MANGOTA
J:
An
application in which the applicant moves the court to declare him the
sole owner of the property which he and another person jointly
purchased from the seller is misplaced. A
fortiori
when the application excludes his co-purchaser whose views remain
unknown to the court.
On
12 February 2004, the applicant and his former wife, one Virginia
Pasipamire, purchased Stand Number 172 of Roughlands Estate “A”
(“the property”) from the respondent. The property is situated in
the district of Marondera formerly Marandellas. It is 2346 square
metres in extent.
The
purchasers did not, for reasons known to them, move the seller to
transfer the property into their joint names. They, therefore, have
only personal rights against the respondent.
On
18 May, 2011 the applicant obtained a decree of divorce against his
wife. The divorce proceedings took place at Leicester County Court in
the United Kingdom.
Pursuant
to the dissolution of their marriage, the applicant and his former
wife filed a consent order with the mentioned court. They did so on 6
February 2013. Paragraph 11 of the consent order is relevant to the
present application. It regulates the parties' division of property
post their divorce. It reads:
“II.
TRANSFER
OF PROPERTY CONDITIONAL UPON PAYMENT OF LUMP SUM
(a)
The Petitioner shall transfer to the Respondent upon payment of the
lump sum referred to in paragraph 10 above all his legal estate and
beneficial interest with full title guarantee in the freehold
property 16 Southfield Close, Leicester LE 29 NW registered at the
Land Registry under title number LT 131537 subject to the mortgage
secured thereon in favour of HSBC.
(b)
The Respondent shall transfer to the Petitioner all her legal estate
and beneficial interest within the properties known as “Marandellas”
2346 square metres, Zimbabwe and Good Hope Stands, Lot 11, West Gate,
Zimbabwe on or before the 28th
day of February 2013…”
It
is mentioned, in passing, that the applicant was the petitioner and
his ex-wife
the respondent in the consent order which was filed with the court.
Paragraph
10 of the order, it is observed, made reference to a lump sum order.
The respondent was, in terms of the paragraph, enjoined to pay or
cause to be paid to the petitioner a lump sum of €20,000. She was
to pay or cause to be paid to him the sum in question on or before 28
February 2013.
It
was on the basis of clause 11(b) of the consent order that the
applicant filed this application. He claimed that he is the sole
owner of the property. He drew what he termed an addendum to the
agreement of sale which his ex-wife
and him concluded with the respondent on 12 February, 2004. He moved
the court to:
(i)
declare that the respondent infringed on his right to the property
when it refused to sign the addendum to
reflect that he is the sole owner of the property;
and
(ii)
compel the respondent to sign the addendum to the agreement of sale
so as to give effect to his rights as
the sole owner of the property
[emphasis added].
The
respondent opposed the application.
It
submitted that what he moved the court to grant him was/is akin to
requesting the court to compel it to conclude a contract with him. It
challenged the authenticity of the decree of divorce and the consent
order which the applicant attached to his application. It insisted
that the application could not succeed without a joinder of his
former wife. It moved the court to dismiss the application with costs
on a higher scale.
Four
elements constitute the contract of purchase and sale. These are:
(a)
the seller who wants to sell;
(b)
the buyer who wants to buy;
(c)
the thing or the subject–matter of the contract; and
(d)
the price.
See
Norman's
Purchase and Sale in
South Africa 4th
ed, p 2: Mackenrtain's
Sale of Goods
in South Africa, 4 ed, p 28 ff.
Where
one of the elements is missing, the contract is not one of sale.
The
respondent stated, and correctly so, that it sold the property to two
purchasers. These are the applicant and his ex-wife.
It insisted that the ex-wife
should have been joined to the proceedings.
The
applicant stated that what he was seeking was a novation of the
parties.
Whatever
that meant remains anyone's guess. The term which he used to
describe what he intended to achieve is not materially different from
asking the respondent to enter into a new contract with him to the
total exclusion of his ex-wife
who, as he admitted, jointly purchased the property with him. The
addendum which he attached to his application is nothing but a new
contract which he wants to consumate with the respondent. That
contract, if sanctioned, would have two and not three, parties as is
the case with the parties' contract of 12 February 2004.
The
word addendum does not, in fact, fit into the circumstances of the
applicant's objective. Mirriam–Webster com/dictionary defines
addendum
to mean a thing
added;
addition.
Free Dictionary defines the word to mean “something
added; an addition.
Business dictionary.com defines addendum
to mean “information
attached or added to clarify, modify or support the information in
the original document or written work”
and Cambridge English Dictionary defines the word to mean “something
that has been added to a book, speech,
document.”
The
above mentioned definitions show, in clear terms, that the applicant
is seeking an alteration of the original contract. He wants something
which excludes his wife added to it.
Whether
or not the added information seeks to clarity, modify or support the
contents of the original contract is not the issue. The bottom line
is that the court cannot, legally speaking, compel the respondent to
enter into this new contract with him. New in the sense that, whereas
the original contract has two purchasers, the contract which the
applicant intends to conclude with the respondent has only himself as
the purchaser of the property which he jointly purchased with his
former wife in 2004.
