ZHOU v ZHOU (275 of 2025) [2025] ZWHHC 273 (25 April 2025)

2 HH 273-25 HCH 1609/24 CAROL AGATHA ZHOU (NEE BVUNZAWABAYA) versus EMESON NDOVISAI ZHOU HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 12 February 2025 & 25 April 2025 Opposed matter G Chitsaka, for the Applicant H Muromba, for the respondent MAXWELL J: On 24 May 2024, a decree of divorce was granted to the Applicant who was the Plaintiff in HCH 7805/19. The ancillary relief granted included the following. “ IT IS FURTHER ORDERED THAT 8. The plaintiff be and is hereby awarded a 50% share of the value of House Number 139 Villa Sol, Go Lado da casa 320, Bairro Triumfo, Maputo, as at 20 October 2019. 9. The parties are to agree on the value of House Number 139 Villa sol ao Lado da Casa 320, Bairro Triumfo Maputo, as at 20 October 2019, failing which there shall be valuation by a mutually agreed valuer which shall be carried out at the Defendant’s expense 10. If the parties fail to agree on a mutually agreed valuer, then the Registrar may appoint a valuer from his list of valuers at the Defendant’s expense. 11. The valuation of the house shall be done within a period of two months of the date of this order. 12. Each party bears its own costs.” On 23 July 2024 Applicant approached the court seeking the following order “1. Respondent be and is hereby ordered to pay USD 136 500,00 to Applicant. 2. Respondent to pay cost of suit.” The Applicant stated in the Founding Affidavit that pursuant to the court order the parties failed to agree on the value of the immovable property. They however agreed on the valuer. In terms of the valuation report, the 50% share due to her is USD 136 500,00. She stated that after the valuation report she engaged the respondent so that he would give here some of his Zimbabwean properties or pay her USD 136 500,00 in lieu of her 50% share in the immovable property. She further stated that all the negotiations that she had with him did not bear any fruit and she then approached this court. In opposing the application, Respondent stated that no cause of action had been set out. He further stated that Applicant had not averred the material facts which entitle her to the relief that she is seeking, that is, the basis upon which this court should order the payment of USD 136 000,00. Respondent also argued that the parties compromised their rights and obligations flowing from the judgment. He indicated that he had offered Applicant a property which would be equivalent to her 50% share according to him, the Applicant’s 50% share is in the sum of MZM 8 599 500,00(eight million five hundred and ninety-nine thousand and five hundred Mozambican Meticais). Further that Applicant accepted the offer of a property and what was outstanding was to agree on which property he was to transfer to the Applicant Respondent averred that the agreed that Applicant will no longer receive monetary compensation for her 50% share as per the judgment and that Respondent was to transfer one of his Mozambican properties to the Applicant in satisfaction of the judgment of the court. Respondent further averred that Applicant is frustrating the implementation of the agreement as she has not signed company documents that would empower him to deal with the affairs of a company in whose name the properties in Mozambique are registered. In his view the parties agreed to vary and or compromise the judgment of the court and Applicant cannot elect to abide by the strict terms of the court order to the detriment of the other party. On the merits Respondent pointed out that the court judgment did not award the sum of USD 136 500,00 to the Applicant, but a 50% share of an immovable property in Mozambique. In answer Applicant stated that the parties failed to agree on the property Respondent was to give to Applicant in lieu of her 50% share. She disputed that she was still involved in Maket Link, a company they jointly owned, as she resigned upon the granting of the decree of divorce. Applicant stated that Respondent presented to her a valuation report in two currencies and she chose to claim in United States Dollars instead of Mozambican Meticais. She disputed that she agreed to compromise on the judgment of this court. At the hearing of the matter Mr Muromba submitted that the matter is now academic as Respondent tendered the 50% share in Mozambican Meticais and that the tender was made unconditionally. He submitted that there is to longer any live dispute between the parties and that all that is required is for Applicant to provide Respondent with the banking details for the money to be deposited. Ms Chitsaka disputed that the matter was academic and insisted that a live dispute still existed between the parties. She submitted that the judgment is still extant and the issue between the parties is of the currency in which the payment ought to be made she further submitted that as the valuation was also in United Stated Dollars, the 50% ought to be paid in USD. In my view the sole issue for determination is whether or not the obligation to pay 50% of the value of the immovable property should be met in USD or in Meticais. Applicant got an order to be compensated for the disposal of a property in Mozambique after summons were issued seeking a decree of divorce and sharing of matrimonial property. In other words, Applicant had a 50% share in the property in Mozambique. What she is entitled to is her share in Mozambique. In my view it is up to the Respondent to opt to pay her in United States dollars or to offer her a property in view of the 50% share. It is incompetent for this court to order Respondent to pay in USD for a property in Mozambique against his will. As Respondent has tendered payment in Meticais, Applicant should provide the bank details for the payment to be made. It does not help Applicant to antagonize the Respondent in the circumstances of this case. What Applicant should do is to find a way to persuade Respondent to meet his obligation in USD. The application therefore fails. Respondent prayed for an order of costs on a punitive scall. I am not persuaded that such costs are warranted. Costs on an ordinary scale meet the justice of the case. The following order is appropriate. The application be and is hereby dismissed with costs. Bherebhende Law Chambers, Applicant’s Legal Practitioners. Kantor and Immerman, Respondent’s Legal Practitioners. 