Sale of land https://old.zimlii.org/taxonomy/term/10748/all en Gaibe & Anor v Castanheira & Anor (SC 58-20, Civil Appeal No. SC 556/18) [2020] ZWSC 58 (27 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/58 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>A REPORTABLE  (89)</strong></p> <p> </p> <p> </p> <p><strong>(1)     YUSUF     ABDULLAH     GAIBIE     (2)     MILLY        MIRIAM     GAIBIE     N.O</strong></p> <p><strong>v</strong></p> <p><strong>(1)     ALEXANDER     PAULO     CASTANHEIRA     (2)    RACHEL SALU     CASTANHEIRA</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, BHUNU JA &amp; MAKONI JA</strong></p> <p><strong>BULAWAYO: 24 MARCH &amp; 27 MARCH 2020</strong></p> <p> </p> <p> </p> <p><em>G. Nyoni,</em> for the appellants</p> <p><em>P. Dube,</em> for the respondents</p> <p> </p> <p> </p> <p><strong>MAKONI JA:</strong> This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants` claim.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>This is a contractual dispute. The appellants and the respondents entered into an agreement of sale in respect of a certain piece of land being Stand 710 Bulawayo Township in the District of Bulawayo known as Sunkist Flats situate at No 68 Samuel Parirenyatwa Street/Corner 6th Avenue, Bulawayo (“the property”). In terms of the agreement the purchase price of the property was in the sum of Z$11 500 000 000.00 (eleven billion five hundred million dollars) payable in instalments. The first instalment of Z$5 000 000 000.00 (five billion dollars) was to be paid upon signing of the agreement and was duly paid. The second instalment of Z$5 000 000 000.00 (five billion dollars) was payable by 27 January 2006 and the third instalment of Z$1 500 000 000.00 (one billion five hundred million dollars)upon the respondents taking occupation of the property.</p> <p> </p> <p>On 27 January 2006 the respondents paid Z$1 800 000 000.00 (one billion eight hundred million dollars) instead of the agreed Z$5 000 000 000.00 (five billion dollars). After the respondents failed to pay the remaining amount within the stipulated time, the parties signed an addendum to the agreement of sale allowing the respondents an extension of time within which to pay the remaining amount. It was signed by the parties on 16 February 2006 and it gave the respondents up to 28 February 2006 to pay the remaining balance. Pursuant thereto, the respondents made further payments.</p> <p> </p> <p>It is common cause that by 28 February 2006 they had not cleared the amount outstanding. A further payment was made on 3 March 2006. By that date a total of Z$ 9 200 000 000.00 (nine billion two hundred million dollars) had been paid by the respondents leaving a balance of $ 2 300 000 000.00 (two billion three hundred million dollars). The respondents allegedly held on to this amount in the belief that the amount was to be paid to the sellers’ conveyancers in terms of Clause 4.5 of the agreement of sale.</p> <p> </p> <p>On 15 March 2006, the appellants wrote a letter to the respondents giving them 30 days’ written notice to remedy their breach failing which the appellants would cancel the agreement. The letter further required the respondents to pay the sum of Z$2 300 000 000.00 (two billion three hundred million dollars) to their conveyancers Messrs Baron &amp; Partners as provided for in the agreement as well as the outstanding interest charges as provided for in the addendum.</p> <p> </p> <p>The respondents paid an additional amount of $ 1 200 000 000.00 (one billion two hundred million dollars). After getting no further response from the respondents pursuant to the letter of 15 March 2006 in respect of the outstanding amount, the appellants instituted proceedings in the court <em>a quo </em>against the respondents. They claimed cancellation of the agreement of sale. They tendered a refund of all the amounts paid as the purchase price as at the date of the summons. They further claimed costs of suit on the attorney and client scale in the event that the respondents opposed the matter.</p> <p> </p> <p>The respondents denied breaching the agreement of sale and stated that they had complied with the agreement by paying the purchase price in full.</p> <p> </p> <p>The matter was referred to trial on mainly two issues. The first issue was whether the defendants (the respondents) had breached the contract. The other issue was whether the plaintiffs (the appellants) were entitled to cancel the agreement based on the defendants’ breach. The appellants gave evidence on their own behalf and closed their case. Thereafter the respondents applied for absolution from the instance arguing that the appellants had not proved a <em>prima facie</em> case as they had failed to prove any breach of the agreement of sale and a right to cancel the agreement.</p> <p> </p> <p>On 5 July 2018, the court <em>a quo</em> granted the respondents’ application for absolution from the instance reasoning that the plaintiff’s case was full of glaring inconsistencies and unacceptable variances with the pleadings filed of record. It found that the appellants had failed, at the close of their case, to establish a <em>prima facie</em> case.</p> <p> </p> <p>The appellants, aggrieved by that decision, filed the present appeal on the following grounds</p> <p>“<strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> erred in law by granting absolution from the instance when the appellants had established a <em>prima facie</em> case of breach of contract by the respondents which breach entitled the appellants to cancel the contract.</li> <li>The court <em>a quo</em> grossly misdirected itself on the facts by concluding that the appellants received the full purchase price set out in the contract when there was sufficient evidence to the contrary and no reasonable court applying its mind to the evidence on record and the test for absolution from the instance could have arrived at the same conclusion.</li> <li>The court <em>a quo</em> grossly misdirected itself on the facts by concluding that the appellants had admitted that they had received the full market value of the property agreed upon at the time of contracting when there is no basis for such a conclusion and no reasonable court could have arrived at the same conclusion.</li> <li>The court <em>a quo</em> erred in law by concluding that the appellants are not entitled to cancel the contract on account of breach by the respondents because the appellants allegedly breached the contract first, which alleged breach by the appellants was never pleaded by the respondents as a defence to the appellants` claim.</li> <li>The court <em>a quo</em> erred in law by applying the <em>contra preferentum</em> rule against the appellants when there was no ambiguity at all as to the breach committed by the respondents and the appellant`s right to cancel the contract.”</li> </ol> <p> </p> <p> </p> <p> Notwithstanding the number of grounds of appeal raised by the appellants, the court takes the view that the present appeal turns on the sole issue of whether or not the court <em>a quo</em> was correct in granting the application for absolution from the instance made by the respondents.</p> <p> </p> <p> </p> <p> </p> <p><strong>THE APPLICABLE LAW </strong></p> <p>The law to be applied in the present circumstances was eloquently articulated by MAKARAU JA in <em>Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd</em> SC 58/19 at paras 13-15 where she said the following:</p> <p>“[13] The law on when a court may grant absolution from the instance at the close of the plaintiff’s case is settled. (See <em>Supreme Service Station (1969) (Private) Limited v Fox &amp; Goodridge Limited </em>1971 (1) ZLR 1 (A) and <em>United Air Charters (Private) Limited v Jarman</em> 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.</p> <p> </p> <p>[14]      Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some but not on all the essential averments, absolution may be granted, for in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the state case <em>albeit</em> on a lower threshold of the burden of proof.</p> <p> </p> <p>[15] It follows then that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.”</p> <p> </p> <p>See also <em>United Air Charters (Pvt)Ltd v Jarman 1994 (2) ZLR 341 (S) at 343.</em></p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p><em>In casu</em>, it is common cause that the appellants` cause of action was breach of contract. Clause 1.1 of the agreement which regulated the purchase price and its payment provided as follows:</p> <p>“The purchase price of the property shall be the sum of   $11 500 000 000 (eleven billion five hundred million dollars) which shall be payable in accordance with the provisions specified under Special Conditions elsewhere in this agreement.”</p> <p> </p> <p>The relevant part of the Special Conditions clause provided as follows:</p> <p>“4.2 THE FIRST PAYMENT in the sum of $5 000 000 000-00 (Five Billion Dollars) shall be payable upon signing of this agreement by RTGS transfer to an account to be advised.</p> <p>4.3 THE SECOND PAYMENT in the sum of $5 000 000 000-00 (Five Billion Dollars) shall be payable on or before the 27th January 2006 by RTGS transfer to an account to be advised, else the Midrate applies thereafter.</p> <p>4.4 THE THIRD PAYMENT in the sum of $1 500 000 000-00 (One Billion Five Hundred Million) shall be payable on the Purchaser obtaining occupation of the property.</p> <p>4.5 The two parties agree that any amounts paid shall be immediately released to the sellers save for any amounts required by law to be of the Conveyancers on account of Capital Gains Tax.</p> <p>…</p> <p>4.8 In the event that the sum of $10 000 000 000-00 (Ten Billion Dollars) deposit shall not have been paid in full by the 10th February 2006 the Sellers shall have the right to cancel the Agreement forthwith notwithstanding to the contrary containing this Agreement.”