Manyimo (nee Magorimbo) v Manyimo & Ors (HC 706 of 2016; HH 67 of 2017; Ref 12314 of 2012) [2017] ZWHHC 67 (2 February 2017)

1 HH 67-17 HC 706/16 Ref Case No. 12314/12 MILDRED SIPHIWE MANYIMO (nee MAGORIMBO) versus ENERGY LINCOLN CHIVARAIDZO MANYIMO and THE REGISTRAR OF THE HIGH COURT and THE SHERIFF OF ZIMBABWE N. O HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 4 November 2016 & 2 February 2017 Opposed application P Takawadiyi and S M Ruwona, for the plaintiff D Sanhanga, for the defendant MWAYERA J: The applicant approached the court seeking an order compelling the respondent to comply with a specific portion of a divorce consent order under HC 12314/12 issued on 1st April 2014. The relevant portion of the order for which compliance was sought reads: “It is ordered by consent that-: 4. The defendant be and is hereby given the option to buy out the plaintiff’s share in the following properties-: i) ii) Stand No. 284 Northwood Township of Sumbem, held under Deed of Transfer Number 7050/87 also known as No. 284 Northwood Township, Mount Pleasant, Harare. Stand 575 Mount Pleasant Township 17 of 57 of Mount Pleasant, Harare, which option shall be exercisable as follows (a) The Estate Agency Council of Zimbabwe upon request by either party’s legal practitioners appoint an Estate Agent to value the property and that the costs thereof be borne by the parties in equal shares. (b) The defendant pays to the plaintiff her 50% share of the properties within 60 days of the granting of the divorce order subject to any extensions agreed to by the parties in writing. (c) In the event that the defendant is unable to raise the plaintiff’s share of the property within the agreed 60 days or the agreed extension, the property shall be sold at best advantage in open market and net proceeds shared equally as between the parties. HH 67-17 HC 706/16 Ref Case No. 12314/12 (d) Property known as No, 5094, Gambo Road, Village 11, Mkoba Township Gweru shall subject to valuation report be immediately sold to the best advantages of the parties and the proceeds being shared equally.” The brief history of the matter has to be put into light. The parties obtained a consent divorce order on 1 April 2014. The order among other things entailed the parties getting equal shares of their immovable assets. The parties, partly complied with the order and proceed to share one of the immovable properties namely 575 Mount Pleasant Township 17 of Mount Pleasant. The other two immovable properties namely 284 Northwood Township Sumbem and 5094 Gambo Road, Village 11, Mkoba Towsnhip, Gweru remained unshared as per the court’s order thus leading to the present application seeking to compel specific performance on the part of the respondent so as to fully comply with the court order. The respondent opposed the application and raised points in limine as follows: 1. That the application is misplaced and incompetent at law. 2. That there is material non-disclosure of facts 3. That there are materials disputes of facts. I will first deal with the points in limine. It is clear that there is an extant matrimonial order which has not been fully complied with. In order to have the order complied with one can file contempt of court proceedings or execution proceedings. Given the nature of the order the execution of the order is hinged on the cooperation of the respondent. The immovable property has to be disposed of by way of sell and proceeds shared. Given the lack of cooperation on the part of the respondent in facilitating compliance with the order sought an application to compel compliance with the court order is competent at law. The application is to ensure that execution of the judgment is effected and that does not amount to giving a new order in wake of the already determined matrimonial matter. The High Court is legally expected to regulate its process and in my view, the application to compel compliance with the court order is to facilitate specific performance of the consent order issued in April 2014. Section 176 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 is instructive on empowering the court to regulate its process. It states: “The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law taking into account the interests of justice and the provisions of the Constitution.” In the present case given the circumstances that the High Court order was partially HH 67-17 HC 706/16 Ref Case No. 12314/12 complied with and that 2 immovable properties are still to be shared as directed by the court, there is nothing amiss in the application seeking compliance with the order. The application does not entail revisiting the same matter between the parties but is premised on a different cause of action which is lack of cooperation and none compliance with a court order. The question of being functus officio does not arise since the import of this application is not to revisit the main divorce matter and order but is to compel compliance with the order in other words to facilitate execution of the extant matrimonial consent order. The