Viola Chagweka v Sydwell Nsingo

### Preamble
1
HB 28/21
HC 1117/17
---------


VIOLA CHAGWEKA

Versus

SYDWELL NSINGO

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO27 MARCH, 29 & 30 MAY, 24 SEPTEMBER,

27 SEPTEMBER, 15 OCTOBER 2019, 10 MARCH 2020 AND 11 MARCH 2021

Civil Trial

Mrs D Phulu and Miss M.N Sibanda, for the plaintiff

M Mahaso and T Muganyi, for the defendant

MABHIKWA J:	The plaintiff issued summons against the defendant.  She alleged that she and the defendant were married in terms of Shona custom in December 2006.  She said that the defendant is therefore her estranged customary law husband.  The parties are now living separately and not as husband and wife.  There are three minor children born of the union namely Byron Sydwell, Darrel Sydwell and Mia Sydwell Nsingo.

During the subsistence of the said union, there developed and existed a “tacit universal partnership between the parties wherein the two were equal partners.  The plaintiff was employed by Exortica Nurseries from 2003 to 2012 and she was thereafter involved in gold mining.  She added in her evidence that she was also engaged in the day to day running of the family’s taxi business venture.

She averred that the defendant was employed by the Zimbabwe Revenue Authority from August 2009 to date of issue of summons.

Through their industry and thrift, both parties contributed to the successful running of a common household and built a common estate during the subsistence of the said union.  It was agreed between the parties that there was an existing maintenance order for the minor children.  It was further agreed that the maintenance access rights, variation or discharge thereof shall continue to be regulated by the Maintenance Court.

Ultimately, the issue of the dissolution of the union, maintenance and custody of the minor children was resolved at the pre-trial conference stage.  It was agreed at the pre-trial conference and also at the start of this trial that this court has two (2) issues to decide, that;

(a)	What constitutes partnership property?

(b)	How should the property be divided upon dissolution of the partnership.

I must say that at the end of the hearing in this matter, the parties agreed and were directed to file their closing submissions on or before 1 April 2020.  They did not.  They had to be reminded several times to file the closing submissions.  On 22 July 2020, the plaintiff filed her closing submissions.  Despite several further reminders, the defendant failed to file his submissions.  This judgment therefore has had to be written without defendant’s closing submissions.

What Is Partnership Property?

The most common and easy type of partnership to deal with is one that is regulated by an agreement, usually a written partnership agreement.  It is usually an agreement between parties not necessarily related by marriage.  As already stated, it is usually written, but it may also be verbal or “tacit.”

The second type of partnership property, in my view is the property wherein the parties are together in some form of marriage union, especially an unregistered customary law union.  They agree tacitly, that whatever they acquire during the subsistence of that union would be “partnership” or “union property.”  This second type and the term partnership was described aptly in Buttors v Mincora 2012 (2) ALL SA 485 per BRANDA JA where he held that;

“The second type consists of the societas univercerum quae ex questu veniunt where the parties agree that all they may acquire during the existence of the partnership from every kind of commercial undertaking, shall be partnership property.”

In Chapeyama v Matende and Another 2000 (2) ZRL 356 (S) per MUCHECHETERE J (as he then was), the appellant was formerly married to the 1st respondent.  They had married under a customary law union that was not registered.  They lived together for several years.  They had two (2) children.  They acquired considerable property during the subsistence of the union through their joint efforts.  The property included a house registered in their joint names.  The husband terminated the relationship and sought an order from the High Court that the wife’s name be deleted from the deed in connection with the house.  The wife counter claimed for a fair distribution of all the assets acquired during the subsistence of the Union, including the house.

