breach by one party of obligations https://old.zimlii.org/taxonomy/term/9828/all en Breckridge Investments (Pvt) Ltd v RioZim Limited And 2 Others; Breckridge Investments (Pvt) Ltd v RioZim Limited And 3 Others (HH 19-21, HC 1380-1/20) [2021] ZWHHC 19 (25 January 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/19 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>1.         BRECKRIDGE INVESTMENTS (PVT) LTD                                          HC  1380/20      versus</p> <p>            RIOZIM LIMITED                                                                           </p> <p>            and</p> <p>            NORTH RAND (PVT) LTD                                                                         </p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT          </p> <p> </p> <p>2.         BRECKRIDGE INVESTMENTS (PVT) Ltd                                              HC 1381/20</p> <p>            versus</p> <p>            RIOZIM LIMITED</p> <p>            and</p> <p>            NORTH RAND (PVT) LTD</p> <p>            and</p> <p>            SHERIFF OF THE HIGH COURT</p> <p>            and</p> <p>            MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 7 September 2020 &amp; 25 January 2021</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>Z. Lunga</em>, for the applicant</p> <p><em>T.L Mapuranga</em>, for the 1st respondent</p> <p><em>C Chitekuteku</em>, for the 4th respondent</p> <p>            MUNANGATI-MANONGWA J: This matter is a consolidation of two cases HC 1380/20 and HC 1381/20 the parties of which are the same. In both matters, rescission of judgment is being sought. In HC1380/20, the applicant seeks the following relief:</p> <ol> <li>The rescission of the judgment in HC 4945/18.</li> <li>The joinder of the Applicant in Case No. HC 4945/18</li> <li>That the 1st Respondent serves the Applicant with a copy of the application and founding affidavit in HC 4945/18 within 4 days from the date of this order being granted.</li> <li>That Applicant is granted 10 days within which to file its opposition and opposing affidavit.</li> </ol> <p>The relief sought in HC 1381/20 is as follows:</p> <ol> <li>The rescission of the judgment in Case No. HC 8198/20.</li> <li>The joinder of applicant as respondents in HC 8198/20.</li> <li>That 1st respondent serves the applicant with a copy of the founding affidavit in HC 8198/20 within four days from the date of this order.</li> <li>That applicant be granted 10 days to file their notice of opposition and opposing affidavits.</li> </ol> <p>The 1st respondent opposed the application. The brief facts of this matter are that on 3 October 1996, 1st and 2nd defendants entered into a Notarial Prospecting Contract and Option Agreement involving 50 (fifty) gold mining claims. In the contract Rio Tinto Zimbabwe Limited (now Riozim Limited, 1st respondent herein) was stated as “the Owner” and North Rand,( 2nd respondent herein) “the Company.” A pertinent clause in the agreement read as follows: “The Owner as the registered and beneficial owner of the said blocks and of the Mining Rights hereby grants to the company, which accepts from it, the sole and exclusive option during this agreement to buy, at any time on or before the 30 day of September, 1997, or such later date as the owner and the Company may agree in writing, the said blocks and all the mining rights relating thereto together with ore and mineral or metalliferous substance…for the sum of ONE MILLION DOLLARS ($1 000 000) (hereinafter referred to as “the initial payment”)…” The total purchase price was US$6 000 000. The other terms of the contract are not relevant in the determination of this application. The 2nd respondent issued out summons against second and third respondents seeking cancellation of the said agreement and transfer of certain claims from the 2nd respondent, back to it.</p> <p>On 6 June 2018, default judgment was granted in favour of the first respondent Riozim, against North Rand (Pvt) Ltd as follows:</p> <ol> <li>The agreement between the plaintiff and the 1st defendant is hereby cancelled.</li> <li>The 2nd defendant (Minister of Mines) shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996.</li> <li>Costs of suit on a legal practitioner client scale.</li> </ol> <p>Apparently the applicant claims that it owns the 20(twenty) mining claims listed in Annex RZ3 referred to in the order. The mining claims are registered in its names. It is this default judgment that applicant herein seeks to rescind. Of note is the fact that the agreement aforementioned pertained to 50 claims and of these, the applicant claims that 20 claims are registered in its name.</p> <p>            Suffice to say after the granting of the initial default judgment the 1st respondent went back to Court and sought another judgment which was granted against North Rand and the Minister of Mines in default on 10 October 2018. The order thereof reads:</p> <ol> <li>      The Sheriff is hereby authorized to sign all papers authorizing the 2nd respondent to transfer the following mining claims from the 1st respondent to the applicant            as contemplated in Section 275 of the Mines and Minerals Act (<em>Chapter 21:05</em>) <ol> <li>      Bono, registered no. 14860 in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 2 registered no, 14770, in respect of Gold, 9 claims situated in Kadoma</li> <li>      Bono 3, registered no. 14771, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak, registered no.12918, in respect of Gold, 10 claims situated in Kadoma</li> <li>      Blue Streak 2, registered no.12989, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak  8, registered no.14132, in respect of Gold, 10 claims situated in          Kadoma</li> <li>      Blue Streak 9, registered no.14145, in respect of Gold, 10 claims situated in           Kadoma</li> <li>      Blue Streak 10, registered no.14146, in respect of Gold, 8 claims situated in           Kadoma</li> <li>      Blue Streak 11, registered no.14259, in respect of Gold, 6 claims situated in           Kadoma</li> <li>Blue Streak 12, registered no.14260, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Blue Streak 13, registered no.14261, in respect of Gold, 10 claims situated in         Kadoma</li> <li>Concession Hill (W Portion) registered no. 319B, in respect of Gold, 5 claims        situated in Kadoma.</li> <li>Duchess 2, registered no.13938, in respect of Gold, 10 claims situated in    Kadoma</li> <li>Hilldene M, registered no 14144, in respect of Gold, 7 claims situated in    Kadoma</li> <li>Homelands 2, registered no.14143 in respect of Gold, 10 claims situated in            Kadoma</li> <li>Pickstone North, registered no.14037 in respect of Gold, 10 claims situated in        Kadoma</li> <li>Peerless, registered no. 8034, in respect of Gold, 10 claims situated in Kadoma</li> <li>Venning, registered no.9315, in respect of Gold, 10 claims situate in Kadoma</li> <li>Warren 2, registered no.14772, in respect of Gold, 10 claims situate in        Kadoma</li> <li>Duchess 3, registered no.6436, in respect of Gold, 11 claims situate in        Kadoma</li> </ol> </li> <li>      Any respondent opposing this application will pay costs of the application.</li> </ol> <p>The applicant herein further seeks rescission of this judgment.</p> <p>            At the hearing of the two applications, the parties agreed that, if rescission of the judgment in HC 4945/18 (the initial order) is granted, the other default judgment, which sought execution, should also be set aside. The court acceded to the request as the proper course of action to follow as the second judgment/order was premised on the first order and simply sought to attain execution.</p> <p>                  It turns out that I granted the two orders for which rescission is being sought. The applicant seeks rescission of the initial order in terms of Rule 449 (1)(a).The applicant’s case is that it is the owner of the 20 (twenty) aforementioned claims which are stated in the order as listed under Annexure RZ3.The claims are registered in its name and it has proof of ownership by way of certificates. The applicant submits that it was not aware that there were court proceedings instituted in this Court which pertained to its claims. It only became aware of the case through the media when it was reported that the third respondent, Minister of Mines was found to be in contempt of court for failure to comply with the aforementioned court orders to transfer the claims to first respondent and was thus sentenced to 90 days imprisonment.</p> <p>                  It its founding affidavit the applicant submits that the order was granted in its absence. As the registered holder of the mining claims applicant’s rights and interest in those rights are affected by the order. Further, that the order was granted in error in that it directed second respondent to transfer the mining claims to first respondent when second respondent was not the registered holder of the rights. The applicant further submitted that had the Court known that the mining claims were registered in the applicant’s names it would not have granted the order to first respondent.</p> <p>                  The applicant further submits that it was not a party to the agreement between the first respondent and the second respondent. It was not bound by that agreement hence there was no cause for the transfer of its rights to first respondent. The applicant further submits that clause 4 of the agreement between first and second respondent showed that the agreement had expired by effluxion of time. The applicant thus argued, had the court known that the agreement did not bind applicant the registered holder of rights, and that the agreement between first and second respondent had expired it would not have granted the order. Mr <em>Lunga</em> for the applicant argued that it is because of the assertion by the first respondent that the second respondent was the holder of the mining claims that the court granted the order. He submitted that no court fully conversant of the state of affairs would have proceeded to grant the order had the full facts been known, as this goes against the principle that a party cannot transfer that it does not have.</p> <p>                  The first respondent opposed the matter. Its initial stance was that the claims, which the order pertains to, are in the names of the second respondent. This respondent stated that applicant wants to irregularly invite itself in a matter in which it has no legal interest. The court notes that in all its opposition papers in both HC 1380/20 and HC 1381/20 the first respondent denies that the claims stated in the orders belong to the applicant arguing that the claims are different. In HC 1380/90 there is outright denial that the claims are the same (see p 102 para 5-11). The first respondent categorically stating in para 11 that “The claims to which the order of the court pertains are in the name of second respondent. The order does not relate to claims which are in the name of the applicant.” These averments are maintained in HC1381/20 from para 5-11. This stance was maintained until the day of hearing when ultimately there was a concession that the claims are the same.</p> <p>The first respondent maintained in opposition that the agreement has nothing to do with the applicant and at any rate, the second respondent a party to the agreement refrained from raising any argument on the status of the agreement. The respondent further stated in the affidavit filed on its behalf that it is incompetent to seek a joinder consequent upon the granting of an order in terms of r 449 and prayed for the dismissal of the application with costs on a higher scale.</p> <p>            Mr <em>Mapuranga</em> for the first respondent argued that rule 449 is not applicable <em>in casu</em> in that the errors that the applicant seeks to rely on are not errors of form or procedure. He submitted that before the summons were issued it was verified with the Ministry of Mines and the respondent was advised that the claims were registered in North Rand’s names. This therefore was an error of substance so he argued<em>. </em>He further submitted that the option agreement was attached to the application hence the court should have been aware of the provisions of paragraph 4 which related to the expiry of the agreement. He argued that in any case it was the main agreement that it sought cancelled. That being so, the court was <em>functus officio.</em> Mr <em>Mapuranga</em> further submitted that paragraph 1 of the order that granted cancellation of the agreement cannot be rescinded as the second respondent, North Rand was duly served and it did not defend the matter. However, the order could be rescinded in part.</p> <p>    In what seems to be an about turn, Mr Mapuranga submitted that as the order seeks transfer of the claims in the name of North Rand and not in the names of any other party, if the claims are in a third party’s name the order will just be <em>brutum fulmen</em>.</p> <p>   In seeking rescission of judgment in terms of r 449 an applicant needs to satisfy the following requirements:</p> <ol> <li>That the judgment was erroneously sought and granted</li> <li>That the judgment was granted in its absence</li> <li>That the judgment affects its rights or interests</li> </ol> <p>            See <em>Tiriboyi </em>v<em> Jani &amp; Anor</em> 2004 (1) ZLR 470. Makarau JP as she then was held at p472 D-E that “the purpose of r449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders or judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests.’’</p> <p>            The issue therefore is whether it is proper in the circumstances to revisit this judgment? Was the order given in error? Whether maintaining the order will result in an injustice. In making, this enquiry the court is conscious to the fact that it needs not enquire into the merits of the matter to find good cause. GUBBAY CJ (as he then was) held in <em>Grantully (Pvt) Ltd &amp; Anor</em> v <em>UDC Limited</em> 2000 (1) ZLR 361 (S) “For there is no requirement that an applicant seeking relief under Rule 449 must establish “good cause.” If a court establishes that a judgment or order was erroneously granted in the absence of a party affected, it may be corrected, rescinded or varied without further enquiry. It is apparent from the Summons upon which default judgment was obtained, that the first respondent claims to have transferred the mining blocks in issue to the second respondent. (See p 66 paras 4 and 7 of the declaration). Precisely paragraph 4 states:</p> <p>             “ The plaintiff entered into a Notarial Prospecting Contract and Option Agreement with       the       1st defendant on the 3rd October 1996 wherein it transferred various blocks of mining    claims attached hereto as “Annexure RZ1’’ to the first defendant.”</p> <p>            The above is further buttressed by the contents of paragraph 7 which states that upon the payment of the initial sum of US$1 000 000 (One million dollars) to 1st respondent, the 1st respondent Riozim “duly facilitated the transfer of the claims to first  defendant (second respondent North Rand). In the affidavit of evidence filed under the application for default judgment in HC 4945/18 the same averment is repeated in para 5 on p 38. Despite these assertions, it is common cause that 20 (twenty) out of the 50 (fifty) claims that are covered by the default judgment are in the name of applicant. The applicant provided proof of such ownership by way of certificates of registration. The court was thus made to believe that all the claims listed in the draft order were in the names of the second defendant. In that regard, retransferring them to the first respondent was legally proper. If therefore information had been placed before the court that twenty of the claims were in actual fact registered in the names of the applicant the order would not have been granted in the nature and form in which it is. There would not have been any <em>causa</em> or reason for the transfer in the absence of a contract or a legal obligation by applicant towards the first respondent. The issue of ownership was thus not placed before the judge which information was vital. The court thus erroneously granted the order in the absence of the other party who had a legal interest in the matter in so far as the subject pertained to it in terms of ownership rights. In the circumstances the court is not <em>functus officio</em>. To leave the order intact as the first respondent has suggested on the basis that the order is <em>brutum fulmen</em> is not proper. Litigants cannot send the courts on a wild geese chase and obtain orders, which they can then shelve because they are not executable.</p> <p>            The second argument by the applicants that the judgment was granted in error because the contract between the first respondent and the second respondent had expired cannot be sustained. This is because of the issue of privity of contract. The applicant is not a party to the contract and the concerned party did not defend the matter. As a third party the applicant cannot therefore seek to rely or base its case on the terms of a contract to which it is not party to. The applicant’s interest being limited to the protection of its assets.</p> <p>The applicant further seeks to be joined to the proceedings should rescission be granted. The application which has been combined with the one for rescission is clear that joinder is being sought in terms of Rule 87 Order 13. Whilst the court questions the wisdom of joining the applications it finds that it is not fatal as the averments pertaining to joinder are clearly distinct. Joinder is not being sought in terms of r 449. An application for joinder can be made at any stage. In <em>Shumbairerwa </em>v<em> Chiraramiro &amp; Ors</em> HH731/15 this court held that the purpose of r 87 (2) (b)</p> <p> “is to prevent unnecessary multiplicity of litigation and to facilitate the speedy and wholesale             resolution of disputes by ensuring that everyone whose legal interests are likely to be affected          by the outcome of the proceedings is joined as a party to the proceedings. This ensures that all interested parties are aware of the proceedings, and advised of the outcome, which gives them      an opportunity to protect their interests and fight for their rights…” </p> <p>           Thus the applicant needs to satisfy the following for them to be joined as a party:</p> <ol> <li>  A party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that;</li> <li> His rights may be affected by the judgment of the court.</li> </ol> <p>            Given the facts of this matter the court is satisfied that the applicant has satisfied the requirements for joinder.The court finds that the applicant has a direct and substantive interest in the issues raised in the proceedings and not just a financial interest. It is the owner of 20 mining claims which are subject of the proceedings and its ownership rights are at stake. The court being satisfied that the requirements for rescission of the default judgment have been met and the grounds for joinder satisfied, it is justiciable that the applicant’s prayer for joinder be granted.</p> <p>            The court however finds merit in Mr <em>Mapuranga</em>’s argument that there cannot be a blanket rescission of judgment in this case. Clause 1 of the order in HC4945/18 provides for the cancellation of the agreement between the plaintiff (first defendant <em>in casu</em>) and the first defendant (second respondent). There is no need for the court to interfere with this relief as the applicant has no interest in that contract and furthermore the first defendant thereat had not defended the matter. It is clause 2 which needs to be set aside in so far as it relates to the applicant. This is a case which it was not necessary for the first respondent to go all out and defend as parties could have made necessary concessions and saved time and costs. For this conduct, the court would have ordered costs against the first respondent. However the  applicants have submitted that they will not insists on costs, so no order for costs will be issued.</p> <p>In view of the concession by the first respondent that if rescission of the order in HC 4945/18 is granted the rescission of the order in HC8198/18 automatically follows, the court therefore will grant the application as prayed for with necessary amendments.