The applicant and respondent were formerly married and divorced in proceedings presided over by Guvava J (as she then was) on 13 September 2007. They were each awarded a 50% share of their matrimonial home at Number 10 Save Road Mabvuku. The divorce order granted the applicant the first option to buy out the respondent's share, failing which the respondent would have the option to buy out the applicant's share. If both parties failed to exercise their options, the house was to be sold and net proceeds shared equally. Both parties failed to comply with the time frames specified in Guvava J's order regarding valuation and exercise of the buy-out options. Instead, they both attempted to buy out each other through unlawful assistance of court officials by paying money into court. Both parties still wanted to exercise the right to buy out the other but could not do so without varying the original order's time frames. Neither party wanted the house sold; both wanted an opportunity to buy out the other's share.
The court ordered: (1) No 10 Save Road Mabvuku to be valued by an independent evaluator appointed by the Registrar from the list of valuers, with costs shared equally; (2) Valuation to be done within two months of the order; (3) Applicant to have first option to buy out respondent's 50% share within one month of valuation; (4) If applicant fails, respondent to have right to buy out applicant's 50% share within one month from expiry of applicant's right; (5) If both parties fail to buy out the other, the property to be sold at best advantage with net proceeds shared equally; (6) Parties to equally contribute toward costs of previous valuations.
Where both parties to a matrimonial property division order have failed to comply with specified time frames and have both engaged in irregular conduct to circumvent the order, the court may vary the order by extending time frames to give parties a fresh starting point, while maintaining the substantive rights and sequence established in the original order. The party who is able to comply with the varied time frames will be entitled to the benefit of the order. When property valuations are too old to reflect current market value, a fresh valuation must be ordered before parties can exercise buy-out options.
The court observed that the original order of Guvava J was still capable of being implemented if the parties were willing to have the house sold and share the proceeds, but noted that both parties preferred to have an opportunity to buy out the other rather than have the property sold. The court also noted with disapproval that both parties had resorted to "underhand dealings with court staff" in attempting to buy out each other's shares, which conduct was not in compliance with the proper legal process.
This case demonstrates the Zimbabwean High Court's approach to varying matrimonial property orders where parties have failed to comply with original time frames. It illustrates the court's willingness to give parties a fresh opportunity to comply with the substance of an order while maintaining the original sequence of rights, rather than penalizing one party for non-compliance when both parties were equally at fault. The case also addresses the court's supervisory role in ensuring proper implementation of matrimonial property division orders and preventing unlawful manipulation of court processes by litigants and court officials.