No. SC 72/02
Appeal No. 27/99
STEVEN KENEE v
MARGOT KENEE (2) PATRICIA DOREEN WATT
COURT OF ZIMBABWE
SANDURA JA & MALABA JA
MARCH 18 & SEPTEMBER 16, 2002
for the appellant
for the respondents
JA: On 26 September 1997 the first respondent instituted
proceedings in the High Court, claiming against the appellant
decree of divorce, custody of the three children of the marriage, an
order of maintenance for the children and distribution of
assets. The second respondent, who is the first respondents
mother, was joined in the same action as the second plaintiff
claimed against the appellant an order that he transfer into her name
the undivided half-share in Stand 18, Newlands Township,
commonly known as No. 10 Princess Drive, Newlands, Harare (the
property) which he owned in equal shares with the first
addition to granting the first respondent what she claimed against
the appellant, the High Court, in a judgment delivered on
1999, gave him the right of access to the children to be exercised
every alternate school holiday and alternate
The court a quo
also ordered the appellant to transfer his undivided half-share in
the property to the second respondent within sixty days of the
judgment, failing which the Deputy Sheriff was ordered to take all
such steps on his behalf and sign such documents as were necessary
effect the transfer.
appellant appealed to this Court against the order granting him the
right of access to the children on the ground that it should
extended to alternate weekends. He also appealed against the order
that he transfer the undivided half-share in the property
second respondent on the ground that the learned trial judge
misdirected herself in finding that the second respondent was
entitled to the transfer.
parties reached an agreement before arguments on the ambit of the
right of access were heard. The order of the court a quo
was to be amended so that the appellants right of access to the
children included alternate weekends. The only question to be
considered on appeal was therefore whether the second respondent
established entitlement to the order that the appellant transfer
undivided half-share in the property to her.
background facts are these. The appellant and the first respondent
married each other on 13 June 1987. They lived in
accommodation until the first and second respondents jointly
purchased the property on 28 February 1989. The purchase
of $125 000.00 was paid by a deposit of $50 000.00 raised
from proceeds of the sale by the second respondent of her
balance was raised through a loan from Beverley Building Society on a
mortgage bond registered against the property.
is not in dispute that the appellant did not make a direct financial
contribution to the purchase price. He paid the transfer
agreed to complete the construction of a cottage on the property for
the use of the second respondent.
parties agree that as the family grew bigger the house which had two
bedrooms became small, giving rise to an urgent need for
extension. The appellant pulled down the corrugated iron roof and
put in its place an asbestos roof. He then refused to carry
further repairs, extensions or renovations to the house unless he had
a share in the ownership of the property. At that
time, some of the
rooms had no ceiling. There were no tiles in the bathroom, kitchen
and walls. The walls were not painted and
the floors needed
redoing. There was no running water. As the repairs, extensions
and renovations were urgently needed to make
it habitable, the first
respondent persuaded the second respondent to transfer her undivided
half-share in the property to the appellant
to enable him to do the
second respondent entered into an oral agreement with the appellant,
in terms of which she bound herself to transfer her undivided
half-share in the property to him. He in turn undertook to carry
out the necessary repairs, extensions and renovations to the house.
It was a term of the agreement that the second respondent would have
a life usufruct in the cottage. Each of them, that is to
appellant, the first and the second respondents, were to pay
one-third of the monthly expenses relating to the maintenance
property including mortgage instalments, water and electricity.
agreement was reached on 12 September 1995 and on 20 December
1995 the second respondent transferred her undivided half-share
the property into the appellants name. In order to raise the
money for the materials and labour required to carry out the
extensions and renovations to the house, the appellant and the first
respondent obtained a loan from Beverley Building Society
on a new
mortgage bond which replaced the old one raised by the first and
second respondents. To place more cash at the disposal
appellant to finance the necessary improvements to the house, the
second respondent gave him an amount equal to twenty-four
her one-third contributions to the monthly expenses for the
maintenance of the property.
work the appellant undertook to do included the following
was required to fit ceilings in most of the house; install and
connect the kitchen sink; complete the pantry; fit kitchen cupboards
and floor tiles; do up the back verandah; fit the bathroom basin and
tiles; fit and reconnect the washing machine; carpet the new
extension; and generally renovate the house, including painting.
marital relationship between the appellant and the first respondent,
however, irretrievably broke down, resulting in her instituting
divorce proceedings. In the declaration in support of her claim for
an order that the appellant re-transfer the undivided half-share
the property into her name, the second respondent made the allegation
that the appellant had failed to carry out the repairs,
and renovations to the house in terms of the agreement of transfer.
