Samantha Nhende v Andrew Zigora

### Preamble
Judgment No. SC 68/25
1
Civil Appeal No. SC 687/24
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REPORTABLE   (68)

SAMANTHA NHENDE

v

ANDREW ZIGORA

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, CHIWESHE JA & MWAYERA JA

HARARE: 10 MARCH 2025

T. Mapuranga, for the appellant

C. Damiso with E. Homera, for the respondent

MWAYERA JA:

On 10 March 2025, after hearing counsel and having considered the documents filed of record, this Court issued the following order:

“The appeal be and is hereby dismissed with no order as to costs”.

The court undertook to avail written reasons in due course.  The reasons are captioned     herein.

This is an appeal against part of the judgement of the High Court (“court a quo”) handed down on 27 November 2023.  The court a quo held that stand number 2 Glynde Avenue Mabelreign, Harare (“the property”) was the jointly owned property of a tacit universal partnership, acquired jointly by the appellant and the respondent.  In sharing the property the court a quo apportioned 55% share of the property to the appellant and 45% to the respondent.

FACTUAL BACKGROUND

The parties entered into an unregistered customary law union on 1 August 2010 and later dissolved it in February 2021.  Throughout the subsistence of the union, both parties were formally employed.  The appellant was employed as a legal officer, earning a salary of approximately US$2000.00 per month.  The respondent on the other hand was also formally employed receiving a gross monthly salary of US$5000.00.  Prior to the parties entering into the customary law union, the appellant owned a stand in Manresa Suburb, which was allocated to her by her employer. The respondent in turn also owned a stand in Madokero Suburb.

During the union, on 1 November 2015, the parties moved into a flat in Avondale.  They split financial responsibilities in the following manner:

The respondent was responsible for paying rentals of US$550, 00 per month and utilities.

The appellant was accountable for food, clothes and maintenance of the house.

With time the parties agreed to purchase a property in Mabelreign.  They mutually secured a mortgage home loan facility through the appellant’s bank.  The title was thus in the appellant’s name.

The respondent’s stand in Madokero was used as collateral for the mortgage loan.  The respondent also made deposits into the appellant’s bank account including payments for the home insurance of the property.  The respondent also made contributions towards renovations of the property.  The parties also incurred and shared medical bills in their efforts to undergo medical procedures to help the appellant conceive.  The medical issue led to the fall out of the parties culminating in the dissolution of their customary law union.

PROCEEDINGS BEFORE THE COURT A QUO

The respondent approached the court a quo seeking an order for the distribution of the matrimonial property of the parties.  He argued that the parties` unregistered customary law union was a tacit universal partnership in which both parties contributed individually and collectively to the acquisition of the property.  After obtaining the mortgage bond, the appellant’s salary was centred on the repayments of the loan whereas he catered for all other expenses including the renovations of the property, as it had been purchased to be a matrimonial home.  The parties intended to raise a family in that property.

The appellant, in the court a quo, averred that there was no tacit universal partnership between herself and the respondent, because they each managed their finances individually, even though they were staying as husband and wife.  She argued that the concept of tacit universal partnership does not apply to customary law unions.  She further argued that the purchase of the property was her sole idea and that the respondent was only a witness to the home mortgage loan.  The appellant submitted that the respondent was responsible for the payment of rentals and internet for the apartment they were residing at. In addition, she submitted that she provided the deposit for the mortgage loan from the sale of her Manresa stand.

The court a quo considered that the appellant contributed more financially towards the purchase of the property.  It found that the parties were in a tacit universal partnership and that all the parties’ contributions mattered.  It held that in relation to the property in contention, division of same between the appellant and respondent at the ratio of 55% and 45% respectively was appropriate.

PROCEEDINGS BEFORE THIS COURT.

Aggrieved by the judgment of the court a quo the appellant lodged the present appeal on the following grounds.

The court a quo grossly misdirected itself in the facts and subsequently erred at law in finding that the parties were in a tacit universal partnership in relation to their proprietary affairs yet there was no evidence presented to demonstrate that the parties had pooled funds for the purposes of acquiring any property.

The court a quo grossly misdirected itself on the facts and erred at law in finding that the respondent had contributed to the acquisition of the Mabelreign property without any finding and/or evidence of a contribution to acquisition of this property by the respondent.