It was held that the foundation for applying the concept of a tacit universal partnership was provided for in section 3 of the Customary Law and local Courts Act (Chapter 7:05), which provides that unless the justice of the case otherwise requires, customary law applies in any civil case where the parties have expressly agreed that it should apply or, regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed that it should apply.  A general law concept such as tacit Universal partnership may be relied on if in the circumstances, the application of customary law would have led to injustice.  Where the elements of a tacit universal partnership have been established, useful guidance may also be found in section 7 of the Matrimonial Causes Act, (Chapter 5:13) in considering the division of the union property.

It was held further, that it was on the basis of section 3 of the customary law and local courts act that the application of the principles of section 7 of the Matrimonial Causes Act could be justified, rather than on the basis of the court’s reformative duty to interpret customary law in a progressive manner.  However, it would be desirable for the law to be amended to provide that section 7 should apply to an unregistered customary law union.

The learned judge went on to hold that the case was one where the justice of the case required that the general law should apply and where the elements of a tacit universal partnership had been established.

The said section 3 (1) of the Act provides as follows that;

“Subject to this Act any other enactment, unless the justice of the case otherwise requires –

a)	Customary law shall apply in any civil case where-

(i)	the parties have expressly agreed that it should apply; or

(ii)	regard being had to the nature of the case and the surrounding circumstances; it appears that the parties have agreed it should apply; or

(iii)	regard being had to the nature of the case and the surrounding circumstances, that it appears just and proper that it should apply;

b)	The general law of Zimbabwe shall apply in all other cases (emphasis is mine)

See also Chapeyama v Chapeyama – 2000 (2) ZRL 175 (S)

In Sibanda and Another v Sibanda - 2005 (1) ZRL 97 (H) per ZIYAMBI JA (as she then was), the parties lived together for several years and then got married under the Customary Marriages Act.  The husband’s previous marriage to another woman subsisted.  The parties owned nine (9) immovable properties as well as numerous vehicles.  Apart from one property and 1 car, all the property, movable and immovable, including the matrimonial house were registered in the names of one or other company, or nominees of the appellant the directors of those companies were the appellant’s parents.  One was registered in the name of one of his girlfriends.  The marriage was nullified but the judge awarded the wife a house registered in the name of one company.

I am convinced, and I am fortified in that conviction, by the above authorities, that the current case is a proper case wherein a tacit universal partnership has been shown.  The general law and the concept of a Universal partnership shall apply.  The parties’ property shall be treated as partnership or union property.  I must say, as is usually the case in an acrimonious parting in divorce, that the evidence on both sides was replete with accusations, counter accusations and point scoring.  Some of the evidence and counter accusations bordered on criminality particularly in respect of the defendant and his brother, a police officer.  This court will avoid repeating much of the irrelevant evidence and also the already decided issues.

VIOLA CHAGWEKA

In short, the relevant portions of her evidence were that she and the defendant entered into a customary union in 2005.  In that year she was pregnant with their first child.  The defendant was not employed then but she was employed by Nursery Exotica.  In 2006, lobola was paid for her but she literally paid her own lobola as she loved him.  He was not employed and had no money.  Her relatives wanted lobola.  She then took her own money and somebody was sent to her family to pay.

In 2013, she saw him taking ARVs.  He had concealed that fact to her.  They quarreled and parted.  The parting was again messy as it involved accusations and counter accusations of assaults, theft etc.  With time they reconciled and defendant wanted her back.  Meanwhile she had already told her parents the truth about the 2006 lobola.  When he wanted her back, she and her relatives insisted that lobola be paid properly this time.  Defendant obliged and paid the lobola.  One Gonduremi was the go between on both occasions.  Meanwhile, the defendant had gotten employed with the Zimbabwe Revenue Authority (ZIMRA) in 2009.

In the same year in 2009, a close relative and dependent of her former employer, one Norma Hughes passed away.  She had been looking after Norma Hughes herself.  Hughes’s relatives met over her estate.  They resolved to give the plaintiff US$9 000,00 which they did.  In fact she said the total amount she received from her former employers was US$13 900.00.  She produced evidence in the form of documents particularly affidavits from Erica Clare Keogh and Cathrine Anne Coekroft to prove that fact.  The documents were produced by consent and were not disputed in cross-examination.  It is the quantum of money received that defendant was disputing.

