after applying for, and obtaining, leave to execute pending appeal.

The applicant contends that at the time of the sale he had no knowledge of the dispute between the first and second respondents. He further contends that the second respondent's recourse lies in a claim of personal rights against the first respondent and that this cannot take precedence over his rights as a bona fide purchaser. He further contends that the first respondent's appeal against the order obtained by the applicant in the Magistrate's Court, and referred to above, was filed after he had already purchased the property.

The first respondent has not filed any opposing papers in this matter.

The second respondent has opposed this application on the following grounds;

She avers that the house in question forms part of the matrimonial property of the former marriage between her and the first respondent. She avers that the property was fraudulently sold behind her back and that she was not party to the Agreement of Sale yet she has a substantial interest in the property as she contributed directly and indirectly in the purchase of the Stand and its construction or development. Furthermore, she never received any payment. She further avers that the applicant was aware of the dispute over this property when he purchased it. She avers that the property was never evaluated. She further avers that at the time that he became aware that there was a dispute, the applicant should have cancelled his agreement with the first respondent.

The second respondent avers that she is pursuing her appeal against the order granted by the Magistrates Court in favour of the applicant and the appeal is still pending.

Furthermore, that the applicant has not, contrary to his averment, taken occupation of part of the property.

The second respondent contends that the applicant should wait until all appeals filed by the parties are heard and that he has no clear right, until then, to justify the granting of the order that he seeks.

The second respondent contends that the applicant's claim has no basis at law and that his only remedy is a claim for damages against the first respondent and his legal practitioner.

The applicant, on the other hand, denies that the sale was fraudulent and denies that he was aware that it was part of the respondents' matrimonial property. He avers that when he inspected the title deed to the property, it reflected the first respondent's name only.

Attached to the applicant's answering affidavit is an affidavit by Oliver Mushuma, a legal practitioner of Mushuma Law Chambers.

He states that to his knowledge the first respondent is outside the country. He states that the first respondent obtained a default judgment in the Magistrate's Court on 24 August 2007 in terms of which he was awarded a 70% share in the immovable property and the second respondent was awarded a 30% share. Pursuant to this judgment, the first respondent sold the immovable property to the applicant through the estate agents, Amazon Real Estate Agents.

The first respondent appointed Mushuma Law Chambers as his conveyancers.

He states, in his affidavit, that as soon as the applicant and the first respondent signed the Agreement of Sale, the applicant paid the purchase price through the estate agents. Immediately thereafter the applicant and his sons reported at his office with the Agreement of Sale. At that stage the second respondent had filed an application for rescission of the default judgment referred to. He duly advised the applicant of this state of affairs so that the applicant could make a decision on the matter as he had already paid the purchase price and the values of properties were escalating on a daily basis.

The applicant (and his sons) then decided to stand by the agreement.

They also confirmed to him that at the time when they went to view the property they met the second respondent who denied them entry into the premises. He denies that he never mentioned to the applicant that Mushuma Law Chambers acted for the first respondent in the divorce matter.

Oliver Mushuma also states, in his affidavit, that the immovable property was evaluated at Z$5,000,000,000 and that the second respondent's share was only Z$1,117,826,373= 58 which amount the first respondent had confirmed to Oliver Mushuma that he had transferred into the second respondent's account in November 2007.

In her notice of opposition, the second respondent contended, amongst other things, that besides having received no payment, she never consented to the sale of the matrimonial property which she states was done behind her back. She contends that the sale was fraudulently done and that the applicant was party to the fraud and that, for that reason, the applicant's only remedy is a claim for damages against the first respondent and his legal practitioners.

A perusal of the record shows that on 28 August 2007 a default judgment was granted in favour of the first respondent, in terms of which judgment, inter alia, the first respondent was awarded a 70% share in the immovable property in issue and the second respondent a 30% share. A perusal of the record also shows that on 2 November 2007 the second respondent's application for rescission of the default judgment was dismissed.

A perusal of the record further shows that payment was made to the first respondent by way of RTGS or electronic transfer, on 8 November 2007, of an amount of Z$3,506,166 396=14. It also reflects a reconciliation done by Mushuma Law Chambers which, inter alia, shows that of the said amount paid into the first respondent's account, Z$1,117,826,373=58 constitutes the second respondent's 30% share.

The record bears no proof that any payment was made to the second respondent in respect of her award of a 30% share in the immovable property.

The second respondent denies having received any payment.

In such circumstances, it would appear to me that the effect of granting the order sought by the applicant would be to deprive the second respondent of her 30% share in the property. For that reason, this application must, in my view, fail, with costs following the cause.

If I am wrong in this respect, it seems to me that there is another dimension of this matter that needs to be addressed.

This arises from the fact that it appears to be an undisputed fact that the first and second respondents were customarily married. According to Oliver Mushuma's affidavit, they were divorced on 20 July 2005. It also appears from a perusal of the record that the first respondent approached the Magistrates' Court in 2007 seeking an order for the “sharing of property” between him and the second respondent; the property to be shared including the immovable property the subject of this application.

Thus, while the immovable property was allegedly registered in the name of the first respondent only, it was the first respondent himself who brought it before that court for distribution.

In default of the second respondent he then obtained an order awarding him a 70% share and the second respondent a 30% share of the immovable property. Presumably, those were the terms of the Order that he sought from the magistrate.

That, in itself, in my view, is an acknowledgment by the first respondent that the second respondent has a 30% interest or is entitled to a 30% share in the immovable property.

Subsequent to obtaining the default judgment, the first respondent then sold the immovable property to the applicant.

Oliver Mushuma then dispatched to the first respondent a “reconciliation” in terms of which the second respondent's share of the net proceeds of the sale was recorded. The impression created is that the second respondent dealt with the immovable property in terms of the distribution of it made by the magistrate. It was for these reasons that I requested the applicant's and the second respondent's legal practitioners to file supplementary heads of argument addressing the effect, if any, on this matter of the following cases: Feremba v Matika 2007 (1) ZLR 337 (H); Mandava v Chasweka 2008 (1) ZLR 300; and Nyaradzai Kazuva v Gilbert Dube HB119-10.

They both did.

It appears to me that whether or not the parties' so called “divorce” was by an order of the Magistrates Court or was customarily done, the fact remains that the subsequent and apparently consequent claim by the first respondent before the Magistrates Court was for “sharing of property” the property in issue, being that of the joint estate of the first and second respondents. The principles enunciated in Feremba v Matika 2007 (1) ZLR 337 (H) and Mandava v Chasweka 2008 (1) ZLR 300 would thus be applicable.

In Mandava v Chasweka 2008 (1) ZLR 300 MAKARAU JP…, stated…,:

“The issues that I have highlighted above are not new to this Appeal Court.

I have had occasion to discuss the same issues in Feremba v Matika HH33-07. I will take the risk of repeating myself again in this judgment and exhort all trial magistrates approached to distribute the joint estates of persons in an unregistered customary union to ensure that the parties before them have made the appropriate choice of law between Customary and General Law. Once a choice of law has been appropriately made, two further issues arise - but only if General Law is chosen. These are;

(i) The cause of action; and

(ii) The monetary jurisdiction of the trial magistrate.

In view of the fact that the trial magistrate failed to observe any of the above, his decision cannot stand.”

In Feremba v Matika 2007 (1) ZLR 337 (H) MAKARAU JP stated at 342:

“Finally, if the court is to entertain the matter on the basis of any of the above principles, then its general monetary jurisdiction limits apply. It therefore becomes imperative for the court to be aware of the value of the estate involved and to then ascertain whether it has the requisite jurisdiction in the matter.”

At 342D-E she further stated:

“Thirdly, as the trial magistrate was not applying customary law or proceeding in terms of section 11(b)(iv) of the Magistrates Court Act, he had to be satisfied that the value of the estate that he was distributing fell within his monetary jurisdiction. This he did not do.”

In casu, there would appear to be no cause of action that was properly pleaded before the magistrate by the first respondent. Neither does the magistrate appear to have been alive to the issue of his monetary jurisdictional limits let alone the choice of law in terms made by the first respondent in those proceedings.

The inevitable conclusion would thus be that the trial magistrate had no jurisdiction to deal with the first respondent's matter. If that be so, his order would be void.

The applicant's legal practitioner submitted, in her supplementary heads of argument, that this aspect ought not to be a concern of this court as none of the parties have raised it.

However, in Muchakata v Netherburn 1996 (1) ZLR 153 (SC) it was held:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.”

It appears therefore that insofar as the first respondent, in selling the immovable property to the applicant, purported to act on the basis of the default judgment that he had obtained, the said sale cannot be valid as it purports to be founded on an invalid judgment on which nothing can depend.

If I am correct on this, then the applicant's case ought therefore to fail on this basis too.

In the result the application is dismissed with costs.

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”

Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a universal partnership. It was accordingly prayed that it would be just and equitable for the court to order that a house shared by the parties during the partnership be sold and the proceeds jointly shared between the parties.

