ROSEMARY MAPONGA                                          

versus

ELSON MAPONGA

and

FORTUNE TAPIWA MAPONGA

and

THE DIRECTOR OF HOUSING &

COMMUNITY SERVICES

HIGH COURT OF ZIMBABWE

MAKARAU J

HARARE 20 JANUARY 2004.

Opposed Application.

Mr Mhlanga for the applicant;

1^strespondent in default.

2^ndrespondent in person

            MAKARAU J: The applicant married the first respondent on 11 February 1997, in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. Prior to his marriage to the applicant, the first respondent was married to one Naome Maponga, who passed on in 1978. The second respondent was borne to the first respondent out of that marriage. He is a stepson to the applicant.  During the subsistence of his marriage to the late Naome Maponga, the first respondent was allocated a residential stand in Mabvuku by the local authority. This was on a rental basis. In 1981, the first respondent was offered an opportunity to purchase the property under a suspensive agreement of sale. He took up the offer.

In November 1997, the first respondent and the applicant moved from the Mabvuku property and set up home in one room that they rented in Ruwa. She alleges that this move was a deliberate one on their part to enable them to qualify for a residential stand in Ruwa. In their absence, the second respondent took occupation of the property in Mabvuku. She alleges that he did so as a caretaker. Later in 1999, she discovered that the second respondent actually occupied the property in his own right as cedant of the first respondent’s rights in the property. The first respondent had donated his rights title and interests in the property to the second respondent on 14 October 1997 without the knowledge of the applicant.

The relationship between the applicant and the first respondent became strained to such an extent that the first respondent left the matrimonial home and set up home with his mother at her rural home. The applicant soon followed the first respondent but their differences resurfaced and she had to leave.  At the time of the hearing of the application, the first respondent had abandoned the applicant. She alleges in her application that she is now homeless as the second respondent bars her from occupying the Mabvuku property.

In her application, the applicant prays for an order that declaring the Mabvuku property as the matrimonial home. She further prays for an order that permitting her to reside at the property without interference from the second respondent and for an order setting aside the cession of rights in the property between the first and second respondents.

First and second respondents opposed the application. In his opposing affidavit, the first respondent denies that the property in Mabvuku ever constituted his matrimonial home with the applicant and that the applicant never had any claim over the property.

The applicant’s claim to the property is not one of ownership. It is for an order declaring the Mabvuku property the matrimonial home between her and the first respondent and consequent to that order, an order directing that she be allowed to occupy the matrimonial home without let or hindrance from the second respondent.

The issue before me is not whether or not the applicant has the right to occupy the matrimonial home per se. It is whether the Mabvuku property constitutes the matrimonial home or failing that, whether there is any other basis in law upon which I can order that she be accommodated at the Mabvuku property.

The applicant argues that upon the solemnisation of her marriage to the first respondent, they both proceeded to the third respondent’s offices for her status to be recorded against title to the property. She further argues that the recording of her status against the title to the property transformed the property into the matrimonial home.

In my view, whether a particular abode constitutes the matrimonial home is a fact to be determined by where the parties set up home, and ordinarily reside. It does not have any direct bearing to the property owned by either or both of the parties. It usually coincides with the property owned by either of the parties but this is not necessarily the qualifying factor. This appears to me to have been the manner in which McNALLY JA determined the matter in Muzanenhamo and Another v Katanga 1991 (1) ZLR 182 (S), when he held that the parties’ matrimonial home moved to Mutare when Mr Katanga purchased a property there after being transferred to that City by his employers. Since Mr Katanga was going to work in Mutare, he was going to be ordinarily resident in that city and it is in that city that the matrimonial home was to be found.

In the application before me, it is common cause that the applicant and the first respondent stayed in the Mabvuku property up to November 1997 when they relocated to Ruwa. At Ruwa, they set up home in rented accommodation. That became the matrimonial abode. From Ruwa they never returned to set up home at the Mabvuku property. The first respondent returned to his mother’s home and there the applicant followed him. It thus appears to me that the parties never established a matrimonial home at the Mabvuku property.

The mainstay of applicant’s case in this matter is her status as the first respondent’s wife. The rights of a wife to property belonging to her husband is a problem area and is in my view far from being satisfactory. As observed by McNALLY JA in Muzanenhamo’s case, claims rested on the wife’s status as such have always posed difficulties for the courts. This is what he had to say at page 187F

“I turn to consider whether she may have a right of occupation arising from her status as a wife. This is always a difficult problem for the courts to solve. See for example Jackson v Jackson [1971] 3 All ER 774 (CA); Cattle Breeders Farm (Pvt) Ltd v  Veldman (2) RLR 261 (A) and Owen v Owen 1968 (1) SA 480 (E).

It is essentially a matter of equity. The courts will intervene where, for instance, the husband sells the house as part of a policy of harassment arising out of divorce proceedings.”