The court a quo grossly, misdirected itself on the facts and subsequently erred at law in treating the respondent’s contributions to the renovation of the Mabelreign property as contribution to the acquisition of the same property hereby justifying a tacit universal partnership instead of treating that expenditure on renovations as improvement costs claimable under unjust enrichment.

The court a quo grossly misdirected itself and erred at law in exercising its discretion in the allocation of shares in Mabelreign property based on an incorrect legal principle, applying the provisions of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) to an unregistered customary union when such statute did not apply.

The court a quo grossly misdirected itself on the facts and erred in its exercise of discretion thereby committing a serious injustice by failing to consider the respondent’s Madokero property when deciding on an appropriate share for the respondent in the Mabelreign property. This property qualifies as an “asset of a spouse” under the Matrimonial Causes Act, and thus there was an omission of a highly relevant factor. (sic)

The appellant sought the following relief before this Court.

1. The appeal be allowed with costs

Paragraphs 1,2 and 6 of the judgment of the court a quo be set aside and substituted with the following:

It is hereby declared that stand number 2 Glynde Avenue Malbereign Harare held under deed of transfer 2120 – 2017 registered in the name of the defendant is declared as no sale property of the defendant.

The defendant shall pay the plaintiff the sum of US$10 000,00 within 60 days of this judgment being the value of improvements effected by the plaintiff on the property known as number 2 Glynde Avenue  Malbereign Harare held under the deed of transfer 2120 – 2017.

The plaintiff shall pay the defendant’s costs.

ISSUES FOR DETERMINATION

Two issues fall for determination in this matter.  These are:

Whether or not there was a tacit universal partnership between the appellant and the respondent.

Whether or not the court a quo judiciously divided the property between the parties.

SUBMISSIONS BEFORE THIS COURT.

Mr. Mapuranga, counsel for the appellant, contended that the distribution of the property resulted in a grave injustice as the court a quo did not consider the Madokero property which the respondent owned.  He contended that the court a quo erred in determining that the matrimonial property was jointly acquired property, given that the respondent failed to prove any direct financial contribution.  He further submitted that the court a quo should have distributed all assets of the parties including the Madokero Property, rather than limit its consideration to matrimonial assets alone.  He further raised the point that the appellant was offering US$10 000 to the respondent for improvements to the property.

Per contra Ms. Damiso counsel for the respondent contended that the issues relating to the Madokero property and the compensation for the improvements were not pleaded in the court a quo and hence they could not be related to.  She submitted that unregistered customary law unions are recognised as marriages under the new Marriages Act           [Chapter 5:17].  She contended that the fact that the legislature now acknowledges civil partnerships as falling within the ambit of the Act is an indicator that unregistered customary law unions should be accorded the same recognition. Counsel further submitted that the court properly invoked the doctrine of tacit universal partnership to remedy the injustice that would have arisen from the application of customary law.  In addition, Ms. Damiso submitted that the parties’ relationship bore the hallmarks of a partnership, as evidenced by the text messages in which they discussed the joint acquisition of the immovable property they both intended to be used as the matrimonial home and as an investment in their shared future.

Furthermore, counsel contended that the court a quo had exercised its discretion judiciously by recognising the appellant‘s substantially greater direct financial contribution and accordingly apportioning 55% of the matrimonial property to her and 45% to the respondent.  Counsel argued that the appellant could not claim, as she was doing, that the respondent’s share should have been lower without demonstrating that the decision of the court a quo was irrational.  Ms. Damiso argued that although application of s 7 of the Matrimonial causes Act in its entirety would amount to judicial overreach, there was nothing wrong in having regard to s 7 of the Act for guidance in the division of property.  Regarding the Madokero property, counsel submitted that such property was not subject to division since the dispute was resolved based on the principles of tacit universal partnership, which excludes property acquired prior to the partnership.  In any event the issue was not pleaded a quo.  She urged the court not to interfere with the court a quo’s judgment which involved proper exercise of discretion.

APPLICATION OF THE LAW TO THE FACTS.

Whether or not the respondent established the existence of a tacit universal partnership.

