The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial.

During the subsistence of the marriage, the parties had acquired an immovable property called Stand 491 Mount Pleasant Township 13 of Lot 33 of Mount Pleasant. This they set up as the matrimonial home. Title in the property was held freehold by a company called Westerhoff Investments (Private) Limited. It is common cause that the parties regarded the company as their joint alter ego, set up primarily for the purposes of holding title in the property.

Prior to divorce, and with the assistance of the judge who presided over a pre-trial conference in their matter, the parties settled as between themselves, a consent paper, which disposed of the issues of paternity and maintenance for the minor child of the marriage and the distribution of the joint estate. The consent paper was, at the time of the divorce, incorporated into and became part of the divorce order.

Regarding the fate of the matrimonial home, the court ordered as follows, following the wording of clause 5 of the consent paper:

“5. After the results of the paternity tests, the following scenario will obtain:

(a) The property known as No.29 Morningside Drive, Mount Pleasant, Harare, shall be valued for commercial purposes and the value shall be divided in such a manner that:

(i) If the plaintiff is the natural father of the minor child, plaintiff gets a 40% share, the defendant a 40% and the minor child 20% share, and the defendant shall pay to the plaintiff such amount as may be the difference between the plaintiff's 40% share and the sum of $110 million which is the lump sum payment for the maintenance of the minor child in full and final settlement as provided for in clause 2 hereof; and

(ii) If the plaintiff is found by results of the tests not to be (the) natural father, then the ratio shall be 60% for the plaintiff and 40% for defendant.

(b) The valuation provided for in clause 5(a) hereof shall be conducted by an independent valuer appointed by the Master of the High Court from his list and such valuation shall be conducted and concluded within 7 days of receipt by plaintiff (who shall serve the results on the defendant's legal practitioner within 7 days of receipt of them) of the results of the valuation.

(c) The costs of the valuation shall be borne by plaintiff and defendant in the ratio of 50% plaintiff and 50% defendant. The valuation costs shall be paid for in full by plaintiff to facilitate the process and he shall be refunded his share by defendant at the time that defendant pays what is due to plaintiff either in terms of clause 5(a)(i) or clause 6.

(d) Should the defendant fail to pay the amount payable to plaintiff within 12 months of the date of valuation, then, and in that event, and without notice to defendant, the plaintiff shall be entitled to sell the immovable property, and from the proceeds pay $110 million as provided for in clause 2, to defendant for the minor child and 40% of the proceeds to the defendant as her share. In a sale in terms of this clause, the defendant herein irrevocably appoints her legal practitioner, failing him the Sheriff or his lawful deputy to sign all documents necessary to effect the sale and resultant transfer, and the rates duties and other taxes payable by reason of the transfer including transfer fees shall be paid from the proceeds of sale.

6….,.

7….,.

8….,.”

It is common cause that in January 2006, the property was evaluated for the purposes of clause 5(a) of the divorce order. This was to set the value of the property at which the plaintiff before me, then defendant, could “buy off” her former husband's share in the property to enable her to acquire joint title with the minor child in the property, to the exclusion of her former husband. The defendant had a year in which to do this and the clock started ticking against her in January 2006.

It is further common cause that the defendant failed to raise the requisite funding necessary to bring into effect the provisions of clause 5(a)(i) of the order. She could not buy out her former husband and her failure to raise the necessary funding triggered the provisions of clause 5(d) of the divorce order. In terms of this clause, the property had to be sold and the proceeds parceled out in a pre-determined ratio.

Again, it is not in dispute that in the course of time, the property was sold to the plaintiff. Transfer of title was conveyed to the plaintiff, and, in due course, the plaintiff sought the eviction of the defendant from the property.

The defendant resisted the plaintiff's claim for eviction and this is the suit that came before me.

In defending the eviction summons at the instance of the plaintiff, the defendant pleaded that the agreement of sale to the plaintiff was defective, transfer to the plaintiff was fraudulently procured and was to the prejudice of the defendant and the minor child of the marriage. In the plea, the defendant prays for the sale and subsequent transfer of the property to be set aside.

At the pre-trial conference of the matter, where, in terms of our procedures, all legal issues ought to have been crystallized, the matter was referred to trial on the following issues:

1. Whether or not the agreement of sale entered into by and between the plaintiff and Westerhoff Investments (Private) Limited in respect of the property known as No.29 Morningside Drive, Mt Pleasant, Harare, and its subsequent transfer by the latter to the former, is valid at law.

2. Whether or not the plaintiff is entitled to an order for the eviction of the defendant from the premises.

3. Who between the parties should bear the costs of suit?...,.

It would appear that in terms of the defendant's summary of evidence, and indeed according to the evidence led at the trial, the defendant took issue with the fact that she was not consulted on the ultimate price at which the house was sold to the plaintiff. She is of the view that the property was sold at an unreasonably low price to her prejudice as she then could not buy another property from her share of the proceeds....,.

To substantiate its claim, the plaintiff first called Joseph Mandizha. He was approached by a third party to act on behalf of the defendant's former husband. He was instructed to carry out the terms of the divorce order as between the parties and as it related to the distribution and disposal of the former matrimonial home.

In January 2007, the witness advised the defendant that he had been instructed to cause the sale of the property. His instructions had been for him to proceed without informing the defendant as her time to act had come and gone by. He met with the defendant and her legal practitioner and they discussed the matter. He informed the defendant and her legal practitioners on how he intended to dispose of the property. He indicated to the defendant that while clause 5(d) did not place any obligation on him to consult her in disposing of the property, he would nevertheless keep her informed of developments out of courtesy.

Before putting up the property for sale, the witness caused a market appraisal of the property to be done. The estate agents that were approached to carry out this appraisal included Heaven on Earth, an agency in which he is the majority shareholder. After the appraisal, instructions were given to Heaven on Earth to sell the property. It is at this stage that reports were received to the effect that the defendant was objecting to the mandate given to Heaven on Earth Real Estate to sell the property. She sought to introduce a new agent to handle the sale.

Undeterred by the efforts taken by the defendant to stall the selling of the property, the witness had the property sold to the plaintiff in June 2007. The defendant was advised of the sale of the property through correspondence to her legal practitioners. Requests were made for the attendance of the defendant upon the witness for the signing of the agreement of sale. It is at this stage that the defendant intimated that the property could be sold for a higher price. It was indicated to the witness, by the defendant's legal practitioners, that, in view of the prices she was expecting, she was unlikely to sign the agreement of sale which reflected a purchase price of $13 billion. He received the purchase price for the property and then proceeded to facilitate the registration of transfer of the property to the plaintiff.

In disposing of the property, he never had sight of the Articles of Association of the company that held title in the property. He merely followed the dictates of the court order as to how the property was to be disposed and the proceeds distributed between the divorced parties and their minor child. While the parties held a meeting before the property was sold, it was never his intention to re-negotiate the dispute between the parties or to be taken outside the provisions of the divorce order. His instructions were not to revisit the distribution of the property.

When he was genuinely convinced that the defendant would not sign the agreement of sale, he requested the Deputy Sheriff to sign on her behalf in accordance with the court order.

The witness gave his evidence well and was very candid with the court. His explanations were full and while one may not agree that it was prudent of him to instruct his own agency to sell the property, one cannot, on that basis, find that he was an unreliable witness.

Next to testify on behalf of the plaintiff was one Tongoringa Mubaiwa. He is an estate agent working for Heaven on Earth Real Estate. He handled the sale of the property in dispute. Prior to putting up the property for sale he did a market appraisal of the property. He compiled a report of his findings. He was then given instructions to market the property which he did. Eventually he sold the property to the plaintiff. He drafted the agreement of sale which was signed in due course.

The witness gave his evidence well. He fared well under cross-examination. His answers and explanations were easy to follow. I find him a credible witness.

The plaintiff called Muriel Chengetai Dowa as its third witness. She represented the directors of the plaintiff in the purchase of the property.

She was under instructions from the plaintiff to look for a property. She, at one stage, responded to an advertisement by Heaven on Earth for a property in Mt Pleasant. The deal fell through. She then advised the estate agency to contact her should they have another property in the same area for sale. After some time, she was informed of the property in dispute. She was advised that the property was being sold as a result of a divorce. She could not view the property but was shown pictures of the same. The directors of the plaintiff advised her to seek legal advice before proceeding. She did and proceeded to buy the property. Eventually, the property was transferred to the plaintiff and when she tried to gain access to the property, after transfer, she was denied same by the defendant.