</p> <p> </p> <p> </p> <p> </p> <p>The addendum to the agreement granted the respondent extension of time to pay the outstanding amount by 28 February 2006.</p> <p> </p> <p>The appellants argue that the second instalment of Z$5 000 000 000 was not paid in full as was required by the agreement and that the respondents only paid Z$1 800 000 000.00 (one billion eight hundred million dollars) thus leaving a balance of Z$3 200 000 000.00 (three billion two hundred million dollars). The second instalment ought to have been paid by       27 January 2006. The respondents do not deny this but seek to aver that the addendum to the agreement granted them an extension to pay the outstanding amounts by 28 February 2006.</p> <p> </p> <p>While that may be true, it is also correct that by the time the extension provided by the addendum had expired, the respondents had not yet paid the full Z$11500 000 000.00 (eleven billion five hundred million dollars) as required by the agreement of sale as read with the addendum. Instead, they had only managed to pay Z$9 200 000 000.00 (nine billion two hundred million dollars) leaving a balance of Z$2 300 000 000.00 (two billion three hundred million dollars). The last payment towards the purchase price was paid on 14 July 2006. In addition, it is common cause that on 15 March 2006 the appellants wrote to the respondents giving them 30 days’ notice in which to pay the outstanding amounts which they failed to do.</p> <p> </p> <p>The respondents argued that they paid the purchase price in full to the 2nd respondent’s account. The balance of Z$2 300 000 000.00 (two billion three hundred million dollars) was to be paid to the appellants’ conveyancers. By the time the appellants issued summons they (the appellants) had not opened a file with their conveyancers.</p> <p> </p> <p>It is this Court’s view that the respondents have to explain why they failed to pay the amount they claimed was due to the conveyancers upon being advised of the identity of the conveyancers. It is common cause that the respondents attempted to pay by cheque and it was returned by the bank in April 2006. It was not clear why the cheque was returned.</p> <p> </p> <p>Regarding the issue of whether the appellants were entitled to cancel the agreement, it is this Court’s view that it is a question of interpretation of the agreement as read with the addendum. This can only be done after the court would have heard evidence from both sides. As it is, the Court has heard the appellants’ side only.</p> <p> </p> <p>In this vein therefore, the appellants established a <em>prima facie</em> case of breach of the agreement by the respondents. The full amount, as stated in the agreement, had not been paid at the time of issuance of the summons.</p> <p> </p> <p>Once evidence has been adduced which constitutes <em>prima facie</em> proof of breach, then such evidence may become proof on a preponderance of probabilities and a plaintiff will succeed in proving his or her case. The courts must be slow to grant absolution from the instance and this point was made in <em>Katerere v Standard Chartered Bank Zimbabwe Ltd </em>HB 51/08 which was quoted with approval in <em>Bakari v Total Zimbabwe (Pvt) Ltd</em> SC 21/19. It was stated that:</p> <p>“The court should be extremely chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim- <em>Claude Neon Lights (SA) Ltd v Daniel</em> 1976 (4) SA 403(A); <em>Marine &amp; Trade Insurance Co Ltd v Van Der Schyff</em> 1972 (1) SA 26(A); <em>Sithole v PG Industries (Pvt) Ltd</em> HB 47-05.”</p> <p> </p> <p> </p> <p>The same point had been made earlier on in <em>Manyange v Mpofu &amp; Ors 2011 (2) ZLR 87 (H) at 88 F-H</em> where it was stated that;</p> <p>“The test to be applied as to whether to grant absolution is not whether the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. It is whether the plaintiff has made out a <em>prima facie</em> case against the defendant on the basis of which the court could or might find for the plaintiff. A reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. In practice the courts are loath to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed. At this stage of the trial it is not pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard.”</p> <p> </p> <p> </p> <p>See also <em>Chombo v Minister of Safety and Security.                                                           </em>(I 3883/2013)[2018]NAHCMD 37</p> <p> </p> <p>It bears mention that the appellants only had to prove a <em>prima facie</em> case and their evidence a <em>quo</em> cannot be characterized as having been manifestly unsatisfactory, unreliable or that it failed to establish an essential element of the claim. An arguable case was made out and the respondents ought to have been put to their defence.</p> <p> </p> <p>At the hearing of the matter, counsel for the appellants, Mr<em> Nyoni</em>, sought to argue that the court <em>a quo</em> did not apply its mind to the matter that was before it for the reason that the judgment of the court <em>a quo</em> is a regurgitation of the respondents (then defendants <em>a quo</em>) submissions. He submitted that the court <em>a quo</em> simply adopted the evidence and submissions of the respondents without independently assessing it and without having regard to the appellants’ submissions.</p> <p> </p> <p><em>Per contra</em>, <em>Ms Dube </em>for the respondents argued that this was not an issue that had been raised in the grounds of appeal and thus could not be properly raised for the first time at this hearing. On the merits she argued that the court <em>a quo</em> did not produce a biased decision and for authority she relied on the case of <em>Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd</em> 2011 (1) SA 267 (CC).</p> <p> </p> <p>In that case, the Constitutional Court of South Africa, in no uncertain terms, refrained from determining the question whether the extensive use of counsel’s heads of argument could lead to a perception of bias because it was not a question before it. It merely expressed its views on such conduct. The views are <em>obiter </em>and not binding.</p> <p> </p> <p>However, <em>in casu</em> it is apparent that the court <em>a quo</em> did not regurgitate the submissions made by the respondents in the court <em>a quo</em>. There are differences between the submissions and the final judgment. As a result, the court takes the view that while it may be undesirable for a court to plagiarize counsel’s heads of argument in a judgment, this does not necessarily, without more, amount to a misdirection.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>The appellants have managed to establish that the court <em>a quo</em> misdirected itself in granting absolution from the instance when the appellants had established a <em>prima facie</em> case. The appeal has merit and must succeed.</p> <p> </p> <p>Accordingly, it is ordered as follows:</p> <p>1. The appeal be and is hereby allowed with costs</p> <p>2. The judgment of the court <em>a quo</em> is set aside and substituted with the following:</p> <p>“The application for absolution from the instance be and is hereby dismissed”</p> <p> </p> <p><strong>GARWE JA </strong>I agree</p> <p> </p> <p><strong>BHUNU JA</strong>I agree</p> <p> </p> <p><em>Moyo &amp; Nyoni</em>, appellants` legal practitioners</p> <p><em>Lazarus &amp; Sarif</em>, respondents` legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/58/2020-zwsc-58.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36132">2020-zwsc-58.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/58/2020-zwsc-58.pdf" type="application/pdf; length=189817">2020-zwsc-58.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-land">Sale of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-should-lean-favour-case-continuing">court should lean in favour of case continuing</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2012/10">Katerere v Standard Charted Bank Zimbabwe Ltd (X REF HB-51-08) [2012] ZWBHC 10 (25 January 2012);</a></div></div></div> Wed, 19 Aug 2020 11:55:26 +0000 Sandra 9838 at https://old.zimlii.org Manengureni v Kakomo & 2 Ors (HH 489-20, HC 9454/18) [2020] ZWHHC 489 (23 July 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/489 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BRIGHTON MANENGURENI                                                                                                                                                                        </p> <p>versus</p> <p>ZENEDIOUS KAKOMO</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p>and</p> <p>SHERIFF OF ZIMBABWE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 21 May &amp; 23 July 2020</p> <p> </p> <p><strong>Civil Trial </strong></p> <p> </p> <p><em>C. Mavondo,</em> for plaintiff</p> <p><em>E Motsi,</em> for first defendant</p> <p> </p> <p>DUBE J </p> <p>[1]        The dispute between the parties arises out of an instalment sale of land. The plaintiff seeks enforcement of an agreement of sale.</p> <p> [2]       The background facts to this matter are generally common cause. On 31 October 2012, the parties entered into an agreement of sale in respect of certain piece of land situate in the District of Salisbury known as stand 53 of Subdivision E Portion of Lot E of Portion of Borrowdale Estate under Permit No SD/381, measuring 3609.05 square metres, hereinafter referred to as the property.   The purchase price of the property was US$60 000.00. The plaintiff was required to pay US$20 000.00 upon signing the agreement. The outstanding balance would be paid in four instalments, the last being on 30 June 2013. The plaintiff paid a total of US54 000.00 leaving a balance of US$6000.00 outstanding.