The plaintiff issued summons against the defendant on 19 May 2007 seeking an order for the payment of damages in the sum of $20 billion.

In her declaration, she averred that she had purchased, from the defendant, certain immovable property situate in the district of Kariba for the sum of $180 billion which she paid in full. At the time of the agreement of sale, the defendant had already sold the same property to a company going by the name of Woolwork Investments (Pvt) Ltd. On account of this prior sale, the plaintiff further averred that the sale to her was a fraud as the defendant knew he had disposed of his rights in the property and had none to sell to the plaintiff. Thus, she claimed damages from the defendant.

The claim was defended.

The matter proceeded to a pre-trial conference where, due to the plea that had been taken by the defendant, the issues for trial were settled as follows:

1. Whether the plaintiff and the defendant entered into an agreement of sale in respect of House No.52 Beira, Mahombekombe, Kariba;

2. Whether the defendant breached the agreement of sale by failing to transfer the property to the plaintiff;

3. Whether, as a result of the breach, the plaintiff is entitled to consequential damages, and, if so, the quantum thereof;

4. Whether the plaintiff is entitled to costs on a legal practitioner and client scale.

At the trial of the matter, the parties advised that the defendant was no longer defending the claim and that the sole issue that fell for determination in this matter is the quantum of damages due to the plaintiff.

The plaintiff issued summons against the first, second, third and fourth defendants claiming the following relief:

1. An order that the fourth defendant takes all the necessary steps to pass possession of Stand Number 9314, Budiriro Township, Harare, within 48 hours of the order of court.

2. An order that if the fourth defendant fails, within 48 hours of the court's order, to take the necessary steps, the Deputy Sheriff be authorized to take such steps on the fourth defendant's behalf.

3. The first, second and third defendant's pay the costs of suit on the legal practitioner and client scale jointly and severally, the one paying the others to be absolved.

The background to this action is as follows.

Miriam Munemo and Faina Munemo were both married to Thomas Munemo. He held a lease-to-buy agreement with the City of Harare over Stand 9314 Budiriro Township, Harare. They assumed his rights, title and interest over the said Stand upon his death. In September 2002, the two wives “sold” their rights, title and interest in the Stand to the third defendant through the agency of one Davison Shonhiwa of Southern Life Executors. A month later, in October, they “sold” their rights, title and interest to the plaintiff.

All formalities were observed regarding obtaining the consent of the fourth respondent and a Memorandum of Agreement of Assignment was executed. Prior to the signature of the Memorandum of Agreement of Assignment of rights, title and interest, it was brought to the fourth respondent's notice that there existed a prior agreement of assignment between the two wives and the third defendant. The assignment was not proceeded with. The plaintiff sued in HC10708/02. The two wives both died soon thereafter. This action was withdrawn pending the appointment of the executors to their estates.

It is common cause that in HC10708/02 the two wives had claimed that the earlier “sale” had been cancelled for breach (exhibit 3). It is also common cause that one Davison Shonhiwa had facilitated the “sale” to the third respondent but had not passed on the proceeds of the “sale” to the two wives.

After the appointment of the executors to the late two wives' estates, the third defendant counter-claimed seeking the same relief as that which the plaintiff is presently seeking on the basis that a prior sale takes precedence over a subsequent sale.

At the pre-trial conference the parties agreed that the issues for determination were;

(a) Which agreement, between the two, should be upheld;

(b) Whether the third defendant's agreement with the two wives was cancelled for breach;

(c) Whether the plaintiff is a bona fide purchaser; and

(d) What an appropriate order should be.

At the trial, the plaintiff was able to show that indeed he had entered into an “agreement of sale” with the two wives. Pursuant to that agreement, the parties had attended at the fourth defendant's sub-office in Budiriro and were referred to the Remembrance Drive offices where the final documents formalising the cession of rights, title and interests in favour of the plaintiff would be concluded.

It was admitted, by the third defendant, that the purchase price paid to Davison Shonhiwa was not passed on to the two wives. The plaintiff's witness confirmed that the only “sale” which the last dying wife, Faina Munemo, acknowledged to him, as executor of her estate, was that of the subsequent sale to the plaintiff.

The witnesses for the plaintiff were both credible and honest.

The plaintiff even admitted that he could not recall the exact amount of money he had paid over to his legal practitioners as the purchase price. Had he rehearsed his evidence he could simply have given the figure.

In my assessment of the evidence, although the third defendant may have signed an “agreement of sale” with the two wives at the behest of a shadowy figure called Davison Shonhiwa, the difficulty her case faces is that Davison Shonhiwa was an incredibly unreliable character even in court. He claimed he acted as agent of both the sellers and the buyer in the transaction. He could not produce any proof that he had been lawfully appointed to deal with the estate of the late Thomas Munemo and the estate of the late Miriam and Faina Munemo in the manner he did. He failed to explain why, for example, his firm of executors demanded payment from Miriam Munemo if they held any funds in the form of proceeds of sale from the third defendant in 2002.

The evidence shows that on 22 and 23 October 2002 Miriam Munemo paid a total of $125,375= to Southern Life Executor Services. To my mind this put Davison Shonhiwa's credibility into serious doubt and cast him as a shameless liar. Even the document his firm admittedly drew regarding the sale, there is nothing to suggest that his firm was behind it.

Why was he hiding his firm's role? Whose agent was he?

The sellers dispute that he acted for them and claim that he coerced them into signing exhibit 6 against their will. From the manner he conducted himself in this case, I cannot put it beyond him.

