Judgment record
Kethiwe Van Der Sanden v Robertus Antoine W. Van Der Sanden and Roy Masamba and Registrar of Deeds N.O
HH 468-18HH 468-182018
Viewing: Word Document (Legacy)
Loading document...
Full text archive
Judgment text copy
A clean reading copy is shown below. Use Download for the original formatted document.
1
HH 468-18
HC 312/18
Ref HC 312/18
KETHIWE VAN DER SANDEN
versus
ROBERTUS ANTOINE W. VAN DER SANDEN
and
ROY MASAMBA
and
REGISTRAR OF DEEDS N.O
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 1,2, 3 and 6 and 8 August 2018
OPPOSED MATTER
N. P Chinzou, for the applicant
E.T Mandaza, for the first respondent
2nd & 3rd respondents in default
CHIRAWU-MUGOMBA J: The history of the matter is as follows:-On 15 January
2018, the applicant filed an urgent application for registration of a caveat against a certain
property namely subdivision 6 of Lot 1 A Greendale otherwise known as 3 Rhodesville
Avenue, Greendale Harare. On 17 January 2018, NDEWERE J issued a provisional order as
follows:
TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made in the
following terms:-
1. The first and the second respondents be and are hereby interdicted from transferring,
disposing or alienating the property being subdivision 6 of Lot 1 A Greendale,
otherwise known as 3 Rhodesville Avenue, Greendale, Harare to any third party
pending conclusion of investigations on the sale of the 22 nd February 2015 by the
Police and finalization of applicant’s divorce proceedings against first respondent.
2. The third respondent be and is hereby ordered to immediately register a caveat against
a piece of land being Subdivision 6 of Lot 1 A Greendale, otherwise known as 3
Rhodesville Avenue, Greendale, Harare, measuring 4107m2 and held under deed no.
664/15.
2
HH 468-18
HC 312/18
Ref HC 312/18
3. The costs of this application shall be borne by the first respondent at an attorney client
scale.
Interim relief sought
That pending the determination of this matter, the applicant is granted the following
relief:-
1. The third respondent be and is hereby ordered to immediately register a caveat against
a piece of land being Subdivision 6 of Lot 1 A Greendale, otherwise known as 3
Rhodesville Avenue, Greendale, Harare, measuring 4107m2 and held under deed no.
664/15.
Service of order
That the applicant’s legal practitioners be and are hereby given leave to serve a copy of
the order on the respondents and/or the respondent’s legal practitioners.
In her founding affidavit, the applicant averred that she was in an unregistered
customary law union with the first respondent before ‘upgrading’ their marriage to one under
the Marriage Act [Chapter 5:11]. That during the subsistence of the customary law union,
they acquired the property in question and that after their December 2000 marriage, the
property remained their matrimonial home. She stated that she contributed “a lot” towards the
purchase of the house by paying transfer fees including the maintenance of the house for the
past seventeen years. They also acquired another property in Germany but never stayed there.
In February 2015, the applicant alleged that the first respondent sold the property to the
second respondent and it was duly transferred to him (second respondent). The applicant
contested the sale through a court application but lost the case ‘mainly on technicalities’. The
second respondent had commenced eviction proceedings against the applicant which matter
was still pending. She alleged that some people had come to view the property and she was
concerned that the house would be sold to another party and thus take it away further from
her reach. Among other averments, the applicant stated that she had a ‘half-share’ in the
property as the first respondent’s wife and that the property had been sold for an
unreasonably low price.
The second respondent did not file any opposing papers to the application but the first
respondent did. And his version is what can be termed the other side of the story. On the 2 nd
of September 2015, the applicant in case number HC 4339/15 lodged a court application
against the first, second and third respondents seeking the following order:-
3
HH 468-18
HC 312/18
Ref HC 312/18
THAT:-
1. The agreement of sale concluded between first and second respondents concluded on
the 22nd February 2015 in respect of subdivision 6 of Lot 1 Greendale, otherwise
known as 3 Rhodesville Avenue, Greendale, Harare be and is hereby set aside.