</p> <p>[3]        The plaintiff accepts that he breached the agreement of sale by failing to pay US$6000.00 which remains outstanding. The first defendant has refused to accept the balance outstanding and to effect transfer of the said property to the plaintiff. In October 2016, the defendant gave the plaintiff notice to rectify the breach and cancelation of the agreement. The plaintiff asserts that the notices were not given in accordance with the law. He seeks an order compelling the first defendant to accept payment of US$6 000.00 as balance of the purchase price and transfer of the property to him. In the alternative, he claims cancellation of the agreement of sale and restitution of US $54 000.00  , being part of the purchase price he paid, general damages in the sum of US$31 000.00, being the difference between the purchase price and the current market value of the property, all payable at the interbank rate.</p> <p>[4]        The second and third respondents did not defend the matter. The first defendant will henceforth be referred to as the defendant. The defendant defends the claim on the basis that he validly cancelled the agreement of sale after the plaintiff breached the agreement. He refutes that the plaintiff is entitled to cancellation of the agreement and transfer of the property and asserts that he is the one who is owed damages instead. The defendant is agreeable to restitute the plaintiff in the sum of US $ 40 000.00.</p> <p> [5]   The issues referred to trial are as follows;</p> <p>    “1. Whether or not the agreement of sale between the parties was validly cancelled</p> <ol> <li>If it was validly cancelled, what is the quantum of restitution due to the plaintiff</li> <li>If it was not validly cancelled , whether or not the property must be transferred to the plaintiff</li> <li>If the property if not transferable to the plaintiff, what quantum of damages is the plaintiff entitled to.”</li> </ol> <p>There was agreement at the pre-trial stage that any money to be refunded to the plaintiff shall be in local currency equivalent to the United States dollar at the prevailing interbank rate. The parties agreed that the defendant is still in control of the property.</p> <p> [6] The plaintiff admitted in his evidence that he breached the agreement of sale in that he failed to pay the full purchase price for the property by 30 June 2013 when the last instalment was due. He received a letter dated 16 October 2016 from the defendant’s legal practitioners demanding payment of the outstanding balance within 7 days, failure of which the agreement would be deemed cancelled. He did not immediately respond to the letter, did no rectify the breach but sought audience with the defendant to discuss issues of concern before the expiry of the 7 days.  He wanted to clarify from the defendant if rates and value added tax on the property had been paid and to ascertain the position of the cession agreement between the developer of the stands and the defendant before he made final payment. The breach was not deliberate.</p> <p>[7] The cancellation is invalid because this is an instalment sale. The defendant gave him 7 days’ notice to rectify the breach instead of 30 days’ notice as required by the law. The defendant did not, contrary to the agreement of sale give him written notice for cancellation after the alleged failure to rectify the breach. The agreement is still extant. Although he was in breach, he is entitled to damages arising from the fact that the agreement was not validly cancelled. He paid US$54 000.00 leaving a balance of US$6000.00 and tenders the balance of the purchase price and seeks an order compelling the defendant to accept the balance outstanding and transfer of the property. Alternatively, he seeks cancellation of the agreement of sale, refund of the money he paid and general contractual damages.</p> <p>[8] The defendant testified that when the plaintiff failed to pay the full purchase price of the property, he wrote to the plaintiff giving him 7 days to rectify the breach and giving notice that if he failed to remedy the breach, the agreement would be cancelled. There was no separate letter of cancellation. He failed to rectify the breach and the agreement was accordingly cancelled. The offer to pay the balance of the purchase price was only made on 7 August 2018. By that time the agreement had already been cancelled. There was no separate letter of cancellation of the sale. The 7 days’ notice to rectify the breach was sufficient since the period was agreed to.  He is not prepared to accept the balance of the purchase price and transfer the property to the plaintiff. He is prepared to refund to the plaintiff US$35 000.00 only. In his closing submissions he offered to pay US 40 000.00.</p> <p>[9] It is common cause that the plaintiff breached the terms of the agreement of sale resulting in the defendant giving him notice to remedy the breach and cancellation of the sale. There are no disputes of fact arising from the facts. All the issues arising from this dispute are purely legal.  All facts being common cause, the need to make any findings of fact and comment on the credibility of the witnesses falls away.</p> <p><em> Was the sale agreement validly cancelled? </em></p> <p> [10]   An instalment sale is defined in s2 of the Contractual Penalties Act, [Chapter 8; 04], the Act as follows;</p> <p>            “<strong>instalment sale of land”</strong> means a contract for the sale of land whereby payment is required to be made—</p> <p>            (a) in three or more instalments; or</p> <p>            (b) by way of a deposit and two or more instalments;</p> <p>            and ownership of the land is not transferred until payment is completed;’’</p> <p> </p> <p>[11]   In <em>Nenyasha Housing Co-operative </em>v<em> Violine Sibanda</em> HH 456 \19 at p 4,the court defined an instalment sale and dealt the mischief and implications of s 8 of the Contractual Penalties Act as follows;</p> <p>            “An instalment sale is defined as a sale agreement which requires that payment of the           purchase price be made in three or more instalments at by way of deposit and two or   more instalments with transfer of the property which is subject of the sale being      transferred       after full payment of the purchase price … The procedure to be followed by the seller entails him giving   notice to rectify, discontinue or remedy the breach,             followed by the institution       of proceedings. The mischief behind this provision is to offer protection to purchasers in   instalment sales. Where a purchaser in an instalment sale is in breach of the terms of the             agreement, he is afforded an opportunity to rectify, discontinue or remedy the breach before             proceedings for cancellation of the instalment sale are commenced. Where he is in breach and         is able to remedy the breach within the time specified in the notice, the need to cancel the sale falls away. Failure to give a purchaser notice to rectify, discontinue or remedy the breach renders the proceedings for cancellation of the contract a nullity…..”</p> <p> </p> <p>See also <em>Zimbabwe Reinsurance Co Ltd</em> v<em> Musarurwa </em>HH 141 /2002.</p> <p>[12]       Clause 2 of the agreement of sale discloses that it is an instalment sale of land because the purchase price was required to be paid by way of deposit and two or more instalments with transfer of the property which is subject of the sale being transferred after full payment of the purchase price.</p> <p> [13]   Section 8 of the Act provides for the procedure for cancelling an instalment sale and stipulates as follows,</p> <p>     “8<strong> Restriction of sellers’ rights</strong></p> <p>         (1) No seller under an instalment sale of land may, on account of any breach of contract by the             purchaser—</p> <p>(a) enforce a penalty stipulation or a provision for the accelerated payment of the     purchase price; or</p> <p>            (b) terminate the contract; or</p> <p>            (c) institute any proceedings for damages;</p> <p>            unless he has given notice in terms of subsection (2) and the period of the notice has            expired without the breach being remedied, rectified or discontinued, as the case may be.</p> <p>        (2) Notice for the purposes of subsection (1) shall—</p> <p>            (a) be given in writing to the purchaser; and</p> <p>            (b) advise the purchaser of the breach concerned; and</p> <p>            (c) call upon the purchaser to remedy, rectify or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than—</p> <p>            (i) the period fixed for the purpose in the instalment sale of the land concerned; or</p> <p>            (ii) thirty days;</p> <p>            whichever is the longer period.”</p> <p> </p> <p>[14]      In terms of s 8 (1), a seller under an instalment sale of land is required to give notice in writing to the purchaser to rectify  the breach before the seller cancels the sale agreement and institutes proceedings for damages .The purchaser must be given clear and unequivocal notice of an intention to cancel the contract. The amount owing in terms of the breach must be stated in the notice to rectify the breach. The party in breach must be given a reasonable time within which to remedy the breach. The time within which to remedy the breach must be specified in the notice.</p> <p>[ 15]    The import of s8 (2) (c) is that the period to remedy the breach must not be less than the period specified in the instalment sale agreement or 30 days whichever is the longer period.  A seller intending to cancel an instalment sale must ensure that  the  notice period  given  is not less than the period specified in the agreement of sale  and is not less than the period of 30 days stipulated in  s 8(2) ( c) of the Act. This is so even where the parties have agreed on a lesser period in the instalment agreement. The dictates of the statute have to be complied with. If the actual cancellation of an instalment sale or failure to rectify the breach relied on is either premature or invalid for whatever reason, the subsequent cancellation of the instalment sale agreement is rendered invalid.  </p> <p>[16]   <em>In casu,</em> the cancellation clause is found in clause 9 and reads as follows;</p> <p>            “<strong>THE BREACH</strong></p> <p>            Notwithstanding anything to the contrary herein contained and notwithstanding any extension of time and indulgence or  concession granted by the seller to the Purchaser, If the    purchaser shall omit  to observe or perform any of the terms , conditions or stipulations   therein contained, and fail; to rectify the same within seven days (7) after receipt of written           notice from the seller requiring him to do so, the Seller shall forthwith have the right by      giving notice in            writing to the Purchaser, to cancel this agreement, to resume possession of             the property, together with any improvement which may have been effected thereto , and to             retain as and by way of agreed pre-estimate of liquidated damages all sums of money which          may have been             paid or deposited by the Purchaser as security , or alternatively at his option ,            to sue the Purchaser for the balance or the purchase price against tender to him of the said            property.”</p> <p> </p> <p>[17]    Clause 9 lays out the procedure to be followed in the event that the purchaser breaches any of the terms and conditions of the agreement. Upon breach by the purchaser, the seller is required to give him 7 days written notice to rectify the breach. The import of the cancellation clause is that if the purchaser ‘’fails to rectify the breach within seven days (7) after receipt of written notice from the seller requiring him to do so, the Seller shall forthwith have the right by giving notice in writing to the Purchaser, to cancel this agreement’’ and  to resume possession of the property together with any improvements and to retain as and by way of agreed pre-estimate of liquidated damages, all sums of money which may have been paid or deposited by the Purchaser as security , or alternatively at his option , to sue the Purchaser for the balance or the purchase price against tender to him of the said property.</p> <p>[18]    The intention of the parties must have been that in the event of any breach, the purchaser having breached the agreement would first be entitled to notice to remedy the breach. Failing compliance with the notice to rectify the breach, the notice would be followed by written notice to cancel the agreement. The seller is only entitled to give notice of cancellation of the sale upon the expiry of the notice to rectify the breach. In essence, the notice to rectify the breach is required to be given separately from the notice of cancellation and must be given in writing, with the notice of cancellation following upon the expiry of the notice to rectify the breach.  Only after establishing that the notice to remedy the breach has elapsed, is the seller entitled to give the notice of cancellation. Clause 9 does not anticipate that the notice to remedy the breach would be combined with the notice of cancellation.</p> <p>[19]      Notwithstanding the provision in the agreement for 7 days' notice to rectify the breach, the defendant was required to give the plaintiff 30 days in terms of s8 of the Act. The 7 day period within which to remedy the breach provided for is shorter than the 30 days stipulated in s8 of the Contractual Penalties Act. In that event, the plaintiff was entitled to be given 30 days’ notice to rectify the breach, which is the longer period.  The plaintiff was not lawfully placed in <em>mora </em>because he was given 7 days’ notice and not the statutory 30 days’ notice to rectify the breach as required by s8 of the Contractual Penalties Act.</p> <p>[20] The cancellation procedures prescribed in terms of s8 of the Contractual Penalties Act and the agreement of sale itself must be meticulously followed. The notice to cancel the agreement was required to be given upon expiry of the notice to remedy the breach and independently in writing. This did not happen. The same letter to rectify the breach included in it notices that if the purchaser did not rectify the breach, the agreement shall be deemed cancelled. The notices to remedy the breach and the notice to cancel the sale were inappropriately rolled in one. The notice to cancel the sale was premature having been given before the expiration of the notice to rectify the breach.  The agreement of sale was not lawfully cancelled. The plaintiff fell foul of both s 8 of the Contractual Penalties Act and clause 9 of the agreement of sale which must be read together.</p> <p><em>Effect of failure to correctly cancel the agreement </em></p> <p> [21]    Christie in Law of Contract in South Africa, 6th ed, on p 562, states that where a contract lays down procedures for cancellation of a contract, these must be followed otherwise the purported cancellation becomes ineffective. In <em>Zimbabwe Express Services (Pvt) Limited </em>v<em> Nuanetsi Ranch Private Limited </em>2009 (1) ZLR 326(S) the court dealt with a case where a seller failed to terminate a sale agreement correctly .The court held that the agreement still subsists. The failure to follow proper procedures to rectify the breach and issue a proper notice of cancellation of an instalment sale has no effect of invalidating the contract and has no effect of chipping away the breach. The party in breach remains in breach. In this case, the sale agreement was not validly cancelled and the agreement remained in full force and effect.</p> <p>[22] After the purported cancellation, the defendant still had a legal basis upon which to cancel the sale on the basis of the breach albeit in a proper manner. The defendant was at liberty to issue fresh notices to cancel the agreement of sale. A defendant who fails to follow proper procedures in cancelling an instalment sale  on the basis of breach of contract is not barred from re -issuing the notice to rectify the breach and notice of cancellation, see the <em>Nenyasha Housing Cooperative</em> case.</p> <p>[23]      In this case the defendant has not sought to correctly cancel the agreement insisting instead that he correctly cancelled the sale. Where a seller or the innocent party in a contract fails to follow proper cancellation procedures, the longer he takes to correct improperly issued notices to rectify breach and cancellation of the agreement, the higher the risk that the party in breach may argue that the contract still subsists and that he is entitled to perform his part of the agreement. This is exactly what is happening here. The defendant seeks to ride on the plaintiff’s failure to cancel the agreement correctly and seeks specific performance of the agreement, in the alternative, cancellation of the agreement, restitution of monies paid and damages.</p> <p>[24] Specific performance is an order of court requiring that a contract be performed on the basis of its terms. It is a remedy ordinarily afforded to an innocent party in the event of breach by the other party resulting from his failure to adhere to terms of a contract. Generally, the remedy of specific performance is available to the innocent party. Wessels, The Law of Contract in South Africa vol 1parag 3135 states:</p> <p>            “The court will not decree specific performance where the plaintiff has broken the contract or         made a   material default in the performance on his part (Lawson, s 472, p522). A party is not       entitled to a specific performance where he has failed to show that he has performed in terms       of the contract. See also <em>Wilbert</em> v <em>Steenkemp</em> 1917 AD 493@ p499.”</p> <p> An order for specific performance enables the innocent party to compel performance of the terms of the contract upon breach. There must be a binding contract in existence and a breach of the terms of the contract. Courts will not order specific performance where there is substantial and material breach of the contract by the party seeking enforcement of the contract.</p> <p> [25] <em>In the Zimbabwe Express Services (Pvt) Limited </em>case, the court dealt with a claim for specific performance by a party in breach. The court examined the circumstances surrounding the breach and refused specific performance after finding that there was nothing to suggest that the appellant itself was in a hurry to perform its side of the agreement and did not appear to have done much after payment of the deposit. The court considered the effect of inflation on the claim and held that an injustice would be caused to the other party if it were to order specific performance. The court emphasized that an order for specific performance is always at the discretion of the court and refuse to grant an order of specific performance.</p> <p>[26]   The court relied on sentiments from Benson v<em> South Africa Mutual Life Assurance Society </em>1986 (1) SA 776(A) at 783 C-D, where it was held that the discretion of the court is;</p> <p><em>“[not] … completely unfettered.  It remains, after all, a judicial discretion and from its very nature arises from the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335).  It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.”</em></p> <p>The court held as follows;</p> <p>“Most importantly, however, as this Court has found, an order of specific performance would no doubt operate unduly harshly on the respondent and would undoubtedly result in the appellant being unjustly enriched at the expense of the respondent. The finding of the court a quo to this effect cannot be impugned. Whilst accepting that the agreement was not lawfully terminated an order of specific performance would not in these circumstances be appropriate”.