Court name
Supreme Court of Zimbabwe
Case number
SC 91 of 2005
Civil Appeal 343 of 2003

Munyikwa v Mapenzauswa and Another (43/03) (SC 91 of 2005, Civil Appeal 343 of 2003) [2006] ZWSC 91 (06 March 2006);

Law report citations
Media neutral citation
[2006] ZWSC 91













REPORTABLE
(83)


Judgment
No. SC. 91/05


Civil
Appeal No. 343/03








KUDZAI
MUNYIKWA v





(1)
ANNA MAPENZAUSWA (2) THE DEPUTY SHERIFF








SUPREME
COURT OF ZIMBABWE


CHEDA
JA, MALABA JA & NDOU AJA


BULAWAYO,
NOVEMBER 28, 2005 & MARCH 30, 2006








E
Marondedze
, for the appellant





Ms
R Hanzi
, for the first respondent





No
appearance for the second respondent





CHEDA
JA: The appellant in this case was married to Kundai Munyikwa
(“the appellant’s former wife”). They divorced
at the High
Court and an order was made concerning their matrimonial property.
That divorce order was not filed with the papers
on record.






However,
it is not disputed that part of that order was that their matrimonial
home was to be sold to best advantage and the proceeds
to be shared
between the appellant and Kundai Munyikwa.





It
was alleged that problems were encountered regarding the arrangements
to sell the house. As a result, the appellant’s former
wife,
instead of enforcing the divorce order, applied to the High Court for
another order, seeking almost the same relief granted
in the divorce
order. On 16 May 2002 the High Court issued an order, which
reads as follows:






“(1) Rodor Properties (Pvt) Ltd
be and is hereby authorised to and directed to carry out a valuation
of stand 3087 Emakhandeni
Township of stand no. 1
Emakhandeni Township situate in the district of Bulawayo and (which)
is 330 square metres.







(2) It advertises the property
and sells it for the best offered price.







(3) It pays to the applicant (the
appellant’s wife) a half share of the net proceeds of sale.







(4) It pays to the applicant her
half share of the rental calculated at the rate of $3 000.00
(three thousand dollars) per month
from the 4
th
day of June 2001 to date of transfer.







(5) The Deputy Sheriff be and is
hereby authorised and directed to sign all necessary documents to
effect transfer of the said immovable
property to the purchaser.







(6) The respondent pays the costs
of this application on a client and attorney scale.”






It
is common cause that the property was eventually sold to the first
respondent. However, the sale did not comply with the above
order.







Instead, an employee of Rodor
Properties (Pvt) Ltd (“the employee”) inspected the house and,
according to his affidavit, by
merely looking at it from the house he
valued it. From this outside look of the house, he valued it at
$1 500 000.00
(one million five hundred thousand dollars).
He gave this price as the current market value of the property.
About twelve days
later the employee says he got a buyer for that
price and he drew up an agreement of sale.







It is common cause that the
property was not advertised, as was required by the court order. It
is not stated how the first respondent
came to know about the
property.







It is not even suggested that
there were other offers, out of which it could be said that the first
respondent’s offer was the
highest. It is possible that it was
the only offer. Without advertising and getting different offers,
it cannot be said that
the first respondent’s offer was the best.







Accordingly, the sale, having
been done contrary to the provisions of the High Court order, was
certainly not proper. It was therefore
not proper to order that the
house be transferred to the first respondent, as the sale to her was
a nullity.







Court orders are made so that
they can be complied with. The order of the High Court made on
16 May 2002 had neither been
set aside nor appealed against.
The High Court cannot be used to enforce a sale that was carried out
contrary to the provisions
of a lawful order.







In view of the above, the sale
of the property to the first respondent cannot be allowed to stand.







The suggestion that there was
collusion between the appellant’s former wife and the first
respondent is not supported by evidence
sufficient to persuade me to
make such a finding. It is possible that the first respondent may
not have known the details of the
order that led to the sale. I
therefore do not find it just to order costs against her.







It is ordered as follows –






(1) The appeal succeeds to the
extent that the judgment of the court
a quo
made in case no. HB 110/2003, ordering transfer of the property
to the first respondent, is set aside.







(2) Rodor Properties (Pvt) Ltd is
ordered and directed to resell the property in accordance with the
provisions of the court order
in case no. HB 2960/01 dated
16 May 2002.







(3) There be no order as to
costs.














MALABA
JA: I agree.















NDOU AJA: I agree.














Marondedze
& Partners
,
appellant's legal practitioners



Kwenda & Associates,
first respondent's legal practitioners