Vimbayi Charity Rundofa v Luckie Magorimbo

### Preamble
1
HH 303-12
HC 4978/11
HC 5543/11
(1) VIMBAYI CHARITY RUNDOFA Applicant
---------


==============================(1) VIMBAYI CHARITY RUNDOFA
   and
   LUCKIE MAGORIMBO
   and
   REGISTRAR OF DEEDS

(2) LUCKIE MAGORIMBO
   and
   VIMBAYI CHARITY MAGORIMBO (nee Rundofa)

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, July 26, 2012

Applicant
1st Respondent
2nd Respondent

Applicant
Respondent

Opposed Applications

R.F. Mushoriwa, for applicant in HC 4978/1 and respondent in HC 5543/11
W. Muchengeti, for 1st respondent in HC 4978/11 and applicant in HC 5543/11.

CHITAKUNYE J. The two applications were consolidated as they involved the same parties and the same subject matter. For easy of reference Vimbayi Charity Rundofa shall herein after be referred to as applicant and Luckie Magorimbo as the respondent. The applicant, Vimbayi Charity Rundofa and the first respondent, Luckie Magorimbo, were married in terms of the Marriages Act [Cap 5: 11]. In HC 4418/05 the applicant sued respondent for a decree of divorce and other ancillary relief. The applicant was represented by her present legal practitioners whilst respondent was a self –actor.

On 15 September 2005 the parties executed a consent paper on the basis of which a decree of divorce was granted and a division, apportionment and distribution of property ordered on 29 September 2005.

Clause 7 of the Consent Paper provided that:-

“That the immovable property being an undeveloped stand known as Stand number 788 Highlands, Mandara, Harare be transferred into the two minor children’s names.”


The consent paper did not state the period within which the transfer was to be effected or who was to effect the transfer. That was apparently left to the parties. As fate would have it no such transfer was effected.

At the time that the parties executed the Consent Paper they believed that they had acquired rights over the immovable property as they had entered into an agreement of sale with Devine Homes (Pvt) on 31 July 2001. At the relevant time Devine Homes (Pvt) Ltd had purported to be the registered owner of the stand.

Prior to signing the Consent Paper respondent learnt that there may be a challenge with regards to this property and addressed a letter to applicant’s legal practitioners on 31 August 2005 pointing out that there was a problem of which parties involved had been asked to negotiate an out of court settlement.

Devine Homes (Pvt) Ltd and a Mr. HSM Ushewokunze, who was the actual owner of the property, had already entered into a consent order whereby Devine Homes (Pvt) Ltd relinquished all claims to the property.

In October 2005 the respondent and 23 other purchasers instituted proceedings in this Court seeking an interdict against the disposal of their individual stands as they had acquired rights over the stands by virtue of the sale agreements. This application was dismissed by this court in HC 4730/11 on the basis that they had not acquired any rights over the stands.

The respondent reported the matter to the police in an effort to recover the purchase price that he had paid to Devine Homes (Pvt) Ltd. However this was unsuccessful.

Meanwhile in September 2005 the lawful owner of the property advertised the stands inviting those who had previously purchased the opportunity to re-purchase the stands. The invitees were required to “complete and sign your acceptance of offer form and then sign a new Agreement of Sale with Vendfin Investments (Private) Limited” before the close of business on Wednesday, 14 September 2005. The respondent completed and signed the acceptance of offer form within the given period but did not sign a new Agreement of Sale. He took no further steps regarding his acceptance of the offer.

In 2006 the respondent decided to purchase the Stand as it was still available. A new


Agreement of Sale was executed in September 2006, a year after the divorce. The property was then transferred into respondent’s name in 2007.

The respondent states that as the property was never part of their matrimonial estate it could not be distributed between the parties.

On 27 May 2011 the applicant instituted court application HC 4978/11 seeking an order compelling the respondent to transfer the said property per the consent paper. She alleged that the respondent was in contempt of the court order.