I,
in this regard associate myself with the dictum
of
INNES
CJ who,
in Ambrose
& Aitken v
Johnson
& Fletcher,
1917 AD 327 at 343 eloquently enunciated the principle that it is not
for the court to remake a contract of the parties. In Holmes
v
Palley
1975
(2) RLR 98 (AD) at 105C BEADLE
CJ repeated
INNES
CJ's sentiments
and said:
“when
parties make an agreement , each party is entitled to expect that the
other party will abide by it. One party is not entitled to expect
that the other party will carry out an agreement which is different
from the one agreed to simply because the other party is not
prejudiced by the difference.”
In
applying as he did, the applicant placed reliance upon the consent
order. He submitted that his former wife fell out of the equation by
virtue of the same. He stated, in paragraph 12 of his answering
affidavit, that:
“12.
My former wife no longer has any interest in the property, given the
order already issued out by the Leicester County Court. The consent
paper is akin to an agreement between the parties and there is no
reason for the respondent's refusal to simply disregard the same.”
The
respondent did not mince its words. It challenged the authenticity of
the consent order. It did so in its opposing affidavit which it filed
with the court on 21 March, 2017.
The
applicant became aware of the respondent's challenge of the consent
order when he received the latter's opposing affidavit. He, for
reasons known to himself, did not move to address that concern of the
respondent. All he did was to state in paragraph 12 of his answering
affidavit that:
“if
the Respondent's refusal to sign the addendum arose from a concern
regarding the authenticity of the document, it ought to have advised
me of the same and l
would have dealt with that concern accordingly.”(emphasis
added).
The
question which begs the answer is has he addressed the respondent's
concerns.
He
filed his answering affidavit on 17 May, 2017. He filed his heads of
argument on 21 June, 2017. The application was heard on 25 October,
2017. What the respondent raised in March, 2017 remains unaddressed
to date. That fact alone places the applicant's abovementioned
statement into some very serious doubt.
The
applicant relied on paragraph 11(b) of the consent order. He,
however, did not aver, in his founding or answering affidavit, that
the parties complied with paragraph 12 of the same. The paragraph is
critical to the present application in a number of respects. It deals
with the parties' clean break. It reads:
“12
CLEAN BREAK: CONDITIONAL (INCLUDING UPON DEATH)
Upon
completion of the transfer of 16 Southfield Close, Leicester LE 29NW
provided by paragraph 11a and upon the completion of transfer of the
properties known as “Marandellas”, 2346 square metres, Zimbabwe,
and Good Hope stands, Lot 11, West Gate, Zimbabwe and payment of the
lump sum as provided for by paragraph 10 of this order and compliance
with the
undertakings
to the court provided for by the recitals of this order the parties'
claims for financial provision, pension sharing and property
adjustment orders do stand dismissed.” (emphasis added).
The
long and short of the above cited paragraph shows that each party to
the divorce had to perform certain functions which were/are in line
with the consent order. The applicant did not state that each party
performed its own side of the order. All he did was to cling on to
paragraph 11(b) and apply as he did.
The
position which the respondent took remains unassailable. It sold the
property to two persons. It is being cautious not to sign the
addendum which the applicant single-handedly prepared without its
input or that of his ex-wife.
The
respondent is not privy to the divorce proceedings which took place
at Leicester County Court. It stated, and correctly so, that it does
not know the authenticity or otherwise of the consent order. Where
the order is not authentic and the respondent signs the addendum as
the applicant insists it should, it runs the risk of having to
content with his ex-wife
for having disposed of her one-half share in the property without her
consent or authority.
The
applicant and his former wife do have personal rights against the
respondent. Their rights arise from the contract of sale which the
three of them concluded in 2004. It is, therefore, unclear on what
basis the applicant states in the draft order that he is the sole
owner of the property. Clause 1 of his draft order reads, in part, as
follows:
“IT
IS HEREBY ORDERED THAT:-
Respondent's
refused to sign the addendum--- infringes on applicant's rights as
the sole owner of this property
and it is hereby declared unlawful.” (emphasis added)
Clause
2 of the same reads:
“2.
In order to give effect to applicant's rights as set out in para 1
above, the respondent is compelled to sign an addendum to the sale
agreement reflecting the applicant as
the sole owner
of Stand No. 172 of Roughlands Estate 'A' Marandellas.”
(emphasis added)
What
the applicant moved the court to grant to him is incompetent. He is
confusing real rights with personal rights. He has no real rights to
the property. He has only such when the respondent transfers the
property into the joint names of his ex-wife
and him. The respondent cannot transfer the property into his name
alone when his former wife and him jointly purchased the same.
The
consent order which the applicant relies upon does not suffice. A
fortiori
when,
as in
casu, the
respondent challenges its authenticity. Some statement from the
applicant's former wife stating her attitude to the issue of the
parties' contract of February 2004 and the transfer of the property
into the applicant's name is a sine
qua non aspect
to the resolution of the present matter.
The
application was prematurely brought before the court. It has a lot of
loose ends to it. It cannot succeed. It is, therefore, dismissed with
costs.
Honey
& Blanckenberg, applicant's
legal practitioners
Gama
& Partners, respondent's
legal practitioners
