UCHENA
J: The applicant was the plaintiff in an
action she instituted for divorce and the distribution of matrimonial assets
between her and the respondent who was then the defendant. Her prayer for
divorce was granted. The distribution of their asset of value, house number 10
Save Road, Mabvuku was determined by GUVAVA J as follows:
"2. The
plaintiff is awarded a 50% share in the immovable property being number 10 Save
Road, Mabvuku.
3. The
property shall be valued by an independent evaluator appointed by the Registrar
of the High Court from his list of valuers and the cost of valuation shall be
shared equally by the parties.
(a) The
valuation shall be carried out within two months of the date of this order.
(b) The
defendant shall have the first option to buy out the plaintiff of her 50% share
in the property within a month of the date of the valuation;
( c) In the
event that the defendant fails to buy out the plaintiff of her 50% share in
terms of this order the plaintiff shall have the right to buy out the defendant
of his 50% share within a month from the date that the defendant's right
expires; and
(d)
Should both parties fail to buy out the other in
accordance with the terms of this order the property shall be sold at best
advantage and the net proceeds shall be shared equally between the parties."
The judge's order is dated 16 October 2007. This
means the valuation should have taken place within two months of that date and
the buy out by the respondent within one month of the date of valuation and
that by the applicant within one month of the respondent's failure to buy her
out.
The
applicant and respondent therefore failed to cause the valuation of their
property in terms of para 3 (a) of Guvava J's order. The respondent also failed
to comply with para 3 (b) of the order. The applicant, having failed, to
comply, with para 3 (a) of the order belatedly, attempted to comply with para 3
(c) of the order about two years later in April 2009. The respondent with the
assistance of a letter dated 22 March 2011 from an officer in the Registrar's
office also belatedly attempted to overturn the applicant's attempts and
himself attempted to comply with para 3 (b) of the order by paying the
applicant's 50% share of the proceeds of the house into court on 26 April 2011.
They are now fighting over whose, buying out of the other, should prevail. The
applicant seeks an order ratifying her buying out of the respondent's 50% share
of the house. The respondent opposes the applicant's application.
When
the applicant belatedly attempted to buy, out the respondent and had paid his
half share into court, she went on to effect certain improvements on the
property. She now claims to have a better right and seeks the confirmation of
her buying out the respondent. The respondent disputes that right and insists
he is entitled to buy out the applicant and has also paid the applicant's half
share into court. The respondent claims in his opposing affidavit to be
entitled to the property in view of the letter written to him by Mr Antonio an
officer in the Registrar's office on 22 March 2011. The letter reads as
follows:
"In terms of
High Court Judgment in HC 4502/06, paragraph 3 of the operational part entitles
the Registrar to appoint a valuator.
A valuator was
appointed and a copy of which is filed of record. In terms of paragraph 3
subsection (b), you are given the first option to buy out the plaintiff's 50%
share within a month of receipt of this letter and the valuation report"
The
officer in the Registrar's office, clearly wrongly interpreted the court's
order by giving the impression that the time limits imposed therein where of no
consequence. He unlawfully extended the time within which the respondent was to
act, to a month within his receipt of the officer's letter, disregarding the
time limits imposed by the judge who granted the order. He has no authority to
disregard the court's order, nor to extend the times within which the parties
had to act. His only duty was to facilitate the implementation of the order as
ordered by the trial court. He cannot amend the order or vary it. His actions
were clearly outside the ambit of his authority and cannot validate the
respondent's claim to being the one who bought out the other in terms of the
court order. He usurped the functions of a judge, which even a judge can only
exercise on application by one of the parties.
Miss
Maramba for the applicant does not
dispute that both parties failed, to comply with GUVAVA J's order, but states
that they did not have money to cause the valuation of the property within the
stipulated period.
Mr
Mawere for the respondent also agreed
that both parties did not comply with the court's order. He further submitted
that since both parties did not comply with the valuation clause they cannot
implement the order granted without first seeking its variation or amendment.
Miss Maramba for the applicant agreed and suggested that the only way
forward was for a fresh application for variation or amendment of the order to
be made. I agree with her submission and would have expected her to withdraw
the applicant's application to pave way for the fresh application, but she said
she could not do so as she did not have her client's instructions to do so. She
left it to the court to make a decision on that issue. This is a case where the
applicant should have withdrawn her claim especially in view of her claim that
she made improvements to the property after she believed she had bought out the
respondent, as those improvements have not been valued.
Court
orders are made for the purpose of regulating the parties' determined rights.
They must be complied with. When parties find themselves in circumstances where
they are not able to comply with a court order in its present form their only
remedy is in applying to the court for its variation or amendment. They cannot
on their own seek to implement the order on terms other than those ordered by
the court. Officers in the Registrar's office have no right to interfere with
court orders and should not assist parties to implement court orders on terms
other than those spelt out in the court order. Their duty is to implement court
orders and not to alter them.
In the
circumstances the applicant's application is dismissed with costs.
Thondhlanga & Associates, applicant's legal practitioners
Madanhi, Mugadza
& Co Attorneys, 1st respondent's legal
practitioners.
