Lorraine Mashongedza v Confidence Mutsvanga

### Preamble
1
HH 214-13
HC 4028/2011
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LORRAINE MASHONGEDZA

versus

CONFIDENCE MUTSVANGA

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 09 NOVEMBER & 11 JULY 2013

FAMILY LAW COURT

P. Hamunakwadi, for the plaintiff

D. Sheshe, for the defendant

Trial Cause

MAWADZE J:	The plaintiff on 28 March 2011 issued summons out of this court seeking an order of sharing of assets the parties are said to have acquired together during the subsistence of a customary law union between the parties, and costs of suit.

The plaintiff alleges in her declaration that during the subsistence of the customary law union the parties jointly acquired some movable assets mainly household goods and an immovable property known as No. 31899 Unit P Seke Chitungwiza. According to the plaintiff her claim is based on the general law principle of unjust enrichment. The plaintiff alleges that the customary law union between the parties was dissolved in 2009 and that the defendant would be unjustly enriched if the property jointly acquired by the parties is not fairly shared between them. In her declaration the plaintiff alleges that the immovable property is registered in the names of both parties. The plaintiff however seeks to be awarded sole ownership of the immovable property and some household goods.

In his plea the defendant confirms the existence of the customary law union between the parties which he said ended on 23 June 2009, or date he later amended to October 2009. The defendant said that the parties did acquire some movable assets during the subsistence of the union which movable assets he is willing to share with the plaintiff. In respect of the immovable property the defendant disputed that the immovable property was jointly acquired by the parties. The defendant disputed that the immovable property was acquired during the subsistence of the union. According to the defendant the plaintiff is not entitled to any share of the immovable property which should remain the defendant’s sole and exclusive property.

The parties, during the course of the pleadings found each other and were able to amicably share the movable property. It is in respect of the immovable property that the parties remained poles apart.

In terms of the joint pre-trial conference minute the following issues were referred to trial;-

“1.	Whether or not the immovable property known as stand number 31899 Unit P Seke Chitungwiza was acquired at the time the parties were still staying together.

2.	Whether or not the plaintiff directly or indirectly contributed towards the purchase and the building of the property referred above.

3.	Whether or not the plaintiff is entitled to any share of the immovable property referred to above and if so what share.

4.	The stage the immovable property was at the time of separation.”

From the evidence adduced by both parties it emerged that certain relevant

facts of the case are common cause.

It is not in dispute that the parties entered into a customary law union in November or December 2006. The defendant performed all cultural rites relevant to such a customary law union and paid lobola. A child was born out of the union but unfortunately passed on soon after the birth in August 2007. It is common cause that the customary law union between the parties has ended. The parties however differ as to the causes thereof and the date the union ended. The plaintiff alleges that the customary law union ended because the defendant deserted her and is now married to another woman. The defendant on the other hand denies responsibility for the breakdown of the customary law union and instead blames the plaintiff whom he said openly told him that she wanted to have the customary law union dissolved and proceeded to desert him. The defendant confirms that he is how married to another woman.

From the evidence on record the parties could not agree as to when the customary law union ended, which is, the period the parties separated. According to the plaintiff the parties separated in December 2009. The defendant on the other hand initially said the parties separated on 23 June 2009 but later amended the date to October 2009. It would appear that this dispute about the date the parties separated is informed by the factual dispute in relation to the stage the immovable property was at the time of separation. I shall revert to this later. What is clear however is that the plaintiff and the defendant stayed together in a customary law union as husband and wife from December 2006 to October or December 2009, a period of about 3 years.

It is not in dispute that when they started to stay together in 2006 they were both employed as Municipal police officers by the City of Harare. The parties were of the same rank and earned the same salary. The defendant is still employed in the same capacity but the plaintiff resigned in January 2008 and started training as a nurse at Muwonde Hospital in Driefontein. When the parties separated the plaintiff was a student nurse.

Lastly, the parties agreed that at the time the parties separated the immovable property in dispute No. 31899 Unit P Seke Chitungwiza was under construction and not yet complete. The plaintiff alleges that the house in issue had been built up to the roof level.

The starting point in resolving the dispute between the parties in this case is to identify the choice of law which applies to this case. In doing so recourse is made to the provisions of section 3(1) of the customary Law and Local Courts Act [Cap 7:05] which provides as follows;-

“ 3. 	Application of customary law

1) 	Subject to this Act and 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 just and proper that it should apply;

b)	the general law of Zimbabwe should apply in all other cases.