</p> <p>            In the result, the following order is made:</p> <ol> <li>Clause 2 of the order issued in default in HC4945/18 which reads:</li> </ol> <p>“The 2nd defendant shall transfer to the plaintiff all the mining claims registered in the 1st defendant’s name as of the date of this order and listed under annexures RZ3, which claims were transferred to the 1st defendant from the plaintiff pursuant to the agreement dated 3 October 1996” be and is hereby rescinded.</p> <ol> <li>Clause 3 of the same order pertaining to an award of costs is set aside.</li> <li>The applicant be and is hereby joined to the proceedings in HC 2587/18 as third defendant.</li> <li>The 1st respondent shall serve summons in HC 2587/18 upon the applicant within 5 days calculated from the first business day following the last day of the lockdown period.</li> <li>Thereafter the matter to proceed in terms of the rules.</li> <li>The application for rescission of the default order in HC 8198/20 be and is hereby granted.</li> <li>There is no order as to costs.</li> </ol> <p><em>Lunga Attorneys</em>, applicant’s legal practitioners</p> <p><em>Coghlan, Welsh and Guest</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</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/harare-high-court/2021/19/2021-zwhhc-19.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32136">2021-zwhhc-19.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/2021/19/2021-zwhhc-19.pdf" type="application/pdf; length=448292">2021-zwhhc-19.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/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parties-0">Parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</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/2004/117">Tiriboyi v Nyoni Jani and Another ( HH 117-2004 ) [2004] ZWHHC 117 (25 May 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/731">Shumbairerwa v Chiraramiro &amp; Others (HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13) [2015] ZWHHC 731 (17 September 2015);</a></div></div></div> Mon, 29 Mar 2021 09:11:49 +0000 Sandra 9986 at https://old.zimlii.org 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 Muvandi v City of Mutare & Another (HMT 12-20, HC 303/19) [2020] ZWMTHC 12 (27 January 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHENESO MUVANDI   </p> <p>versus</p> <p>CITY OF MUTARE</p> <p>and</p> <p>MATIVENGA LLOYD MHISHI N.O</p> <p>(In his official capacity as the Executor of the Estate</p> <p>Late Washington Jekanyika)</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 27 January 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application </strong></p> <p> </p> <p> </p> <p><em>H. B R Tanaya</em> with <em>A. N</em> <em>Nyamukondiwa</em>, for the applicant  </p> <p>Ms <em>T Gutuza</em>, for the 1st respondent</p> <p>Ms <em>M. Mandingwa</em>, for the 2nd respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: The applicant made an application seeking the following order:</p> <p>            “IT IS HEREBY ORDERED THAT:</p> <p> </p> <ol> <li>The cancellation of the Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.</li> </ol> <p> </p> <ol> <li>The Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.</li> </ol> <p> </p> <ol> <li>The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”</li> </ol> <p> </p> <p>The application is opposed by the 1st respondent, the City of Mutare</p> <p> </p> <p>BACKGROUND</p> <p>On 20 July 2016 Clayhill Trading (Private Limited entered into an agreement of sale of a piece of land, namely Stand No. 11234 Darlington Extension, Mutare Township, measuring 1, 1759 hectares, with applicant and her late husband Washington Jekanyika. The purchase price was US$62 000-00. Clause 3 of the agreement of sale stipulated the payment plan: US$20 000-00 was payable against the signing of the agreement, US$20 000-00 was payable 3 weeks after the signing of cession papers. The balance of US$22 000-00 was going to be liquidated through monthly instalments of US$4, 000-00 commencing 30 September 2016.</p> <p>The preamble to the memorandum of agreement of sale between the seller and buyer provided that the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer, however the seller was responsible for the payment of all cession costs, including the city council’s cession fees and capital gain tax, if any (clause 8 of the agreement of sale). During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband, under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.” Clause 14 thereto stipulates that the purchasers shall demand transfer of the stand from the seller upon completion on the main building. The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.</p> <p>On 24 September 2019 the City of Mutare wrote a letter to the applicant’s legal practitioners indicating that the agreement of sale between itself, the applicant and her husband had been cancelled. First respondent alleged in the letter the applicant’s late husband, Mr W. Jekanyika had misrepresented to the city council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale. As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale. A lot of correspondences were exchanged between the city council’s legal practitioners and the purchasers’ lawyers but nothing came out of the correspondences until the applicant approached this court. Clayhill (Pvt) Ltd had since issued summons against the purchasers  claiming an amount of US$28 000-00 for arrear payments, it is important to note that there is no  allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.</p> <p>The first respondent, in its opposing papers contends that the applicants’ application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings. As already addressed in the foregoing above, the first respondent went on to state that applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development. Hence the agreement of sale between City of Mutare and the applicant and her husband was a nullity because at the time it was drafted, the city council did not hold any rights, interest or title in the stand, instead such rights were vested with Clayhill, and as such the cancellation of the agreement was above board and before the cancellation of that agreement, applicant’s legal practitioners were fully appraised of the whole scenario of the events. To the respondent the relief being sought by the applicant has no basis.</p> <p>The second respondent is an estate of the late Washington Jekanyika. The executor had notified the registrar of the court that he will abide by the decision of this court.</p> <p>Both applicant and first respondent had raised preliminary points in their respective papers and I directed the legal practitioners to holistically address the court by commencing with points <em>in limine</em> and then the main issues.</p> <p> </p> <p>Applicant’s point <em>in limine</em> </p> <p>The applicants on filing her affidavit raised a preliminary point to the effect that the first respondent’s Town Clerk in filing the opposing affidavit was not authorised by the council. Hence the application should proceed as unopposed. The applicant amplified her argument by submitting that first respondent’s notice of opposition is fatally defective for warrant of a proper opposing affidavit. The Town Clerk, Mr Maligwa, did not attach authority which he alleges to have to depose to the affidavit. Mr <em>Tanaya</em>, to advance his argument, cited s 136 (2) of the Urban Councils Act [<em>Chapter 29:15</em>] which basically provides as follows:</p> <p>“Functions of town clerk</p> <p>  </p> <ol> <li>The town clerk shall be responsible for-</li> </ol> <p> </p> <ul> <li>the proper administration of the council;and</li> <li>managing the operationsand property of the council; and</li> <li>supervising and controlling the activities of the employees of the council in the course of their employment.</li> </ul> <p> </p> <ol> <li>For the purposes of subsection (1),the town clerk, in addition to any other duties that may be assigned to him by the council shall,</li> </ol> <p> </p> <ol> <li> </li> </ol> <p>(b) where so authorised by the council, sign orders, notices, or any document requiring authentication, or execution on behalf of the council…”</p> <p> </p> <p>            As such, applicant, contended, the town clerk was required to produce a resolution on which he relies on not depose to the opposing affidavit. To the applicant, the town clerk has no automatic authority to oppose this matter.</p> <p>            First respondent, in response to this point <em>in limine</em> submitted that the absence of the resolution does not prove that the town clerk did not have authority. The town clerk is the chief executive officer of the first respondent and in charge of the entity including litigation and defending council. Ms <em>Gutuza</em> went on to cite the case of <em>Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa</em> and also the matte of <em>Zimbabwe Open University v Magaramombe and Another.</em></p> <p>In summary the first respondent submitted that the averment in the deponent’s opposing affidavit is adequate and in its view there was no need to attach the resolution reached by the full council meeting.</p> <p>            Given the nature of the facts in this application more particularly the stance adopted by the first respondent towards the application the applicants’ contention holds firm. It was incumbent upon the council to deliberate on the facts of this matter and consider whether there was any basis to oppose the application brought about by the applicant and also seriously outline the basis of such opposition. This analysis would be dealt with below on the aspect of costs but given the provisions of s 136 (2) I agree with the applicants’  counsel, that there was  need for a special resolution passed by the council mandating the town clerk to depose to an opposing affidavit on its behalf. At the same time, this court will not lose sight of the fact that there is an opposing affidavit before it which affidavit contains material documents that are going to be of a great assistance in the resolution of this application. It will be in the interests of justice that I will condone the failure to file that resolution by the first respondent and allow the first respondent to be heard on merits, applicants’ point <em>in limine </em>though valid is dismissed.</p> <p> </p> <p>First Respondent’s point <em>in limine</em>   </p> <p>On 29 October 2019 the first respondent filed its opposing affidavit and raised a preliminary point to the effect that applicant ought to have joined Clayhill Trading (Private) Limited from whom applicant allegedly purchased the stand in dispute. According to first respondent Clayhill is still the holder of all rights, interests and title in the stand and it cancelled the agreement between it and applicant. First respondent added that given the nature of relief being sought by the applicant, the ultimate order cannot be effectively carried out, without the involvement of Clayhill. This non joinder is fatal to applicants’ case.</p> <p>In response to the preliminary point raised the applicant contented that there was no need for the applicant to cite Clayhill because applicant’s course of action arises out of a contract between applicant, her husband and first respondent, Clayhill is not party to that agreement. By the doctrine of privity of contract, there is nothing that affects the company that arises from the four corners of the agreement. It is the council which is the holder of real rights on the property in question. The applicant attached copy of summons commencing action issued by Clayhill against the late Washington Jekanyika and the applicant; where Clayhill is claiming US$28 000-00 being the balance in respect of immovable property sold by plaintiff to the defendants pursuant to the agreement of sale.</p> <p>When  Ms <em>Gutuza</em> was asked by the court to explain why joinder was necessary, she submitted that the city council did not want to expose itself to litigation from Clayhill. It is not in dispute that Clayhill has already chosen who and what to sue for arising out of the agreement of sale relating to stand in question. No one is left to speculate, thus the very fundamental basis relied upon by the first respondent is palpably answered by the company itself Clayhill wants to be paid $28 000-00 by applicant not by the first respondent. In light of this positive development, there is virtually no need to have a joinder where the company has expressly shown that its interest is in the recovery of the balance of the purchase price not recovery of the stand for reallocation. The point <em>in limine</em> by the first respondent has no merit and it is dismissed.</p> <p>On the merits of the application the following issues are uncontroverted in my respectful view:</p> <ol> <li>Applicant and her husband, the late Washington Jekanyika purchased Stand No. 11234 Darlington Extension, Mutare for $62 000-00, paid cash of $20 000-00 upon signing of the agreement of sale and from the calculation between the cost price and balance being claimed on the summons alluded to above, it is clear that the applicant paid another instalment of $14 000-00, to make a total of US$34 000-00.</li> <li>At the agreement of sale between Clayhill and the applicant another agreement of sale was concluded between City of Mutare, applicant and the late W. Jekanyika.</li> <li>The applicant took occupation of the purchased stand and started to develop it.</li> <li>The selling company is suing the applicant for an amount of $28 000-00 as balance outstanding. The company (Clayhill) is not praying for the cancellation of the agreement of sale on grounds of fraudulent misrepresentation not for the cancellation of sale between the City of Mutare and the purchaser.</li> <li>In terms of the agreement of sale concluded between applicant and City of Mutare (first respondent) there is virtually no clause pertaining to which conditions would justify cancellation of the contract concluded between the parties. Though not addressed by the parties, it appears the first respondent was paid by the developer before the developer (Clayhill) was allowed to offer such stands for sale to the public.</li> <li>City of Mutare remained the title holder both for purposes of cession or transfer that is why the second agreement of sale between applicant and the first respondent had to be drafted. Transfer of ownership between City of Mutare and applicant would only be processed after the property had been fully developed.</li> </ol> <p>All these aspects are common cause and this court asked the first respondent its basis for opposing the application. If Clayhill is fully paid the balance, it means the matter between it and applicant would have been resolved, and by necessary implication the subject stand has to remain with the applicant and the estate of her husband. After going through the opposing papers filed on behalf of the first respondent, it is apparent that the first respondent, <em>mero motu</em> proceeded to cancel the agreement of sale it had entered into with the purchaser without having heard from them. That was not proper. As long as the administrative authority is involved in making such decisions, it is required to comply with the dictates of administrative justice, that requirement applies even when the first respondent was acting in terms of a contract. The first respondent was duty bound to hear the applicant and her husband first and even ask them to reduce their response in writing. No such evidence was produced by the first respondent. Hence cancellation of the agreement was arbitrary and cannot be allowed to stand.</p> <p>The first respondent also contended that what prompted her to cancel the agreement was that the late Washington Jekanyika fraudulently did not disclose that he had not fully paid the purchase price to Clayhill. This court will not dwell much on this issue simply because the first respondent stated that it learnt this from Clayhill and as already covered hereinabove the summons issued by Clayhill do not allude to any fraud on the part of W. Jekanyika what Clayhill needs is its payment of the balance of $28 000-00. In any case fraud should not only be pleaded but must be established by way of tangible evidence.</p> <p>I am hence satisfied that the first respondent failed to justify its cancellation of the agreement of sale with applicant and her husband on a balance of probabilities, there is no condition which could have been relied upon in the agreement of sale, which f breached by the purchasers could have justified the cancellation of such a contract.</p> <p>Costs</p> <p>The applicant prayed for costs on a punitive scale of attorney-client. A lot of correspondence between the first respondent’s office and applicant’s legal practitioners exchanged hands, including documents pertaining to the matter more particularly the summons issued by the developer Clayhill where it was claiming $28 000-00 from the purchasers. Surely at that stage of proceedings and letter written by applicants’ lawyers to first respondent about that, should have caused the first respondent to reconsider its stance about the application. It did not. Even after heads of argument were filed and served on the firs respondent it persisted with the opposition of the application. The court is aware that any order of costs adversely affect the rate payer but the aptitude of the first respondent’s action clerk exhibits a nonchalant attitude bordering on recklessness and abuse of court process all done in the name of public entity whose resources should better be ploughed towards service delivery than defending indefensible, unilateral and unjust conduct by its officials. This judgment must be brought to the attention of the Mayor and councillors to censure in strongest terms the behaviour of the town clerk.</p> <p>In future legal costs of this type should be met by the city official personally, however in this case the first respondent stated that he was authorised to oppose the matter by the council so the council/public entity will be ordered to pay applicant’s wasted legal costs.</p> <p>As a result the following order is granted:</p> <ol> <li>The cancellation of the Memorandum of Agreement of Sale of Stand 11234 Darlington Extension, Mutare Township, measuring 1, 1759 hectares, entered into by City of Mutre and Washington Jekanyika jointly together with Cheneso Muvandi is a nullity, on no force.</li> <li>The Memorandum of Agreement of Sale of Stand No. 11234 Darlington Extension, Mutare Township, measuring approximately 1, 1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.</li> <li>The 1st respondent to pay respondent’s costs on attorney - client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Tanaya Law Firm</em>, applicant’s legal practitioners</p> <p><em>Bere Brothers</em>, 1st respondent’s legal practitioners</p> <p><em>Mativenga Nkomo Legal Practice</em>, 2nd respondent’s legal practitioners</p> <p>HH 626/15 per Mathonsi J (as he then was)</p> <p> </p> <p>See U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) per Makarau JP (as she then was</p> <p>U-Yow Trailers (<em>supra</em>) on p 268 A-B</p> <p>Muzondo and Others v Usayiwevanhu and Ohters HH 107/12.</p> <p>SPF &amp; Ano v LBCCT/ALB &amp; Ano 26492/13 [2016] ZAG PPHC 378</p> <p>Chikwanira v Mutonhora &amp; Anor HH 224/16</p> <p>Mkandla &amp; Ano v Ncube &amp; Ano HB 93/14</p> <p>See Binza v Acting Director of Works &amp; Anor 1998 (2) ZLR</p> <p> 364 (H)</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/mutare-high-court/2020/12/2020-zwmthc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31099">2020-zwmthc-12.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/mutare-high-court/2020/12/2020-zwmthc-12.pdf" type="application/pdf; length=348113">2020-zwmthc-12.