Barbara Masiwa v (1) Roadnet Transport (Pvt) Ltd (2) Donald Nyasha Masiwa

The appellant and second respondent were formerly married. Upon divorce, the High Court made an order concerning their immovable property. On appeal to the Supreme Court, the appellant was awarded 25% of the net value of the matrimonial house, with her former husband retaining the house after paying her the 25% share. When the former husband failed to buy her out, the house was advertised for sale by an estate agent appointed by the parties. An initial offer of $1.7 billion was made based on a valuation of $1.8 billion. The appellant initially accepted this price but later showed reluctance. She repeatedly claimed there were higher offers, first of $2.2 billion and then $2.4 billion. When the first respondent (purchaser) agreed to match the $2.4 billion price, the appellant still refused to sign the agreement of sale. The first respondent sought a court order compelling the appellant to accept the price and sign the agreement. The High Court granted the order, and the appellant appealed.

• Whether the appellant had accepted the first respondent's offer to purchase the property
• Whether the appellant had entered into a binding agreement with the first respondent
• Whether the first respondent had discharged its onus of proof
• Whether the appellant had the right to make an offer to purchase the property herself
• Whether costs on a higher scale were appropriately awarded

The appeal was dismissed with costs.

Where immovable property is being sold pursuant to a court order following a matrimonial property dispute, and the sale is being conducted through an authorized estate agent based on an independent and uncontested valuation: (1) a party who has been awarded a percentage share of the property cannot frustrate the sale by repeatedly claiming there are higher offers without substantiating those claims or producing actual purchasers; (2) if a party wishes to purchase the property themselves after another party has failed to exercise a right of first refusal, they must make their offer through the authorized estate agent and demonstrate they have the financial means to complete the purchase; (3) where a party seeking the sale has agreed to match prices suggested by the objecting party, the objecting party cannot reasonably refuse to proceed with the sale at the price they themselves set; (4) the consent of the party with a minority share may not be crucial to complete the sale where the process is conducted fairly pursuant to court order and based on proper valuation.

The Court made obiter observations that: (1) while the lower court found the appellant had no right to purchase the house, this was incorrect - once the former husband failed to exercise his right to buy her out, the appellant could have purchased the property through the estate agent if she had the funds; (2) Mrs Mtetwa's suggestion that the appellant seek a variation of the court order to allow her to purchase may not have been strictly necessary, though the appellant failed to follow this advice and never made an offer to the authorized estate agent; (3) the question of whether the appellant entered into a binding contract with the first respondent was irrelevant given that the sale was being conducted by the estate agent pursuant to court order rather than through direct negotiations between the parties; (4) the appellant's actions in repeatedly claiming higher offers were aimed at stopping the first respondent from purchasing the property rather than genuinely seeking the best price or intending to purchase it herself.

This case clarifies important principles regarding the sale of matrimonial property following divorce in Zimbabwe (though cited as potentially reportable for South African law reference). It establishes that where property is ordered to be sold pursuant to a court order following divorce, and one party has failed to exercise a right of first refusal, the sale must proceed through authorized channels (estate agents) and a party cannot frustrate the sale by making unsubstantiated claims of higher offers. The case also addresses the balance between protecting a party's financial interest in obtaining the best price for their share while preventing abuse of process to obstruct legitimate sales. It reinforces that court-ordered sales of matrimonial property are conducted in accordance with the court's authority, and individual consent may not be required where the process and pricing are fair and based on independent valuations.