2. The Deed of Transfer No. 664/2015 that transferred title of Subdivision 6 of Lot 1 A
Greendale, otherwise known as 3 Rhodesville Avenue, Greendale, Harare from first
respondent to second respondent on the 24 th February 2015 be and is hereby declared
null and void.
3. That the first and second respondents be and are hereby ordered to sign all transfer
documents to reverse the transfer of subdivision 6 of Lot 1 A Greendale, otherwise
known as 3 Rhodesville Avenue, Greendale, Harare.
4. That first and second respondents pay the costs of suit jointly and severally one
paying the other to be absolved on a higher scale of attorney and client.
The applicant stated in her founding affidavit that the sale of the property by the first
respondent to the second respondent was fraudulent and that this was matrimonial property.
The first and second respondents strenuously opposed the application and on the 24 th of
November 2015, MWAYERA J dismissed the application in case number HC 4339/15. The
applicant did not appeal against the dismissal and that means the order remains extant.
The legal implications of the dismissal is that the court confirmed the agreement of
sale between the first and second respondent and the latter now has real rights in the
Greendale property by virtue of the title deeds. At the hearing of this matter, the applicant’s
legal practitioner attempted to withdraw the application against the first respondent after the
realization that there was essentially no remedy sought against him since he had disposed of
the property. I pointed out to Mr Chinzou that procedurally, it was not proper to withdraw a
matter that had already commenced and therefore I dismissed the application and discharged
the provisional order as against the first respondent. The second respondent was in default
and I proceeded to hear argument on the merits.
In the present case, the applicant sought an interdict and the placement of a caveat
on property that essentially now belongs to a third party, who happens to be the second
respondent. This application brings to the fore an issue that this court has grappled with and
that is, the legal rights of spouses during the subsistence of a marriage. I shall proceed to
analyse this and other issues.
4
HH 468-18
HC 312/18
Ref HC 312/18
The alleged customary law union between the applicant and the first respondent
In both this present application and in HC 4339/15, the applicant placed emphasis on
the fact that she was originally in an unregistered customary law union with the first
respondent when the later paid lobola for her and the property was acquired during this
period. The first respondent is of Dutch origin. There was no proof or evidence attached by
the applicant to prove the existence of the customary law union. In any event, it is trite that in
terms of the Customary Marriages Act [Chapter 5:07], a customary law union is invalid
except for certain limited purposes. 1However, for such a union to even be valid for these and
other purposes, it can only be entered into between Africans. This is due to the definition of a
marriage in the same act to mean, “customary marriage” means a marriage between
Africans.2 The attempt by the applicant to emphasise the customary law union is pinned on
the fact that the property in dispute was acquired during the subsistence of this alleged union
but there could not have been a valid union between the two.
Did the property ever become a matrimonial asset?
The history of the property reveals that the first respondent acquired it in July 2000. It
was transferred to him on the 15 th of September 2000 under deed of transfer 8410/2000. The
applicant and the defendant married on 10 December 2000 under the Marriage Act as already
indicated. That put the Greendale house firmly in the category of a matrimonial asset as has
already been determined by this court and by the Supreme Court in relation to the meaning of
assets. 3
The matrimonial property regime in Zimbabwe is predominantly that of one of out
of community of property. The only times that the court will interfere with this regime is (1)
at divorce using the wide discretion in section 7 of the Matrimonial Causes Act [Chapter
5:13] and at (2) death in terms of intestate succession laws of Zimbabwe, 4 and (3) where a
1
Section 3(5)- (5) A marriage contracted according to customary law which is not a valid marriage
in terms of this section shall, for the purposes of customary law and custom relating to the status,
guardianship, custody and rights of succession of the children of such marriage, be regarded as a
valid marriage.