2)	For purposes of paragraph (a) of subsection (i)--------------

“surrounding circumstances in relation to a case, shall without limiting the expression include------------

the mode of life of the parties..

the subject matter of the case.

The understanding of the parties of the provision of customary law or general law of Zimbabwe, as the case may be, which apply to the case.

The relative closeness of the case and the parties to the customary law, or the general law of Zimbabwe as the case may be.”

It is clear from the pleadings and the issues adopted by the parties in the joint pre-trial conference minute that the parties were alive to the choice of law in this case. While the parties had entered into a customary law union it remains without doubt that the parties are agreed that the general law of Zimbabwe should apply to this case. I say so because the plaintiff makes it very clear that the cause of action in this matter is unjust enrichment, which is a general law principle. The defendant did not put into issue the applicability of the general law of Zimbabwe in this case. I understand the defendant’s contention to be simply whether on the facts of this case the plaintiff has been able to prove a claim based on unjust enrichment. Further, when regard is made to the surrounding circumstances in relation to this case, it is clear that the general law of Zimbabwe should apply. This finding is informed by the following factors;-

The parties were living in Chitungwiza leading virtually a modern life. They were both employed as Municipal police officers by the City of Harare. They spent most of their time in the city and acquired household goods listed in the declaration. Currently the plaintiff is a qualified nurse and the defendant is still employed by the City of Harare. The subject matter of this case relates to sharing of an immovable property which concept is outside the “maoko” or “umai” property under customary law.

While it is accepted that the parties entered into a customary law union I have no doubt from the evidence led that the parties understand more the provisions of the general law of Zimbabwe. The relative closeness of this case and the parties is to the general law of Zimbabwe rather than to customary law. I entirely associate myself with the views of MAKARAU J (as she then was) in Marange v Chiroodza 2002 (2) ZLR 171 (H) at 177 G-H in which the learned Judge said;

“In my view, in all cases where the distribution of the estate of the parties in an unregistered union is raised and the estate includes land or rights to land the application of general law is justified. To apply customary law to the distribution of such an estate will perpetuate an injustice and to discriminate against African women who chose to marry according to custom”. See also Chapendama v Chapendama 1998 (2) ZLR 18 (H); Muringaniza v Munyikwa 2003 (2) ZLR 342 (H).

As already said the parties have already agreed to amicably share the movable assets which they have which compromise of household goods. I am therefore satisfied that general law of Zimbabwe should apply. The justice of this case therefore demands that the matter be dealt with in accordance with the general law of Zimbabwe rather than customary law.

While this court has been dogged for quite some time with the injustice most African women who are married in accordance with unregistered customary law “marriages” experience at the dissolution of such unregistered unions in relation to the sharing of the assets of the parties in such unions, our law has evolved over the years. It is now accepted that despite the inapplicability of the Matrimonial Causes Act [Cap 5:13] in such cases, 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 or tacit universal partnership. See Zimnat Insurance Company v Chawanda 1990 (2) ZLR 143 (S); Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H); Feremba v Matika 2007 (1) ZLR 337 (H).

It is clear from the facts of the case that the plaintiff has nailed her colours on the mast of the concept of unjust enrichment rather than tacit universal partnership. The factors the court should consider in dealing with a case where the cause of action is unjust enrichment were assessed in the case of Ntini v Masuku 2003 (1) ZLR 638 (H) at 642 C-F in which CHEDA J had this to say;

“The only basis which I find to be appropriate is unjust enrichment. The applicant admits that he was married to the respondent and that she contributed to the development of the property and, recognising that, offer her $14 000 in full, and final settlement. He clearly does not recognise her meaningful contribution to the marriage. In my view, and I hope I am correct, the fact that a man is married, that on its own changes his status and he derives comfort therefrom and as such it should be regarded as a meaningful contribution by the wife who would have chosen to marry him after all.. The fact that a woman carries out all the household chores and is also sent on various errands geared towards either the development or upkeep of the home should be regarded as a contribution which should be considered at the dissolution of any marriage. Contribution should not only be confined to tangible but should extend to intangibles where positively possible. Failure to do so in my view, will result in unjust enrichment………….Although an unregistered customary marriage is not regarded as a marriage under the general law to an extent of recognising the contribution made by a spouse in such a union, I hold the view that time has come that such a marriage union should be recognised as the marriage institution for all interests and purposes as it serves the same purpose as the registered marriage.”

