1

HB 126-15

HC 2292-13

ABEL TEMBO

versus

BULAWAYO CITY COUNCIL

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 JUNE AND 18 JUNE 2015

Opposed application

Mr G. Sengweni for the applicant

Mr N. Mangena for the respondent

MAKONESE J:        The applicant entered into an agreement of sale with respondent on 15 January 2002.  In terms of that agreement the respondent sold and applicant purchased stand 16644, Bulawayo Township, being an undeveloped piece of land subject to certain terms and conditions.  The applicant failed to construct a dwelling house on the stand within the required period and by letter dated 7 May 2013, respondent advised applicant that a resolution had been passed to repossess stand 16644, Bulawayo, Township, also known as land adjacent to stand 12076 Ilanda.  The respondent advised the applicant that the stand would be allocated to another beneficiary.

Applicant was dissatisfied with the decision by respondent to repossess the stand and subsequently filed a court application on 13 September 2013 seeking the following relief:

“1.       Respondent’s resolution of 3 April 2013 in respect of stand number 16644 Ilanda,

Bulawayo, be and is hereby set aside and stand 16644 Ilanda, Bulawayo be and is hereby restored to applicant.

2.         Respondent to pay costs of suit at a higher scale.”

            The applicant avers that due to the harsh economic environment obtaining in the country he was unable to construct a dwelling house on stand 16644 within the stipulated period.  Applicant confirms that on 29 June 2012 respondent addressed a letter to him in the following terms:

            “Re: Non-compliance with Building Condition: Stand 16644 Ilanda

Clause 4 of the Agreement of Sale entered into between yourself and the Council states that:

4.         only one dwelling house which shall comply with the Municipal By-Laws for the time being in force and which shall be of minimum value of $---- shall be erected on the said stand and such dwelling house shall be commenced not later that six (6) months from the date hereof and shall be completed twenty –four (24) months from the said date.”

                        “To date you have still not complied with the provisions of Agreement of Sale.

Since you are in breach of this agreement, you are now given 30 days from the date of the letter within which period you are to comply, failing which the agreement will be cancelled.”

            In response to the letter from respondent, the applicant claims that he started developing the stand by digging a foundation and moving some bricks on to the stand.  Mr Sengweni appearing for the applicant, conceded that save for the digging of the foundation no meaningful development has occurred on the stand up to this date.  Mr Sengweni was quick to point out that the applicant had been stopped from carrying on further developments on the stand by the respondent sometime in July 2012.  On 4 March 2013, respondent’s Finance and Development Committee recommended that the stand be repossessed from the applicant for reallocation to other persons on the housing waiting list.  The recommendation was duly adopted on 3 April 2013.

            The applicant contends that respondent is estopped from cancelling the agreement of sale on the following grounds:

1. Respondent allowed the breach of the agreement of sale for a period exceeding ten years (2002 to 2012)
2. Respondent by their conduct condoned the breach
3. Applicant had commenced developments on the stand when he was prevented from proceeding with the erection of a dwelling house.

The respondent has opposed the application on the grounds that the applicant clearly breached the terms of the agreement of sale and it was open to respondent to cancel the agreement and repossess the stand.

Clause 6 of the Agreement of Sale provides as follows:

“Should the Purchaser commit any breach of the terms of this Agreement the Municipality shall have the following rights:

1. ----.
2. ----.
3. To cancel the sale in which event the said piece of land shall immediately revert/accrue to the Municipality.”

The clear understanding of the parties was that time was of the essence and that essentially, applicant was required to commence construction on or before 20 June 2002 and such construction was to be completed on or before 20 December 2003.  As clearly conceded by the applicant this did not happen.  Due to applicant’s failure to comply with the terms of the agreement, respondent through a letter dated 29 June 2012 advised applicant of his breach and stated that:

“----

Since you are in breach of this agreement, you are now given 30 days from the date of this letter within which period you are to comply, and failing which the agreement will be cancelled.”

Inspite of the indulgence granted to applicant he still failed to comply.  Applicant only dug a foundation and moved a certain quantity of bricks on to the stand.  It ought to be noted that the letter of 29 June 2012 was not a requirement in terms of the agreement between the parties.  It was a courteous reminder to the applicant to rectify his breach.