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</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/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/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/non-joinder">non-joinder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</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/2015/626">Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa (HC 10938/14) [2015] ZWHHC 626 (21 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/5">Zimbabwe Open University v Magaramombe &amp; Another (SC 5/2016 Civil Appeal No. SC 25/2012) [2016] ZWSC 5 (23 February 2016);</a></div><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2007/41">Mkandla and Another v Dube and Others (HB 41/07) [2007] ZWBHC 41 (14 March 2007);</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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Fri, 27 Mar 2020 10:01:15 +0000 Sandra 9596 at https://old.zimlii.org Nenyasha Housing Cooperation v Sibanda (HH 456-19, HH 5539/18) [2019] ZWHHC 456 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/456 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NENYASHA HOUSING CO-OPERATIVE</p> <p>versus</p> <p>SIBANDA VIOLINE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 13 May 2019 &amp; 3 July 2019</p> <p> </p> <p> </p> <p><strong>Opposed Matter </strong></p> <p> </p> <p><em>S. Gutsa</em>, for the applicant</p> <p><em>R.E. Nyamayemombe</em>, for the respondent</p> <p> </p> <p>            DUBE J: The applicant brought an application for confirmation of cancellation of an agreement of sale it entered into with the respondent and ancillary relief.</p> <p>            The applicant’s claim is based on the following brief facts. The applicant is a Cooperative Society registered in terms of the Cooperative Societies Act [<em>Chapter 24: 05</em>]. It owns Lot 1 of subdivision A of Merwede of Glaudina of Subdivision A of Gillingham.  Sometime in 2012, the applicant acquired the land which it got permission to subdivide into several pieces of land. It put some of the stands on the market. The respondent purchased a commercial stand being stand 1072 Merwede Township of lot 1 of subdivision A of Merwede of Glaudina of subdivision A of Gillingham from the applicant on 28 August 2013 for US $20 000.00 payable in 30  instalments of not less than US$667.00 effective 28 September 2013. The final instalment was due on 7 January 2016. The respondent’s payment of the instalments was intermittent and erratic. The respondent only paid US$1700.00 in instalments for the entire 30 month period to 7 January 2016 being the agreed date of full payment and expiration of the credit facility between the parties. The applicant instituted proceedings under HC 9789/17 which it later withdrew after the  respondent made indications that she still wanted to be bound by the agreement and had challenged the failure to give her notice to remedy , rectify or discontinue the breach. Notwithstanding the election to stand with the agreement, the respondent continued in her breach. By 12 January 2018 the respondent had paid only US$3 333.00 as a deposit into the applicant’s account. Applicant placed the respondent who was in occupation of the stand on three months’ written notice to remedy the breach. The notice dated 12 January 2018 was served on the respondent on 8 February 2018.  The respondent failed to remedy the breach and the agreement was cancelled as per the notice. Applicant avers that the respondent lost her right to the stand. It seeks an order for confirmation of the cancellation of the sale agreement concluded between the parties, an order for ejectment of respondent from the premises, that she removes a perimeter wall and structure she erected on the stand which was erected without the authority of the applicant. The applicant seeks an order to be authorised to withhold from the amount paid by the respondent the sum equivalent to thirty percent of instalments payable as cancellation fees.</p> <p>            The respondent opposed the application. She submitted that the notice to remedy the breach given by the applicant is invalid. She argued that the application does not comply with s 8 of the Contractual Penalties Act [<em>Chapter 8: 04</em>], [hereinafter referred to as the Act], which requires that applicant should have given respondent notice to remedy the alleged breach and its intention to terminate the contract of sale of the land and serve it personally on her. She maintained that she did not receive the notice to remedy the breach and is not aware of it. She asserts that she only got to know of the notice to remedy the breach through this application.  She submitted further that at the time that the notice was allegedly served on her, there was a pending case between the parties .She argued that the applicant did not comply with the requirements of the Act with regard cancellation of the instalment sale agreement and that   therefore it is premature to seek to evict her and the notice of cancellation is invalid.</p> <p>          She took issue with the fact that the applicant would purport to have served the notice on her personally when applicant knew that she was represented by legal practitioners and argued that applicant ought to have served her legal practitioners instead of sending the notice to remedy the breach through courier service at her residential address. Respondent challenges the relief sought on the basis that she has made several useful improvements which have increased the value of the property. She asserted that it would be an injustice if she were to be deprived of a property on which she has expended substantial resources. She contended further that there is no basis for seeking the imposition of thirty percent cancellation fee when in fact the applicant is the cause of the purported cancellation.               In terms of clause 6.1 of the agreement of sale, the buyer reserves the right to cancel the agreement of sale if the buyer misses three consecutive monthly payments. A default in payment of instalments constitutes a material breach entitling the settler to cancel the sale. The respondent failed to comply with a material term of the agreement of sale by making irregular and disparate payments towards the purchase price. She paid only US$ 1700.00 for an entire thirty month period entitling the seller to cancel the agreement. The breach relates to an important and material term of the agreement entitling the seller to cancel the agreement of sale. It was never a part of the agreement that payment of instalments would be subject to the applicant servicing the land. At the hearing of the matter the respondent’s representative conceded that the respondent breached the agreement of sale. The concession by the respondent is proper in the circumstances.</p> <p>             The central issue for resolution is whether the sale agreement was validly cancelled. 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, see <em>Zimbabwe Reinsurance Company</em> v<em> Musarurwa</em> HH 141/2001. The agreement of sale entered into between the parties is an instalment sale.  Section 8 of the Act reads 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>            Section 8 applies to instalment sales of land. Section 8(1) (a) and (b) as read with s 8(2) of the Act stipulates that no seller of land sold by way of an instalment sale may on account of any breach of contract by the purchaser, terminate the sale, institute proceedings for damages or enforce a penalty stipulation or a provision for the accelerated payment of the purchase price unless he gives the purchaser notice to rectify, discontinue or remedy the breach and the period of the notice has expired without the breach being remedied. The notice to must be in writing as stipulated in s 8 (2) (a) of the Act. 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. There is no bar to a seller who has initiated proceedings for cancellation of an instalment sale without giving the purchaser a notice to rectify, discontinue or remedy the breach  withdrawing  such proceedings and adopting  the correct procedure of issuing the notice first followed by proceedings for cancellation of the instalment sale.      </p> <p>               The respondent submitted that the notice of cancellation is invalid because there was a pending matter between the parties at the time that the notice was issued. The applicant instituted proceedings under HC 9789/17 for termination of the agreement on 19 October 2017. Despite a willingness to continue being bound by the agreement the respondent continued in breach. The applicant withdrew the application on 20 March 2918. The respondent continued breaching the contract resulting in the applicant exercising its right to cancel the agreement and placed her on three months written notice to remedy the breach dated 12 January 2018. Proceedings filed under HC 7989/17 were filed in violation of S8 of the Act for failure to place the respondent <em>in mora.</em> The notice to remedy the breach was served on 24 February 2018 and the current proceedings were filed on 14 June 2018, well after the three months prescribed in terms of s 8 had elapsed without the respondent remedying the breach. What is important is to show that the application pursed by applicant was filed after a notice to remedy the breach had been served on the respondent and she had failed to remedy the breach. The notice to remedy the breach was not prematurely issued.</p> <p>            The applicant maintained that the notice to remedy the breach was delivered on the respondent personally. In a supplementary affidavit the respondent stated that she had done a due diligence check to establish whether FedEx had delivered the notice of cancellation and established that the notice was never delivered. The papers produced by the applicant disclose that the notice to remedy the breach was indeed delivered personally on respondent. Mr Chiringa, the branch manager from FedEx Express Zimbabwe explained in a letter that initial investigations had revealed that the notice was not delivered. He signed a letter confirming this position prepared by officers from his office. Investigations later revealed that there is proof of delivery of the notice to the respondent that came from their system raised on 8 February 2018 and that it is authentic. What they failed to locate is where respondent actually signed on the proof of delivery. If they do not deliver a letter they normally send it back to the sender. If they do not send it back, it means that they delivered it.</p> <p>             The proof of delivery shows that the respondent was served with the notice. The fact that FedEx failed to locate where the respondent signed for the notice does not mean that the respondent was not served with the notice. The fact that they did not send the notice back to the applicant suggests that they served it on the respondent and this fact is supported by the proof of delivery. Although there was initially some confusion regarding the service of the notice to remedy the breach, there is confirmation that she was served personally.  The probabilities are that the notice came to the attention of the respondent.</p> <p>                 The respondent submitted that delivery through FedEx is not proper delivery of the notice as envisaged under s 8. Section 8 (3) of the Act deals with the manner of service of the notice and stipulates as follows,</p> <p>            ‘’ (3) Without derogation from section 40 of the Interpretation Act [Chapter 1:01], a notice          shall be regarded as having being duly given to the purchaser for the purposes of subsection         (1)—</p> <p>            (a) if it has been delivered to the purchaser personally or to an agent chosen by the           purchaser for the purpose of receiving such notices; or</p> <p>            (b) if it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land            concerned or, in the absence thereof, to the purchaser’s usual or last known place of       residence or business’’</p> <p> </p> <p>            Section 8(3) gives a seller the option to either deliver the notice to the purchaser personally or on his chosen agent, or post it by registered  post in terms of s 8 (3)(b). The mode of delivery envisaged by s 8(3) (a) is not stated. It was open to the seller to use any mode of delivery chosen by it for as long as it achieved the intended purpose which is that the notice must reach the intended recipient. The seller was not confined to service by way of registered post.</p> <p>              The notice was delivered personally on respondent   at her usual address through FedEx. Delivery effected through courier service suffices as delivery in terms of s 8(3) (a) of the Act. Delivery through FedEx suffices as delivery in terms of s 8(3) (a). I do not agree with the respondent that ‘’delivery’’ as envisaged is limited to posting by registered post.</p> <p>             In terms of s8 (3) (a), notice shall be regarded as having being duly given to the purchaser if it has been delivered to the purchaser personally ,to an agent chosen by the purchaser or by registered  post. There is no bar to service being effected on the purchaser personally even though the seller may be aware that the purchaser is represented by a legal practitioner. Personal service on the purchaser suffices.</p> <p>              The applicant has demonstrated that the procedure required to be followed in accordance with instalment sales followed. The notice to remedy the breach was validly done and served. The respondent failed to remedy the breach and effectively the agreement was cancelled without further notice to her in terms of the agreement of sale. The applicant is entitled to confirmation of cancellation of the agreement of sale.  The respondent lost the right to enjoy the property and has lost the right to continue holding onto the property entitling the applicant to evict her. This case is distinguishable from the case of <em>Saltana Enterprises Pvt Ltd</em> v<em> Ngoni Takundwa &amp; Anor </em>HH 143/17 for the reason that no notice to remedy the breach was served on the purchaser in that case. In this case the notice was validly served on the purchaser.   </p> <p>                 Section 9 of the Act implores a court dealing with cancellation of a sale, to consider all the circumstances of the case and those listed in the section in assessing the relief to grant. It reads as follows,</p> <p>              ‘’9 <strong>Court may grant relief</strong></p> <p>            (1) Where upon the cancellation or termination of an instalment sale of land the purchaser is        required, in terms of the contract, to forfeit—</p> <p>                        (a) the whole or any part of any instalment or deposit which he has paid to the seller;                   or</p> <p>                        (b) any claim for any expenditure he has incurred—</p> <p>            (i) whether with or without the seller’s consent, in protecting or preserving the land or in paying rates or taxes relating to the land; or</p> <p>            (ii) with the seller’s consent, where the expenditure has enhanced the value of the land;</p> <p>            and it appears to a competent court that such forfeiture is out of proportion to the prejudice          suffered by the seller, the court may grant such relief as it considers will be fair and just to the           parties.</p> <p>            (2)……………</p> <p>            ‘’(3) In assessing any relief that may be given in terms of this section, the court shall have            regard to all the circumstances of the case and in particular to—</p> <p>            (a) the amount of any instalments or deposit paid by the purchaser; and</p> <p>            (b) any expenditure referred to in paragraph (b) of subsection (1) which has been incurred by       the purchaser in respect of the land concerned; and</p> <p>            (c) the nature of any breach of contract on the part of the purchaser and the circumstances in        which it was committed; and</p> <p>            (d) the extent to which the purchaser has complied with his obligations during the currency of      the instalment sale of land concerned;</p> <p>            and shall balance those amounts against the value of any use or occupation of the land     concerned which was enjoyed by the purchaser, together with any commission or costs which   the seller has been required to pay in connection with the instalment sale of land concerned.’’</p> <p> </p> <p>             The applicant seeks an order directing that the respondent remove the perimeter wall and structure she put up. It is trite law that possessors and occupiers of land who improve the property they occupy retain certain rights in respect of the improvements they make. These rights include the right to remove the improvements made if this can be done without causing any damage to the land, see <em>Bangure </em>v<em> Gweru City Council</em> 1998 (2) ZLR 396<em>, </em>where the court stated as follows,</p> <p>            “Possessors or occupiers of property who improve the property retain certain rights in respect      of the improvements. Thus the improver or planter enjoys <em>the ius tollendi</em>. The right, during       the currency of occupation of the property, to remove the improvement if this can be done        without damage to the earlier state of the property itself. A further right enjoyed by the    possessor or occupier who improves property is an entitlement to compensation for the             improvements, and even an <em>ius retentionis </em>to enforce that claim, is permitted to various    classes of possessor or occupier of property.” See also D<em>erby Farm (Pvt) Ltd </em>v<em> Stewart          Musonza</em> <em>and B Chirunga</em> HH 82-2007.</p> <p> </p> <p>            The applicant submitted that the respondent put up a perimeter wall and a structure without the authority of the applicant and that it does not require the improvements which can be removed without causing damage to the land. The understanding was that the respondent was buying the stand. Any improvements she made would have been made in the ordinary course of things and would not require the authority of the seller. The agreement is silent on the need for authority to put up improvements from the seller. It appears that the buyer was entitled to put up improvements on the stand. The respondent has a right to compensation for improvements made. Unfortunately, the respondent has not filed a counterclaim for improvements and has therefore not sought compensation for the improvements. The applicant contended that it does not need the improvements. It means that they will have to go. The respondent put up a security wall and some unnamed structures on the land valued at $10 000.00 which value was not contested. The improvements appear to be improvements that can be removed without causing any damage to the land.</p> <p>              Section 9 (1) stipulates that where a seller cancels an instalment  sale and the seller is required in terms of the contract to forfeit the whole or any part of any instalment or deposit paid to the seller, the court shall consider all the circumstances of the case. Clause 6. 2 of the agreement of sale permits the seller to levy a fee of 30% of the total monthly subscriptions as cancellation fees. This is what the parties agreed to. The respondent cannot turn around and say that this conduct is usurious. The applicant has shown an entitlement to levy a fee equivalent to 30 % of total monthly subscriptions as cancellation fees. The applicant has shown an entitlement to the order sought.</p> <p>            In the result it is ordered that:</p> <ol> <li>Cancellation of the sale agreement concluded between applicant and respondent, dated 28 August 2013, for stand 1072 Merwede Township of Lot 1 Subdivision A of Merwede of Glaudina of Subdivision A of Gillingham, also called Stand 1072, be and is hereby confirmed.</li> <li>Respondent and those claiming occupation through her be and are hereby ordered to vacate stand 1072 above within ten days of this Order, failing which the Sheriff of the High Court be and is hereby authorised to eject the respondent and all those claiming occupation through her from Stand 1072 above.</li> <li>The respondent be and is hereby ordered to remove the perimeter wall and structure she erected on stand 1072 above, without applicant’s authority ,within 14 days of service of this order on her, failing which the Sheriff of the High Court be and is hereby authorized to remove same at a cost to the respondent.</li> <li>The applicant be and is hereby authorised to withhold from the amount paid-in by the respondent, the sum equivalent to 30% of instalments payable as cancellation fees.</li> <li>Respondent to pay costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Gutsa and Chimunga</em>, applicant’s legal practitioners</p> <p><em>Muringi and Mugadza</em>, 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/harare-high-court/2019/456/2019-zwhhc-456.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31770">2019-zwhhc-456.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/2019/456/2019-zwhhc-456.pdf" type="application/pdf; length=179238">2019-zwhhc-456.