The defendant pleaded to the claim in a manner which both denied and accepted the existence of the customary union, the existence of the universal partnership, and the acquisition of the immovable property over which the plaintiff was claiming a right to a share.

I find that the defendant's legal practitioners filed a plea which was not only vague and embarrassing but which did not clearly set out the facts upon which the defence was based.

The errors I have referred to above notwithstanding, the matter went before a magistrate for trial, and, on 19 April 2007, the magistrate rendered a judgment in terms of which the plaintiff was awarded a fifty percent share in the immovable property.

The defendant then noted an appeal against the judgment.

The evidence adduced at the trial, in the court below, established that the parties had an unregistered customary union which resulted in the birth of one child. The parties stayed together from 1982 to 1986 when the plaintiff left the matrimonial home. During the period in question, despite the absence of a formal relationship, the parties conducted themselves and treated each other as husband and wife. Evidence was led to the effect that a customary marriage ceremony took place where the defendant paid part of the bride price (lobola). According to the plaintiff the defendant had not finished paying all of it when they separated. The defendant accepts that the parties had such a union.

There are a number of issues on which the parties differ insofar as the evidence adduced at the trial is concerned.

The case for the plaintiff is that she had failed to return home after an excursion with the defendant. As a result, she and the defendant decided to get married. The defendant's case is that he and the plaintiff had not returned home. The next day, the plaintiff was told, by her relatives, she was not acceptable at home. She moved in with him. He was then forced to live with her, and decided to pay damages for having made her pregnant.

What is not in dispute is that the parties lived together from 1982 to some time in 1986. During that period, an immovable property, known as 82 Caledon Avenue, Hatfield, was purchased through a mortgage bond secured in the name of the defendant. The defendant was responsible for settlement of the mortgage payments whilst the plaintiff took care of the other household expenses. The deposit for the house was paid by the defendant even though the plaintiff indicated, in her evidence, that she had contributed towards half of the deposit paid by the defendant.

From the evidence adduced before him, it is my view that the magistrate correctly concluded that the defendant had paid lobola for the plaintiff and the parties were married in terms of custom. The union was however never solemnised.

Although the defendant did not plead lack of jurisdiction in his plea, when closing submissions were filed on his behalf, at the close of the trial, it was argued on his behalf, that if the plaintiff's claim was premised on a tacit universal partnership then the trial court lacked the jurisdiction to entertain the matter as the value of the property in dispute was in excess of Z$5 million.

It was conceded by the defendant's legal practitioner that no evidence had been adduced on the value of the property, but, the court was urged to take judicial notice of the fact that a half share in an immovable property in Hatfield could not possibly, at the time, be valued at less that Z$5 million. It was accordingly argued that the claim should be dismissed on that basis.

The trial court was addressed on the question of the lack of jurisdiction of the court given the monetary value of the items in dispute, but, it does not appear as if the magistrate addressed his mind to this.

It had not been pleaded, but, a defendant can consent to a claim where the value of the claim exceeds that set by statute.

Although there is no evidence on the value of the property, the defendant has urged this court to assume that it is in excess of Z$5 million.

In the exercise of its appellate jurisdiction, the High Court, being a superior court with inherent jurisdiction, is empowered to exercise review powers.

There are certain aspects to this matter that point to procedural irregularities.

First and foremost, the summons, in terms of which proceedings were instituted, is the form used for instituting divorce proceedings in the Magistrates' Court for the dissolution of a marriage solemnised in terms of custom. The summons to which the particulars of claim were attached appeared to be divorced from the cause that the plaintiff had brought to court. The summons spoke an action for sharing of property which is not a cause of action recognisable under General Law. The summons calls upon a defendant to appear at court to answer the plaintiff's claim and to file his defence before the date of hearing. This is in fact in terms of Rule 8(8) of the Customary Law Court rules.

To this the plaintiff had attached particulars of claim in which she sought a half share of the proceeds of the Hatfield property after a judicial sale of the same. There is no claim therein to a decree for divorce, despite the summons having been issued under rules utilised for divorce in a customary union.

On the other hand, summons, under General Law, in terms of the rules of the Magistrates' Court, allows a defendant seven days in which to enter appearance after service of summons. A defendant who enters an appearance to defend the claim is obliged to file a plea in which the basis of the defence to the claim is set out.

In terms of Order 19 Rule (1) the party wishing to have the action brought forward to trial must request the other party to attend a pre-trial conference at a mutually convenient time and place. This is normally done before a magistrate in chambers. At the pre-trial conference, all issues ancillary to the trial are dealt with including the issues for trial and the duration of such trial.

In casu, all these stages were skipped which leads one to conclude that despite the cause of action having been premised on General Law the parties conducted their dispute as if it were premised on customary law principles. There was therefore a mixture of procedures starting from the institution of the summons themselves.

I have no hesitation in concluding that the summons was defective.

I turn then to the issue of jurisdiction or lack thereof.

In terms of the Magistrates Court Act [Chapter 7:10] the jurisdiction of the court is provided for as follows:

“11. Jurisdiction in civil cases

(1) Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction -

(a) Excepting any other jurisdiction assigned to any court by this Act or any other enactment, the persons in respect of whom the court shall have jurisdiction shall be -

(i) Any person who resides or carries on business or is employed within the province;

(ii) Any partnership whose business premises are situated or, any member whereof resides, within the province;

(iii) Any person whatever, in respect of any proceedings incidental to any action or proceedings instituted in the court by such person himself;

(iv) Any person, whether or not he resides, carries on business, or is employed within the province, if the cause of action arose wholly within the province;

(b) With regard to the causes of action -

(i)…,.

(ii)…,.

(iii)…,.

(iv) In actions in which it is claimed a decree of divorce, judicial separation, or nullity of a marriage solemnized in terms of the Customary Marriages Act [Cap 5:07], including actions relating to the division, apportionment or distribution of the assets, whether movable or immovable, of spouses or former spouses of such marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Cap 5:13].”

A Magistrate's Court would therefore not have the jurisdiction to deal with this matter as a divorce in the absence of solemnisation of the union under the Customary Marriages Act [Chapter 5:07].

The only circumstance under which the Magistrates Court would have jurisdiction is if the matter were an ordinary civil dispute which was within the monetary jurisdictional limit of the court.

From the description of the house which is the subject matter of the dispute, it is pretty obvious that its monetary value exceeded, by far, the jurisdiction of the Magistrates' Court. The Magistrate's Court is a creature of statute and can only function within the confines and parameters set by the statute that creates it. It cannot grant to itself any powers not afforded it by the statute and one of those powers is the limitation on its monetary jurisdiction.

In Mandava v Chasekwa HH42-08 MAKARAU JP…, and HLATSHWAYO J stated as follows in relation to the jurisdiction of the Magistrates Court:

“The Magistrate's Court is a creature of statute with set jurisdictional limits in civil matters. Assuming that a choice of law had been properly done and that choice was General Law, that a valid cause of action had been pleaded…, the value of the estate that the trial court set to distribute far exceeded its monetary jurisdiction…,.”

In my view, those remarks are pertinent and apposite in casu.

There was a choice of law exercised in that the plaintiff based her claim on universal partnership and/or unjust enrichment. This choice was however only exercised in terms of the particulars of claim filed by the plaintiff. The court had the capacity to determine the dispute as formulated by the plaintiff even if in the particulars of claim the cause of action appeared to be drifting between a universal partnership and unjust enrichment.

Although the plaintiff appears to have chosen to have the dispute settled as a claim for distribution of assets under a tacit universal partnership, the record reveals that the matter was actually disposed of as if the court was considering a divorce under customary law.

Clearly, in the absence of a marriage under customary rites the court had no jurisdiction to determine the plaintiff's claims unless premised under General Law.

To add to the confusion, the summons under which the dispute was presented to court removed it from claims under General Law.

In Feremba v Matika HH33-07 MAKARAU JP…, raised awareness to the problem of jurisdiction arsing from these unions with the following remarks:

“…,. The distribution of the assets of parties in an unregistered customary union by the Magistrate's Court presents three main legal issues that all trial magistrates must be wary of;

Firstly, an unregistered customary union is not a marriage in terms of the Matrimonial Causes Act, and, thus, the provisions of section 7 of the Act have no direct application in distributing the assets of such parties. Further, the provisions of section 11 of the Magistrate's Court Act [Cap 7:10] which grants Magistrates Courts jurisdiction in divorce actions of persons married in terms of the Customary Marriages Act [Cap 5:07] do not apply to unions that are not registered under the Act. The court has jurisdiction to apply customary law and can apply such law to the distribution of the assets of the parties who were in such union. If, however, the court, for some legitimate reason, is not applying customary law, then two further issues arise;

Firstly, for it to have jurisdiction, then, the value of the assets to be distributed has to be ascertained for the ordinary Magistrates Court jurisdiction will apply. Secondly, for a claim based on common law, a recognised cause of action must be pleaded.”

