NDOU J: On
19 April 2011, the applicant obtained a provisional order in the following
terms:
“A. Terms
of the final order sought
1.
That
the 1st respondent be and is hereby interdicted and prohibited from
disposing, transferring, alienating, pledging, assigning or dealing with the
property being stand number 6905 Nketa 9, Bulawayo.
2.
That
the 1st respondent is ordered to pay the costs of this application
on an attorney/client scale.
B. Interim
relief granted
Pending the finalization of the summons proceedings to be
instituted by the applicant in 10 days, applicant be and is hereby granted the
following interim relief:
1.
That
the 3rd respondent forthwith registers a caveat over the property
being stand number 6905 Nketa 9, Bulawayo.”
Having obtained the provisional order, the applicant did not
set the matter for hearing on the merits.
This compelled the 2nd respondent to set down the matter.
The salient facts of the matter are the following. On 12 March 2011 the 2nd
respondent entered into an agreement of sale of stand number 6905 Nketa 9,
being a 4 roomed house with Raphael Phiri (1st respondent) on his
own behalf and on behalf of the estate of his late mother, Betty Phiri. This
house is registered in both Raphael Phiri and Betty Phiri's names. The purchase price was US$12 500,00 which was
paid in full upon signature of the agreement of sale. The 2nd respondent was not advised
by the 1st respondent or 1st respondent's agent through
whom he bought the property of the existence of the applicant.
The 2nd respondent entered into the agreement of
sale as an innocent purchaser. Even in
her founding affidavit the applicant does not allege that the 2nd
respondent is not an innocent third party purchaser. The applicant did not file an answering
affidavit to dispute this averment by the 2nd respondent that he is
an innocent third party who was not aware of the applicant's personal
rights. It is trite law that the rights
a wife as to the property of her husband are governed by common law. They are personal rights.
The rights are personal against husband and cannot hold
against a genuine claim by a third party.
The wife's status as such does not grant her any right to property that
the husband has that is not the matrimonial home. She only has limited rights to the
matrimonial home that she and the husband set up. These rights are personal against the husband
and can be defeated by the husband providing her with alternative suitable
accommodation or the means to acquire one.
The husband can sell the roof from above her head if he does so to a
third party who has not notice of the wife's claims, thus completely alienating
the matrimonial home without making any reference to the wife. Only where the third party associated with
her husband to defraud the wife of her right on the matrimonial home is the
wife's right, derived from her status, upheld.
However, the wife must prove collusion between her husband
and the third party to render her homeless – Maponga v Maponga & Ors
2004(1) ZLR 63 (H) and Muswere v Makonza 2004(2) ZLR 262(H). In casu,
there is no averment of such collusion.
Further, this property was registered in the joint names of 1st
respondent and his late mother. The 1st
respondent was the executor of his mother's estate. From the foregoing, the provisional order is
without merit. Accordingly, the
provisional order granted by this court on 19 April 2001 be and is hereby
dismissed with costs.
Bulawayo Legal Projects Centre, 2nd
respondent's legal practitioners
