MANGOTA J: This matter came before me as an
urgent chamber application which the applicant instituted against the first and
the second respondents.
The applicant is the former husband of the first respondent. The two were
married in terms of Customary Law in 1976 and, in 1983, the parties solemnised
their marriage in terms of the Marriage Act, [Cap 37] (now 5:11).
They divorced in this court on 17 March, 2011. The court which dealt with
the parties' divorce granted them a decree of divorce and ordered that:
(1)
The parties' matrimonial home, number 7 Orchard Lane, Hatfield, Harare be
awarded to the parties' children namely Samson Mhlanga and Lesley Mhlanga both
of whom were born on 25 April, 1992.
(2)
The plaintiff (first respondent) and the defendant (applicant) shall sign all
the necessary documents to enable transfer within 90 days of the date of the
order.
(3)
The defendant (applicant) shall vacate the matrimonial home within six (6)
months of the date of the order and that, if he failed to do so, the Deputy
Sheriff, Harare be, and is hereby, directed to eject him at the instance of the
registered new holders of title – and
(4)
the plaintiff (first respondent) and the defendant (applicant) shall pay the
costs of transfer in equal proportions.
Neither the applicant nor the first respondent has complied with his, or
her, obligations under the order.
Those obligations have time lines which the
parties should have adhered to in
full.
The parties, for instance, have not signed all the necessary documents
which would enable transfer of the
property from their joint names into the
names of their twin-children who
are the intended beneficiaries of the
matrimonial home. The court which
dealt with the parties' divorce and other
ancillary matters gave them 90
days within which they should have signed the
documents for the transfer of the
property. Two years have lapsed and none of
them has done anything which is
positive in this regard.
The applicant was given six (6) months within which he should have
vacated the matrimonial home. The
applicant has remained on the property from
the time of the court order, 17
March 2011, todate. His continued presence at
the property compelled the first
respondent to approach the court and have the
applicant evicted from the
property. The first respondent enlisted the services of
the second respondent in this
regard.
The first respondent's move necessitated the present application by
the applicant. The court noted
that both parties are approaching the courts with
dirty hands. None of them has
complied with the order of this court for two
consecutive years. On a proper
interpretation of the law, therefore, none of
them should be heard until he, or
she, makes a clearly defined effort to comply
with the order which the court
made on 17 March 2011, in favour of the parties'
twin-children.
The fact that the parties to this application were or, are, self actors
persuaded me not to adopt a strict
approach to the “dirty hands” principle and I,
accordingly, proceeded to hear
them speak on the issue of eviction. During the
hearing, it became apparent to me
that:
Ø Neither the applicant nor the first respondent has locus
standi to issue court process aimed at evicting the one, or the other,
from the parties' former, or current, matrimonial property.
Ø The beneficiaries who are the parties'
twin-children do not have title to the property and they cannot, therefore,
evict the applicant from the parties' former, or current, matrimonial home.
Ø Neither of the parties, the applicant in
particular, has the necessary intention to comply with the order which the
court made on 17 March, 2011.
The applicant appears to be happy
with the stalement which the parties
created when they failed to
comply with the order of the court. He is aware that the first respondent
cannot evict him. He is also aware that the twin-children who are the parties'
intended beneficiaries cannot evict him from the property when they have not
acquired title to the property. He will, accordingly, do all he can in an
effort not to have the property registered in the names of his twin-children.
He will, in other words, make every effort not to comply with the order which
the court made in favour of the parties' twin-children on 17 March, 2011. He
will continue to violate a clearly defined court order and, in the process,
secure his continued presence at the property.
This matter should
not be allowed to drag on and on ad infinitum. It must be resolved in
a conclusive manner for the benefit of the applicant himself, his former wife
who is the first respondent and the parties' twin-children who are the intended
beneficiaries of the property.
At the conclusion of the
hearing of this matter, I informed the parties that directions will be made towards
a conclusive resolution of the case. It is, accordingly, in line with that
undertaking that it is ordered that:
(i)
the applicant and the first respondent do, within thirty days, comply with the
order of the court of 17 March, 2011
(ii)
the thirty days start to run from 1-30 April, 2013
(iii)
should the applicant, or the first respondent, or both, fail to comply with the
court order of 17 March, 2011 within the 30-day period which has been
stipulated herein, the Sheriff of this court is directed to:
(a) Transferthe
property, No. 7 Orchard Lanes, Hatfield Harare into the names of Samson Mhlanga
and Lesley Mhlanga, both born 25 April, 1992 – and
(b) Ejectfrom
the property the applicant and all persons who claim occupation through him
.
(iv) Each party bears his, or her, own costs of
suit
