Ex Tempore
KAMOCHA
J: The applicant in this matter
sought an order in the following terms:-
“It is ordered:
(1)
That
the order of this honourable court made on the 4th day of December,
2008 be rescinded and the following substituted:
(a)
A
decree of divorce be and is hereby granted to the plaintiff.
(b)
The
parties proceed on trial of the division of matrimonial assets and ancillary
relief.
(c)
The
parties be and are hereby permitted to make discovery in terms of the rules of
court, with defendant having to make discovery within 5 days of the uplifting
of this order.
(d)
Henceforth
the parties shall proceed in strict compliance with the rules.
(2)
The
costs of this application shall be costs in the cause in the main action.”
The parties were husband and wife who married each other on 1
May 1996. When the parties developed
irreconcilable differences the wife instituted divorce proceedings against her
husband on 7 July 2006. The husband
entered appearance to defend and filed his plea.
The husband failed to file discovery
documents timeously resulting in the wife applying and was granted an order
compelling him to do so within 5 days failing which his defence would be struck
off and she would be granted leave to set down the matter on the unopposed roll
without notice to him. He was unable to
comply and the matter was set down on the unopposed roll. A default judgment was granted on 4 December
2008.
Paragraphs 4 and 5 of the court
order reads as follows:
“(4) Plaintiff
shall pay to the defendant the sum of $11 000 000 000 000 (eleven trillion
dollars) being his 20% share to stand number 10449 Bulawayo Township also known
as 29 Heythrop Road, Montrose, Bulawayo within 30 days of the granting of this
order.
(5) Plaintiff
be and is hereby granted ownership of stand number 29 Heythrop Road, Montrose,
Bulawayo also known as number 10449 Bulawayo Township and the defendant shall
transfer the said property into plaintiff's name within 30 days of this order
failure of which the Deputy Sheriff be and is hereby authorized to sign all
relevant papers on defendant's behalf to effect the said transfer.”
The applicant did not file his
application for rescission timeously. He
applied for condonation for the late filing of that application for
rescission. His application for
condonation was contested by the respondent but was, nevertheless,
granted. The full reasons are contained
in judgment number HB-36-10.
During the subsistence of their
marriage the parties bought a house known as 29 Heythrop Road, Montrose,
Bulawayo which they registered in their joint names. Ex
facie they own the house in equal shares.
Both parties sold their respective properties which they owned before
they got married. The wife sold her flat
while the husband sold his house in Nketa Township Bulawayo. Each party claimed that the proceeds from the
sale of his or her property were channeled towards the purchase of the house.
The wife, however, would want the
court to believe that only the proceeds from the sale of her flat were used to
purchase the house. It is her word
against that of her husband. If that was
the case, one wonders why the parties registered the house in their joint
names.
The wife also alleged that part of
the money used to purchase the house came from monthly deductions made from her
salary. She therefore felt that it was
just and equitable to award her 80% of the market value of the said house while
her husband got 20%. The husband on the
other hand contended that a 50-50 share would be just and equitable.
On the above facts it seems to me,
that gross injustice would result if the parties are not made to prove their
respective cases in court.
In respect of the default judgment,
I held the view that the applicant was not in willful default. He had always wanted to assert his rights but
was let down by his legal practitioners who failed to file discovery documents
timeously.
This court was advised that the
parties were in fact negotiating an out of court just and equitable settlement
which was about to be completed. The
court was further advised that the wife had not even paid the 11 trillion
dollars which was equivalent to 20% of the market value of the house.
I see a glaring injustice occurring
in this matter if the default judgment were to be allowed to stand so far as it
relates to the sharing of the matrimonial property. In the result I would grant the order sought
in terms of the draft.
Lazarus & Sarif,
respondent's legal practitioners