I find no fault with the evidence and manner of testifying of this witness. I shall rely on her evidence.

After the evidence of this witness, the plaintiff closed its case.

The defendant called one Bruce Beaven Mujeyi to give evidence first. He was acting as the legal practitioner of the defendant during the hearing of the divorce matter and was especially instructed to deal with the matter of the disposal of the matrimonial home.

At the time he received instructions to act in the matter, the matter had received a lot of publicity and tensions were high on either side. The legal practitioner who had acted for the defendant's husband during the divorce proceedings had renounced agency and he had to deal with Mr Mandizha, who, like him, had been instructed to act in the matter after the divorce had been granted. Mr Mandizha wrote to the defendant advising her that he was now handling the matter. He responded to the letter by telephoning Mr Mandizha. They agreed to meet. In view of the fact that neither he nor Mr Mandizha had handled the much publicized divorce, he suggested that the best way forward was for the parties to negotiate their way through the disposal of the former matrimonial home. He was aware of the divorce order and the consent paper on which the order was based.

In the meeting, Mr Mandizha agreed to keep him abreast of developments as he had the company documents and the Deed of Transfer in respect of the property. He also understood that the draft agreement would be forwarded to him for his input.

Regarding the agency of Heaven on Earth in the matter, the defendant was clearly uncomfortable that an agency in which Mr Mandizha had an interest should be used to sell the property. On the instructions of the defendant, he addressed a letter to Mr Mandizha expressing these concerns. When Mr Mandizha responded showing little concern for this since his client had no problem with the arrangement, he filed an urgent application on behalf of the defendant seeking to interdict Heaven on Earth from proceeding. Regrettably, the matter was not determined as the judge before whom the urgent application was placed ruled that the matter was not urgent as there were other remedies available to the defendant.

His further understanding was that if the property was to be evaluated, this had to be done by an estate agent on the Master of the High Court's roll.

The defendant also informed him that she had problems with people coming to view the house. Since the parties had agreed to negotiate, they had not agreed on who was to carry out the evaluation of the property. His client was aggrieved by this as it went against the spirit of the meeting while Mr Mandizha was equally aggrieved by what he perceived as lack of co-operation from the defendant. He was somewhat caught in the middle.

On 25 June 2007, he received notification that the property had been sold and requesting his client to sign the draft agreement of sale. He had not been shown a copy of the draft. He was constrained to write to Mr Mandizha informing him that he could not sign the agreement on behalf of his client; that his client was out of the country; and that she would take issue with the price at which the property had been sold. From the response he received, he gained the impression that he should wait for Mr Mandizha's further advice. The letter read:

“Your letter of 26 the instant received in fax form refers. (Sic)

We advise that it has been referred to our client. We will revert to you once his instructions are to hand.”

When his client returned, he contacted Mr Mandizha to advise him that the parties could now move forward. He was advised that the property had been sold. For his client's signature, Mr Mandizha had approached the Deputy Sheriff. He then advised his clients of the developments and the two parted company after he felt that it was best that another law firm takes over the matter as the defendant felt that she had been let down.

The witness gave his evidence well. He was quite clear in his responses to questions and while his reading of the divorce order may have been different to mine, in some respects, that is not a basis for impugning his credibility.

The defendant also gave evidence.

During the subsistence of her marriage to her former husband, the two bought a property that was registered in the name of a company. At the time of the divorce, the parties entered into a consent paper.

She tried to raise money to “buy the defendant out” but failed. She is living openly with HIV/AIDS and was not in gainful employment at the time. When she realized that she could not raise the necessary funds to buy him out, she tried to sell the property within the one year stipulated in clause 5 of the divorce order. She failed.

In January 2007, she received a letter from Mr Mandizha advising her that he wanted to sell the property. She attended a meeting with Mr Mandizha in the company of her legal practitioner. It was agreed at the meeting that the fighting between the parties should come to an end; that the parties would henceforth resolve all issues amicably; and that the parties would be in constant communication over the disposal of the former matrimonial home. At the meeting, no mention was made of the estate agency that would dispose of the property.

A day after the meeting, an agent from Heaven on Earth came to the property to carry out an evaluation of the property. She allowed him in. Later on, she did not open her gate to him and to people who wanted to view the property. She had issues with the whole process as she had not received the valuation report to compare it with her own idea of how much the property should fetch. When she finally received the evaluation report, she then realized that Mr Mandizha was one of the directors of Heaven on Earth. She raised the issue with her legal practitioner. She felt that there was an obvious conflict of interest in that Mr Mandizha represented her former husband, was selling the property through his agency, would do the conveyancing, and then distribute the proceeds from the sale to the parties as between the parties and the minor child. The matter came to court, but, unfortunately, the urgent application was not granted.

While waiting for developments in the matter, she instructed her lawyers to place a caveat against title to the property as she felt that she had real rights in the property that needed protection. She was also protecting the interests of the minor child.

Some time later she sent an e-mail to her lawyer suggesting that an independent estate agent be appointed to handle the sale. She suggested one. She copied the email to Mr Mandizha. In the e-mail she also gave her own suggestion of the fetching price for the property.

She left Harare for some time and when she returned she was advised that the property had been sold. She was not happy. She went to her legal practitioner and asked him to stop the transfer and he filed an urgent application. She went to the Anti-corruption Unit and lodged a complaint. Before the urgent application to stop the transfer could be heard, Mr Mandizha appeared and showed them the Deed of Transfer. She then withdrew the case.

At one point she expected her former husband to call for a company resolution on the disposal of the property.

In her view, her former husband did not comply with the court order from the beginning. Her legal practitioners ought to have been shown a copy of the draft agreement. They were not. At the same time she was also looking for another house to buy. The price fetched for the former matrimonial property was not sufficient to meet her obligations in procuring another property.

In conclusion, she prayed for an order setting aside the sale and transfer to the plaintiff and for the property to be resold under the supervision of the Master of this court.

The defendant was understandably highly emotional when she gave her evidence. This however did not deter her from giving her opinion on how the former matrimonial home should have been disposed of. Her testimony was to a large extent corroborated by that of her former legal practitioner. I have no cause to disbelieve her on fact. Due to the emotion which the defendant testified and presumably which she attaches to this matter, I have reproduced her testimony in greater detail than for any other witness deliberately as I shall try and examine each issue that she has raised in her evidence and upon which she rests her defence.

It is not in dispute that the plaintiff has brought the rei vindicatio against the defendant.

As aptly summarized by counsel for the plaintiff, in his closing submissions, the plaintiff has approached this court as an owner of the property to seek the ejectment of the defendant simply on the basis that it is the owner and is thus entitled, as such, to enjoyment of its property.

The rei vindicatio is an action that is founded in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his or her property that, at law, he or she is entitled to recover it from wherever found and from whomsoever is holding it without alleging anything further than that he or she is the owner and that the defendant is in possession of the property. Thus, it is an action in rem enforceable against the world at large.

This is settled law in this jurisdiction which hardly requires authority. See Sibanda v The Church of Christ 1994 (1) ZLR 74 (SC); Musanhi v Mt Darwin Rushinga Cooperative Union 1997 (1) ZLR 120 (SC); Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S); Jolly v A Shannon & Anor 1998 (1) ZLR 78 (HC); and Stanbic Finance Zimbabwe Ltd v Chivungwa 1999 (1) ZLR 262 (HC).

The bedrock of all the above decisions is Chetty v Naidoo 1974 (3) SA 13 (A) where…, JANSEN JA had this to say:

"It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner."

There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action;

1. The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognized law, with the right to exclusive possession of the property.

2. The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.

There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it.

It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.

The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner-child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.

In casu, the plaintiff has not denied that the plaintiff is the owner of the property. She has not denied that she is in possession of the property in issue. She has however sought to attack the right of the plaintiff to exclusive use of the property on the basis that she was unfairly treated by her former husband and his agents when the property was disposed of.

In my view, the defendant's case is hampered by the application of three legal principles.

