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 counterclaim 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 at 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 counterclaim 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 counterclaim. 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 $31.00 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
car-port, 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
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, Mutsadyanga's evidence corroborated the plaintiff's
evidence.
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 realised 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 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 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 at 181 G 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 at 542D-E 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 suit;, 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
defendant 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.
Dzimba, Jaravaza & Associates, plaintiff's legal
practitioners
Vasco Shamu & Associates, defendant's legal
practitioners
