Habis v Macheka (223 of 2025) [2025] ZWHHC 223 (28 March 2025)

HH 223-25 HCH 1136/24 BEATA HABIS versus BONIFACE MACHEKA HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 3 December 2024 & 28 March 2025 Opposed Matter-Variation of Consent Order P Gomo, for the Applicant L Madhuku, for the Respondent MAXWELL J: On 28 February 2023, Applicant and Respondent signed a Consent Paper, which was made part of a divorce order granted in HCH 6378/21. The parties had been married under the then Marriage Act [ Chapter 5:11], now the Marriages Act [ Chapter 5:17], on 6 August 1988. On 9 February 2023, a decree of divorce was issued on the following terms; “1. A decree of divorce be and is hereby granted.

2. The consent order (sic) signed by the parties on the 28 th day of February 2023 shall regulate issues of spousal maintenance and sharing of property.

3. Defendant shall bear the costs.” On 26 February 2024, Applicant approached the court seeking a variation of the consent

Order

She stated in her founding affidavit that the basis of her application is s 9 of the Matrimonial Causes Act [Chapter 5:13] (The Act), which states that; “9 Variation, etc, of orders Without prejudice to the Maintenance Act [ Chapter 5:09 ], an appropriate court may, on good cause shown, vary, suspend or rescind an order made in terms of section seven, and subsections (2)(3) and (4) of that section shall apply, mutatis mutandis , in respect of any such variation, suspension or rescission.” The Applicant further stated that she also relies on s 81(2)(3) of the Constitution of Zimbabwe Amendment No. 20 of 2013 (the Constitution). In dealing with House Number 127 Carrick Creagh, Helensvale, Borrowdale, Harare (the property), paragraphs 11 to 15 of the Consent Paper provided as follows:

HH 223-25 HCH 1136/24 “11. The parties have agreed that stand Lot 1 of subdivision 52 of Helensvale held under Deed of Transfer Registered Number 15/2014 dated 7 th January 2014 also known as house number 127 Carrick Creagh, Helensvale, Borrowdale be donated into a family trust which shall be registered by Messers (sic) Mugiya and Muvhami Law Chambers in which both the plaintiff and defendant shall be founders, trustees and beneficiaries.

12. The parties have agreed that the above immovable property shall be transferred into the name of the Trust and both parties shall sign all the necessary documents to effect the transfer of the properties within 30 days from the date the order is granted.

13. Should any of the parties fail, refuse, or neglect to do so within the stated period, the Sheriff is hereby directed to sign all such documents as are necessary to effect all the transfers for the properties and registration of the trust deed.

14. The parties have also agreed that the plaintiff shall exercise usufruct rights for life on granting of this order on stand Lot 1 of subdivision 52 of Helensvale held under deed of transfer registered number 15/2014 also known as house number 127 Carrick Creagh Helensvale, Borrowdale.

15. The parties have further agreed that the defendant shall be responsible for maintaining the property, which shall be done through the plaintiff, who will have exclusive use of the property. The defendant shall maintain the property within a month of being notified of the defects.” Applicant now seeks that the property be sold and she be given her 50% share. She stated that there is good cause and changed circumstances that influenced her to make the present application. She averred in her Founding Affidavit that she has been living in misery due to the way the Respondent is handling the sharing of property. She stated that the house she is living in has become a burden as it has become dilapidated. She further stated that for the past eleven (11) months, the Respondent has failed to raise the transfer costs and necessary taxes to pass the transfer. In her view, the proposed trust will never exist as the relationship between the parties has degenerated to a more depressing relationship. She categorically stated they “will never agree on the trustees, beneficiaries and more so the terms thereof of the trust.” She attached pictures to show the state the house is in. She pointed out that she is currently not working and has no income to supplement or maintain the house and that it was agreed that it is the Respondent’s responsibility to do so. In paragraphs 22 -23 of the Founding Affidavit, she stated: “22. As a result of the above I feel as if I am still married to the Respondent. The clause which puts the property in trust and gives the usufruct right does not serve any purpose due to Respondent’s conduct. Same cannot be cured as the inconcilable difference deepen to an extent that to co-exist in a trust will only cause depression and does not create a break from the past.

23. The Applicant simply wants to move on with her life in a peaceful manner and it is therefore her prayer that she be awarded 50% of house number 127 Carrick Creagh Helensvale Borrowdale, Harare.”