(a) Firstly, she is relying on the consideration of equities in the matter to deny the plaintiff exclusive enjoyment of its property.

I repeat her evidence in this regard. She could not raise enough funds to purchase her former husband's share in the property as she was not in gainful employment at the time. She could not raise any loans as she is publicly known to be living with the HIV/AIDS virus. She intended to purchase another property for herself and for the minor child of the marriage. She could not do so from the proceeds of the sale of the property as her share was too low. The success of this suit against her will literally make her and the minor child of the marriage homeless.

On the other hand, the plaintiff has bought the property for investment purposes. It does not require the property for its own accommodation but as an income-generating investment. Thus, on equities alone, the defendant has a strong case.

Having heard and seen the defendant testifying and having listened to the impassioned plea that she was making to the court for a break for herself and the minor child of the marriage and having heard the anguish in her voice, I would have, if I had any, used my discretion in her favour and granted her prayer.

I have none. The law gives me none. I have no power to abrogate any to myself to change the principles of the rei vindicatio to bring in the consideration of equities into the matter. My hands are tied. I must apply the law that denies her a remedy even if I am keenly aware of her circumstances.

(b) Secondly, the defendant has not raised any personal relationship with the plaintiff in terms of which the plaintiff may be estopped from taking possession of the property from her.

The legal authorities are all clear that in a rei vindicatio, where the defendant shows that he or she has some right of possession enforceable against the owner, then the action cannot succeed. To succeed in defeating the action, a defendant must therefore set up facts that establish a legal relationship in terms of which possession of the property by the defendant is justifiable.

It is a settled position at law that it is only when the wife in the position of the defendant proves that the plaintiff has associated with her former husband to defraud her of her rights in the former matrimonial home can she resist an action of eviction at the instance of the plaintiff.

See Ferris v Weaven 1952 (2) ALL ER 23: Maganga v Sakupwanya 1996 (1) ZLR 217; and Nene v Nyatwa SC119-91.

In casu, no suggestion was ever made, in evidence, that the plaintiff fraudulently associated with the defendant's former husband to defeat her just claims in the former matrimonial home. If anything, all the blame was heaped on the legal practitioner acting for the defendant's former husband for violating the consent order in more than one respect.

I have been referred to two decisions of this court that seem to go against the finding that I make in this matter. See Ndlovu v Ndlovu HH15-04 and Chapeyama v Chapeyama HH96-05.

In Ndlovu v Ndlovu HH15-04 I made the finding that the personal rights that the wife had in that matter were equal to the personal rights that the third party had from his agreement of sale with the respondent/husband. It is worth noting that in that case, no transfer of the property had been effected in favour of the third party when the wife/applicant approached the court for relief. The facts of that matter are therefore distinguishable from the facts in this matter. The competition in that case was between two equal rights. The applicant wife and the respondent/purchaser had personal rights against the respondent/husband, and, on a balance of equities, the applicant succeded.

In Chapeyama v Chapeyama HH96-05 the suit was between the former spouses, and, in my view, GOWORA J correctly held that as between the two of them the wife had breached the terms of the divorce order in having transfer registered in her favour before first affording her former husband the right to purchase her out. She therefore ordered the two parties to proceed in terms of the divorce order.

In any event, the above two cases were each instituted by the wives to protect their rights in the properties in question. The causes of action in both cases were different and called for different considerations. As indicated above, the applicant in this matter is bringing a rei vindicatio. The considerations that I have to take into account when dealing with this specific cause of action are different from the considerations that arose in the above cases. Such is the law.

Finally, the defendant has raised issues with the manner in which the property was disposed of in terms of the divorce order. She alleges that the terms of the consent paper, incorporated into the divorce, were violated to her prejudice.

Two issues arise here.

(1) Firstly, the divorce order is only a judgment in rem as far as it regulates the status of the former spouses. When it deals with the distribution of the matrimonial estate, it becomes a judgment inter partes and is only binding as between the parties. It creates personal rights in favour of the divorcing parties and where it is violated, the injured former spouse can seek recourse against the other former spouse. The injured party cannot seek recourse against the world at large for an injury occasioned by a judgment that is personal.

(2) Secondly, the rights to property in the matrimonial estate that a divorcing party is afforded by the divorce order are founded on principles of equity as provided for in section 7 of the Matrimonial Causes Act [Chapter 5.13]. Such rights, even if granted by a court order, are not rights in rem.

Where a spouse has been awarded a share in the matrimonial estate by a court order, until that share is transferred to them, no rights of ownership are created in favour of that spouse by the mere issuance of the divorce order. At best, the court order serves as a declarator of the respective rights that the former spouses have in the property.

It has been the position in this jurisdiction that the rights that a wife has against her husband in terms of family law are personal against her husband and do not enter the realm of property law to clog the rights of an owner.

The chasm between family law considerations and property law considerations has been the subject of many debates in this jurisdiction. This court is getting hoarse from bemoaning the injustice that this chasm has wrought on wives and from imploring the legislature to redress the injustice by enacting appropriate legislation. The situation has not yet been addressed and many wives in the position of the defendant will have to wait a while longer for redress and justice. See Muswere v Makanza HH16-05 and P.M. Semwayo and Another v C Chitara and Another HH48-07.

In casu, and for my purposes, it is not therefore material for me to determine whether or not the property was sold strictly in terms of the divorce order. Even if the defendant is correct and I find that the property was not sold strictly in accordance with the provisions of the court order, that finding will not assist the defendant's case. She cannot raise a defence from the principles of the law of husband and wife to defeat a rei vindicatio at the instance of a third party.

On the basis of the foregoing, the plaintiff's claim must succeed….,.

In the result, I make the following order:

1. The defendant and all those occupying through her are to give vacant possession of the property called Stand Number 491 Mount Pleasant Township 13 of Lot 33 Mount Pleasant to the plaintiff within 30 days of this order failing which the Deputy Sheriff is hereby authorised to evict the defendant and all those occupying through her from the property and give vacant possession to the plaintiff.

On 3 April 1998 the parties had their marriage, which had already been blessed with three children, solemnized at Bulawayo. Prior to that, the parties had been living in an unregistered union dating back to 1989.

On 14 January 2000 the plaintiff issued summons against the defendant claiming divorce and other ancillary relief as outlined in her declaration. The grounds for divorce were given, inter alia, as alleged adultery on the part of the defendant. Allied to this were allegations of dishonest and irresponsible behaviour on the part of the defendant, whose cumulative effect was to render continuing of a normal marriage impossible.

The defendant countered the allegations against him by alleging irreconcilable differences with the plaintiff emphasizing it was the plaintiff's conduct which had brought about the sad end to the parties' marriage....,.

Through her declaration, the plaintiff expressed the desire to be awarded a 50% share of the value of the Parklands house and 25% share of the value of the Flat, namely, Stand number 585 Bulawayo Township (Share 102 thereof).

Whilst accepting the plaintiff's 50% share in the Parklands property, the defendant's position, as captured in his claim in reconvention, but not amplified by his evidence in court, was to the effect that the plaintiff be awarded her claimed 50% - but, after deducting the value of the bond registered on the property.

The evidence led and accepted by the court was that the bond in question was registered against the property without the plaintiff having been consulted and at a time divorce proceedings were in full swing. The directors of a company called Josro Enterprises (Private) Limited had, by their resolution of 23rd March 2000, initiated the registration of this deed of hypothecation against the matrimonial property.

To have a proper appreciation of the issues involved, one needs to understand the historical background of Josro Enterprises (Private) Limited.

The plaintiff gave a fairly detailed explanation about how this company came about. The plaintiff's unchallenged version was that when she started experiencing problems with the defendant she obtained a provisional order to freeze the operations of Ronoe Enterprises (Private) Limited and a liquidator was appointed in this regard. According to the plaintiff, financial indiscipline on the part of the defendant is what prompted her to initiate the liquidation of the company. The following questions and answers in cross-examination give a clear indication as to how Josro Enterprises (Pvt) Ltd was formed;

“Q. But you obtained a provisional order of this company?

A. Correct, but, after that defendant came and apologized to me. After that the Bank then gave us money after which we approached the customer who had been buying from us. After that defendant said he no longer wanted me to go to South Africa. Defendant took the money that we got from the Bank and deposited it into Josro account….,.