Analysis of applicant’s case and the Law

It is noted that applicant has not been candid with the court.  In paragraph 5 of the founding affidavit he states that: “No purported communication to applicant on the intention to repossess the stand was made by respondent.”  In other words he is alleging that the letter of 29 June 2012 was never written.  In the very next paragraph 6 he changes his tune to state that: “The purported communication on the intended repossession was sent by respondent to number 41678 Nkulumane when in fact the applicant’s address is 4168 Nkulumane.”  The implication is that the letter could have been sent but that he never received it.  In his heads of argument, applicant states in paragraph 1 (d) that:  “On 29 June 2012, respondent wrote a non-compliance letter to applicant.”  It is clear that the letter was written and applicant was aware of it.  Applicant attempts to paint a picture of compliance with 29 June 2012 letter.  On the other hand, the applicant pleads ignorance of the letter he alleges he was complying with.  Applicant’s conduct is strange and suspicious.  Applicant’s argument in the papers that he was carrying out developments on the stand was not substantiated by pointing out what exactly was erected.  The applicant’s argument on this aspect is weak and unconvincing.  The applicant’s attempt to blame the economic conditions does not assist the applicant’s case.  The parties’ agreement of sale was not contingent upon any economic consideration.  To the contrary, when applicant signed the agreement he gave himself out as being capable of erecting a dwelling house within the stipulated period.  He failed to develop the stand for a period well over ten years.  This is not what was in the contemplation of the parties when the agreement was concluded.

            Applicant’s main argument rests on the doctrine of estoppel.  Applicant’s argument is that because of the letter of 29 June 2012, the respondent could not cancel the agreement of sale.  Assuming this argument is correct, estoppel would have been active for the duration of the 30 day period.  As is clear from the established facts, even after the 30 day deadline, the applicant failed to effect any improvements on the stand.  By his own admission he only dug a foundation.  Respondent denied ever stopping the applicant from undertaking further improvements on the stand and no evidence to this effect was placed before the court by the applicant.

            It is clear that applicant failed to fulfill the express terms of the agreement.  In the words of Christie’s, Law of Contract in South Africa, 6^th Edition at page 515,

“The obligations imposed by the terms of a contract are meant to be performed, and if they are not performed at all, or performed in the wrong manner, the party on whom the duty of performance lay (the debtor) is said to have committed a breach of the contract.”

            It is clear that applicant breached the terms of the agreement.  The respondent was justified to cancel the agreement and repossess the stand.  The remaining issue for determination is whether the respondent was estopped from cancelling the agreement on the basis that there had been condonation of the breach.  This argument lacks any merit.  Estoppel cannot in general terms found a cause of action. See Rio Tinto (Africa) Pension Fund v Gwaradzimba No and Another 2011 (2) ZLR 140, at page 140 where GARWE (JA) cited the passage from Spencer Bower and Turner Estoppel by Representation, where Sir Alexander Kingcome Turner, the author remarks at page 6:

“The doctrine of estoppel by representation forms part of the English Law of evidence --- Its sole office is either to place an obstacle in the way of a case which might otherwise succeed, or to remove an impediment out of the way of a case which might otherwise fail.  It has no other function.  Emphatically, it is not a cause of action itself, nor does it create one. -----.  To use the language of naval warfare, estoppel must always be either a mine-layer-or mine-sweeper: it can never be a capital unit.”

            I am satisfied that in the instant case, the applicant may not successfully raise estoppel, for to do so, would amount to the applicant seeking to found a cause of action on the doctrine of estoppel.  This, the applicant may not do.  In union Government v National Bank of South Africa Ltd 1921 AD 121 at page 128 INNES (CJ) stated as follows:

“A plaintiff cannot invoke estoppel to create a cause of action where none existed before.”

            In the circumstances, I hold the view that applicant despite sitting in breach of his contractual obligations, applicant now seeks to enforce his own perceived rights.  That is immoral and incompetent.  Applicant lost his rights through his own breach.  He has noone else to blame but himself.  He failed to perform his own obligations in ten years.  He was given an extension of a 30 day period.  He still failed to effect any meaningful improvements on the stand.  He managed to dig a foundation in the entire period of ten years.  He flagrantly breached the terms of the agreement.  He has attempted to mislead the court.  Costs at a punitive scale and justified.

            In the result, the application is dismissed with costs on an attorney and client scale.

T. Hara and partners, applicant’s legal practitioners

Coghlan and Welsh, respondent’s legal practitioners