Bonang Fakazi Dube v Ekhetheleng Roselyn Dube (nee Noko)

The parties were formerly married and divorced in terms of a judgment by Justice Mathonsi on 23 February 2018 (HB 33-17). The divorce order awarded the matrimonial home (Stand No. 598 Scone Drive, Killarney, Bulawayo) to both parties in equal shares. The order provided that: (1) the property be valued by estate agents appointed by the Registrar; (2) each party be granted the right to buy out the other within three months following evaluation; failing which (3) the house would be sold by estate agents to the best advantage with proceeds shared equally. The Registrar-appointed estate agents (Knight Frank) valued the property at US$65,000, which both parties rejected. The parties then agreed to market the house through various estate agents and eventually received an offer of US$140,000. The applicant wished to accept this offer and sell the property as per the court order. However, the respondent (who resides in the United Kingdom while the applicant lives in the property) reneged on the agreement, stating she wanted to "work harder" towards buying out the applicant instead. The applicant brought this application to compel the sale.

• Whether a party can unilaterally renege on an agreement to sell property when that sale is in accordance with a court order
• Whether parties can novate or vary a court order by agreement without formally applying to amend it
• The extent to which a court may revisit, expand or supplement its own previous orders
• The binding nature and proper interpretation of court orders in matrimonial property division

1. Respondent ordered to sign all necessary papers for the sale and transfer of Stand No. 598 Scone Drive, Killarney, Bulawayo, which sale and transfer shall be to the highest offeree at or above US$140,000 as may be secured by the first of the following estate agents: John Pocock and Company (Pvt) Limited, Ken Estate Agents, Rodor Properties (Pvt) Limited, and Bulawayo Real Estate Agents, failing which the Deputy Sheriff is authorized to sign all the said papers. 2. Respondent to pay the costs of the application.

Court orders must be complied with as written and cannot be varied, novated or reinterpreted by agreement between parties without a formal application to amend them. Once a court has pronounced a final judgment or order, it becomes functus officio and has no authority to correct, alter or supplement it except for accessory or consequential matters inadvertently omitted. Where a court order provides sequential or conditional options, failure to comply with or rejection of an initial option automatically triggers the subsequent option, and parties cannot selectively apply or mix provisions to their advantage. A subsequent court hearing a related dispute is bound by the terms of the initial court order and cannot grant an order that conflicts with a previous order without that order being appealed, set aside or reviewed by a superior court.

The court made observations cautioning judges to take care and guard against the growing temptation by legal practitioners to drag them into revisiting their own or colleagues' earlier judgments or court orders. The court also characterized the respondent's request for the applicant to assist her obtain mortgage finance as "the height of absurdity," commenting that it is strange to expect one party to help the other party obtain funds to buy them out and then seek a court order compelling such assistance. The court noted that the respondent appeared to behave as if she had a monopoly on the first option to buy out the applicant, when in fact the court order gave no such monopoly to either party.

This case is significant in Zimbabwean law for reinforcing the binding nature of court orders and the principle that parties cannot unilaterally vary or novate a court order without formally applying for its amendment. It emphasizes the finality of court judgments and the functus officio doctrine, preventing courts from being asked to revisit their own or other judges' previous orders. The case also clarifies the interpretation of sequential/conditional clauses in court orders, particularly in matrimonial property division contexts, establishing that when parties fail to comply with an initial option, subsequent provisions automatically come into effect. It serves as an important reminder to legal practitioners about the sanctity of court orders and proper procedures for seeking variations.