CHITAKUNYE
J. The applicant is a duly registered company of 9 East Court Road, Belvedere, Harare.
The
respondent is cited in her official capacity as the executrix of the Estate of
the late Farai Benjamin Njiwah, of 10
Cotswold Way Cotswold Hill, Harare.
The
applicant is the registered owner of stand 3131 Dzivarasekwa
Township which it sold to the late
Farai Benjamin Njiwah in terms of a deed of Sale agreement dated 26 February 1999. The
buyer paid a deposit and the balance of $2260 000 was to be paid by way of
monthly installments within 36 months and was to be paid on or before 1st
March 2002. Furthermore the buyer had to pay the installments due to Beverly Building
Society as required by applicant. On 2 March 1999 the parties signed another
agreement of sale over the same property.
As
fate would have it Farai Benjamin Njiwah died on 28 August 1999 before he had
paid up the purchase price. The respondent was subsequently appointed executrix
and continued making the payment in terms of the agreement of sale.
In
HC 10165/04 the respondent, as applicant, sought an order compelling applicant,
as respondent in that application, to transfer the immovable property in favour
of the Estate Late Farai B Njiwah. The respondent in that case opposed the
application. In addition respondent filed a counter claim seeking among other
things, the confirmation of the cancellation of the agreement of sale, the
eviction of the now applicant and a claim for damages for holding over.
On
the 20 January 2006, the application and counter application were heard before
CHATUKUTA J. in HC10165/04. Rosemary Nyahuye was represented by Mr. Mawere whilst Leo Electrical Pvt Ltd was
represented by Mr. I.E.G. Musimbe. After
hearing counsel the judge gave the following order:-
“It is ordered
that
1. That the main
application be and is hereby dismissed with costs.
2. That the
counter application be and is hereby dismissed for lack of compliance
with the Penalties Act.”
On
the May 2006 Leo Electrical Pvt Ltd, filed this court application seeking the
eviction of Rosemary Nyahuye from the property in question. Applicant argued
that it had now complied with the Contractual Penalties Act [chapter 8:04].
The
respondent opposed the application contending that she had made full payment
for the property and that applicant had still not complied with the Contractual
Penalties Act, if at all it felt respondent had not paid in full. The
respondent made a counter claim which was basically for the same relief as in
HC 10165/04 where she was the applicant. The applicant opposed the counter
claim contending that respondent's claim had been dismissed on the merits and
so was res judicata.
The
respondent indicated that her application was not dismissed on the merits. Her
legal practitioners had not filed the heads of argument and so were barred. The
dismissal was thus because of the failure to file heads of argument as a result
of which applicant was barred.
On
13 November 2006 the parties appeared before me to argue their case. It was
apparent from their papers that they were not agreed regarding what transpired
when they appeared before CHATUKUTA J. and on the interpretation of the order issued on 26 January 2006. Neither party had
the reasons for judgment nor were the legal practitioners certain as to whether
in fact the matter was dealt with on the merits. Whilst the applicant argued
that its counter claim was dismissed because no personal service of the notice
to terminate the agreement of sale had been effected, the respondent contended
that it was because applicant had not complied with all of the provisions of
the Contractual Penalties Act. As a consequence of the obvious uncertainty, Mr.
Musimbe who appeared for applicant sought
a postponement so that he could furnish court with the correct position after
obtaining a copy of the judgment in HC 10165/04.
When
the matter was reset no such information was furnished. Instead Mr. Musimbe had renounced agency and Miss V. C. Maramba of Thondhlanga &
Associates was now appearing for applicant. The same question regarding the
reasons for the dismissal of the application and counter application in HC
10165/04 was raised. As was the case before no satisfactory answer was given.
In
as far as it is agreed that applicant's counter claim was dismissed for none
compliance with the provisions of the Contractual Penalties Act, if applicant
is to succeed it must show that it has now complied with the provisions of that
Act.