HH 223-25 HCH 1136/24 The Respondent opposed the application. In the Opposing Affidavit, he stated that the Consent Paper and resultant order was a result of protracted negotiations and discussions. He pointed out that consequences for willful breach of obligations in the Consent Papers are laid out therein. He also pointed out that there is no relevance of the mentioned sections of the Constitution to the matter at hand and the relief sought by the Applicant. He disputed the existence of compelling reasons or changed circumstances to warrant the variation of the Consent Paper. He confirmed his obligation to maintain or repair the house. He, however, indicated that he had not received any request to do so since 19 December 2023. He further indicated that the Trust Deed was drafted before the Consent Paper was signed. He disputed that Applicant is living in misery on the basis that she received her share of other assets she can dispose of and get income. He confirmed the non-payment of transfer costs and taxes to pass transfer and stated that it was a result of him not affording to do so. Respondent stated that the parties agreed on the name of the trust, that they will be trustees and can each incorporate an equal number of additional trustees, and that the beneficiaries will be children of their two sons. He stated further that the Applicant’s legal practitioners are ready to have the deed signed and lodged for registration but have put a condition that he has to pay all their legal fees for the divorce matter first. He indicated that he is about to finish paying the legal fees. He disputed the existence of disagreements. Concerning repairs to the property, he stated that he was ready to inspect with contractors and attend to the repairs. He disputed being responsible for the City of Harare bills and the cost of maintaining the yard, for example, cutting trees, firewood, and the grass. In his view, the Applicant wants to frustrate him by having the house sold as it will deprive his grandchildren of the property. He insisted that the Consent Paper has provisions that deal with any differences or breaches. He prayed for the dismissal of the application with costs on an attorney and client scale. In the Answering Affidavit, Applicant conceded that the provisions of the Constitution she referred to had no relevance and removed them from the application. She disputed that the Consent Paper had remedies where she suffered a more depressing relationship. She insisted that there are disagreements as to who should maintain the yard and pay city council bills. In her view the proposed trust will never succeed as the parties do not agree on most things. She indicated that Respondent should have attached the Trust Deed he alleged to have been prepared

HH 223-25 HCH 1136/24 and signed. She stated that she did not sign any document in relation to the trust. She submitted that she called the Respondent several times on the need for the repairs to the property. She pointed out that the need to repair did not arise after the granting of the divorce but prior. In her view, the Respondent cannot afford to maintain the house; therefore it is better that it be sold whilst it still has value. She disputed that any conditions were imposed for the registration of the trust and challenged the Respondent to prove such conditions. She invited the Respondent to inspect the house and insisted that he was responsible for paying the utility bills. She pointed out that the grandchildren do not own the house, the trust has not been registered, and the parties still jointly own the property. Before the matter was argued, the counsel for the Respondent referred the court and counsel for the Applicant to the matter of Maria Alice Da Silva Neves v Jose De Brito and Another HH 405/21(the Neves judgment). On the day of the hearing, counsel for the Applicant stated that the cited matter was distinguishable. Counsel for the Respondent submitted that there is no basis for this court to depart from the position stated in the Neves judgment. Every case depends on its facts. The Neves judgment related to a property that was never co-owned. The Applicant therein never had real rights. She was simply apportioned shares without being conferred with any form of joint ownership of the title of the property. In casu, the Applicant is a registered co-owner of the property. In Conveyancing in South Africa 4ed at p 118, the learned author Jones states; “Where transferees acquire in equal shares it need not to be stated in the deed that they acquire ‘in equal shares’ as this fact is presumed in the absence of any statement to the contrary.” Applicant, therefore, owns a 50% share in the property. The second dinstinction is that in the Neves judgment, Applicant had approached the court after the property had been sold by the registered owner. In casu, the property is still registered in the names of both parties. Respondent argued that the property no longer belongs to the parties as they donated it to the family trust. The existence of the trust was never proved. Respondent submitted that Applicant’s lawyers drafted the deed of trust but he did not tender a copy thereof. Applicant was adamant that such a document exists. Despite being challenged to produce the documents Respondent did not. It is trite that he who makes a positive assertion bears the onus of proving the facts so asserted. See Pillay v Krishna & Anor 1946 AD 946,

HH 223-25 HCH 1136/24 Astra Industries Limited v Peter Chamburuka SC 258/11 and Nyahondo v Hokonya 1997(2) ZLR

