Martha Wazili v Pauline Mandingo N.O. and Others

Wilfanos Gabriel Mashingaidze died intestate on 25 November 2013, leaving behind a farm known as Glasalla in Darwin district measuring 1105.9293 hectares. The plaintiff, Martha Wazili, claimed a 50% share in the farm. She alleged that she had been in a customary union with the deceased since 1986 and that they had entered into a tacit universal partnership in 1987 to purchase and operate the farm as a commercial enterprise. The 4th defendant, Chengeto Mashingaidze, was the deceased's civil law widow, having married him in 1967. Chengeto contested Martha's claims and sought to be declared the sole beneficiary of the farm. Martha claimed she contributed significantly to the farm's operations through labor, management, supervision of various farming activities, shops, and a milling company, particularly when the deceased was engaged elsewhere or in ill health. Chengeto argued that she and the deceased purchased the farm using their savings, pension funds, the sale of their Chinhoyi house, and loans, and that Martha's contribution was minimal.

• Whether a tacit universal partnership existed between the plaintiff and the deceased in respect of the purchase, development and running of the farm
• Whether the plaintiff and the deceased jointly owned the farm in equal shares
• Whether the estate of the deceased was unjustly enriched to the detriment of the plaintiff
• What percentage share, if any, the plaintiff was entitled to in the farm
• Whether the plaintiff needed to exhaust domestic remedies under section 52(8) of the Administration of Estates Act before bringing the claim
• The applicable law governing the dispute - whether customary law or general law principles should apply

1. The plaintiff's claim for a declaratur that a tacit universal partnership existed between the plaintiff and Wilfanos Gabriel Mashingaidze was dismissed. 2. The plaintiff's alternative claim for joint ownership of the farm in equal shares was dismissed. 3. The plaintiff's alternative claim for unjust enrichment succeeded. The plaintiff was entitled to 15% of the farm or its value. 4. Costs of suit to be borne by the estate of the late Wilfanos Gabriel Mashingaidze.

For a tacit universal partnership to exist, four requirements must be met: (1) each partner must bring something into the partnership or bind themselves to bring something, whether money, labor or skill; (2) the business must be for the joint benefit of the parties; (3) the object must be to make profit; and (4) the agreement must be legitimate. The approach to determining whether a tacit agreement exists is whether it is more probable than not that such agreement was reached. For unjust enrichment, the plaintiff must prove: (1) the defendant was enriched; (2) the plaintiff was impoverished by the enrichment; (3) the enrichment was unjustified; (4) the enrichment does not fall within classical enrichment actions; and (5) no positive rule of law refuses an action. A deceased estate should not be cited as a party; the executor must be cited in their capacity as executor of the estate. Under section 3 of the Customary Law and Local Courts Act, general law principles may apply where the justice of the case requires, even in matters involving customary unions.

The court observed that disputes arising from affairs of deceased estates are common. The court noted Martha's changing testimony regarding the percentage of her contribution (varying from 75%, to 6/10, to 2/10, to 4/10), which affected her credibility. The court remarked that Martha's anger at being excluded from the interim account likely motivated her claim for 50% of the farm, though she had earlier indicated she would be content with 170 hectares (15%). The court acknowledged that Martha was not the only key player in the commercial enterprise, recognizing significant contributions by the deceased, Chengeto, the children, the deceased's brother, and the deceased's third wife. The court noted that while Chengeto underplayed Martha's role, the evidence showed Martha did make substantial contributions to the farm operations over many years.

This case is significant in Zimbabwean law for several reasons: (1) It clarifies the application of the choice of law rules under section 3 of the Customary Law and Local Courts Act, affirming that general law principles may apply where the justice of the case requires, even in matters involving customary unions. (2) It reinforces the requirements for establishing a tacit universal partnership, particularly the need to prove contribution to acquisition and joint benefit. (3) It demonstrates the court's willingness to apply the doctrine of unjust enrichment to compensate contributions made to deceased estates where formal legal relationships (marriage or partnership) cannot be established. (4) It addresses practical issues in estate disputes, including the proper citation of executors rather than estates as parties, and the exhaustion of domestic remedies. (5) The case balances equitable considerations with legal formalism, recognizing substantive contributions while rejecting claims not supported by evidence.