</p> <p>[27]   What emerges is that specific performance is an equitable remedy and is one strictly in the discretion of the court, which discretion must be exercised judiciously upon consideration of all relevant factors. Special considerations in granting an order for specific performance include undue delays in performing the agreement, undue hardship and unjust enrichment occurring to the other party as a result of the order for specific performance. Each case is required to be decided on its own circumstances.</p> <p>28] An order for specific performance against the defendant would be inappropriate in the circumstances of this case. The court has considered that the defendant was not in breach. The plaintiff was on his part not in a hurry to perform his side of the agreement and is the one in breach. Time was of the essence in this contract .The plaintiff was required to pay the last instalment by June 2013. He did not pay the balance leading the defendant to give him notice to remedy the breach and cancellation in October 2016, three years later. Even after receiving the notice to remedy the breach, and purported cancellation of the agreement, he was not perturbed. The delay in paying the balance outstanding is unwarranted. He chose instead to pick on the defendant and enquire about peripheral issues which need not have stopped him from paying the purchase price in full. He used these as an excuse for not paying the money outstanding. He either deliberately refrained from paying or had no means to pay and resorted to delaying tactics. He made no effort to pay the balance of the outstanding money until March 2018 when he offered to pay. For 5 years and some months, he continued in breach until he issued summons in October 2019. He effectively abandoned the agreement of sale and cannot be allowed to choose when to pay up and perform the contract and compel transfer when it suits him. The equities of this matter demand that specific performance be declined.</p> <p>[29] Courts will not grant specific performance to a party in breach where he is shown to have previously abandoned the contract and where there are undue delays in performing his part of the bargain. A buyer of property who fails to perform his own obligations under a contract of sale takes a risk when he neglects to fulfil terms of the contract. He has only himself to blame when courts refuse to compel the other party to receive late payments and transfer of property to him.</p> <p> [30]     The plaintiff has asked the court to cancel the agreement on the basis that it is has become impossible to perform and grant him an order for general damages of US $31 000.00 being the difference between the purchase price of US $54 000.00 and US85 000.00 being the current value of the property. The plaintiff claims damages on the basis that the agreement was not validly cancelled. No authority was advanced for such a proposition. Both parties seem content to cancel the agreement. The plaintiff cannot get an order for damages when he has no entitlement to enforce the contract and obtain specific performance.  The plaintiff’s recourse lies in a refund.</p> <p>[31]   The defendant is agreeable to refund part of the purchase price and offers US $40 000.00 payable at the Interbank rate to the plaintiff.  He told the court that he suffered damages in that his time was wasted following up on the debt valued at US$6000.00, he lost US $15 000.00 being loss of equipment to creditors and US$3000, 00 being loss of business income. He deducted from the monies paid these amounts totalling us $ 30 000.00, leaving a balance of $34 000 .00. His mathematics is not impressive as based on his claims the balance ought to be US $34 000.00.In any event, the defendant did not file a counterclaim  and the damages allegedly suffered are not provided for in the agreement of the parties.</p> <p>[32] In terms of the agreement of sale between the parties, no provision was made for the defendant to retain the purchase price upon breach or termination of the agreement of sale. Any retention of the purchase price or part thereof could only be in lieu of damages in terms of clause 9. In the absence of any clause guiding what is to happen to amounts paid on cancellation of the agreement and failure to justify the refund suggested, the court is guided by the provisions of s4(3)(a) of the Contractual Penalties Act and orders the defendant to refund to the plaintiff all moneys  paid to it .</p> <p> [33]The plaintiff has not shown any entitlement to an order for specific performance. He is entitled to refund of monies paid.</p> <p>            Accordingly it is ordered as follows;</p> <ol> <li>The plaintiff’s claim for specific performance is dismissed.</li> <li>The agreement of sale in respect of stand 53 of Subdivision E Portion of Lot E of Portion of Borrowdale Estate under Permit No SD/381, measuring 3609.05 square metres is hereby cancelled.</li> <li>The respondent shall restitute the plaintiff in the sum of US 54 000.00 payable at the</li> </ol> <p>interbank rate.</p> <p> 4.  The plaintiff shall pay the respondent’s costs</p> <p> </p> <p> </p> <p> <em>Mhishi Nkomo Legal Practice</em>, Attorneys for plaintiff</p> <p><em>M.E.Motsi &amp;Associates</em>, Attorneys for first defendant</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/489/2020-zwhhc-489.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43619">2020-zwhhc-489.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/489/2020-zwhhc-489.pdf" type="application/pdf; length=446960">2020-zwhhc-489.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/liability-breach-contract">liability for breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remedies">remedies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/specific-performance">Specific performance</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale-land">Sale of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/instalment-sale-see-sale-immovable-property-%E2%80%93-instalment-sale">Instalment sale See SALE (Immovable property – instalment sale)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2019/456">Nenyasha Housing Cooperation v Sibanda (HH 456-19, HH 5539/18) [2019] ZWHHC 456 (03 July 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1992/13">Contractual Penalties Act [Chapter 8:04]</a></div></div></div> Wed, 12 Aug 2020 14:20:17 +0000 Sandra 9823 at https://old.zimlii.org Matasva v Chipanga (HMT 38-20, Civ Á'46/19) [2020] ZWMTHC 38 (03 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/38 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/38/2020-zwmthc-38.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27004">2020-zwmthc-38.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/38/2020-zwmthc-38.pdf" type="application/pdf; length=122741">2020-zwmthc-38.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land-0">LAND</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-land">Sale of land</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1982/20">Communal Land Act [Chapter 20:04]</a></div></div></div> Mon, 06 Jul 2020 09:50:50 +0000 Sandra 9747 at https://old.zimlii.org TBIC (Private) Limited & Another v Mangenje & 5 Others (SC 13/18, Civil Appeal No. SC 469/13 Ref. HC 601/11 Ref. HC 9527/11) [2018] ZWSC 13 (01 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/13-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (10)</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; BHUNU JA.</strong></p> <p><strong>HARARE, 31 JANUARY 2017 &amp; MARCH 1, 2018</strong></p> <p><em>T. Mpofu, </em>for the appellants</p> <p><em>S.M. Hashiti, </em>for the first respondent</p> <p><em>E. T. Matinenga, </em>for the second respondent</p> <p><strong>BHUNU JA:</strong>       This is a hotly contested appeal against the whole judgment of the High Court sitting at Harare, and delivered on 30 October 2013. The epicentre of the dispute is a certain piece of land in the Goromonzi District known as the Remaining Extent of Stuhm measuring 583, 1360 hectares in extent registered in the name of TIBIC INVESTMENTS (PVT) LTD under Deed of Transfer 1724/2009. TIBIC INVESTIMENTS (PVT) LTD is an indigenous company in the sense that its shareholders and directors are indigenous citizens of this country. The historical background and factual basis of the case is by and large common cause.</p> <p>The genesis of the dispute is that in 1970 the late Paul Michael Henry Reimer obtained ownership of a certain piece of land in the District of Goromonzi known as the Remaining extent of Stuhm measuring 1 074.7410 hectares in extent, under deed of grant 1262/70. Paul Reimer does not appear to have bought the land as there is no mention of any money having exchanged hands. His son Cecil Michael Reimer in due course inherited the said piece of land from his late father under deed of Transfer 3032/87.</p> <p>Starting from 1997 to 2009 Cecil Michael Reimer began to subdivide the main block of the remaining extent of Stuhm measuring 1074. 7410 hectares in extent into 3 lots which he sold as follows:</p> <p><strong>DATE    </strong>        <strong>LOT SOLD</strong>                 <strong>BUYER                                HECTERAGE</strong><strong>        </strong><strong>DEED OF TRANSFER</strong></p> <p>1997                           2                         Darnall Investments           412.1091                              497/97</p> <p>1998                           3                         Douglasdale (Pvt) Ltd        79.4959                                 9247/98</p> <p><strong>2009                           1             TIBIC Investments (Pvt) Ltd    583.1360                               1724/09</strong></p> <p><strong>                                                             1,074.741</strong></p> <p><strong>Total</strong><strong>.                    