THE CITY OF HARARE

versus

SOUL KENNETH MANYASHA

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 1 April, 18 May, 20 May, 1 June, 2 June 2009 and 26 May 2010

Civil Appeal

D Kanokanga, for the defendant

P Kawonde, for the plaintiff

BHUNU J:      The municipality of the City of Harare is the lawful owner of certain piece of immovable property known as House No. 4 Hampshire Road, Eastlea, Harare. Sometime in September 1993 it entered into a written lease agreement with one Soul Kenneth Manyasha the defendant under case number 3174/08 and the plaintiff under case number HC 6675/08.

The City of Harare is suing Soul Kenneth Manyasha for eviction from the said house whereas Manyasha is suing for transfer of the property to his name. For convenience’s sake the two cases have been consolidated and I shall refer to the City of Harare as the plaintiff and Soul Paul Manyasha as the defendant.

Clause 2 of the agreement provided for cancellation of the agreement. It reads:

“2        The Lease shall commence on  the 27^thday of September 1993 and shall thereafter continue until terminated by the service of one calendar month notice in writing by either party to the other”.

On 13 March 2007 the City of Harare wrote to Manyasha giving notice to terminate the lease agreement in terms of clause 2 of the agreement. The letter reads:

“Dear Sir/Madam

Re:       CANCELLATION OF LEASE AND REPOSSESSION OF HOUSE 4 HAMPSHIRE ROAD EASTLEA

I refer to the above matter.

Please be advised that the lease agreement which you entered with Harare Municipality is hereby cancelled with effect from 30 April 2007 in terms of clause 2 of the agreement.

You are hereby given one month’s notice, that is from 1 to 30 April 2007 and you are hereby required to vacate this property on the expiry of notice period and hand over house flat keys to my housing officer at Sunningdale District Office.

If you remain in occupation of the property for the period after the date of cancellation and period of notice, court proceedings for eviction with costs will be taken against you”.

Before the expiry of the notice period and on the same date, that is to say 13 March 2003 the plaintiff wrote to the defendant advising that council had agreed in principle that council houses in Eastlea be sold to sitting tenants. As a result Manyasha’s lease continued to ensure the termination date of 30 April 2007.

On 14 September 1998 the Acting Director of Housing wrote to the Director of Housing giving a list of council houses that were earmarked for sale to sitting tenants. The list included Manyasha. He was earmarked to be sold dwellings at House No. 4 Hampshire Drive Eastlea, Harare. His account number was given as 1476.

When it came to evaluation the property was wrongly listed as stand number 3829 instead of 3818. The authorities upon realizing the error made the necessary corrections to reflect the correct stand number. The valuation table reads:

Despite the initial notice to cancel the lease agreement and the error made in the course of the evaluation the City’s Acting Director of Housing and Community Services wrote to Manyasha on 1 March 1999 offering to sell him the house in question. The letter reads:

“Dear Sir/Madam

SALEOF TIED RENTED COUNCIL HOUSES

Council intends to sell its tied to sitting in tenants.

If you are interested in purchasing the house you are currently occupying please report to the office of the Research Unit Department of Housing and Community Services Old Superintendent’s office, Mbare, Harare, Telephone 726093 4 March 1999 at 8.00 a.m., where further details of the scheme can be obtained and where you will be interviewed to assess you eligibility.

You should bring this letter together with your:

1. Identification Papers

1. National Registration cards (NR)
2. Marriage Certificate (if any)

1. Proof of your earnings and your wife’s earnings if applicable (that is current payslips).

1. Proof of any savings you may have accumulated (savings account books) and/or letter from your employer stating precise financial assistance.

Should you fail to attend this interview or advise of your inability to do so, it will be assumed you are not interested.”

The evidence adduced before the court clearly establish that the defendant complied with all the terms and conditions of the sale. Not withstanding the error in the description of the property to be sold there was no mistake as to the identity of the property which was the subject of the sale. The subject of the sale was undoubtedly the house in which the defendant was a sitting tenant.

The defendant having complied with all the terms and conditions of the sale agreement he is entitled to take transfer of the property. On the other hand the plaintiff having sold the property to the defendant it can not evict him from the property which now belongs to him.

In the result it is ordered:

1. That the plaintiff City of Harare’s claim for eviction be and is hereby dismissed.
2. That it is declared that the defendant Soul Kenneth Manyasha has paid the full purchase price under the rent to buy agreement.
3. That within ten days of service of this order upon The City of Harare shall do all such things as are necessary to effect transfer of a certain piece of immovable property known as number 4 Hampshire Road, Eastlea to Soul Kenneth Manyasha.
4. Should The City of Harare fail to comply with the above order the Deputy Sheriff be and is hereby ordered to do all such things necessary to effect transfer of the said property to Soul Kenneth Manyasha.
5. That The City of Harare shall bear all the costs of suit.

Kanokanga & Partners, plaintiff’s legal practitioners

Kawonde & Company, defendant’s legal practitioners