Court name
Supreme Court of Zimbabwe
Case number
SC 49 of 2006
Civil Application 130 of 2005

Usayi v Chinembiri and Another (30/05) (SC 49 of 2006, Civil Application 130 of 2005) [2006] ZWSC 49 (22 October 2006);

Law report citations
Media neutral citation
[2006] ZWSC 49



6


SC
49/06















DISTRIBUTABLE
(41)





Judgment
No. SC 49/06


Civil
Application No. 130/05








PATRICIA
NELIA USAYI




v





(1)
WILFRED CHINEMBIRI (2) JOYCE CHINEMBIRI








SUPREME
COURT OF ZIMBABWE


HARARE,
OCTOBER 11 & 23, 2006








S
Guuriro
,
for the applicant





S
N Moyo
,
for the respondent








Before:
GWAUNZA JA, in Chambers in terms of r 34(5) of the Supreme Court
Rules








The
applicant seeks an order for the reinstatement of an appeal deemed to
have lapsed, and for condonation of the late filing of
her heads of
argument.





It
is trite that in order to succeed in an application of this nature,
the applicant must, essentially, tender a reasonable explanation
for
the default in question and, further, show that his or her prospects
for success on appeal are good.






I am
satisfied, on the evidence placed before me, that the applicant has
tendered a reasonable explanation for not having filed
her heads of
argument. I have accepted that the applicant, on 3 May 2005, noted
an appeal against an eviction order granted against
her and in favour
of the respondents, by the High Court.

The
notice of appeal was filed on her behalf by Messrs M V
Chizodza-Chineunye, who had been her legal practitioners in this
protracted
dispute since 2000. On 1 June 2006
Messrs
M
V
Chizodza-Chineunye were served with a letter from the registrar of
this Court, inviting them to file the applicant’s heads of
argument
in this matter, within 15 days. The legal practitioners did not
file the heads of argument in question within the period
given, nor
did they inform the applicant of the receipt of the letter from the
registrar. Instead, the legal practitioners filed
a notice of
renunciation of agency, after the fifteen day period had elapsed.
The appeal was subsequently dismissed.






The
applicant thereafter engaged another firm of legal practitioners to
file and represent her in this application. I am satisfied,
given
this background, that this is not a case where the sins of the legal
practitioner should be visited on his or her client.
The applicant
was not to know that the legal practitioner to whom she had entrusted
her case would let her down in the manner she
did.





While,
however, the applicant may have passed the test concerning the
reasonableness of her explanation for the default in question,
I am
not persuaded the same can be said of the other test, that is,
proving that her prospects of success on appeal are good.






It is not in
dispute that the applicant sought, through an interdict, to stop her
husband of 39 years from selling their matrimonial
home pending the
outcome of the divorce action that she had instituted in the High
Court. Nor is it in dispute that the said husband
in what the court

a quo

referred to as a “flagrant and contemptuous breach of a court
order” i.e., the interdict, nevertheless proceeded to sell the
house to the respondents
in
casu.
The latter later went on to take transfer of the property. The
proceeds from the sale of the house, as the court
a
quo

found, were all applied towards payment of the husband’s debts.
The applicant therefore did not receive any share of such proceeds.






The High
Court, fully cognisant of the fact that the house in question, which
the applicant was occupying, had been disposed of,
and moreover, that
no application had been filed by the applicant to challenge its sale
and transfer to the respondents, ordered
the applicant’s husband to
pay her an amount equal to 50% of the sale price of the matrimonial
home, less the estate agent’s
commission. The applicant’s
husband was aggrieved by this decision and appealed to this Court in
case number SC 11/03. The
appeal was dismissed.






Effectively,
this left the applicant with the relief granted by the High Court,
that is, 50% of the proceeds from the sale by her
former husband of
the matrimonial home in question.






Within this
context, the respondents successfully petitioned the High Court for
an order evicting her from the house. The High
Court was satisfied
that the respondents were the rightful owners of the property in
question, and that, contrary to the applicant’s
assertions, they
were innocent purchasers thereof.






I find the
court
a
quo
’s
decision that the respondents were the rightful, duly registered
owners of the property in question, to be unassailable. While
the
applicant’s situation does invite sympathy – she was the victim
of an unscrupulous husband who on the papers, may have been
aided and
abetted in his contemptuous actions by his legal practitioners –
there is no denying that the respondents’ entitlement
to the
property is legally sound.






The
applicant, who is an unsophisticated elderly woman, was quite likely
not given correct advice by the various lawyers who represented
her
in this dispute. This is evidenced by the fact that she neither
challenged the sale and transfer of the property to the respondents,
nor did she register a caveat against the title deeds of the property
after she had obtained an order interdicting her husband from
disposing of it. These actions would have ensured that her interest
in the property was not only protected, but eventually translated
into the relief that she now wishes to seek on appeal. It is
pertinent to note that the applicant, at this late stage and without
having protected her interest as mentioned, is seeking an order that
the property in question be sold at current rates and that,
thereafter, she be given 50% of the proceeds thereof.






Apart from
demonstrating that the applicant has misinterpreted the judgment of
the High Court in the divorce action, the relief
that she now seeks
is no longer legally available to her since the title to the property
has irrevocably passed to the respondents.






Mrs Moyo,
for the respondents, argues correctly that the applicant has the
right to take legal action against her former husband to recover
the
share of the proceeds from the sale of the matrimonial home that the
High Court granted her as part of her divorce settlement.
There is
also merit in the submission made for the respondents, that their
application in the court
a
quo
,
for the applicant’s eviction from the house, did not in any way
interfere with the applicant’s right to the share of the proceeds
that she was awarded by the High Court.






I am
compelled to note, however, that, while in theory the applicant can
proceed against her husband in the manner indicated, it
is evident
that, in reality, she has effectively been denied any benefit arising
from the sale of her matrimonial home. It is a
matter of regret
that her former husband, who sold the property in violation of a
court order, was allowed to get away with such
contemptuous
behaviour. This is clearly a case in which the law was manipulated
in order to deny justice to the appellant, an outcome
that moved the
learned trial judge, KAMOCHA J, to comment correctly that the
applicant had fallen victim to the machinations of a
dishonest
husband and a dishonest lawyer. While both this Court and the High
Court have roundly condemned the actions of her former
husband, it is
evident that no amount of censure will bring to the applicant the
relief that she so desperately needs.






The
applicant’s prospects of success on appeal being, as I do hereby
find, non-existent, this application cannot succeed. I
however do
not consider an award of costs against the applicant to be justified
under the circumstances of this case.






It is in the
result ordered as follows -






The application be and is hereby
dismissed.












Mawere &
Sibanda
,
applicant’s legal practitioners



Honey &
Blanckenberg
,
respondent’s legal practitioners