457. In the present matter, the onus was on the Respondent to prove the existence of the trust on a balance of probabilities. The Respondent failed to discharge the onus upon him. The question then arises whether the parties donated the property to the family trust. Black’s Law Dictionary defines a donation as follows; “Donatio. A gift. A transfer of the title to property to one who receives it without paying for it. The act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another person, without any consideration.” In the case of Goto v Goto and Others HH 504/23, reference is made to the Kenyan Case of Reginah Nyambura Waitathu v Tarcisio Kagunda Waithatu and Others [2016] ekLR in which the three requirements of a donation inter-vivos are listed. They are a) The intention to make the gift b) The acceptance of a gift by the donee c) Delivery of the subject matter to the donee. Whilst the facts of this matter show that the Applicant fulfilled the first requirement as evidenced by the Consent Paper, I am not persuaded that the other two were met. The nonexistence of the trust makes it impossible for the second and third requirements to be fulfilled. I am aware of the fact that a donation is not invalid just because it was not registered or notarially executed. Section 10 of the General Law Amendment Act [Chapter 8:07] provides that; “10. Amendment of Law in respect of formalities relating to donations. No contract of donation shall be invalid solely by reason of the fact that it is not registered or notarially executed.” I am of the view that the above law applies where an agreement has been reached between the donor and the donee on the transfer of the property. The words of PATEL J (as he then was) in Todd v Nhavira and Others HH 67/11 are apposite. He stated; “In the normal course of events, the donation of immovable property and its transfer are effectuated by the following legal instruments: an agreement or deed of donation, signed by the donor and the donee, a deed of transfer embodying two causae, one of donation and one of acceptance; two powers of attorney, one empowering the conveyancer to pass transfer in terms of a donation and another empowering him to accept a conveyance of the donation, the corresponding declarations of value, one for the donation and the other for its acceptance, for the purposes of levying stamp duty. Taken together, these are the requirements of standard conveyancing practice and procedure. See Jones The Law and Practice of Conveyancing in

HH 223-25 HCH 1136/24 South Africa at pp 329-330. Obviously, all of the requisite instruments must be duly signed by the relevant parties or their authorized agents.” In the absence of a donee, there is no receiving of the gift, there is no transfer of title and possession from donor to another person. The fact that the General Law Amendment Act cited above refers to a contract of donation presupposes the existence of donor and donee and them reaching an agreement. I find that in the absence of the donee, no donation ever took place. The Respondent argued that the Consent Paper contains consequences for wilful failure to adhere to its provisions. I believe he was referring to paragraph 13 of the Consent Paper, which authorizes the Sheriff “to sign all such documents as are necessary to effect all the transfers for the properties and registration of the trust deed.” It is important to note that the mandate given to the Sheriff was for signing documents. The Applicant argued that no trust documents exist. Respondent stated that they exist but did not prove their existence. I am of the view that paragraph 13 of the Consent Paper could only be resorted to where the trust deed was prepared and signed, and one party refuses to sign for the transfer of the property. The Sheriff’s mandate did not include drafting the Deed of Trust. Applicant stated that the parties would never agree on the trustees, beneficiaries, and terms of the trust. Those areas of disagreement cannot be addressed by the mandate given to the Sheriff. Had Respondent produced the Deed of Trust that he alleged was prepared, the court would have been put in a position of assessing whether or not agreement had been reached on the issues highlighted by the Applicant. I find that the circumstances of this case are such that it was impossible for the services of the Sheriff to be engaged to effect the transfer of the property. Consent orders are designed to be final, but as stated above, every case depends on its own set of facts and circumstances. In the Neves judgment, it is stated that; “Where parties have reached settlement and their agreement has been incorporated as an order of the court, it is only in relation to maintenance in terms of s 59 of the Matrimonial Causes Act that the court can be re-approached thereafter for variation of an order. In other words, variation cannot be sought on proprietary consequences in the absence of a permissive clause in the agreement allowing the Consent Paper to be revisited on proprietary consequences or the parties agreeing to the variation.

[9] The South Africa case of Ex parte Petrus Jacobus Le Grange & Yolanda Le Grange [2013] 4 All SA 41 examined the import of South Africa’s similarly worded s 8 (1) of Divorce Act 70 of 1979 which allows only for variation of maintenance. “The means that the court is excluded from ordering a variation of any settlement relating to the assets of the parties, and for the parties, in the absence of an agreement to the

HH 223-25 HCH 1136/24 contrary, to seek such an order. This conforms with the policy underlying the notion of a “clear break ” or a “ once-and-for-all” settlement of the proprietary consequences of a divorce, aimed at bringing finality in relation to any issues arising therefrom, whereby allowing the parties to “put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.”

[10] Besides the clean break principle the rationale is quite straight forward. Such agreements will have been arrived at in accordance with what the parties t hemselves would have freely and voluntarily agreed should be the propriety consequences of their divorce. As stated in David Richard Kempen v Carol Kempen SC 14/2016 “Generally speaking, lawful agreements freely concluded by persons of competent capacity are sacrosanct and therefore enforceable at law without let or hindrance by courts of law and tribunals” And also “Our legal system pays great honor to the doctrine of sanctity of contract to the effect that lawful agreements are binding and enforceable by the courts. In Book v Davidson 1988