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/instalment-sale">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/2017/143">Saltana Enterprises (Pvt) Ltd. v Takundwa &amp; Another (HH 143-17 HC 8564/15) [2017] ZWHHC 143 (08 March 2017);</a></div></div></div> Tue, 16 Jul 2019 10:20:36 +0000 admin 9350 at https://old.zimlii.org Zisengwe v Moyana (HH 27-19, HC 7379/16) [2019] ZWHHC 27 (23 January 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/27 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PAUL ZISENGWE</p> <p>versus</p> <p>LUKA MOYANA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA J</p> <p>HARARE, 6 September 2018 &amp; 23 January 2019</p> <p> </p> <p><strong>Opposed Application</strong></p> <p><em>K. Kachambwa</em>, for applicant</p> <p>Respondent in Person</p> <p>MUSAKWA J: In this application the applicant is seeking an order nullifying the agreement of sale in respect of stand number 2485 Glen Lorne, Folyjon, that the respondent be ordered to pay $112 500.00 plus costs of suit.</p> <p>The background is that on 1st November 2006 the applicant entered into an agreement of sale with the respondent in respect of stand number 2485 Glen Lorne, Folyjon. The applicant paid ZW$28 000 000.00 upon signing of the agreement. According to the applicant he was of the impression that the respondent held rights which would be ceded by the City of Harare in terms of clause 3 of the agreement. In pursuit of the cession the applicant’s legal practitioners addressed a letter to the City of Harare’s Director of Housing and Community Services on 31 March 2016. In that letter they sought cession. They also sought to know whether the respondent held rights to the property. A reply dated 11th May 2016 by the Acting Director of Housing and Community Services was to the effect that their records did not reflect that records did not disclose that the respondent had rights to the property. The letter further suggested that confirmation be sought with the Surveyor General whether the stand existed on the general plan.</p> <p>Because he has never been able to have the property registered in his name, the applicant prays that the agreement be declared null and void. According to the applicant advice was sought from the Reserve Bank of Harare regarding the rate of exchange applicable in 2006. The rate of exchange was put at US$1 to ZWD250. This translates to US$112 500.00. The applicant further contends that the respondent has been unjustly enriched to that extent.</p> <p>In his opposing affidavit the respondent avers that he purchased six residential stands from Sally Mugabe Heights Housing Co-operative. Land development was undertaken by three successive developers. As a result the land layout was altered. This means the numbering was also altered. For example, the third developer introduced a three digit numbering as opposed to four. What did not change was the database.</p> <p>It was also a requirement that those who purchased land from Co-operatives should be vetted by the local authority. Since the respondent already owned another stand he was disqualified and directed to cede the stands to other people. In the transaction relating to the present matter, the applicant was represented by his brother. Payments were made to the Co-operative. The developer also wrote to the applicant. Since the stand in question is available the issue is between the applicant and the developer.</p> <p>The respondent also trips in his opposition. In one instance he claims that he holds rights in the stand. Then in another instance he claims that he no longer holds rights in the stand as he signed off everything. As such, he claims that delivery of the stand should be sought from the Co-operative and the developer.</p> <p>The respondent also raised three points <em>in limine</em>. The first point is that the applicant should have joined other parties who have something to do with the stand. These are City of Harare, Arosume, Sally Mugabe Housing Co-operative, Fingold Real Estate and Israel Zisengwe.</p> <p>On the second point, the respondent claims that there are material disputes of fact. There is no elaboration on the issue.</p> <p>The third point <em>in limine</em> is that the present application should not be entertained until the applicant pays costs in HC 14 388/12. Apparently the applicant instituted proceedings which were subsequently withdrawn. The respondent takes issue with the non-payment of the attendant costs.</p> <p>In his submissions Mr <em>Kachambwa</em> attacked the points <em>in limine</em> as being ill-taken. He submitted that the property that was described in the agreement does not exist. On that basis the sale is null and void. On the issue of non-joinder of other parties, he submitted that joinder would only be relevant if a party has direct and substantial interest. In light of the fact that this is simply an agreement involving a seller and a purchaser which was not fulfilled, the relief sought does not require anyone else to comply with it. The applicant is not seeking transfer of the property.</p> <p>On the issue of material dispute, Mr <em>Kachambwa</em> submitted that such dispute must be real. The dispute between the parties relate to a non-existent property as confirmed by the City of Harare. Whilst the property in dispute is supposed to be situated in Folyjohn the respondent is offering the applicant an alternative stand in Carrick Creagh.</p> <p>Concerning the issue of costs that the applicant is said not to have paid, Mr <em>Kachambwa</em> submitted that the issue is well settled. He cited the case of <em>Sibusisiwe Bango </em>v <em>A. H. S. Madlela </em>HB-136-15.</p> <p>Mr <em>Kachambwa</em> further submitted that the requirements for the relief sought are met as the applicant’s interest is based on him being a purchaser. The cause of action arises from an agreement of sale. An essential requirement in an agreement of sale is identification of the subject matter of the sale. Since the respondent does not dispute these averments the sale is null and void. He prayed that the declaratory order be granted together with consequential relief.</p> <p>The respondent insisted that the agent who represented the applicant should be joined. Failing that, it was his submission that the court would be hamstrung in making a proper decision. This is because, as further submitted by the respondent, the urgent is in a better position to explain the status of the stand. On this aspect, the respondent is way off the mark. He forgets that it is for him to proffer a valid defence. He made similar submissions about the developer and Sally Mugabe Housing having acknowledged the existence of the property. Again, this counts for nothing. If he wanted their evidence he should have secured their supporting affidavits.</p> <p>On costs, the respondent submitted that the applicant has in the past initiated litigation and subsequently withdrawn the cases. No costs have been paid in those matters. He then submitted that in order for those cases to be satisfactorily concluded other parties must be joined. This submission has nothing to do with costs.</p> <p>The respondent insisted that the dispute cannot be resolved on the papers. He was of the conviction that if evidence is led it would pain a totally different picture.</p> <p>Quite clearly the respondent is a victim of being a litigant and his own lawyer. His submissions were largely pedestrian on account of being a self-actor. As pointed out by takuva J in <em>Sibusisiwe Bango </em>v<em> A. H. S. Madlela supra</em> the claim by the respondent that the applicant should first tender costs in the withdrawn matters applies to actions and not court applications. There is nothing to prevent the respondent from preparing his bill of costs, having it taxed and then enforcing it against the applicant.</p> <p>The issue of non-joinder of other would be interested parties is a red herring. As submitted by Mr <em>Kachambwa</em>, the applicant is not seeking transfer or cession of rights. The legal dispute is really between the present parties.</p> <p>The nub of the matter is that the parties entered into an agreement of sale in respect of a property described as ‘certain piece of land situate in the District of Salisbury called stand 2485 Glen Lorne Folyjon measuring 8270 square metres.” The City of Harare could not confirm the existence of such a stand. For some inexplicable reason the respondent countered by attaching to his opposing papers a note headed Carrick Creagh Development Borrowdale East/ Sally Mugabe Development in which is stated that the final allocation to the applicant is stand 238. This is a radical departure from the agreement. The respondent did not avail a diagram which depicts the stand and its location. I note though that that there is reference to some diagram that is not before the court. In his answering affidavit the applicant avers that the diagram in question relates to stand 2485 Carrick Creagh Township measuring 8 720 square metres. In the absence of the particular diagram depicting stand 2485 Glen Lorne Folyjon measuring 8270 square metres, the inescapable conclusion is that the stand does not exist.</p> <p>It is difficult to ascertain whether stand number 2485 Glen Lorne Folyjon existed at the time the parties concluded the contract. As of the present moment there is no proof of the existence of the stand. It follows that the applicant is entitled to the declaratory order and consequential relief.</p> <p> Accordingly, it is ordered as follows-</p> <ol> <li>The sale agreement that was concluded between the applicant and the respondent in respect of stand 2485 Glen Lorne Folyjon on 1st November 2006, is declared null and void.</li> <li>The respondent shall pay the applicant $112 500.00.</li> <li>The respondent shall pay the applicant’s costs.</li> </ol> <p> </p> <p><em>Kanokanga &amp; Partners</em>, applicant’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/harare-high-court/2019/27/2019-zwhhc-27.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22654">2019-zwhhc-27.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/2019/27/2019-zwhhc-27.pdf" type="application/pdf; length=124877">2019-zwhhc-27.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li></ul></span> Tue, 19 Feb 2019 12:58:21 +0000 admin 9272 at https://old.zimlii.org Nzara & 3 Others v Kashumba N.O. & 3 Others (SC18/18, Civil Appeal No. 137/16) [2018] ZWSC 18 (12 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/18 <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>DISTRIBUTABLE</strong><strong>      (16)</strong></p> <p><strong>     1. SHORAI MAVIS NZARA  2. AAROLA TAKUDZWA TENDAI IDEHEN  3. AMOSEGE RUDO IDEHEN  4. OSARETIN TANAKA FEMI IDEHEN</strong></p> <p><strong>v </strong></p> <p><strong>1. CECILIA KASHUMBA N.O  2. THE REGISRAR OF DEEDS  3. MASTER OF THE HIGH COURT  4. TAFIRENYIKA KAMBARAMI</strong></p> <p>                         </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BEFORE GARWE JA; GUVAVA JA; UCHENA JA</strong></p> <p><strong>HARARE: JUNE 2, 2017 &amp; MARCH 12, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu</em>, for the appellants</p> <p><em>L. Uriri</em>, for the first respondent</p> <p><em>T.L. Mapuranga</em>, for the fourth respondent</p> <p> </p> <p> </p> <p><strong>UCHENA JA</strong>: This is an appeal against part of the judgment of the High Court Harare.</p> <p> </p> <p>The first appellant, Shorai Nzara, (Shorai) is the mother of the second to fourth appellants to whom she donated the property that forms the subject of this dispute. The first respondent Cecilia Kashumba N.O. was the wife of the late Dzingai Kashumba and is the executrix dative of his estate. Dzingai Kashumba (Dzingai) entered into an agreement of sale with Shorai Nzara the original owner of the property at the heart of this seventeen-year-old dispute. The second respondent is the Registrar of Deeds who was cited in his official capacity as the official who registers title of immovable properties. The third respondent is the Master of the High Court, cited in his official capacity as the official who exercises oversight over deceased estates. The fourth respondent Tafirenyika Kambarami bought a sub-division of the land in question from Cecilia Kashumba in her capacity as the late Dzingai’s estate’s executrix dative.</p> <p> </p> <p>The detailed facts of the case are as follows;</p> <p> </p> <p>On 12 May 1999, the first appellant, Shorai entered into an agreement of sale with the now late Dzingai for the sale of two proposed stands - being stand number 552 and 553 Quinington Township of Subdivision “A” of Subdivision “F” of Quinington of Borrowdale Estate. At the time the parties entered into the agreement the two stands constituted one property for which a subdivision permit had been granted by the City of Harare.</p> <p> </p> <p>Shorai instituted application proceedings for the cancellation of the agreement of sale, under case number HC10065/00. She claimed that Dzingai had breached the agreement of sale, as he had not paid the full purchase price. The court (per BARTLETT J) accepted that Dzingai had not paid the full purchase price but held that the first appellant had not lawfully cancelled the agreement as she had not given Dzingai the mandatory 30 days’ notice in terms of s 8 (2) (c) (ii) of the Contractual Penalties Act [<em>Chapter 8:04</em>]. In terms of s 8 (2) (c) (ii) a purchaser is entitled to a notice period of 30 days within which to pay the purchase price before the contract can be cancelled. BARTLETT J ordered Dzingai to pay the outstanding amount within 30 days failing which the contract could be lawfully cancelled. That judgment was handed down on 9 May 2001.</p> <p> </p> <p>Shorai alleges that Dzingai thereafter attempted to pay the outstanding purchase price through her legal practitioners but over fifty days later on 5 July 2001. Apart from the payment having been made out of time, she claimed that he did not tender the outstanding balance in full. She contended that the amount paid was ZW$166 403.25 less than was due and her legal practitioners therefore refused to accept the payment.</p> <p> </p> <p>In view of the above mentioned breaches by the late Dzingai, Shorai again cancelled the agreement and made another application seeking confirmation of the subsequent cancellation. The first respondent argued that payment had been made by cheque to Shorai’s legal practitioners who presented it to his bank for payment. She alleged that his account was debited to the value of that cheque, indicating acceptance of the payment. The first appellant disputed this alleging that the cheque through which the late payment was attempted, was returned to Dzingai’s legal practitioners.</p> <p> </p> <p>The dispute over the outstanding balance was referred to arbitration where an award was made confirming that the purchase price had not been settled and that there remained an outstanding balance. By letter dated 4 June 2002 the appellant’s legal practitioners again advised Dzingai’s legal practitioners that the contract had been cancelled.  The first respondent conceded that this position was made clear to Dzingai but contented that the cheque he presented to Shorai’s legal practitioners was presented to his bank and debited from his account. She did not however dispute that the amount held by the Arbitrator to have been outstanding had not been paid.</p> <p> </p> <p>Shorai alleged that there was no response to her letter of 4 June 2002 till 10 July 2002 when Dzingai purported to pay the outstanding balance. On 12 July 2002 her legal practitioners wrote another letter to Dzingai’s legal practitioners stressing that the contract had been cancelled and enclosing a cheque for ZW$454 037.93, being the money the respondent had tendered in his attempt to pay part of the outstanding balance.</p> <p> </p> <p>Shorai alleges that notwithstanding the cancellation of the contract Dzingai made an application in November 2002 for condonation of his non-compliance with the order of 9 May 2001 but did not pursue it. It was dismissed for want of prosecution in February 2003.</p> <p> </p> <p>It was contended on behalf of the late Dzingai’s estate that the application was not an application for condonation <em>per se</em>, but an application for reversal of the donation made by Shorai to her children who are the second to fourth appellants, which it is alleged was in clear violation of the order of the High Court granted by HLATSHWAYO J (as he then was) against the alienation of the property. That order was to remain in force “pending the finalization of the Arbitration proceedings” which were finalised on 28 February 2002. Shorai’s donation to the second to fourth appellants was effected on 31 January 2003 long after the arbitration proceedings had been finalized. The transfer was registered in the Deeds Registry and reflected on the title deeds in the second, third and fourth appellants’ names.</p> <p> </p> <p>On 9 May 2003 Dzingai, through his legal practitioners, filed an application for condonation of his failure to comply with the judgment of BARTLETT J, which Shorai opposed. He subsequently withdrew it when he changed legal practitioners. The new legal practitioners filed another application for condonation for non-compliance with the order of 9 May 2001 in which Dzingai argued that Shorai had no <em>locus standi</em> in the matter as she had donated her interest in the property to the second to fourth appellants. </p> <p> </p> <p>In that application Dzingai argued that the full purchase price except the interest had been paid by August 2000. He therefore admitted that he had not paid the accrued interest. He maintained that the purported cancellation was a nullity at law. He disputed Shorai’s right to cancel the agreement.</p> <p> </p> <p>Dzingai argued that the matter only went for arbitration to clarify the issue of the outstanding interest. On 3 May 2006, while the dispute was still raging, the property was unlawfully transferred from the second to fourth appellants to Dzingai Kashumba.</p> <p> </p> <p>Dzingai died on 30 April 2007. Cecilia Kashumba, his surviving spouse was appointed executrix dative of his estate, substituting him as the first respondent. She entered into an agreement of sale with the fourth respondent, Tafirenyika Kambarami, for the sale of one of the contentious properties which the court <em>a quo</em> held to be unlawful.</p> <p> </p> <p>Shorai contested this development as an act of fraud, theft and misrepresentation to the office of the Registrar of Deeds. She claimed that she was unaware of the change of ownership from her children to the late Dzingai.</p> <p> </p> <p>In response to the unlawful transfers the appellants registered caveats against the properties. Shorai pursued her application in the High Court for the confirmation of the subsequent cancellation of the agreement between her and Dzingai, which would in turn cancel deeds of transfer number 3030/06 and 3031/06 which Dzingai unlawfully obtained from Shorai at a time when the property had already been transferred to her children the second to fourth appellants. The transfer was therefore purportedly from the first appellant, who no longer had title, without the involvement of the second to the fourth appellants who now had title.</p> <p> </p> <p>In her evidence to the court <em>a quo</em> Cecilia Kashumba alleged that, contrary to the repeated promises of a refund, the money debited from Dzingai’s bank account was never returned. In heads of argument prepared on behalf of Shorai in the court <em>a quo </em>it was suggested that Dzingai took ownership of the property sometime in 2006, without her knowledge. The court <em>a quo</em> correctly found that the judgment of 9 May 2001 had not been complied with, when it was relied on to get transfer from the second to fourth appellants, who were not parties to that judgment, to Dzingai. Dzingai failed to pay the balance of the purchase price within the time ordered by BARTLETT J, leading to the cancellation of the agreement by the first appellant.</p> <p> </p> <p>In spite of the caveats registered by Shorai and subsequently by the second to fourth appellants against the Title Deeds of stand 553, title was passed to Kambarami by Cecilia in her capacity as the executrix dative of Dzingai’s estate.</p> <p> </p> <p>These are the facts on which the court <em>a quo</em> made the following decisions.</p> <ol> <li>That the transfer of the two stands to the late Dzingai was unlawful.</li> <li>That the late Dzingai and his estate did not pay the full purchase price.