Shakespear Pilime v Bester Chisvo

The plaintiff and defendant married under customary law in 1992, though the marriage was unregistered. At the time, the plaintiff was already married to another woman in a civil marriage. In 1998, the parties jointly purchased Stand No 6888, Ruwa for $58,000, with the plaintiff contributing $30,000. The property was registered solely in the defendant's name due to the plaintiff's existing civil marriage. In 1999, the defendant obtained a loan of $800,000 from her employer (CBZ) for construction of a house on the property, which the parties agreed to service equally. The plaintiff produced evidence of deposits and payments totaling approximately $68,210 toward the loan repayments and construction costs, including $37,000 for a durawall. The defendant later obtained a mortgage bond from First National Building Society for $1,003,330 in 2001. The parties separated, and the defendant relocated to the United Kingdom where she was granted political asylum. The plaintiff claimed 40% of the property value (amounting to $72,000,000) based on his contributions.

• Whether the plaintiff contributed to the purchase of Stand Number 6888, Zimre Park, Ruwa and to the developments therein, and if so, to what extent
• Whether the plaintiff is entitled to 40% of the value of the house or any other percentage thereof
• Whether a tacit universal partnership existed between parties in an unregistered customary law union
• Whether the common law concept of tacit universal partnership can be applied to an unregistered customary law union without laying proper foundation
• Whether the plaintiff could change his cause of action from tacit universal partnership to unjust enrichment in closing submissions

The defendant was granted absolution from the instance with costs.

An unregistered customary law union does not, on its own, entitle a party to claim rights under the common law principle of tacit universal partnership. Before applying general law concepts to an unregistered customary law union, a party must lay a proper foundation for doing so and must have regard to the choice of law rules prescribed by section 3 of Part I of the Customary Law Primary Courts Act 6 of 1981. A party cannot introduce a new cause of action (such as unjust enrichment) in closing submissions when it was never pleaded in the original claim.

The court noted that the plaintiff attempted to change his submissions in closing arguments, characterizing the relationship as mere cohabitation rather than an unregistered customary law marriage, which was a clear departure from his own evidence that he had paid lobola. The court also observed that even though the plaintiff provided substantial evidence of his financial contributions to the property (approximately $68,210 through various deposits and payments), these contributions alone could not ground a successful claim without the proper legal foundation being established. The judgment suggests that had the plaintiff properly pleaded and proved the requirements for unjust enrichment or properly established the foundation for applying general law principles to his customary law union, the outcome might have been different.

This case reinforces important principles in Zimbabwean law regarding the intersection of customary law and common law property rights. It confirms that parties in unregistered customary law unions cannot automatically invoke common law concepts such as tacit universal partnership without properly laying a foundation for the application of general law and complying with choice of law rules under the Customary Law Primary Courts Act. The judgment emphasizes the importance of pleadings and prevents parties from changing their cause of action during closing submissions. It also demonstrates the courts' approach to balancing procedural fairness with the need for finality in litigation, as seen in the dismissal of the defendant's postponement application despite her asylum status.