Top Zim judges “regret” no change to outdated law that harms women

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Discrimination against women emerges in the strangest places in the law, as Judith Ishemunyoro has just discovered to her serious cost.

In 1994, the ministry of local government and housing for which she worked, offered to sell her the house that she had been renting for some time. She accepted the offer and through monthly deductions from her salary, paid off the property. Then the property was transferred into her name and that of her husband.

The husband, meanwhile, bound himself as surety for a debt owed by a company in which he had become involved. When the company could not pay the debt, the husband’s half share in the house was attached. The other 50 % could not be attached as it belonged to the wife.

The wife applied to the high court for a declarator that the creditors could not attach immovable matrimonial property that was the matrimonial home to satisfy a debt accrued by either spouse.

She lost in the high court and then appealed, adding in her argument before the appeal judges that the high court was “timid” in failing to take a “robust approach” as required by the constitution, to protect women’s rights.

The wife argued that her husband had acted recklessly in “exposing” the family home; it was also reckless that he had run up debts which resulted in his share of the home being attached by the Sheriff.

One result of his action was that another co-owner could be imposed on her, with equal rights over the property. In her submission, a co-owner of a property could not alienate joint property without the consent of the other party. In this case, the husband should have obtained her consent before he pledged his share of their home as security.

The new co-owner, the creditor to whom the husband owed the debt, said it was “desirable” that a co-owner should obtain the consent of the other co-owner before alienating his or her share in the property. But failure to do so, without more, was an insufficient basis to interdict the co-owner from alienating his rights as the husband had done.

Deputy Chief Justice Elizabeth Gwaunza, writing for a unanimous court, held that the two owned the property in equal, undivided shares. Even though the wife might have paid for the entire purchase herself, it had been transferred into both their names.

Having used her own money to pay for the property, she could have safeguarded her real rights by having it registered in her name only. Counsel for the wife said her decision to have it registered in both their names may have been motivated “by societal and cultural pressures and considerations that shape and impact on gender relations within the family set-up.”

These factors fell, however, outside the “dictates of the law”, said Justice Gwaunza. The contention “may very likely be true” and one may “sympathise with the (wife) given the predicament she now finds herself in.” But the fact that the husband’s name was on the title deed gave him real rights in the property that “at law, cannot lightly be interfered with”.

In fact, the husband had not formally “alienated” his share of the property: he bound himself as surety and if he had had other assets besides his share in the family home, his half of the house would not have been attached.

In practical terms, however, the enjoyment of the matrimonial home by the wife and the family “has been jeopardized”. If the attached share were to be sold, the wife would be forced to co-own what had been the family’s home, “with a complete stranger”.

The high court had correctly highlighted legitimate concerns that arose in such a situation, and the wife had urged the high court to “expand” the common law to recognize that jointly owned matrimonial property should not be “exposed” in this way, without the consent of the other co-owner.

Dismissed by the high court, these arguments on developing the common law were also rejected on appeal, with Justice Gwaunza warning about the limits of judicial activism and “not stepping on the toes of the Legislature”. She said the judiciary should not usurp responsibility for legislation and that changes to the law such as would be involved here involved complex issues and policy considerations, inappropriate for the courts to decide on.

She added though, that the relief sought by the wife in this case would “resonate with women’s rights activists and many married women who jointly own matrimonial property with their husbands.”

A change to the law such as was sought by the wife “would deal a killing blow to one of the major social and cultural pressures that stifle the economic empowerment of married women: their access to vital resources like reliable shelter and the security that all this brings to women and families as a whole”.

On the constitutional arguments raised by counsel for the wife, there was also nothing that could be done to help her. However, Justice Gwaunza said there was in her opinion a clear need for activists on the rights of women and children to lobby law-makers to pass legislation that addressed the problems experienced by the wife in this case. It had already been done in other countries, which had passed laws that prevented the alienation of a matrimonial home by one spouse without the consent of the other and gave the court the power to set aside a transaction if there were no such consent.

Such a law would be “desirable” in Zimbabwe and would go a long way in safeguarding a family’s rights to shelter. “It would also protect the integrity of a matrimonial home and promote the economic empowerment of women”. It was precisely because there was no such law in Zimbabwe that the wife’s appeal had to fail.

As far back as 2005, Justice Rita Makarau, then a high court judge, had dealt with a similar dispute and forcefully stated that the issue needed urgent law reform. But there had been no change.

Justice Gwaunza said she regretted that “no concerted effort” had been made by activists in the field of gender and women’s rights to lobby for changes to this law. The courts had had to deal with “many disputes of this nature” and the need for change had “clearly been demonstrated”.

In the end therefore, and despite the court’s sympathy, the wife lost the appeal, with costs, and could lose half of the family home.

No doubt about it: this would be a fruitful field for legal reform, and with the appeal court’s comments to back them up, activists would have considerable force in their arguments for urgent change.