Chitotombe v Chitotombe and Another (310 of 2024) [2024] ZWHHC 310 (24 May 2024)

1 HH 310-24 HCH 7906/23 PORTIA CHITOTOMBE versus PROSPER CHITOTOMBE and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 7 May 2024 & 24 May 2024 Opposed Matter S Dizwani & N Makoni, for the Applicant P M Sagwete, for the 1st respondent No appearance for the 2nd respondent MAXWELL J: This is an application for the placement of caveats on immovable properties. Applicant states in her founding affidavit that the First Respondent is her husband. She seeks an order directing the Second Respondent to place caveats on three immovable properties that she claims form part of her matrimonial estate with the First Respondent. The properties are: 1) An undivided share in 0,0298 percent being share number 2886 of Lot J of Borrowdale, Harare held under Deed of Transfer 7150/22. 2) Stand Number 13015 Mbizo Extension, Mbizo, Kwekwe registered under Deed of Transfer 267 of 1999. 3) Stand Number 40 Buma Road, Newtown, Kwekwe, also known as the remainder of Subdivision A of Subdivion A of Judds Farm registered under Deed of Transfer 2582 of 2002, situated in the district of Kwekwe. The Applicant stated that she and First Respondent (the parties) are in the process of negotiating a divorce settlement. The divorce proceedings are likely to be instituted in Australia. The parties have been married since 1994 having married under customary law before upgrading the marriage to a civil marriage in 2000. Both parties were gainfully employed before relocating to Australia in 2006. Through their joint efforts they acquired the property listed in 2 and 3 above. HH 310-24 HCH 7906/23 During their stay in Australia, they continued to invest back home and acquired more property including the one listed in (1) above. She never intended for First Respondent to have the properties registered in his name only. However, the First Respondent cunningly excluded her name from being registered on the properties. Irreconcilable difference caused them to separate. She was advised that in Australia, before divorce proceedings for a final decree are instituted, property sharing is a pre-requisite. The parties are therefore negotiating the stage of property sharing with help from legal counsel. The conduct of First Respondent upon separation made her realise that his intention all this long had been to exclude her from co- owning the properties and financially prejudicing her. He stopped advising her of how rentals from the properties were utilised and also stopped giving an allowance to Applicant’s mother as was previously done. He also boasted that she has no right to benefit from the rental proceeds because all the properties are registered in his name and belong to him alone. Applicant stated that the First Respondent’s conduct left her exposed to financial prejudice and she fears that she may lose out substantially on the properties. She therefore seeks an order that caveats be placed on the deeds of the immovable properties until they are shared and the parties’ marriage dissolved. The application was opposed by the First Respondent. In his opposing affidavit he stated that there was improper service of the process as Applicant did not seek leave to serve the process outside Zimbabwe. On the merits, he stated that no divorce proceedings have been instituted. He disputed being domiciled in Australia and that the property in issue is matrimonial property. He pointed out that as the property in Borrowdale is jointly owned, each party is entitled to (50) percent and Applicant cannot bar him from disposing of his (50) percent share. He disputed withholding any rentals. In his view, the application is based on non-existing fears and the Applicant’s interest in the sharing of the property will arise in the future when divorce proceedings are instituted. To him, the application is premature as the divorce proceedings may not even be instituted. At the hearing of the matter counsel for the First Respondent raised three preliminary points. 1) Improper Service Mr Sagwete submitted that the First Respondent is based in Australia and Applicant ought to have applied for leave to serve process outside the jurisdiction of this court in terms of rule 17(1) of SI 202 of 2021. HH 310-24 HCH 7906/23 The certification of service indicates that service was effected by electronic mail on 14 December 2023. In response Mr Dizwani submitted that Applicant complied with this court’s rules as amended by SI 156 of 2023. He stated that there are two addresses of service and the Applicant chose to serve through electronic email. Further, the purpose for service is not just to follow the rules but to give effect to section 69 of the Constitution thereby protecting the right to a fair hearing. He also stated that the purpose of service is to give Respondent an opportunity to respond and Respondent had done so. In addition, Mr Dizwani referred to the fact that Applicant had stated that Respondent had taken leave and was in Zimbabwe at the time of service therefore there was no need for edictal citation. Respondent filed his Notice of Opposition on 18 December 2021, four days after service. He stated in the Opposing Affidavit that Applicant ought to have engaged the Sheriff even in service through electronic mail. I do not agree. Rule 15(4) of SI 202 of 2021 lists the process which must be served by the Sheriff, i.e. “… summons, all notices of set down, writ, warrant or court order ….” Clearly a court application is excluded. It falls under rule 15(5) which allows service of other process by the Sheriff, or by the party concerned or his or her legal practitioner or agent. It was proper for the Applicant’s counsel to serve the Respondent through electronic mail. That Respondent was in Zimbabwe at the time of service was not disputed. Mr Dizwani’s response was just to state that the founding affidavit is silent on that fact. He also argued that if Respondent was in Zimbabwe he ought to have been served at an address in Zimbabwe. That argument is meaningless where service through electronic mail was effected. I find no merit in the first preliminary point. 