Urgent
Chamber Application
MAWADZE
J: This
is an urgent chamber application for a provisional order whose
interim relief sought is stated as follows:
“TERMS
OF INTERIM RELIEF SOUGHT
It
is ordered that:
1.
The sale of the property known as LOT 5 of LOT 264 Greendale
Township, Harare also known as No.1 Sancha Close, Greendale, Harare
be and is hereby suspended pending the final determination of this
application.
2.
The applicant and the first respondent be given until the 14th
October 2011 to come to an agreement on the property failing which
the applicant shall institute any necessary proceedings within seven
days of the 14th
October 2011. (sic)
3.
In the event of the applicant instituting further proceedings that
the first respondent be and is hereby interdicted from selling or in
any other way disposing of the matrimonial home pending the final
determination of such proceedings.
4.
The first respondent pay the costs of this application.”
The
terms of the final order sought are couched as follows:
“TERMS
OF FINAL ORDER
1.
The first respondent be and is hereby interdicted from selling or in
any other way disposing of the property known as LOT 5 of LOT 264
Greendale Township, Harare, also known as No.1 Sancha Close,
Greendale, Harare without the applicant's consent and before the
finalization of any associated proceedings.
2.
The first respondent pay costs of this application.
SERVICE
OF PROVISIONAL ORDER
Service
of this provisional order will be made by the applicant's legal
practitioners.”
The
brief history of the matter is as follows:
The
applicant filed this urgent chamber application on Friday 23
September 2011. I was only allocated this matter on Monday 26
September 2011. I attended to the matter the same day and upon
considering the application I declined to set down the matter for
hearing on account that the matter is not urgent. An endorsement to
that effect dated 26 September 2011 was made.
The
following day on 27 September 2011 the applicant through her legal
practitioners sought audience with this court to argue on the urgency
of the matter. The relevant letter is dated 27 September 2011. The
applicant's request was acceded to as the applicant is perfectly
entitled to be heard on the issue of urgency of the matter. I
proceeded to set down the matter for hearing on the same day 27
September 2011 at 1430 hours for the parties to argue on the issue of
urgency.
Mrs
Mtetwa
who appeared then for the applicant appeared before me in chambers
and the hearing of the matter was deferred to the following day 28
September 2011 at 1000 hours to allow service to be effected on the
respondents. On 28 September the first respondent before the hearing
of the matter filed a notice of opposition and an opposing affidavit
to which was attached annextures “A1” and “A2” being
agreements of sale relevant to the property in issue (hereafter
referred to as matrimonial house). I proceeded to hear arguments on
the question of urgency of the matter.
I
now turn the facts of the case giving rise to this urgent
application.
The
applicant and the first respondent are wife and husband respectively.
Before contracting a civil marriage the applicant and respondent were
“married” to each other under customary law since April 1998. The
civil marriage was solemnised on 22 October 2005 in terms of the
Marriage Act [Cap
5:11].
Three minor children were born out of the marriage namely Julita born
on 14 September 1998, Kudakwashe Sean born on 20 January 2001 and
Tatenda Karen born on 16 December 2006.
The
second respondent who is alleged to be a personal friend of the first
respondent is cited in his capacity as the person who purchased the
matrimonial house from the first respondent. As per the first
respondent's opposing affidavit the second respondent has already
paid the purchase price of the matrimonial house as per the agreement
of sale “Annexture A1”. However transfer is still to be effected.
Let
me briefly address my mind to the status of this property in issue
No. 1 Sancha Close, Greendale, Harare (“the matrimonial house”.)
Both
parties did not attach the title deed of the matrimonial house. The
applicant's position is that this property belongs to the first
respondent and she does not aver that the property is registered in
the joint names of the applicant and the first respondent. According
to the first respondent, the applicant, first respondent and the
children who are still residing at the matrimonial house first took
occupation of the house as tenants in 2008. They commenced purchasing
the property in October 2009 under a Deed of Sale from one Peter
Norman Cox. See “Annexure A2”. This Agreement of Sale was between
the first respondent and Peter Norman Cox. The applicant contends
that the full purchase price was paid to Peter Norman Cox in April
2011.
