Thabiso Ndlovu v Leonard Ndlovu

The parties lived together in an unregistered customary law union from 2001/2002 to 2020, a period of approximately 18 years. They had four children together, two of whom were still minors at the time of the proceedings. The defendant was initially formally employed but left employment in 2003 to venture into self-employment. The parties worked together in various business enterprises, including mining operations (Lion West Mine and Slope 2 Mine), a sports bar (Gold Reef Sports Bar in Mawabeni), and acquired various immovable and movable properties. The plaintiff claimed she worked alongside the defendant as a business partner, while the defendant maintained she was employed by him and was primarily a housewife. The defendant admitted to entering into customary law unions with two other women during the subsistence of his union with the plaintiff, as customary law unions are potentially polygamous. After the relationship broke down in 2020, the plaintiff instituted proceedings claiming dissolution of the union/tacit universal partnership and distribution of assets acquired during the union.

• Whether an unregistered customary law union between the parties constituted a tacit universal partnership
• Whether section 7 of the Matrimonial Causes Act could be applied as guidance in the distribution of assets in a tacit universal partnership arising from an unregistered customary law union
• How assets acquired during the subsistence of the tacit universal partnership should be distributed between the parties
• Whether the court should pierce the corporate veil in respect of a trust and a company (Superb Riches) created/used by the defendant
• The issue of custody of minor children
• The issue of maintenance of minor children

1. The tacit universal partnership (customary law union) between the parties was dissolved. 2. Custody of the two minor children (Thabisile Ndlovu born 4 July 2011 and Lee Thandolwenkosi Ndlovu born 16 November 2015) was awarded to the plaintiff. 3. Maintenance to be dealt with by the Maintenance Court. 4. The plaintiff was awarded: (a) 69 Duncan Road Suburbs Bulawayo (Stand 29 Bulawayo South); (b) Half share in Stand 520 Habane Township Esigodini; (c) USD 65,000 cash in lieu of Toyota Fortuner; (d) All household goods at 69 Duncan Road; (e) Gold Reef Sports Bar in Mawabeni; (f) FAW truck registration AEX 5882; (g) One tractor. 5. The defendant retained: (a) 4 Rudd Road Northend Bulawayo; (b) Half share in Stand 520 Habane Esigodini; (c) Slope 2 mine and Lion West mine with mining equipment (excluding one truck and tractor awarded to plaintiff); (d) Household furniture at Northend; (e) Nine specified motor vehicles, all excavators, and one tractor.

1. Where parties in an unregistered customary law union live together as husband and wife, create a family, and work together (whether directly or indirectly) for their common good and the establishment of their household, a tacit universal partnership exists between them. 2. The existence of a tacit universal partnership does not require defined or equal contributions from each party; both direct and indirect contributions are recognized. 3. Section 7 of the Matrimonial Causes Act may be used as guidance in considering the division of property upon dissolution of a tacit universal partnership arising from an unregistered customary law union. 4. The corporate veil may be pierced where a trust or company is established or used to defeat legitimate claims in the dissolution of a tacit universal partnership, particularly where the entity was created after the breakdown of the relationship or assets were transferred to it after proceedings commenced. 5. A person who is the settlor of a trust or the alter ego of a company cannot benefit from structures created to defeat the ends of justice in partnership dissolution proceedings.

The court observed that the difference between whether the plaintiff was a "business partner" or "employed" by the defendant's businesses was immaterial - what mattered was the joining of hands for the good of the family. The court noted that the defendant never testified that the plaintiff was an unsupportive wife who neglected her duties as wife, mother, or worker. The court also commented that it would be a futile exercise to interfere with a lease agreement between the defendant and a third party regarding Slope 2 mine, as the third party might resile from the arrangement if the plaintiff were forced into it due to freedom of contract. The court declined to deal with the potential claims of the two other women the defendant claimed as wives, as they had not sought to be joined in the proceedings and the defendant had not indicated they had claims to any assets in dispute.

This case is significant in Zimbabwean family law as it affirms and applies the principles from Nhende v Zigora SC 68-25 regarding the recognition of tacit universal partnerships arising from unregistered customary law unions. It demonstrates the court's willingness to apply general law concepts to prevent injustice in customary law unions and confirms that section 7 of the Matrimonial Causes Act can be used as guidance in distributing assets upon dissolution of such partnerships. The case also illustrates the court's approach to piercing the corporate veil where trusts or companies are used to defeat legitimate claims in matrimonial/partnership disputes. It reinforces the principle that both direct and indirect contributions to a household and family business ventures are recognized in tacit universal partnerships, and that a party need not be a formal business owner to be entitled to a share of assets acquired during the union.