2) Disputes of Fact Mr Sagwete submitted that there is a dispute as to whether or not the property in question is matrimonial property. He referred to the case of Supa Plant v Chidavaenzi HH 92/09 and that of Jirira v Zimcor Trustees Ltd & Anor 2010 (1) ZLR 375 as authority that where there are disputes of fact it is incompetent to proceed by way of application. Mr Dizwani stated that there are no material disputes of fact in this matter as the court is not being called upon to decide the proprietary rights of the parties. I agree. Whether or not the property in question is matrimonial property is the reason why Applicant is seeking the placement of a caveat. A HH 310-24 HCH 7906/23 caveat is a formal notice that is filed to protect one’s interests in a legal matter. It is often used in property law as a simple way of warning potential buyers, sellers, or lenders, indicating that there is an ongoing issue that needs to be addressed before the property can be freely dealt with. The applicant stated her interest in the property based on marriage. I am persuaded that the disputes of fact in this case justify the application before me. 3) Improperly introducing new evidence through the answering affidavit Mr Sagwete argued that the Deed of Settlement attached to the Answering Affidavit ought to have been attached to the Founding Affidavit. Further, the Applicant also mentioned for the first time in the Answering Affidavit that she installed a wire fence and dura wall and that the First Respondent has no opportunity to respond to the new evidence. Mr Dizwani disputed that new evidence was introduced through the Answering Affidavit. He stated that no fresh facts were submitted and that Applicant was simply confirming what was in the Founding Affidavit. In Mangwiza v Ziumbe N. O. & Anor 2000 (2) ZLR 489 it is stated: “It is well established that in application proceedings, the cause of action should be fully set out in the founding affidavit and that new matters should not be raised in an answering affidavit.” I find that all the documents that Applicant attached to the Answering Affidavit are improperly before the court. They ought to have been referred to and attached in the Founding Affidavit. Counsel for the Applicant sought to justify the attachments on the fact that the Respondent was making bare denials to material facts. Applicant ought to have set out her case in such detail as to obviate the making of bare denials. I also find that para 8.2 of the Answering Affidavit contains fresh facts that were not in the Founding Affidavit. That is improper. Accordingly para 8.2 of the Answering Affidavit is struck off the record. This point in limine has merit but does not dispose of the matter. On the merits, Mr Makoni submitted that the Applicant satisfied the requirements for the placement of caveats on the properties.  He referred to the case of Stenhop Investments (Pvt) Ltd v Blessing Mukoko & Anor HH 132/18 in which it is stated: HH 310-24 HCH 7906/23 and “An Applicant who applies to place a caveat over a property must show that he has an interest in the property concerned. The interest claimed must exist at the time the caveat is lodged should not be an interest that arises in the future. The caveator must show that his claim arises from some dealing with the registered property. It is only those interests that are connected to the land that can be subject of a caveat. The interest must attain to the property, thus, a person seeking to place a caveat over a property is required to show that he has a caveatable interest to lodge the caveat.” In the Founding Affidavit Applicant narrated her contribution towards the properties during the subsistence of her marriage to the First Respondent and that the parties are on separation and have agreed to formally dissolve the marriage. She stated that the respondent might dispose of the properties before they are shared. Mr Sagwete disputed that Applicant has a caveatable interest. He stated that the parties are married out of community of property. Further it will be prejudicial to the Respondent to be restricted from dealing with his property. According to him, the interest would only arise as and when the divorce proceedings are instituted. I am persuaded that Applicant has established a caveatable interest in the matter. Section 7 of the Matrimonial Causes Act [Chapter 5:13] empowers the court to divide, apportion, or distribute assets of the spouses on granting a decree of divorce, judicial separation, nulling of marriage, or at any time thereafter. The court is empowered to order that any asset be transferred from one spouse to the other. It is therefore clear that before such an order is granted, each spouse can have an interest in assets registered in the other’s name, as in casu. Applicant argues that she has an interest even in those assets registered solely in First Respondent’s name. There is a dispute as to that fact. I am of the view that until that dispute is resolved, Applicant has a caveatable interest. Mr Sagwete submitted that there is a possibility that the parties do not divorce as they are still negotiating. In my view, there would be no prejudice to the First Respondent if that were to happen. The caveat can be removed once the reason for its placement ceases to exist. In the Stenhop Investments (Pvt) Ltd case (supra) it is stated that the caveator does not have to show that the other party is about to dispose of the property. It is trite that when parties are equal shareholders in property acquired during the subsistence of a marriage, it does not follow that at distribution they are awarded equal shares. There might be justification for taking away a portion of one’s share to place the spouses in the position they would have been in had a normal marriage relationship continued. See Takapfuma v Takapfuma 1994 (2) ZLR 103. I am therefore persuaded that the application has merit. The following order is made: HH 310-24 HCH 7906/23 1) The application for the placement of caveats be and is hereby granted. 2) The Second Respondent be and is hereby ordered to place caveats on the title deeds of the following parties: a) An individual share in 0,0298 percent being share number 2886 of Lot J of Borrowdale, Harare, held under Deed of Transfer 7150/22. b) The remainder of Subdivision A of Subdivision A of Judds Farm registered under Deed of Transfer 2582 of 2002 situated in the district of Kwekwe. c) Stand Number 13015 Mbizo Extension, Mbizo, Kwekwe registered under Deed of Transfer 267 of 1999. 3) The caveats placed on the immovable properties described above shall be in force until a final decree of divorce between the Applicant and the First Respondent has been issued. 4) Each party shall bear its own costs. Absolom and Shepherd Attorneys, Applicant’s legal practitioners Masawi and Partners, First Respondent’s legal practitioners