3 Lots                                                                                    </strong></p> <p> </p> <p>He however sold the disputed lot one in 2009 in circumstances where Government had already issued a preliminary notice to compulsorily acquire the disputed land under <strong>General Notice 405A of 2000</strong> published in the <strong>Extraordinary Government Gazette of 25 August, 2000</strong>.</p> <p>The preliminary notice reads:</p> <p>“NOTICE is hereby given, in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10], that the president intends to acquire compulsorily the land described in the schedule for resettlement purposes.</p> <p>A plan of the land is available for inspection at the following offices of the Ministry of Lands, Agriculture and Rural Resettlement between 8 a.m. and 4 p.m. from Monday to Friday other than on a public holiday on or before the 24th of September, 2009 –140. Deed of transfer 3032/87, registered in the name of Cecil Michael Reiner , in respect of certain piece of land situate in the district of Goromonzi , being the remaining extent of Stuhm, measuring one thousand and seventy- four, comma seven four one zero. (1 074, 7410) hectares.”</p> <p>The same notice was re-gazetted under General notices 298A of 2003 and 323 of 2003. In all the 3 notices the extent of the land earmarked for acquisition was given as 1 074.741 hectares. The gazetted land had however been subdivided into 3 lots. Considering that it had acquired the whole land, the acquiring Authority offered lot 1 to the first respondent Kennedy Mangenje as compensation for his farm which it had compulsorily acquired and distributed to other beneficiaries. The first respondent accepted the offer.</p> <p> </p> <p>The offer letter addressed to the first respondent and dated 7 August 2006 reads in Part:</p> <p>            “Dear Sir/Madam</p> <p>Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME. (MODEL A2 PHASE II0</p> <ol> <li>The Minister of State for National Security, Lands. Land Reform and Resettlement in the President’s Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.</li> <li>You are offered Subdivision 1 of R/E of STUHM in GOROMONZI District of MASHONALAND PROVINCE for agricultural purposes. The farm is approximately 534.00 hectares in extent.</li> <li>The offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01] whose provisions you are advised to acquaint yourself with. Conditions that go with the offer are attached.”</li> </ol> <p>In summary what was gazetted was the whole of the original Remaining Extent of Stuhm. However, lots 2 and 3 had already been sold and ceased to be part of the original block of land. Lot 1 thus remained as part of the remaining extent of the whole original block of land. It stands to reason that when the acquiring authority gazetted the whole of the original Remaining Extent of Stuhm, lot 1 being the remaining fraction of the original block was equally gazetted in tandem as part of the whole. That reasoning is anchored on the well-known maxim that the greater includes the lesser, which principle is of universal application. See City <em>of Lakerwood v Plain Dealer Publishing Co. </em>[1988] USSC 123. In other words the gazetting of a whole piece of land includes the gazetting of a fraction of that land.</p> <p>The severed lots 2 and 3 were not validly gazetted because they had ceased to be part of the original block and the new owners were not given notice of the intended compulsory acquisition.</p> <p>The same cannot however, be said of lot I which remained as a fraction of the whole original Remaining Extent of Stuhm which Cecil Reimer continued to hold under deed of transfer 3032/87. Just to draw an analogy, if the Sheriff had given notice to attach the 3 lots under the mistaken belief that they all belonged to Cecil his notice and attachment of block I could not be foiled simply because lots 2 and 3 belonged to some other people. The Sheriff will undoubtedly be entitled to attach the remaining lot 1 belonging to Cecil Michael Reimer.  By the same token, once the acquiring authority had gazetted the whole original piece of land, it was entitled as of right to acquire any fraction of that land that was legally subject to acquisition in terms of the Constitution.</p> <p>The appellant sought to attack the first notice No. 405A of 2000 on the basis that it had expired in terms of the provisions of the Land Acquisition Act. The same applies to the second and third notices 298A of 2003 and 323A of 2003. It also sought to argue that the land gazetted does not exist simply because the gazetted land is 1 704.741 hectares in extent whereas the land in dispute is 583.136 hectares in extent.</p> <p>The disputed land in respect of which notice to compulsorily acquire was  given can easily be identified by employing the blue pencil rule to excise lots 2 and 3 from the whole, leaving the land in dispute intact,  being the Remaining extent of Stuhm  measuring 583.136 Hectares held  by Cecil Michael  Reimer under deed of transfer 3032/1987. The blue pencil rule is a common law doctrine which allows a court to sever an unenforceable portion of a contract so as to enforce the remaining enforceable portion of that contract. Although this is not a contractual dispute I find the concept useful in this case to separate that which is enforceable from that which is not enforceable.</p> <p>Graphically, that conception in this case can be plotted and visualised as follows:</p> <p>Cecil Michael Reimer sowed the seeds of severability or divisibility when he subdivided the original land into separate and distinct 3 lots which could easily be identified as shown above. What emerges quite clearly is that, the severance of lots 2 and 3 from the whole block of land cannot divest lot 1 of its identity. It remains intact and its gazetting remains extant despite the severance of lots 2 and 3 from the whole. In the result, the conclusion that lot 1 which is the land in dispute was identified and gazetted is beyond contest. What is in dispute is the correctness and validity of the process of identification and gazetting of the land for purposes of compulsory acquisition.</p> <p>The disputed land was properly identified and gazetted as part of the whole original Remaining Extent of Stuhm measuring 1 704.741 hectares in extent. It is therefore, anomalous for the appellants to argue that the land in question does not exist when the first appellant bought it from Michael Reimer and had it registered in its name under the same description being the Remaining Extent of Stuhm measuring 583.136 situated in the district of Goromonzi. By the same token, the second appellant cannot dispute the existence of the disputed land when he leased and occupied it under the same description.</p> <p>There is therefore no merit in the appellants’ argument that the land in question was not properly identified and gazetted. For that reason the finding by the court <em>a quo</em> that the disputed land exists is beyond reproach.</p> <p>There can however, be no denying that the process of identifying the disputed land for purposes of compulsory acquisition was fraught with errors including the spelling of the name of the previous owner of the land, its exact size and extent as correctly found by the court <em>a quo.</em> These errors and more were not peculiar to this particular piece of land. The mistakes were many and varied relating to various other pieces of land, thereby threatening to derail the entire Land Reform Programme.</p> <p>In order to protect and keep the Land Reform Programme on course, Parliament in its wisdom amended the former Constitution. The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under schedule 7 for purposes of the Land reform programme on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.</p> <p>The disputed land was acquired under the former Constitution of which s 16B (2) as amended provides as follows:</p> <p>            “(a) All Agricultural land –</p> <ul> <li>That was identified on or before the 8th July 2005, in the government Gazette or Gazette Extraordinary under section 5 (1) Of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7 being agricultural land required for resettlement purposes is acquired by and is vested in the State with full tittle therein with effect from the appointed date.</li> </ul> <p>...</p> <p>(5)       Any inconsistency between anything contained in –</p> <ul> <li>a notice itemized in schedule 7 ; or</li> <li>a notice relating to land referred to in subsection (2) (ii) OR (iii); and the tittle deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2) (a) or invalidate the vesting of title in the State in terms of that provision.”</li> </ul> <p>The effect of the above section was to revive, resuscitate and validate the acquisition of all identified agricultural land listed in the 7th schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation can be imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th schedule prior to 8 July 2005.</p> <p>The language used in s 16B (2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.</p> <p>Applying the law to the facts, it is plain that the disputed land was identified and a preliminary notice of intention to acquire was gazetted on 25 August 2000.  The same preliminary notice was re-gazetted twice in 2003. The land in dispute was duly itemised in schedule 7 of the Government gazette according to the prevailing law. The land, having been identified and itemised in schedule 7, it fell squarely within the ambit of s 16B (2) of the former Constitution. By virtue of s 16B (5) of the former Constitution, the fact that at one time the notice expired or was withdrawn and that it was beset by other  errors complained of by the appellant were of no force or effect. They could not invalidate or adversely affect the vesting of title in the State whatsoever. Credible evidence was proffered before the trial court that upon acquisition the original title deeds were endorsed signifying the perfection of State acquisition of the disputed land. The endorsed original title Deeds however mysteriously disappeared in suspicious fraudulent circumstances to facilitate transfer for the benefit of the appellant.