Q. What happened to the court order for provisional liquidation?

A. He approached me and apologized. He came thrice, and, on the fourth occasion, we agreed we would see our lawyers. We did that and he admitted before the lawyers that he was wrong and asked me to go back home…,.

Q. What happened to the provisional order?

A. When he apologized he said if I went back home we would continue working together in a transparent manner; that is why we agreed to have the provisional order put aside.

I was surprised, in 1999, that my name had been struck from the company and he had done this in 1998. This happened when we were still reconciling and behind my back he was forming another company….,. “

The record will show that the plaintiff continued to work with the defendant unaware that she had lost the co-directorship of the newly-formed company which was largely financed by the resources of the erstwhile family enterprise – Ronoe Enterprises (Private) Limited.

When challenged, under cross examination, the plaintiff referred the court to an Absa Bank Limited deposit slip which reflected that on 4 March 1999 she deposited a total amount of R165,000. The plaintiff's explanation was that this deposit was payment by Josro Enterprises (Private) Limited for goods supplied to it on credit and she made the deposit in Musina, South Africa….,. This document was produced to counter the defendant's denial that the plaintiff continued to work with him even in Josro Enterprises (Private) Limited.

Page 22 of the plaintiff's bundle of documents further demonstrates the deceitful conduct of the defendant. That document portrayed Joseph Musekiwa as co-director of this company.

Having assessed all the evidence led in this court, I was left in no doubt at all that Josro Enterprises (Pvt) Ltd was conveniently registered to ward off the plaintiff's interests in that company. Further, it became abundantly clear that this company was largely funded by the resources of Ronoe Enterprises (Private) Limited.

The bond registered against the Parklands house was unilaterally registered by the defendant at a time when the defendant knew the plaintiff had staked her claim against that property. Clearly, the motive by the defendant was to compromise, if not defeat, the plaintiff's claim....,.

The court is also of the firm view that the plaintiff's entitlement to 50% share of the Parklands house cannot be diluted by the registration of a bond which was done behind her back and she is therefore entitled to her claimed share in the house.

In respect of the immovable property, the plaintiff testified that upon the defendant's return they held a family meeting on 6 July 2006. At that meeting the defendant admitted that she had purchased some properties without the plaintiff's knowledge. These included the Belvedere West Stand and the Norton Stand.

The plaintiff stated that he was not even aware that the Belvedere West stand had been disposed of.

He also stated that the Unit 'L' property and the Norton stand were acquired through the defendant's brother in whose names they are registered. The defendant's brother is Munyaradzi Muguti. The plaintiff was adamant that the plaintiff's brother could not afford to purchase these properties as he was not employed. He further contended that the defendant's share in the Ridgeview property should be diminished proportionate to her interest in these two properties....,.

The defendant maintained that the Norton property belongs to her brother. She further explained that she happened to have the building plan for the property since the person who drew it was based in the United Kingdom.

The defendant said the Belvedere West stand was purchased in 2003. She could not develop it because of some legal dispute and she decided to sell it. She used the proceeds for her sustenance and the balance to start her flea market business....,.

It was not disputed that the defendant purchased all the immovable properties during the course of marriage without the plaintiff's knowledge.

In 2003, the defendant purchased Stand 7859 Belvedere West which she subsequently sold without the plaintiff's knowledge. She admitted, in evidence, that she used part of the proceeds to start her business.

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high. In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue. There was also evidence to the effect that the defendant was in possession of building plans for the Stand. The court was not furnished with proof of purchase of the Stand to show who purchased it.

To demonstrate the defendant's stealth, the plaintiff produced an Agreement of Sale in relation to Stand 22468 Unit 'L' Seke which was entered into by Munyaradzi Muguti on behalf of the defendant. Part of the agreement reads as follows:

“1. That the Stand No. 22468, Unit 'L', Seke, Chitungwiza shall be ceded to Munyaradzi Muguti as if he is the real owner (purchaser) thereof.

2. In the event that there is a dispute between Vivian and Munyaradzi resulting in Munyaradzi refusing to cede right, interests and title in this Stand to the real purchaser, namely, Vivian Mukomberanwa, Walter Makwili shall not be liable to Vivian Muguti in any way i.e. either to provide another property nor to refund the purchase price.”

Therefore, in making a distribution in terms of the Matrimonial Causes Act the court will take into account the defendant's interest in the Norton property as well as the admitted fact that she benefited from the disposal of the Belvedere property to the detriment of the plaintiff.

In support of the contention that the court should take into account property that has been disposed of, the plaintiff's counsel cited the case of Muganya v Sakupwanya 1996 (1) ZLR 217 (S).

In that case, the house that was the subject of division during divorce proceedings had been purchased by the husband. At the time of hearing, it was disclosed, by the husband, that he had sold the house. The wife successfully sought the joinder of the purchaser - who happened to be the husband's girlfriend. Apart from the fact that the sale was fraudulent McNALLY JA…, had this to say about the wife's rights:

“It seems to me that the relief sought by Mrs Sakupwanya against her former husband and Miss Muganga was soundly based in law. Her rights against Mr Sakupwanya flow from section 7 of the Matrimonial Causes Act [Chapter 5:13]. Her rights against Miss Muganga are based on the allegation that the latter knowingly collaborated in a scheme to deprive her of her rights under the Act. If the facts are proved, the case falls squarely within the terms of the exception set out in Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S), where I said at the foot of p186 leading on to 187:

'I do not believe that a wife can raise such a claim (ie to stop him selling the matrimonial home) just because the husband is disposing of an asset. There must be some evidence that he is disposing of the asset at under-value, to a scoundrel, the accomplice of the husband (Chhokar v Chhokar 1984 FLR 313) or that in some way he is attempting to defeat her just rights. In England, under their far more complex and comprehensive legislation, the test is; Am I satisfied that the disposition was made with the intention of defeating the wife's claim for financial relief?'

See also Ferris v Weaven [1952] 2 All ER 237 (QB).”

Indeed, it is a fact that summons having been issued on 7 February 2007 the plaintiff had to approach the court by way of urgent chamber application and on 7 May 2009 in HC1961/09 this court issued an order interdicting the defendant from “further alienation of matrimonial property…,.” The plaintiff claimed that she was forced to approach the court for the said relief as the defendant had unilaterally sold the matrimonial home and donated a Toyota pick-up truck, registration number AAM 1183 to the church without her consent. He had also traded their Isuzu twin cab registration number AAL 9911 without her consent. She had also discovered that Plot No.17 Lee Farm Nyazura, which, from a pre trial conference held earlier, she had understood would, by consent, be allocated to her, was now in the name of a third party; this had also been done without her consent.

She derived no benefit from these disposals which were all made unilaterally by the defendant.

Consideration has been given to awarding Stand CBD2473 to the plaintiff yet the likely result would be to disable the operations of the business which the defendant is running. The consequences would impact adversely on the minor children. Yet, it cannot also be disregarded that the plaintiff had to approach the court to obtain an interdict restraining the defendant from further disposing of matrimonial property pending the determination of this matter. This was apparently occasioned by the defendant's conduct in that he was allegedly disposing of matrimonial property after the institution of these proceedings. It is this conduct, then exhibited by the defendant, which tends to lend credence to the contention that the defendant has deliberately sought to minimize, to the lowest possible limit, the extent to which the plaintiff ought to benefit from the matrimonial assets.

Following the plaintiff's and the first defendant's divorce in the Magistrate's Court at Norton, they were both awarded equal shares in House Number 4334 CABS, Ngoni, Norton. The first defendant subsequently sold the house to the second defendant.

The plaintiff is seeking an order nullifying the Agreement of Sale that was concluded between the first and the second defendants, or, alternatively, that the agreement is valid only in respect of the first defendant's half share.

On the other hand, the second defendant, apart from contesting this action also filed a counter-claim in which she is seeking the plaintiff's eviction from the premises as well as the payment of holding over damages.

The plaintiff and the defendant had been married for twelve years. Upon their divorce, in 2006, the court ordered as follows-

“1. …,.

2. …,.

3. That distribution of property be shared as follows:

(i) Plaintiff to get 50% of the matrimonial home No 4334 Cabs Norton…,.