I entirely, and without hesitation associate myself with these views. I now proceed to apply these principles to the facts of this case. In doing so I shall pay particular attention in the contribution of the parties’ whether direct or indirect, to the acquisition of the immovable asset in issue.

Before I deal with the evidence of the parties, I wish to briefly deal with the exhibits produced during the trial. They were all produced by the defendant.

Exhibit 1 – is a certificate of occupation of the immovable property House No. 31899 Unit P Seke Chitungwiza (hereinafter the Chitungwiza property). It is dated 18 August 2009. The plaintiff is listed in that document as a wife. This is what probably caused the defendant to amend the date the union ended from June 2009 to October 2009.

Exhibit 2 – is an offer letter from Chitungwiza Municipality to the defendant dated 15 May 2009. This confirms as to when the Chitungwiza property was acquired in relation to the customary law union between the parties.

Exhibit 3 (a) and (b) – relates to payments made in relation to the Chitungwiza property. Exhibit 3(a) shows that while the stand was allocated to the defendant on 17 February 2009 at a value of US$200 the full payment was only made on 15 May 2009, which is the same date the surveying fees of US$190 were paid as per Exhibit 3(b).

Exhibit 4 – is a lease agreement of the Chitungwiza property between the Chitungwiza Municipality and the defendant signed by the parties on 4 January 2009 and 18 May 2009 respectively. This dispels the plaintiff’s allegation that she jointly owns the property with the defendant and that the property is registered in the names of both parties.

Exhibit 5 (a) – is a Boundary and Pegs Confirmation form in relation to the Chitungwiza property signed by the defendant on 28 July 2007 and Exhibit 5 (b) is proof of payment of surveying fees by the defendant of US$50.00.

Exhibits 6.1 to 6.8 are invoices produced by the defendant as proof of payments he made in purchasing building materials for the construction of the Chitungwiza property. In brief each exhibit entails the following;

Exhibit 6.1 – an invoice in the defendant’s name dated 20 August 2009 for 6 door frames valued US$180,00.

Exhibit 6.2 – an invoice produced by the defendant for payment of 3 door frames and one kitchen door frame dated 20 August 2009 for US$105,00.

Exhibit 6.4 is an invoice produced by the defendant dated 10 August 2009 for 18 bags of circle cement valued at US$144.00.

Exhibit 6.5 – is an invoice produced by the defendant dated 31 July 2009 for 1000 common bricks valued at US$192,00.

Exhibit 6.6 – is an invoice dated 10 August 2009 produced by the defendant for 25 bags of cement valued at US$192,00.

Exhibit 6.7 is an invoice produced by the defendant dated 13 August 2009 for 20 bags of cement valued US192,00.

My brief comment is that Exhibits 6.1 to 6.7 shows that it is the defendant who purchased the building materials itemised on those invoices. Secondly the exhibits show that all the building materials itemised therein were purchased within a month from 31 July to 30 August 2009.

Exhibit 7 is a quotation for the building materials required for the construction of the Chitungwiza property compiled by a builder known as Mapinga dated 13 August 2009.

Exhibit 8 is the Building Progress report of the Chitungwiza property which reflects the spot checks which were done by the relevant authorities as the construction of the property progressed. It reflects the following;-

excavation and concrete were checked on 7 August 2009.

ii)   brick footing, floor slab and damp proof course was checked on 10 August 2009.

iii)  brick work to window level height, door frames and window frames was checked

on 25 August 2009.

As per Exhibit 8 there are no further checks done as from 25 August 2009 to date. This is so despite the defendant’s evidence that the roof has now been erected. This confirms the plaintiff’s evidence that the relevant authorities would not inspect the construction of the property in issue timeously. This in my view support the contention that Exhibit 8 can cannot be used as proof of the stage of the construction of the property either at the time the parties separated or as at now.

I now turn to the evidence of the parties in relation to the direct and indirect contribution to the acquisition and development of the Chitungwiza property taking into account the issues referred to trial as per the joint pre-trial conference minute.

It is clear from the plaintiff’s evidence and the documentary evidence produced by the defendant that the Chitungwiza property was acquired by the parties at the time they were still together. Even if one was to accept that the parties separated in October 2009 as per defendant’s evidence this would not assist the defendant’s case. I wonder why the defendant put this into issue when the evidence is so clear. This does not at all enhance the defendant’s credibility.