In this instance, the face of the summons bore the legend 'sharing of property'. Even if it were to be assumed in the plaintiff's favour that the claim had been brought under General Law, the monetary jurisdiction of the court in this case has been challenged by the defendant as no evidence was placed before the court as to the value of the immovable property that the plaintiff sought a share in.

The fact that such property was located in the low density suburbs cannot, in my view, lead to an inevitable conclusion that the value thereof exceeded the monetary jurisdiction of the Magistrate's Court. Generally, properties in the low density suburbs do tend to be of higher value than those in the high density suburbs, but, it is however not given that in every instance the value of such property has to be high or exceed the jurisdiction of the Magistrate's Court.

In this case, and in fact in every case where a Magistrates Court has to adjudicate over a matter involving an immovable property, it is important that the value of such property be established at the outset to inform the court whether or not the property is within its jurisdictional limits.

In this case, it was not done, and, other than to remark that the property may well have been outside the jurisdiction of the court I cannot make a definitive statement because its value was never established.

In Mandava v Chasekwa HH42-08 the Appeal Court had to contend with all these problems emanating from the trial court. At p3 the court stated:

“It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Cap 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce of this country. Trial magistrates who deal with the estates of the parties to an unregistered customary union tend to fall into three errors;

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered;

(ii) Secondly, they fail to avert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limit when distributing joint estates at General Law.”

In this case, the court fell into the error of treating the claim as if it had been brought under Customary Law when the particulars clearly identified the claim as one falling under General Law. The court then applied the factors set out in the Matrimonial Causes Act in its disposal in that it took into account the contributions that the plaintiff had made as a housewife.

Given the totality of the irregularities attaching to these proceedings, it is my view that the proceedings are a complete nullity. The extent of the irregularities is such that this court cannot make an order in favour of either of the parties. The justice of the case demands that the proceedings be set aside in their entirety. I therefore make an order as follows;

The proceedings in the court a quo, under case number 9146/06, be and are hereby set aside with no order as to costs.

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

The Outstanding Movable Property

Agreement having been reached on all the other movable assets acquired by the parties, the only outstanding items on which this court is asked to make a determination would appear to be the five door frames and one window frame.

The plaintiff's position was that these items cannot be distributed by this court as they do not belong to either of them.

He said that the property was brought to their residence by his workmate and subordinate, one Simbarashe Matibenga, for safekeeping. He said that Simbarashe is constructing a house in Damofalls and comes to collect the items as and when they are needed. He said that Simbarashe had in fact initially brought five door frames and seven window frames but that, as at the time of trial, there were five door frames and one window frame left. He also said that Simbarashe's mother had recently died and Simbarashe had been granted seven days' compassionate leave to attend to his mother's burial in Zhombe. As a result, he could not call him to give evidence as he was consequently unavailable.

The defendant's position, on the other hand, was that she had purchased the five door frames and one window frame at Magaba in Mbare in 2002 for the development of a residential Stand which the parties had acquired in Waterfalls.

During cross-examination of the plaintiff, by the defendant's legal practitioner, it was also put to him that the defendant's contention was that there were four window frames which were in the carport since 2002 but that the plaintiff had since sold three of them.

It was at this juncture that the plaintiff stated that there were in fact seven window frames and five door frames that were brought by Simbarashe.

It is common cause that the defendant had earlier instituted proceedings in the Magistrates Court for the distribution of the property acquired during the subsistence of the parties' union. The Order made by the Magistrates Court, for the distribution of the property between the parties, was apparently appealed against by the plaintiff in the instant matter and subsequently nullified or set aside by this court. It is also common cause that in her claim in the Magistrates Court the defendant had not included these items.

When she was asked to explain why, her response was that she forgot to mention the said items.

As the defendant was the initiator of the proceedings in the Magistrates Court, it must be assumed that she obviously placed before the court that which she contended to be property available for distribution between the parties. She did not then include these items.

Similarly, in her pleadings in casu, she did not include these same items.

From the appeal case number, “CIV 'A' 534/06”, the appeal must have at least been noted in or around 2006. The defendant's counterclaim in the instant matter was filed in June 2009 - some three years later.

Had it not been for the appeal noted in that matter by the plaintiff in casu the said items would have remained undistributed.

No plausible reason has, in this court's view, been proffered why these items have only surfaced this very late after the filing and closing of pleadings by the parties.

In the circumstances, the plaintiff's explanation, as to the ownership of these items, appears more probable. The defendant's claim to them cannot be sustained and she therefore cannot succeed on this claim.

The defendant also said that a headboard and dressing table in the spare bedroom had been omitted when the parties agreed on the sharing of movable assets should be awarded to her.

In her counter claim, the defendant gave a detailed list of household goods and effects as well as a proposal as to how these ought to be shared. The list includes a bedroom suite which she had proposed should be awarded to herself but which the parties eventually agreed, during their “settlement conference”, should be awarded to the plaintiff. It also includes a bed regarding which she had made no proposal as to who it should be given to but which eventually the parties also agreed should be awarded to the plaintiff. The list also includes the said “headboard and dressing table in the spare bedroom”. She had proposed that these be awarded to the plaintiff. It is noted, however, that these items were not dealt with when the parties reached agreement as recorded in the “minutes of settlement conference”.

They were omitted.

It appears, therefore, that the plaintiff's complaint that the defendant's claim should fail as she had not amended her pleadings to indicate that she was claiming these items for herself is misconceived and ought to be disregarded.

It is also noted that it is not the plaintiff's claim that these particular items do not form part of the assets acquired during the subsistence of their union as he claims with regards the door frames and window frame. The plaintiff's complaint appears only to be that she is claiming them without having amended her pleadings.

The defendant's contention that she listed these items in her counterclaim but that they had not been distributed is not challenged or disputed.

I find, in the circumstances, that the headboard and dressing table do form part of the movable assets available for distribution and that they have always been part of the defendant's counter-claim. I also find that in their deliberations that resulted in the execution of the “Minutes of Settlement Conference” the parties inadvertently omitted, as alleged by the defendant, to deal specifically with these items. I find therefore that the plaintiff has no real opposition to the defendant's claim to these items which will be thus be awarded to the defendant taking into account the other items of property that the parties have agreed should be taken by the plaintiff.

The Immovable Property

The defendant's evidence was to the effect that she contributed both directly and indirectly to the acquisition of both the movable and immovable property.

She said that she contributed ten percent (10%) of the purchase price of the house as this was required by the plaintiff's employer in order to enable the plaintiff to access a loan from his employer.

She was however unable to state the amount of money that she contributed which represented the said ten percent but said that she thought that it was $31 and that she gave the money to the plaintiff. She said that the plaintiff did not bring a receipt home and that she did not ask for it. She did not think it necessary to insist on seeing the receipt because immediately thereafter they went to look for a house in Chitungwiza.

The defendant said that the loan for the house was repaid in full in 2000 after the plaintiff had returned from a trip to Germany and that they then started on the development of the Waterfalls stand.

When she was shown the plaintiff's payslip for August 2006, and it was put to her that as at that date deductions were still being made from the plaintiff's salary in repayment of the housing loan, the defendant insisted that the loan was fully repaid in 2000. She later said that she believed that the plaintiff had manufactured false payslips in order to create the impression that the loan had not yet been paid up.

She further said that it was at that stage, in 2000, that the plaintiff obtained from the Deeds Office the title deeds to the property.

She denied that the copy that was given to the plaintiff was for information purposes only. She said that it was the original copy of the title deeds that the plaintiff obtained and that it only disappeared from the house mysteriously in 2004 when they started having problems.

It was put to her that the title deeds were being kept by Coghlan, Welsh & Guest; her response was that she believed that the plaintiff took the title deeds to his employer so as to portray the false picture that the loan was not yet paid up.

The defendant said that she had last had sight of a copy of the title deeds in 2006 during the trial at the Magistrates Court.

It was further put to her that there was no evidence on it that the mortgage bond registered over the property, and endorsed on the title deeds, was cancelled.

Her response was that that was because no one had initiated the process for its cancellation after the loan was paid up. She also said that she believed that the copy that she was being shown was a fake copy and that the plaintiff's witness, Trymore Mutsadyanga gave false evidence.

The defendant said that the plaintiff was more interested in purchasing a motor vehicle and he raised the ten percent deposit that was required for him to obtain a loan for the purposes of buying one. She said that she was also a cross-boarder trader and was also involved in sewing clothes and knitting jerseys for sale. She said that she realised amounts of money that enabled her to make meaningful financial contribution in developing the immovable property particularly with regard to fixtures such as the fitted carpet inside the house and razor wire on the peripheral wall. She also fed the family and would sometimes pay school fees for the children. She said that she had been in formal employment for a short period of time during the subsistence of the union. She claimed that they had lived together for twenty years altogether. Of these the earlier 16 years constitute the period during which their unregistered customary law union lasted, this being the equivalent of the period during which the tacit universal partnership was in existence or in operation.

