Sibanda v Sibanda (HB 20 of 2006) [2006] ZWBHC 20 (15 March 2006)

Judgment No. HB 20/06 Case No. HC 2226/05 X Ref HC 292/05 SIKHUMBUZILE SIBANDA Versus ABINELY SIBANDA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 8 DECEMBER 2005 AND 16 MARCH 2006 J J Moyo, for the applicant S S Mazibisa, for the respondent Chamber Application NDOU J: The parties in this matter were married on 28 April 1995, at Bulawayo and the marriage still subsists. The marriage is blessed with two minor children. At some stage serious disharmony arose between the parties which culminated in the applicant’s departure from the matrimonial home. The applicant went to live with her uncle in Barham Green. The applicant instituted divorce proceedings in HC 292/05 and that matter is still pending. One of the issues that arose in those proceedings was how the property should be shared. As part of efforts to resolve the matter, a round table meeting was held at the offices of the applicant’s erstwhile legal practitioners where both parties attended with their respective legal practitioners. There was a meeting of minds in this meeting. It seems that the issue of movables was largely resolved and a draft was compiled, in the form of Annexure “A”. This document was not signed by the parties as the understanding was that it shall form the basis of the consent paper. Thereafter one of the things discussed in 20/06 HB correspondence between the parties’ legal practitioners was the possibility of the applicant taking delivery of the movables awarded to her in Annexure “A”. The applicant was unable to take the said movables because of constraints brought about her being accommodated by her uncle. The respondent, at the time agreed that the applicant could collect the property notwithstanding that there were other issues to be resolved. Pursuant to this arrangement, when the applicant resolved her accommodation problems, and when she became aware that the respondent was no longer ordinarily resident in Zimbabwe and in particular in the matrimonial home where the said property is kept, she decided to collect the property. The applicant then approached the respondent through his legal practitioners to work out the logistics of collecting the movable assets. With the movement of time and no confirmation of the date when the applicant could collect the property, she became impatient and approached the respondent’s legal practitioners. She was informed that the respondent would like an overall and not piecemeal settlement of the matter. She considers this to be a shifting of goal posts by the respondent. In her view, the respondent’s attitude is wrongful and unreasonable designed to put pressure on her to settle the rest of the issues and perhaps to her prejudice. It is common cause, or at least beyond serious dispute that the respondent is not using these matrimonial assets. The respondent says that the applicant should not be concerned about the security of these assets as matrimonial home is guarded and the property is insured against theft. He does not say he 20/06 HB requires the use of these items pendete lite. He has not alleged any prejudice he is likely to suffer. In any event, in correspondence the respondent made an unconditional invitation to the applicant to collect these items. If she had done so at the time, this litigation would not have arisen. Mr Mazibisa, for the respondent, has argued that Annexure “A” does not satisfy all the requirements of a contract, and as a result the applicant has no locus standi. This argument overlooks the fact that a marital partnership does not really equate a commercial venture – Chizengeni v Chizengeni 1988(1) ZLR 286 (HC) at 291D. Even if Annexure “A” does not amount to a contract, still from the applicant’s papers the matter of equity has been raised. It is trite that the courts will intervene (on behalf of the wife) where it is essentially a matter of equity where the husband acts prejudicially against her as a policy of harassment arising out of the divorce proceedings. This rule will also apply where he is in some way attempting to defeat her just rights – Chhokar v Chhokar 1984 FLR 313; Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 (A) and Muzanenhamo & Anor v Katanga & Ors 1991 (1) ZLR 182 SC at 187-8. It is unreasonable for the respondent to shift goal posts and renege from an earlier invitation to collect these movable assets in order to exert pressure on her to settle fast and in his terms. The respondent, as already alluded to, does not have any immediate use for these items. Notwithstanding that, he has possession of all the joint assets of the parties. He is not ordinarily resident in the country whereas the applicant is resident and requires these items for day to day use. The equitable and practical solution is to HB 20/06 grant her provisional possession of these items pending the divorce. This is a specific relief that she has established – Manga v Manga 1991 (2) ZLR 251 (SC) and Rosenbuch v Rosenbuch & Anor 1975(1) SA 181 (W). This relief depends on my exercise of purely discretionary remedies based on the facts of this case – National Provincial Bank Ltd v Ainsworth [1965] 2 ALLER 472 and Muzanenhamo & Anor v Katanga & Ors, supra. Accordingly, I grant the provisional order with interim relief in the following terms: Pending confirmation or the discharge of this provisional order, it shall act as an interim order directing respondent to deliver to applicant at Number 14 Oxford Road, Hillside, Bulawayo at a date and time to be specified by the respondent’s legal practitioners in writing to applicant with 5 days of this order all the property listed below: a) b) c) d) e) f) g) h) i) j) Ignis double door fridge Mercedes Benz motor vehicle Fitted stove with hob Monarch kitchen 3 piece unit Microwave Sandwich maker Phillips electric iron Portable radio Lounge suite LG Television/Home Theatre Centre k) 14” colour television set l) Technics sound system m) Double bed (2) n) o) p) q) r) s) t) Wardrobe Laptop Garden chairs Hoover Chest of drawers 3 Lamp Carpets HB 20/06 Calderwood, Bryce Hendrie & Partners, Applicant’s legal practitioners Cheda & Partners, respondent’s legal practitioners