In this jurisdiction, the rights of a wife to the property of her husband are governed by common law. These common law principles, largely borrowed from English common law, were developed in an era that was not sensitive to the role of the wife in a marriage are heavily tipped in favour of the husband. The principles were developed in an era where the medieval authorities looked to the husband for dues rather than to the wife. Thus all property, even that of his wife, fell under his control for the due payment of dues. Thus, the principles place the wife in a position subservient to that of the husband in contrast to the thrust in modern law towards equality between spouses.

What are these principles and do they still have a place in modern society.

The rights of the wife to the property of he husband have been described as personal against the husband and as arising from her right to consortium and the right to be maintained by her husband.

In Cattle Breeders’s case, the following pronouncement by Lord UpJohn in National Provincial Bank Limited v Ainsworth (1965) 2 All ER 472 was approved:

“A wife does not remain lawfully in the matrimonial home by leave of her husband as the owner of the property. She remains there because, as a result of her status of marriage, it is her right and duty so to do and, if her husband fails in his duty to remain there, that cannot affect her right to do so. She is not a licensee of her husband, she is lawfully there as a wife, the situation is sui generis.”

This appears to be the only recognition afforded the status of a wife for immediately after citing the above with approval, the then Chief Justice Beadle went on to say:

“To what extent the rights of the wife which are of a personal character are binding against third parties must depend on the particular circumstances of each case, and in particular, on the relationship of the third party to the spouses.”

As against her husband, the right of the wife to remain in the matrimonial home is not absolute. At page 297 in Cattle Breeders’s case, the position was accepted as settled that the husband could eject his wife, even if he is in the wrong by deserting the family. This is what was said:

“A long line of cases seem to have laid down the proposition that even if the husband may be the defaulting party, he may eject the wife from the matrimonial home, provided he offers her suitable alternative accommodation or offers her the means of acquiring such suitable accommodation.”

As against third, parties, the position of the wife is equally precarious. A long line of cases seem to indicate that where there has been a genuine transaction between the third part and the husband, the wife’s personal rights against her husband do not enter the field of property law to defeat the third party’s claim. See National Provincial Bank Limited v Ainsworth (supra), Cattle Breeders Farm (Pvt) Ltd v Veldman (2) (Supra).

From the decisions in Ferris v Weaven  (1952) (2) All ER 233 and in Muganga v Sakupwanya 1996 (1) ZLR 217 (S) among others emerge the principle that where the third party associates with the husband to defraud the wife of her right on the matrimonial home, the wife’s right, derived from her status, is upheld. The wife must prove collusion between her husband and the third party to render her homeless.

In Nanda v Nanda [1967] 3 All ER 401, the court issued an injunction against a wife who visited his new home with another woman on the strength of a decree of restitution of conjugal rights. “She seemed to think that she had a right to arrive at the husband’s home, where he was living with Miss Atkinson and demand accommodation; perhaps even to exclude Miss Atkinson and take her place in the home.”  The court held that the wife had no right to trespass in a new home established by the husband with another woman.

It would then appear to me in summary that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. Firstly, she has no right to any property that the husband has that is not the matrimonial home. She only has limited rights to the matrimonial home that she and the husband set up. These rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife’s claims, thus completely alienating the matrimonial home without making any reference to the wife. Even the wife’s right to consortium with her husband is not absolute as evidenced by the decision in Nanga v Nanga (supra). Finally, the matrimonial home is determined by where the parties jointly intend to set up home.

Applying the above principles to the application before me, it would appear to me that the applicant’s status as wife will not do her much good. She does not have a matrimonial home to claim the right of occupation in respect of. The property that once belonged to her husband has since been alienated in circumstances where she cannot show that the second respondent acted in collusion with the first respondent to defeat her just claims. She and the first respondent voluntarily left the property not only to set up a new home but to acquire a property of their own in Ruwa. That they failed to do so does not make the Mabvuku property the matrimonial home in the stead of the failed acquisition.

In divorce matters and upon the death of the husband, the legislature has intervened to ease the iniquitous position that the wife finds herself in towards the matrimonial home.

Lord Hodson in National Provincial Bank Limited v Ainsworth, (supra) saw no reason why the wife’s personal rights against her husband, which are derived from her status, should enter the field of real property so as to clog the title of an owner. One could suggest many reasons. At the time of the decision, these may not have manifested themselves. The thrust of modern law is to continually recognise the gender role of wives and to raise this role to an equal one to that of men within a marriage. Just as Lord Upjohn recognised that the position of the wife, derived from her status is sui generis, so should her rights have been viewed rather than, as a trespasser or licencee of her husband’s a suggestion that his position is superior to hers.

It is hoped that a future court will venture to suggest that the bedrock upon which the principles that govern the rights of wives to the matrimonial property is outdated and that the principles have long outlived their mediaeval purposes.

I am shackled to the mediaeval chains by precedent.

In the result, the application is dismissed. There shall be no order as to costs.

Chihambakwe Mutizwa & Partners, applicant’s legal practitioners.