CHIRAWU-MUGOMBA
J:
The
history of the matter is as follows:-
On
15 January 2018, the applicant filed an urgent application for
registration of a caveat against a certain property namely
subdivision 6 of Lot 1 A Greendale otherwise known as 3 Rhodesville
Avenue, Greendale Harare. On 17 January 2018, ndewere
J issued a provisional order as follows:
TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:-
1.
The first and the second respondents be and are hereby interdicted
from transferring, disposing or alienating the property being
subdivision 6 of Lot 1 A Greendale, otherwise known as 3 Rhodesville
Avenue, Greendale, Harare to any third party pending conclusion of
investigations on the sale of the 22nd
February
2015 by the Police and finalization of applicant's divorce
proceedings against first respondent.
2.
The third respondent be and is hereby ordered to immediately register
a caveat against a piece of land being Subdivision 6 of Lot 1 A
Greendale, otherwise known as 3 Rhodesville Avenue, Greendale,
Harare, measuring 4,107m2
and held under Deed no. 664/15.
3.
The costs of this application shall be borne by the first respondent
at an attorney client scale.
Interim
relief sought
That
pending the determination of this matter, the applicant is granted
the following relief:-
4.
The third respondent be and is hereby ordered to immediately register
a caveat against a piece of land being Subdivision 6 of Lot 1 A
Greendale, otherwise known as 3 Rhodesville Avenue, Greendale,
Harare, measuring 4,107m2
and held under Deed no. 664/15.
Service
of order
That
the applicant's legal practitioners be and are hereby given leave
to serve a copy of the order on the respondents and/or the
respondent's legal practitioners.
In
her founding affidavit, the applicant averred that she was in an
unregistered customary law union with the first respondent before
'upgrading' their marriage to one under the Marriage Act [Chapter
5:11].
That during the subsistence of the customary law union, they acquired
the property in question and that after their December 2000 marriage,
the property remained their matrimonial home. She stated that she
contributed “a lot” towards the purchase of the house by paying
transfer fees including the maintenance of the house for the past
seventeen years. They also acquired another property in Germany but
never stayed there.
In
February 2015, the applicant alleged that the first respondent sold
the property to the second respondent and it was duly transferred to
him (second respondent). The applicant contested the sale through a
court application but lost the case 'mainly on technicalities'.
The
second respondent had commenced eviction proceedings against the
applicant which matter was still pending. She alleged that some
people had come to view the property and she was concerned that the
house would be sold to another party and thus take it away further
from her reach. Among other averments, the applicant stated that she
had a 'half-share' in the property as the first respondent's
wife and that the property had been sold for an unreasonably low
price.
The
second respondent did not file any opposing papers to the application
but the first respondent did. And his version is what can be termed
the other side of the story.
On
the 2nd
of September 2015, the applicant, in case number HC4339/15 lodged a
court application against the first, second and third respondents
seeking the following order:-
THAT:-
1.
The agreement of sale concluded between first and second respondents
concluded on the 22nd
February 2015 in respect of subdivision 6 of Lot 1 Greendale,
otherwise known as 3 Rhodesville Avenue, Greendale, Harare be and is
hereby set aside.
2.
The Deed of Transfer No.664/2015 that transferred title of
Subdivision 6 of Lot 1 A Greendale, otherwise known as 3 Rhodesville
Avenue, Greendale, Harare from first respondent to second respondent
on the 24th
February 2015 be and is hereby declared null and void.
3.
That the first and second respondents be and are hereby ordered to
sign all transfer documents to reverse the transfer of subdivision 6
of Lot 1 A Greendale, otherwise known as 3 Rhodesville Avenue,
Greendale, Harare.
4.
That first and second respondents pay the costs of suit jointly and
severally one paying the other to be absolved on a higher scale of
attorney and client.
The
applicant stated in her founding affidavit that the sale of the
property by the first respondent to the second respondent was
fraudulent and that this was matrimonial property. The first and
second respondents strenuously opposed the application and on the
24th
of November 2015, MWAYERA J dismissed the application in case number
HC4339/15. The applicant did not appeal against the dismissal and
that means the order remains extant.
The
legal implications of the dismissal is that the court confirmed the
agreement of sale between the first and second respondent and the
latter now has real rights in the Greendale property by virtue of the
title deeds.
At
the hearing of this matter, the applicant's legal practitioner
attempted to withdraw the application against the first respondent
after the realization that there was essentially no remedy sought
against him since he had disposed of the property.
I
pointed out to Mr
Chinzou that
procedurally, it was not proper to withdraw a matter that had already
commenced and therefore I dismissed the application and discharged
the provisional order as against the first respondent.
The
second respondent was in default and I proceeded to hear argument on
the merits.
In
the present case, the applicant sought an interdict and the placement
of a caveat on property that essentially now belongs to a third
party, who happens to be the second respondent.
This
application brings to the fore an issue that this court has grappled
with and that is, the legal rights of spouses during the subsistence
of a marriage. I shall proceed to analyse this and other issues.