first point in limine can therefore not be sustained since the application is competent at law and is properly before the court. It should be borne in mind that the choice of enforcement depends on the type of judgment. See Chauke v Muzamini and Another HH 520/15 and Munyikwa v Mapenzauswa and Another SC 91/05. The second point in limine, whether or not there is any material none disclosure of facts equally cannot stand. Clearly the main order spells out that the immovable properties were to be sold to the best advantage. The applicant’s founding affidavit speaks to the order of the court that the properties were to be sold to the best advantage. There is therefore no basis for alleging material none disclosure of what is apparent and disclosed. I now turn to the third point in limine raised, that the matter has material disputes of facts and as such ought to be dismissed. This court issued a consent order on 1April 2014. At the time of lodging the application in September 2016, the order had not been fully complied with. Correspondence between the parties and affidavits of evidence show that there are two outstanding houses not disposed of as ordered by the court. The respondent’s argument that he has been cooperative in selling and transferring the immovable properties in terms of the court order has no firm standing as clearly the order has not been complied with. The order is clear on that the property is to be sold to the best advantage. This was done in respect of the Mount Pleasant property number 575. One fails to understand how a matrimonial dispute arises when it comes to the two outstanding properties which were, per the court order to be disposed of in the same manner as the Mount Pleasant property. The facts of the matter as laid out in the papers do not depict material disputes of facts which would require further adducement of evidence, I subscribe to the sentiments of MAKARAU J (as she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi HH 92/09 where she stated: “A material dispute of fact arises when such material facts put by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of parties’ evidence”. HH 67-17 HC 706/16 Ref Case No. 12314/12 In casu the dispute is over lack of compliance with a court order in relation to the immovable property, which has not yet been sold to the best advantage to facilitate sharing of proceeds as ordered by the court. Clearly there is nothing clouded in so far as the outstanding issue is concerned. There are no material disputes of facts thus. The application is properly before the court for determination on papers. It is evident that the applicant and the respondent each got a share of stand 575 Mount Pleasant Township, Harare in compliance with the court order HC 12314/12 of 1 April 2014. The other two properties namely 5094, Gambo Road, Village 11, Mkoba and 284 Northwood Sumbem remain unsold in clear non-compliance with the court order. The term “sell to best advantage of the parties” means the property is to be sold at open market, taking into account the circumstances the property ought to be sold at the best price for the benefit of the parties. The order does not give room for best advantage relating to very high price or best advantage for the respondent only. The order is clear “Property shall be sold at best advantage in open market….” The respondent’s interpretation of misconstruing the order to mean high price to the respondent’s advantage has no basis given the matrimonial order for divorce and ancillary issues is in relation to both parties. By not facilitating the sale in compliance with the order the respondent is hindering execution of the consent order. That lack of commitment in compliance with the order has occasioned the application for compelling specific performance which brings about execution of the extant court order. In the absence of justification for none compliance with a court order issued by a competent court the applicant properly, sought redress by way of seeking an order compelling the respondent to facilitate sell of the properties so as to comply with the valid matrimonial order by consent. Accordingly in the premises it is ordered that: 1. The 1st respondent be and is hereby ordered to sign all documents necessary to effect sale and transfer of: (a) Stand no 284, Northwood Township Sumbem held under Deed of Transfer number 7050/87. (b) House No. 5094 Gombo Road, village 11, Mkoba Township, Gweru, in compliance with court order HC 12314/12 HH 67-17 HC 706/16 Ref Case No. 12314/12 2. In the event that the 1st respondent fails to sign the papers within 7 days of service of this order upon him, then the 3rd respondent be and is hereby authorised and directed to sign all necessary papers on behalf of the 1st respondent to effect the sale and transfer of the two immovable properties mentioned in 1 (a) and 1 (b) in compliance with the order HC 12314/12. 3. The first respondent shall bear the costs of suit. P Takawadiyi & Associates, applicant’s legal practitioners Mawere Sibanda, 1st respondent’s legal practitioners