</li> <li>That the donation of the two stands by the first appellant to the second, third, and fourth appellants was lawful.</li> <li>That the sale of stand 553 to the fourth respondent was unlawful.</li> </ol> <p> </p> <p>After making these findings the court <em>a quo </em>surprisingly gave Cecilia Kashumba a grace period of thirty days within which to settle the outstanding debt. Dzingai’s estate and Kambarami, the fourth respondent were allowed to remain in possession of the two properties during the grace period. The order further provided that if Cecilia Kashumba failed to pay by the deadline the property would be returned to the appellants and all monies paid to date would be forfeited by the deceased estate.</p> <p> </p> <p>The appellants appealed to this court against the decision of the court<em> a quo. </em>The appeal is based on the following grounds of appeal.</p> <ol> <li>Having come to the conclusion that first and fourth respondents had obtained title irregularly and without lawful cause the court <em>a quo</em> erred in not finding that the requisites for an action <em>rei vindication</em> had been met.</li> <li>Having come to the conclusion that first appellant had been entitled to donate the property to second to fourth appellants and had in fact done so, the court <em>a quo</em> erred in granting consequential relief which completely ignored the rights of the true owners of the property.</li> <li>The court <em>a quo</em> erred in granting relief which had not been sought from it and which the parties had not addressed their argument to and so erred in adopting a course which is incapable of resolving the dispute between the parties.</li> <li>The court <em>a quo</em> erred in coming to the conclusion that the agreement between first appellant and the late Dzingai Kashumba had not been validly cancelled and erred in ignoring an <em>ex nunc</em> cancellation of 4 June 2002.</li> </ol> <p> </p> <p>This appeal raises two issues:</p> <ol> <li>Whether or not a court can grant an order not sought by the parties.</li> <li>Whether or not the law calls for the strict application of the <em>rei vindicatio?</em></li> </ol> <p>               I will address each issue in turn.</p> <p> </p> <ol> <li><strong>Whether or not a court can grant an order not sought by the parties?</strong></li> </ol> <p>Mr <em>Mpofu,</em> for the appellants, citing authorities, which will be analysed below, submitted that the court <em>a quo</em> erred and misdirected itself when it granted relief which had not been sought by either party. Mr <em>Uriri</em> for the first respondent and Mr <em>Mapuranga</em> for the fourth respondent supported the court <em>a quo’s</em> decision without legally establishing the court<em> a</em> <em>quo’s</em> authority to grant orders not sought by the parties.</p> <p> </p> <p>The fact that the court <em>a quo </em>granted orders not sought by the parties can be demonstrated by comparing the orders sought by the parties and the orders granted by the court <em>a quo</em>.</p> <p> </p> <p>In terms of their application and the subsequent notice of amendment the appellants who were the applicants in the court <em>a quo </em>sought the following relief:</p> <ol> <li>“Deed of transfer No 3030/06 held in the name of Dzingai Kashumba be and is hereby cancelled and title in respect of the remainder of Subdivision ‘A’ of Subdivision ‘F’ of Quinington of Borrowdale Estate should revert back to the second, third, and fourth Applicants.</li> <li>Deed of transfer No 773/2011 in the name of Tafirenyika Kambarami be and is hereby cancelled and title in respect of Stand 553 Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate reverts back to second, third, and fourth Applicants”.</li> </ol> <p> </p> <p>Through her opposing affidavit Cecilia Kashumba merely sought the dismissal of the applicants’ application.</p> <p> </p> <p>The fourth respondent in his opposing affidavit also merely sought that the applicants’ application be dismissed with costs.</p> <p> </p> <p>In the determination of the application before it the court <em>a quo</em> made the following orders:</p> <ol> <li>It is hereby declared as follows: <ol> <li>“That the Deed of Sale between the first applicant and the Late Dzingai Kashumba (hereinafter referred to as “the deceased” on 11 and 12 May 1999 in respect of the property described as Stands 552 and 553 Quinington Township of Subdivision A of Subdivision F of Borrowdale Estate, measuring 3 999 square metres and 4002 square metres respectively (hereinafter referred to as “the original property”, was never cancelled.</li> <li>That the balance of the purchase price due and owing by the deceased to the first applicant as at 9 May 2001, in respect of the Deed of Sale aforesaid was never paid.</li> <li>That the transfer of 3 May 2006 in favour of the deceased of the two properties known as certain pieces of land situate in the District of Salisbury, respectively called Stands 552 and 553, Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate, respectively on Deeds of transfer Nos 3030/2006 and 3031/2006 (hereinafter referred to as “Stands 552 and 553 Quinington Township”) was unlawful and therefore invalid.</li> <li>That the subsequent transfer of stand 553 Quinington Township on Deed of transfer No 773/2011 on 17 February 2011 in favour of Tafirenyika Kambarami, was unlawful and therefore invalid.</li> <li>That the balance of the purchase price outstanding, due and owing by the deceased to the first applicant as at 9 May 2001 in respect of the sale and purchase of the original property was in the sum of ZW$503 573-02, being the total of ZW$337 178-77, reflected on the deceased’s cheque subsequently rejected by the first applicant, and ZW$166 394-25 subsequently found by the arbitrator to have been the shortfall on the cheque amount aforesaid.</li> </ol> </li> <li>Notwithstanding the declaration of invalidity of the transfers referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5 and 6 below, if the 1st respondent pays, or causes to be paid, to the applicants, or one or other of them, the one receiving payment, the others to be bound, the equivalent of the balance of the purchase price referred to in paragraph 1.5 above in the functional currency current at the time of payment, together with interest thereon as envisaged herein, then the title deeds in respect to which the transfers aforesaid have been declared unlawful and invalid shall not be set aside, and the declarations of invalidity herein shall automatically lapse.</li> <li>Unless the equivalent amount of the balance of the purchase price referred to in paragraph 1.5 above is otherwise agreed to in writing within thirty (30) calendar days of the date of this order, or such other extended period not exceeding a further thirty (30) calendar days as they may agree to in writing, the parties shall engage the Commercial Arbitration Centre in Harare solely to determine the equivalent amount of that balance, in any of the functional currencies, and the decision of the arbitrator shall be final and binding.</li> <li>The first respondent shall pay the equivalent amount of the balance of the purchase price referred to above within thirty (30) days of the date the amount is ascertained either by agreement between the parties, or through determination by arbitration as contemplated by paragraph 3 above, together with interest thereon at the prescribed rate from the date of such agreement or determination, whatever the case might be, to the date of payment.</li> <li>In the event that the first respondent fails or neglects to pay as envisaged in this order, then the applicants, or one or other of them, shall <em>ipso facto</em>, <strong>forthwith have the right to declare in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law,</strong> shall be entitled to keep as rouwkoop all such monies as they might have received as purchase price for the original property.</li> <li>Subject to any rights to compensation for improvements that they have in the event that the title deeds mentioned herein have been cancelled as aforesaid, the first and fourth respondents, and all those claiming occupation through them, shall, within thirty (30) calendar days of the date of such cancellation, vacate, the respective properties occupied by them, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, or such of his agents as might be duly authorized by him, shall be empowered, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.</li> <li>Save and except for the fourth respondent whose costs of suit shall be borne by the first and second respondents, jointly and severally, the one paying the other to be absolved, each party shall bear its own costs”. (emphasis added)</li> </ol> <p> </p> <p> </p> <p>It is clear from the court<em> a quo’s </em>orders that some of the orders it granted had not been sought by either party. It is also clear that parties had not made submissions for or against those orders. They were granted <em>mero motu </em>by the court <em>a quo.</em> It did so without seeking the parties’ views on those orders. There is no doubt that the court <em>a quo </em>exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.</p> <p> </p> <p>The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court’s mind but has not been raised by the parties or addressed by them either in their pleadings in evidence or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.</p> <p> </p> <p> In <em>Welkom Municipality v Masureik</em> <em>and Herman T/A Lotus Corp</em> 1997 (3) SA 363 at 371 G-H Marais JA commenting on what the court should base its decision on said:</p> <p>“I should add that whether or not South Africa did or did not fail to do so is a question of fact upon which there was no evidence before the court <em>a quo</em>, and for reasons too obvious to require enumeration, the learned Judge <strong>was not entitled to enquire into this issue of fact after reserving judgment and without any reference to the parties, and then to decide it. </strong>Compare <em>Kauesa v Minister</em> of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H – 974C.” (emphasis added)</p> <p> </p> <p> </p> <p>In the Namibian case of <em>Kauesa v Minister</em> <em>of Home Affairs and Others</em> 1996 (4) 965 (NmS) DUMBUTSHENA AJA at pages 973H to 974C said:</p> <p>“The above matters are not crucial to the determination of this appeal. They are however, important because a frequent departure from counsel’s, more correctly the litigant’s case, may be wrongly interpreted by those who seek justice in our courts of law. <strong>It is the litigants who must be heard and not a judicial officer.</strong></p> <p> </p> <p><strong>It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the Judge’s point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.</strong></p> <p> </p> <p>To produce a wide –ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court <em>a quo</em> has placed this court in a difficult position. Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued? In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court <em>a quo</em>.”</p> <p> </p> <p> </p> <p>Before leaving this aspect of the appeal I consider it   appropriate to refer to what was said by BHAGWATI J (as he then was) in <em>M. M. Pathak v Union</em> (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:</p> <p><strong>“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case”. </strong>(emphasis added)</p> <p> </p> <p> </p> <p>In <em>Groenewald NO and Anor v Swanepoel</em> 2002 (6) SA 724 at 726 I to 727 A, PICKERING J commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence and submissions of the parties said:</p> <p>“It was therefore <strong>the duty of the learned Judge to have informed plaintiff’s counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her. </strong>Had she done so counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.</p> <p> </p> <p>Secondly, <strong>the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretoriu<em>s</em>. It would appear that she must have gleaned this information from some outside source. It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings or raised in court constitutes a serious misdirection.” (emphasis added)</strong></p> <p> </p> <p> </p> <p>I respectfully agree with the views expressed in the authorities referred to above. The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.</p> <p> </p> <p>This position has become settled in our law. Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties’ issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties. The judgment of the court<em> a quo </em>unfortunately fell short of these guiding principles. In seeking to find middle ground, the court <em>a quo</em> granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.</p> <p> </p> <p>Such orders cannot be sustained at law. They seem to have been motivated by equity and sentiments of justice rather than the law and the facts, as demonstrated by the court <em>a quo’s</em> narration of the exploits of the legendry “judge jackal” in setting free a man who was about to be eaten by a leopard he had rescued from a trap. Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.  In <em>Proton Bakery (Pvt) Ltd v Takaendesa</em> 2005 (1) ZLR 60 (S) at page 62E-F GWAUNZA JA said:</p> <p>“The appellant argues, in the light of all this, that the action of the court <em>a quo</em> in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.</p> <p>I am, for the reasons outlined below, persuaded by this argument …</p> <p> </p> <p>The misdirection on the part of the court <em>a quo</em> is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”</p> <p> </p> <p>The determination by the court <em>a quo</em>, of matters not placed before it, goes against a litigant’s right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. Evans at pages 157-158 where it was highlighted that the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks. This principle has been adopted in our system under the <em>audi alteram partem </em>Rule. Therefore, the fact that the respondents are not taking issue with the court’s <em>mero motu</em> decision is, neither here nor there. This irregularity militates against the validity of parts of the judgment of the court <em>a quo</em>.</p> <p>The “grace period” of thirty days granted to the first respondent by the court <em>a quo</em> has no founding at law and cannot be legally justified. The initial thirty days awarded by BARTLETT J were in terms of the Contractual Penalties Act. The purchaser, having already been granted this thirty-day period in terms of the law, cannot be granted a further thirty-day period not provided for in terms of the law, to the prejudice of the seller on no legal basis. Judicial discretion should at all times remain guided by the dictates of the law.</p> <p> </p> <p>A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.</p> <p> </p> <ol> <li><strong>Whether or not the law calls for the strict application of the <em>rei vindicatio</em>?</strong></li> </ol> <p>Mr <em>Mpofu</em> for the appellants submitted that in view of the court <em>a quo’s</em> findings, the appellants’ ownership of the property ‘should have been vindicated by the court <em>a quo </em>regardless of the court <em>a quo’</em>s considerations of equity and justice, on the basis of the strict application of the<em> rei vindicatio</em>. Mr <em>Uriri</em> for the first respondent and Mr <em>Mapuranga</em> for the fourth respondent without laying a clear legal basis for their submissions supported the court <em>a quo’</em>s decision.</p> <p> </p> <p>The court <em>a quo</em> came to the conclusion that the contract was never properly cancelled at the instance of Shorai Nzara. However, by the time Dzingai attempted to claim title based on the judgment of 9 May 2001 which had superannuated and the time within which payment should have been made had long passed. Therefore, the late Dzingai failed to perform his obligations in terms of the contract. He therefore could not lawfully claim title to the property. This means transfer to him was unlawful and the subsequent sale and transfer to Kambarami was a nullity. R.H. Christie in his book “Business Law in Zimbabwe” states as follows:</p> <p>“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass owner ship that was not his. The true owner can bring vindicatory action to recover his property from anyone including a <em>bona fide</em> buyer.”</p> <p> </p> <p> </p> <p>These are precisely the circumstances the first respondent and fourth respondent found themselves in and as a result the appellants contend that the court <em>a quo</em>, having found that ownership never lawfully passed to the first respondent that should have been the end of the matter and the principles of the <em>rei vindicatio</em> ought to have been applied with full force and effect. The land should have been returned to its rightful owners.  </p> <p> </p> <p>The late Dzingai failed to pay and finalize the sale agreement in terms of the judgment of 9 May 2001. He could not therefore rely on a judgment he had not complied with to enforce the agreement of sale. He could not seek transfer of the property to himself without complying with the legal requirements of a contract of sale. He in fact admitted that, he did not pay the full purchase price after BARTLETT J’s judgment. That entitled the first appellant to an immediate cancellation of the agreement as she did on 4 June 2002. In its own order giving a further grace period as BARLETT J had previously done the court <em>a quo</em> had in para 5 of its order ordered that if payment was not made as per its order the appellants would be entitled to “<strong>forthwith have the right to declare in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law”. </strong></p> <p> </p> <p>This is an admission that a party who has been given notice through a court order as required by the Contractual Penalties Act, need not be given a further such notice in terms of the Contractual Penalties Act. The seller can cancel immediately as was submitted by Mr <em>Mpofu</em> for the appellants.</p> <p> </p> <p>As the late Dzingai never lawfully owned and held title to the property, his estate could not alienate the said property. Cecilia his executrix dative could not sell property which did not belong to her late husband’s estate. The purported sale was also tainted by Cecilia’s misrepresentation in an affidavit that the property was not subject to any disputes.  This lie was intended to mislead the purchaser into the agreement of sale, and facilitate its transfer.</p> <p> </p> <p>The first respondent therefore sold the subdivision to the fourth respondent through deceit. That cannot justify transfer of the appellants’ property to the fourth respondent.  </p> <p> </p> <p>After title was transferred, and a subdivision was sold, developments were allegedly made to the land in dispute. It must be noted that the respondents’ counsel only raised the issue of vast and substantial improvements on the property from the bar on appeal. The alleged improvements were vaguely referred to, but were not quantified. No evidence was led to establish their existence and their value.