The parties were previously married and divorced on 16 June 1995. Their proprietary rights were governed by a Consent Paper which was made an order of court. The Consent Paper provided that: (1) the appellant would receive immovable property (Stand Number 1494 Khumalo) subject to a mortgage bond of $70,000, while the respondent would pay the balance of $98,000 on the total mortgage of $168,000; and (2) the respondent would retain the appellant on his medical aid scheme. After divorce, the parties split the mortgage bond into two separate accounts with the concurrence of the Building Society, and each paid monthly instalments for about 20 months without complaint. The appellant then demanded that the respondent pay off the balance on his account immediately so the property could be transferred to her. The respondent refused, maintaining he was entitled to discharge his liability through monthly instalments. Additionally, the appellant demanded a medical aid card, but after the divorce the Medical Aid Society informed the respondent that the appellant was no longer entitled to benefits as the scheme only covered current spouses of employees, not former spouses.
The appeal was dismissed with costs. The High Court's judgment granting the respondent's application for a declaratory order and dismissing the appellant's cross-application was upheld.
The binding legal principles established are: (1) Where parties agree to divide responsibility for a mortgage bond without specifying the manner of payment, monthly instalments are permissible and lump sum payment will not be implied merely from the use of the phrase 'subject to the bond' - the parties' subsequent conduct of creating separate accounts and paying monthly instalments for an extended period confirms this interpretation. (2) A contract (including one made an order of court) is void if at the time it was concluded it was impossible of performance, provided the impossibility is: (a) absolute as opposed to probable; (b) absolute as opposed to relative (i.e., generally impossible, not just impossible for one party); (c) not caused by the fault of either party; and (d) there is no contrary common intention of the parties. (3) The phrase 'subject to' when used in relation to property transfers means that the transferee takes the property together with the burden specified, but does not necessarily connote the manner or timing of discharging that burden unless expressly stated.
Sandura JA made a non-binding observation that despite dismissing the cross-application regarding the medical aid card, the appellant could potentially make an application for the amendment of paragraph 4 of the Consent Paper in order to remove the impossibility of performance if so advised by her legal practitioner. This suggestion indicated a possible alternative remedy available to the appellant to address the medical aid issue, though it was not part of the ratio decidendi as no such application was before the court.
This case is significant in Zimbabwean (and potentially South African) jurisprudence as it clarifies important principles regarding: (1) the interpretation of consent papers made orders of court in divorce proceedings, particularly regarding property settlement arrangements; (2) the principle that parties' subsequent conduct can be used to interpret ambiguous contractual provisions; (3) the application of the doctrine of impossibility of performance to contractual obligations, particularly those incorporated into court orders; and (4) the comprehensive requirements for establishing that a contract is void due to impossibility of performance (absolute vs probable impossibility, absolute vs relative impossibility, absence of fault, and no contrary common intention). The case demonstrates that courts will not imply obligations (such as lump sum payments) that are not expressly stated in settlement agreements, and that agreements to do something that is legally impossible (such as providing benefits under a scheme that excludes the beneficiary) will be declared void.