The parties were previously married and divorced by court order on 2 September 1994. Their proprietary rights were governed by a consent paper which provided that each party would retain a 25% shareholding in Glengarry Trading Company (Pvt) Ltd. This arrangement confirmed an agreement made during the marriage whereby the respondent would transfer 25% of his shareholding to the applicant. In April 1985, the respondent presented the applicant with a share certificate purporting to represent one share (25% of the company), signed by him as director and company secretary. However, no shares were actually transferred to the applicant either at that time or subsequently. In 1999, the applicant's legal practitioner demanded transfer of the shares in terms of the consent paper, but the respondent failed to transfer them.
The court found in favour of the applicant and made an order in terms of the amended draft order filed of record, which would have compelled the respondent to transfer 25% of the company shares to the applicant or pay their value, provide full company accounts from 1 April 1985 to 31 December 1999, and pay all dividends to which the applicant would have been entitled as a 25% shareholder for that period.
A party to a consent paper incorporated in a divorce decree cannot escape obligations to transfer shares by claiming impossibility based on company constitutional restrictions when that party acted in bad faith and intended to deceive the other party in the distribution of matrimonial assets. A defence not raised in the pleadings but only introduced from the bar in heads of argument is belated and not properly before the court and will not be admitted for consideration.
The court observed that if both parties were truly aware of the impediments to share transfer described by the respondent, it would make no sense that they would draft and sign a consent paper in 1994 providing for the applicant to retain shares that were incapable of transfer. This observation supported the court's finding that the respondent's version was unreliable and that he had acted in bad faith.
This case is significant in Zimbabwean law (though this is a Zimbabwean judgment, not South African) as it demonstrates the court's approach to enforcing consent papers incorporated in divorce decrees, particularly regarding the distribution of matrimonial assets including shareholdings in companies. It establishes that parties cannot escape obligations under consent papers by relying on technicalities or raising defences belatedly from the bar. The case also illustrates the requirement of good faith in implementing agreements regarding matrimonial property distribution and the consequences of attempting to deceive a former spouse to gain unfair advantage in asset distribution.