Gretrude Ruswa v Robert Mutema

The plaintiff and defendant entered into an unregistered customary law union in 1994 and were blessed with two children who are now adults. During the 29-year subsistence of the union, the parties acquired movable and immovable property, including stand number 5655 Zimre Park, Ruwa, which was registered in both parties' names. The plaintiff was continuously employed during the marriage and claimed to have contributed significantly towards the acquisition and development of the property. The parties developed irreconcilable differences and the union was dissolved customarily by payment of a divorce token. The plaintiff sought equal distribution of the property, arguing that the parties lived a modern way of life governed by general law rather than customary law. The defendant disputed the breakdown of the marriage and claimed he was the primary contributor to the property acquisition, arguing that customary law should apply and that he should retain the immovable property or receive 85% share while plaintiff receives 15%.

• Whether the customary law union had irretrievably broken down
• Whether general law or customary law should apply to the distribution of property acquired during the unregistered customary law union
• Whether the plaintiff made sufficient contributions to the acquisition and development of the immovable property to entitle her to a share based on unjust enrichment
• What proportion of the immovable property each party should be awarded

1. Each party awarded 50% share in stand Number 5655 Zimre Park, Ruwa, Harare. 2. Property to be valued by a valuer agreed to by the parties within 30 days. 3. If parties fail to agree on a valuer, one to be appointed by the Registrar of the High Court within seven days. 4. Defendant has option to buy out plaintiff's share within twelve months of receipt of valuation report or such other time as agreed. 5. If defendant fails to buy out plaintiff's share, plaintiff has option to buy out defendant's share within one month or any other time as agreed. 6. If neither party buys out the other, property to be sold by an estate agent agreed by parties or appointed by the Registrar, with net proceeds shared equally. 7. Each party to bear its own costs.

1. General law applies to the distribution of property upon dissolution of an unregistered customary law union where the parties lived a modern lifestyle and the estate includes immovable property, as the distribution of immovable property is alien to customary law. 2. For a claim based on unjust enrichment to succeed, the plaintiff must prove that: (a) the defendant was enriched; (b) the plaintiff was impoverished by such enrichment; (c) the enrichment was unjustified; (d) the enrichment does not fall within classical enrichment actions; and (e) there is no positive rule of law refusing an action to the impoverished person. 3. Both direct financial contributions and indirect contributions (such as homemaking, child-rearing, and performance of wifely duties) are relevant in determining a party's entitlement to property acquired during a customary law union. 4. The value of indirect contributions increases with the length of the union, and no monetary value can be placed on domestic duties and caring for the family. 5. A party alleging that the other party's contributions were minimal or insignificant bears the onus of proving such allegation with evidence.

The court observed that it is alien to customary law for a woman to own shares in a commercial entity. The court also noted that what is not denied in cross-examination is taken as admitted, citing Fawcett Operations P/L v Director of Customs and Excise & others 1993 (2) ZLR 12. The court remarked that the defendant's statement that he "did not need evidence as facts speak louder than evidence" was unmeritorious, emphasizing the fundamental principle that he who alleges must prove.

This case is significant in Zimbabwean family law and property law jurisprudence as it demonstrates the application of general law principles rather than customary law to property distribution upon dissolution of an unregistered customary law union. It reinforces the principle established in Marange v Chiroodza that customary law is inapplicable when the estate includes immovable property and the parties lived a modern lifestyle. The judgment emphasizes the importance of both direct and indirect contributions by spouses in property acquisition, particularly recognizing the value of a wife's domestic and maternal contributions over an extended period. It also clarifies the burden of proof on a party alleging that the other party's contributions were minimal or insignificant. The case provides guidance on how courts should assess the lifestyle of parties to determine whether general law or customary law should apply to property distribution.