The parties are not agreed as to the stage of the Chitungwiza property was at the time of separation either in October 2009 or December 2009. According to the plaintiff the construction was at roof level. According to the defendant the construction stage was at window level. I am inclined to accept the plaintiff’s evidence in this respect. Firstly the defendant has been inconsistent as to when the parties separated. Initially the date was put as June 2009 and later changed to October 2009. Secondly the defendant seeks to place reliance on Exhibit 8 as proof of the stage of the construction property when the parties separated. I have already explained why Exhibit 8 cannot be relied upon in that respect. My finding therefore is that at the time of separation the stage of the Chitungwiza property was at roof level as per the plaintiff’s evidence. I am however cognisant of the fact that this is a 7 roomed house which as at now though incomplete has been roofed after the plaintiff and the defendant had separated. According to the defendant the property has now been roofed but is still has to be floored, plastered and tiled. The ceiling has not been put, and the plumbing work is to be done, doors fitted and the whole house painted. It has not been disputed that the house is currently incomplete and inhabitable. The plaintiff’s claim can therefore only be in relation to the stage the property was when the parties separated, which is the time the union ended. This would exclude the improvements done after the separation which relate to the erection of the roof The valuation to be done of the property in issue in relation to the plaintiff’s claim can only be in relation to all the brick work up to the roof level as per Exhibit 8, and excludes the roof.

The last issue to consider is whether the plaintiff directly or indirectly contributed to the purchase and the building of the Chitungwiza property and if she did, the extent of the share of or a share in value of the property in issue as at the time the parties separated.

The plaintiff’s evidence is that she directly and indirectly contributed to both the purchase and the building of the property.

I accept the plaintiff’s evidence that she directly contributed to the family income from the time the parties entered into the customary law union, in December 2006 until the time they separated. The plaintiff was gainfully employed from December 2006 to January 2008 in the same capacity as the defendant. They both were on the same salary scale, a fact which the defendant grudgingly accepted. Despite the defendant’s evidence I am satisfied that whatever income the parties earned from December 2006 to January 2008 both parties equally contributed.

From January 2008 to the time of separation the plaintiff although now a student nurse at Muwonde Hospital at Driefontein still earned some income of US$150 to US$200 per month. I agree that this amount may have been not sufficient to meaningfully contribute to the building of the property as the plaintiff had to pay for tuition fees and other related expenses. I do not share the defendant’s view that such a contribution to the family income although minimal should be totally ignored. While it may be true that from January 2008 the date of separation the defendant shouldered the financial burden to a very large extent, the plaintiff’s contribution remains valid. I accept the defendant’s evidence that he assisted the plaintiff with tuition fees and groceries while she was at school. I also accept the evidence led that throughout the period the plaintiff would only come home during weekends once or twice a month and she would not have time to perform household chores in the same manner a full time house wife would do.

The defendant conceded in cross examination that the plaintiff made indirect contribution as a wife from December 2006 to the time they separated. The parties shared conjugal rights. A child was born although the child passed on soon after birth. The plaintiff who was in full time employment performed household chores like cooking, cleaning, washing and providing company and comfort to the defendant for about 3 years. While I accept that as the time progressed the parties faced serious problems in the union culminating in their separation, I do not accept the defendant’s incredible evidence that the plaintiff from 2008 to date of separation did not contribute anything whether direct or indirectly.

The plaintiff’s evidence was however unconvincing as regards her role in .both the purchase and the building of the property. I have no cause not to accept her evidence that the parties discussed and agreed to save money in order to purchase the immovable property. The plaintiff testified that before the actual purchase of the Chitungwiza property they both agreed to pull their financial resources together that were in Zimbabwe dollars. She said they would illegally exchange this into foreign currency and that she would contribute from her salary. The plaintiff was not able to quantify her financial contribution due to the hyper inflation from 2006 to 2009 but said she indeed contributed in equal measure. The plaintiff said they kept the foreign currency they earned in the house and that it is from such savings that they were able to purchase the stand and purchase the building materials within a short period of time. Indeed from the evidence on record the building material was purchased within a month and the construction done to almost roof level within the same period. The defendant was not able to challenge the complainant’s evidence meaningfully in this regard. I therefore accept that indeed the parties saved some income which they latter used to purchase and develop the stand. The only problem with the plaintiff’s evidence is that she was unable to quantify her contribution in exact amounts.