It was the plaintiff’s evidence that some of the money together with her savings from her salaries and others, was used to purchase the parties’ first immovable property which was No. 10B Hitman Drive, Willsgrove, Bulawayo.  She also implored the court to keep in mind the fact that for about four (4) years from 2005 to 2009 she was also the breadwinner of the family, single handedly as the defendant was not yet employed.  She also had to look after the minor children.  After the purchase of the first property, it had been agreed that the next property, if any, would be registered in her name.  They then bought property on auction.  In the spirit of an African cultural marriage set-up, the defendant did the bidding as the husband although she too was present.  When the time came to confirm the buyer and to do the sale agreement, the auctioneer said he would write the name of the physical bidder, hence once again, the defendant’s name was written.  She said thereafter, the defendant would promise ad infinitum, that the registration would be changed.  She said in any case, like all African men, the defendant wanted all family property to be registered in his names which did not necessarily mean that he contributed or purchased it alone.

The plaintiff said apart from the immovable property, she contributed immensely financially in starting a commercial transport (taxi) business on a grand scale.  In addition, she was responsible for the day to day management of the business plus the minding of the tree (3) minor children of the union.  At the time of the hearing, the two (2) boys were said to be at Christian Brothers College (CBC) whilst the girl was also said to be at a  girls only private school with all 3 paying expensive school fees.

Of the motor-vehicles, one of their most priced and perhaps the very first was a Toyota Venture which she says she wholly purchased from her pocket in its acquisition to the extent that when they parted briefly over the ARVs,  she took it with her as she felt very sentimentally attached to it.  The defendant, according to her, maliciously reported her for theft but of course she returned with it when they re-united.  The other vehicles included three (3) sprinters, 2 Iveco minibuses, a Ford Ranger, a Toyota Belta, a Toyota Axelle, two (2) Toyota Hiace Combis.  She said all in all, there were twelve (12) vehicles when the relations soured.

The plaintiff said that although she believed she had contributed more, she was willing to accept a 50% share of the Union or partnership property.

SYDWELL NSINGO

The defendant did not dispute that for about four (4) years he was formally unemployed whilst the plaintiff was the breadwinner in the family.  He however almost insultingly says that the plaintiff was just about a toilet cleaner who had nothing and contributed nothing.  He actually had to be reminded to mind his language and rude metaphors.  He argued that although he was not employed for some time, he had earnings for his family as a man, at the same time being at school himself.  He testified that when he eventually got employed by ZIMRA, he took charge of his family and single handedly purchased all the family assets.  He said he kept improving himself educationally at the same time buying property and paying the children’s fees.  According to him, during the subsistence of the customary law marriage, he acquired two (2) immovable properties only.  These were No. 10 Albert Hitman Drive, Willsgrove Park in Bulawayo and the Sunningdale flat.  He said he paid lobola on Christmas day in 2010 after the plaintiff had initially produced the money that paid for her lobola in 2006.  He said it was troubling him inside, that it was not him who had paid the 2006 lobola.  He decided to do the right thing and paid in 2010.

