Urgent
Application
NDEWERE
J:
The
applicant and the third respondent divorced on 16 January, 2014 in
Case No. HC7328/13.
In
terms of a consent paper concluded on 14 November, 2013, which became
part of the divorce order of 16 January, 2014, the applicant and the
third respondent agreed to give their matrimonial home, stand no.
17074 Giraffe Crescent, Borrowdale West, Harare to their two minor
children in equal shares.
Paragraph
E.5 of the Consent paper stated as follows:
“E.
Division
of Matrimonial Property
5.
Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be
awarded to the two minor children in equal shares. The property shall
be transferred and registered in the said minor children's names
within one year of the order. The parties shall sign all relevant
papers to effect transfer to the minor children failing which the
Sheriff Harare shall sign all such papers as if it were the plaintiff
and defendant. The plaintiff shall pay the cost of the transfer. In
addition, the defendant shall exercise the rights (usufruct) of use
and occupation until she dies or remarries whichever occurs sooner.”
Stand
No.17074 Giraffe Crescent was not transferred and registered in the
children's names within one year, contrary to what was ordered by
the court.
The
court was not told of any steps which were taken by the applicant and
the third respondent towards complying with the divorce order.
It
also appears that the Sheriff, who was supposed to sign all the
papers for purposes of transfer and registration if the applicant and
the third respondent failed to do so, was never approached.
The
property thus remained in the third respondent's name, in
contravention of the divorce order.
It
is common cause that in August, 2015, the above property was attached
by the first respondent in order to satisfy a debt by the second
respondent where the third respondent had signed as surety.
The
applicant says she became aware of the attachment on 21 August, 2015.
On 2 September, 2015 the applicant filed an urgent chamber
application for stay of execution of the writ of attachment.
There
was a delay of more than 10 days from the date of the attachment to
the date of filing of the urgent application. That delay is not
explained, contrary to case authorities which indicate that any delay
in approaching the court urgently should be explained since an
applicant in an urgent application should herself treat the matter
urgently.
The
first respondent opposed the urgent application.
It
said the applicant had no locus
standi;
that she should have instituted interpleader proceedings and that the
application is not urgent.
The
other respondents did not file any opposing papers.
In
my view, the applicant has locus
standi
both as co-guardian of the minor children affected and in her own
right as a person with an interest in the property attached since she
was granted life usufruct of the property if she did not re-marry.
The interest of the minor children and her own are sufficient to give
her locus
standi
in this matter.
In
addition, the applicant could not have instituted interpleader
proceedings because interpleader proceedings apply where the
contention by the claimant is that of ownership.
In
interpleader proceedings, the judgement creditor will have attached
property owned by another person.
In
the present case, the property attached is owned by the third
respondent and even the applicant concedes, in her founding
affidavit, that there is nothing wrong with the attachment.
As
regards urgency, I have already criticised the applicant for not
explaining her delay in approaching the court after the attachment.
In
addition to that, the first respondent argued that the applicant was
aware that the first respondent was searching for assets to attach
for the same debt as far back as December, 2014 because the first
respondent once attached her movables but released them after she
proved that the goods were hers and not the second respondent's.
The
first respondent submitted that her cry now was a matter of
self-created urgency.
There
is merit in the first respondent's argument on the lack of urgency
of the application. However, in view of the minor children who have
an interest in this matter, I have decided to exercise my discretion
in favour of the applicant and treat the application as urgent.
I
will therefore proceed to consider the merits of the application.
The
court order of 16 January 2014 said Stand 17074 Giraffe Crescent was
to be transferred and registered in the minor children's names
within
one year of the divorce order.
(the underlining is my own)
This
time limit was put to protect the interests of the minor children by
ensuring a speedy transfer and registration into their names.
This
was not done and as stated previously, no explanation is given as to
why that was not done.
There
is just a bald statement by the applicant, which was not supported by
a supporting affidavit from the third respondent, that the third
respondent did not have the money to process the transfer.
The
attachment was done more than one and a half years after the divorce
order.
Why
then should the first respondent be prejudiced when it is the
applicant and the third respondent who failed to protect their minor
children's rights by complying with the terms of the divorce order
to transfer and register the house into the children's names within
a year of the divorce order?
The
adage “The law helps the vigilant and not the sluggard”
enunciated in Ndebele
v Ncube,
1992 (1) ZLR 288 at 290 is applicable in this instance.
The
applicant and the third respondent were not vigilant in safeguarding
the minor children's interests.
Secondly,
as indicated by the first respondent, the applicant was aware of the
debt and the search for assets as far back as December, 2014, yet she
still did not make effort to ensure registration of the house into
the children's names.
What
further compounds the matter for the applicant is that the relief she
is seeking sounds permanent in nature.
It
is not a stay pending some other application or action to be taken
but a permanent stay of execution.
Her
affidavit in para 18.3 also suggests that the second and third
respondents have no financial means to clear the debt.
All
these factors militate against the granting of the application.
Granting
the application will mean that the first respondent, cannot recover
his debt from the second and the third respondent forever, when he
has a court order entitling him to do so and this court has no power
to stop a creditor with a valid court order from recovering his debt.
In
any event, the property is also mortgaged to another creditor so the
rights of the children remain exposed even if the application were to
be granted.
As
correctly conceded by the applicant in para 19.1 of her founding
affidavit, the attachment cannot be faulted, since the property still
belongs to the third respondent.
While
the court sympathises with the minor children in this case, the court
has no legal basis to stay execution of the attached property.
The
application is therefore dismissed with costs.
Kantor
Immerman,
applicant's legal practitioners
Gill,
Godlonton & Gerrans,
1st
respondent legal practitioners
Munengi
& Associates,
3rd
and 4th
respondent's legal practitioners
