The Supreme Court has dismissed an appeal by a Harare lawyer, Samantha Nhende, challenging a High Court ruling that found she was in a tacit universal partnership with her former partner, Andrew Zigora, effectively upholding the division of their jointly acquired property.
The ruling reinforces the growing judicial recognition of tacit universal partnerships in Zimbabwe, particularly in relationships governed by customary law but exhibiting economic interdependence and joint contribution akin to civil marriages.
In Zimbabwe, a tacit universal partnership can arise when a couple cohabitates without a formal marriage, and a court determines they were operating as a partnership based on their conduct.
To establish this, one must prove: each party contributed something to the partnership (money, labour, or skills), the business was for their joint benefit, and the objective was to make a profit.
Follow us on WhatsApp | LinkedIn for the latest headlines
In a recent judgment delivered by Justice Hlekani Mwayera, sitting with Justices Susan Mavangira and George Chiweshe, the court ruled that Nhende's appeal had no merit.
The court also confirmed the lower court's decision to allocate 55% of the property to Nhende and 45% to Zigora.
"The appeal be and is hereby dismissed with no order as to costs," the Supreme Court ruled.
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.
Nhende earned US$2,000 monthly as a legal officer, while Zigora was also formally employed by a leading telecommunications company, receiving a gross monthly salary of US$5,000.
Prior to the parties entering into the customary law union, Nhende owned a stand in Manresa Suburb, which was allocated to her by her employer.
Zigora 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 with Zigora responsible for paying rentals of US$550 per month and utilities.
Nhende 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 Nhende's bank. The title was thus in Nhende's name.
Zigora's stand in Madokero was used as collateral for the mortgage loan.
He also made deposits into Nhende's bank account, including payments for the home insurance of the property.
Zigora also made contributions towards the renovations of the property.
The parties also incurred and shared medical bills in their efforts to undergo medical procedures to help Nhende conceive.
The medical issue led to the fallout of the parties, culminating in the dissolution of their customary law union.
Zigora 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, Nhende'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 on that property.
Nhende in the High Court 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.
The property in question, located at 2 Glynde Avenue, Mabelreign, was purchased during the parties' unregistered customary law union, which lasted from August 2010 to February 2021.
Though the property was registered in Nhende's name and the mortgage was drawn from her salary, the court found that Zigora contributed significantly to the household, renovations, and insurance, and had even offered his own property in Madokero as collateral for the mortgage loan.
The High Court had ruled that the property was jointly owned through a tacit universal partnership--a finding Nhende contested on appeal.
Nhende's legal counsel, Mr. T. Mapuranga, argued that the High Court erred in law by finding a tacit universal partnership without direct evidence of pooled finances or shared ownership intentions. He further contended that the court failed to consider Zigora's Madokero stand as part of the parties' combined estate and that improvements made by Zigora should have been addressed under unjust enrichment rather than as contributions justifying ownership.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
However, the Supreme Court disagreed.
Justice Mwayera wrote: "Their conduct during the acquisition and development of the property meets the requirements of a tacit universal partnership... The parties consistently consulted each other on every intricate detail relating to the acquisition and renovation of the property."
Mwayera noted that the doctrine of tacit universal partnership applies where individuals in a close personal relationship contribute jointly--financially or otherwise--for their shared benefit, even outside a formal legal marriage.
On the issue of law application, the court reinforced that when customary law is inadequate to resolve a property dispute equitably, general law principles, such as tacit universal partnership and unjust enrichment, may justifiably be invoked.
Addressing the division of the property, the court held that the High Court exercised its discretion judiciously by acknowledging both parties' contributions.
Regarding the Madokero property, the Supreme Court concurred with the respondent's argument that it was irrelevant to the current dispute as it was not part of the pleadings before the High Court and had been acquired before the union.