The
first respondent is not clear as to when the full purchase price was
paid, if it was paid at all. Instead the first respondent contends
that the matrimonial house is still registered in the name of Peter
Norman Cox and that Peter Norman Cox, the first respondent and second
respondent have agreed that a simultaneous transfer would be done
from Peter Norman Cox to the first respondent and then to the second
respondent. This would imply that the matrimonial house is still
registered in the name of Peter Norman Cox although the first
respondent may have paid the full purchase price and has in turn
received the full purchase price of the same property from the second
respondent. This issue however is besides point.
It
is however apparent from the facts of the matter that the matrimonial
house is not registered in the joint names of the applicant and the
first respondent (even assuming the first respondent owns the
matrimonial house). There is no basis to infer that there is such an
intention even as and when the actual transfer from Peter Norman Cox
to the first respondent is to be done. The assumption derived from
the applicant's founding affidavit is that the matrimonial house in
issue is registered in the first respondent's name. I shall
therefore proceed to deal with the issue at hand on that basis.
What
has prompted this application according to the applicant is that the
first respondent has sold the matrimonial property to his friend the
second respondent, firstly without consulting and seeking the
applicant's consent and secondly without making alternative
provisions for the applicant, and the minor children's needs
especially in respect of accommodation.
As
already said the first respondent does not dispute this fact as per
“Annexutre 1” agreement of sale between the first respondent and
the second respondent. The full purchase price has been paid and all
what is left is the transfer of the matrimonial house into the second
respondent's name.
It
is common cause that there are marital problems between the applicant
and the first respondent. Both the applicant and the first respondent
were very candid with the court on this issue. They both confessed to
have strayed away from the dictates of the holy matrimony by engaging
in extra marital affairs although both allege to have repented by
terminating their respective affairs. The applicant stated that she
had an intimate relationship with another man from January 2011 to
June 2011 when the first respondent discovered the affair and has
since sued the paramour for adultery damages. The first respondent
identifies this paramour as the applicant's obstetrician and
gynaecologist. The first respondent on his part admits to have
engaged in an extra marital affair and has sired a child with another
woman.
According
to the applicant this matter is urgent because of the following
reasons:
(a)
That the property in issue is matrimonial residence where the
applicant lives with the three children hence if it is clandestinely
disposed of irreparable harm and prejudice would be occasioned to the
applicant and the children who would be rendered homeless;
(b)
That the first respondent is in an long adulterous relationship and
intends to relocate to South Africa presumably to join his concubine
and squander all the cash realised from the sale of the matrimonial
house;
(c)
That the applicant and the first respondent should agree to sell the
matrimonial house and that the sale should be transparent, in the
open market and to the best advantage of the parties;
(d)
That if this court allows the sale to go through and the first
respondent receives the full purchase price, the applicant would not
have any other recourse as the first respondent has no other assets
except some vehicles which the first respondent can still easily
dispose of.
The
question which falls for determination at this stage is whether this
is an urgent matter.
As
already said I had formed the opinion that this matter is not urgent.
My view has not changed even after hearing submissions from counsel
for both the applicant and the first respondent.
The
question of what constitutes urgency in my view is now settled in our
law. See Kuvarega
v Registrar
General & Anor
1998 (1) ZLR 188 at 193 F (H). In the case of Gifford
v Muzire
& Ors
2007 (2) ZLR 13, (H) at 134H – 135 A KUDYA J had this to say in
dealing with the question of urgency:
“All
that the applicant has to show is that the matter cannot wait the
observance of normal procedures and time frames set by the rules of
the court for ordinary applications without rendering nugatory the
relief that he seeks.”
My
view is that this matter is not urgent because this court is being
asked to grant an incompetent order, albeit interim relief.
