Joseph Chiroodza v Shineview Properties (Private) Limited t/a Bridges Real Estate and Anna Marange and Officer in Charge, Glen View Police Station N.O

### Preamble
1
HH321-13
HC 1885/13
Ref Case No. 5160/01
JOSEPH CHIROODZA
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JOSEPH CHIROODZA
versus
SHINEVIEW PROPERTIES (PRIVATE) LIMITED t/a BRIDGES REAL ESTATE
and
ANNA MARANGE
and
OFFICER IN CHARGE, GLEN VIEW POLICE STATION N.O

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 10 October 2013

OPPOSED APPLICATION

A.A. Debwe, for applicant
T. E. Mudambanuki, for 2nd respondent

CHITAKUNYE J. The applicant and second respondent lived together as man and wife for about 10 years. Certain unhappy differences arose as a result of which they could no longer continue staying together. On 4 June 2001, second respondent issued summons against applicant claiming, inter alia, an order that House No. 5465 Budiriro Township be declared her sole and exclusive property.

On 7 August 2002, this court ruled that a tacit universal partnership existed between the parties. The parties were then asked to lead evidence as to their respective contributions to the partnership.

A trial was conducted and on 15 January 2004 court made the following order:

1. The plaintiff is awarded one third of the open market value of the Budiriro property and one third of the open market value of the Mazda B1800.


2. The cost of evaluation of the two assets are to be borne as to 2/3 by the respondent and 1/3 by the applicant.

3. The assets are to be evaluated within 14 days of this order.

4. The respondent is hereby given the right to pay to the applicant the equivalent of her one third share of both assets within 60 days of the date of evaluation failing which each asset is to be sold by an agent to be agreed upon between the parties or failing such agreement, to be nominated by the Registrar of this Court, and the net proceeds shared as to 1/3 to applicant and 2/3 to the respondent.

On 13 February 2004 second respondent noted an appeal to the Supreme Court against the order of 15 January 2004. At that time second respondent was already out of time but did not apply for condonation of the late noting of appeal.

On 21 February 2012, the second respondent’s appeal was struck off the roll as it had been noted out of time without first applying for condonation of the late noting of appeal. Undeterred the second respondent thereafter applied for condonation of late noting of appeal. This application was dismissed by the Supreme Court on 29 March 2012.

At applicant’s request first respondent was appointed to evaluate the property in November 2012. The second respondent objected to the evaluation contending that the property is in the name of Ruth Optel and must first be registered in applicant’s and second respondent’s names before it can be evaluated.

As a result of second respondent’s attitude first respondent was unable to evaluate the property. The correspondence that took place led to Ruth Optel deposing to an affidavit in which she confirmed in no uncertain terms that she was not opposed to the enforcement of the court order.

In spite of all this second respondent insisted evaluation cannot be done till there is change of names. To enforce that view she would not allow the evaluator to visit the property.

Faced with this, applicant approached this court seeking an order that:-

1. The first respondent be and is hereby directed to value Stand 5465 Budiriro Township of Willowvale Estate, held by Ruth Optel under Deed of Transfer No. 2973/2001 within forty eight (48hrs) from the date of service of this order and file a sworn Valuation Report with the Registrar of this Court.


2. The third respondent is hereby directed to provide such police details as are necessary to enable the first respondent to comply with paragraph 1 hereof.

3. The second respondent or any person acting on her behalf shall not disturb, interfere, obstruct or in any manner whatsoever stop the first respondent from carrying out a valuation of the aforementioned property.

4. Second respondent’s legal practitioner of record shall pay the costs of this application de bonis propriis.

The applicant argued that there was no legal basis for the second applicant’s contention that the property must first be registered in her name and that of applicant before the court order can be enforced. The respondent on the other hand contended that for the property in question to be valued, it must first be transferred into the names of Joseph Chiroodza and Anna Marange.

The main issues include: - 1) what is the effect of the dismissal of second respondent’s appeal by the Supreme Court on this court’s judgment of 15 January 2004; and

2) Whether the property should first be registered in applicant’s and second respondent’s names before the Court Order of 15 January 2004 can be executed.

The circumstances of this case make sad reading for the legal profession. This typifies a situation where a legal practitioner assists a client to deliberately avoid implementation of a lawful court order without just cause. A perusal of the court order shows that the order was not conditional upon the property being registered in any particular names. The property had to be evaluated without regard to the name in which it was registered. It was thus mischievous for second respondent and her legal practitioner to insist on the transfer of the property before it could be evaluated. When second respondent’s counsel was asked for legal justification for his client’s contention he lamentably failed to find any. His submissions on this were simply incomprehensible.

The applicant asked for costs de bonis propriis. It is not disputed that second respondent’s challenge of this courts judgement evaporated when the Supreme Court dismissed her appeal. Second respondent knew she had to comply. Instead of complying with the court order she raised frivolous and vexatious excuses for resisting enforcement of the court order. Second respondent’s counsel instead of providing proper advice to client seemed to encourage the client to go on a wild goose chase. As a result of second respondent’s dilatory action to stave off execution of a final judgment, applicant has been compelled to approach court to secure what should have been obvious to second respondent and her legal practitioner.

I accept the submission by applicant’s legal practitioner that second respondent and her legal practitioner have displayed unreasonable conduct in the pursuit of a completely irrelevant issue regarding the execution of this court’s judgment. The contention by second respondent’s counsel that for the judgment of this Court dated 15 January 2004 to be conclusive, property in dispute must first be valued and for evaluation to take place the said property must be transferred into the names of Applicant and second respondent is preposterous and a sheer waste of time. When the appeal was dismissed by the Supreme Court the judgement of 15 January 2004 became final and had to be complied with. There is no legal requirement that for a property to be evaluated it must be in the names of the parties to a dispute. Clearly second respondents conduct was unbecoming and without foundation.

In the circumstances it is only befitting that costs be awarded on a legal practitioner/client scale as applicant has unnecessarily been put out of pocket. To show this court’s displeasure at second respondent’s legal practitioner’s conduct in misleading and ill-advising client when it ought to have been clear that second respondent had no defence it is in order that he be made to pay the costs.

Accordingly it is hereby ordered that:-

1. The first respondent be and is hereby directed to evaluate Stand 5465 Budiriro Township of Willowvale Estate, held by Ruth Optel under Deed of Transfer No. 2973/2001 within seven (7) days from the date of service of this order and file a sworn valuation Report with the Registrar of this Court.

2. The third respondent is hereby directed to provide such police details as are necessary to enable the first respondent to comply with paragraph 1 hereof.

3. The second respondent or any person acting on her behalf shall not disturb, interfere, obstruct or in any manner whatsoever to stop the first respondent from carrying out a valuation of the aforementioned property.

4. The second respondent’s legal practitioner of record shall pay the costs of this application de bonis propriis.


Debwe & Partners, applicant’s legal practitioners.
Mudambanuki & Associates, second respondent’s legal practitioners
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