RUSWA v MUTEMA (156 of 2025) [2025] ZWHHC 156 (13 March 2025)

3 HH 156-25 HCH 2416/23 GRETRUDE RUSWA versus ROBERT MUTEMA HIGH COURT OF ZIMBABWE Maxwell J HARARE; 15 November 2024 and 13 March 2025 Civil Trial S Mahuni, for the plaintiff A Mtima, for the Defendant MAXWELL J: Plaintiff and defendant contracted an Unregistered Customary Law Union. They were blessed with children who are now adults. During the subsistence of the union the parties acquired movable and immovable property. In her declaration plaintiff submitted that during the subsistence of the union to the present date she has been formally employed and contributed greatly towards the acquisition and development of the property and day needs of the family. The immovable property is registered in the names of both parties. Plaintiff submitted that the parties have developed irreconcilable differences which rendered the continuance of the union impossible and the union has since been dissolved customarily by the payment of a divorce token. She further submitted that the parties have been living a modern way of life governed by general law as opposed to customary law. In her view, if customary law is applied to the matter, it would cause a great injustice to her as she contributed significantly towards the acquisition of the property, and defendant would be unjustly enriched should he retain in his possession the property acquired through their joint effort. She prayed for the sharing of the property in equal proportions she indicated that that the parties have already shared the movable property and each should retain what is in his/her custody. Defendant gave notice of entering appearance to defend. In his plea he disputed the existence of irreconcilable differences between the parties. He insisted that the union is still in good standing and that in the event of any differences he would wish to reconcile with the plaintiff. He disputed the payment of a divorce token. He submitted that he was the only one gainfully employed during the acquisition of the immovable property. Further that the plaintiff was employed in temporary menial jobs with various organisations as a secretary or clerk where she was not earning much. He disputed that the plaintiff made any meaningful contribution to the acquisition of the property and submitted that her remuneration could not meet the household expenses but would supplement the daily petty cash expenses only. According to him, plaintiff got formally employed after the property was acquired and developed. He submitted that the parties were living a customary way of life and were involved in customary rites as evidenced by building a homestead at their rural area under chief Chikwanda in Masvingo. He proposed that customary law be applied to the matter whose dictates are that he retains possession of the immovable property whilst plaintiff takes possession of the household movable property. He proposed that he be awarded 85% of the shares of the property whilst plaintiff gets 15%. He insisted that they are still living as husband and wife and that the movable property was not shared. Pleadings were exchanged and a Joint Pre- trial conference was held. The following issues were highlighted in the Joint PTC minute filed on the 29 August 2024. Whether or not the marriage has irretrievably broken down. The parties subsequently appeared before two judges for a Pre Trial-Conference. On the 24 of September 2024 the following order was made. “1. The parties agreed that their customary union has irretrievable broken down. 2. The parties could not agree on how their immovable property should be distributed; therefore, the issue is referred to trial. 3. There shall be no order as to costs. 2) If so, whether or not the customary union was dissolved in terms of the customs. and immovable property known as stand number 5655 Zimre Park, Ruwa? The matter subsequently went to trial and the parties were the only witnesses. The plaintiff was the first to testify. Her evidence was as follows; she is a personal assistant to the directors at the Traffic Safety Council of Zimbabwe. She married the defendant in 1994 customarily. The marriage has since been dissolved. The parties lived a modern life style where she was employed and they contributed to the welfare of the family equally. They would go for holidays and would visit the rural home where they would use her inlaws homestead. The marriage lasted 29 years. The longest time she stayed in the rural area was nineties had a joint bank account and the parties acquired an immovable property in Ruwa She is claiming a 50% share therein. The property was acquired as a stand between 1996 and 1997. The parties started a company called Turning Point Engineering Services in which they hold equal shares. Finances from the company were used to construct the matrimonial home. At first they built a cottage into which they moved early 2000. They then started building the main house which they occupied in 2005. Defendant was the one on the ground so most of the records are in his name. Between 2006 and 2007 the company was not doing well. The defendant went to South Africa and she was left to fend for the children. Under cross-examination she stated that she was continuously employed and only stayed at home on maternity leave. She disputed that she exhausted her earnings funding her education. She insisted that the parties worked together and no one did more than the other. That was the plaintiff’s case. Defendant testified on his own behalf. His evidence was as follows: He confirmed marrying plaintiff customarily in 1994. He helped her in her studies until she acquired a Diploma in 2002. He had savings in standard Chartered Bank which he combined with money from various companies and built the rural home. The account and standard chartered bank was opened in 1991. Between 1995-1996 he opened a savings plus account at the same bank through