</p> <p>Once the land had been identified and itemised under schedule 7, title to the land automatically vested in the State with the result that it automatically became State property by operation of law. In consequence whereof the previous owner was divested of his title to the land and stripped of all rights of ownership to the acquired land thereto.</p> <p>The learned judge in the court <em>a quo</em> was therefore, correct when he remarked at page 24 of his judgment that:</p> <p>”TBIC obtained transfer of the remaining extend of Stuhm only in 2009. Until it did, it had no real rights over it. But most importantly Reimer who purported to transfer the property to it had lost all rights over the property, save the rights to a fair compensation. By 3 November 2005 the property had become State land by virtue of s 16B of the then Constitution.“</p> <p>For that reason Deed of Transfer No. 1724/09 dated 18 March 2009 in favour of TBIC (Pvt) Ltd was a nullity at law and of no force or effect. That factual finding and interpretation of the law cannot be faulted at all as it finds support in a plethora of precedents, chief among them, <em>Agro Chem Dealers (Pvt) Ltd v Gomo &amp; Others </em>2009 ZLR 255 where GOWORA J, as she then was made it clear that:</p> <p>“… No person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or <em>mala fide.”</em></p> <p>That interpretation and conclusion of the law finds solid support from RH Christie, <em>Business Law in Zimbabwe,</em> 2nd ED Juta &amp; Co Ltd at 149 where the learned author states that:</p> <p>“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass title that was not his.”</p> <p>On the authorities, a buyer who acquires property from a seller who is not the owner and without valid mandate to sell the property, as happened in this case, acquires defective title which is a nullity at law. A nullity is an event that never happened in the eyes of the law. As Reimer had lost all rights of ownership to the land in dispute, the sale of the land to TBIC (Pvt) Ltd was patently unlawful and a nullity at law. No valid title can be founded on an illegality. In <em>Guoxing Gong v Mayor Logistics (Pvt) Ltd</em> SC –2–2017 at p 6 this Court made it abundantly clear that anything done contrary to the law is a nullity.</p> <p>To make matters worse, as correctly found by the learned Judge in the court <em>a quo</em>, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry.  It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct.</p> <p>I note in passing that the prevalence of fraudulent and corrupt disappearance of records and documents in the Deeds Registry has now reached alarming proportions. This prompted MATHONSI J to lament in the case of <em>Cosmas Luckson Zavazava and Anor v Tendai Anania Tendere and 2 Ors</em> HH 740/15 to remark as follows:</p> <p>“It would appear that conveyancing laws of this country are not fool-proof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers. The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency. For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living? These shameless individuals bring the whole process of private ownership of property to disrepute.”</p> <p> </p> <p> </p> <p>In this case, the fraudulent disappearance of the original Title Deeds dully endorsed with State Title in the Deeds Office could only have benefitted the parties to the illegal sale of the State land in question. The fraudulent transfer was then perpetrated using a copy of the seller’s tittle Deeds without endorsement of State Tittle. This was meant to facilitate the bogus transfer of State Land to the appellant.</p> <p> </p> <p>In the absence of any other credible evidence to the contrary, the only reasonable inference that can be drawn is that the appellant and Cecil Michael Reimer were co-conspirators in the perpetration of the fraud. This uncouth reprehensible behaviour cannot be sanctioned by the courts. That type of criminal conduct discredits both of them as witnesses. It betrays knowledge on their part that the land had indeed been lawfully acquired by the State prior to the sale. Otherwise, why act unlawfully if the deal was clean and above board?</p> <p> </p> <p>Having lawfully acquired the disputed land, the acquiring authority remained the lawful owner regardless of the unlawful purported sale and transfer of the land to the first appellant. The Acquiring authority was therefore within its rights when it offered the disputed land to the respondent for resettlement purposes. The respondent in turn had the right to accept the offer as he did thereby concluding a valid contract with the acquiring authority. The conclusion that the respondent’s Offer Letter is valid and enforceable is in the circumstances beyond reproach.</p> <p>That conclusion of law renders both appellants strangers to the contract between the acquiring authority and the respondent. This brings us to the doctrine of privity of contract.  That doctrine restricts the enforcement of contractual rights and remedies to the contracting parties, to the exclusion of third parties. The learned author Innocent Maja in his book <em>The Law of Contract in Zimbabwe</em> at p 27 para 1.5.3 graphically explains the doctrine as follows:</p> <p>“The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights. According to Lilienthal, privity of contract is the general proposition that an agreement between A and B cannot be sued upon by C even though C would be benefited by its performance. Lilienthal further posts that privity of contract is premised upon the principle that rights founded on contract belong to the person who has stipulated them and that even the most express agreement of contracting parties would not confer any right of action on the contract upon one who is not a party to it.”</p> <p>The court <em>a quo</em> having correctly found that the sale of the land in dispute to the first appellant was a nullity and that the acquiring authority remains the lawful owner of the land in dispute, it follows that both appellants were not privy to that contract. That being the case, the doctrine of privity of contract excluded them from suing for cancellation of the contract between the first and second respondents in the form of the first respondent’s offer letter.</p> <p>The second respondent being the only other contracting party to the Offer Letter swept the carpet from underneath the appellants’ feet when he elected not to contest the court <em>a quo</em>’s judgment choosing to remain neutral and abide by the court’s decision. That in effect means that the only other party privy to the contract has capitulated and is no longer challenging the validity of the first respondent’s Offer Letter. For that reason, the learned judge’s finding that the Offer Letter issued to the first respondent by the second respondent is valid is unassailable.</p> <p>By virtue of the landmark decision in the case of <em>Commercial farmers Union &amp; Ors v Minister of Lands &amp; Ors</em> 2010 ZLR 576 the courts are enjoined to support the holders of valid offer letters as correctly argued by the second respondent in the court <em>a quo</em>. This is in keeping with the time honoured principle laid down in <em>Barlow and Jones Ltd v Elephant Trading Co</em>. 1905 TS 67 to the effect that existing rights should not be infringed. Thus in general courts will lean in favour of the enjoyment of rights rather than their extinction.</p> <p>By virtue of the valid Offer Letter issued to him by the second respondent in his capacity as the acquiring authority, the first respondent has the right to occupy and use the <strong>Remaining Extent of Stuhm In the Goromonzi District Measuring approximately 534, 00 Hectares in extent</strong> as stipulated in the offer letter.</p> <p>As regards the appellants’ right of occupation of the land, the disputed land is gazetted land. Section 3 of the Gazetted Land (Consequential Provisions) Act [<em>Chapter 20:28</em>] prohibits and criminalizes the occupation of gazetted land without lawful authority in the form of:</p> <ul> <li>an offer letter; or</li> <li>a permit; or</li> <li>a land settlement lease.</li> </ul> <p>It is common cause that both appellants have no lawful authority in the form of an Offer Letter, permit or land settlement lease authorising them to occupy and use the disputed land. Their plea is for the acquiring authority to strip the first respondent of his rights acquired in terms of his Offer Letter and confer them on the first appellant. They argue that the first appellant is an indigenous person and it is not government policy to dispossess one indigenous person of land in order to give it to another.</p> <p>This Court has already determined that the court <em>a quo</em> correctly nullified Cecil Michael Reimer’s ownership of the disputed land. It also correctly held that ownership of the disputed land still vests in the second respondent. That being the case, the courts cannot protect the appellant on the basis that the disputed land is owned or occupied by an indigenous person.</p> <p>Although the first appellant is in occupation of the gazetted land and the second appellant occupies it through a lease agreement, the occupation is unlawful. As already determined elsewhere in this judgment the law and the courts cannot protect an illegality regardless of the colour, nationality or race of the perpetrator.