Ntini v Masuku (HCA 90 of 2001) [2004] ZWBHC 69 (11 June 2004)

Judgment No. HB 69/2003 Case No. HCA 90/01 KNOWLEDGE NTINI Versus DEFIENET MASUKU IN THE HIGH COURT OF ZIMBABWE CHEDA & NDOU JJ BULAWAYO 20 JANUARY & 12 JUNE 2003 Phulu for the appellant Defendant in person Civil Appeal CHEDA J: Appellant appeals against the decision of the community court, Bulawayo handed 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 by appellant. 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 HB 69/03 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:- 1. 2. 3. 4. 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 GARWE J (as he then was) in Mtuda v 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 determination. 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 Botswana to 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 HB 69/03 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) in Mtuda 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 69/03 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 ROBINSON J 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:- 1. 2. 3. 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 69/03 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 69/03 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 made:- 1. Appellant is ordered to pay 25% of the net value of the proceeds of the sale of stand 518 Mahatshula, Bulawayo to respondent. 2. That the stand be valued by a reputable estate agent. 3. Appellant to pay the costs. Ndou J ……………………. I agree Coghlan & Welsh appellant’s legal practitioners