which he saved money to buy a stand. At the same time he also contributed to a government housing project in Tynwald, Plaintiff deposited money into savings plus his account out of her own will. At the time the savings plus account matured, 2 stands in Zimre Park became available. He withdrew from the Government housing project Tynwald and was refunded which refund went towards the deposit for the Zimre Park stand. He paid for the conveyancing and transfer after the purchase price was paid in full. The property was registered in the names of both parties. He constructed a two bedroomed cottage at the stand. In 2000 they moved into the cottage from Chitungwiza. He funded the putting of slab for the main house. Before resigning from formal employment, he had formed a company called Turning Point Engineering which was a tool that he used to the companies he had been working with. Plaintiff was included in the company for the reason that it was not possible to have a one – man company. The main house was completed in 2005 but the water installation was completed in 2018. The plaintiff did not contribute anything significant in the process. Though the plaintiff was working, he never came across any of her payslip so he did not know how much she was earning. Plaintiff asked for his bank account number but he does not know how much she deposited therein. Under cross examination he insisted that plaintiff had not made any meaningful contribution to the acquisition and construction of the property in question. Under cross examination he conceded that he had not produced any evidence to support his averments but stated that he did not need it as facts speak louder than evidence. He stated that the deposits made by the plaintiff into his account were insignificant. He confirmed that the parties had equal shares in Turning Point Engineering. He admitted that the bank account for Turning Point Engineering would show payments received from the companies he would have rendered service to. He however stated that once the money was in Turning Point Engineering account, he would transfer it to his personal account. That was the defendant’s case. The applicable law Defendant argued that customary law should apply as the parties were living a customary way of life and were involved in customary rites. Apart from saying so in his pleadings, he did not elaborate when he testified. Plaintiff extensively addressed the mode of life the parties lived, She justified the application of general law on the basis that they only visited the rural home occasionally during public holdings.On such visits they would stay for less than a week before coming back to Harare.For 29 years they did not build in rural area but would stay in defendant’s parents’ house.They would visit tourist resorts like Great Zimbabwe and Nyanga.Their children were schooled in town.From the time they married to date she has been a working woman.She never went to reside in the rural area even in periods after termination of one job before getting another or during vacation. These averments were not disputed by the defendant. Plaintiff was not challenged on any of the averments during cross- examination. It is trite that what is not denied is taken as admitted. See Fawcett Operations P/L v Director of Customs and Excise & others 1993 (2) ZLR 12. Moreover, the distribution of immovable property has been held to be alien to customary law. In Marange v Chiroodza 2002 (2) ZLR 171 Makarau J (as she then was) stated: “……..customary law is inapplicable in all instances when the estate of the parties to a terminated unregistered customary marriage has to be distributed of the parties an unregistered union is raised and the estate includes land or rights to and the application of general law is justified.” In addition to the above it is also alien to customary law that a woman owns shares in a commercial entity. Plaintiff established that general law should apply in this case. The Law on Unjust Enrichment The requirements for a claim based on unjust enrichment to succeed were stated in Industrial Equity v Walker 1996 (1) ZLR 269. They are The defendant must be enriched,The plaintiff must have been impoverished by the enrichment of the defendant.The enrichment must be unjustified,The enrichment must not come within the scope of one of the classical enrichments actions and There must be no positive rule of law that refuses an action to the impoverished person. In Mashongedza v Mutsvanga HH 214/13 the court was satisfied that the evidence showed that the plaintiff did contribute to the purchase and construction of the property due to the fact that during the subsistence of the union she was gainfully employed and therefore made monetary contribution. Plaintiff in casu testified on her employment history and produced payslips as proof of employment. She also testified that she deposited part of her earnings into an account owned and operated by the defendant. She produced deposit ships to confirm that. She is a shareholder in Turning Point Engineering which generated money part of which was used to construct the property in question. Plaintiff testified engaging in extra activities of sewing and poultry rearing which raised cash towards the day to day running of the household and development of the property. In addition, she contributed in directly as a wife to the defendant and a mother to their two children. For unjust enrichment to succeed, the plaintiff ought to have contributed to the acquisition or improvement of the property in question. I am persuaded that plaintiff contributed directly and indirectly in his case. Defendant argued that the Plaintiff contribution is insignificant. It was not established for how long the deductions from defendant’s salary went into the savings plus account. It was not established how much was in the account when defendant left employment in 1999. Defendant did not attach even a single