In her pleadings the defendant claimed fifty percent (50%) of the value of the immovable property. At the settlement conference she placed her claim at forty percent (40%) of the value of the property. At trial she said that she was entitled to seventy percent (70%) of the value of the property.

The plaintiff, being the defendant in the counterclaim, stated that he got a loan from his employer, Fidelity Printers and Refiners in 1997. The loan was repayable over a period of 25 years by way of monthly deductions from his salary. A mortgage bond for $310,000 was registered over the property by his employer for his indebtedness to the employer. The loan was in three parts. The first part was for the purchase. The second part was for the development, while the third was for security - all three being part of one loan, the housing loan.

There was a three bed-roomed house and an incomplete perimeter wall on the property. He also got loans from his employer which enabled him to complete the perimeter wall, construct a drive-way and a carport, put up razor wire, carpet the house, and install an alarm system. All the loans that he got from his employer were secured by the mortgage bond that is registered over the property. He said that he has not yet finished repaying the loan and that he still owes his employer an outstanding amount of USD30,000.

The plaintiff further said that the defendant did not play any role or make any direct contribution in the acquisition and development of the property. He said that during some of the period from 1990 to 2006 when their union subsisted, the defendant was involved in cross-border trading but would not bring any income home. He said that it was his idea to buy the house and not the defendant's and that he had in fact terminated his employment with his previous employer because the company did not buy houses for its employees.

He also said that the defendant did not make any indirect contribution to the welfare of the family because his employer was paying the children's school fees and also giving him furniture loans and other loans called “recoverable loans” which he utilised for the family's various other needs. He said that the defendant would take the children to school but he later enrolled them at a boarding school when they were in Grades 4 and 5 respectively. Although they did not have a house domestic maid then, the plaintiff's young brother, whom they stayed with, would do the cooking; the defendant doing it occasionally whenever she was present.

Although the plaintiff said, in is evidence in chief, that he wanted the defendant to be evicted from the immovable property because the property is not his but belongs to his employer, note is taken that he did not renege on the agreement recorded in the 'Minutes of Settlement Conference' to the effect that the defendant should vacate the immovable property upon being paid her share therein. Note is also taken of the fact that it is common cause that there are title deeds in the plaintiff's name in respect of the said property.

The parties are however not agreed as to whether the property is still encumbered or not.

The plaintiff said that the mortgage bond registered over the property is still active as he has not yet repaid the loan from his employer in full. The defendant, on the other hand, insisted that the mortgage bond had long since been repaid and that it remained endorsed on the title deeds merely because no action had been taken to have it cancelled.

On this aspect, Trymore Mutsadyanga's evidence corroborated the plaintiff's evidence.

Trymore Mutsadyanga was however unable to assist the court beyond this statement as he failed to answer numerous questions put to him by the defendant's legal practitioner regarding pertinent details about the mortgage bond. He was unable to explain, inter alia, how the amount of US$30,000 that he said was still outstanding and owing by the plaintiff was arrived at particularly in view of the recent dollarisation of the economy and in view of the fact that the loan to the plaintiff was in Zimbabwe dollars.

The defendant, on the other hand, contended that the mortgage loan was paid up in 2000 after the plaintiff had been on an overseas trip from which he realized sufficient money to pay off the loan.

There is however no indication, from the evidence of either party, of any marital problems then bedevilling them. No possible or probable reason is proffered as to why the plaintiff would, at that time, opt to take no steps to ensure the cancellation of the bond.

In the absence of any evidence to controvert the plaintiff's evidence in this regard, as corroborated by Trymore Mutsadyanga, the court has to find in favour of the plaintiff on this aspect and accept that the plaintiff still has to pay an amount of US$30,000 in liquidation of the loan.

The court will have to take the above into account in determining the issue referred to it by the parties for its determination, viz: what percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?

This issue also ought to be viewed against the fact that the parties have agreed that a tacit universal partnership existed during the subsistence of their union. The parties also agreed that the immovable property was valued at US$45,000.

In Marange v Chiroodza 2002 (2) ZLR 171…, the following is stated:

“In Roman Dutch Law, there is no presumption of equality of shares in a partnership, but the share of each partner is in proportion to what they have contributed.”

The plaintiff's stance is that the defendant's share does not exceed 8%. The defendant, on the other hand, has fluctuated from 50% in her counterclaim, to 40% at the settlement conference, to 70% in her evidence before this court.

In terms of direct payments towards the purchasing of the immovable property, the defendant's claim is that she raised the deposit which was 10% of the purchase price. She also claims that, through her own enterprises, she raised funds with which she had carpets fitted in the house and razor wire installed on the peripheral wall. She did not claim to have made any further contributions insofar as payments of the purchase price or development of the property were concerned.

The plaintiff has disputed the defendant's claims in these regards. In fact, the plaintiff tried to paint the most disgraceful picture of a defendant who made very marginal contribution that is not worthy of any meaningful recognition at all as all she brought back from her cross-boarder trading was the occasional parcel of sugar for his parents and nothing for the family.

The plaintiff's attempt to minimize the defendant's contribution appears to be more vindictive than factual.

Furthermore, it contradicts the manner in which the parties managed, by agreement, to share their movable assets between themselves with each party getting assets that appear to be generally of similar value to the other party's.

I find the evidence of the plaintiff in this regard, and the image of the defendant that he has attempted to portray, to be highly improbable. I believe the defendant's testimony in this regard.

I also take into account that the defendant's indirect contribution cannot be ignored and that whilst her contribution may not amount to 50% of the purchase price of the immovable property, it certainly cannot be, and is not, as low as 8%.

I also note that in his evidence the plaintiff said that his “offer” of 8% to the defendant was only in recognition of the fact that she had borne him children.

In my view, the partnership was not solely involved in the purchase of the immovable property in issue, neither were the contributions of the parties to the partnership restricted to payments for its purchase and/or development.

On her part, the defendant did not only bear children. According to her testimony, already referred to above, she also performed many duties and chores and made significant contribution to the partnership “business” generally.

In Chapeyama v Matende & Anor 1999 (1) ZLR 534…, the following was stated:

“The first defendant was able to show that she was not the idle person the plaintiff attempted to hold her out to be…,. In all the circumstances, I am satisfied that she contributed significantly to the acquisition of the family assets, and, as I stated in Chapendama v Chapendama 1998 (2) ZLR 18 (H), where a court is satisfied that each of the parties made a significant contribution but the court is unable to quantify the contribution of each of the parties their contribution should be estimated to be equal.”

In view of the finding made above, that the plaintiff is still burdened with the repayment of US$30,000 for a property valued at US$45,000, it is my view that for that reason it would not be equitable to quantify the parties' contribution to be equal.

The defendant's contribution must ultimately be quantified as being lower than the plaintiff's. No mathematical equation can be employed to quantify the defendant's contribution and hence her share of the value of the immovable property.

In my view, not much significance ought to be placed on the ratio of the outstanding amount of US$30,000 to the agreed value of US$45,000 in view of the lack of explanation of how the amount of US$30,000 was calculated or arrived at particularly against the backdrop of the conversion from Zimbabwe dollars to US dollars.

On a robust assessment of the evidence placed before the court, I would quantify the defendant's contribution as being 35% and would thus find that that is the percentage that the plaintiff must pay to the defendant as her share of the value of the immovable property before she vacates the property.

In my view, this is a proper case where each party must bear its own case.

In the result, it is ordered as follows:

1. That the plaintiff is awarded 65% and the defendant 35% of the value of the immovable property commonly known as House No.14 Msasa Drive, Msasa Park, Harare.

2. That the plaintiff pays the defendant 35% of the agreed value of US$45,000 for the said immovable property.

3. That the following movable assets be and are hereby awarded to the plaintiff as his sole and exclusive property:

(a) One refrigerator; microwave; one floral brown lounge suite; one radio; one carpet; one coffee table; one VCR; one decoder; one computer; one double bed; one bedroom suite; one wardrobe (in defendant's bedroom); and a Toyota Corona motor vehicle.

4. That the following movable assets be and are hereby awarded to the defendant as her sole and exclusive property:

(a) One stove; one 3 piece kitchen unit; one deep freezer; kitchen chairs; one suitcase; all kitchen utensils; one DVD; one television; one wardrobe (in girl's bedroom); one display cabinet; one two-in-one blanket; one coffee table with stools; and one room-divider.

5. That the headboard and dressing table in the spare bedroom be and are hereby awarded to the plaintiff as his sole and exclusive property.

6. That the defendant vacates the immovable property within 10 days from the date of full payment as calculated in terms of paragraph 1 above.

7. That each party shall bear its own costs of suit.

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

The plaintiff, on 24 February 2011, issued summons out of this court seeking an order of sharing of the assets of the parties on the basis of the common law principle of unjust enrichment.

In his declaration, the plaintiff stated that he entered into a customary law union with the defendant which union was blessed with four children two of whom are minor children. At the time he contracted the union the plaintiff said he was already married to his first wife and it was also a customary law union.

