Vimbai Muzeza v Eshwart Muzeza and Farai Mwandiringa and The Registrar of Deeds N.O. and Tambudzai Gandari and Fungai Gandari

### Preamble
1
HH 213-12
HC 11207/03
HC 616/03
VIMBAI MUZEZA
---------


==============================

VIMBAI MUZEZA
versus
ESHWART MUZEZA
and
FARAI MWANDIRINGA
and
THE REGISTRAR OF DEEDS N.O.
and
TAMBUDZAI GANDARI
and
FUNGAI GANDARI

HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 8 JULY 2011 & 3 MAY 2012

FAMILY LAW COURT

Opposed application

M. Mavhiringidze, for the applicant
T. Mawere, for the 4th and 5th respondents
1st & 2nd respondents in person

GUVAVA J: This matter has had a long and winding history before this court. There have been a multiplicity of cases that have been filed before this court which all related to the immoveable property in question since 2001 which have all contributed to the delay in the finalization of these cases. The matter was further delayed by the death of the second respondent as it became necessary for his wife to be appointed executor of his estate and for her to be substituted in his place. The fourth and fifth respondents who were not party to the proceedings in case number HC 616/03 then sought to be joined in the proceedings as they had an interest in the outcome of the case. It also became necessary to consolidate the two outstanding cases before this court, that is, HC 11207/03 & HC 616/03 as it was clearly expedient for them to be determined at the same time.


The facts in these cases are mainly common cause and may be summarized as follows. The applicant and the first respondent were formerly husband and wife. They married in terms of the Marriages Act [Cap 5:11] on 8 January 1998. During the subsistence of the marriage they purchased a house, number 18 Audley Road, Craneborne, Harare (the property). On 15 November 2001, in case number HC 10926/01, the first respondent issued summons out of the court seeking a decree of divorce and other ancillary relief. The applicant counterclaimed for divorce and 75% share of the immoveable property. Prior to the finalization of the divorce matter it came to the applicant’s attention that the first respondent intended to sell the property. She then approached this court, on an urgent basis for an interdict stopping the sale. A provisional order was granted by SMITH J on 5 April 2001 in case HC 3543/01. Unbeknown to the applicant, the first respondent proceeded to sell the property to the second respondent in contempt of the order which had been granted by this court. Applicant learnt of the disposal of the property during the divorce proceedings. She again approached this court on an urgent basis seeking an order stopping the second respondent from disposing of the property. MAVANGIRA J on 3 February 2003 granted the interim relief sought. However when the provisional order was granted by this court transfer had already been made to the second respondent who, in turn, had sold the property to the fourth and fifth respondents. The divorce proceedings between the applicant and the first respondent were finalized on 6 February 2003. In granting the decree of divorce the court ordered as follows in relation to the immovable property:

"(3) It is ordered that stand number 9918 Salisbury Township, also known as 18 Audley Road Cranborne is declared to be matrimonial property of the parties. The plaintiff is awarded 60% of the value thereof and the defendant is awarded 40% share of the value thereof.

(4) If the parties cannot, within 10 days of the date of this order, agree on the value of the property referred to in para 3 above, they shall appoint a valuer to do so.

(5) If the parties cannot, within 10 days agree on a valiator, the Registrar of the High Court shall appoint a valiator.
 6) The valuator shall as soon as possible, and in any event not later than 30 days after his appointment, value the property and if there is any outstanding obligation shall indicate the nature and value thereof.

7) The costs of the valuation shall be paid by the plaintiff.

8) The plaintiff shall pay to the defendant before 30 April 2003, 40% of the net value of the property less the cost of valuation." As the property had already been sold the applicant then approached this court for confirmation of the provisional order granted on 3 February 2003 in case number HC 616/03. This case relates to the first case before this court. The applicant in that case seeks an order in the following terms:

"1. That the agreement of sale entered into by and between the first and the second respondents be set aside.

2. That the third respondents cancel the transfer effected on 13 May 2002 under Deed of Transfer No 3824/2002.

3. That the second respondent effects transfer of No 18 Audley Street, Cranborne Park, Harare in favor of the first respondent so that the property shall be dealt with in terms of the judgment to be handed down under case No 10926/01.

4. That in the event of the second respondent failing to effect transfer in favour of the first respondent then the Deputy Sheriff be and is hereby authorized to sign all the necessary documents effecting transfer from the second respondent to the first respondent.

5. That the respondents pay the costs of suit on an attorney and client scale."

The applicant submits that if the sale between the first and the second respondents is set aside she would be able to secure her 40% share of the house as awarded to her in the divorce order granted by this court.

The second, fourth and fifth respondents have opposed the application. They submit that they were all innocent purchasers who bought the property in good faith and for value. They submit that they did not connive with the first respondent in order to defeat the applicants claim. The first respondent states in his affidavit that he does not oppose the relief sought by the applicant. He submits that he was charged with and convicted of contempt of court for selling the property in violation of a court order. He paid a fine of $10,000 and therefore cannot be punished twice for the same offence.

