Linet Ncube (Nee Khumalo) v Madodana Ncube

The parties were divorced on 12 June 2008 under case number HC 2909/07. The divorce order included Clause 6 which provided that the plaintiff (Madodana Ncube, the respondent in this application) would solely retain ownership and administration of TipTop Smiles Infant School, while the defendant (Linet Ncube, the applicant) was awarded ZWD 1,000,000,000.00, being the monetary equivalent of a 50% share of the entire commercial venture. For over 5 years following the divorce order, the respondent failed to pay the applicant her 50% share. The respondent continued to operate and improve the business, allegedly inviting relatives to invest in it, and did not honour the court order. The applicant attempted to liaise with the respondent to obtain her dues to no avail. The original divorce order lacked an enforcement mechanism in the event of non-payment.

• Whether the divorce order could be varied under Rule 449 to include an enforcement mechanism and time limit for payment
• Whether the respondent's failure to honour the divorce order for over 5 years justified variation of the order
• Whether costs at attorney and client scale were justified given the respondent's conduct

The court varied Clause 6 of the divorce order to provide that: (1) The parties' business venture TipTop Smiles Infant School be evaluated by a reputable Estate Agent, after which the plaintiff (respondent in this application) will retain sole ownership of the business upon paying to the defendant (applicant) a 50% share of the net value of the entire business within 3 months of the evaluation, failing which the business be sold to best advantage with the parties sharing the net proceeds equally. (2) The respondent was ordered to pay costs at an attorney and client scale.

A court order must be honoured, and where a divorce order lacks an enforcement mechanism, the court has jurisdiction under Rule 449 to vary the order to include such mechanisms including time limits for compliance and alternative provisions for sale of assets if payment is not made. A party who fails to comply with a court order for an extended period and then opposes a variation application on spurious grounds demonstrates contemptuous conduct warranting costs at an attorney and client scale. The fact that a party may have improved property or that parties may have reconciled after divorce does not absolve that party from complying with the divorce order, absent a formal rescission or waiver of rights.

The court observed that it was unclear how an applicant could 'claim' what she was already entitled to in terms of a court order. The court noted that litigants who do not honour court orders should be frowned upon by the court. The court remarked that even if the respondent had issues with the original divorce order, he should have applied for rescission long ago rather than waiting for this application to raise objections. The court referenced the principles from Michael Mahembe v Clever Matombo HB 13/03 regarding the circumstances justifying attorney and client costs: (1) dishonest conduct, (2) malicious conduct, (3) vexatious proceedings, (4) reckless proceedings, and (5) frivolous proceedings.

This case demonstrates the court's willingness to vary divorce orders under Rule 449 to insert enforcement mechanisms where the original order lacked such provisions and a party has deliberately failed to comply with the order. It reinforces the principle that court orders must be honoured and that parties cannot take advantage of technical deficiencies in orders to avoid their obligations. The case also illustrates the circumstances in which punitive costs at attorney and client scale will be awarded, particularly where a party shows contempt for court orders and pursues frivolous opposition to meritorious applications.