</p> <p> </p> <p>Therefore, the claim for improvements, not having been properly raised or quantified, cannot be taken into consideration by this court. Nevertheless, even if these issues had been properly raised and quantified in the court <em>a quo</em>, the title of an owner is so respected that the <em>rei vindicatio</em> operates against a third party who innocently purchases the property even where improvements or developments were made. The owner remains entitled to his property. This was made clear in the case of <em>Alspite Investments (Pvt) Ltd v Westerhoff </em>2009 (2) ZLR 236 where MAKARAU JP, as she then was, said:</p> <p>“<strong>There are no equities in the application of the <em>rei vindicatio</em></strong>. Thus in applying the principle, <strong>the court may not accept and grant pleas of mercy or for extension of possession of the property</strong> by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. <strong>It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership</strong>. The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner child may be clutching at the time. <strong>It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it</strong>.” [My emphasis]</p> <p> </p> <p> </p> <p>This case therefore sanctions ruthless vindication of the owners’ rights. Ownership is a well-guarded title in property law. For this reason, after finding the second, third and fourth appellants to be the true owners, the court <em>a quo</em> was bound by law to vindicate their title to the land. One of the critical maxims of property law is <em>nemo plus iuris transfer e protest quam ips habet</em> – translated as meaning that an owner cannot, as a general rule, be deprived of his property against his will. Therefore, where an owner’s property is sold and delivered without his consent his right to ownership can be vindicated from any person. Silberberg and Schoeman in their Second Edition of “The Law of Property” at page 268 make it clear that the maxim stands firm even where the third party acquires the property in good faith, having paid a fair market value and acted in all innocence. Our law calls for ruthless vindication and protection of the right of ownership. Counsel for the appellants cited the words of Holmes JA in the case of <em>Oakland Nominees Ltd v Gelria Mining &amp; Investment Ltd</em> 1976 (1) SA 441 (A) at page 452 where he said:</p> <p>“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property… if the law did not jealously guard and protect the right of ownership and the correlative right of the owner to his/her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”</p> <p> </p> <p>In view of the arguments put forward on behalf of the fourth respondent two things are clear. Firstly, that his right to title is directly and inextricably linked to whether or not the late Dzingai’s estate owned the property. As it did not, the case of <em>Mashave v Standard Bank of South Africa</em> 1998 (1) ZLR 436(S), is instructive. In that case Mc NALLY JA at page 438 C said:</p> <p><strong>“</strong>…Roman-Dutch law protects the right of an owner to vindicate his property, and as a matter of policy favours him as against an innocent purchaser. See for instance <em>Chetty v Naidoo</em> 1974 (3) SA 13 (A) at 20A-C. The innocent purchaser’s only defence is estoppel. Estoppel depends upon an allegation that a representation was made by the owner or claimant.”</p> <p> </p> <p>Therefore, having found that Dzingai was not entitled to transfer, the sale to the fourth respondent was rendered <em>void ab initio. </em></p> <p> </p> <p>The court <em>a quo</em> ordered that should Dzingai’s estate fail to pay the balance in terms of its order the payments Dzingai made to Shorai would be kept by her as rouwkoop. Cecilia Kashumba did not cross appeal against that order. In my view that order is fair and just as Dzingai and subsequently his estate occupied the property in dispute for 17 years during which he fraudulently transferred it to himself and his estate sold the subdivision to Kambarami. Section 9 (3) (c) and (d) of the Contractual Penalties Act allows the court to take such factors into consideration. It reads:</p> <p>“(3) In assessing any relief that may be given in terms of this section, the court shall have regard to all the circumstances of the case and in particular to—</p> <p>(<em>a</em>)----</p> <p>(<em>b</em>)----</p> <p>(<em>c</em>) <strong>the nature of any breach of contract on the part of the purchaser and the circumstances in which it was committed; and</strong></p> <p>(<em>d</em>) the extent to which the purchaser has complied with his obligations during the currency of the instalment sale of land concerned;</p> <p>and <strong>shall balance those amounts against the value of any use or occupation of the land concerned which was enjoyed by the purchaser,</strong> together with any commission or costs which the seller has been required to pay in connection with the instalment sale of land concerned.” (emphasis added)</p> <p> </p> <p> </p> <p>After balancing the manner in which Dzingai conducted himself during the time he enjoyed occupation while deliberately defrauding the appellants and avoiding paying the full purchase price, I am satisfied that the court a quo’s order that Shorai keep the payments he had made is fair and just.</p> <p> </p> <p> </p> <p>Accordingly, having considered argument from both parties, and the findings of the court <em>a quo</em> we order as follows:</p> <ol> <li>The appeal succeeds with costs</li> <li>The judgment of the court<em> a quo </em>be and is hereby set aside and substituted by the following:</li> </ol> <ul> <li>The transfers effected in favour of Tafirenyika Kambarami and Dzingai Kashumba under deed of transfer number 773/2011 for the former and Deed of Transfer numbers 3030/2006 and 3031/2006 for the latter having been found invalid, the Registrar of Deeds is ordered to cancel them.</li> <li>In terms of General Condition 6 of the Deed of Sale the first applicant is entitled to keep as rouwkoop payments she received from the late Dzingai.</li> <li>First and fourth respondents be and are hereby ordered to vacate stands 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate within 30 days of this order, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, be and are hereby, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.</li> <li>The donation made in favour of the second, third and fourth applicants having been found to have been validly and legally made is upheld. The Registrar of Deeds is ordered to reinstate title to the second, third and    fourth applicants as the owners of stand 552 and 553 Quinnington Township of Subdivision A of Subdivision F of Quinnington Borrowdale Estate.</li> </ul> <p> </p> <p> </p> <p><strong>GARWE JA:</strong>                                     I agree</p> <p> </p> <p> </p> <p><strong>GUVAVA JA:</strong>                       I agree</p> <p> </p> <p> </p> <p> </p> <p><em>P. Chiutsi Legal Practitioners, </em>appellant’s legal practitioners</p> <p><em>Kantor &amp; Immerman, </em>1st respondent’s legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; </em>Partners<em>, </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/2018/18/2018-zwsc-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=58971">2018-zwsc-18.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/2018/18/2018-zwsc-18.pdf" type="application/pdf; length=526388">2018-zwsc-18.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/estate">Estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/judge-high-court">Judge (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of 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/property-and-real-rights">PROPERTY AND REAL RIGHTS</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/actio-rei-vindication">actio rei vindication</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership-immovable-property">ownership of immovable property</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/1992/13">Contractual Penalties Act [Chapter 8:04]</a></div></div></div> Fri, 18 May 2018 09:02:49 +0000 admin 8818 at https://old.zimlii.org Hamandishe v Frederick Manyangarirwa N. O. & 3 Others (HH115-18, HC 2802/16) [2018] ZWHHC 115 (08 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/115 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RUMBIDZAI HAMANDISHE</p> <p>versus</p> <p>FREDERICK MANYANGARIRWA N. O.</p> <p>and</p> <p>MR. KUNAKA</p> <p>and</p> <p>MRS KUNAKA</p> <p>and</p> <p>MASTER OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE, 6 June 2017 and 8 March 2018</p> <p><strong>Opposed application</strong></p> <p><em>F. Siyakurima,</em> for applicant</p> <p><em>T. Ngova,</em> for 1st respondent</p> <p><em>J. Mutonono,</em> for 2nd and 3rd respondents</p> <p>CHITAKUNYE J: This is a court application in which the applicant sought an order that:</p> <ol> <li>The sale of a certain piece of land situate in the district of Salisbury called Stand 5603 Budiriro Township of stand 3068 Budiriro Township (herein after referred to as the property) from Estate late Maruta Jawona to 2nd and 3rd Respondents be set aside.</li> <li>Applicant be and is hereby given 60 days to pay to 1st Respondent payment in the sum of US40 000.00 for stand 5603 Budiriro Township of stand 3068 Budiriro Township referred to in paragraph 1 above failing which the property shall be sold on the open market for its open market value.</li> <li> </li> </ol> <p>The basic facts leading to this application were that:</p> <p>The applicant is one of two surviving spouses of the late Maruta Jawona who died intestate at Harare on 17 February 2013.</p> <p>The first respondent was appointed Executor Dative of the estate late Maruta Jawona on 13 October 2013.</p> <p>The late Maruta Jawona owned a number of properties. The applicant lodged a claim for a 50% share in one of such properties namely Stand 5603 Budiriro Township of Stand 3068 Budiriro Township (hereinafter referred to as the property) with the first respondent. The first respondent accepted applicant’s claim as lodged in terms of s 47 of the Administration of Estates Act [<em>Chapter 6:01</em>].</p> <p>During the administration of the estate it was agreed that the property be sold in order to raise funds to meet some of the estate’s liabilities. The first respondent duly obtained the Master’s consent to sell the property.</p> <p>            The applicant offered to buy out the estate’s other 50% share in the property and the offer was duly accepted. In terms of a valuation report dated 13 October 2013, the property was valued at $160 000.00. The applicant was therefore required to pay half that value being a sum of $80 000.00.</p> <p>An agreement of sale was duly executed between the first respondent as executor dative and the applicant on 18 February 2014. In terms of the agreement of sale the applicant was required to raise a bank guarantee for payment of the purchase price within 30 days of the date of signature of the agreement.  She, however, failed to do so despite an extension of time within which to raise the purchase price. She was also given the option to pay in monthly instalments but she still failed to raise the instalments. The applicant was thus in breach of the agreement by failing to pay the purchase price. As a consequence on 11 July 2014, the first respondent sent a letter to the applicant requiring her to rectify the breach within seven days in terms of clause 6 of the agreement of sale failing which the property would be sold to the general public.</p> <p>When the applicant failed to rectify the breach, on 15 September 2014 the first respondent, through his legal practitioners, advised the applicant’s legal practitioners that due to applicant’s breach the agreement of sale was terminated and that the property would be sold to the general public.</p> <p>After the termination of the agreement of sale to the applicant, the property was subsequently sold to the second and third respondents on about the 10th June 2015 for the sum of $80 000.00.</p> <p>The sale was apparently done without the involvement of the applicant though she was aware that upon her failure to pay the purchase price the property would be offered for sale to the general public.</p> <p>When the applicant learnt that the property had been sold she, through her legal practitioners, requested for her 50% share with no success. She was not favoured with any response in that regard; she was not even told the price at which the property had been sold at. It was in this scenario that when she eventually got to know that the property had been sold for $80 000.00 she was livid as, to her knowledge, the property had been valued at $160 000.00 on 25 October 2013 when it was initially offered to her and she could not understand how a property valued at such a value could be sold for $80 000.00 in June 2015.</p> <p>The applicant thus regarded the price at which the property was sold at as grossly unfair and unjust to the estate and to herself as a holder of a 50% claim in the property.</p> <p>It is as a result of the dissatisfaction with the selling price that applicant launched this application. She deemed that the sale was fraudulent and so it must be set aside.</p> <p>In this regard the reasons she outlined for seeking the setting aside of the sale included that:-</p> <p>“a.        The immovable property was sold for half the amount it had been offered to her;</p> <p>b.         she was not given an opportunity to excise her right of first refusal at the reduced price of US$ 80 000.00. In essence she was only obliged to raise US$40 000.00 because her claim for the other 50% share had already been accepted by 1st respondent.</p> <p>c.         1st respondent must have extended the right of 1st refusal to her on the reduced amount of US$ 40 000.00 and he did not do so.</p> <p>d.         1st respondent without just cause acted unlawfully to her prejudice by completely disregarding her pre-emptive right and sold the immovable property in question to 2nd and 3rd respondents for an unreasonably low price.”</p> <p>She thus concluded that the first respondent abdicated his fiduciary duty towards the estate and herself in breach of his duties and responsibilities as executor.  Consequently the sale must be set aside.</p> <p>The first respondent on the other hand contended that the sale to the second and third respondents was done above board and not fraudulent. He contended that when the property was initially offered to the applicant in February 2014 it had been valued at US$ 160 000.00 as per valuation report dated 25 October 2013 tendered. However when the property was sold to the second and third respondents its value had gone down due to dilapidation. The first respondent  further contended that the applicant had retained occupation of the property and had run down the property such that when a second valuation was done on 26 March 2015 it was valued at  US$ 75 000.00 as the open market price with a forced sale price of  US$50 000.00. He also attached the valuation report.</p> <p>The first respondent maintained that the market forces coupled with the dilapidated state of the building led to a lower value being realised. He thus contended that in the face of the second valuation, the price of US$ 80 000.00 was a fair market price for the property at the time it was sold to the second and third respondents.</p> <p>He also alluded to the fact that the property has in fact already been transferred to the second and third respondents.</p> <p>Regarding the issue of right of first refusal the first respondent contended that he never granted applicant any right of first refusal.</p> <p>The second and third respondents on their part denied any wrong doing. They denied being part to any fraudulent activity <em>vis- a- vis</em> the sale of the property in question.</p> <p>The second respondent contended that they are innocent purchasers who bought the property for its fair value at the time of purchase. He alluded to the fact that he has since taken transfer.</p> <p>            As regards the manner of purchase the second respondent stated that the property was advertised in a local newspaper as a result of which he responded and bought the property. There was therefore no collusion between the purchasers and the first respondent to defraud or prejudice the applicant as the purchasers were not even aware of the alleged prior agreement of sale between the first respondent and the applicant.</p> <p>He maintained that in the circumstances the balance of convenience favoured that the purchasers retain the property and if applicant has any financial claim she can always lay that against the estate.</p> <p>The fourth respondent‘s response to the application was to the effect that the applicant was given the first option to buy the property and upon her failure to do so the property was sold to the second and third respondents and there was nothing amiss in that.</p> <p>From the papers filed of record and submissions made the main issues may be stated as follows:</p> <p> 1.        Whether the applicant had a right of first refusal</p> <p>2.         Whether the first respondent’s sale of the property to second and third respondent was fraudulent and</p> <p>3.         Whether the sale to second and third respondents should be cancelled.</p> <p>The issues will be dealt with in seriatim.</p> <p>1.         Whether the applicant had a right of first refusal.</p> <p> The applicant averred that she had a right of first refusal.  The applicant’s argument is premised on the failure by the first respondent to offer her another opportunity to buy the property at the reduced price of US$80 00.00.</p> <p>That right is apparently derived from the fact that the first respondent had accepted her claim of a 50% share in the property in question and had also accepted her offer to buy the estate’s other half share in the property. It is that option given to her when she made her offer that she apparently viewed as a right of first refusal. She thus opined that when the price was reduced she ought to have been given another opportunity to buy the property at the reduced price of $ 80 000.00 as this would have required her to raise only $40 000.00.</p> <p>It is pertinent to appreciate a right of pre-emption or first refusal and how it arises.</p> <p>In <em>Business Law in Zimbabwe</em> 2nd Ed, Juta &amp; Co. by R H Christie at p 146 the learned author stated that:-           </p> <p>“A right of pre-emption or first refusal differs from an option by giving the holder the right to buy in priority to other prospective buyers if and when the seller decides to sell.”  </p> <p> </p> <p>In <em>Central African Processed Exports (Pvt) Ltd &amp; Ors</em> v <em>Macdonald &amp; Ors</em> 2002 (1) ZLR 399 (S) at 403 C – H, Malaba JA (as he then was) quoted with approval Nicholas JA in <em>Soteriou</em> v <em>Retco Poyntons (Pty) Ltd</em> 1985 (2) SA 922 (A) at 932 B – G, where the learned judge stated that:</p> <p>“A right of first refusal is well known in our law.  In the context of sale, it is usually called a right of pre-emption.  The grantor of such a right cannot be compelled to sell the property concerned.  But if he does sell, he is obliged to give the grantee the preference of purchasing and consequently he is prevented from selling to a third person without giving the first refusal------. So, a right of pre-emption involves a negative contract not to sell the property to a third party without giving the grantee the first refusal; and the grantee has the correlative legal right against the grantor that he should not sell.  This is a right which is enforceable by appropriate remedies ------. “</p> <p>See also <em>Nerger Properties (Pvt) Ltd</em> v <em>R. Chitrin &amp; Ors (Pvt) Ltd</em> 2006 (2) ZLR 287 (S).</p> <p>In Eastview<em> Gardens Residents Association</em> v <em>Zimbabwe Reinsurance Corporation (Ltd)</em> <em>&amp; Ors </em>2002 (2) ZLR 543 (S) at 548 G – H, Malaba JA (as he then was) explained a right of first refusal in these terms:</p> <p>“A right of first refusal or pre-emption is created when, in an agreement, one party(the grantor) undertakes that when he decides to sell his property he will give the other party(the grantee) the opportunity of refusing or buying of the property at a price equal to that offered by another person. The grantor is then said to be under an obligation to do, at the time he sells the property, what he voluntarily bound himself to do, that is, offer the property to the grantee first at a price equal to that offered by a third party or which he is prepared to accept from any other would be buyer. The grantee is said to have acquired the correlative right to have the property offered to him first so that he can match the price offered by the third party or refuse the offer.”</p> <p>After citing a number of case authorities on the subject the learned Judge proceeded to state at p 549B-C that:-</p> <p>“It is clear from all these decided cases that a right of pre-emption can only be created by contract or agreement between the grantor and the grantee. Where breach of the right is alleged as a cause of action and its existence is denied, the onus is on the plaintiff to show that there was an agreement between the parties in terms of which the defendant undertook to offer to him the property at a price equal to that offered by another.”</p> <p>            It is axiomatic that for a right of first refusal to exist there must be a contract or agreement between the grantor and the grantee.  In <em>casu</em>, it is common cause that the agreement of sale between the applicant and the first respondent did not contain any right of first refusal. In any case that agreement was duly terminated and had no residue right of first refusal. As at the time the property was sold to the second and third respondents there was no subsisting contract or agreement between applicant and the first respondent, let alone one from which a right of first refusal could be deduced.