The
alleged customary law union between the applicant and the first
respondent
In
both this present application and in HC4339/15, the applicant placed
emphasis on the fact that she was originally in an unregistered
customary law union with the first respondent when the later paid
lobola
for
her and the property was acquired during this period. The first
respondent is of Dutch origin. There was no proof or evidence
attached by the applicant to prove the existence of the customary law
union. In any event, it is trite that in terms of the Customary
Marriages Act [Chapter
5:07],
a
customary law union is invalid except for certain limited purposes.
However,
for such a union to even be valid for these and other purposes, it
can only be entered into between Africans. This is due to the
definition of a marriage in the same act to mean, “customary
marriage” means a marriage between Africans.
The
attempt by the applicant to emphasise the customary law union is
pinned on the fact that the property in dispute was acquired during
the subsistence of this alleged union but there could not have been a
valid union between the two.
Did
the property ever become a matrimonial asset?
The
history of the property reveals that the first respondent acquired it
in July 2000. It was transferred to him on the 15th
of September 2000 under Deed of Transfer 8410/2000. The applicant and
the defendant married on 10 December 2000 under the Marriage Act as
already indicated. That put the Greendale house firmly in the
category of a matrimonial asset as has already been determined by
this court and by the Supreme Court in relation to the meaning of
assets.
The
matrimonial property regime in Zimbabwe is predominantly that of one
of out of community of property. The only times that the court will
interfere with this regime is;
(1)
At divorce using the wide discretion in section 7 of the Matrimonial
Causes Act [Chapter
5:13];
and
(2)
At death, in terms of intestate succession laws of Zimbabwe, ;
and
(3)
Where a spouse disposes of a property at undervalue in order to
defeat the claims of another spouse at divorce.
In
Maganga
v
Sakupwanya
the
court determined that the spouse (husband) had disposed of a
matrimonial home for then $20,000 when its true value was $402,500 so
as to defeat his former wife's claim. She was awarded 50% of the
real value of the property based on the sham contract.
However,
as already indicated, the applicant did litigate on the issue of an
alleged fraudulent transaction between the first and the second
respond but the case was dismissed.
Although
the 2013 Constitution calls for equality of obligations and rights of
spouses at death and dissolution,
the position regarding property rights during marriage poses
challenges. The equality clause is in the same Constitution that
emphasises that every person in Zimbabwe can own property. In
Semwayo
and anor v
Chatara
and anor makarau
JP
(as she then was) had occasion to comment on an earlier decision as
follows:
“The
facts of this matter are not dissimilar to the facts in Muswere
v Makanza
HH16/05 where I had occasion to review the legal relation that a wife
has to immovable property registered in the sole name of her husband.
While holding that the law in this respect is palpably unjust, I came
to the conclusion that the position in our law currently is that a
wife cannot stop her husband from selling his property even if it
constitutes the matrimonial home. In conclusion this is what I had to
say:
“…..it
presents itself clearly to me that as the position at law that a wife
in the position of Mrs Makanza has no real right in immovable
property that is registered in her husband's sole name even if she
directly and indirectly contributed towards the acquisition of that
property. Her rights in relation to that property are limited to what
she can compel her to do under family law to provide her with
alternative accommodation or the means to acquire alternative
accommodation. Her rights, classified as personal against her husband
only, are clearly subservient to the real rights of her husband as
owner of the property.”
In
Magurenje
v
Maposa
and ors
the court recognised the right of a customary law wife (though her
status was disputed) to dispose of immovable property registered in
her name quoting from the dicta by Lord Wilberforce in National
Provincial Bank v
Aisworth
as
follows:-
“Where
there is a genuine transfer, there is no reason why the wife's
personal rights against her husband, which are derived from her
status, should enter the field of real property law as to clog the
title of an owner.”
This
brief synopsis of the legal position does not take the applicant's
case any further as her application in HC4339/15 was dismissed.
Nonetheless,
this untenable legal position is in serious need of legislative
reform. To that end, I echo the sentiments of TSANGA J in Madzara
v
STANBIC Bank Limited and Ors
who stated as follows:-
“In
summary, in my view legislative intervention that addresses the
rights of the spouse to the matrimonial during the course of the
marriage is where the energy should be. Even when cases such as this
one are lost, they nonetheless play an important role in
fore-fronting the types of problems that need the legislator's
attention.”
Does
the application fulfil the requirements of a final interdict?
Setlogelo
v
Setlogelo
1914
and a plethora of other cases is often cited as the leading authority
on the requirements of a final interdict. These are:-
1.
a clear right which must be established on a balance of
probabilities.
2.
irreparable injury actually committed or reasonably apprehended.
3.
the absence of a similar protection by any other remedy.
The
moment that the applicant's legal practitioners conceded that
applicant had no case against the first respondent is when the
applicant's case against the second respondent also fell apart.