(ii) …,.

4. …,.”

The plaintiff testified that she only got to know that the house had been sold after she was served with a notice of eviction by the second defendant in March 2007. She denied ever making arrangements for her share of the proceeds of the sale to be deposited in her sister in-law's account. It was her testimony that the first defendant used to deposit money for her use into that account when he was working in Bulawayo. This evidence was meant to explain how the first defendant got details of the account.

The plaintiff also conceded that the house was registered in the first defendant's name.

The first defendant testified to the effect that following their divorce he consulted on the sale of the property. This culminated in the second defendant being secured as a buyer. He subsequently went with the second defendant to view the house and found the plaintiff present. The plaintiff is said to have expressed her displeasure and this was on 19 February 2007. The plaintiff refused to go to the agent's office as she said the house was not for sale. A selling price of Z$30,000,000= was agreed upon. After the money had been deposited into his account the first defendant withdrew the agent's commission. Thereafter, he showed the plaintiff the balance. The plaintiff made her calculations and came up with a figure of Z$13,887,500= as being her share. The first defendant advised the plaintiff that he could only transfer her share electronically. He even suggested that the plaintiff open an account with Beverley Building Society in Norton but she declined as she said the process was cumbersome. The plaintiff then called her sister in-law, in the first defendant's presence, and was given an account number. The first defendant asked the plaintiff to clarify with her sister in-law which names she was using. That is when the plaintiff was told to use the name Tudu. Since the bank's branch was not indicated another phone call was made and the branch was given as Angwa Street. On 26 February 2007, the first defendant drove to Harare and made the transfer from Beverley Building Society. Thereafter, he agreed with the plaintiff to vacate the house by 13 April 2007. The first defendant was later advised that the account into which he made the transfer was erroneous. He went to the bank to verify the details and noted the anomaly. A second transfer was then made on 7 March 2007. The new account number was furnished to him by the plaintiff. He also stated that he advised the plaintiff that he had deposited the money into her sister in-law's account.

Christina Mazuru testified on how she concluded the Agreement of Sale with the first defendant and how payment of the purchase price was done. She also explained that she visited the property in question in order to view it. She saw the plaintiff and they exchanged greetings. Thereafter, she proceeded to view the house. After making payment she gave the first defendant up to the end of March to vacate the property. According to her she did not consider the purchase price low because when she enquired from the bank teller how much had been deposited by her daughter, she was referred to the Bank Manager.

Counsel for defendants submitted that the rights between the plaintiff and the first defendant are personal rights which cannot bind third parties. In this respect, reference was made to the cases of Muzanenhamo and Another v Katanga and Others 1991 ZLR 182 (S) as well as National Planning Bank Ltd v Ainsworth (1965) 2 All ER 472, (1985) AC 485.

It was further submitted that it is not good enough for the plaintiff to claim that she has a right to the property as a former spouse of the first defendant or that the second defendant had knowledge that she had an interest in the property. There has to be proof that the property was sold in order to defeat the plaintiff's rights or that it was not sold for value to the second defendant. In this respect, reference was made to the cases of Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 and Maponga v Maponga 2004 (1) ZLR 63 (H).

There is a plethora of authorities regarding the rights of a wife to a house that constitutes matrimonial property. A great number of such authorities have criticized the law as it is heavily tipped in favour of the husband where the property is solely registered in his name. By far, the majority of such decisions are by MAKARAU JP..., and amongst them are Maponga v Maponga 2004 (1) ZLR 63 (H); Chivise v Dimbwi 2004 (1) ZLR 12 (H); Philemon Munomurwa Semwayo and Esther Semwayo v Charles Chatara and Rega Chatara HH48-07 and Muswere v Makanza HH16-05. Whilst upholding precedent, as enunciated in the Muzanenhamo and Another v Katanga and Others 1991 ZLR 182 (S) case MAKARAU JP had this to say in the Maponga v Maponga 2004 (1) ZLR 63 (H) case.., -

“It is hoped that a future court will venture to suggest that the bedrock upon which the principles that govern the rights of wives to matrimonial property is outdated and that the principles have long outlived their mediaeval purposes.

I am shackled to the mediaeval chains by precedent.”

In Muzanenhamo and Another v Katanga and Others 1991 ZLR 182 (S) the parties were estranged. Prior to the filing for divorce by the wife, the husband sold the matrimonial home that was registered in his name to the appellants. The appellants sought to enforce the agreement but that application was dismissed by the High Court. On appeal, the decision of the High Court was set aside. In upholding the appeal McNALLY JA had this to say…,-

“Perhaps one can begin by reminding oneself that ownership and possession are two different things. A landlord owns, a tenant possesses. Possession by the tenant does not prevent the landlord from selling. The purchaser may take ownership subject to the lease. Ownership and possession may reside in two different people simultaneously. I appreciate that the wife is not a tenant. But her position is closer to that of tenant than to that of owner.

It is important therefore to determine the nature of Mrs Katanga's right in the property.

She does not claim ownership. She claims two things. First, a right of occupation based on the spoliation order, and, alternatively, on her right as a wife to occupy the matrimonial home. Second, a right to claim transfer of the Stand to herself in the division of matrimonial assets on divorce, by virtue of the provision of s7 of the Matrimonial Causes Act, 33 of 1985. Her right of occupation based on the spoliation order is a personal right against Mr Katanga. He was the other party in those proceedings. The Muzanenhamos were not. So it seems to me there are three questions to be answered in connection with her occupation of the Stand:

1. Can the Muzanenhamos evict her in the face of the spoliation order?

2. Can the Muzanenhamos evict her in the fact of her claim to a right of occupation as a wife?

3. Can the Muzanenhamos evict her or claim transfer to themselves in the face of her claim, in the matrimonial proceedings, to transfer of the house into her name?

The first question was not dealt with in argument before us. Certainly it seems clear that the order of 16 December 1987 (the spoliation order) is not before us by way of appeal. We cannot interfere with it. Particularly, we cannot, as requested, delete the word "permanently" from the order then made, however anomalous that word may be. On the other hand, there is no doubt that the spoliation order regulates rights as between Mr and Mrs Katanga. It is not an order binding as against the Muzanenhamos, who were not parties to that action. It gives Mrs Katanga no more than a personal right as against her husband. It may be argued that the Muzanenhamos were aware of the dispute between the Katangas and knew that she would resist the sale of the house to them and any attempt to evict her. I accept that this is true, but I do not see any basis for saying that in consequence the spoliation order is binding on them. LORD UPJOHN made this point very firmly in National Provincial Bank Ltd v Ainsworth [1965] 2 All ER 472; [1965] AC 1175 (HL) at 485G when he said:

"The right of the wife to remain in occupation even as against her deserting husband is incapable of precise definition; it depends so much on all the circumstances of the case, on the exercise of purely discretionary remedies, and the right to remain may change overnight by the act or behaviour of either spouse. So, as a matter of broad principle, I am of the opinion that the rights of husband and wife must be regarded as purely personal inter se and that these rights as a matter of law do not affect third parties."

He made it clear that this applied whether or not the third party was aware of the dispute.

I conclude, therefore, that if the other problems can be overcome, the mere existence of the spoliation order is no bar to an order of eviction in favour of the Muzanenhamos. No justice will, on the face of it, be done to her by allowing the transfer to go through. And since her attempt to stop the transfer is based on equity alone, a finding that equity is satisfied if the transfer to the Muzanenhamos takes place is fatal to her cause.

It might have been different if he had been attempting to defeat her claim for relief in the matrimonial proceedings. But I do not believe that a wife can raise such a claim just because the husband is disposing of an asset. There must be some evidence that he is disposing of the asset "at undervalue to a scoundrel, the accomplice of the husband" (Chhokar v Chhokar 1984 FLR 313), or that in some way he is attempting to defeat her just rights. In England, under their far more complex and comprehensive legislation, the test is "Am I satisfied that the disposition was made with the intention of defeating the wife's claim for financial relief?" If the answer is "no", as it must be here, the court will not stop the disposition. See generally Rayden & Jackson on Divorce Vol I, 15 ed pp 886-7 and the Noter-up to page 887.