</p> <p>                        This should really be the answer to the appellants’ argument in this respect, but for the sake of completeness, there is need to look at the argument from a different perspective. For that purpose I consider it necessary to determine whether the first appellant being a juristic person is in fact an indigenous black person. The 1st appellant’s argument is that it is an indigenous black person because its shareholders are black indigenous natural persons.</p> <p>It is trite and a matter of elementary law that a company is a fictitious juristic legal entity with a separate and distinct legal existence apart from its shareholders. It is capable of owning property in its own right separate from that of its shareholders. It is an established principle of our law that a company’s property is not the property of its members, shareholders or directors. The principle was laid down in <em>Salomon v Salomon and Co Ltd</em> [1897] AC 22 HL per LORD HALSBURY LC (30) when he said:</p> <p>“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”</p> <p>From the above exposition of the law it follows that the first appellant TBIC Investments (Pvt) Ltd is a separate legal entity from its owners, shareholders and directors.</p> <p>The question to be addressed in the circumstances is whether a registered company can be classified as being of black or white race. In addressing that question it is important to note that a company has no real physical existence but it is merely an abstract fictitious legal entity. It has no physical existence, colour, flesh or blood. In <em>Dadoo Ltd and Others v Krugersdorp </em>1920 AD 530 at 552 the Court held that:</p> <p>“A company cannot have an enemy character. In the words of BUCKLEY L. J, it has neither body parts nor passions; it cannot be loyal or disloyal.”</p> <p>From the authorities and pure common sense, it follows that a company has no colour or race. It does not adopt the colour or race of its owners, shareholders or directors. The argument by the first appellant TBIC Investments (Pvt) Ltd that it is a black indigenous person is therefore seriously flawed.  Government policy relating to indigenous persons only relates to natural persons and not companies. No government policy is violated when government acquires land from a company for resettlement purposes. The court <em>a quo</em>’s determination that the first appellant could lawfully be removed from the land to pave way for the first respondent cannot be faulted.</p> <p>I now turn to consider whether the first respondent’s claim can be defeated by virtue of the alleged change of land use. The first appellant filed its opposing affidavit on 8 February 2011. The opposing affidavit was deposed to by its director Killian Kapaso duly authorised thereto by resolution of the company directors. Nowhere in that affidavit did the appellant raise the issue of change of land use as a defence to the first respondent’s claim.</p> <p>The first appellant only raised the issue of change of land use more than two years later in an affidavit deposed to by the same company director Killian Kapaso who had deposed to the original opposing affidavit two years earlier.</p> <p>In that affidavit, the first appellant was responding to the Chief Registrar of Deeds’ affidavit confirming that the land in dispute was registered in the name of the President of Zimbabwe and had become State land in terms of s 16B of the Constitution.  That registration still subsists. It has not been nullified by any court of competent jurisdiction.</p> <p>The issue of State ownership of the acquired land is really an issue between Cecil Michel Reimer and the acquiring authority. Cecil Michael Reimer has however chosen not to be a party to this matter electing merely to furnish an affidavit confirming that he sold the disputed land to the first appellant.</p> <p>The appellants’ claim that the land in dispute is no longer agricultural land is premised on a photocopy of a Sub-divisional Permit apparently granted to the first appellant  by the Minister of Local Government Rural and Urban  Development. The alleged permit reads in part as follows:</p> <p>“PERMIT FOR THE SUBDIVISION OF</p> <p>SUBDIVISION OF REMAING EXTENTOF STUHM:</p> <p>GOROMONZI DISTRICT</p> <p>The Minister of Local Government Rural and Urban Development (hereinafter called the Minister) in terms of Section 40 (3) of the Regional Town and Country Planning Act, [Chapter 29:12] (hereinafter called “The Act”) hereby grants a PERMIT in respect of an application dated 13th November 2009 and numbered Mash East 04/2009 in the Register of the Provincial Planning Officer, Mashonaland East, to T.B.I.C INVESTMENTS (PRIVATE) LIMITED   (hereinafter called “the applicant”) for the subdivision of:-</p> <p>A certain               :      Piece of land situate in the District of Goromonzi</p> <p>Being                    :      Remaining extent of Stuhm</p> <p>Measuring            :      583.1360 hectares</p> <p>Held Under          :      Deed of Transfer N0. 1724/2009 dated 18 March 2009”</p> <p>The appellants’ complaint is that the court <em>a quo</em> erred in not making a ruling on the objection to the effect that the land in dispute no longer constituted agricultural land but urban land. As such, it was no longer susceptible to compulsory acquisition in terms of the constitution.</p> <p>It must be noted that the so called sub-divisional permit was issued to TBIC INVESTMENTS (PRIVATE) LIMITED that is to say the first appellant which did not own the land. The court <em>a quo</em> having correctly determined that the disputed land belonged to the acquiring authority, a sub-divisional permit granted to the first appellant who did not own the land was a nullity <em>ab initio</em> and of no force or effect.</p> <p>A perusal of case law shows that there is no need for the court to pronounce or declare something which is a nullity as being null and void as held in the well-known case of <em>Mcfoy v United Africa Co. Ltd</em> [1961] 3 ALL ER 1169 (PC) at 1172. In that case Lord DENNING had occasion to remark that:</p> <p>“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to be set aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Emphasis provided).</p> <p>It is plain common sense that a permit granted to the first appellant to subdivide land which did not belong to it was a nullity which did not bind anyone. For that reason although it was desirable for the court <em>a quo</em> to pronounce its verdict on the objection raised by the first appellant, there was no strict requirement to do so at law.</p> <p>It is an established fact that the land in question is registered as agricultural land in the name of the acquiring authority. In the absence of any evidence as to how it ceased to be agricultural land, the registration in the Deeds Office prevails.</p> <p>                        In the case of <em>Lilifort Toro v Vodge Investments (Pvt) Ltd</em> SC 15/2017, there was clear evidence as to how the land had ceased to be agricultural land to become urban land by virtue of Proclamation 3 of 2012, S.I 115 of 2012. This was followed up by an official hand over of the land through a letter dated 10 June 2013.</p> <p>In this case, nothing of the sort happened. The acquiring authority continues to claim ownership of the land registered in his name. It is trite that registration in the Deeds Registry constitutes proof of ownership of land.  All the parties to this case looked up to him for relief without any reference to the Minister of Local Government Rural and Urban Development. This amounts to recognition of his ownership and authority over the disputed land. That is ample proof that the Minister of Local Government had no Authority to convert agricultural land to urban Land without the consent of his colleague, the acquiring authority. Any purported change of ownership of the land without the consent of the acquiring authority was therefore a legal nullity and of no force or effect.</p> <p>In the final analysis we come to the unanimous conclusion that there is absolutely no merit in this appeal.</p> <p>It is accordingly ordered as follows:</p> <p>That the appeal be and is hereby dismissed with costs.</p> <p>                       <strong>GWAUNZA JA</strong>                     I agree</p> <p>                        <strong>GOWORA JA</strong>                       I agree</p> <p><em>Gama &amp; Partners, </em>appellants’ legal practitioners     </p> <p><em>Moyo &amp; Jera, </em>1st respondent’s legal practitioners                 </p> <p><em>Civil Division of The Attorney-General, </em>4th respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=55853">2018-zwsc-13.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/13/2018-zwsc-13.pdf" type="application/pdf; length=283086">2018-zwsc-13.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-notice-issued-coming-effect-constitutional-amendment-no-17">acquisition notice issued before coming into effect of constitutional amendment No 17</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/buyer-having-no-right-transfer-land">buyer having no right to transfer of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-land">Sale of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/subdivision">Subdivision</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/transfer-real-property">transfer of real property</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/7974">Toro v Vodge Inv. (Pvt) Ltd. &amp; Others (SC 15/2017 Civil Appeal No. SC 201/15) [2017] ZWSC 15 (27 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/740">Zavaza &amp; Another v Tendere &amp; Others (HH 740-15 HC 8382/14) [2015] ZWHHC 740 (23 September 2015);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/2">Guoxing Gong v Mayor Logistics (Pvt) Ltd. &amp; Another (SC 2/2017 Civil Appeal No. SC 17/16) [2017] ZWSC 2 (30 January 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div><div class="field-item odd"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div></div></div> Wed, 25 Apr 2018 13:46:22 +0000 admin 8754 at https://old.zimlii.org