Tshuma v Ndlovu (HCA 13 of 2001) [2004] ZWBHC 71 (26 May 2004)

Judgment No. HB 71/2004 Case No. HCA 13/01 ANGELAS TSHUMA Versus FRANCIS NDLOVU IN THE HIGH COURT OF ZIMBABWE CHEDA & NDOU JJ BULAWAYO 9 FEBRUARY & 27 MAY 2004 Judgment CHEDA J: Appellant appeals against the decision of the Magistrates’ Court who upon the dissolution of the marriage did not award to respondent her share in the matrimonial home. The facts of the matter are that the parties were customarily married in 1981. They acquired a house using their marriage certificate (African Marriage Act Cap 238). In 1983 the marriage failed and appellant was sent to her home. To date the parties lived separately resulting in respondent marrying another woman. In the year 2000 appellant sued respondent for divorce, maintenance for the children and sharing of property. She claimed 50% share of the matrimonial home. The trial court dismissed her application for the share in the matrimonial house. Her reason was that she had not contributed to this house for 17 years. From the evidence during the trial which was repeated on appeal it is undisputed that appellant was involved in informal trade. Respondent acknowledges this fact though he now states that the money was not used towards the development of this house. In Ntini v Masuku HB-69-03 I stated that time has now come that not only tangible contributions should be recognised for the purposes of valuating a party’s share in the matrimonial home. It is a fact that during marriage a man’s social status HB 71/04 is enhanced by virtue of the fact that he is married. Surely that alone is recognisable. In this case, not only was his social status uplifted but he managed to acquire a house from the City Council by virtue of his marital status. This fact can not be ignored. It is our view therefore that these factors have to be taken into account in determining her contribution in the house. The period of marriage is also a factor which should be taken into account. In this instance the parties lived together for a year. I am of the view that on the basis of unjust enrichment the appellant is entitled to a share in the matrimonial house and I am of the further view that it will be just and equitable to recognise her contribution. Taking into account her contribution and the duration of their union the following order is made: 1. That appellant be and is hereby awarded 20% of the net value of the proceeds of the house while respondent is awarded 80%. 2. That the house be valued by a reputable estate agent and the costs of the valuation be shared in accordance with their respective percentages in paragraph 1. 3. Applicant shall be paid her share within 3 months after the valuation of the house failing which the house is to be sold to best advantage and the proceeds shared accordingly. 4. Respondent to pay the costs Ndou J ………………… I agree