Joanne Elizabeth croghan V gary Francis wellok [2025] ZWBHC 31 (1 July 2025)

2 HB 97/25 HCBC 211/24 JOANNE ELIZABETH CROGHAN Versus GARY FRANCIS WELLOCK H IGH COURT OF ZIMBABWE M DUBE J BULAWAYO 07 NOVEMBER 2024 AND 01 JULY2025 Opposed Application K.I Phulu, for the applicant M. Ndlovu, for the respondent DUBE J: This is a strange application. The applicant herein seeks from this court relief couched as flows: “1. The respondent and or his legal practitioners, Mr Lawrence Chikwakwa of Messrs Sansole and Senda be and are hereby ordered to immediately pay US$85 000.00 (Eighty Five Thousand United States Dollars) to the applicant from the net proceeds of the sale of the Harare property namely number 9 Knight Bruce Road, Milton Park, Harare. 2. The respondent shall pay costs of suit on an attorney and client scale.” On reading the relief sought, particularly the manner in which it is couched one expects two things to be pleaded. Firstly that the respondent has without good cause refused or neglected to pay the amount claimed. Secondly that Mr Lawrence Chikwakwa as a legal practitioner and somehow in his personal capacity aided and abated the respondent in refusing to pay this sum. The facts of the matter cannot be further from the truth. Applicant and respondent are former husband and wife. They are now divorced. Preceding their divorce they signed a consent paper in which they agreed that among others, they shall sell their aeroplane(s) from which proceeds applicant shall be awarded a sum of USD85 000.00. Failure to such payment their certain property known as Number 9 Knight Bruce Road, Milton Park, Harare would be sold. The property was sold. Applicant received her 50% share in the value of the property. Of the remaining share accruing to respondent, it was agreed as follows: “ iv. It is hereby recorded that Messrs Ncube and Partners Legal Practitioners and Messrs Sansole and Senda Legal Practitioners shall withhold all monies received from the conveyancers in Trust pending: a. registration of the property in favour of the purchaser in the Deeds Registries Office. b. Resolution of the Court Cases between Gary Francis Wellock and Joanne Elizabeth Wellock (nee Croghan)” This is per agreement of the parties. They bound themselves freely and voluntarily. If anything the applicant herein signed as representative of a company whose directors are herself and the respondent. It is not pleaded that respondent was approached and refused to act in any manner. Neither are the lawyers Sansole and Senda; let alone Mr Lawrence Chikwakwa. The reason is simple this is per agreement. There was absolutely no need to mention respondent’s counsel in his personal capacity in this litigation. It is further not pleaded that the court cases between the parties has been resolved. If anything respondent contends that; “b) High court case number HC 202/23 is still pending between the parties. c) Therefore no disbursement can be done until this crucial matter is resolved. It is important to note that if the matter is ruled in favour of the Applicant (present Respondent) it will change a lot of dynamics. d) The Applicant and the Respondent signed the agreement of sale and are thus both bound by the terms thereof including Clause iv. 9. Ad Paragraph 14-15 The applicant should abide by the terms of the agreement in the agreement of sale and should wait for litigation to be finalised.” Applicant does not dispute the existence of such matter. Their agreement is written in plain English. It does not specify what type of matter should be pending. The contents of that matter are therefore irrelevant. Applicant argues that she has an extant divorce order ordering payment which was granted before the recent agreement. Why then not enforce it? Applicant argues that she is approaching this court just out of abundance of caution because defendant is insinuated to be a difficult person. That does not concern the courts. Courts cannot be roped in for speculative purposes. The Law The Concept of Sanctity of Contract In the matter of Magodora v Care International 2014(1) ZLR 397 (S) it was held that: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms. See South African Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at 864E-H.” In the present matter the parties have made their bed and they should sleep in it. It was held further in the case of ZFC Limited v Tapiwa Joel Furusa SC 15-18 that “Contracts are sacrosanct unless evidence shows that they were not entered into freely and voluntarily” See also: Zimra v Mike harris Toyota Pvt Ltd and Anor HH614-23 In the present case I do not accept that the defendant breached the extant court order granted at divorce in its original form or as amended. There is a binding agreement which spells out a condition subject of which his liability becomes due and enforceable. Such condition has not yet materialised. Disposition Resultantly this application fails with costs. Ncube & Partners, applicant’s legal practitioners Sansole and Senda, respondent’s legal practitioners 2 HB 97/25 HCBC 211/24 2 HB 97/25 HCBC 211/24 JOANNE ELIZABETH CROGHAN Versus GARY FRANCIS WELLOCK H IGH COURT OF ZIMBABWE M DUBE J BULAWAYO 07 NOVEMBER 2024 AND 01 JULY2025 Opposed Application K.I Phulu, for the applicant M. Ndlovu, for the respondent DUBE J: This is a strange application. The applicant herein seeks from this court relief couched as flows: “1. The respondent and or his legal practitioners, Mr Lawrence Chikwakwa of Messrs Sansole and Senda be and are hereby ordered to immediately pay US$85 000.00 (Eighty Five Thousand United States Dollars) to the applicant from the net proceeds of the sale of the Harare property namely number 9 Knight Bruce Road, Milton Park, Harare. 