The plaintiff stated that he acquired the immovable property in issue, known as Stand No. 2573 Kuwadzana 4 Harare, when he was married to his first wife and had not married the defendant. He said the immovable property is registered in the joint names of the plaintiff and his first wife.

It is the plaintiff's case that the customary union between him and the defendant has been since dissolved as per the customary rites. The plaintiff however contended that he would be unjustly enriched if the defendant does not receive any share in the immovable property, No. 2573 Kuwadzana 4 Harare (hereinafter the house or the property). The plaintiff states, in his declaration, that it is fair and equitable to award the defendant a 20% share of the open market value of the property, a figure he later amended before the commencement of the trial to 5% share.

In her plea, the defendant sought the distribution not only of the house but also of some movable property not stated in the plaintiff's declaration which include mainly household goods itemised in paragraph 2 of her plea.

While the defendant conceded that the house was acquired by the plaintiff and his first wife, she said, in her plea, that at the time she married the plaintiff the house only consisted of a core house of two rooms. The defendant said she contributed to the extensions and improvements made to the house which is now a 7-roomed house. In her plea, the defendant alleges direct contribution to the extension of the house by raising money from the sale of clothes which money was used to purchase the building materials. She said she bought clothes in Harare for resale to illegal gold panners in Shamva, Mazowe, Chikuti and Sanyati. She said the money she raised was specifically used to pay the builders, carpenters and purchasing building materials. In her plea, she said she also used to sell uniforms sewn by the plaintiff using the family sewing machine in Makonde area and used the profits in the same manner already explained. The defendant further stated, in her plea, that she indirectly contributed by taking delivery of the building materials bought when the plaintiff was at work, assisting the plaintiff in the purchasing of the building materials and for their safekeeping, and preparing food for the builders and carpenters.

The defendant said she further contributed in the construction of the plaintiff's rural home; firstly, in Muzarabani, where she cleared virgin land, moulded bricks, constructed a homestead, cattle and goat pens at the time the plaintiff was in full employment in Harare. The defendant said she performed the task when the family moved from Muzabani to Gumbura area, Makonde in Mashonaland West Province where she said they built a rural home which now remains the sole asset of the plaintiff. The defendant stated, in her plea, that it is just and equitable that the house or property in issue be sold all the proceeds shared equally.

It would seem the purpose for replication was lost to the plaintiff as he did not seek to respond to pertinent issues raised by the defendant in her plea. The need to do so became apparent during the trial.

In terms of the joint pre-trial conference minute adopted by the parties the following issues were deemed not to be in contention;

“1. ADMISSIONS

1.1 That Stand No.2573 Kuwadzana 4 Harare was acquired and jointly owned by the plaintiff and his late wife Maud Chauraya.

1.2 That the household effects be shared as follows:-

PLAINTIFF

1. 1 Sewing Machine.
2. Delivery bicycle.
3. 1 scotch cart.
4. 4 plate electric stove.
5. Spraying machine.

DEFENDANT

1. Mountain bicycle.
2. 1 sewing machine.
3. 2 plate stove.

1.3 That the defendant be awarded custody of the minor children.

1.4 Maintenance to be paid in accordance with the order of the Maintenance Court under case No. M637/09.”

The following issues were referred for determination at the trial;

“2. ISSUES

2.1 Whether or not the plaintiff has already given the defendant the household effects that were acquired during the subsistence of the marriage.

2.2 Whether or not the plaintiff sold any assets that were acquired during the subsistence of the marriage.

2.3 Whether or not the defendant is entitled to any share to the immovable property, Stand No.2573 Kuwadzana 4 Harare. If she is entitled to any share, what percentage.

2.4 Whether or not the refrigerator is part of matrimonial property. If yes, which party should be awarded the refrigerator.

2.5 Whether or not the building structure that stood on Number 2573 Kuwadzana 4 at the time the parties got married was a 2 roomed core house only.

2.6 Whether or not the 7 roomed house presently stands on Stand Number 2573 Kuwadzana 4 was the result of extensions effected during the subsistence of the marriage.

2.7 Whether or not the defendant set up the plaintiff's rural home in Makonde which now remains the sole property of the plaintiff.”

I should confess, from the onset, that I find it very confusing the manner the parties approached the pleadings in this matter. The exhortation made by MAKARAU JP…, in Feremba v Matika 2007 (1) ZLR 337 (H)…, seems to have escaped both parties during the pleadings, and, unfortunately, even at pre-trial conference stage.

I shall repeat the relevant poignant remark by MAKARAU JP…,:

“When General law is the correct choice, then a recognised cause of action must be pleaded. Such a cause of action may be unjust enrichment, a tacit universal partnership, or joint ownership. An averment merely to the effect that the parties were in an unregistered customary law union is not sufficient to found a cause of action at General Law.”

In casu, the cause of action is not properly pleaded especially by the plaintiff in the declaration.

The parties were in an unregistered customary law union which has since ended. This explains why an amendment was belatedly made to the declaration just before the trial when I had raised that point with the parties. While the exhortation I referred to by MAKARAU JP…, in Feremba v Matika 2007 (1) ZLR 337 (H) was mainly directed to trial magistrates, I believe all legal practitioners must also be wary of this important aspect.

In casu, when one pays regard to the joint pretrial conference minute the impression created is that the parties were in a registered marriage if one pays regard to not only the improper use of the word “marriage” but even issues relevant to admissions made in relation to custody of the children. The issues referred to trial are also couched in a manner suggestive of the fact that the sharing of the assets by the parties is in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13]. This confusion arises from the fact that a proper cause of action had not been clearly pleaded and the issues arising therefrom properly articulated.

Be that as it may the plaintiff, with the consent of the defendant, amended the declaration in which it was clearly stated that the cause of action is unjust enrichment. This matter therefore proceeded on the clear understanding that the parties have nailed their colours on the mast of the concept of unjust enrichment. This also necessitated the changes the parties made in respect of the issues for determination. The issues which fall for determination, as I now perceive them, are as follows;

1. Whether or not the defendant contributed, directly or indirectly, to the improvements done on Stand No. 2573 Kuwadzana 4, Harare.

2. The state or stage the construction of House No.2753 Kuwadzana 4 Harare was when the plaintiff and the first defendant entered into the customary law union.

3. The nature of the share to the immovable property in issue each party is entitled to.

4. Which party should be awarded the refrigerator.

The issue relating to sharing of household goods was abandoned as it became clear that the defendant was awarded some “maoko” property at the dissolution of the union and that the parties further agreed to share of other assets as for paragraph 1.2 of the joint pre-trial conference minute.

The parties also abandoned item 2.2 which relates to whether the plaintiff sold any assets acquired during the subsistence of the union. It is not clear what issue was being raised therein. In fact, during the trial, the defendant attempted to raise the issue in a different context alleging that it is the defendant who disposed of assets and livestock at the rural home in Makonde.

The issue relating to the defendant's role in the setup of the rural home is only relevant in considering her indirect contribution to during the union and the share she is entitled to.

I now turn to the background facts of the matter.

The plaintiff is employed by Harare City Council in the Dry Cleaning Department. He has been so employed since 1974. The defendant, who is now 47 years old, has been, throughout the union, a full time housewife.

The plaintiff first entered into a customary law union with Maud Chauraya in 1977 and six (6) children were born out of this union. The union between the plaintiff and Maud Chauraya ended in 2006 when Maud Chauraya passed on. The plaintiff entered into a customary law union with the defendant in 1989, as per the defendant, or 1990 as per the plaintiff. Four (4) children were born out of this union two of which are still minors.

This means that from either 1989 or 1990 to 2006 the plaintiff was in a polygamous union with two wives - a period of about 17 years.

The union between the plaintiff and the defendant was formerly dissolved in 2009, after being in existence for a period of about 19 years. When the defendant entered into the union with the plaintiff she had two children from a previous relationship or relationships.

The acquisition of the immovable property, No.2573 Kuwadzana 4, Harare is not in issue. The plaintiff acquired the undeveloped Stand in 1984 with the assistance from his employers, the City of Harare. As per exhibit 1, the agreement of sale of this property is in the joint names of the plaintiff and his first wife, Maud Chauraya.

The first wife passed on in 2006 and her estate is still to be dealt with. This includes her interest in the property jointly registered in the plaintiff and her name. This informs the decision by both counsel for the plaintiff and counsel for the defendant that all what is available for distribution between the plaintiff and the defendant is the plaintiff's 50% share in the property.

I find nothing amiss in this approach. Whatever the award this court would make in respect of the property, the award relates to 50% of the value of that property not 100% of its value.

Although the union between the parties ended in 2009 both parties are still sharing the same house with the children. Apparently, the plaintiff has moved on as he has entered into yet another customary law union with another woman in July 2013.

Both the plaintiff and the defendant gave evidence and did not call any witnesses.

The plaintiff told the court that he secured the property in issue through a facility provided by his employer, Harare City Council, in 1984. He paid an initial deposit of then Zimbabwean $50 and was awarded a loan to develop the Stand. The loan was disbursed in trunches of Zimbabwe $500 at every stage of the developments. He said this loan was not enough, hence, when he developed the Stand further he had to use his salary. He said it took him 10-15 years to repay this loan.