I conclude, therefore, that Mrs Katanga has not shown any equitable consideration which would or should cause the court to intervene on her behalf to stop the prima facie lawful wish of Mr Katanga to sell his property to the Muzanenhamos.

Once it is accepted that there is no equitable basis for denying the husband's prima facie right to transfer the property registered in his own name, the other questions resolve themselves relatively simply.

There can be no proper basis for the Registrar of Deeds to regard the ruling of 16 December 1987 as a ruling to ownership. It is a ruling only in relation to possession or occupation and a ruling only as between Mrs Katanga and Mr Katanga. The interdict does not prohibit transfer either expressly or by necessary implication. The Registrar has, as I have said, made a report in which he simply notes that on the issuing of the rule nisi which led to the order of 16 December 1987 "an examiners caveat was noted pending determination of the case." He makes no further submissions and concludes "I have no objection to the application (by the Muzanenhamos) and I would abide by the findings of this Honourable Court."

I turn, secondly, to consider whether she may have a right of occupation arising from her status as a wife.

This is always a difficult problem for the courts to solve. See for example Jackson v Jackson [1971] 3 All ER 774 (CA); Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 (A) and Owen v Owen 1968 (1) SA 480 (E).

It is essentially a matter of equity.

The courts will intervene where, for instance, the husband sells the house as part of a policy of harassment arising out of divorce proceedings. Here that is not the case. He had been transferred to Mutare and had acquired a property there. He sought to sell the Harare property long before the divorce proceedings began. As the then Chief Justice said in the Cattle Breeders case, supra, at 267E:   

"A long line of cases seem to have laid down the proposition that even if the husband may be the defaulting party, he may eject the wife from the matrimonial home, provided he offers her suitable alternative accommodation or offers her the means of acquiring such suitable accommodation."  

Here, the husband has offered her half the net proceeds of the house if the sale and transfer is allowed to go through and if she vacates the property. I do not see this as a case where equitable considerations demand that she be allowed to stay on in occupation of the stand.  

The final question for us to decide is whether she can prevent transfer of the property into the name of the Muzanenhamos?

It seems to me that her claim to stop transfer because of the possibility that she might succeed in obtaining transfer herself as a result of the divorce proceedings, is a shadowy claim indeed. The power of the court under s7 of the Matrimonial Causes Act is a discretionary and equitable power. Stand 964 is not "the matrimonial home". That home was established in Mutare after the husband was transferred there and she joined him. She claims he drove her out, but nonetheless, the Mutare property had become the matrimonial home. Stand 964 is no more than a property of Mr Katanga in the proceeds of which she has a potential interest. But it is, as Mr Wernberg puts it, an interest in the nature of a mere spes, a hope. And as I have noted Mr Katanga has undertaken to let her have half the net proceeds on sale (provided she yields vacant possession). That seems to me to satisfy the criterion of equity.

Although the Magistrate's Court awarded the plaintiff a half share in the matrimonial home, this did not translate into plaintiff's co-ownership of the property. The rights to the property remained with the first defendant. In other words, the plaintiff and the first defendant did not proceed to have the plaintiff's interests registered against the property. The first defendant could dispose of the property without the plaintiff's consent.”

In the present case, there was no evidence that the property was not sold for value. The first defendant's evidence that the plaintiff worked out her share after deduction of the agent's commission was not challenged. Therefore, the plaintiff was satisfied with the selling price.

The plaintiff's consent to the disposal of the property was not required. This is because she did not hold any rights to the property. The court order awarding her a half share of the property does not amount to a conferment of title to the property. The plaintiff and the second defendant should have arranged for cession or transfer of the half share to the plaintiff.

In the result, it is ordered as follows -

The applicant was married to the first respondent until their marriage was dissolved by this court on 20 October 2005. The court ordered, inter alia, that the matrimonial house, which is Stand Number 632 Nketa, be evaluated by a reputable estate agent and the net proceeds be shared as follows:

(a) Applicant 40%; and

(b) First respondent 60%.

Two years later the applicant filed an application, under case number 614/07, and was granted a judgment by default entitling her legal practitioners to be the only ones vested with the authority and powers to sell the house.

In an effort to ensure that the first respondent became aware of the judgment the applicant's legal practitioners addressed the following letter to him –

“21 May 2007

Mr Patrick A. Ndlovu

632 Nketa 6

Bulawayo

Dear Sir

Re: Mabel T. Ndlovu vs Yourself & Another HC 614/07

The above matter refers.

We advise that we have since obtained an order to have the property sold through us, Messrs Cheda & Partners. The order was obtained on 17 May 2007 and copy of same is attached hereto for your attention.

Further, we are proceeding to instruct evaluators (Knight Frank) to evaluate the house as per the court order. If you have any buyers, please refer them to us.

Let us hear from you

Yours faithfully

Cheda & Partners”

The above letter, with the court order attached to it, was delivered at House Number 632 Nketa 6…,. on the day it was written. The applicant alleged that the first respondent received the letter and the court order. He even suggested that he was in a position to send to the applicant's legal practitioners buyers offering more money. He, however, never did so.

Instead, on 4 September 2007, he entered into a Memorandum of Agreement of Sale of the said house for two billion dollars with Lindelwe Lauratta Mlotshwa. The purchase price was paid upon signing. The applicant contended that the purchase price was unreasonably low and was even contrary to what the first respondent had told her when he visited her at her flea market stand when the two discussed the court order. He had allegedly informed her that he had buyers offering three billion dollars as at that time.  Further, and even worse, was the fact that the first respondent had acted contrary to the court order.

On the other hand, the first respondent has vehemently denied ever being aware of the court order at the time he sold the house. His assertion is that he no longer lived at House Number 632 Nketa 6 and the applicant was aware of that. She allegedly knew that he lived at Stand Number 4 Decide Village, Lonely Mine, Inyathi. She, on numerous occasions, allegedly sent their children there to collect school fees and money for groceries. He complained that she was actuated by malice when she had the court order delivered at House Number 632 Nketa 6 in order to deprive him of the opportunity to be heard. He flatly denied ever being made aware of the court order let alone discussing it with the applicant. He maintained that when he sold the house to an innocent third party he had no knowledge whatsoever of the court order.

The applicant's response to the first respondent's averments was that there was no truth in the suggestion that any children had been sent to his Inyathi home to collect fees and money for groceries.  She went on to allege that he, in fact, did not support his children at all. The correct position, according to her, was that he frequented her flea market stall to collect money not the other way round….,.

The first respondent had no right and power to sell the house. His purported sale to the second respondent was just an act in futility as he could not exercise rights which he did not have.

As regards the transfer of the property into the second respondent's names it is clear from a letter from her legal practitioners, dated 2 November 2007, filed of record, that she was no longer an innocent transferee at the time of transfer if it was effected. She was, at that time, quite aware of the dispute between the applicant and the first respondent. Had the sale been valid she would have had only herself to blame….,. I am satisfied that the first respondent was aware of the court order at the time he sold the house on 4 September 2008. He did so in a flagrant disregard of the court order.

Having made that finding it therefore follows that the sale of the house, in defiance of the court order, was a nullity.

In the result, I would issue the following order. It is ordered that:-

1. The Agreement of Sale of Stand Number 632 Nketa Township of Lot 400 A Umganin, Bulawayo entered into by and between Patrick Abednico Ndlovu and Lindelwe Laurrate Mlotshwa on 4 September 2007 be and is hereby declared invalid.

2. If the 2nd respondent has taken occupation, it is hereby ordered that she and all those occupying through her vacate Stand Number 632 Nketa, Bulawayo within 15 days of this order.

The plaintiff has lived in the United Kingdom for the past 11 years where he works as a Research Development Officer. He flew into the country on 6 December 2002. He instructed Trevor Dollar Estate agents of Gweru to buy a property in the low density suburbs of Gweru for him. He paid into their Trust Account ZW$15 million for that purpose. He left the country for the United Kingdom on 3 January 2003 before a suitable property had been found.

He mandated his late father, Saul Zingwe, to act on his behalf during his absence.

