Sibusisiwe Mhlanga v Bongani Mhlanga

The applicant and 1st respondent were previously married and obtained a divorce order (HC 1981/18) on 23 August 2018. In terms of the divorce order, the applicant was awarded four immovable properties: house number 70942 Lobengula West, Bulawayo; Lot 5 of Stand 188 of Matsheumhlope, Bulawayo; Subdivision 12 of Subdivision 21 of Subdivision A called Gumtree Claremont (also known as 12B Alwin Park Road, Gumtree, Bulawayo); and Subdivision 21 of Subdivision A called Claremont. These properties were registered in the name of the 1st respondent who refused to sign the necessary transfer documents. The applicant brought an application to compel the 1st respondent to sign the necessary papers to transfer the properties into her name, or alternatively for the Deputy Sheriff to sign on his behalf.

• Whether an extant court order must be obeyed even when a party alleges fraud or seeks rescission
• Whether a party can resist enforcement of a court order on the basis that the consent paper was obtained through misrepresentation or fraud
• Whether the court should compel compliance with a divorce order awarding property to one party

The court ordered: (i) The 1st respondent to sign all necessary papers to facilitate transfer of the four properties to the applicant; (ii) Should the 1st respondent fail to sign within seven days, the Sheriff of the High Court is authorized to sign all necessary papers to facilitate the transfers; (iii) The 1st respondent to pay costs of the application.

An extant court order must be obeyed and given effect to unless and until it has been varied or set aside by a court of competent jurisdiction. This obligation is unqualified and extends even to cases where the person affected believes the order to be irregular or void. Parties cannot resist enforcement of a court order on the basis of allegations that it was obtained through fraud or misrepresentation - they must first obtain an order setting aside the original judgment. A pending application for rescission of judgment does not relieve a party of the obligation to comply with an extant court order. When a court grants an order, all subsequent acts affecting the dispute between parties rely on the court's order and not the reasons or facts upon which the court based its judgment.

The court observed that the general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. The court also noted that even if parties consent, they cannot vary or depart from a court order without obtaining a formal variation from the court.

This case reinforces the fundamental principle in Zimbabwean (and South African) law that court orders must be obeyed until they are lawfully set aside or varied by a competent court. The judgment confirms that parties cannot unilaterally refuse to comply with court orders based on allegations of fraud, irregularity, or even voidness - they must first obtain an order setting aside or varying the original order. The case is significant for matrimonial property disputes and demonstrates the court's willingness to enforce property division orders from divorce proceedings, including authorizing the Sheriff to sign transfer documents when a recalcitrant party refuses to comply. It also illustrates that pending rescission applications do not suspend the obligation to comply with extant orders, particularly when such applications have been struck off the roll.