Judgment No. HB  86/2004

                                                                                    Case No. HC 1673/2003

PAUL MANDIMUTSIRA

Versus

CECIL MADONDO N O

And

TENDAI GWEREDZA

And

THE ASSISTANT MASTER N O – HIGH COURT OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 7 MAY & 24 JUNE 2004

Ms A Masawifor applicant

Adv. Matinengafor 1^st respondent

E Marondedzefor 2^nd respondent

Judgment

            CHEDA J:     This is an application for a  declaratory order in the following terms:

            “It is ordered that:-

1. The agreement between the applicant and the first respondent be and is hereby declared valid and binding between them.
2. Any subsequent agreement between the first and second respondent be and is hereby declared null and void and of no force and effect.
3. The first respondent takes all necessary steps to retrieve the vehicle registration number 687-384F from the second respondent and hand it over to the applicant and take all necessary steps to effect transfer of the vehicle to the applicant.
4. The second respondent released (sic) the said motor vehicle to the first respondent and or the applicant.
5. If the first respondent fails within 10 days of this order to retrieve the motor vehicle from second respondent and effect transfer to the applicant, the Deputy Sheriff be and is hereby authorised to take all such necessary steps on first respondent’s behalf.
6. That the first and second respondents pay the costs of this application on an attorney and client scale, jointly and severally, one paying the other to be absolved.”

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Applicant is alleged to have purchased a Honda Civic motor vehicle registration number 687-384F from 1^st respondent.

            The brief facts of this matter are that 1^st respondent is the executor dative for estate later Stanford Chidakwa.  Second respondent also alleges to have purchased the same motor vehicle from 1^st respondent and 3^rd respondent is the Assistant Master of the High Court cited in that capacity for administrative purposes only.

            Applicant deposed to an affidavit wherein he stated that on 29 March 2003 he offered to purchase the said vehicle from 1^st respondent and  he attended at 1^st respondent’s Bulawayo office together with one Prosper Chidakwa who is the late Chidakwa’s son.  He paid the sum of $575 000 inclusive of tax as purchase price for the said motor vehicle.  After payment he was advised by 1^st respondent’s employee one Kelly that the agreement had been reduced into writing and he subsequently signed it.  He was advised that the agreement was to be sent to 1^st respondent in Harare.  He was further advised by the said Kelly that the agreement was subject to conditions namely, that the agreement was to be approved by 3^rd respondent and that he would take possession of the vehicle upon payment of full purchase price which he did.  It was after he had made full payment that he was advised that the vehicle was in possession of 2^nd respondent for safekeeping.

            He was given a letter authorising him to take the vehicle from 2^nd respondent but 2^nd respondent refused him permission to do so alleging that he had been given first option to purchase the vehicle.  He went back to 2^nd respondent, this time in the company of Kelly and one Malvern, but, still this attempt to  take the vehicle was not successful.  It is further his averment that Kelly assured him that applicant should be present as (Kelly) was going to see to it that his rights are enforced through the

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assistance of 1^st respondent.  He again confronted 2^nd respondent who now showed him a receipt indicating payment to 1^st respondent and was dated 16 July 2003.  When he questioned this new development with 1^st respondent Bulawayo office, he was advised that 1^st respondent had instructed them to accept payment and that they should advise applicant that the agreement between himself and 1^st respondent had been cancelled.

            It is therefore his argument that to his knowledge the agreement of sale was not cancelled as he did not breach any of its conditions.  Applicant’s averrments are supported by Prosper Chidakwa in his affidavit, in as far as the contract and attempts to recover the vehicle from 2^nd respondent is concerned.

            First respondent opposed this application vigorously.  It is his assertion that when Prosper Chidakwa introduced applicant to him, he had initially introduced 2^nd respondent as a potential purchaser on 29 May 203.  He also states that the vehicle was in possession of 2^nd respondent who had also been introduced by Prosper as a potential purchaser.  He further stated that applicant agreed to have the agreement of sale cancelled and that he would be refunded his purchase price.  It is for this reason that he agreed to sell the vehicle to 2^nd respondent.   Ester Moyo also deposed to an affidavit supporting Cecil Madondo in as far as the cancellation of the agreement of sale is concerned.

            Second respondent’s averment is that he was introduced to Prosper by one Onias who confirmed that the motor vehicle was on sale.  They then proceeded to 1^st respondent’s office whereupon they saw one Malvern who then advised them of a purchase price of $1 500 000.  It is also his assertion that he advised Prosper that he

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was going to pay them $1 000 000 against the production of the registration book this was after he had paid 1^st respondent $500 000 by cheque.  He further stated that after payment he together with Prosper went to a place between Fife St and George Silundika Ave along 3^rd Ave where they towed the vehicle to his workshop and Prosper authorised him to carry out certain repairs on the motor vehicle.  He further stated that it is Prosper who has raised this complaint because he had not received    $1 000 000 as he had wanted to.