He was not personally present during the preliminary stages before the purchase of the immovable property. He did not physically participate in the purchase and transfer of the property to his name. He, however, received periodic progress reports over the telephone from his father. He was, however, unable to describe the house he purchased. When his father failed to receive vacant possession, he issued summons out of the Gweru Magistrate's court, on his behalf, on 5 November 2004 for the eviction of Mrs Gwanzura. When default judgment for the cancellation of his title was entered against him on 24 October 2005, his father filed the founding affidavit for rescission on 23 February 2007. He denied possessing prior knowledge of Mrs Gwanzura's rights personally or through his agents.

The plaintiff's father died after the closure of pleadings but before trial.

He called the evidence of his elder brother, Tawona Zingwe, to testify on the events that took place on the day he accompanied his father to inspect the immovable property. Tawona Zingwe stated that they met Mr Gwanzura for the first time at Trevor Dollar Estate Agents on that day. He could not recall when they went for the visit but estimated it to have been between 14 and 15 January 2003. Mr Gwanzura accompanied them to the property. At the gate, he observed that the house had a swimming pool and a cottage. They were met at the entrance to the house by Mrs Gwanzura who took them into the lounge. He inspected the house whilst seated in the lounge and noted that it had a big kitchen and three bedrooms. He was impressed by the state of the lounge and excited at the prospect of finding a house after a long search that he dispensed with the inspection of the three bedrooms. He stated that his father did not inspect the house. They went away in the euphoria of finding a suitable house after a long search. He was not present when the Agreement of Sale was concluded. After taking transfer, Mrs Gwanzura refused to vacate. It was at that stage that Chakanetsa and Partners, legal practitioners for Mr Gwanzura during the divorce proceedings and sale and transfer of the property, showed him and his father the Divorce Order.

During cross examination, he disputed that Mrs Gwanzura informed them that the house could not be sold because it was encumbered by a Divorce Order issued by the High Court and refused them entrance into and inspection of the house. Although he disputed it, the impression that I gathered from his responses under cross examination was that a tense atmosphere prevailed at the immovable property on the day of inspection. He stated that no introductions were done by Mr Gwanzura; that whilst they sat down on the sofas Mrs Gwanzura remained standing and that no inspections were done. He confessed that he neither saw nor inspected the kitchen but relied on the description he received from Trevor Dollar Estate Agents. He revealed that he was unaware that the first room of entry into the house from the verandah where he averred they were received by Mrs Gwanzura was the dining room. He was also oblivious that they sat in a sunken lounge….,.

Mrs Gwanzura stated that her former husband came to the house for the first time after his 1997 desertion on the day of inspection. It was on the morning of 5 January 2003. He was in the company of an old man and a young man who he did not identify and who refused to identify themselves but who she later knew as Saul Zingwe and Tawona Zingwe, respectively. She met them in the verandah. They wanted to inspect the property on the instructions of Trevor Dollar Estate Agents. She alleged that she warned the old man not to be deceived by Mr Gwanzura who, under the terms of a High Court Divorce Order, could not dispose of the property before he had bought her out. Mr Gwanzura shouted at her. He went away arguing with the two strangers. She immediately contacted her legal practitioners who, in turn, dispatched letters to both Trevor Dollar Estate agents and Mr Gwanzura's legal practitioners, Chakanetsa and Partners, on 6 January 2003. The letters pointed out that the sale of the immovable property, and especially through Trevor Dollar Estate Agents, was unlawful and premature as three months had not yet elapsed from the date of evaluation. The letters were not responded to. Later, her legal practitioners informed her of the payment of ZW$4.2 million from Chakanetsa and Partners of 20 January. The news prompted her to deposit an equivalent amount with her legal practitioners on 22 January 2003, who, on 28 January, dispatched a bank certified trust cheque in the same amount with a covering letter to Mr Gwanzura's legal practitioners. The letter and cheque were received at Chakanetsa and Partners on 30 January 2003. She did not know what became of the bank cheque after it was received by Mr Gwanzura's legal practitioners. The money was paid over in expectation that the cheque deposited by Mr Gwanzura's legal practitioners on 20 January would be dishonored. As it turned out, that cheque was honoured by the drawee bank on 22 January.

She produced exhibit 4. It consists of the declarations by the purchaser, the plaintiff and seller, Mr Gwanzura and the power of attorney to make transfer by Mr Gwanzura. They were all deposed to on 20 January 2003. The declarations were signed in Kwekwe while the power of attorney to pass transfer was deposed to in Bulawayo. All the three documents stated the purchase price of the immovable property as ZW$5 million. The declarations provided the date of sale and purchase as 20 January 2003….,. She filed an urgent chamber application on 25 February against the second defendant, his lawyers and the Registrar of Deeds, which was served on 27 March 2003, to stop transfer of the property, in ignorance that transfer had already passed on 19 February 2003. She maintained that the transfer be cancelled for breach of a court order averring that her legal practitioners accepted payment from Mr Gwanzura in good faith without knowledge of the breach….,.

Mr Gwanzura stated that he made payment for his former wife's half share to his legal practitioners on 2 January 2003 who advised him that he could thereafter sell the immovable property. He instructed them to sell the property and they, in turn, instructed Trevor Dollar Estate Agents to do so. On 14 January, his legal practitioners contacted him. Acting on the information they relayed, he went to Trevor Dollar Estate Agents on 15 January where he met his legal practitioner, the late Mr Mutandi, Saul Zingwe and his wife and son Tawona. He went with the two prospective buyers to the house. His former wife led them into the lounge where they sat down. The prospective purchasers did not inspect the house but left soon thereafter expressing satisfaction with what they had seen. His legal practitioners wrote out the cheque to Dzimba, Jaravaza and Associates on 8 January but for reasons unknown to him they only delivered the cheque on 20 January. While he failed to produce proof that he indeed paid in the money on 2 January, the image of the cheque produced at the back of the bank statement dated 25 January 2003 of his former legal practitioners is dated 8 January. It was common cause that it was receipted at Dzimba, Jaravaza and Associates who banked it and invested the proceeds. He further stated that he signed the Agreement of Sale on 20 January at Trevor Dollar's offices in Gweru.  On 25 January, he then signed the declaration of the seller and power of attorney to pass transfer. He asked his wife to vacate the property but she refused.

He was cross examined by the plaintiff's counsel.

He stated that when he informed his former wife why they were at the house she was visibly angered by his explanation. He stated that he did not inform the Zingwe family about the court order but left the task to his legal practitioners and the estate agents. On the sequence of signing the Agreement and payment of the money to Mrs Gwanzura's legal practitioners he repeated twice that he signed first before he proceeded to deposit the cheque at their offices.

Under questioning by Mrs Gwanzura's legal practitioner he confirmed that he deposited the money with his own legal practitioners using a cheque from one of his companies P and Elton Investments on either 2 or 3 January 2003. He was issued with a Trust Account receipt. He admitted that by 25 March 2003, when he was served with the urgent chamber application, he knew the basis upon which his wife challenged the sale. Notwithstanding this admission, he failed to produce proof that he indeed paid the amount to his legal practitioners. He would have done so by producing the Trust Account receipt he received or the honoured cheque that he paid or P and Elton Investments bank statements for the relevant period. He also made out that he signed the Agreement before he deposited the ZW$4,2 million with Dzimba, Jaravaza and Partners. He must have realized the implication of his answer for he quickly changed and alleged that he actually paid first before he signed the Agreement of Sale. He conceded, under searching cross examination, that the Zingwe family members left the house prematurely before inspection because his former wife refused them permission to do so….,.

It is on the basis of these facts that I proceed to determine the three issues referred to trial.

Whether or not the plaintiff was aware that the property was the subject of a matrimonial dispute

A comparison of the testimony of Mrs Gwanzura and that of Tawona Zingwe and Mr Gwanzura demonstrated that the plaintiff's representatives were aware of the existence of the Divorce Order when the Agreement of Sale was concluded. The plaintiff's father and brother were advised by Mrs Gwanzura not to be duped by Mr Gwanzura as the sale of the house was encumbered by a Divorce Order of the High Court. In addition, counsel for the plaintiff conceded that Trevor Dollar were the agents of the plaintiff in the transaction. On 6 January 2003, Trevor Dollar was advised of the existence and effect of the Divorce Order. They, nonetheless, proceeded headlong to purchase the property for the plaintiff.

I am satisfied that the plaintiff, through his representatives and agents, was aware that the property was subject of a matrimonial dispute between Mr and Mrs Gwanzura.

