Gift Saruchera v Chipo Saruchera

1
                                                                                        HH 372-17
                                                                                       HC 8941/15
                                                                                  Ref Case 4502/06
                                                                                  Ref case 3583/11




GIFT SARUCHERA
versus
CHIPO SARUCHERA



HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 14 June 2017


Opposed application


B Ndhlovu, for the applicant
R. Kwenda, for the respondent


       TSANGA J: This was an application for variation of a divorce order granted in 2007.
The applicant sought variation of the clause in the order which read as follows:

       “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 evaluation.”

   The applicant averred that he did not do so as a result of the failure by the parties to cause
an evaluation to be done within two months of the granting of the order. He equally averred
that on 26 April 2011, he had attempted to buy out his former wife’s share by depositing
US$5000 as the value of his wife’s share which was accepted by the registrar of the High
Court. The applicant argued that by accepting the amount the Registrar had disregarded the
time limits imposed in the consent paper. He also averred that the respondent has been in
occupation of the house since 2007 while the applicant has been renting. The amount
deposited was however never collected by the applicant. The order that the applicant sought
before this court was worded as follows:

Clause 3 (b) of the judgment in case number 4502/06 be and is hereby varied to:

   1. “The defendant shall have the first option to buy out the plaintiff of her 50% share on
      before the 23rd of October 2015”
                                                                                             2
                                                                                    HH 372-17
                                                                                   HC 8941/15
                                                                              Ref Case 4502/06
                                                                              Ref case 3583/11



    2. There shall be no order as to costs.
    Materially what the applicant sought was a retrospective variation to 2015 while the
application was however, before me in 2017.

The application was opposed by the respondent on the grounds that the order granted by the
court did not need to be varied since the present situation was well anticipated and adequately
catered for when the divorce order was granted under case 4502/06. This was said to be in the
sense that the order was couched in such a way that if the parties failed to exercise their rights
within the stated time limits, then the property would be sold to best advantage and the net
proceeds shared equally between the parties.
        The relevant part of that court order read as follows:
        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 evaluation shall be shared equally by
the parties.

        a) The evaluation 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% in the
           property within a month of the date of evaluation.
        c) In the event that the defendant fails to buy out the plaintiff her 50% share in terms
           of this order the plaintiff shall have the right to buy out the defendant 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 equal between the parties.
        These provisions were set out in the final decree of divorce.
        The applicant argued that the failure to obey the court order was not wilful but was a
result of the parties failing to have the evaluation done within two months as stipulated. He
further argued that he had eventually complied with the court order when he deposited the
US$5000.00 with the Registrar even though his action was out of time. He argued that these
facts should be the basis for varying the order in terms of r 449 and that the case fell within
the restricted boundaries that permit a court to vary its order. In essence, his argument was
that it was within this court’s power to vary the order granted and that it could also do this
mero motu.
                                                                                                  3
                                                                                         HH 372-17
                                                                                        HC 8941/15
                                                                                   Ref Case 4502/06
                                                                                   Ref case 3583/11



       The respondent on the other hand, averred that in terms of the divorce order granted,
the property needed to be properly evaluated as of to date and that the property should be sold
to best value and the proceeds shared equally between the parties. The respondent estimated
the value of the property as being approximately in the region of US$30 000.00 whereas the
applicant had tendered a mere $5000.00.
       I dismissed the application for the reasons I explain herein.
       Rule 449 on which the application is based states as follows:

       “Correction, variation and rescission of judgments and orders
       (1) The court or a judge may, in addition to any other power it or he may have, mero motu or
       upon the application of any party affected, correct, rescind, or vary any judgment or order—
       (a) that was erroneously sought or erroneously granted in the absence of any party affected
       thereby; or
       (b) in which there is an ambiguity or a patent error or omission, but only to the extent of such
       ambiguity, error or omission; or
       (c) that was granted as the result of a mistake common to the parties.
       (2) The court or a judge shall not make any order correcting, rescinding or varying a judgment
       or order unless satisfied that all parties whose interests may be affected have had notice of the
       order proposed.”

       The issue and meaning of the court acting mero motu in setting aside a judgment in
terms of r 449 is one that our Supreme Court had occasion to address in the case of Munyimi
v Tauro S-41-13. Adopting the reasoning in the South African case of Mutembwa v
Mutembwa & Anor 2001 (2) SA 193, our Supreme Court reached the following conclusion
with regards to when the court can set aside a judgment mero motu:
       “In summary therefore the position would seem to be settled that where a court or judge acts
       mero motu and decides to correct, rescind or vary a judgment or order, such court or judge is
       confined to the record of the proceedings and such error should appear ex facie the record.
       The court or judge cannot take into account other facts or circumstances that do not arise from
       the record itself or facts which become known later but which would have been placed before
       the court whose order is sought to be varied or rescinded.”
       In other words, where a court acts mero motu, then the error should be ex facie the
record. In the present matter the error was clearly not ex facie the record. A court can,
however, consider variation or setting aside of a judgement on the facts averred in an
application. The issue in this regard was whether there was merit in the application. There
was no ambiguity or patent error in the judgment. The order was not granted as a result of
any mistake common to the parties. If anything the judgement was very explicit as regards
the scenario where each party failed to buy out the other. In granting the divorce in HC
                                                                                            4
                                                                                   HH 372-17
                                                                                  HC 8941/15
                                                                             Ref Case 4502/06
                                                                             Ref case 3583/11



4502/06, the court clearly granted an order that it deemed fair and equitable on issues to do
property sharing. The matter went to trial and the divorce order was granted having weighed
all evidence on what would be best and equitable under the circumstances. There was no
ambiguity in what was to happen in the event of either party failing to buy the other out
within the stipulated time frames. The order is binding.
       Furthermore, the purported effort to get the order amended was vehemently opposed
by the other party. The application was an attempt at modification of what was granted by the
court for reasons which have absolutely nothing to do with the situations envisaged in r 449.
Section 9 of the Matrimonial Causes Act [Chapter 5:13] equally allows an appropriate court
on good cause shown, to vary, suspend or rescind an order made in terms of section seven of
that Act which deals with division of matrimonial assets and maintenance orders in divorce
matters. However, the provision is explicit that this has to be on good cause shown. In this
instance, no good cause was shown for the variation sought since the order that was granted
by the court as pointed out, clearly addressed the eventuality that applicant placed before this
court as the reason for seeking variation. The applicant refuses to have the property valued as
per the divorce order simply because that does not suit him. It is imperative that the property
be properly evaluated at today’s value. The failure to enlist the respondent’s consent was
obviously because of the applicant’s insistence at using a value which was done several years
ago by himself rather than seeking a variation in good faith in which the property is valued at
today’s values using a valuer appointed by the Registrar. There was clearly no basis for
varying GUVAVA J’s order and there was equally no good cause shown to justify granting the
order sought by the applicant as the predicament the parties found themselves was one that
had been clearly catered for in the judgement.
       It was for the above reasons that I dismissed the application.
                                                                                    5
                                                                           HH 372-17
                                                                          HC 8941/15
                                                                     Ref Case 4502/06
                                                                     Ref case 3583/11



Bothwell Ndhlovu Attorneys at Law, applicant’s legal practitioners
Kwenda and Associates, respondent’s legal practitioners