invoice for any work done through Turning Point Engineering on a bank statement showing payments made by clients. Plaintiff produced her pay slip and deposit slip in proof of her financial contribution. Defendant did not dispute any of them but just labelled them minimal or insignificant. He had the onus of proving how minimal or insignificant they were. In my view that could only have been possible had he produced evidence to show what he himself contributed. It is trite that “The basic principle at law is that he who alleges must prove, See Bonnyvies Extate (pvt) LTD v Zimbabwe platinum Mine (Pvt) Ltd & Anor CCZ 6 of 2019 in which Malaba CJ stated that where an affinitive assertion of a fact is not self- evident, he who asserts has an obligation to prove the same. The defendant did not discharge the onus of proving that plaintiff’s contribution was minimal or insignificant. In an event, it has been held that no monetary value can be placed on the indirect contribution made by looking after the home and caring for the family and any other domestic duties. See Usayi v Usayi 2003 (1) ZLR 684. The parties union was blessed with two boys who are both (majors no value can be placed on what it took to raise them from conception to adulthood. The union lasted twenty -nine (29) years. No value can be put to what the plaintiff did as a wife for duration. In Mufunani v Mufunani HH 32/16 it was stated that the value of indirect contribution increases with length of time. I am persuaded that the plaintiff’s direct contributions, coupled with the in direct contribution she made to the acquisition and development of the property entitles her to an equal share I therefore make the following order. Each of the parties be and is hereby awarded a 50% share in stand Number 5655 Zimre Park, Ruwa, Harare.The property is to be valued by a valuer agreed to by the parties within 30 days of this order.If the parties fail to agree on a valuer, one shall be appointed by the Registrar of the High Court within seven days of such failure. The defendant shall have the option to buy out the plaintiffs share from stand number 5655 Zimre Park, Ruwa, Harare within twelve months of the date of receipt of the valuation report or such other time as agreed by the parties.If the defendant fails to buy out plaintiff’s share within the time stated in 4 above, plaintiff shall have the option to buy out the defendant’s share from stand 655 Zimre Park Ruwa, Harare within a month of such failure or any other time as agreed by the parties. If the parties fail to buy each other out the stipulated or agreed time, the property is to be sold to the best advantage by an estate agent agreed by the parties failing which by one appointed by the Registrar of the High Court, and the net proceeds therefrom are to be shared equally between the parties. Each party shall bear its own costs. Mahuni& Matutu Attorneys at Law, plaintiff’s legal practitioners Jiti Law Chambers, defendant’s legal practitioners 3 HH 156-25 HCH 2416/23 3 HH 156-25 HCH 2416/23 GRETRUDE RUSWA versus ROBERT MUTEMA HIGH COURT OF ZIMBABWE Maxwell J HARARE; 15 November 2024 and 13 March 2025 Civil Trial S Mahuni, for the plaintiff A Mtima, for the Defendant MAXWELL J: Plaintiff and defendant contracted an Unregistered Customary Law Union. They were blessed with children who are now adults. During the subsistence of the union the parties acquired movable and immovable property. In her declaration plaintiff submitted that during the subsistence of the union to the present date she has been formally employed and contributed greatly towards the acquisition and development of the property and day needs of the family. The immovable property is registered in the names of both parties. Plaintiff submitted that the parties have developed irreconcilable differences which rendered the continuance of the union impossible and the union has since been dissolved customarily by the payment of a divorce token. She further submitted that the parties have been living a modern way of life governed by general law as opposed to customary law. In her view, if customary law is applied to the matter, it would cause a great injustice to her as she contributed significantly towards the acquisition of the property, and defendant would be unjustly enriched should he retain in his possession the property acquired through their joint effort. She prayed for the sharing of the property in equal proportions she indicated that that the parties have already shared the movable property and each should retain what is in his/her custody. Defendant gave notice of entering appearance to defend. In his plea he disputed the existence of irreconcilable differences between the parties. He insisted that the union is still in good standing and that in the event of any differences he would wish to reconcile with the plaintiff. He disputed the payment of a divorce token. He submitted that he was the only one gainfully employed during the acquisition of the immovable property. Further that the plaintiff was employed in temporary menial jobs with various organisations as a secretary or clerk where she was not earning much. He disputed that the plaintiff made any meaningful contribution to the acquisition of the property and submitted that her remuneration could not meet the household expenses but would supplement the daily petty cash expenses only. According to him, plaintiff got formally employed after the property was acquired and developed. He submitted that the parties were living a customary way of life and were involved in customary rites as evidenced by building a homestead at their rural area under chief Chikwanda in Masvingo. He proposed that customary law be applied to the matter whose dictates are that he retains possession of the immovable property whilst plaintiff takes possession of the household movable property. He proposed that he be awarded 85% of the shares of the property whilst plaintiff gets 15%. He insisted that they are still living as husband and wife and that the movable property was not shared. Pleadings were exchanged and a Joint Pre- trial conference was held. The following issues were highlighted in the Joint PTC minute filed on the 29 August 2024. Whether or not the marriage has irretrievably broken down. The parties subsequently appeared before two judges for a Pre Trial-Conference. On the 24 of September 2024 the following order was made. “1. The parties agreed that their customary union has irretrievable broken down. 2. The parties could not agree on how their immovable property should be distributed; therefore, the issue is referred to trial. 