The
first issue which exercised my mind in perusing the papers is whether
this court can competently bar the first respondent from disposing of
the immovable property registered in his name (I have made that
assumption) in the absence of any pending divorce proceedings. The
legal relation of a wife or spouse to property registered in the sole
name of the husband (or other spouse) has been dealt with by our
courts. See Cattle
Breeders Farm (Pvt)
Ltd
v Veldman
(2) 1973 RLR 261 D wherein BEADLE CJ quoted LORD HODSON in National
Provincial Bank Ltd
v Ainsworth
[1965] ALL ER 472 at 479 which quotation is at pp 266 F:
“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 so as to clog
title of an owner.”
See
also Muzanenhamo
& Anor
v Katanga
1991 (1) ZLR 182 (S) and in Muganga
v Sakupwanya
1996
(1) ZLR 217 (S).
The
question I have posed as to whether a wife can stop her husband from
selling a matrimonial home or any other property registered in the
sole name of the husband was in my view aptly answered by MAKARAU JP
(as she then was) in the two cases which were consolidated at the
hearing of:
1.
Godfrey Muswere v Getrude Rudo Makanza;
and
2.
Getrude Rudo Makanza v Godfrey Maswere & Ors
HH 16-2005 at p 4 of the cycostyled judgment wherein the learned
judge had this to say:
“The
position in our law is therefore that a wife can not even stop her
husband from selling the matrimonial home or any other immovable
property registered in his sole name but forming the joint
matrimonial estate… There must be some evidence that in disposing
the property the husband is disposing it under value and to a
scoundrel…. mere know knowledge that the seller of the property is
a married man who does not have consent of his wife to dispose of the
property is not enough. See Pretorius
v Pretorius
1948 (1) SA 250 (A)”.
In
casu
the applicant has no real right in the matrimonial house which is
presumably registered in her husband's name. The applicant's
rights are personal to her husband. The applicant can therefore
compel her husband the first respondent to meet his obligations under
the realm of family law like providing alternative accommodation or
an order for contributory maintenance in relation to her and the
children. Such rights which are personal against the first respondent
cannot override the real rights the first respondent enjoys as the
registered owner of the matrimonial house. Such protection as
envisaged in this application may only be available for the applicant
in terms of section 7 of the Matrimonial Causes Act [Chapter
5:13]
if the applicant had instituted divorce proceedings. There is no
evidence to suggest that the applicant has instituted divorce
proceedings. Although the marital relationship between the applicant
and the first respondent is strained no divorce proceedings have been
instituted.
In
my view the applicant has not shown that she has a legal interest
which should be protected by the way of an urgent application even
assuming that all her averments in the founding affidavit are
correct. The observation by MAKARAU JP (as she then was) in Document
Support Centre (Pvt)
Ltd v
Mapuvire
2006 (2) ZLR 240 at 243 E – F is poignant:
“I
need to digress a little at this stage and observe that it further
appears to me that it is not every legal interest that is capable of
protection by way of an urgent application no matter how compelling
the circumstances. Thus, while the general position is that when the
need to act arises, an applicant may approach the court for immediate
redress without delay, it is not on every cause of action that such
an approach may be made… without attempting to classify the causes
of action that are incapable of redress by way of urgent application,
it appears to me that the
nature of the cause of action and the relief sought are important
considerations in granting or denying urgent applications.”
(my emphasis)
In
casu
it
is not even clear as to the nature of the interim relief sought. It
is also not clear as to whether even the first respondent at law is
the registered owner of the immovable property in issue. In addition
to that there is nothing to show that the first respondent has
disposed the property to a scoundrel and or at a give-away price.
(See annextures A1 and A2). Most importantly there are no divorce
proceedings pending before this court in which the matrimonial house
is a subject of dispute between the applicant and the first
respondent.
It
is for the reasons outlined above that I hold the firm view that this
matter is not urgent. It is only fair and just that I award costs
against the applicant. There was no need in my view for the applicant
to pursue the matter in view of the facts of the case and after the
court had intimated that the matter is not urgent.
IT
IS ORDERED THAT:
1.
Case No. HC 9401/11 be and is hereby declared as not urgent.
2.
The applicant is to pay the costs.
Mtetwa
& Nyambirai,
applicant's legal practitioners
Scanlen
& Holderness,
1st
respondent's legal practitioners