The plaintiff said he started to develop the Stand in 1985 with his first late wife. He was unable to give any concrete dates as to how the developments unfolded. Despite probing by his counsel the plaintiff was unhelpful on this rather material issue. He however said he built four (4) rooms initially and a slab for further three rooms with his first wife before he entered into this union with the defendant. He was unable to say the dates when he further constructed the four (4) rooms and the slab. All he emphasized was that he had built five (5) rooms before he entered into union with the defendant in 1990.

The plaintiff said he only constructed further two (2) rooms after he had entered into the union with the defendant.

The import of his evidence is that the defendant's direct or indirect contribution, if any, is in respect of the two (2) rooms only.

The plaintiff said the defendant never made any direct contribution as she was a full time housewife who alternated with the first wife in staying either at his rural home or in Harare with the plaintiff. He denied that the defendant contributed in any manner in the construction of either the Muzarabani rural home or Makonde rural home. Instead, he said he financed the construction of these rural homes from his sole income. The plaintiff denied that he derives any benefit from the Makonde rural home saying the defendant destroyed all the huts there in 2007 when she abandoned the home and disposed of all stock and household goods at the rural home.

The plaintiff testified that all that the defendant is entitled to is a 5% share of the 50% value of the property in issue which share only relates to her indirect contribution.

It was clear, during cross examination, that the plaintiff was not willing to acknowledge any contribution, direct or indirect, made by the defendant during the union.

He grudgely accepted that the defendant did cook, wash, and perform all wifely duties. He was at pains to accept that she looked after the four (4) children they have, instead choosing to emphasize that he looked after the defendant's child from another relationship.

The plaintiff was clear that he has no financial means to buy out the defendant whatever the share the defendant may be awarded. He told the court that he may attempt to secure a loan from his employer but he does not believe this would be successful. Instead, he would rather have the property sold and the proceeds shared.

The defendant, who did only Grade 6, denied that when she entered into this union with the plaintiff the house in issue was a five (5)-roomed house. She insisted that it was a core house of two (2) rooms with a toilet and a bathroom. She said the two rooms were not even complete as they used zinc tiles for window panes. She even said she vividly recalls their first tenant or lodger, a Tshuma, who shared one room and they used the other room.

The defendant said all the improvements done of additional five (5) rooms was done after she had entered into the union with the plaintiff.

She insisted, as per her plea, that she made direct contributions by selling clothes and gave the money to the plaintiff to use in the improvements of the property. She was unable to quantify her direct contribution. As regards indirect contribution, she said she used to cook, wash, and look after the plaintiff and the children and attend to the rural home, tilling the land. She maintained that she directly contributed to the construction of, firstly, the Muzabani rural home, and, later, the Makonde rural home.

The defendant accepted the plaintiff's evidence that she did not directly contribute in the purchase of the refrigerator. This then puts to rest her claim in respect of the refrigerator.

Our courts have now accepted that despite the inapplicability of the Matrimonial Causes Act [Chapter 5:13] in cases like the instant one, a woman or man married according to an unregistered customary law union can institute a claim for sharing of assets of the parties at the dissolution of the union under the common law principles of unjust enrichment, tacit universal partnership, or joint ownership.

See Zimnat Insurance Company v Chawanda 1990 (2) ZLR 143 (S); Mashingaidze v Mashingaidze 1995 (2) ZLR 219 (H); Feremba v Matika 2007 (1) ZLR 337 (H).

In the case of Ntini v Masuku 2003 (1) ZLR 638 (H)…, the court outlined the factors to be considered in a case where the cause of action is unjust enrichment. These include the direct contribution of the party, the indirect contribution, and even the duration of the union among other things.

These principles are applicable in this case.

While the parties are agreed that they can only share 50% of the value of the property or house they are not agreed as to what share should be awarded to each party. This emanates from the failure to either acknowledge or appreciate the direct or indirect contribution of each party.

I have no doubt that the defendant has indirectly contributed to the union between the parties in an immeasurable way. The value of domestic labour is usually downplayed. See Matibiri v Kumure 2001 (1) ZLR 492 (H). It is also difficult to quantify.

As already said, this union lasted for 19 years. The defendant gave birth to four (4) children two of whom are now majors. As she correctly pointed out, she is too old to contemplate to start any meaningful new life or to remarry. All her useful and productive life was put in this union. The fact that the plaintiff had two wives should not diminish the defendant's indirect contribution as a wife. She remained with the plaintiff even after the demise of his first wife until the dissolution of the union.

I am not satisfied that the defendant made any meaningful direct contribution. While it may be true that she raised money by selling clothes I do not believe that this meaningfully contributed to the construction of the house. I accept her role and contribution in the establishment of the two rural homes in Muzarabani and Makonde. She should however accept that there was also the first wife who should have played a role.

I accept the plaintiff's evidence that he was the sole bread winner in the family and therefore directly contributed to the acquisition of the house. The plaintiff was however not an impressive witness in explaining how the house was constructed and the time frame. I do not believe that the plaintiff suffered from some amnesia but he simply was not willing to give dates which will show that the defendant was his 'wife' when extension and developments to the house were done.

I accept the defendant's evidence that when she entered into the union with the plaintiff only a two (2) roomed core house was in existence. I am inclined to accept that version as the plaintiff was not able to give dates on when he carried out the various developments. No documentary evidence was produced. In fact, the plaintiff was unwilling to commit himself on this aspect in the pleadings or even at pre-trial conference stage.

The defendant's stance was clear throughout the pleadings that only two rooms had been constructed. The plaintiff only came out with his version of four (4) or five (5) rooms during the trial. This is an afterthought designed to downplay the defendant's role or contribution.

The same can be said about the plaintiff's inconsistency on what he perceives to be a fair award to the defendant. Initially, he believed a 20% award was fair. Just before the trial, he believed that an award of 5% is just and equitable. This vacillation is unexplained. The only conclusion I can make is that the plaintiff has always been unwilling to acknowledge the defendant's contribution to the house, and, consequently, a fair and just award to her.

The award I will make in respect of the defendant is informed mainly by her indirect contribution.

The circumstances of this case, and the parties, are such that I find no useful purpose to be served by giving either party the option to buy the other one out. Neither party has the means and capacity to raise any meaningful income in the foreseeable future. The only option would be to order the sale of the house as soon as possible and allow the parties to benefit immediately from such proceeds. I shall order the valuation of the property and the award made to each party relates to 50% of the value of the property as the other 50% belongs to the estate of the late Maud Chauraya, the plaintiff's first wife.

Having considered all the circumstances of the case I believe an award, out of the 50% share available, of 30% to the plaintiff and 20% to the defendant is just and equitable in the circumstances.

No order for costs is made as the defendant is represented informa pauperis.

Accordingly, it is ordered as follows:

1. The plaintiff is awarded a 30% share and the defendant a 20% share in the 50% share of the value in the immovable property known as Stand No.2573 Kuwadzana 4, Harare.

1.1 The parties shall agree and appoint a registered Estate agent within 30 days from the date of this order to value the property or failing which the Registrar of the High Court shall within 15 days appoint a valuer from the Master's list of valuers.

1.2 The valuer shall evaluate the property within 15 days of the appointment.

1.3 The plaintiff shall pay the costs of valuation.

1.4 The appointed Estate Agent shall sell the property by private treaty to the best advantage of the parties and pay the net proceeds therefrom to the parties at the ratio of 30% share for the plaintiff and 20% share for the defendant as assessed from the 50% value of the property as provided for in clause (1) above.

1.5 The Sheriff of the High Court of Zimbabwe shall be empowered to sign all necessary transfer papers and to do all necessary to pass transfer to the purchaser of the immovable property in terms of clause 1.4 above.

2. The plaintiff is awarded the following movable property as his sole and exclusive property;

(a) Sewing machine.

(b) Delivery bicycle.

(c) 1 scotch cart.

(d) 4 plate electric stove.

(e) Spraying machine.

3. The defendant is awarded the following movable property as her sole and exclusive property;

(a) Mountain bicycle.

(b) 1 sewing machine.

(c) 2 plate electric stove.

4. The plaintiff shall continue to pay maintenance in respect of the minor children in accordance with the order of the Maintenance Court Order Case No. M637/09.

5. There is no order as to costs.

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

The plaintiff and the defendant were customarily married for about seven years, from 2002 to 2009, when the union became dysfunctional. During the subsistence of the union the parties, who were in universal partnership, acquired movable and immovable property.

The parties agreed on issues for referral to trial, namely:-

1. What constituted the property of the parties as at the date of separation.

2. How was this property, both movable (livestock) and immovable, acquired.

3. Whether or not the Nyanga property has been sold, and, if so, whether or not the plaintiff was aware of such sale.

4. Whether the property in issue should be distributed in the manner described in the schedules attached to the plaintiff's declaration or the manner described in paragraph 14 of the defendant's plea.