3. There shall be no order as to costs. 2) If so, whether or not the customary union was dissolved in terms of the customs. and immovable property known as stand number 5655 Zimre Park, Ruwa? The matter subsequently went to trial and the parties were the only witnesses. The plaintiff was the first to testify. Her evidence was as follows; she is a personal assistant to the directors at the Traffic Safety Council of Zimbabwe. She married the defendant in 1994 customarily. The marriage has since been dissolved. The parties lived a modern life style where she was employed and they contributed to the welfare of the family equally. They would go for holidays and would visit the rural home where they would use her inlaws homestead. The marriage lasted 29 years. The longest time she stayed in the rural area was nineties had a joint bank account and the parties acquired an immovable property in Ruwa She is claiming a 50% share therein. The property was acquired as a stand between 1996 and 1997. The parties started a company called Turning Point Engineering Services in which they hold equal shares. Finances from the company were used to construct the matrimonial home. At first they built a cottage into which they moved early 2000. They then started building the main house which they occupied in 2005. Defendant was the one on the ground so most of the records are in his name. Between 2006 and 2007 the company was not doing well. The defendant went to South Africa and she was left to fend for the children. Under cross-examination she stated that she was continuously employed and only stayed at home on maternity leave. She disputed that she exhausted her earnings funding her education. She insisted that the parties worked together and no one did more than the other. That was the plaintiff’s case. Defendant testified on his own behalf. His evidence was as follows: He confirmed marrying plaintiff customarily in 1994. He helped her in her studies until she acquired a Diploma in 2002. He had savings in standard Chartered Bank which he combined with money from various companies and built the rural home. The account and standard chartered bank was opened in 1991. Between 1995-1996 he opened a savings plus account at the same bank through which he saved money to buy a stand. At the same time he also contributed to a government housing project in Tynwald, Plaintiff deposited money into savings plus his account out of her own will. At the time the savings plus account matured, 2 stands in Zimre Park became available. He withdrew from the Government housing project Tynwald and was refunded which refund went towards the deposit for the Zimre Park stand. He paid for the conveyancing and transfer after the purchase price was paid in full. The property was registered in the names of both parties. He constructed a two bedroomed cottage at the stand. In 2000 they moved into the cottage from Chitungwiza. He funded the putting of slab for the main house. Before resigning from formal employment, he had formed a company called Turning Point Engineering which was a tool that he used to the companies he had been working with. Plaintiff was included in the company for the reason that it was not possible to have a one – man company. The main house was completed in 2005 but the water installation was completed in 2018. The plaintiff did not contribute anything significant in the process. Though the plaintiff was working, he never came across any of her payslip so he did not know how much she was earning. Plaintiff asked for his bank account number but he does not know how much she deposited therein. Under cross examination he insisted that plaintiff had not made any meaningful contribution to the acquisition and construction of the property in question. Under cross examination he conceded that he had not produced any evidence to support his averments but stated that he did not need it as facts speak louder than evidence. He stated that the deposits made by the plaintiff into his account were insignificant. He confirmed that the parties had equal shares in Turning Point Engineering. He admitted that the bank account for Turning Point Engineering would show payments received from the companies he would have rendered service to. He however stated that once the money was in Turning Point Engineering account, he would transfer it to his personal account. That was the defendant’s case. The applicable law Defendant argued that customary law should apply as the parties were living a customary way of life and were involved in customary rites. Apart from saying so in his pleadings, he did not elaborate when he testified. Plaintiff extensively addressed the mode of life the parties lived, She justified the application of general law on the basis that they only visited the rural home occasionally during public holdings. On such visits they would stay for less than a week before coming back to Harare. For 29 years they did not build in rural area but would stay in defendant’s parents’ house. They would visit tourist resorts like Great Zimbabwe and Nyanga. Their children were schooled in town. From the time they married to date she has been a working woman. She never went to reside in the rural area even in periods after