This application has been brought to court in terms of the provisions of Order 11 Rule 75(1) of the High Court Rules 1971 for the dismissal of claims filed by the respondent in an action under case number HC568/13.
The applicant contends, that, the respondent's claims are frivolous and vexatious.
The application is opposed by the respondent who forcefully argued, through his legal counsel, that the application for dismissal is misguided and an abuse of court process.
Background
The parties were married to each other in terms of the Marriage Act [Chapter 5:11]. The marriage was terminated by order of this court on 28 June 2012.
The respondent was in default.
Both parties reside in the United Kingdom, having left Zimbabwe almost a decade ago.
The terms of the divorce order were as follows:
“1. A decree of divorce be and is hereby granted.
2. Custody of the minor child, namely, Thabiso Dube (male) born on the 22 May 1995 be awarded to the plaintiff with the defendant enjoying access to the child.
3. An order for maintenance at £200 per month.
4. Plaintiff be awarded the following property as her sole and exclusive property:
Wall Unit, plants and ornaments, 2 piece sofas, TV stand, desktop computer, computer table, canon printer, fridge, 4 plate stove, ST Joseph stand and shops (plus movables thereat).
5. Defendant be and is hereby awarded as his sole and exclusive property and the movable assets at the Parklands home, specifically the following:
Double door fridge, 4 plate stove, six kitchen chairs and table, microwave, kitchen utensils, dining room suite, lounge suite, glass TV stand, 2 TVs, sharp radio, phone table, 3 beds, 2 bedroom suites, chest of drawers, dressing table and stool, curtains, Gwanda homestead (plus household goods thereat and livestock).
6. An order that the matrimonial home, being number 16, St David's Road, Parklands, Bulawayo, be sold by the plaintiff or her lawful agents and the proceeds of the sale be shared equally between the parties.
7.1 For the purposes of sale and transfer of the matrimonial home to the successful purchaser, the plaintiff be and is hereby authorized to nominate the conveyancer to attend to such transfer and the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to sign all transfer documents vide the defendant.
7.2 No order as to costs.”
On 1 March 2013, the respondent filed an action in this court seeking the following relief:
“An order directing defendant to deliver all movable assets awarded to the plaintiff by the High Court in case number HC3446/11 housed at number 16 St Davids Road Parklands, Bulawayo, which assets the defendant unlawfully and wrongfully caused to be removed therefrom during the period extending from June 2012 to an unknown date, or, alternatively, failing such delivery payment of the value of the assets in the sum of US$22,960=.”
In paragraph 4 of his Declaration, the plaintiff states as follows:
“Paragraph 5 of the divorce order between the parties awarded the defendant all assets at the Parklands home of the parties including the movable assets listed in Annexure 'A' hereto.”
I note that Annexure “A” referred to in paragraph 4 of the Declaration is in effect the Order for divorce issued by the court on 28 June 2012.
The plaintiff then remarkably claims, in paragraph 5 of his Declaration, that:
“In addition to the assets named in paragraph 5 of Annexure 'A' the parties had also acquired the assets listed in Annexure 'B' attached hereto.”
What is of serious concern is that Annexure “B” is a two page long list of items of property not included or referred to in the original divorce order.
The respondent alleges these assets were acquired by the parties during the course of the marriage.
It is clear that paragraph 5 of the Declaration contradicts the order sought by the plaintiff.
The clear intention of the respondent can only be to mislead the court, because, in the summons, the plaintiff (respondent) in this matter purports to claim the assets (or the values thereof) which were awarded to him in terms of the divorce order.
This is in fact not the case.
The plaintiff is attempting to revisit the distribution of matrimonial assets via the back door. This cannot be proper. The assets have clearly been overvalued so that they equate to US$22,960=, an amount which the applicant claims will wipe out her half share in the sale of the matrimonial house as ordered by the court.
The Legal Position
The respondent is not the owner of the assets listed in Annexure “B” of the summons. The said assets are supposed to be matrimonial property, or assets of the spouses, as defined in section 7(a) of the Matrimonial Causes Act [Chapter 5:13].
It is settled law, that, matrimonial assets can only be dealt with in an action for divorce, judicial separation, or nullity of marriage in terms of section 2(1) of the Matrimonial Causes Act which states as follows:
“Action for divorce, judicial separation or nullity or marriage means an action by which a decree of divorce, judicial separation, or nullity of marriage or other relief in connection therewith is applied for…,.”
In this matter, the established facts are that the parties were divorced by an order of this court granted on 28 June 2012. The divorce order was granted in default of the respondent.
If the respondent was aggrieved with the terms of the divorce order, he should have applied for an order rescinding the judgment of the court in order to obtain what he may have considered to be a just and equitable distribution in terms of section 7(1)(a) of the Matrimonial Causes Act which provides as follows:
“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or, at any time thereafter, an appropriate court may make an order with regard to -
(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”
It is my view, that, the respondent's claim, in the main action, should have been dealt with as a matrimonial action in terms of the Matrimonial Causes Act.
The respondent's claims, as presently framed, are bad at law to the extent that they are frivolous and vexatious.