The defendant also claimed that his first vehicle which he said he acquired single handedly, was a Toyota venture, the same one claimed by the plaintiff as the one she bought from her own pocket.  The defendant says after the Toyota Venture, he used to own numerous motor-vehicles, some he would buy for personal use, some he said he would buy for business that is to say for re-sale and for commercial use as public transport.  He argued that the plaintiff was exaggerating both her contribution and the amount of property acquired.  According to him, the plaintiff contributed nothing in whatever form and deserved to get nothing.  He said he purchased a Mazda vehicle and thereafter the Toyota Axio.  He said he acquired so many vehicles and that some had become history due to wear and tear.   He said some were not even registered in his name.  He said for instance that the house at Selborne Park was not partnership property whilst two (2) motor vehicles belonged to his brother Prosper Nsingo.  This in fact is where the plaintiff almost blew her top and counter accused the defendant of using his position at ZIMRA and that of his brother as a Policeman to unlawfully change property ownership whilst cheating her in the process.  She said the Selborne Park house was partnership property.  She said she however had no proof of whatever nature , but knows that the defendant has allowed a girlfriend to stay there and may have registered it in the girlfriend’s name.  Ultimately, the defendant insisted that the plaintiff deserved to get nothing but out of his own benevolence, he would offer her the Sunninghill flat, the Toyota Belta – ADV 8076, 1 commuter omnibus of her choice and half the household property which he said defendant already had taken.

As already stated above, this is a clear case where a tacit universal partnership has been established and the principles of general law guided also by the provisions of section 7 of the Matrimonial Causes Act shall apply.  Though he probably contributed more, the defendant exaggerated his own contribution as well.  It is clear that he cannot honestly say in the circumstances that he is entitled to everything (100 %) whilst the plaintiff is entitled to nothing (0%) of the acquired property.  I must say also that relative contributions by parties are always very difficult to mathematically calculate.  I will also not include in the sharing the Selbourne Park house allegedly belonging to defendant’s girlfriend. and the two (2) vehicles a Mercedes Benz and Sprinter allegedly belonging to Promise Nsingo.  This is so because plaintiff said she could not produce documentary proof that the property was indeed Partnership property though now registered in those people’s names.  I would say a sharing of the property on a 65% to plaintiff and 35% to defendant basis would be just and equitable in the circumstances.

Accordingly I order as follows

1.	An order that the maintenance, custody and access rights of the minor children Darrel Sidwell Nsingo, Byron Sidwell Nsingo and Mia Nsingo shall continue to be determined and regulated by the Maintenance Court as per the existing Maintenance Court.

2 (a)	That the plaintiff is awarded the following as her sole and exclusive property;

(i)	Flat No. 206 Sunningdale Flats, Bulawayo.

(ii)	Toyota Belta – Reg No. ADV. 8076.

(iii)	1 Sprinter Mercedes Benz – Reg No. ADC 3058

(iv)	1 Toyota Hiace Combi Reg No. ADZ 6035.

(v)	1 Motor Vehicle – Reg No. ADC 3157

(vi)	2 x Samsung Flat Screen T.V sets

(vii)	1 x Samsung double door fridge

(viii)	2 x king size beds

(ix)	1 multi choice decorder and dish set

(x)	1 washing machine (Samsung)

(xi)	1 x 4 plate stove

(xii)	½ share of all utensils

(xiii)	1 set of sofas

2(b)	That the defendant is awarded the following as his sole and exclusive property;

(i)	Stand No. 10 Albert Yeatman Drive, Willsgrove, Bulawayo

(ii)	Toyota Axio – Reg No. ADX 6622.

(iii)	Mercedes Benz Sprinter – Reg No. ACQ 2300

(iv)	Ford Iveco Reg No. ACQ 2397

(v)	Ford Ranger (Double Cab) Reg No. ACM 1097

(vi)	Sprinter vehicle – Reg. No. ADC 3057

(vii)	1 minibus (Toyota Hiace) Reg. No. ADZ 6036

(viii)	1 motor vehicle ADC 3157

(ix)	Iveco minibus Reg. No. ACC 3744

(x)	1 x Samsung 42” TV

(xi)	1 Queen size and 1 double bed

(xii)	1 x single door fridge

(xiii)	1 x gas stove

(xiv) 1 multi choice decorder.

(xv)	½ share of all utensils

3.	Each party to pay his or her own costs of suit.

Mesdames Vundhla-Phulu & Partners, plaintiff’s legal practitioners

Tanaka Law Chambers, defendant’s legal practitioners