The respondent opposed the application. He contended that at the time the order was granted the property did not belong to the parties and so should never have been considered. Clause 7 of the consent paper was agreed to by mistake as they believed they had acquired the property only to later turn out that the seller was not the owner of the property and so that sale was a nullity.

On 10 June 2011 the respondent lodged a court application HC 5543/11, seeking a variation of the court order granted by this court on 29 September 2005. The variation sought is the deletion of clause 7 of the consent paper.

The applicant opposed the application. She contended that the court order was not granted as a result of a mistake common to both parties. She stated that at the time of signing the consent paper the respondent intended the property in question to be part of the matrimonial estate and to be registered in the names of their children once the issue between Devine Homes (Pvt) Ltd and Mr. HSM Ushewokunze had been resolved. She referred to a letter dated 5 October 2005 addressed to the respondent which stated that he had been re-offered the stand and had signed an acceptance form on 14 September 2005. She states that when the respondent signed the consent paper on 15 September 2005 he had acquired real rights in the property.

In his answering affidavit in respect of HC 5543/11, the respondent stated that he had failed to comply with the requirements of the acceptance Form which he had signed on 14 September 2005 when the property was re-offered to him. He thus did not have any rights in the property when the decree of divorce was granted on 29 September 2005.

In terms of r 449 of the Rules of the High Court, a court can vary or rescind a judgment which is granted as a result of a common mistake of the parties. In order to invoke this rule there must be a common mistake to which the parties were *ad idem*.

Upon perusal of the papers filed of record and hearing counsel it is common cause that when the parties were still married the respondent entered into an agreement of sale with Divine Homes (Pvt) limited for the purchase of the property in question. Devine Homes misrepresented that it owned the property and had capacity to sale. Both the applicant and the respondent believed the property was now theirs. As it later turned out Devine Homes did not own the property and had no right to sell the property. The property belonged to HSM Ushewokunze. This was confirmed in an order by consent between Devine Homes and HSM Ushewokunze in HC1721/03. The agreement between Devine Homes and HSM Ushewokunze included a clause that HSM Ushewokunze would give the persons who had purportedly bought the stands from Devine Homes 7 days within which to accept an offer to re-purchase the stand. If they did not accept the offer the stands would be sold on the open market.

As the respondent and others who had purchased the stands were not privy to the agreement reached between Devine Homes and HSM Ushewokunze, he did not know the details. What he learnt was that Devine Homes had been found not to have been the rightful owners of the stands.

In a bid to enforce what they believed were their rights the respondent and others approached this court for an order asserting that they had rights to at least be reoffered the stands at a certain price. That application was dismissed by court on 19 October 2005. In that judgment the learned judge stated that the applicants “being mere beneficiaries under the contract they have no right to negotiate any terms under the contract. Their obligation is merely to accept or reject the benefits as laid down in the contractual document.” (At p 2.)

That judgment put to rest any hopes the respondent had of salvaging anything from the agreement with Devine Homes except to be reoffered at HSM Ushewokunze’s terms and conditions.

It is apparent that whilst this application was pending the respondent and others were re-offered the stands and the respondent accepted the offer. He however did not pay the required deposit within the 7 day period.


On 5 October 2005 HSM Ushewokunze’s legal practitioners confirmed this when they wrote him a letter stating that:-

“We refer to the above matter and in particular the Acceptance Offer Form you signed at our offices on 14 September 2005.

Please be advised that according to the Acceptance Offer Form you were supposed to sign an agreement of Sale and pay a Deposit within seven (7) days of signing the form of which you never did. Accordingly you are now in breach of the contract and we are now proceeding to advertise the property to the public.”

The above confirms that as at that date respondent and his ex-wife did not own the property in question as they had not bought it even after it was re-offered.

The applicant’s assertion that at the time of divorce the property in question was matrimonial property is therefore incorrect. They may have thought so but as things turned out they were mistaken. That is the common mistake the respondent referred to in his application in HC 5543/11.