2 HH 273-25 HCH 1609/24 2 HH 273-25 HCH 1609/24 CAROL AGATHA ZHOU (NEE BVUNZAWABAYA) versus EMESON NDOVISAI ZHOU HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 12 February 2025 & 25 April 2025 Opposed matter G Chitsaka, for the Applicant H Muromba, for the respondent MAXWELL J: On 24 May 2024, a decree of divorce was granted to the Applicant who was the Plaintiff in HCH 7805/19. The ancillary relief granted included the following. “ IT IS FURTHER ORDERED THAT 8. The plaintiff be and is hereby awarded a 50% share of the value of House Number 139 Villa Sol, Go Lado da casa 320, Bairro Triumfo, Maputo, as at 20 October 2019. 9. The parties are to agree on the value of House Number 139 Villa sol ao Lado da Casa 320, Bairro Triumfo Maputo, as at 20 October 2019, failing which there shall be valuation by a mutually agreed valuer which shall be carried out at the Defendant’s expense 10. If the parties fail to agree on a mutually agreed valuer, then the Registrar may appoint a valuer from his list of valuers at the Defendant’s expense. 11. The valuation of the house shall be done within a period of two months of the date of this order. 12. Each party bears its own costs.” On 23 July 2024 Applicant approached the court seeking the following order “1. Respondent be and is hereby ordered to pay USD 136 500,00 to Applicant. 2. Respondent to pay cost of suit.” The Applicant stated in the Founding Affidavit that pursuant to the court order the parties failed to agree on the value of the immovable property. They however agreed on the valuer. In terms of the valuation report, the 50% share due to her is USD 136 500,00. She stated that after the valuation report she engaged the respondent so that he would give here some of his Zimbabwean properties or pay her USD 136 500,00 in lieu of her 50% share in the immovable property. She further stated that all the negotiations that she had with him did not bear any fruit and she then approached this court. In opposing the application, Respondent stated that no cause of action had been set out. He further stated that Applicant had not averred the material facts which entitle her to the relief that she is seeking, that is, the basis upon which this court should order the payment of USD 136 000,00. Respondent also argued that the parties compromised their rights and obligations flowing from the judgment. He indicated that he had offered Applicant a property which would be equivalent to her 50% share according to him, the Applicant’s 50% share is in the sum of MZM 8 599 500,00(eight million five hundred and ninety-nine thousand and five hundred Mozambican Meticais). Further that Applicant accepted the offer of a property and what was outstanding was to agree on which property he was to transfer to the Applicant Respondent averred that the agreed that Applicant will no longer receive monetary compensation for her 50% share as per the judgment and that Respondent was to transfer one of his Mozambican properties to the Applicant in satisfaction of the judgment of the court. Respondent further averred that Applicant is frustrating the implementation of the agreement as she has not signed company documents that would empower him to deal with the affairs of a company in whose name the properties in Mozambique are registered. In his view the parties agreed to vary and or compromise the judgment of the court and Applicant cannot elect to abide by the strict terms of the court order to the detriment of the other party. On the merits Respondent pointed out that the court judgment did not award the sum of USD 136 500,00 to the Applicant, but a 50% share of an immovable property in Mozambique. In answer Applicant stated that the parties failed to agree on the property Respondent was to give to Applicant in lieu of her 50% share. She disputed that she was still involved in Maket Link, a company they jointly owned, as she resigned upon the granting of the decree of divorce. Applicant stated that Respondent presented to her a valuation report in two currencies and she chose to claim in United States Dollars instead of Mozambican Meticais. She disputed that she agreed to compromise on the judgment of this court. At the hearing of the matter Mr Muromba submitted that the matter is now academic as Respondent tendered the 50% share in Mozambican Meticais and that the tender was made unconditionally. He submitted that there is to longer any live dispute between the parties and that all that is required is for Applicant to provide Respondent with the banking details for the money to be deposited. Ms Chitsaka disputed that the matter was academic and insisted that a live dispute still existed between the parties. She submitted that the judgment is still extant and the issue between the parties is of the currency in which the payment ought to be made she further submitted that as the valuation was also in United Stated Dollars, the 50% ought to be paid in USD. In my view the sole issue for determination is whether or not the obligation to pay 50% of the value of the immovable property should be met in USD or in Meticais. Applicant got an order to be compensated for the disposal of a property in Mozambique after summons were issued seeking a decree of divorce and sharing of matrimonial property. In other words, Applicant had a 50% share in the property in Mozambique. What she is entitled to is her share in Mozambique. In my view it is up to the Respondent to opt to pay her in United States dollars or to offer her a property in view of the 50% share. It is incompetent for this court to order Respondent to pay in USD for a property in Mozambique against his will. As Respondent has tendered payment in Meticais, Applicant should provide the bank details for the payment to be made. It does not help Applicant to antagonize the Respondent in the circumstances of this case. What Applicant should do is to find a way to persuade Respondent to meet his obligation in USD. The application therefore fails. Respondent prayed for an order of costs on a punitive scall. I am not persuaded that such costs are warranted. Costs on an ordinary scale meet the justice of the case. The following order is appropriate. The application be and is hereby dismissed with costs. Bherebhende Law Chambers, Applicant’s Legal Practitioners. Kantor and Immerman, Respondent’s Legal Practitioners.