KAMOCHA J: The
applicant was married to the first respondent until their marriage was
dissolved by this court on 20 October 2005.
The court ordered, inter alia,
that the matrimonial house which is stand number 632 Nketa be evaluated by a
reputable estate agent and the net proceeds be shared as follows: (a) applicant
40%; and (b) 1st respondent 60%.
Two years later the applicant filed
an application under case number 614/07 and was granted a judgment by default
entitling her legal practitioners to be the only ones vested with the authority
and powers to sell the house.
In an effort to ensure that the
first respondent became aware of the judgment the applicant's legal practitioners
addressed the following letter to him.
“21
May 2007
Mr Patrick A. Ndlovu
632 Nketa 6
Bulawayo
Dear Sir
Re: Mabel T. Ndlovu vs Yourself & Another HC
614/07
The above matter refers.
We
advise that we have since obtained an order to have the property sold through
us, Messrs Cheda & Partners. The
order was obtained on 17 May 2007 and copy of same is attached hereto for your
attention.
Further,
we are proceeding to instruct evaluators (Knight Frank) to evaluate the house
as per the court order. If you have any
buyers, please refer them to us.
Let us hear from you
Yours faithfully
Cheda & Partners”
The above letter with the court
order attached to it was delivered at house number 632 Nketa 6 – “the house” on
the day it was written. The applicant
alleged that the 1st respondent received the letter and the court
order. He even suggested that he was in
a position to send to the applicant's legal practitioners buyers offering more
money. He, however, never did so.
Instead on 4 September 2007 he
entered into a memorandum of agreement of sale of the said house for two
billion dollars with Lindelwe Lauratta Mlotshwa. The purchase price was paid upon
signing. Applicant contended that the
purchase price was unreasonably low and was even contrary to what the first
respondent had told her when he visited her at her flea market stand when the
two discussed the court order. He had
allegedly informed her that he had buyers offering three billion dollars as at
that time. Further and even worse, was
the fact that the 1st respondent had acted contrary to the court
order.
On the other hand the first
respondent has vehemently denied ever being aware of the court order at the
time he sold the house. His assertion is
that he no longer lived at the property and the applicant was aware of that. She allegedly knew that he lived at stand
number 4 Decide Village, Lonely Mine, Inyathi.
She, on numerous occasions allegedly sent their children there to
collect school fees and money for groceries.
He complained that she was actuated by malice when she had the court
order delivered at the house in order to deprive him of the opportunity to be
heard. He flatly denied ever being made
aware of the court order let alone discussing it with the applicant. He maintained that when he sold the house to
an innocent third party he had no knowledge whatsoever of the court order.
The applicant's response to the
first respondent's averments was that there was no truth in the suggestion that
any children had been sent to his Inyathi home to collect fees and money for
groceries. She went on to allege that he
in fact did not support his children at all.
The correct position, according to her, was that he frequented her flea
market stall to collect money not the other way round.
On the issue of him not being aware
of the court order she said he could not have been telling the truth because
she herself did confirm with him that he had seen it which explains why he had
said he had buyers who were prepared to make higher offers. She said since the letter of 21 May 2007 supra was delivered at the house he must
have seen it but is just being selective of what to receive and what not
to. He has been receiving other processes
through that address. For instance,
service of the present application was effected through that same address and
he has received all the process. The
court application was delivered at the house on 23rd January 2008
and 6 days later i.e. 29 January 2008 he had filed his notice of opposition.
At the hearing 1st
respondent's legal practitioner raised for the first time, the point that the
service of the letter of 21 May 2007 and the court order was contrary to the
provisions of Order 5 Rule 37(I) which stipulated that service of a court order
shall be effected by the Sheriff or his deputy.
This was an afterthought as the 1st respondent throughout his
papers had not relied on those provisions.
In the interest of justice I would condone the departure from the
provisions of Rule 37(I) as I feel this is a proper case for so doing in terms
of Rule 4C(a).
I am satisfied that the 1st
respondent was aware of the court order at the time he sold the house on 4
September 2008. He did so in a flagrant
disregard of the court order.
Having made that finding it therefore
follows that the sale of the house in defiance of the court order was a
nullity. The 1st respondent
had no right and power to sell the house.
His purported sale to the second respondent was just an act in futility
as he could not exercise rights which he did not have.
As regards the transfer of the
property into the 2nd respondent's names it is clear from a letter
from her legal practitioners dated 2 November 2007 filed of record that she was
no longer an innocent transferee at the time of transfer if it was effected. She was at that time quite aware of the
dispute between applicant and 1st respondent. Had the sale been valid she would have had
only herself to blame.
I now turn to the question of
costs. This, in my view, is a proper
case to award an order of punitive costs against the 1st and 2nd
respondents. The 1st
respondent sold the house in flagrant defiance of a court order. Such conduct cannot be tolerated and needs to
be adequately punished. Similarly the
second respondent having become aware of the wrangle between applicant and 1st
respondent should have withdrawn from the ill-conceived sale. Instead she, through her lawyers, was
frantically trying to register transfer into her name. That type of conduct should always be frowned
upon and punished with an appropriate order of costs.
In the result I would issue the
following order.
It is ordered that:-
(1)
the
agreement of sale of stand number 632 Nketa Township of Lot 400 A Umganin,
Bulawayo entered into by and between Patrick Abednico Ndlovu and Lindelwe Laurrate
Mlotshwa on 4 September 2007 be and is hereby declared invalid.
(2)
if
the 2nd respondent has taken occupation, it is hereby ordered that
she and all those occupying through her vacate stand number 632 Nketa, Bulawayo
within 15 days of this order; and
(3)
the
1st and 2nd respondents shall bear the costs of suit on
an attorney-client scale jointly and severally one paying the other to be
absolved.
Messrs Cheda &
Partners, applicant's legal practitioners
Sansole &
Senda, 1st respondent's legal practitioners
Job Sibanda & Associates, 2nd
respondent's legal practitioners
