Judgment No. HB 69/2003
Case No. HCA 90/01
IN THE HIGH COURT OF ZIMBABWE
CHEDA & NDOU JJ
BULAWAYO20 JANUARY & 12 JUNE 2003
Phulu for the appellant
Defendant in person
CHEDA J: Appellant appeals against the decision of the community court,
Bulawayohanded down on 27 July 2000 in which the court awarded the respondent a
quarter share of the value of stand 518 Mahatshula, Bulawayo.
The parties were married to each other under customary law in 1995. In 1996
they acquired stand 518 Mahatshula (hereinafter referred to as “the property”) and it
was registered under appellant’s name. Appellant paid a deposit of $4 000 and the
balance was paid in instalments. The union has since been dissolved. Appellant was
gainfully employed throughout the union while respondent was formally employed
only for a couple of months. It is not disputed by appellant that respondent was
involved in cross-border trading and used to sew seat covers for sale. It is her
argument therefore that during her formal and informal employment she
contributed $14 300 towards the construction of the property, this of course is denied
The court a quo awarded her a quarter share of the value of the property. This
award, according to the court was based on the principle of tacit universal partnership.
It is this finding that Mr Phulu attacks, as he is of the view that it does not apply to an
unregistered customary law union. This view is indeed correct. The principle of tacit
universal partnership is part of law and generally in order for it to apply the following
requirements must be fulfilled:-
each of the parties must bring something into the partnership or must bind himself or herself to bring something into it, whether money or labour or skill.
The business to be carried out should be for the joint benefit of the parties.
The objective of the business should be to make profit; and
The agreement should be a legitimate one.
These requirements were clearly laid down by GARWEJ (as he then was) in
Mtudav Ndudzo 2000 (1) ZLR 710(H). An unregistered customary law union on its
own does not entitle a party to successfully claim his/her right under the principle of
tacit universal partnership. A party so claiming must lay a foundation under general
law in order for such a claim to succeed. It is upon the establishment of a legal
foundation that the court can then assess the claim and thereby make its
Mr Phulu has argued that respondent did not substantially contribute towards
the purchase of the stand and therefore to accord her a quarter share of the house is
evidently exceeding her contributions. It was respondent’s evidence that she
contributed $14 300,00 towards the construction of the property. She raised $14 000
from sewing and selling seat covers, was employed as a till operator for three months
and was earning $1 500 per month. During the construction period she used to go to
Botswanato purchase building materials for the construction of this property.
Appellant admitted that respondent was at one time both formally and
informally employed but further argues that her income was used for buying food,
cosmetics and maintenance of her hair. He therefore denies that she made any
meaningful contribution to the purchase and development of the property. He then
offered her $14 000 as her contribution towards the construction of the property.
It is a fact that the majority of marriages in Zimbabwe are unregistered, and are
therefore governed by customary law. For a number of decades there has been a
significant inflow of the African population from the rural areas to the urban centres.
As a result of this migration, a sizeable number of people find themselves caught
between a web of customary practices on one hand and urban demands on the other
which require them to lead western life styles. This, has ushered in confused and
confusing matrimonial scenarios to people’s daily lives. It is in this confusion that
African married women by virtue of their customary and religious background still
find themselves being shifted to backward and meaningless positions in society, even
where they now commercially contribute to their households.
Gauging by the number of claims coming before these courts, brought by
the impoverished and desperate women against their husbands, time has come, in my
view, for the courts to take a positive and progressive approach in addressing the
inequities in our legal system in order to where practically possible assist women In
their endeavour to find justice. The increased number of cases coming before these
courts is a clarion call by these members of our society for judicial intervention.
GARWE J (as he then was) inMtuda supra at p 717D-E stated;
“Notwithstanding the fact that s 7 of the Matrimonial Causes Act [Chapter 5:03] applies only in cases where the marriage is solemnised, various decisions of this court have recognised the need for the woman to be afforded protection at the time of a customary union. A woman who is married according to customary law is now entitled to inherit from a deceased’s estate. Yet the same woman faces an uphill struggle to get a share of the matrimonial property in the event that her customary marriage is terminated.”
The purpose of a law is to save the interest of the people, where it is just to do
so, where the people it is supposed to serve regard it as an unjust, on many
instances the said law falls into disuse. In as much as the courts have a duty to apply
the law as it is, it is however now generally accepted that judges have an inherent duty
to make law as they are required to meaningfully contribute to law reform and
development. In Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H)
at 225D ROBINSONJ drove the last nail to the coffin regarding the need for judges to
play their role in the law development when he stated,
“The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country (my emphasis) may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold to their precedents too closely, they may well sacrifice the fundamental principle of justice and fairness for which they stand.”
The pertinent question is whether or not respondent has laid a foundation or
established a cause of action which entitled her to claim under the principles of a tacit
universal partnership. In Mtuda supra, the court was of the view that the cause of
action can either be that:-
the parties were in a tacit universal partnership, or
that she was in a joint ownership with her husband; or
that it is on the basis of unjust enrichment.
In the present case it is clear that there was no tacit universal partnership and
no joint ownership. The only basis which I find to be appropriate is unjust
enrichment. Appellant admits that he was married to respondent and that she
contributed to the development of the property and in that recognition offered 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 social status and he derives comfort therefrom
and as such it should be regarded as a meaningful contribution by the wife who would
have chosen not 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 tangibles but intangibles where positively possible. Failure to do so in
my view, will result in unjust enrichment. Unjust enrichment on its own is a cause of
action which is one of the requirements under the principle of tacit universal
partnership. Although an unregistered customary marriage is not regarded as a
marriage under 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.
In Chapeyana v Matinde & Ano 1999(1) ZLR 534(H) CHINHENGO J held
that where a customary law marriage is dissolved, even where a tacit universal
partnership has not been pleaded, a decision and distribution of property acquired
during the subsistence of the customary union is possible. I fully and comfortably
associate myself with this reasoning.
In the present case I find that the principle of unjust enrichment is indeed
present and it is on this basis that a cause of action is founded which entitles
respondent to a share in the property. Appellant admits that respondent contributed
to the development of the property although he insists that the contribution was
negligible and therefore respondent should be awarded $14 000 only. Such award is
according to him adequate to cater for her contributions to the development of the
property. Respondent was no ordinary rural woman whose job was to carry a bucket
of water, firewood and bear children as it were. She had one leg in the rural areas
where she subscribed to customary dictates but at the same time had another leg in the
urban centre where she was employed both formally and informally thus
contributing to development and upkeep of this property.
It will be unjust for her to leave a home which she was attached to and which
she probably thought was hers for life with such a meagre figure of $14 000. As
pointed above and in various cases which have come before these courts, there is a
need to come to the rescue of women in our society who continue to be down trodden
by men who take advantage of laws which have remained stagnant in a male
dominated society. The present injustice in the system clearly manifests itself in
different approaches in the distribution of property after the death of a husband on one
hand and the distribution of property upon dissolution of the marriage. There is
therefore a need for uniformity in approach namely that it should not be an
issue whether the distribution of property is necessitated by the death of a husband or
dissolution of a marriage.
The appeal is accordingly dismissed with costs and the following order is
1. Appellant is ordered to pay 25% of the net value of the proceeds of the sale of stand 518 Mahatshula, Bulawayo to respondent.
That the stand be valued by a reputable estate agent.
Appellant to pay the costs.
Ndou J ……………………. I agree
Coghlan & Welshappellant’s legal practitioners