Mildred Siphiwe Manyimo (nee Magorimbo) v Energy Lincoln Chivaraidze Manyimo and Others

The applicant and first respondent were formerly married and were divorced by court order in case HC 12314/2012, which also distributed their matrimonial assets. The order provided that Stand 284 Northwood Township (the property) should be shared equally between them. The first respondent was given an option to buy out the applicant's 50% share within 60 days. If he failed to do so, the property was to be sold at best advantage on the open market and net proceeds shared equally. The first respondent did not exercise the buy-out option. Subsequently, the first respondent, in whose name the property was registered, entered into an agreement of sale with the second respondent (the parties' biological son) for US$200,000 without consulting or obtaining the applicant's consent. The applicant contended she should have been consulted and that the sale was not to the best advantage of the parties. The first respondent argued he had no legal obligation to consult the applicant as long as the purchase price met the valuation price, and that there were sentimental reasons for keeping the property in the family.

• Whether the court order requiring the property to be sold at best advantage on the open market permitted the first respondent to enter into an agreement of sale without the concurrence of the applicant
• The proper interpretation of a court order providing for equal distribution of matrimonial property and its sale on the open market
• Whether consultation with and concurrence of the other party is required when disposing of jointly owned property pursuant to a divorce order

1. The agreement of sale entered into between the first and second respondent dated 9 February 2018 was cancelled. 2. The first respondent and all those acting through him were interdicted from transferring, mortgaging, hypothecating or dealing with Stand 284 Northwood Township 2 of Sumben (also known as House No. 138 Twickenham Drive, Harare) without the consent of the applicant. 3. The first respondent was ordered to pay the applicant's costs on the ordinary scale.

Where a court order in divorce proceedings provides that property shall be shared equally between parties and sold at best advantage on the open market with net proceeds divided equally, both parties have equal say in the disposal of the property. This of necessity requires each party to consult and seek the concurrence of the other party before entering into any agreement of sale. One party cannot unilaterally decide what is in the best interest of both parties or enter into an agreement of sale without the other party's consent, even if the purchase price meets the valuation price. The term "open market" must be interpreted in its ordinary literal sense and is not limited to sales at valuation price, as properties can fetch prices exceeding their valuation.

The court observed that if the parties' intention had been to keep the property within the family for sentimental or practical reasons, this would have been captured in the order by, for example, giving family members a right of first refusal. The court also noted that while the earlier judgment in Mildred Siphiwe Manyimo v Energy Lincoln Chivaraidzo Manyimo HH 67-17 did not state that either party could unilaterally enter into agreements of sale without consulting the other, it did establish that where consent is unreasonably withheld, the court could upon application compel the party withholding consent to render such consent. The court also found that a caveat on the deed of transfer was unnecessary as an order cancelling the agreement of sale sufficed. There was no justification for costs on a punitive scale as sought by the applicant.

This case establishes important principles regarding the implementation of divorce orders distributing matrimonial property in Zimbabwe. It clarifies that where a court order provides for equal sharing of property and its sale on the open market, both parties have equal say in the disposal process and consultation with mutual concurrence is required. The judgment reinforces that unilateral action by one party in disposing of jointly owned property pursuant to a divorce decree is impermissible, even where that party holds legal title. It also clarifies that "best advantage on the open market" means more than simply meeting a valuation price and should be interpreted literally to allow market forces to operate. The case provides guidance on interpreting divorce settlement orders and protecting the rights of parties to matrimonial property distribution.