In
her averments in the founding affidavit, the applicant based her
claim on her marriage to the first respondent. For instance in
paragraph 15 of her founding affidavit she states as follows;
“First
respondent's sale of the matrimonial property behind my back was
unlawful and fraudulent. I am his wife and have a half-share interest
in the property by virtue of my marriage to him as it was acquired
during the subsistence of our marriage.”
Although
I have stated that the property became a matrimonial asset as soon as
the parties were married in terms of the Marriage Act, the first
respondent is no-longer a holder of rights in that property. It could
only remain a matrimonial asset had it been in existence at the time
of the divorce.
As
a matter of fact, at the time of filing the urgent application,
there was no proof of divorce proceedings having been filed by the
applicant against the first respondent. The applicant's assertion
that she is entitled to a half-share interest in the property can
only hold water against the first respondent and not against the
second respondent as there is no marital relationship between
applicant and second respondent. And in any event, a marriage out of
community of property does not translate into an automatic half-share
as the basis of apportioning matrimonial property is based on section
7 of the Matrimonial Causes Act
[Chapter
5:13]
which
is discretionary in nature.
The
applicant went on to state in paragraph 17 that;
“In
any case, the whole transaction smacks of fraud in that there is no
way a sale could have been concluded on 22nd
February 20915 (sic) and transfer taken on 24th
February 2015. The price at which the property was sold was
ridiculously too low. The property was sold for a paltry $101,5000
(sic) when it was valued at no less than $200,000 at the time. The
purchase price of $101,5000 (sic) was less than the cost of land
alone without the structure.”
She
also alleged that some alleged buyers had come to view the property
and that the second respondent had instituted eviction proceedings
against her. She also stated that she was going to report to the
police to conduct an investigation of the alleged fraudulent sale of
the property by the applicant to the first respondent. The applicant
made the same averments of fraud against the first and second
respondents in HC4339/15 which case as stated already was dismissed
and the order remains extant.
A
mere assertion that applicant has reported or intends to report the
matter to the police does not take away the fact that the
implications of the dismissal of her case remain that the agreement
of sale between the first and second respondent remains valid; the
title deeds now in the name of the second respondent remain valid and
the second respondent remains vested with the real rights in the
property.
In
the same vein, the applicant's assertion that the first respondent
sent persons to view the property does not have any value since the
first respondent no longer has any real rights in the property and
would not be able to pass transfer of rights that he no longer has.
This
puts the matter firmly within the res
judicata principle
as the sale and ownership of the property has been confirmed by this
court.
The
applicant has therefore failed to show that she has a clear right
more-so given the legal position that allows a spouse to dispose of
rights in immovable property during the subsistence of a marriage.
Apart
from there being no evidence of the intended disposal of the property
to yet another party, the applicant cannot claim irreparable harm for
an asset that is no longer in her husband's name. In fact, the
balance of convenience favours the second respondent who presumably
parted with his money and his efforts of taking occupation are being
frustrated by the applicant.
The
applicant had a remedy which was to appeal the dismissal of her
application in case no HC4339/15 which she did not chose to do for
reasons that have not been explained. In her own words in paragraph
11 of the founding affidavit, she stated that;
“I
contested the sale through a court application which I lost
unfortunately on technicalities.”
Despite
this admission, she still did not appeal against the decision.
Even
if this court in the matrimonial matter finds that indeed applicant
ought to have been awarded a share in the property, she will still
have a remedy in that she can be awarded a share not of the property
but of the value of the property.
In
Usayi
v
Usayi
the
husband sold the house before the divorce and his former wife was
awarded a half-share of the sale price. In the Maganga
case
(supra)
the court found that the actual value of the property was $402,500
and awarded the former wife not the house but half the value in the
sum of $201,250.
The
application therefore has no merit.
Accordingly,
it is ordered as follows:-
1.
The provisional order be and is hereby discharged.
2.
The caveat placed on certain piece of land, namely, Subdivision 6 of
Lot 1 A Greendale, otherwise known as 3 Rhodesville Avenue,
Greendale, Harare, measuring 4,107m2
and held under Deed no. 664/15, on the 17th
of January 2018, be and is hereby lifted.
3.
The applicant shall pay the costs of suit.
Chakanyuka
and Associates Attorneys, applicant's
legal practitioners
Muhonde
Attorneys –
1st
respondent's
legal practitioners
1.
Section
3(5) - (5)
A marriage contracted according to customary law which is not a valid
marriage in terms of this section shall, for the purposes of
customary law and custom relating to the status, guardianship,
custody and rights of succession of the children of such marriage, be
regarded as a valid marriage.
2.
See also Rabeka v Stockil and Others
HB1/15
3.
See Gonye v Gonye
SC15/09
4.
Courts have also set aside wills on various grounds
5.
1996 (1 )ZLR 217
6.
Section 26(d)
7.
Section 71(2)
8.
HH-48-07
9.
See also Maponga vs. Maponga and Others
HH-21-04
10.
2005 (2) ZLR 44
11.
[1965] 2 ALL ER 472
12.
HH-546-15
13.
1914 AD 221
14.
SC11/03