</p> <p>It may in fact be noted that in most of her founding affidavit the applicant did not allude to any agreement on a right of first refusal. For instance, in the founding affidavit after narrating how her claim for a 50% share was accepted and the fact that she had then offered to buy the property which agreement of sale fell through as she could not raise the purchase price, the applicant proceeded to explain her misgivings about how that property had been sold to the second and third respondents at half the price the property had been offered to her. It is apparent from the affidavit that her claim for a right of first refusal is based on her assertion that when first respondent decided to sell at a lower price he ought to have made her that offer first. This claim is not based on an agreement of first refusal. Nowhere in paragraphs 1 to 19 of her founding affidavit did applicant allude to any agreement she entered into with the first respondent granting her a right of first refusal.</p> <p>It is only in paragraph 20 that the mention of a right of first refusal is made for the first time wherein she states, <em>inter alia</em>, that:</p> <p>“I was not given an opportunity to exercise my right of first refusal at the reduced price of US$ 80 000.00. In essence I was only obliged to raise US$ 40 000.00 because my claim for the other fifty percent share had already been accepted by 1st respondent.</p> <p>The first respondent must have extended the right of first refusal to me on the reduced amount of US$ 40 000.00. He did not do so.</p> <p>The first respondent, without just cause acted unlawfully to my prejudice by completely disregarding my pre-emptive right and sold the immovable property in question to the second and third respondents for an unreasonably low price.”</p> <p>The applicant did not state how that right of first refusal referred to in paragraph 20 arose.</p> <p>In her answering affidavit the applicant did not refute the first respondent’s contention that there was in fact no agreement granting her a right of first refusal. The agreement of sale which she had entered into did not offer her a right of first refusal should the property be offered to anyone else at a lower price. It is clear from the answering affidavit that her grievance from which she believed that she ought to have been given a right of first refusal pertained to the price at which the property was sold. It had nothing to do with a standing contract or agreement between the parties granting her such right. The only agreement that the parties had entered into had been lawfully terminated and, as already alluded to above; it had no clause on right of first refusal.</p> <p> The plaintiff also sought to argue that the right of pre-emption or first refusal arose from having been allowed to buy the estates’ other 50% share in the property in question. I am of the firm view that the acceptance of a creditors’ claim under the Administration of Estates Act [<em>Chapter 6:01</em>] does not translate to a grant of a right of first refusal.</p> <p>In <em>casu,</em> the acceptance of applicant’s claim to a 50% claim to the property and the acceptance of her offer to buy the other 50% share did not create a right of first refusal. The applicant had in fact been informed that as she had failed to buy the property the property would be offered to the general public.</p> <p>The applicant’s Counsel whilst raising questions of lack of probity on the part of the first respondent was still not able to point at any agreement wherein applicant was granted a right of first refusal. He in fact conceded that there was no such written or even unwritten agreement of first refusal. Counsel, however, argued that such agreement is implied from the fact that applicant as one of the surviving spouses had her 50% claim accepted by the first respondent, so she ought to have been given the opportunity to buy the property at the reduced price. Her initial failure to purchase the property was due to its price hence when its price was now reduced to half its original price applicant should have been offered the property. That, in my view, would still not be an agreement on a right of first refusal. Applicant had simply been given an opportunity to buy the property as she had offered to do so at the price that had been set by the first valuation.</p> <p>Further, the question of lack of probity raised over the first respondent’s conduct was disputed. The first respondent clearly contended that there was never any agreement granting applicant a right of first refusal. In any case when the agreement to sale the property to applicant was cancelled the applicant was advised that the property would now be offered to the general public and so the applicant was all along aware that the property was being offered for sale to third parties.</p> <p>I am of the firm view that the applicant lamentably failed to establish that there was any agreement granting her a right of first refusal.</p> <p>2.         Whether or not the first respondent fraudulently sold the property to the second and third respondents</p> <p>The applicant’s allegations in this regard were to the effect that the whole transaction whereby the first respondent sold the property at half its original value, without giving her the right of first refusal and without informing her of the reduced value, smacked of dishonesty of the highest order and was outright fraudulent. She also alleged that the second valuation report was not properly done and that the first respondent was not a qualified estate agent for him to have sold the property. The tone of the applicant’s stance showed clearly her displeasure at the manner in which the first respondent handled the sale to the second and third respondents. It was from that displeasure that she opined that the transaction was fraudulent.</p> <p>For instance, in paragraph 17 of her answering affidavit, applicant made this clear when she stated that:-</p> <p>“2nd and 3rd Respondents are not putting this honourable Court into their confidence. They did not state who actually advertised this property and where did they find the advert. It is not in dispute that the property was being sold and that the 4th respondent’s consent had been obtained. What is fraudulent is the manner and the price at which the property was sold to 2nd and 3rd Respondents. It was sold for a song, which is prejudicial to the estate and to myself. The property cannot have deteriorated from its value of US$ 160 000.00 to US$ 80 000.00 within such a short period of time.”</p> <p>The ‘short space of time’ referred to is the period of October 2013 when the 1st valuation was done and March 2015 when the second valuation was done; a period of at least 16 months.</p> <p>It is however pertinent to note that applicant did not clearly outline the role, if any, played by the second and third respondents other than that they bought the property at a low price.</p> <p> The first respondent on his part denied acting in any fraudulent manner. Regarding what led to the second valuation and reduction in value he stated in paragraph 11.3 of his opposing affidavit that:</p> <p>“The reasons for the reduction in purchase price were that during the material time relevant hereto, and whilst Applicant was in occupation of the building, the same was run down by her by failing to maintain it from the time of the initial valuation in the following manner:</p> <p>11.3.1 The ceiling had fallen down in some parts of the shop.</p> <p>11.3.2. The toilets were no longer functional in that waste pipes had broken down.</p> <p>11.3.3 The entrance doors are now broken and safety locks removed and or burglarized.</p> <p>11.3.4 The gate leading to the backyard was also broken.</p> <p>11.3.5. Shop counters, shop trolleys and baskets were also broken.</p> <p>11.3.6. In the Butchery, the Coldroom was no longer functional together with the Scale and other weighing appliances.”</p> <p>These were some of the aspects that he said necessitated a second valuation as prospective buyers were complaining about the price he was asking for. The second valuation valued the property at US$ 75 000.00 as market price and US$50 000.00 as forced sale price.</p> <p>Though the applicant in her answer to the above denied that she had run down the property, it was not disputed that she had remained in occupation and use of the property during the period in question. In the circumstances, whatever depreciation in value to the property would be blamed on her.</p> <p>What emerged from the above is a dispute of fact on the state of the property at the time of the sale. Though applicant seemed to challenge the second valuation as not having been certified and so should not be considered, I did not hear her to deny that the evaluator, Stephen Taurayi, is a registered evaluator with the Estates Council of Zimbabwe and that he is on the Master’s list of valuators. In fact applicant did not expressly allege any collusion between applicant and the evaluator. No specific allegations of malpractice were made against the evaluator serve for the lack of certification alleged.</p> <p>It is my view that if applicant intended to seriously challenge the value of the property as at the time of the sale to the second and third respondents she could easily have sought her own evaluator to value the property as the onus was on her to show that the property had not lost value to that extent. This she did not do.</p> <p>As regards allegations of fraudulent intent against the second and third respondents, the second respondent categorically denied any collusion or fraudulent intent when in paragraph 8 of his opposing affidavit he stated that:</p> <p>“I specifically deny that I fraudulently purchased the property in question. The property was advertised in a local daily newspaper and I responded to same. I also made sure that the requisite consent from 4th respondent was availed. Apart from paying the purchase price, I paid all statutory obligations in this matter. I did not at any time collude with the 1st respondent or with anyone for that matter in this transaction. Applicant should thus not make insinuations of fraud against me.”</p> <p>            The onus was on the applicant to prove that the respondents were guilty of fraudulent intent, in that they were aware of her claim at the time of purchase of the property and intended to defeat her rights therein. See <em>Violet Tewe </em>v<em> Anderson Hanoki and Ors</em> SC 55/03, <em>Muzanenhamo &amp;</em> <em>Anor </em>v<em> Katanga &amp; Ors</em> 1991(1) ZLR 182 and <em>Chenga </em>v <em>Chikadaya &amp; Ors</em> SC 7/13.</p> <p>In this case, the applicant did not establish that the second and third respondents were aware of her interests in the property and that despite such awareness colluded with the first respondent to act fraudulently to her detriment.</p> <p> It was common cause that the second and third respondents were not privy to the earlier agreement of sale between applicant and the first respondent. They were also not aware that applicant had lodged a claim that had been accepted. In a nutshell, the second and third respondents were not privy to the goings on between applicant and the first respondent. It is in this light that they contended that they were innocent purchases who bought the property for its fair value. They, in fact, bought it at a price slightly above what had been given as its open market price. It was thus upon the applicant to show that they were not innocent purchasers but that they had colluded with first respondent to prejudice her. This she could not do from the affidavits filed of record.</p> <p>The mere allegation that the property was sold for an unreasonably low price was not adequate on its own to prove collusion or fraudulent intent.  The applicant did not provide evidence of what could have been a reasonable price at the time of the sale to the respondents. This is an aspect that required her to place before court evidence of what would have been a reasonable price at the time of the sale to the second and third respondents and not just at the time she offered to buy the property which was a time lapse of over 16 months.</p> <p>It was upon the applicant to rebut the contention that the property had in fact dilapidated. This, in my view, could only be done by placing credible evidence before court of a contrary value as at the time the property was sold. As the applicant was content with her founding affidavit and answering affidavit, these were insufficient for purposes of proving her case in view of the contentious factual issues.</p> <p>I thus conclude that the second and third respondents were innocent purchasers for value of the property in question.</p> <p>In the circumstances I am of the view that applicant has failed to prove fraudulent intent on the part of the respondents.</p> <ol> <li>Whether the sale to the second and third respondents should be cancelled.</li> </ol> <p>In the light of my findings regarding issues (1) and (2) above, it corollary follows that there is no valid basis for the cancellation of the sale of the property to the second and third respondents. The applicant lamentably failed to prove that she had a right of pre-emption or first refusal. She also failed to prove that the respondents had fraudulently connived to defeat her rights in the property.</p> <p>Accordingly, the second and third respondents being innocent purchasers should retain the property. If the applicant has any complaint pertaining to her claim that was accepted by the firs respondent, she should look to the estates late Maruta Jawona for the realisation of her claim as the first respondent administers the estate.</p> <p>Costs</p> <p>The applicant asked for costs <em>de bonis propiis</em> against the first respondent in the event of the application succeeding whilst the first respondent asked for costs on the higher scale in the event that the application is dismissed. The second and third respondents asked for costs on the general scale. Upon considering the arguments on costs and taking into account the nature of the dispute I am of the view that though applicant has not been successful, the justice of the case would better be served by an order that each party should bear their own costs,</p> <p>            Accordingly, the application is hereby dismissed with each party to bear their own costs.</p> <p><em>Sawyer and Mkushi</em>, applicant’s legal practitioners</p> <p><em>M S Musemburi Legal Practice</em>, 1st respondent’s legal practitioners</p> <p><em>Chadyiwa &amp; Associates</em>, 2nd and 3rd respondents’ legal practitioners</p> <p> </p> <p> </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/2018/115/2018-zwhhc-115.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36617">2018-zwhhc-115.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/2018/115/2018-zwhhc-115.pdf" type="application/pdf; length=169259">2018-zwhhc-115.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-against-deceased-estate">Claim against deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/right-first-refusal-or-pre-emption-see-sale-option">Right of first refusal or pre-emption See SALE (Option)</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/option-sale">Option (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/right-first-refusal-pre-emption-sale">right of first refusal (pre-emption) (SALE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/succession">Succession</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spouse-succession">Spouse (SUCCESSION)</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/supreme-court-zimbabwe/2013/7">Chenga v Chikadaya &amp; Others (232/10) [2013] ZWSC 7 (24 February 2013);</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/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Tue, 15 May 2018 14:05:52 +0000 admin 8796 at https://old.zimlii.org Appalraju & Another v Patsanza (HH 145-18, HC 5732/16) [2018] ZWHHC 145 (09 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/145 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PRAMADVARA APPALRAJU</p> <p>and</p> <p>DHIREN VULI APPALRAJU</p> <p>versus</p> <p>MIRIAM PATSANZA</p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 26, 29, January 2018 &amp; 9 February 2018</p> <p><strong>Continuous Roll</strong></p> <p><em>T.R Mugabe</em>, for the plaintiffs</p> <p><em>O. Kondongwe</em>, for the defendant</p> <p>            DUBE J: This is a claim for breach of contract.</p> <p>            Sometime in 2002 the plaintiffs sold to the defendant house number 14 Harrow Road, Avondale, Harare, [hereinafter referred to as the property] for ZAR350 000-00. The defendant paid a deposit of ZAR 100 000-00 and did not pay the outstanding balance to the plaintiffs. The plaintiffs cancelled the contract of sale for breach of contract. The plaintiffs seek an order for confirmation of the cancellation of the agreement of sale, payment of rentals, holding over damages and eviction of the defendant from the property.</p> <p>            The defendant defends the claim. She avers that the failure to finalize the sale was not caused by her. The plaintiffs breached the agreement. She challenges the plaintiffs’ cancellation of the agreement of sale and her eviction from the property. In her plea, she refuted that the property was ever leased out. The defendant has filed a claim in reconvention. She stated that the plaintiffs have refused to accept a tender of the balance of the purchase price. She seeks an order for transfer of the property into her name and tenders payment of the outstanding balance of the purchase price. In the event that the court does not find favour with her claim, she seeks reimbursement of the deposit of ZAR 100 000.00 she paid and payment of $120 890.00 being improvements and repairs she made to the property during the period that she was in occupation of the property.</p> <p>            The court was asked to determine the following issues,</p> <p>            1.         Whether or not the plaintiffs or the defendant breached the terms of the</p> <p>agreement of the verbal agreement of sale and if so whether the plaintiffs were entitled to cancel the agreement and alternatively whether or not the defendant is entitled to enforce the agreement.</p> <p>2.         Whether the verbal agreement of sale between the plaintiffs and defendant was validly cancelled and if so the appropriate remedy.</p> <p>3.         Whether or not the defendant is entitled to continue occupying the property and if so whether the defendant is entitled to enforce the agreement of sale entered into between the parties.</p> <p>4.         Whether the plaintiffs are entitled to arrear rentals and holding over damages for the property.</p> <p>5.         Whether the defendant is entitled to compensation for improvements and expenses incurred on the property and the quantum thereof.</p> <p>            The plaintiffs testified in their own case. Mrs Pramadvara Appalraju testified as follows: She entered into a verbal agreement of sale with the defendant for house no. 14 Harrow Road, Avondale, Harare for ZAR350 000-000 in 2002. She owns 50% of the property and the second plaintiff the other half. The defendant paid a deposit of ZAR100 000, 00. The balance of the purchase price was to be paid through her account all at once within months of the sale after which the house would be transferred into the defendant’s name. The defendant failed to pay the balance of the purchase price. She was not contacted by any lawyer or advised that the defendant wanted to make further payment nor that the money had been put in her lawyer’s trust account. Over the years she lost contact with the defendant. She wants the sale cancelled for breach of contract. She is prepared to pay back the deposit the defendant paid with interest and reimburse the defendant for the necessary improvements. When she was offered the ZAR250 000-00 outstanding in 2009, the plaintiffs felt that it was too late to make that offer. The defendant has put up a precast wall, razor wire and has tiled three of the rooms in the house. They are prepared to pay her for any improvements she made to the property if she can prove them.</p> <p>            Under cross-examination she testified that she tried to contact the defendant over the years but failed. At one time a friend of hers visited the house and was not allowed entry into the property. She tried to visit the property on a number of times and she was not allowed in. The defendant contacted her in 2009 and offered to pay the balance outstanding and she declined the offer. She breached the sale. Her son felt that it was unfair that she pays the balance after so long and they cancelled the sale. She insisted that she was never contacted by the defendant’s lawyers.