At commencement of trial, it became abundantly clear that the property which formed the subject of the dispute included a Nyanga residential property, Chitungwiza residential property, and movable property in the form of livestock at the Masvingo residential rural home.

The plaintiff, in the pleadings and evidence, claimed a 100 percent share in the Chitungwiza residence and three cattle, four goats, and two sheep pointing out that the defendant would take 100 percent share of the Nyanga home and the remaining livestock.

It was apparent, from the plaintiff's evidence, that she has five minor children with the defendant whom she married in 2002. They separated in 2009. The plaintiff narrated that she married the defendant when she was employed by OK Zimbabwe as a closed circuit television operator (CCTV). It became common knowledge she was employed as such since the defendant did not dispute the evidence and the plaintiff also tendered, as exhibit 1, a letter of confirmation of the employment.

According to the complainant, all the money from her salary and also money raised from a market stall operated from home was controlled by her husband. She recalled how the Nyanga stand was first purchased and a house constructed and then the Chitungwiza stand also followed by construction of a house.

The plaintiff argued that she contributed directly and indirectly. She also pointed out that her husband contributed through earnings from his clients since he was endowed with a gift of healing as a spiritual healer.

According to the plaintiff, at the time they separated, the house in Nyanga was still theirs and it was occupied by a tenant who paid rentals.

She vehemently denied knowledge of disposal of the property by sale to one Mr Muringani and pointed out that if there was a sale agreement, it was after she had instituted the current proceedings and that she did not agree to or even benefit from the same. She pointed out that the property which the defendant alleges to have sold five years ago is still registered, or, at least at the time of trial, was registered in the defendant's name.

The plaintiff maintained her evidence that during the marriage to the defendant she contributed directly and indirectly to the acquisition of the property and that she was entitled to her claims.

The defendant, on the other hand, told the court that he was customarily married to the plaintiff from 2002 to 2009 for about eight years. He disputed paternity of the last born child and accepted having had their union with the plaintiff blessed with four children.

In pleadings and evidence, he told the court that he acquired the property which forms the subject of dispute solely on his own. He stated that, in his capacity as preacher and healer, he had many well to do patients who gave him tokens of appreciation inclusive of the Stands and resources with which he built the immovable properties. He argued he was in a better financial standing than the plaintiff, a security guard who earned a meagre salary. He argued that he solely contributed to the acquisition of the properties using proceeds he got from the patients he helped, some of whom were foreigners and senior Government officials.

It was crystal clear, from both the plaintiff and the defendant, that the property was bought during the subsistence of the customary union.

The defendant recalled that on 2 January 2009, after they separated, he sold the Nyanga house to one Mr Henry Mugore Muringai with whom he entered into an agreement of sale.

I must hasten to point out that such agreement of sale was not satisfactorily supported by both the defendant and Mr Muringani's evidence.

The plaintiff disputed there was ever a sale transaction as she continued to receive rentals from the tenant - even after the separation. Also, at the time of trial, after five years from the purported sale, no transfers of ownership had been made. The property remains registered in the defendant's name.

Mr Muringani, the alleged buyer's testimony, did not change the complexion of the matter.

Mr Muringani's version was riddled with inconsistencies and was difficult to follow. It was not clear why he took so long to pay for the house and the manner they conducted sale was not consistent with the contract. Further, Mr Muringani appeared not well versed with the nature, type, and extent of property he deemed to be his. He could not explain, satisfactorily, why, if he had bought the property, the tenants would pay rentals to the defendant and/or his wife. He did not even know the rental amount.

Other than his mere say so, there was no proof that he paid for the house in question.

In fact, the picture painted by the witness, of having paid more than 10 instalments contrary to the sale agreement, and the unavailability of receipts when payment was made for purchase of an immovable property, painted the defence witness and the defendant's story as incredible.

Mr Muringani's evidence, about him having bought a house whose specifications he was not well versed with, and making payment of up to $19,500 with no record whatsoever, was not only unsatisfactory but unbelievable, given his background as a lawyer.

He would naturally be expected to appreciate the difference between buying a loaf of bread and a house. The manner in which he testified left a lot to be desired.

His testimony did not bolster the defence's claim of a sale. If anything, it painted a picture that the Nyanga house was still the defendant's property, acquired during the customary law union.

It is not in dispute the two houses and livestock constitute the entire property which forms the subject of dispute.

The plaintiff agreed that some of the livestock might have died in the five years of separation and that she did not know how much was left as livestock.

In the absence of specific quantities on the stock, it is difficult for the court to speculate and come up with a formula for distribution.

From the plaintiff and the defendant's evidence, it is clear that the relationship, and property regime, falls under tacit universal partnership.

The defendant, in his evidence, admitted that the plaintiff contributed indirectly by looking after the children and buying grocery items as and when she felt like doing so. He equated this contribution to entitling the plaintiff to 20% share in the Chitungwiza house, which, according to the defendant, is the only immovable property that remained for distribution.

It is worth noting that the defendant's version, of claiming 100% contribution towards the purchase and development of the Nyanga and Chitungwiza home, was rendered porous by the defendant's own evidence.

First, the defendant submitted fraudulently obtained receipts for a small fraction of the building material as was exposed by the insertion in the receipts of current cell numbers which were not in operation back then in 2007 and 2008. The receipts were clearly produced to raise dust so as to mislead the court on the defendant's contribution.

Having considered the totality of the evidence before the court, it is apparent both the plaintiff and the defendant contributed directly and indirectly to the acquisition of the two immovable properties.

It is important, at this stage, to look at the law in respect of unregistered customary law unions.

The law is settled that general principles of law, including unjust enrichment, be resorted to in a bid to achieve just and equitable distributing of customary law estate such as the present case. The cases of Matibiri v Kumire 2000 (1) ZLR 495 and Marange v Chiroodza 2002 (2) ZLR 171 are also instructive.

Inroads have been made in recognising customary law unions as marriages for proprietary, maintenance, and children's issues as evidenced by not only precedent but legislative measures.

The administration of Estates Act [Chapter 6:01], section 68 thereof, recognises a surviving spouse as a beneficiary regardless of the marriage registration status. The Matrimonial Causes Act [Chapter 7:05], section 7, is handy when it is comes to division of property, even for unregistered union, where the General Law principles of unjust enrichment and universal partnership existed or have been shown to exist.

The principle of equitable sharing on jointly acquired property is internationally recognised and our courts, in pronouncements in decided cases, have endeavored to uphold such a principle where universal partnership has been established.

It is also worth noting that also to buttress this approach is the constitution of Zimbabwe Amendment (No.20) Act 2013 which prohibits discrimination. Section 56 reads:

“All persons are equal before the law and have a right to equal protection and benefit of the law.”

Section 56(3) reads:

“Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as nationality, race, colour, tribe, place of birth, ethnic or social language, class, religious belief, political affiliation opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born out of wedlock.”

In casu, both the plaintiff and the defendant have contributed to the acquisition of the estate.

The houses are situated in different locations, namely, Nyanga and Chitungwiza - clearly entailing they are of different values. It would, in my view, not be just and equitable to order each to get one of the houses, but, to apportion an appropriate share in each of the properties with an option for the parties to buy each other out. Given the background of the matter, and the contributions of each of the parties, it would not be appropriate to award 100 percent share in Chitungwiza and Nyanga property to either of the parties.

In Mashangedza v Mutsvangwa HH214-13 MAWADZE J took the approach that General Law should apply in cases where land rights are involved irrespective of whether the union was customary or not as to do otherwise would be discriminatory against those women married customarily.

I entirely associate with Honourable MAWADZE J's sentiment when he quoted with approval remarks in Ntini v Masuku 2003 (1) ZLR 638 where the judge stated that time has come for a customary union to be recognised as a marriage institution for all intents and purpose; it serves the same purpose as a registered marriage.

It is that discrimination, on nature of marriage, which the Constitution sought to outlaw by outlawing custom or law that is discriminatory.

It would not be progressive, in the 21st century, to allow a party to be unjustly enriched because he contracted an unregistered marriage in the face of clear evidence of contribution by both spouses in acquisition of property.

It is not in dispute that in our jurisdiction unregistered customary law union should be treated like any other marriage when it comes to dissolution and division of assets jointly acquired by the parties during the subsistence of the marriage where tacit universal partnership is established. For this pronouncement, I am guided by the words of MUCHECHETERE JA in Chapeyama v Matende 2000 (2) ZLR 356.

I am satisfied that the plaintiff contributed directly and indirectly through the monthly earnings while the defendant also contributed directly and indirectly through his earning as a spiritual healer. It would, in the circumstances, be just and fair that the parties share the Nyanga and Chitungwiza properties at the rate of 50 percent share each.

Accordingly, it is ordered:

1. That the plaintiff be awarded 50 percent share of House Number 24444 Unit P Extension, Chitungwiza and that the defendant be awarded the other 50 percent share of the said property.