The doctrine of tacit universal partnership is instrumental in a claim over one spouse’s property, provided that the claimant can establish that their contributions were instrumental in advancing the shared estate.  Makarau J (as she then was) in Marange v Chiroodza 2002 (2) ZLR  171 (H) at 181 D-F made the following pertinent remarks:

“The arguments in support of the view that an unregistered customary law union establishes a tacit universal partnership are similar to the arguments advanced by jurists who favour holding that there is universal community of property between married persons.  Marriage itself is a union for life in common of a man and a woman. The legal rights and obligations created by marriage include community of life and the maintenance of one common household. This is an invariable consequence of marriage. As such, the parties contribute in their different roles to the successful running of their common household. The common estate may be built by the industry of husband and the thrift of the wife, but it belongs to them jointly as the one could not have succeeded without the other. As van der                        Heever J put it in Edelstein v Edelstein N.O and Ors the husband could not have successfully concluded his trade if his wife had not cooked the dinner and minded the children.  It is on this basis that I hold that there existed a tacit universal partnership between the plaintiff and the defendant in the above matter.”

See also Mtuda v Ndudzo 2000 (1) ZLR 710 (H).

The general principle emanating from the cited cases is that where parties pull their resources for their common good, even if they are not involved in a commercial venture for profit, they are in a universal partnership for the purposes of their livelihood and maintenance of their common household.  The partnership being tacit, has no defined expected contribution from each party.  The contributions whether direct or indirect are taken into consideration for distribution and apportionment.

In casu, it is not in dispute that the appellant secured a home loan facility from her bank with repayment being drawn from her salary.  It is also common cause that the property was acquired with the parties understanding that it be their matrimonial home.  The parties had a mutual commitment to combine their assets, labour and resources for purposes of shared enjoyment in their relationship. Where the loan was obtained and serviced through the appellant’s bank account, the respondent shouldered responsibilities of rentals in the apartment in which they initially stayed in.  He also contributed to the improvements of the property both directly and indirectly.   The text messages between the couple bore evidence to the effect that the property was acquired as a collaborative effort of the parties to serve the mutual interests of both of them.  The parties consistently consulted each other on every intricate detail relating to the acquisition and renovation of the property.  Despite the absence of a formalised agreement their collaborative efforts are a reflection of an intention to jointly benefit from any resulting advantage.  Their conduct during the acquisition and development of the property meets the requirements of a tacit universal partnership namely that:

each of the parties brought something into the partnership

The acquisition of property is carried on for the joint benefit of the parties.   Further in this case the parties were customarily married and acquired the property for their benefit as a matrimonial home.

It is settled that generally, the notion of tacit universal partnership which is rooted in general legal principles is inapplicable to unions governed by customary law.  Nonetheless, in situations where customary law lacks jurisdiction to address disputes, establish rights or impose obligations, general law serves as a supplementary framework to fill these gaps. Section 3 (1) of the Customary Law and Local Court act [Chapter 7:09] regulates the application of customary law as follows:

“3 Application of customary law:

Subject to this Act and any other enactment, unless the justice of the case otherwise requires –

customary law shall apply in any civil case where –

the parties have expressly agreed that it should apply, or

regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed it should apply, or

regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

the general law of Zimbabwe shall apply in all other cases.”

Given the above provisions of the law it is clear that when it comes to equitable distribution of property, general law application is resorted to in the interest of attaining justice.  This was ably and clearly elaborated in Maenzanise v Ratcliffe N.O & Anor 2001(2) ZLR            250 (H) wherein the court interpreted the aforementioned provision at p 257                                 (F -as follows:-

“The provision enjoins the court to make a choice of the law to apply in any such case before it – a choice between applying customary law or general law.  The justice of the case is the guiding factor.  Chatikobo J in Matibiri supra at p 9 had this to say about the phrase ‘unless the justice of the case requires’”:-

‘In my view the only logical construction of the phrase “unless the justice of the case otherwise requires” is that if the application of customary law does not conduce to the attainment of justice then the common law should apply.  This was precisely the case in Chikosi v Chikosi (1) 1973 (3) SA 142 and Chikosi v Chikosi (2) 1973 (3) SA 145R where it was held in essence that where the justice of the case requires common law principles shall apply…What emerges is that for one hundred years during which customary law has co-existed with Roman-Dutch law, it has always been provided through legislation that where the customary law rules were found to be inapplicable to the just decision of any matter in controversy, then in that event, resort should be had to common law principles.’”

It follows therefore, that where the application of customary law would be unjust or       impractical, then the court should have regard to the broad, established legal standards of common law.  Essentially, common law acts as a fall-back system to guarantee fairness and legal clarity when customary law falls short.  This principle was ably elaborated by Mathonsi JA in the case of Nhende v Zigora SC102-22 at p 11 wherein the Honourable Judge underscored the need for general law to fill the gaps where customary law is silent.  He stated the following:

“The question whether the court a quo failed to relate to that issue or that the first respondent did not establish a cause of action by not pleading it was of no moment at all for two reasons. Firstly, the first respondent pleaded a general law concept of a tacit universal partnership which I have said was enough to establish a prima facie right deserving protection by the court.”