termination of one job before getting another or during vacation. These averments were not disputed by the defendant. Plaintiff was not challenged on any of the averments during cross- examination. It is trite that what is not denied is taken as admitted. See Fawcett Operations P/L v Director of Customs and Excise & others 1993 (2) ZLR 12. Moreover, the distribution of immovable property has been held to be alien to customary law. In Marange v Chiroodza 2002 (2) ZLR 171 Makarau J (as she then was) stated: “……..customary law is inapplicable in all instances when the estate of the parties to a terminated unregistered customary marriage has to be distributed of the parties an unregistered union is raised and the estate includes land or rights to and the application of general law is justified.” In addition to the above it is also alien to customary law that a woman owns shares in a commercial entity. Plaintiff established that general law should apply in this case. The Law on Unjust Enrichment The requirements for a claim based on unjust enrichment to succeed were stated in Industrial Equity v Walker 1996 (1) ZLR 269. They are The defendant must be enriched, The plaintiff must have been impoverished by the enrichment of the defendant. The enrichment must be unjustified, The enrichment must not come within the scope of one of the classical enrichments actions and There must be no positive rule of law that refuses an action to the impoverished person. In Mashongedza v Mutsvanga HH 214/13 the court was satisfied that the evidence showed that the plaintiff did contribute to the purchase and construction of the property due to the fact that during the subsistence of the union she was gainfully employed and therefore made monetary contribution. Plaintiff in casu testified on her employment history and produced payslips as proof of employment. She also testified that she deposited part of her earnings into an account owned and operated by the defendant. She produced deposit ships to confirm that. She is a shareholder in Turning Point Engineering which generated money part of which was used to construct the property in question. Plaintiff testified engaging in extra activities of sewing and poultry rearing which raised cash towards the day to day running of the household and development of the property. In addition, she contributed in directly as a wife to the defendant and a mother to their two children. For unjust enrichment to succeed, the plaintiff ought to have contributed to the acquisition or improvement of the property in question. I am persuaded that plaintiff contributed directly and indirectly in his case. Defendant argued that the Plaintiff contribution is insignificant. It was not established for how long the deductions from defendant’s salary went into the savings plus account. It was not established how much was in the account when defendant left employment in 1999. Defendant did not attach even a single invoice for any work done through Turning Point Engineering on a bank statement showing payments made by clients. Plaintiff produced her pay slip and deposit slip in proof of her financial contribution. Defendant did not dispute any of them but just labelled them minimal or insignificant. He had the onus of proving how minimal or insignificant they were. In my view that could only have been possible had he produced evidence to show what he himself contributed. It is trite that “The basic principle at law is that he who alleges must prove, See Bonnyvies Extate (pvt) LTD v Zimbabwe platinum Mine (Pvt) Ltd & Anor CCZ 6 of 2019 in which Malaba CJ stated that where an affinitive assertion of a fact is not self- evident, he who asserts has an obligation to prove the same. The defendant did not discharge the onus of proving that plaintiff’s contribution was minimal or insignificant. In an event, it has been held that no monetary value can be placed on the indirect contribution made by looking after the home and caring for the family and any other domestic duties. See Usayi v Usayi 2003 (1) ZLR 684. The parties union was blessed with two boys who are both (majors no value can be placed on what it took to raise them from conception to adulthood. The union lasted twenty -nine (29) years. No value can be put to what the plaintiff did as a wife for duration. In Mufunani v Mufunani HH 32/16 it was stated that the value of indirect contribution increases with length of time. I am persuaded that the plaintiff’s direct contributions, coupled with the in direct contribution she made to the acquisition and development of the property entitles her to an equal share I therefore make the following order. Each of the parties be and is hereby awarded a 50% share in stand Number 5655 Zimre Park, Ruwa, Harare. The property is to be valued by a valuer agreed to by the parties within 30 days of this order. If the parties fail to agree on a valuer, one shall be appointed by the Registrar of the High Court within seven days of such failure. The defendant shall have the option to buy out the plaintiffs share from stand number 5655 Zimre Park, Ruwa, Harare within twelve months of the date of receipt of the valuation report or such other time as agreed by the parties. If the defendant fails to buy out plaintiff’s share within the time stated in 4 above, plaintiff shall have the option to buy out the defendant’s share from stand 655 Zimre Park Ruwa, Harare within a month of such failure or any other time as agreed by the parties. If the parties fail to buy each other out the stipulated or agreed time, the property is to be sold to the best advantage by an estate agent agreed by the parties failing which by one appointed by the Registrar of the High Court, and the net proceeds therefrom are to be shared equally between the parties. Each party shall bear its own costs. Mahuni& Matutu Attorneys at Law, plaintiff’s legal practitioners Jiti Law Chambers, defendant’s legal practitioners