The second matter before the court relates to the application to compel transfer filed by the fourth and fifth respondents who purchased the property from the second respondent. The fourth and fifth respondents allege that they entered into an agreement of sale on 11 October 2002 with the second respondent. They purchased the property for the sum of Z$ 10,000,000. The final installment was paid on 5 May 2003. The second respondent opposed this application on the basis that the fourth and fifth respondents had breached the terms of their agreement and were thus not entitled to transfer.

In my view two issues present themselves before this court for determination. The first issue is whether the applicant can set aside the sale of the property between the first and the second respondents. The second issue is whether or not the fourth and fifth respondents are entitled to transfer of the property. The first issue, in my view, raises the question of what rights, if any, does a spouse have in respect to matrimonial property registered in the name of their spouse.

It is now settled in our law that the holder of title to immovable property has real rights over the property which are enforceable against the world at large. The first respondent was the owner of the immovable property in question as it was registered in his name. The applicant as the first respondent’s wife had no real rights over the property. In the case of *National Provincial Bank Ltd v Ainsworth* (1965) 2 A11 ER 472 at 485G Lord UPJOHN stated as follows:

"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"

In the case of *Muganga v Sakupwanya* 1996 (1) ZLR 217 (S) the Supreme Court confirmed the position that spousal rights were personal rights. The court went further to state that these rights flow from s 7 of the Matrimonial Causes Act [Cap 5:13] which recognizes that a spouse, though not registered on a property, would have contributed in some ways towards its acquisition during the subsistence of the marriage.


The applicant in this case seeks to set aside the sale made to a third party. In the case of *Muzanenhamo & Anor v Katanga & Ors* 1991 (1) ZLR 182 the court in dealing with a situation where a husband had sold the matrimonial asset stated at p186 as follows:

“There must be some evidence that he is disposing of the asset at undervalue to a scoundrel, the accomplice of the husband (*Chhokar v Chokkar* 1984 FLR 313) or that in some way he is attempting to defeat her just rights”

Thus in order to succeed in her claim the applicant would have to establish that the sale was sold to the first respondent’s accomplice and for undervalue. It is trite that an application stands or falls on the applicants founding affidavit. The applicant in her founding affidavit makes no averment that the second respondent was aware of the dispute between her and the first respondent. There is also no averment that the property was sold to a scoundrel for less than its worth in order to defeat the applicants claims. In fact the applicant makes no averment that there was any collusion between the first respondent and the second respondent. The applicant avers that it was sold to the second respondent for the sum of Z$ 5 775 000. She does not state that this was not the value of the property at the time. In fact no valuation of the property was ever done.

It is only in the first respondent's affidavit that one finds information to the effect at the time of the sale the second respondent was aware that the first respondent was having a matrimonial dispute over the same property. In submissions to the court the first respondent sought to lead evidence from the bar which was not in his affidavit. Mr Mawere for the fourth and the fifth respondents objected to this evidence. He relied on the case of *ABBSA Bank Limited v Woulec Toerusting Trust* (1131/08) 2009 ZANCHC 58 which he kindly made available to the court and to applicants counsel after the hearing. It is quite apparent from this case that the first respondent cannot introduce such evidence at this stage. At para 4.2 of the case MAJIEDT AJP stated as follows:

“Any submissions in heads of argument not supported by averments in an opposing affidavit must in my view simply be regarded as pro non scripto.”

It was on the basis of this case that I declined to hear any evidence from the first respondent which had not been filed in his papers.

In my view the applicant has not shown that there was any fraudulent intent on the part of the second respondent. The fact that the transfer was effected before the full purchase price had been paid by the second respondent does not in itself infer that he wanted to defeat the applicants claim as he had been advised by the first respondent that he could sell the house. The first respondent states in his affidavit as follows:

“Before he paid the deposit I advised the second respondent in the presence of Mr Kandiyero that the property was subject of a matrimonial dispute but because it was registered in my name I could still sell it. I further hinted that there could be an order restraining transfer of the property because I had been served with the application for the interdict. I however indicated to him that I did not know of the state of the application but there was no caveat on the title deed of the property. ….”

The above quote from the first respondent’s affidavit shows that the first respondent informed the second respondent that he had a dispute with his wife involving the property but he assured the second respondent that he could sell the property. In the case of *Violet Tekwe v Anderson Hanoki & Anor* HH 72/02 NDOU J dealt with this point very succinctly at p 5 of the cyclostyled judgment where he states:

“Mere knowledge that there is a wife will normally not be enough. There must be an intention to defeat the wife's just rights. The aggrieved spouse must prove that the third party is guilty of fraudulent intent.”