In the present case, by pleading that the union was a tacit universal partnership the respondent effectively pleaded for general law to be adopted.  The reliance on tacit universal partnership and unjust enrichment concepts on its own bring general law into operation.  In casu, the respondent established the parties jointly managed and contributed to the shared interests of the property.  In a case which cannot be justly adjudicated without recourse to general law, the application of the latter is triggered so as to uphold the principles of justice.

Whether or not the court a quo judiciously divided the property between the parties.

Regarding whether or not the count court a quo judiciously divided the property, it is worth mentioning that the court a quo having found that the parties were in a tacit universal partnership exercised its discretion in dividing the property.  It is trite that the appellate court is loathe to interfere with the exercise of discretion by the court of first instance unless the exercise is unreasonable and is procedurally and legally wrong.  See Barros v Chimponda 191 (1) ZLR 58(5).  Also see in Kanyekanye v Kanyekanye SC 104-23  at              p 25 Chiweshe JA held as follows:

“In determining the distribution of the parties’ immovable property at divorce, the court a quo was guided by the provisions of the Matrimonial Causes Act and case law.  It exercised its discretion fairly and judicially after thorough interrogation of the facts.  An appeal court will not lightly interfere with the discretion of the court a quo.”

In casu the crux of the matter is whether or not the court a quo was grossly unreasonable in awarding the appellant a 55% share and the respondent a 45% share of the property.  The court a quo held that considering the joint intent and manner in which the parties pulled their resources to obtain and maintain the property, a tacit universal partnership was established.  Reliance on s 7 of the Act as a useful guidance in considering division of the property, cannot be said to be unreasonable or unlawful.  This is, more so in view of the fact that the parties, although in an unregistered customary union were for all intents and purposes living as husband and wife.  The court a quo took the provisions of s 7 of the Act as useful guidance but did not deviate from the fact that elements of a universal partnership had been established.

This Court made pertinent remarks which resonate with the present case in the case of Chapeyama v Matende and Anor 2000 (2) ZLR 356 (5) when it stated the following:

“…. the foundation for applying the concept of a tacit universal partnership was provided for in s 3 of the Customary Law and Local Court Act [Chapter 7:05], which provides that unless the justice of the case otherwise requires customary law applies in any civil case where the partners have expressly agreed that it should apply or, regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed that it should apply.  A general law concept such as tacit universal partnership may be relied on if in the circumstances the application of customary law would have led to injustice.  Where the elements of a tacit universal partnership have been established useful guidance may also be found in s 7 of the Matrimonial Causes Act [Chapter 5:13] in considering division of the union property”.

In the present case, the court a quo having found that the parties were in a universal tacit partnership and that resort to general law was called for to arrive at a just decision, properly considered the parties` contributions.  It is common cause that the home loan was in appellant’s name and repayments made in her name.  It was also not in dispute that the respondent paid for the improvements and renovations of the property and for insurance.  The court a quo judiciously exercised its discretion in that it reasonably identified and appreciated the parties’ direct and indirect contributions.  It thus awarded the appellant 55% as she made more direct contributions and 45% award to the respondent as he made fewer direct contributions on renovations and improvements.  Further the court a quo cannot be faulted for not considering the Madokero stand when the same was not pleaded before it. In any event the stand was acquired independently prior to the union when the parties agreed to pull resources together for their common good.

Having concluded that there was a shared intent and contribution towards the joint ownership of the property and that the parties were in a tacit universal partnership, the court a quo judiciously considered the 55%:45% division of property for the appellant and respondent respectively to be appropriate.  In the circumstances, there is no reason to interfere with the proper exercise of discretion by the court a quo. The appeal has no merit.

Regarding costs, this being a matrimonial matter, in the exercise of this Court`s discretion we find no justification in awarding costs. There shall therefore, be no order as to costs.

It is for the above considerations that this Court dismissed the appeal with no order as to costs.

MAVANGIRA JA	:	I agree

CHIWESHE JA		:	I agree

Muvingi, Mugadza, appellant’s legal practitioners

Zvimba Law Chambers, respondent’s legal practitioners