CHANAIWA v CHANAIWA and Another (209 of 2025) [2025] ZWHHC 209 (25 March 2025)

3 HH 209-25 HCH 4588/23 LYDIA CHANAIWA versus LINDA CHANAIWA and THE SHERIFF OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 3 October 2024 & 25 March 2025 Opposed Application N S Ndlovu, for the applicant A Masango, for the respondent MANYANGADZE J: This is an application for an order compelling the applicant and the first respondent to sell a property known as No. 11100 Glen View 7 Township, Harare (“the property”). The popular Shona saying “Pfuma yenhaka inoparadza hukama.” (literally translated “inheritance wealth destroys relationships”) is not only the subject of idle beerhall talk. It is real, as reflected in this case where two blood sisters are embroiled in an acrimonious wrangle over a house left by their deceased mother. The brief facts of the matter are that the applicant and the first respondent are sisters and joint beneficiaries of the Estate Late Olivia Denga, DR H399/12. The deceased was their mother. The applicant wants the property sold and the proceeds shared equally with the first respondent. Her reasons for this are that the first respondent, who is the elder sister, is denying her access to the property and refusing to share rentals. The applicant further avers that the first respondent has refused proposals to buy her out. According to the applicant, the only viable option is to have the property sold and the proceeds from the sale shared equally between the two of them. The first respondent is opposed to the sale. She refutes applicant’s allegations that she has refused her access to the house or denied her rentals. She points out that she is a single mother with nowhere else to stay and would thus be disadvantaged by disposal of the house. It is clear the first respondent does not want the status quo disturbed. She wants to remain in occupation of the jointly owned property. Her assertation that she has not denied applicant access to the house and sharing of rental income is not borne out by the record. There is no evidence of receipt of rentals by the applicant. The applicant and first respondent appear to be poles apart on how the jointly owned property should be handled. The two have failed to amicably co-exist, notwithstanding their close relationship. In such a situation, the law says that the court has a wide discretion in ordering how the property should be dealt with. The objective is to achieve an equitable sharing of the property or any proceeds arising from its disposal. Both parties referred the court to the case of Bennet N.O. v Le Roux 1983 ZLR 301 (H). In that case, reference was made to Oosthuizen’s The Law of Property, p 63, wherein the learned author stated the following: “If the joint owners are unable to agree on the manner in which the property is to be divided, any one of them may approach the court for relief by instituting the action communi dividundo. The court has a wide discretion in regard to the partition and may make such order as appears to be fair and equitable in the circumstances. It may, for example, order one joint owner to pay a certain sum to each of the others in order to equalise the division; the court may award it to one of the joint owners subject to the payment of compensation to the others; or it may order that the property be sold by public auction and the proceeds be divided among the joint owners in accordance with their shares.” The same approach was highlighted in the case of Bakaris v Kattavenos HH 1/09. Kudya J (as he then was) succinctly and comprehensively clarified the law, at pp 16-17: “The court has a wide discretion in partitioning and distributing the joint property. It is guided by what is fair and equitable in the circumstances before it. LAWSA, supra, at para 414 graphically outlines the extent of the discretion in these terms: “If the parties cannot agree on the terms of partition or on the appointment of a suitable arbitrator, an actio communi dividundo can be instituted for the partition of the property. However, the court will not countenance such an application if the parties have not previously seriously endeavoured to reach an agreement on the terms of a partition. It is customary that a proposal of a possible division forms part of the application but the court is not bound by such a proposal. The court has a wide discretion to effect an equitable partition amongst the co-owners. The court usually endeavours to divide the property physically amongst the co-owners in accordance with the value of the property and each co-owner’s share in it. If such a division is uneconomical or inequitable, the court may, for instance, allot the property to one co-owner and order him to pay compensation to the other co-owners. This type of division occurs as a rule in the case of indivisible articles such as a building, a painting or a farm the partition of which would result in uneconomic portions. If a farm of one of the co-owners borders on a farm held in common, the court will usually allot a portion adjacent to his farm to that co-owner. In appropriate circumstances the common property will be decreed to be sold by public auction and the proceeds divided amongst the co-owners. In a case which concerned the partition of a farm which belonged to two brothers the court decided that the most equitable solution was to hold a closed auction with the two brothers bidding. The court also has discretion to postpone partition or sale of the common property if this will prejudice the co-owners or any one of them.”’ It is clear the emphasis in the authorities is on equitable sharing and/or distribution of the property. In the instant case, submissions from counsel indicate that each party is intractably stuck in her own position. However, as the hearing progressed, there was some convergence on the idea of one buying out the other. This is reflected in the following submissions by Ms. Ndlovu, counsel for the applicant: “We agree there is no harm, if the court so finds…..that the first respondent be given an opportunity to buy out the applicant. The property would need to be valued by an independent valuer and the parties share valuation costs.” In her earlier submissions, Ms. Ndlovu had indicated that the first respondent had rejected proposals to buy out the applicant, hence the application for an order to compel the sale of the property. It must be noted that these were proposals, not a court order. It is important to make this aspect part of the court order. In my view, having regard to the circumstances of this case, and the principles enunciated in the authorities, it is just and equitable that a fair and reasonable opportunity be extended to the first respondent to buy out the applicant. If that is achieved, the first respondent remains at the property, and the applicant is compensated for her share in the property. It is only when that fails that the property be sold and proceeds thereof be shared equally. Thus, the application succeeds, but with some variation in the order sought. This is so because the order will not be for an outright and immediate sale of the property. The sale will take place after the window for the buy-out option is closed. In the result, it is ordered that: The application be and is hereby granted.The first respondent shall, within 6 months of the date of this order, buy out the applicant from the property described as No. 11100 Glen View 7 Township, Harare. (“the property”)If the first respondent fails to buy out the applicant within the period stipulated in para (2) of this order, the property shall be sold within 3 months from the date of expiry of such period and the net value of the proceeds from such sale shall be shared equally between the applicant and the first respondent.For the purposes of para(s) (2) and (3) of this order, valuation of the property shall be carried out by an independent valuer agreed upon by the applicant and the first respondent, failing which the valuation shall be carried out by a valuer appointed by the Registrar of this court.The parties shall agree upon the Estate Agent to facilitate the sale of the property, failing which such Estate Agent shall be appointed by the Registrar of this court.The costs related to the sale of the property shall be shared equally between the applicant and the first respondent.There is no order as to costs. Manyangadze J:………………………. Nembo Attorneys, applicant’s legal practitioners Malinga Masango Legal Practice, first respondent’s legal practitioners 3 HH 209-25 HCH 4588/23 3 HH 209-25 HCH 4588/23 LYDIA CHANAIWA versus LINDA CHANAIWA and THE SHERIFF OF THE HIGH COURT N.O HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 3 October 2024 & 25 March 2025 Opposed Application N S Ndlovu, for the applicant A Masango, for the respondent MANYANGADZE J: This is an application for an order compelling the applicant and the first respondent to sell a property known as No. 11100 Glen View 7 Township, Harare (“the property”). The popular Shona saying “Pfuma yenhaka inoparadza hukama.” (literally translated “inheritance wealth destroys relationships”) is not only the subject of idle beerhall talk. It is real, as reflected in this case where two blood sisters are embroiled in an acrimonious wrangle over a house left by their deceased mother. The brief facts of the matter are that the applicant and the first respondent are sisters and joint beneficiaries of the Estate Late Olivia Denga, DR H399/12. The deceased was their mother. The applicant wants the property sold and the proceeds shared equally with the first respondent. Her reasons for this are that the first respondent, who is the elder sister, is denying her access to the property and refusing to share rentals. The applicant further avers that the first respondent has refused proposals to buy her out. According to the applicant, the only viable option is to have the property sold and the proceeds from the sale shared equally between the two of them. The first respondent is opposed to the sale. She refutes applicant’s allegations that she has refused her access to the house or denied her rentals. She points out that she is a single mother with nowhere else to stay and would thus be disadvantaged by disposal of the house. It is clear the first respondent does not want the status quo disturbed. She wants to remain in occupation of the jointly owned property. Her assertation that she has not denied applicant access to the house and sharing of rental income is not borne out by the record. There is no evidence of receipt of rentals by the applicant. The applicant and first respondent appear to be poles apart on how the jointly owned property should be handled. The two have failed to amicably co-exist, notwithstanding their close relationship. In such a situation, the law says that the court has a wide discretion in ordering how the property should be dealt with. The objective is to achieve an equitable sharing of the property or any proceeds arising from its disposal. Both parties referred the court to the case of Bennet N.O. v Le Roux 1983 ZLR 301 (H). In that case, reference was made to Oosthuizen’s The Law of Property, p 63, wherein the learned author stated the following: “If the joint owners are unable to agree on the manner in which the property is to be divided, any one of them may