</p> <p>            Dhiren Vuli Appalraju testified as follows: His mother sold the house when he was 17 years old. He first met the defendant in 2006. The purpose of the meeting was to cancel the agreement. They had not had any contact with her since she paid the deposit. He told the defendant that he was cancelling the agreement because she had not met her promise to pay the balance of the purchase price. He did not believe that the transaction was fair any longer because of the lapse of time.       The defendant has been leasing out the premises. Around 2004/5 he got a call from someone with a Pakistan accent claiming to be renting out the house and he wanted repairs done. Recently he discovered that Chris Lowe leased the house for US$2000-00 a month. He produced a copy of the lease agreement.</p> <p>            He denied under cross examination that the plaintiffs were avoiding the defendant, insisting instead, that the defendant was the one who was avoiding them and that if she had wanted to see them in order to pay the balance she could have done so. She used to visit them at their house and knew where her mother resided because they concluded the deal at the same house. When they meet in 2006 she is the one who had contacted them. The witness remained consistent with his version throughout his testimony. The court believed him.</p> <p>            The defendant testified in her own case. Her evidence is as follows. She knows the first plaintiff well as their husbands were friends and they would visit each other’s homes. She bought the house for ZAR350 000-00 and paid a deposit of ZAR100 000-00. The balance of the purchase price would be paid when they had found conveyancers in Harare and the balance would be put into her lawyers account. It is not correct that she was required to pay the whole balance all at once. The balance of ZAR250 000-00 was eventually paid to her lawyers,  A. Smith Attorney and Associates in Johannesburg  in 2005 and held in trust until the plaintiff had given instructions over where the money should be paid. When she met the first plaintiff in 2006, she expressed some difficulties in convincing her son to conclude the sale. She promised to get back to her and never did.  She denied meeting the plaintiffs together in 2006. She only met the second plaintiff together with his mother in 2009 and discussed the cancellation of sale and asked them to return the deposit. She admitted that she leased out the house to Chris Lowe for 6 months. She spend up to US$169 000.00 to fix the house. She has invoices. She wants to pay off the house, or if that fails, she asks for a refund of the deposit with interest and her improvements.</p> <p>            Under cross examination she told the court that she does not remember how much she paid for the improvements in Zimbabwean dollars and does not have the actual receipts for the improvements. She obtained new receipts and the amounts were translated by her contractor into United States dollars. The pre-cast wall she put up cost US $3 500.00. Without the improvements, the property would not be having that value.</p> <p>It is common cause that the parties entered into an agreement of sale of the property</p> <p>for the amount of ZAR 350 000.00. The defendant paid a deposit of ZAR 100 000.00. The agreement of sale was cancelled after the defendant did not pay the outstanding balance of the purchase price to the plaintiffs. The defendants made some improvements on the property. At some stage the property was leased to Chris Lowe. The issues for determination are who between the parties breached the contract of sale, whether the plaintiffs were entitled to cancel the contract. The other issue is whether the defendant is entitled to specific performance. The court was asked if it finds that the defendant breached the sale, that she is entitled to compensation for improvements and expenses incurred on the property. The court was also asked to consider whether the plaintiffs are entitled to any holding over damages and arrear rentals.</p> <p>            The defendant maintained that the sale was an instalments sale and that the plaintiffs avoided her resulting in her failing to pay for the property. She insisted that the agreement was that she would pay the balance of the purchase price when the parties had found conveyancers and the balance would be passed over to the plaintiffs’ lawyers. She denied that she was required to pay the balance outstanding all at once. The plaintiff’s first witness testified  that the deposit was supposed to be paid all at once through her account and that this was in fact not an instalment sale. I believed the first plaintiff when she said that the balance of the purchase price was to be paid all at once into her account in the next few months. The plaintiff maintained her story during her testimony. She gave a clear and straight forward version of the events following the sale. If the parties had intended that the balance be paid over several months, the parties would simply have stated so. The defendant’s version that the money would only be paid after they had found conveyancers in Harare is not convincing. She failed to pay the balance of the money all at once and only tried to pay the balance of the purchase price in 2009, six years later. She only deposited the balance with her lawyers in 2005 well after she had breached the agreement. I did not believe the defendant when she said that when she had met the first plaintiff in 2006, she had told her that she was having difficulties convincing her son to conclude the sale. The evidence discloses that the parties did not meet again until the year 2006 when the defendant contacted the plaintiffs.</p> <p>            The plaintiffs maintained that they validly cancelled the contract as the defendant had failed to pay the balance outstanding. The reason for the cancellation of the agreement of sale was shown to be the failure to pay the full purchase price and to do so timeously. I am not convinced by the defendant’s claim that the reason for the cancellation was because the second plaintiff was below 18 and did not simply want to be bound by a contract entered into when he was a minor. The second plaintiff was clear that they cancelled the contract because it wasn’t fair that the defendant would go away for such a number of years without paying the full purchase price and insist on paying it after so long. The defendant claims that she lost contact with the plaintiffs is not convincing.  It appears to me from the evidence that it is the defendant rather than the plaintiff who was avoiding the plaintiffs. She knew where the plaintiffs resided. If she had really wanted to pay the money she could have gone to their place of residence. The court was told that the plaintiffs had gone to the house and had been denied access. They had also sent friends in Zimbabwe to go to the house and they were also denied access to the house. The allegation that the plaintiffs were denied access to the property was not seriously refuted. I find that the plaintiffs were denied access into the property. The defendant avoided the plaintiff and avoided payment. There is no evidence that the plaintiffs were avoiding the defendant. She never looked for them. I see no reason why any communication from her lawyer would fail to get to the plaintiffs. The plaintiffs were being asked to accept the money 6 years down the line. The reason for the cancellation of the sale was the defendant’s failure to pay.</p> <p>            The plaintiffs maintained that the defendant has been leasing out the premises and the defendant admitted that she has leased the premises for six months to Chris Lowe and realised $12 000.00 in rentals in 2016. She denied leasing out the premises at any other time.  The plaintiffs testified that they had been contacted by a number of people who claimed to be tenants at the premises. The plaintiffs have failed to give full details of these other persons. The period of their stay and how much they were paying is not known. Only the tenancy of Chris Lowe has been proved. It was not shown that the tenant is still in the premises.                 The plaintiffs challenged the defendant to prove the improvements she made to the property. The evidence led discloses that the defendant made some improvements to the property. She produced quotations from her contractor. The quotations are reconstructions. She testified that she put up a precast wall at a cost of $3500.00. This was not denied by the plaintiffs. She did not produce proof of the cost of the wall.</p> <p>            In <em>Zimbabwe Reinsurance Company Ltd</em> v <em>Musarurwa</em> HH-141-2001 the court dealt with a matter requiring the definition of an instalment sale. The court held that the definition of instalment sale agreement requires that payment should be made in three or more instalments or by way of a deposit and two or more instalments.  As regards the time when obligations for performance where no definite time is specified, the court in in <em>Mackay </em>v <em>Naylor </em>1917 TPD 5333 AT 537-38, said the following,</p> <p>“the general rule of law is that obligations for the performance of which no definite time is specified are enforceable forthwith ------- but the rule is subject to the qualification that performance cannot be demanded unreasonably as to defeat the object of the contract or to allow an insufficient time for compliance.” See <em>The Law of Contract in South Africa, R.H Christie 5th Ed</em> p503”.</p> <p>My understanding of the law is that an instalment sale is a sale in which a buyer makes regular payments to the seller in order to settle the indebtedness owed. The instalments must be agreed on and certain. Interest is usually charged on the balance outstanding. A sale does not become an instalment sale simply because the parties agreed to a deposit being paid first with the balance being paid later on a specified date. It has to be shown that there was agreement that a deposit be paid with the balance outstanding being paid in three or more instalments. Where no definite time is given for the performance of an obligation arising out of a contract, the debtor is obliged to perform his obligation   within a reasonable time.</p> <p><em>Wessels, The law of contract in South Africa vol 11parag 3135</em> states that:</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>Wolpert </em>v<em> Steenkemp</em> 1917 AD493 p499.”</p> <p>The remedy of specific performance is only available to a party who has complied with his part of the contract. A party who intends to rely on the remedy of specific performance must show that he has performed his part of the contract or that he is willing to perform or discharge his own obligations in terms of the contract.  He may not seek to rely on the remedy of specific performance where he has failed to perform his part of the bargain. A party who fails to fulfil the obligations of a contract commits breach. The injured party becomes entitled to resile from the contract and may seek damages arising out of the breach.</p> <p>           The agreement entered into between the parties does not qualify as an instalment sale for the reason that it was never a term of the contract that after payment of the deposit, the balance outstanding would be paid in two or more instalments. The plaintiff was clear that the balance outstanding was required to be paid all at once in the next few months. The defendant testified that the agreement was that the balance of the purchase price would be paid when they had found conveyancers in Harare and the balance would be put into her lawyers account. Even on the basis of the defendant’s own evidence, the terms of the contract do not make it an instalment sale. She does not state that the money would be required to be paid in instalments. There was no provision for more than two instalments. It is clear that the balance was to be paid all at once. No instalment terms were agreed to. The fact that the plaintiffs refer to the sale as an instalment sale in their pleadings does not make it an instalment sale.</p> <p>            The agreement of sale did not stipulate the exact date when this money was required to be paid. In any case where a contract of sale does not specify the date of performance of an obligation, the obligation is to be performed forthwith. Performance can however not be demanded unreasonably. The obligation is required to be performed within a reasonable time.</p> <p>The defendant failed to pay the balance of the purchase price as stipulated and within a reasonable time and hence breached the agreement of sale. A delay of 6 years is cannot by any sense of imagination be said to be reasonable. The plaintiffs were entitled more than 6 years down the line to cancel the contract for breach of its terms. It would be unfair to expect the plaintiff’s s to accept the balance of the purchase price after such an unreasonable and lengthy time. The defendant failed to comply with the terms of the agreement entered into between her and the plaintiffs. Having found that it is the defendant who in fact breached the agreement of sale, it follows that the plaintiffs were entitled to cancel the contract. The defendant’s claim for specific performance falls away. She is barred from claiming specific performance because she breached the contract. Her claim in reconvention fails. The defendant is entitled to reimbursement of the deposit she paid to the plaintiffs. She did not ask for interest on the deposit she paid in her claim.  </p> <p>            The claim for arrear rentals and holding over damages was not fully articulated. It has not been shown that there were other people who occupied the property besides Chris Lowe. The tenants are not known nor has it been established how much they were paying and for how long. All the plaintiffs are entitled to is $12 000.00 being rentals admitted to by the defendant. The holding over damages stem from the allegation that the defendant was leasing the house. For the reason that the plaintiffs have not shown that the defendant had tenants in the house at the time summons was issued or currently, I decline to make an award of holding over damages.</p> <p>            Ás regards the deposit the defendant paid, I find that the defendant is entitled to reimbursement of the deposit of ZAR 100 000.00 she paid. The defendant did not ask for interest on that amount in the summons. She is not entitled to an award of interest on the sum claimed. The defendant gave a list of the improvements made. The court’s concern is with the fact that insufficient evidence was led in support of the cost of the improvements made. None of the original receipts were produced. She produced a quotation from Camsbray Construction (Pvt) Ltd dated 8 August 2002 which shows that she repaired a damaged roof walls and floors among a lot of other things. A global figure of $ 68 800.00.There is no itemised bill with the different charges for each improvement or work carried out. Another quotation from the same company shows that on 16 April 2003 she constructed an outside cottage and a staff cottage and painted the inside of the house. An estimate cost of these works is given as US$63 500.00. There is a note to Mrs Patsanza done by S. Mariga dated January 2003 in hand written form. The note shows that he cleared the yard, cleaned the pool he charged Zimbabwean dollars $18200.00.Another note shows that he did landscaping in 2005 and charged $8700,00. He does not state the currency of that money although he initially put a US Dollar sign and struck it out. Whilst she claimed that she tiled the house, no proof of such an improvements was shown to the court. No one knows how much she paid for the tiles.</p> <p>            Whilst she identified the different works carried out, she did not produce sufficient and acceptable proof of the cost of the improvements. The actual receipts issued for the cost of the improvements were not produced. Instead the defendant asked the person who carried out the works for a reconstruction of the works done and charges. The contractor was not called as a witness. Her claim was given in United States dollars when the improvements were primarily made during the Zimbabwe dollar era. The flaw with this approach is that the improvements were done during the Zimbabwean dollar era and thus should have been expressed in Zimbabwean dollars first and converted into United States dollars.</p> <p>            She told the court that she does not remember how much she used in Zimbabwean dollars. Whilst she initially claimed to have some of the receipts, she admitted in cross-examination that she did not have them. The conversions were done by one Mariga, her contractor who was not called as a witness. No-one knows how he was able to reconstruct the quotation and convert the figures from Zimbabwean dollars to United States dollars. The formula used is not known. The defendant’s story was not convincing.</p> <p>             Once the defendant decided to express the charges in United States dollars she needed to show how she arrived at the figures presented. No one knows, including the defendant herself, how this conversion was done. The true value of the defendant’s improvements is not known. The defendant has failed to prove her improvements. She adopted a lackadaisal approach to the question of improvements choosing to pile the court with unexplained documents. The fact that the plaintiffs were not challenging her claim for improvements did not mean that she did not have to prove the improvements. I have considered that the plaintiffs are prepared to reimburse the defendant for improvements she effected on the property if she can prove them. I have decided in the exercise of my discretion to afford the defendant an opportunity to prove the improvements should she wish to do so. I am granting absolution from the instance with respect to the claim of improvements.</p> <p>As regards the costs of these proceedings, I cannot say that the defendant has been successful in her claim in reconvention with respect to the reimbursement of the deposit because the plaintiffs have always been willing to pay her back the deposit she paid. Costs follow the event.</p> <p>In the result it is ordered as follows:</p> <p>      1.   The plaintiff is to pay to the defendant ZAR 100. 000.00.</p> <p>2    The cancellation of the verbal agreement of sale of certain piece of land situate in the</p> <p>District of Salisbury being Sale division 3 of Lot 34 Black D of Avondale, measuring three thousand seven hundred and fifteen square meters held under Deed of Transfer No. 4427/2001, also known as 14 Harrow Road, Avondale, Harare, Zimbabwe is hereby confirmed.</p> <p>3.    The defendant and all those claiming occupation through her are hereby evicted from</p> <p>14 Harrow Road, Avondale, Harare, within 3 months of the service of this order on them</p> <p>4.   Should they fail to do so, the Sheriff of the High Court is hereby authorized to evict</p> <p>them.</p> <p>5     The defendant shall pay $12 000.00 being rentals to the plaintiffs.</p> <p>6.    Absolution from the instance is granted in respect of the claim for improvements.</p> <p>7    The defendant shall pay the plaintiffs costs of suit in both the claim in reconvention</p> <p>      and the main claim.</p> <p><em>Tafadzwa, Ralph Mugabe Legal Counsel</em>, plaintiff’s legal practitioners</p> <p><em>Dube Manika &amp; Hwacha,</em> defendant’s legal practitioners</p> <p> </p> <p> </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/2018/145/2018-zwhhc-145.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33142">2018-zwhhc-145.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/2018/145/2018-zwhhc-145.pdf" type="application/pdf; length=167140">2018-zwhhc-145.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-breach-contract">liability for breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/remedies">remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-one-party-obligations">breach by one party of obligations</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/instalment-sale">instalment sale</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li></ul></span> Fri, 27 Apr 2018 08:36:20 +0000 admin 8769 at https://old.zimlii.org