2. That the defendant be awarded 50 percent share of House Number 410 Nyamhuka Government Complex, Nyanga and that the plaintiff be awarded the other 50 percent share of the said property.

3. The property shall be evaluated by an independent evaluator appointed by the Registrar within a period of 30 days from date of judgment.

4. That the cost of evaluation shall be borne by the parties at the rate of 50 percent each.

5. That the parties have on option to buy each other out within a period of 3 months from date of judgment.

6. In the event of the parties failing to buy each other out the property shall be sold at open market to the best advantage by an Estate Agent to be appointed by the Registrar of the High Court within a period of 14 days from date of failure by the parties to buy out each other out and the proceeds shall be shared at the ratio of 50 percent each in respect of both properties.

7. Each party is to bear its costs.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.The appellant also challenges the jurisdiction ...

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.

In the affidavit, the respondent alleged that she was in an unregistered customary union with the appellant, and that, during the subsistence of the union, the parties had acquired certain household goods and effects. She gave the estimate value of each item that she alleged the parties acquired. She further alleged that due to the violent conduct that the appellant exhibited towards her, the union between them had broken down irretrievably. She ended the affidavit by praying that the court confirms the distribution of the assets as suggested by her in the affidavit.

It is not clear on the record how the matter was set down for trial….,.

The record, however, indicates that on the day of the trial, the appellant was in attendance and verbally indicated that he was opposed to the proposals made by the respondent. Prior to the set down date, he had not filed any pleadings or other papers in the matter.

The matter proceeded to trial with the parties giving evidence. For the purposes of this appeal, it is in my view not necessary that I go into the details of the evidence that each party led.

After hearing the parties, the trial court made an award that dissatisfied the appellant, prompting him to note an appeal to this court. In his Notice of Appeal, the appellant challenged the distribution that was made in the lower court and prayed that it be set aside.

The parties were not legally represented at any stage of the legal battle between them. We thus could not engage them at all regarding the legal issues that arise in this appeal.

The legal points made in this judgment are therefore our opinions without the aid of argument by counsel.

The two issues that arise, are, in my view, so important that a copy of this judgment will be dispatched to the Chief Magistrate for his attention and for the benefit of other trial magistrates who may be falling into the same pitfalls that the trial magistrate in this matter fell.

I shall make the necessary order for this to be effected by the Registrar….,.

The second issue that arises in this appeal is one that escaped a number of trial magistrates from the nature of the appeals that are reaching this court.

The issue is of a socio-legal nature and requires intervention from Parliament to correct the anomaly that exists between registered and unregistered customary unions.

It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Chapter 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce of this country.

Trial magistrates who deal with the estates of parties to an unregistered customary union tend to fall into three errors:

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered.

(ii) Secondly, they fail to avert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limit when distributing joint estates at General Law.

The trial magistrate in casu fell into all three traps.

In his award, he was attempting to effect a just and equitable distribution of the joint estate as if he was dealing with a marriage recognized as such at law. He applied the law of equity as provided for in section 7 of the Matrimonial Causes Act and attempted to sort the estate into three lots marked 'his', 'hers' and 'theirs' following the guidelines given to divorce courts by the Supreme court in Takafuma v Takafuma 1994 (2) ZLR 103 (SC).

The above is not to say that parties in an unregistered customary union cannot approach the court for relief.

They can.

However, when they do so, it is a requirement of our law that they chose which law they want to apply to the resolution of their dispute as between Customary and General Law, and, if they chose General Law, they must plead a cause of action recognizable at law as their “marriage” is not recognized as such.

In casu, no choice of law inquiry was gone into and it is clear that he was not applying Customary Law. However, since no cause of action at General Law had been pleaded, it is difficult to establish how he came up with the order that he made and which principles of law he applied.

Finally, the Magistrate's Court is a creature of statute with set jurisdictional limits in civil matters.

Assuming that a choice of law had been properly made, and that choice was General Law, that a valid cause of action had been pleaded, and the matter had properly proceeded to trial in terms of the Rules, the value of the estate that the trial court set to distribute far exceeded its monetary jurisdiction and the trial magistrate did not even advert to this issue.

The issues that I have highlighted above are not new to this Appeal Court.

I have had occasion to discuss the same issues in B Feremba v P Matika HH33-07. I will take the risk of repeating myself again in this judgment and exhort all trial magistrates approached to distribute the joint estates of persons in an unregistered customary union to ensure that the parties before have made the appropriate choice of law between Customary and General Law. Once a choice of law has been appropriately made, two further issues arise, but, only if General Law is chosen. These are:

(i) The cause of action; and

(ii) The monetary jurisdiction of the trial magistrate.

In view of the fact that the trial magistrate failed to observe any of the above, his decision cannot stand.

In the result, I make the following order:

1. The appeal is allowed.

2. The matter is hereby remitted to the Magistrate's Court for a trial de novo.

3. The parties are to file pleadings in accordance with the provisions of the Rules and a pre-trial conference has to be held in the matter before the trial.

4. Each party shall bear its own costs.

5. The Registrar of this court is directed to bring this judgment to the attention of the Chief Magistrate.

HMA01-19 : ANNA MAWARE vs EMMANUEL CHIWARE
Ruled By: MAFUSIRE J

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.

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.

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.

What remained for trial were these issues:

(i) How many cattle were there?

The plaintiff said 30. The defendant said 14.

Was the plaintiff entitled to a share of the cattle?

The plaintiff said yes, and wanted 15, but would go down to 10 if it was shown they were only 14. The defendant said the 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?

The plaintiff placed on it a value of $10,000 and claimed half of that. The 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 the 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?

The plaintiff said there were 4 beds and 2 mattresses and that she was entitled to 2 beds and 1 mattress. The 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?

The plaintiff said it had been re-possessed for failure to pay the instalments. The 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.

The defendant denied the 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.

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.

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.

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.

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.

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.

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.

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.

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 sow. 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.

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.

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, the 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.

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.

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.

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.

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.

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Law Portal
Zimbabwe

Division of Assets of the Spouses re: Cohabitation and Customary Law Union

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

HH60-11 : CONSTANTINE MABAUDI vs VIOLA MHORA
Ruled By: KARWI J and CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA
Ruled By: MATHONSI J

HB77-11 : NUTE NCUBE vs SHEILA MAGLAZI
Ruled By: KAMOCHA J and CHEDA J

HB10-10 : NORAH NCUBE vs ALBERT GUMBO and REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI
Ruled By: CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

HB42-13 : LILIAN MOYO vs DOUGLAS CHIDUMO
Ruled By: NDOU J and KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

HMA01-19 : ANNA MAWARE vs EMMANUEL CHIWARE
Ruled By: MAFUSIRE J

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Law Portal Zimbabwe

Division of Assets of the Spouses re: Cohabitation and Customary Law Union

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE Ruled By: OMERJEE J and HLATSHWAYO J

HH60-11 : CONSTANTINE MABAUDI vs VIOLA MHORA Ruled By: KARWI J and CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI Ruled By: GUVAVA J and MAWADZE J

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA Ruled By: MATHONSI J

HB77-11 : NUTE NCUBE vs SHEILA MAGLAZI Ruled By: KAMOCHA J and CHEDA J

HB10-10 : NORAH NCUBE vs ALBERT GUMBO and REGISTRAR OF DEEDS Ruled By: KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA Ruled By: NDOU J and MATHONSI J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE Ruled By: CHEDA J and MATHONSI J

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI Ruled By: CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI Ruled By: GUVAVA J and MAWADZE J

HB42-13 : LILIAN MOYO vs DOUGLAS CHIDUMO Ruled By: NDOU J and KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA Ruled By: NDOU J and MATHONSI J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA Ruled By: UCHENA J

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA Ruled By: TAKUVA J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE Ruled By: GUVAVA J and MAWADZE J

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE Ruled By: MAVANGIRA J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA Ruled By: GOWORA J and PATEL J

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA Ruled By: MAVANGIRA J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO Ruled By: MAWADZE J

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA Ruled By: MWAYERA J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA Ruled By: MAKARAU JP and HLATSHWAYO J

HMA01-19 : ANNA MAWARE vs EMMANUEL CHIWARE Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

HH60-11 : CONSTANTINE MABAUDI vs VIOLA MHORA
Ruled By: KARWI J and CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA
Ruled By: MATHONSI J

HB77-11 : NUTE NCUBE vs SHEILA MAGLAZI
Ruled By: KAMOCHA J and CHEDA J

HB10-10 : NORAH NCUBE vs ALBERT GUMBO and REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI
Ruled By: CHITAKUNYE J

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

HB42-13 : LILIAN MOYO vs DOUGLAS CHIDUMO
Ruled By: NDOU J and KAMOCHA J

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

HH35-16 : SHINGISAI MARYLN NYAMUKUSA vs GILBERT KARENGA MASWERA
Ruled By: UCHENA J

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

HMA01-19 : ANNA MAWARE vs EMMANUEL CHIWARE
Ruled By: MAFUSIRE J