It also seems to me that upon the divorce of the applicant and the first respondent and in pursuance of s 7 of the Matrimonial Causes Act this court made an award to the applicant a 40% value of the immovable property. The court further ordered that the first respondent should pay the value of her 40% share no later than 30 April 2003 following valuation of the property. It seems clear to me that the order by the court granted the applicant personal right against the first respondent to recover her 40% share of the property. The award in my view was couched in monetary terms as the court was aware at that stage that the property had already been sold. It seems to me that the court consciously did not order the disposal of the property in the event that the first respondent failed to pay the applicant her share. It is my view therefore that as the applicant has failed to establish that the sale was not *bona fide* and it cannot thus be set aside on this ground.

The applicant further submitted that the sale to the second respondent should be set aside because it was done in contempt of an Order of this court. The issue raised by the applicant makes it necessary to determine the effect of non compliance with an order of the court. This point was raised and determined in the case of *Menezes v McGill* 1971 (2) SA 12. The court held that where ownership had been acquired bona fide then such title could not be questioned solely on the basis that it had been acquired in breach of a court order. The court further held that the non compliance by a party to a court order would render them liable to contempt proceedings and any sanction that the court would deem appropriate. It should be noted that the first respondents conduct in this case has not gone unpunished as he was charged and convicted of contempt of court.

In view of the above findings the applicant is not entitled to the order setting aside the sale between the first and the second respondents and accordingly the provisional order granted on 3 February 2003 should be discharged.

I now turn to the issue of whether or not the fourth and fifth respondents are entitled to transfer of the property from the second respondent. Tambudzai Gandari filed an affidavit in which she explains how she purchased the immoveable property in question from the second respondent on 11 October 2002. The purchase price was Z$10 000 000 and Z$8 000 000 was paid upon signature of the agreement. A further amount of Z$1 000 000 was paid on 18 October 2002 with Z$500 000 being paid on 30 October 2002. Due to the delay in paying the balance the parties agreed to novate the agreement to Z$12 500 000. They then paid the money in installments in accordance with the addendum to their agreement. The fourth and fifth respondents aver that they paid the final instalment on 5 May 2003. When he sought transfer the second respondent declined to do so. They claim that they have complied fully with the terms of the agreement and are entitled to transfer. The second respondent prior to his death deposed to an affidavit wherein he stated that the fourth and fifth respondents had not complied with the terms of the agreement and were thus not entitled to transfer. During the hearing however it became apparent that the final Z$500 000 was paid to their then legal practitioner Mr TK Hove it was never paid to the second respondent. Mr Mawere then properly conceded that there had not been compliance with the terms of the sale. He however argued that as the second respondent had not cancelled the agreement the fourth and fifth respondents were still entitled to transfer provided they paid the balance outstanding which he stated
 constituted 4% of the purchase price. Mrs Mwandiringa indicated in submissions that while she was not adverse to the payment of the balance of the purchase price being paid in order for transfer to be made she did not agree with the percentage outstanding. However one cannot fault the mathematical calculations submitted by Mr Mawere as the outstanding amount of Z$500 000 constitutes 4% of the total purchase price. It was my understanding that the proposal made by Mr Mawere is that the fourth and fifth respondents will pay 4% of the value of the property to the second respondent before transfer can be made. The submissions made by the second respondent entail a renegotiation of the purchase price and it fails on that basis.

In my view therefore the fourth and fifth respondents are entitled to transfer of the property provided they pay the balance of the purchase price.

The first respondent has been the cause of all the events that have taken place in case number HC 616/03. He sold the property when he was clearly aware that he was in the middle of a divorce case in which the applicant was claiming a share of the property. He lied to the second respondent when he told him that there was no order barring the sale. In my view it is only proper that he pays all the costs which have been incurred by the applicant in this case even though she has not succeeded in her claim. In case 11207/03 I take the view that that costs should be borne by the fourth and fifth respondents. Although they have succeeded in their claim against the second respondent they were negligent when they did not investigate the assertions by the second respondent that the purchase price had not been paid in full.

In the result I make the following order:

1. The provisional order granted by this court on 3 February 2003 be and is hereby discharged.
2. The second respondent be and is hereby ordered to sign all the necessary documents to transfer stand number 9918 Salisbury Township held under Deed of transfer number 3824/02 to fourth and fifth respondents within 30 days of the date of payment of 4% of the value of the property to the second respondent.


3. The Registrar is hereby authorized to appoint a valuer from his list to immediately carry out an evaluation of the property and the cost of such valuation shall be borne by the fourth and fifth respondents.

4. The fourth and fifth respondents shall pay 4% of the value of the property to the second respondent within 15 days of receipt of the valuation report.

5. In the event that the second respondent fails to effect transfer in terms of para 2 of this order the Deputy Sheriff is hereby authorized upon being provided proof of payment of balance of the purchase price by the fourth and fifth respondents to sign all necessary papers to effect transfer of the said property.

6. The first respondent shall pay the costs of suit for case number HC 616/03.

7. The fourth and fifth respondents shall pay the costs of suit for case number HC 11207/03.

Madanhi, Mugadza & Company, applicant’s legal practitioners
Bwekwa Legal Practice, 1st respondent’s legal practitioners
Mawere & Sibanda, 4th & 5th respondents’ legal practitioners
--- END OCR FALLBACK ---