In terms of s 7 of the matrimonial causes Act the property for distribution are assets of the spouse. Section 7(1) states that-

“Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regards to—

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

(b) ………. “

In Gonye v Gonye 2009 (1) ZLR 232 at 237C-D MALABA JA opined that:-

“The concept ‘the assets of the spouses’ is clearly intended to have assets owned by the spouses individually (his or hers) or jointly (theirs) at the time of the dissolution of the marriage by the court considered when an order is made with regard to the division, apportionment or distribution of such assets.”

In casu the question may be asked: - Was this property an ‘asset of the spouses’ at the time the decree of divorce was granted?
 In as far as clause 7 did not state the period within which the transfer was to be effected the question may further be asked - Could the respondent have been able to effect the transfer on the date of the order or soon thereafter? The answer is clearly no. It is in this regard that the respondent contended that clause 7 was impossible to implement. This is clearly the truth.

In Lupu v Lupu 2000(1) ZLR120 (s) the appellant sought to enforce a term of the divorce order that required the ex husband to include her on his medical aid scheme. The husband’s employers could not accept that as she was no longer a spouse of their employee. The defence of impossibility of performance was successfully raised. At page 125C-F SANDURA JA said that:-

“Finally, in The Law of Contract in South Africa 3ed by R H Christie, the learned author has this to say at pp 102-102

‘The Roman law principle that a contract is a nullity if at the time it was made it was impossible of performance forms part of our law.
‘By the Civil Law a contract is void if at the time of its inception its performance is impossible: impossibilium nulla obligation (D50.17. 185)’
But the principle thus stated may easily be misunderstood and requires immediate qualification in four respects. First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract. Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract. Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract. Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promise or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

In casu, there is no doubt that at the time of inception neither the respondent nor the applicant could effect transfer as the property was not theirs. This was not a case of saying that it is probably impossible to transfer, it was simply impossible. This impossibility was not relative at all but absolute. If anyone had doubts such doubts were cleared by the dismissal of the respondent’s application in HC4418/11 on 19 October 2005, when he was told in no uncertain terms that he had no rights, even personal rights, in the property. Whatever they had invested as a family in the stand was virtually swept away.

It is also clear that the impossibility was not the faulty of either party. If anything the respondent tried to assert some rights over the property but was not successful.

The fourth element should be common cause. In fact applicant’s counsel in his oral submissions conceded that the agreement between the respondent and Devine Homes was a nullity. If it was a nullity it follows the respondent had to enter into a new agreement with the rightful owner if he was to buy the property. At the date and time of the decree of divorce he had not entered into the new agreement with the rightful owner. The acceptance of offer by respondent which the applicant referred to was shown not to have been complied with hence the property was put up for resell. In their letter of 5 October 2005 legal practitioners for the rightful owners stated *inter alia* that-

“Accordingly you are now in breach of the contract and we are now proceeding to advertise the property to the public.”

The breach consisted of failure to sign a new agreement of sale and failure to pay the requisite deposit. What this confirms is that as at the date of divorce the property was not an asset of the either of the spouses.

The applicant’s counsel argued that in as far as it was contemplated that the respondent would buy the property it fell for consideration in terms of s 7(4) (a) of the Act. That subsection provides that:-

“In making an order in terms of subs (1) an appropriate court shall have regard to all the circumstances of the case, including the following—

(a) The income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;”

He argued that this is a property the respondent was likely to have in the foreseeable future. I am however of the view that counsel’s argument was misplaced. This subsection does not place for division apportionment or distribution of an asset not yet an asset of the spouses. The consideration of future resources or earnings or assets is for the purposes of dealing with those assets that are subject of division, apportionment or distribution at the time.