2
See also Rabeka v Stockil and others HB 1/15
3
See Gonye v Gonye SC 15/09
4
Courts have also set aside wills on various grounds
5
HH 468-18
HC 312/18
Ref HC 312/18
spouse disposes of a property at undervalue in order to defeat the claims of another spouse at
divorce. In Maganga v Sakupwanya 5the court determined that the spouse (husband) had
disposed of a matrimonial home for then $20,000 when its true value was $402 500 so as to
defeat his former wife’s claim. She was awarded 50% of the real value of the property based
on the sham contract. However, as already indicated, the applicant did litigate on the issue of
an alleged fraudulent transaction between the first and the second respond but the case was
dismissed.
Although the 2013 Constitution calls for equality of obligations and rights of spouses
at death and dissolution6, the position regarding property rights during marriage poses
challenges. The equality clause is in the same Constitution that emphasises that every person
in Zimbabwe can own property. 7In Semwayo and anor v Chatara and anor 8MAKARAU JP
(as she then was) had occasion to comment on an earlier decision as follows:
“The facts of this matter are not dissimilar to the facts in Muswere v Makanza HH
16/05 where I had occasion to review the legal relation that a wife has to immovable property
registered in the sole name of her husband. While holding that the law in this respect is
palpably unjust, I came to the conclusion that the position in our law currently is that a wife
cannot stop her husband from selling his property even if it constitutes the matrimonial home.
In conclusion this is what I had to say:
“…..it presents itself clearly to me that as the position at law that a wife in the
position of Mrs Makanza has no real right in immovable property that is registered in
her husband’s sole name even if she directly and indirectly contributed towards the
acquisition of that property. Her rights in relation to that property are limited to what
she can compel her to do under family law to provide her with alternative
accommodation or the means to acquire alternative accommodation. Her rights,
classified as personal against her husband only, are clearly subservient to the real
rights of her husband as owner of the property.”9
In Magurenje v Maposa and ors 10 the court recognised the right of a customary law
wife (though her status was disputed) to dispose of immovable property registered in her
name quoting from the dicta by Lord Wilberforce in National Provincial Bank v Aisworth11
as follows:-
5
1996(1)ZLR 217
6
Section 26(d)
7
Section 71(2)
8
HH-48-07
9
See also Maponga vs. Maponga and others HH-21-04
10
2005(2) ZLR 44
11
[1965] 2 ALL ER 472
6
HH 468-18
HC 312/18
Ref HC 312/18
“Where there is a genuine transfer, there is no reason why the wife’s personal rights against
her husband, which are derived from her status, should enter the field of real property law as
to clog the title of an owner.”
This brief synopsis of the legal position does not take the applicant’s case any further
as her application in HC 4339/15 was dismissed. Nonetheless, this untenable legal position is
in serious need of legislative reform. To that end, I echo the sentiments of TSANGA J in
Madzara v STANBIC Bank Limited and Ors 12 who stated as follows:- “In summary, in my
view legislative intervention that addresses the rights of the spouse to the matrimonial during
the course of the marriage is where the energy should be. Even when cases such as this one
are lost, they nonetheless play an important role in fore-fronting the types of problems that
need the legislator’s attention.”
Does the application fulfil the requirements of a final interdict?
Setlogelo v Setlogelo 191413 and a plethora of other cases is often cited as the leading
authority on the requirements of a final interdict. These are:-
1. a clear right which must be established on a balance of probabilities.
2. irreparable injury actually committed or reasonably apprehended
3. the absence of a similar protection by any other remedy.
The moment that the applicant’s legal practitioners conceded that applicant had no
case against the first respondent is when the applicant’s case against the second respondent
also fell apart. In her averments in the founding affidavit, the applicant based her claim on her
marriage to the first respondent. For instance in paragraph 15 of her founding affidavit she
states as follows, “First respondent’s sale of the matrimonial property behind my back was
unlawful and fraudulent. I am his wife and have a half-share interest in the property by virtue
of my marriage to him as it was acquired during the subsistence of our marriage”. Although
I have stated that the property became a matrimonial asset as soon as the parties were married
in terms of the Marriage Act, the first respondent is no-longer a holder of rights in that
property. It could only remain a matrimonial asset had it been in existence at the time of the
divorce. As a matter of fact, at the time of filing the urgent application, there was no proof of
divorce proceedings having been filed by the applicant against the first respondent. The
12
HH-546-15.