In terms of direct contribution to the construction of the property the plaintiff’s evidence is that she was at school at the material time and that the defendant shouldered all the responsibilities. The plaintiff accepted that it is the defendant who sourced the plan of the building, looked for the builders and bought most of the building material. The plaintiff said she only bought damp course and some brick force. The plaintiff was unable to produce any documentary evidence to buttress her claim. She was also unable to give the value of the building material she bought.

The plaintiff’s evidence on how the stand was purchased remained largely unconvincing. She was unable to even state the correct purchase price of the stand, giving various amounts. I am more inclined to accept the defendant’s evidence in this regard. The defendant produced documentary evidence supporting how the stand was acquired, the purchase price paid and the building materials bought. It is clear however that the defendant was keen to down play the plaintiff’s contribution whether direct or indirect. The defendant told the court that he used his salary of about US$600 per month to purchase the stand for US$200. He denied ever discussing in any manner with the plaintiff the purchase of the stand. In fact he said when he acquired the stand the plaintiff was not there. He further stated that he bought the building material single handedly from his income. He even denied that the plaintiff performed any household chores.

The defendant’s evidence is not only exaggerated but cannot possibly be true. Under cross examination he admitted taking the plaintiff to the construction site when she had come home during weekends from Driefontein. This is consistent with the plaintiff’s evidence that the parties worked together and consulted each other. The property in issue was acquired in early 2009 when the parties were still together. While the defendant said from 2009 he had long ceased to regard the plaintiff as his wife and that the plaintiff denied him conjugal rights he conceded under cross examination that he visited the plaintiff at her school during some weekends. If indeed the defendant had long ceased to enjoy warm relations with the plaintiff he would not in May 2009 put the defendant as a beneficiary on the lease form of the property and as his wife on the certificate of occupation.

I was therefore not surprised when the defendant later conceded that he enjoyed good relationship with the plaintiff from 2006 to about 2008. He also admitted that he agreed to share movable property with the plaintiff because she contributed. He conceded that she performed household chores. Despite these concessions he insisted that the plaintiff is not entitled to any share of the Chitungwiza property.

I am satisfied on the evidence led that the plaintiff did contribute the purchase and construction of the Chitungwiza property. The plaintiff during the subsistence of the union was gainfully employed hence made monetary contribution. She also made indirect contribution as a wife which contribution is not easy to quantify in monetary terms. See Matibiri v Kumire 2000(1) ZLR 492 (H). While both parties remained unhelpful as to the share to be awarded to each party in the Chitungwiza property, I am satisfied that the plaintiff has made a case, on a balance of probability for sharing of the Chitungwiza property at a value to be assessed in relation to the stage of the building at the time parties separated. I assess the plaintiff’s direct and indirect contribution to the acquisition and development of the Chitungwiza property to be at 40%. The plaintiff is entitled to a 40% share of the value of the Chitungwiza property calculated at the value of the said property assessed to the roof level excluding the roof.

In relation to costs I believe the defendant has needlessly put the plaintiff out of pocket and he should pay her costs.

Accordingly it ordered as follows;-

The plaintiff is awarded a 40% share and the defendant a 60% share in the immovable property known as  No 31899 Unit P Seke Chitungwiza.

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

The valuation of the said property shall be done taking into account the stage of the construction of the same property, which all the brick work to roof level excluding the roof.

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

The parties shall equally share the costs of valuation.

The defendant shall within one (1) calendar month from the date of valuation have an option to buy out the plaintiff’s 40% share in the immovable property as assessed in terms of clause 3 above.

In the event of the defendant failing to buy out the plaintiff’s 40% share of the immovable property in terms of clause (6) above, the appointed Estate agent shall sell the immovable property by private treaty to the best advantage of the parties and pay the net proceeds there from to the parties at the ration of 40% share for the plaintiff and a 60% share for the defendant assessed in terms of clause 3 above after deducting the Estate agent’s commission and any other expenses and taxes associated with the sale.

The Sheriff of the High Court of Zimbabwe shall be empowered to sign all necessary transfer papers and do all necessary to pass transfer to the purchaser of the immovable property in terms of clause 7.

The defendant shall pay the costs of suit.

Mupindu & Mugiya Law Chambers, plaintiff’s legal practitioners.

Chadyiwa & Associates, defendant’s legal practitioners