It is my view that at the time of signing the consent paper and the granting of the divorce order, parties had in mind their investment in the property in question as the one to be registered in the names of their children. This is borne out by the fact that at that time the respondent together with other stand buyers had taken the sellers to court. According to the respondent when he signed the consent paper he genuinely but mistakenly believed that he had lawfully acquired that property (see para 4 of the opposing affidavit in HC 4978/11). In furtherance of that belief they sought to protect such rights in HC 4730/05 only to be told by court that they had not even a prima facie right to protect. That decision was made after the grant of the divorce decree.

The applicant seemed to be of the belief that they had acquired the property also. This is confirmed in para 1 of her founding affidavit wherein she states that:

“During the subsistence of my marriage to the first respondent, we managed to acquire an immovable property called stand 788 Highlands Estate Township of Lot 399 Highlands Estate of Welmoed. The aforesaid property was part of our matrimonial property. At the time of the divorce the said property was not registered in either my name or that of the first respondent.”

It is pertinent to point out that the property which the parties ‘acquired’ which she was referring to was acquired from Devine Homes. That contract was a nullity. As at the time of divorce the parties could not with any legal certainty claim ownership of the property in question. They had no rights in the property to cherish or to pass on.

The contract that enabled the respondent to obtain transfer was a completely new agreement and was entered into with a deferent seller altogether on completely new terms and conditions. The only common aspect is that the respondent was able to buy the same stand number. Had he bought a different stand number one wonders if the applicant would have approached court on the same basis.

It is my view that the applicant’s application to compel transfer is untenable.


The respondent’s contention that the order was issued in common error has some merit. As demonstrated above the parties believed they had acquired the property from Devine Homes. When problems arose in that acquisition, they still believed they could salvage some thing from the contract which they could enforce. When court made it clear they had no rights to enforce or to even use as leverage in acquiring the property from the lawful owner that was the end of their illusion.

I am of the view that at the time of divorce, had court been appraised of the fact that the parties had not acquired the property in question it would not have ordered the transfer of the property. Equally had the parties applied their minds to the fact that at the time of divorce they had no rights whatsoever in the property they would not have agreed to transfer the property to their children because at that time they had no property or rights in the property to transfer. If at all they intended that any immovable property to be acquired by the respondent in the near or foreseeable future should be transferred into the names of the children they would have clearly stated so in the consent paper. As this was not stated in the consent paper clearly they did not intend so.

The applicant’s argument that the respondent should be found in contempt of a court order and should thus not be heard unless he firstly purges his contempt is untenable. This is a case of where the rights and obligations to be enforced arose from a contract that was a nullity from inception. The parties agreed on clause 7 of the Consent Paper not realizing that they had not acquired any rights in the property from Devine Homes (Pvt) Ltd. At the time of agreeing on the division, apportionment or distribution of Stand 788 HIGHLANDS Estate Township, neither of them owned that property nor had any rights to transfer. I am of the view that the respondent simply failed to do what was impossible to do from inception.

Accordingly it is ordered that:-

1. The application in HC4978/11 to compel the respondent to pass transfer of Stand 788 Highlands Estate Township of Lot 399 Highlands Estate of Welmoed, held under deed of transfer number 7030/2007 into the names of Shamisoo Amanda Magorimbo Born 29th April 1996) and Kudzanayi Andrew Magorimbo (born 6th June 2001) is hereby dismissed with costs.


2. The order for a decree of divorce granted by consent by this Honorable Court on 29 September 2005 by the Honorable Justice GUVAVA in case number HC4418/2005 be and is hereby varied in paragraph 3.

3. Paragraph 3 thereof be and is hereby amended to read:

‘That issues of custody, maintenance, access and other ancillary relief be and are hereby governed by the Consent Paper executed by the Plaintiff and Defendant on 15 September, 2005 and filed of record with the exception of Clause 7 of the Consent Paper, as the parties do not own an immovable asset.”

4. Each party shall bear their own costs in HC 5543/11.

Mawere & Sibanda, applicant’s legal practitioners
Matimba & Muchengeti, respondent’s legal practitioners
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