13
1914 AD 221
7
HH 468-18
HC 312/18
Ref HC 312/18
applicant’s assertion that she is entitled to a half-share interest in the property can only hold
water against the first respondent and not against the second respondent as there is no marital
relationship between applicant and second respondent. And in any event, a marriage out of
community of property does not translate into an automatic half-share as the basis of
apportioning matrimonial property is based on section 7 of the Matrimonial Causes Act
[Chapter 5:13] which is discretionary in nature.
The applicant went on to state in paragraph 17 that, “ In any case, the whole transaction
smacks of fraud in that there is no way a sale could have been concluded on 22 nd February
20915(sic) and transfer taken on 24th February 2015. The price at which the property was
sold was ridiculously too low. The property was sold for a paltry $101 5000(sic) when it was
valued at no less than $200 000 at the time. The purchase price of $101 5000 (sic) was less
than the cost of land alone without the structure”. She also alleged that some alleged buyers
had come to view the property and that the second respondent had instituted eviction
proceedings against her. She also stated that she was going to report to the police to conduct
an investigation of the alleged fraudulent sale of the property by the applicant to the first
respondent. The applicant made the same averments of fraud against the first and second
respondents in HC 4339/15 which case as stated already was dismissed and the order remains
extant. A mere assertion that applicant has reported or intents to report the matter to the
police does not take away the fact that the implications of the dismissal of her case remain
that the agreement of sale between the first and second respondent remains valid; the title
deeds now in the name of the second respondent remain valid and the second respondent
remains vested with the real rights in the property. In the same vein, the applicant’s assertion
that the first respondent send persons to view the property does not have any value since the
first respondent no longer has any real rights in the property and would not be able to pass
transfer of rights that he no longer has. This puts the matter firmly within the res judicata
principle as the sale and ownership of the property has been confirmed by this court. The
applicant has therefore failed to show that she has a clear right more-so given the legal
position that allows a spouse to dispose of rights in immovable property during the
subsistence of a marriage.
Apart from there being no evidence of the intended disposal of the property to yet
another party, the applicant cannot claim irreparable harm for an asset that is no longer in her
husband’s name. Infact, the balance of convenience favours the second respondent who
8
HH 468-18
HC 312/18
Ref HC 312/18
presumably parted with his money and his efforts of taking occupation are being frustrated by
the applicant.
The applicant had a remedy which was to appeal the dismissal of her application in
case no HC 4339/15 which she did not chose to do for reasons that have not been explained.
In her own words in paragraph 11 of the founding affidavit, she stated that, ‘I contested the
sale through a court application which I lost unfortunately on technicalities”. Despite this
admission, she still did not appeal against the decision. Even if this court in the matrimonial
matter finds that indeed applicant ought to have been awarded a share in the property, she
will still have a remedy in that she can be awarded a share not of the property but of the value
of the property. In Usayi v Usayi 14 the husband sold the house before the divorce and his
former wife was awarded a half-share of the sale price. In the Maganga case (supra) the court
found that the actual value of the property was $402 500 and awarded the former wife not the
house but half the value in the sum of $201 250.
The application therefore has no merit.
Accordingly, it is ordered as follows:-
1. The provisional order be and is hereby discharged.
2. The caveat placed on certain piece of land namely Subdivision 6 of Lot 1 A
Greendale, otherwise known as 3 Rhodesville Avenue, Greendale, Harare, measuring
4107m2 and held under deed no. 664/15 on the 17 th of January 2018 be and is hereby
lifted.
3. The applicant shall pay the costs of suit.
Chakanyuka and Associates Attorneys, applicant’s legal practitioners
Muhonde Attorneys – 1st respondent’s legal practitioners
14
SC 11/03