            Adv Matinenga for 1^st respondent together with Mr Marondedze for 2^nd respondent have argued that the matter contains dispute of facts which can not be resolved on papers.  MsMasawi on the other hand is of the view that the disputes of facts though present are not such which can prevent the court from deciding the issue on the papers.

            The time honoured legal position regarding court applications is that, any matters which have no serious dispute of facts should be brought by such procedure.  This principle was clearly laid down in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 at 1162;  MURRAY AJP cautioned –

“In as much as the uncertainty of the true facts is effected by the trial Judge on considerations not only of probability but also of credibility of witnesses giving evidence viva voce, it has been emphasised repeatedly that (except in interlocutory matters) it is understandable to attempt to settle dispute of fact solely on probabilities disclosed in the contradictory affidavits in disregard of the additional advantages of viva voce evidence, and the tendency of resorting to affidavits is deprecated inter alia by TINDALLJ in Saperstein vVenters’ Assignee (1929 TPD 14, PH A 71).  But where no real dispute of fact exists, there is no reason for the incurrance of the delay and expense involved in a trial action and motion proceedings one generally recognised as permissible.”

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See also Winson v Dove 1957(4) SA 42N; Hattingh v Ngake 1966(1) SA 64(O); Carrara and Lecuona (Pty) Ltd vVan der Heever Investments Ltd 1973(3) SA 716 (T).

            The fundamental question in my view is whether or not there are serious disputes of facts and if the answer is in the affirmative, whether applicant should have realised that when launching his application.  See Herbstein & Van Winsen - The Civil Practice of the Supreme Court in South Africa 3^rd Ed page 91.

            There are various ways through which a dispute of facts  can raise, the ones which come to my mind are where respondent makes a bare denial of all material allegations by applicant or admit them but go further and allege other material facts the truth or otherwise of which is best ascertainable by viva voce evidence.  In casu, 1^st respondent admits entering into an agreement of sale with applicant but further alleges that it was subsequently cancelled mutually.  This of course is denied by applicant.  Herein, therefore lies a material dispute which will require oral evidence by applicant, 1^st respondent and any other witnesses who might have deposed to affidavits before this court or those who might be subpoenaed  for that purpose need to be examined and was examined in order to ascertain the truth.

            The second question is whether or not applicant reasonably foresaw that a dispute of fact would arise.  In my view, I think he did in that in as much as 1^st respondent admitted entering into an agreement of sale, he however, went further and alleged that it had been cancelled.  Having so found, the court has a discretion in the circumstances.  The logical consequence will be to dismiss the application with costs.  However, it is now settled law and practice of these courts that the court can do any of the following:-

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1. dismiss the application with costs, or
2. order the parties to got to trial with a suitable order as to costs, or
3. in a proper case and where the dispute between the parties can be determined speedily, order oral evidence in order to verify the facts thereat.

Therefore, even, where the court does not dismiss the application it can still show its displeasure by ordering costs against applicant.  See Herbstein and Van Winsen supra page 91.  However, in Van Answegen and Another v Drotkskie and Anor 1964(2) SA 391 at 395 SMITH AJ stated-

“It does of cause not follow that because a dispute of fact is reasonable foreseeable that an application on notice of motion will always be dismissed with costs There may still be circumstances present which will persuade a court not to dismiss an application but to order the parties to go to trial together with an order that the costs of the application be costs in the cause or else that the costs stand over for determination at the trial.”

See also Masukusa v National Foods Ltd & Another 1983(1) SA 232; Naik v The Standard Bank Ltd 1974(2) RLR 101; Lekuku v Huggard 1974(2) RLR 200.

            Applicant in the quest for justice opted for this application which was a wrong procedure and under normal circumstances deserves to be censured but however, it is at times necessary to adopt a robust approach in instances where litigants opt for a wrong procedure.  The courts, in exercising their discretion should do so with caution, as strictness to adherence of principles can result in untold suffering thus defeating the need to do justice between man and man.  Having concluded that there is a dispute of material facts and that applicant

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adopted a wrong procedure, I am of the view that the matter should be referred to trial and the following order is therefore made:-

1. Applicant be and is hereby ordered to proceed by way of trial for the enforcement of its claim and pleadings are to be filed as in the ordinary course.
2. The application will stand as the summons in the action.
3. Costs should be costs in the cause.

Masawi & Associatesapplicant’s legal practitioners

Mawere & Sibanda c/o Calderwood, Bryce Hendrie & Partners,1^st respondent’s legal practitioners

Sibusiso Ndlovu,2^nd respondent’s legal practitioners