2. The respondent shall pay costs of suit on an attorney and client scale.” On reading the relief sought, particularly the manner in which it is couched one expects two things to be pleaded. Firstly that the respondent has without good cause refused or neglected to pay the amount claimed. Secondly that Mr Lawrence Chikwakwa as a legal practitioner and somehow in his personal capacity aided and abated the respondent in refusing to pay this sum. The facts of the matter cannot be further from the truth. Applicant and respondent are former husband and wife. They are now divorced. Preceding their divorce they signed a consent paper in which they agreed that among others, they shall sell their aeroplane(s) from which proceeds applicant shall be awarded a sum of USD85 000.00. Failure to such payment their certain property known as Number 9 Knight Bruce Road, Milton Park, Harare would be sold. The property was sold. Applicant received her 50% share in the value of the property. Of the remaining share accruing to respondent, it was agreed as follows: “ iv. It is hereby recorded that Messrs Ncube and Partners Legal Practitioners and Messrs Sansole and Senda Legal Practitioners shall withhold all monies received from the conveyancers in Trust pending: a. registration of the property in favour of the purchaser in the Deeds Registries Office. b. Resolution of the Court Cases between Gary Francis Wellock and Joanne Elizabeth Wellock (nee Croghan)” This is per agreement of the parties. They bound themselves freely and voluntarily. If anything the applicant herein signed as representative of a company whose directors are herself and the respondent. It is not pleaded that respondent was approached and refused to act in any manner. Neither are the lawyers Sansole and Senda; let alone Mr Lawrence Chikwakwa. The reason is simple this is per agreement. There was absolutely no need to mention respondent’s counsel in his personal capacity in this litigation. It is further not pleaded that the court cases between the parties has been resolved. If anything respondent contends that; “b) High court case number HC 202/23 is still pending between the parties. c) Therefore no disbursement can be done until this crucial matter is resolved. It is important to note that if the matter is ruled in favour of the Applicant (present Respondent) it will change a lot of dynamics. d) The Applicant and the Respondent signed the agreement of sale and are thus both bound by the terms thereof including Clause iv. 9. Ad Paragraph 14-15 The applicant should abide by the terms of the agreement in the agreement of sale and should wait for litigation to be finalised.” Applicant does not dispute the existence of such matter. Their agreement is written in plain English. It does not specify what type of matter should be pending. The contents of that matter are therefore irrelevant. Applicant argues that she has an extant divorce order ordering payment which was granted before the recent agreement. Why then not enforce it? Applicant argues that she is approaching this court just out of abundance of caution because defendant is insinuated to be a difficult person. That does not concern the courts. Courts cannot be roped in for speculative purposes. The Law The Concept of Sanctity of Contract In the matter of Magodora v Care International 2014(1) ZLR 397 (S) it was held that: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms. See South African Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at 864E-H.” In the present matter the parties have made their bed and they should sleep in it. It was held further in the case of ZFC Limited v Tapiwa Joel Furusa SC 15-18 that “Contracts are sacrosanct unless evidence shows that they were not entered into freely and voluntarily” See also: Zimra v Mike harris Toyota Pvt Ltd and Anor HH614-23 In the present case I do not accept that the defendant breached the extant court order granted at divorce in its original form or as amended. There is a binding agreement which spells out a condition subject of which his liability becomes due and enforceable. Such condition has not yet materialised. Disposition Resultantly this application fails with costs. Ncube & Partners, applicant’s legal practitioners Sansole and Senda, respondent’s legal practitioners