She alleged that as a result of the breach of contract
appellant she was entitled to cancel the agreement and gave notice of
the cancellation in the summons.
first point taken by Mr Girach
on behalf of the appellant was that the evidence led in the court
did not establish breach of contract by the appellant.
am unable to accept the submission because a perusal of the record of
proceedings shows that breach of the agreement by the appellant
established. The following extracts from the evidence-in-chief
given by the first and second respondents disprove the contention:
this house, let us forget about the cottage, have you finished
renovating this house as of now? A. Oh, no. It is in a
is terrible about it? A. Most of the house has got no ceiling.
There are no tiles on the walls and the kitchen or in
It is totally unpainted and it needs a lot of maintenance.
any time limit given to your husband to effect renovations to the
main house? A. There wasnt a specific time limit but
assumed at the time that it would be done as quickly as possible,
which is why we took a bond to help speed things up and
also why my
mother paid two years one-third contributions in advance to also give
us the cash to finish the renovations then and
cross-examination the first respondent made it clear that the
appellant knew that he had to complete the improvements to the
within a reasonable time as there was an urgent need to put the house
into a reasonably habitable state.
second respondent gave the following answers to questions put to her:
the main house been built to expectations? A. No. I am sorry, I
should have realised that. No, the main house has not
completed. It has mostly no ceilings.
said that it was not in the contemplation of the parties that the
appellant would take two years to perform his obligations.
her evidence that the parties expected that the work would be
commenced and completed as quickly as possible.
learned trial judge found the first and second respondents to be
honest and credible witnesses. She accepted their evidence
found that it had established breach of contract by the appellant.
In the opinion of the learned trial judge, what the appellant
constituted a repudiation of the contract entitling the second
respondent to cancel the agreement. She said:
is not in dispute that while the second plaintiff (now the second
respondent) upheld her side of the agreement, that is, the
of a half-share in the property to the defendant (now the appellant),
the defendant failed to uphold his side of the agreement.
concedes that the renovations to the main house had not been
completed three years after their agreement.
In my view,
defendant has breached a fundamental term of the contract. Whether
his breach was deliberate or occasioned, as seems to be
the case, by
financial constraints is neither here nor there. He has breached
The second plaintiff has chosen
reasons connected with concern for security in her old age not to
claim an order to compel the defendant to uphold
his side of the
agreement but to claim back her half-share.
my view, the reasoning of the learned trial judge cannot be faulted.
Although the appellants case on appeal was based upon
acceptance of the fact that there was an agreement between him and
the second respondent, the terms and conditions of which were
adduced to by the respondents, his defence to the action in the court
was a complete denial of the existence of the agreement of transfer.
In denying the existence of the agreement, the appellant provided
the court a quo
with additional evidence of his repudiation of the contract. A
contractant who denies the existence of a valid contract repudiates
that contract just like one who disputes its terms. Stachan
& Co Ltd v Natal Milling Co (Pty) Ltd
1936 NPD 327; Walker
Fruit Farms v Summer
1930 TPD 394.
first point taken by the appellant fails.
second point taken by Mr Girach
was that the cancellation of the contract by the second respondent
was invalid because she did not first place the appellant in
mora by demanding
performance of the agreement by a specific date. There was, of
course, no specific time for the performance of the
contract fixed by
the parties. Where there has been a repudiation of a contract in
which time for performance is not fixed and
the innocent party elects
not to be bound by the contract any more, there is no need to place
the other party in mora
because the innocent party will have acquired the right to cancel the
contract from the repudiation. D J Joubert makes
point at p 213 of his book General
Principles of the Law of Contract
fact that the debtor repudiates will not place him in
mora debitoris before
the date for performance has arrived. Where there is no time fixed
for performance repudiation will not relieve the creditor
necessity of giving an interpellatio
in order to place the debtor in
mora but this will
usually not be necessary in order to protect his rights, because the
creditor will by virtue of the repudiation acquire
the right to
cancel the contract, which is usually the result that he desires to
achieve by the demand for performance and a notice
also Stewart Wrightson
(Pty) Ltd v Thorp 1977
(2) SA 943 (A).
the time the notice of cancellation of the contract was given to the
appellant on service upon him of the summons in which it
contained, he had no intention of performing the obligations under
the contract. He confirmed the repudiation when he denied
plea the existence of the contract. No useful purpose would be
served in the circumstances in requiring the second respondent
first demand from the appellant performance of the contract he had no
intention of performing before she cancelled it. She had
the right to cancel the contract from its repudiation by the
second point taken by the appellant must also fail.
the result, save for the amendment of the order of the court a quo
granting the appellant the right of access to the children to include
the words and alternate weekends, the appeal is dismissed
appellant's legal practitioners
respondents' legal practitioners