approach the court for relief by instituting the action communi dividundo. The court has a wide discretion in regard to the partition and may make such order as appears to be fair and equitable in the circumstances. It may, for example, order one joint owner to pay a certain sum to each of the others in order to equalise the division; the court may award it to one of the joint owners subject to the payment of compensation to the others; or it may order that the property be sold by public auction and the proceeds be divided among the joint owners in accordance with their shares.” The same approach was highlighted in the case of Bakaris v Kattavenos HH 1/09. Kudya J (as he then was) succinctly and comprehensively clarified the law, at pp 16-17: “The court has a wide discretion in partitioning and distributing the joint property. It is guided by what is fair and equitable in the circumstances before it. LAWSA, supra, at para 414 graphically outlines the extent of the discretion in these terms: “If the parties cannot agree on the terms of partition or on the appointment of a suitable arbitrator, an actio communi dividundo can be instituted for the partition of the property. However, the court will not countenance such an application if the parties have not previously seriously endeavoured to reach an agreement on the terms of a partition. It is customary that a proposal of a possible division forms part of the application but the court is not bound by such a proposal. The court has a wide discretion to effect an equitable partition amongst the co-owners. The court usually endeavours to divide the property physically amongst the co-owners in accordance with the value of the property and each co-owner’s share in it. If such a division is uneconomical or inequitable, the court may, for instance, allot the property to one co-owner and order him to pay compensation to the other co-owners. This type of division occurs as a rule in the case of indivisible articles such as a building, a painting or a farm the partition of which would result in uneconomic portions. If a farm of one of the co-owners borders on a farm held in common, the court will usually allot a portion adjacent to his farm to that co-owner. In appropriate circumstances the common property will be decreed to be sold by public auction and the proceeds divided amongst the co-owners. In a case which concerned the partition of a farm which belonged to two brothers the court decided that the most equitable solution was to hold a closed auction with the two brothers bidding. The court also has discretion to postpone partition or sale of the common property if this will prejudice the co-owners or any one of them.”’ It is clear the emphasis in the authorities is on equitable sharing and/or distribution of the property. In the instant case, submissions from counsel indicate that each party is intractably stuck in her own position. However, as the hearing progressed, there was some convergence on the idea of one buying out the other. This is reflected in the following submissions by Ms. Ndlovu, counsel for the applicant: “We agree there is no harm, if the court so finds…..that the first respondent be given an opportunity to buy out the applicant. The property would need to be valued by an independent valuer and the parties share valuation costs.” In her earlier submissions, Ms. Ndlovu had indicated that the first respondent had rejected proposals to buy out the applicant, hence the application for an order to compel the sale of the property. It must be noted that these were proposals, not a court order. It is important to make this aspect part of the court order. In my view, having regard to the circumstances of this case, and the principles enunciated in the authorities, it is just and equitable that a fair and reasonable opportunity be extended to the first respondent to buy out the applicant. If that is achieved, the first respondent remains at the property, and the applicant is compensated for her share in the property. It is only when that fails that the property be sold and proceeds thereof be shared equally. Thus, the application succeeds, but with some variation in the order sought. This is so because the order will not be for an outright and immediate sale of the property. The sale will take place after the window for the buy-out option is closed. In the result, it is ordered that: The application be and is hereby granted. The first respondent shall, within 6 months of the date of this order, buy out the applicant from the property described as No. 11100 Glen View 7 Township, Harare. (“the property”) If the first respondent fails to buy out the applicant within the period stipulated in para (2) of this order, the property shall be sold within 3 months from the date of expiry of such period and the net value of the proceeds from such sale shall be shared equally between the applicant and the first respondent. For the purposes of para(s) (2) and (3) of this order, valuation of the property shall be carried out by an independent valuer agreed upon by the applicant and the first respondent, failing which the valuation shall be carried out by a valuer appointed by the Registrar of this court. The parties shall agree upon the Estate Agent to facilitate the sale of the property, failing which such Estate Agent shall be appointed by the Registrar of this court. The costs related to the sale of the property shall be shared equally between the applicant and the first respondent. There is no order as to costs. Manyangadze J:………………………. Nembo Attorneys, applicant’s legal practitioners Malinga Masango Legal Practice, first respondent’s legal practitioners