Section 8 of the Contractual
Penalties Act provides that-
“8(1) No seller
under am instalment sale of land may, on account of any breach by the
purchaser-
(a)
enforce a penalty stipulation or a provision for the
accelerated payment of the purchase price; or
(b)
terminate the contract; or
(c)
institute any proceedings for damages;
unless he has given notice in
terms of subs (2) and the period of notice has expired without the breach being
remedied, rectified or discontinued, as the case may be.”
Subsection 2 states that:-
“(2) Notice for the purpose of
subs (1) shall-
(a)
be given in writing to the purchaser; and
(b)
advise the purchaser of the breach concerned; and
(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-
(i)
the period fixed for the purpose in the instalment sale
of the land concerned; or
(ii)
thirty days;
whichever is
the longer period.”
Section 8(3) provides that-
“(3) Without derogation from s 40
of the Interpretation Act [Cap 1:01],
a notice
shall be regarded as having being duly
given to the purchaser for the purposes of
subs (1)-
(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
(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.”
Compliance with s 8 of the Contractual Penalties Act entails that one
would have given notice in terms of the above subsections. Subsection 1 obliges
a seller to give Notice in terms of subs 2. Subsection 2 outlines the nature
and content of that notice including what the notice must demand of the buyer. Subsection
3 provides for the manner of service of such notice for it to be deemed valid.
These are the steps applicant should have clearly out lined if it hoped to
convince court that it had complied with all the provisions of the Contractual
Penalties Act.
The notice that applicant said it gave respondent after the High Court
order does not seem to be the one envisaged under s 8 of the Act. That notice
reads:-
“RE: NOTICE OF
TERMINATION-STAND 3131 DZIVARASEKWA TOWNSHIP-DZI SUPERMARKET.
The High Court
of Zimbabwe sitting at Harare
ordered that the letter of termination of the agreement of sale had to be
served on you personally. Accordingly, this letter serves as your further
notice of termination of the agreement of sale entered into between our client
and the Estate late B. Njiwah on 24 February 1999, as further read with the
agreement of sale by Global Property, of 2nd March 1999. The first
breach is in respect of your failure to pay off the outstanding balance due to
our client within 36 months. The second breach is in respect of your failure to
timeously pay off the mortgage loan repayment to Beverley Building Society,
which were in arrears and almost resulted in foreclosure proceedings by
Beverley. Despite our client giving you more than the required 30 days notice
to rectify such breaches, you failed to do so.
Our client thus
hereby terminates the agreement of sale.
This
notice shall be served personally on you as required by the High Court.”
It
is my view that this notice is not in compliance with s 8 of the Act. The
notice envisaged under s 8 is one notifying the buyer of the breach and demanding
that the breach be rectified within a given period failure of which certain
consequences will befall him. Subsection 8(2) clearly states those
requirements. The purported notice by applicant is a mere statement of what
applicant claims to have done by way of advising respondent of the breach and
alleging that respondent had not rectified the breaches. Those letters said to
have been sent to respondent advising of the breach and giving respondent a
period within which to rectify the breaches are the letters or notices required
to be furnished.
Accordingly
I am of the view that even with a benevolent interpretation of the court order
in HC 10165/04, applicant has not shown that it has complied with the Contractual
Penalties Act.
The
difficulties the parties found themselves in could have been avoided had they
sought the reasons for judgment in HC 10165/04. Those reasons would have
clarified whether the main application was dismissed on the merits or not and
whether the counter application was dismissed for not serving the notice of
termination, as against a notice in terms of s 8(2) of the Contractual
penalties Act, personally or it was for not complying with two or more of the
provisions of the Act. In the absence of such reasons the issues between the
two parties cannot be resolved without the calling of evidence on what happened
in HC10165/04.
In
the circumstances I am of the view that neither the applicant nor the
respondent has made out a case warranting a decision in their favor in respect
of both the application and the counter application.
Accordingly
the application is hereby dismissed with costs.
The counter application is also
dismissed with costs.
Thondhlanga & Associates, applicant's legal practitioners.
Ziumbe &
Mtambanengwe, respondent's legal practitioners.
