Civil
Appeal
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 (pp.16-17):
“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
Cause 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 prerequisites 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 state 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.” (emphasis in the original)
In
Chapeyama
v Matende & Anor
2000 (2) ZLR 356 at p.368 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.”(emphasis
added)
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. See, for example, Mashingaidze
v Mugomba
HH-3-99, Chapendama
v Chapendama
1998 (2) ZLR and Chapeyama
v Matende, supra.
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, supra:
“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.” pp.5-6 of Judgment.
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
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 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 builders
and raising additional resources as amounting to only 15%.
The
court correctly rejected the argument that the other three former
wives were entitles 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.
HLATSHWAYO
J
OMERJEE
AJA: agrees
Hute
& Partners,
Appellant's legal practitioners
Mutsahuni,
Chikore & Partners,
Respondent' legal practitioners