Whether or not the agreement between the plaintiff and second defendant was done fraudulently to defeat the court order under case 2877/98

The date on which the Agreement of Sale was executed was in dispute. The confusion was caused by the defendant's late father who, in an affidavit filed on 23 February 2007 in the action that was brought in the Gweru Magistrates' Court and later withdrawn, averred twice that the Agreement of Sale was concluded on “2^nd January 2003”. The affidavit was contrary to the Agreement produced in court and the declaration by seller signed by Mr Gwanzura and the declaration by purchaser signed by him that provided the date of 20 January 2003. 2 January coincidentally coincides with the date on which Mr Gwanzura alleged he deposited the purchase price with his legal practitioners. The double repetition of the date as “2^nd January 2003” in one affidavit is inconsistent with a typographical mistake and points to a positive statement of fact. I accept that the 2 January was not the date on which the contract of sale was concluded. It is contrary to the Agreement itself and the other documents that I have already referred to. It is also contrary to the plaintiff's evidence that he was still in the country on that date and would have executed the Agreement in person. It is contrary to the evidence of Mr Gwanzura, the other party to the Agreement.

I find the conclusion inescapable that it was a deliberate falsehood designed to support Mr Gwanzura's averment that he deposited ZW$4,2 million with his own legal practitioners on that day. Such a conclusion paints the plaintiff's representative in poor light as a person who was prepared to connive with Mr Gwanzura to mislead Mrs Gwanzura.

Counsel for the plaintiff submitted that the Agreement of Sale was not concluded in fraud of the Divorce Order. Counsel for Mrs Gwanzura made a contrary submission.

In Pretorius NO v Smith & Ors 1971 (1) SA 459 (T)…, COLMAN J stated that:

“It is clear that the word “fraud”, when used in relation to the type of disposition which can be attacked in a case of this kind, does not bear the same meaning as it bears in criminal law, or in the context of a contract induced by fraud. There need be no false representation or deceit by the husband in order to lay the disposition open to attack. It is equally clear, however, that not every disposition that has prejudiced the interests of the wife will be set aside at her instance, or that of her estate or heirs. Every donation made out of the assets of a joint estate diminishes the estate, and so prejudices the wife. And the same applies to a transaction, other than a donation, which results in loss to the joint estate. But such dealings, simpliciter, are not open to attack.”

And at 462C:

“I am of the opinion that the plaintiff in an action of this kind must prove dolus, in the sense of an intention to prejudice the wife's interests. I base that conclusion on VOET's use of the term “fraud”, and upon Davis v Brisley's Minors 18 SC 407, where the ACTING CHIEF JUSTICE, relying, apparently, on VAN DEN LINDEN, equated the concept “fraud of the wife” to “willful intention to prejudice the wife.” A bona fide transaction, it seems to me, is not open to attack, however unwise it may be.”

I understand COLMAN J to be saying that fraud of the wife's rights cannot simply be implied from the mere fact that prejudice has been occasioned to the wife but must be proved by showing that her husband carried out the transaction clandestinely or in deliberate disregard of the wife's rights.

Several cases have dealt with the same issue in this jurisdiction. These are Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S)…,.; Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S)…,.; Muganga v Sakupwanya 1996 (1) ZLR 217 (S)…,.; Tewe v Hanoki & Ors SC55-03…,.

In the Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 (S) case and Muganga v Sakupwanya 1996 (1) ZLR 217 (S) case…, McNALLY JA equated the fraudulent intent with intent to defeat the wife's just claim. In Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S)…, the Supreme Court stated that:

“The doctrine of notice, as it is called, requires nothing more than notice or knowledge of the prior claim. It is not necessary to prove mala fides or fraud.”

In Tewe v Hanoki & Ors SC55-03…, the purchasers were unaware of the dispute between the wife, Tewe, and her husband, Hanoki, at the time of purchase or transfer. ZIYAMBI JA stated…, that:

“Since the rights of husband and wife are personal and do not, as a matter of law, affect third parties, for the appellant (wife) to succeed against the second and third respondents (purchasers) she had to show not only that they were aware of her rights in the property but that they were attempting to defeat her rights.”

I have already found that the plaintiff was aware of Mrs Gwanzura's rights in the property. Those rights were that she was firstly entitled to a one half share in the value of the property, and, secondly, that she had three months within which to buy out her husband's half share and take title. The first leg of the formulation by ZIYAMBI JA is answered in Mrs Gwanzura's favour, that is, that the plaintiff was aware of her rights in the property.

The issue that falls for determination is whether the plaintiff intended to defeat her rights.

Counsel for the plaintiff contended that Mr Gwanzura first paid out his former wife before he concluded the Agreement of Sale with the plaintiff. He relied on the evidence of Mr Gwanzura to that effect. Mr Gwanzura's testimony does not support the contention. Firstly, by 5 January 2003 he was disposing of the property before he had bought out his former wife's share. I found from his evasiveness on the point that even on 20 January 2003 when he concluded the Agreement, he signed it before making payment of the half share due to Mrs Gwanzura. He failed to prove that he deposited the money on 2 January. The reason why the cheque dated 8 January was paid on 20 January was demonstrated clearly by his legal practitioners Trust Account bank statement issued on 25 January 2003. The opening balance on 22 January was ZW$20,000=. Two deposits, one cash and another by cheque boosted the balance to ZW$48,399= before a large transfer of ZW$7,224,166=40 pushed the credit balance to ZW$7,272,565=40. The plausible explanation of the source of those funds appears to be the nett amount due to Mr Gwanzura from the deposit of ZW$7,5 million made by the plaintiff at the conclusion of the Sale Agreement.

It was not within the contemplation of the Order that he would sell the property to raise the money to buy out his former wife's share.

I am satisfied that Mr Gwanzura intended to defeat Mrs Gwanzura's rights. He acted clandestinely and with deliberate intention to defeat his former wife's rights. Mr Gwanzura, thus, acted fraudulently.

I am also satisfied that the plaintiff's actions also fall into the same category as those of Mr Gwanzura. He purchased a property with the defects noted by CC Sales (Pvt) Ltd without inspecting the property. His representatives falsely stated that they inspected the house. They inserted an unusual clause that they would pay the balance after inspection or transfer. They could not insist on their right to inspect before concluding the Agreement because they knew that they were trampling upon Mrs Gwanzura's rights - which she had advised them of on 5 January 2003. That the plaintiff's agents were acting mala fide was further reinforced by the connivance they embarked upon with Mr Gwanzura to cheat the fiscus by under- declaring the purchase price. The plaintiff benefited by paying lower stamp duty and Mr Gwanzura by paying less capital gains tax.

The brief facts which have given rise to this matter may be summarized from the applicants founding affidavit as follows.

The applicant in this matter is the plaintiff in case number HC4981/07 wherein she is seeking an order for divorce and ancillary relief. The respondent is the defendant in that matter. During the course of her marriage to the respondent they acquired various movable and immovable properties. She alleges that some of the property was sold by the defendant for his exclusive benefit prior to the institution of the divorce proceedings. Following advice, she did not include the property which had been sold by her husband as marital assets which should be considered when making an award at divorce in her declaration. The applicant, however, still feeling aggrieved by the matter, sought to amend her pleadings at pre-trial conference stage before MUSAKWA J. 

When the respondent opposed her Notice to Amend she decided to institute these proceedings.

In terms of the Notice, which was filed with this court on 29 March 2010, the applicant seeks to amend paragraph 8 of the declaration by adding four items which include a motor vehicle, sewing machine, building materials and sewing materials. It also seeks to add a new paragraph 10 and 11 which give a monetary value on the items and seek a half share of the value. The Notice also seeks to claim a half share of the rent the defendant charged and received for an immovable property which they jointly own between June 2005 and June 2009. The Notice also seeks to add the same claim to her plea to the defendant's counter-claim.

The respondent opposed the application and filed an opposing affidavit. It was his argument that the property claimed had been sold during the subsistence of the marriage for the mutual benefit of the family. He further stated, in his affidavit, that some of the property was not matrimonial property as same was stolen during the subsistence of the marriage. He then goes on to explain what happened to the proceeds in respect of each item claimed by the applicant in the Notice to Amend.