DISTRIBUTABLE
(11)
Judgment
No. SC 10/04
Civil
Appeal No. 381/02
NYIKA
ENGINEERING (PRIVATE) LIMITED
v
FRANCISCA MUSHORIWA
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & MALABA JA
HARARE,
FEBRUARY 9 & MARCH 2, 2004
O
Mushuma, for the
appellant
B
Mujeyi, for the
respondent
MALABA JA: This is an appeal
against an order of the High Court granted on 24 October 2002
directing the appellant (Nyika
Engineering) to transfer into
the respondents name Stand No. 13 of Lot 7 of Good Hope,
Mount Hampden (the
property) within ten days thereof,
failing which to pay to her the equivalent value of the property
within fifteen days of the
evaluation assessed by an estate agent
appointed by the registrar of the High Court. The appeal is against
the alternative part
of the order of the court a quo
directing Nyika Engineering to pay the respondent the assessed value
of the property as its equivalent. The contention is that
the court
a quo
had no legal basis for granting the respondent a relief of that
nature because she had not claimed cancellation of the contract of
sale, nor was evidence on the quantum
of damages represented by the amount of the value adduced.
What
happened is this. On 29 June 1999 Nyika Engineering, a body
corporate, was represented by its managing director, Charles Mudimu,
when it entered into a written agreement with the respondent in terms
of which it sold to her the property for $184 000. She
paid
the purchase price in full the same day. From that day up until the
order was made against it Nyika Engineering failed to
honour its
contractual obligation to transfer the property into the respondents
name.
On
22 July 2002 the respondent instituted an action in which she
claimed an order for transfer of the property against Nyika
Engineering. At the hearing of the matter it was common cause that
Nyika Engineering had failed to honour its contractual obligation
to
the respondent for three years despite the fact that it still
professed its willingness to transfer the property into her name.
It alleged that its failure to do so had been caused by its erstwhile
legal practitioners, Manase & Manase. With the consent
of the
legal practitioners for both parties, the learned judge who was
hearing the matter asked Nyika Engineerings legal practitioners
to
check with the Deeds Registry as to whether the property in question
was still available for transfer into the respondents
name, as the
complaint was that Manase & Manase had been transferring stands
belonging to Nyika Engineering without its knowledge.
The
investigation revealed that the property sold to the respondent was
in the process of being transferred to a third party.
In the light of this new
development the respondents legal practitioners applied for an
amendment to her claim to add the alternative
terms for the payment
of the equivalent value of the property in the event of Nyika
Engineering failing to transfer the property
itself. Nyika
Engineering had submissions made on its behalf on the matter by its
legal practitioners. At the close of submissions
by both parties
the learned judge a quo
granted the application and had the claim amended to include a prayer
for an order for the payment of the equivalent value of the
property
failing transfer of it by Nyika Engineering.
A purchaser of property can sue
for its delivery or alternatively payment of its value. In that
event, the purchaser has to prove
no more than that he is entitled to
delivery, and if the seller cannot deliver the purchaser is entitled
to an order for the payment
of its equivalent value as long as it is
known at the time the order is made or is easily ascertainable. It
has been the practice
of courts to grant such alternative claims for
payment of the value of property in the event of failure by the
seller to deliver
the property itself. The two remedies are
regarded as alternative terms of the same relief provided entitlement
to the property
itself is not in issue. See Vulcan
Rubber Works (Pty) Ltd v SAR & H
1958 (3) SA 285 (A) at 289 D-E; Standwin
Investments (Pvt) Ltd v Helfer (SR)
1961 R & N 679.
Nyika
Engineering did not deny that the respondent was entitled to delivery
of the property by means of transfer into her name.
It always
promised to do everything possible to transfer the property into her
name so that its indebtedness in that sense was
fully acknowledged.
The obligation to pay the equivalent value of the property was
predicated upon its failure to comply with the
order of delivery of
the property and as such there was no need for the respondent to
first allege cancellation of the contract of
sale to be entitled to
such an alternative term of the same relief. My view is that in the
circumstances of this case it was in
the nature of justice that such
a relief be granted to the respondent. The order had built into it
a mechanism by which the value
of the property could easily be
ascertained.
I
see no merit in the appeal. It is accordingly dismissed with costs.
SANDURA JA:
I agree.
ZIYAMBI
JA: I agree.
Hove, Lemani & Associates,
appellant's legal practitioners
Gollop
& Blank,
respondent's legal practitioners