Counsel for both the plaintiff and the third defendant argued this case as if it involved an agreement of sale of immovable property. That approach is misplaced because it in effect ignores the fact that what is being claimed is not the transfer of right, title and interest by the plaintiff from the first, second and fourth defendants but a cession of the rights enshrined in the “lease-to-buy” agreement between the fourth defendant, who is the owner of the land, and the “sellers” who signed off their rights to two different parties.

Where a seller fraudulently sells immovable property to two purchasers the court has to decide between two innocent buyers. Where transfer has not been passed to either party the basic rule, in cases of double sales, is that the first purchaser should succeed, in the absence of special circumstances. The first purchaser is treated as having the stronger claim and the second purchaser is left with a claim for damages against the seller. Guga Moyo & Ors 2000 (2) ZLR 458 (SC).

But that rule applies only "in the absence of special circumstances affecting the balance of equities". See McKERRON (1935) 4 SA Law Times 178; BURCHELL (1974) 91 SALJ 40.

BURCHELL was of the view that "the balance of equities must weigh heavily in favour of the second purchaser" before the court could favour her over the first purchaser….,.

In BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 (G), MACDONALD J…, said:

"In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule, but I agree with the view expressed by Professor McKerron that save in 'special circumstances' the first purchaser is to be preferred."

The broad principle, as set out above, was acknowledged to be our law in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) although that case turned on the fact that the second purchaser had knowledge of the first purchase. See also Lindsay v Mathews & Anor 1972 (1) SA RLR 186 (G)…,.

In Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475, the head note of which reads:

“The cession of the rights in breach of the non-cession clause creates rights between the lessee-purchaser and the third party, but it cannot bind the lessor-seller. This agreement is not illegal and invalid, but is only unenforceable against the lessor-seller. At the instance of the third party, the court may enforce the contract as against the lessee-purchaser but it cannot make an order, such as an order of transfer, that can bind the lessor-seller. The court has the discretion to order the lessee-purchaser to make transfer if he is in a position to do so or to take transfer of the property in order to give transfer to the third party. Where the lessor-seller is joined in the action and does not oppose the transfer, the court can exercise a discretion to order specific performance of a contract which, had the lessor-seller objected to transfer, would only have been enforceable by way of damages.”

That case is authority for the proposition that the court may confine the third party lessee-buyer to a claim for damages even if his claim may have been earlier in time, depending in the circumstances of the particular case.

In the present case, I consider the fact that the lessor-seller had virtually approved of the cession to be of overriding importance. This is a special circumstance because the lessee-buyer had signed the relevant documentation together with the City of Harare virtually assigning their rights, title and interest to third party thereby placing that third party in a position to enforce the right to claim transfer upon fulfilment of whatever obligations are set out in the lease-to-buy agreement. Payment of the full purchase price to the lessee-buyer by third party puts his claim on a stronger footing compared to the other party whose payment is held by the executor.

The third defendant has a claim in damages against her agent, the said Davison Shonhiwa.

Her “agreement” cannot be held to have earned the approval of the fourth defendant who had already considered and approved the plaintiff's Agreement of Sale (exhibit 1), Memorandum of Agreement of Assignment dated 30 October 2002 (p14 of bundle of documents) and the parties “Application For Cession” (exhibit(s) 2) taken together.

I am satisfied that the plaintiff has succeeded in making a case for the order he claims.

As for costs, normally costs follow the event but this is an unusual situation where, from the evidence, it appears that the third defendant was a victim of unscrupulous executors. I will not grant the order prayed for but on party and party scale.

In the result therefore, I make the following order:

1. The fourth defendant be and is hereby ordered to finalise the process initiated on 22 October 2002 by taking all the necessary steps to pass cession of all rights, title and interest in favour of the plaintiff within fourteen days of the date of this order.

2. In the event that the fourth defendant fails or neglects to comply with paragraph (1) above, then in that event, the Deputy Sheriff be and is hereby authorised to take such steps on the fourth defendant's behalf.

3. The third defendant's counter-claim be and is hereby dismissed with costs.

4. The first, second and third defendants to pay the plaintiff's costs.

On 17 April 2007 the plaintiff issued summons against the defendants claiming the following:

“(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza;

(b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and

(c) Costs of suit.”

In these proceedings the first defendant, who is late, is represented by Herbert Muwirimi, the executor of her estate.

The brief facts leading to the above claim are these:

On 18 July 2005 the plaintiff and the first defendant entered into an Agreement of Sale whereby the plaintiff purchased from the first defendant Stand Number 14826 Unit 'O' Seke, Chitungwiza (“the property”) for $80,000,000= (Eighty million dollars). The amount was paid in instalments, and, as at 27 November 2005, the full amount had been paid. Transfer of property, however, remained outstanding.

Notwithstanding the above Agreement of Sale between the plaintiff and the first defendant, on 16 March 2006 the first defendant, through another Agreement of Sale, sold the same property to the second defendant for $500,000,000= (five hundred million).

The property was then immediately transferred to the second defendant without the plaintiff's knowledge.

The above facts are common cause.

The plaintiff gave evidence in support of his claim. He confirmed the Agreement of Sale between him and the first defendant and stated that following full payment of the purchase price he took vacant possession of the property on 1 February 2006. He remains in possession.

The plaintiff said apart from requesting the first defendant, on three occasions, to attend to the transfer of the property, he had actually visited her at her rural home where upon she had promised to come to Chitungwiza to attend to the transfer. It was the plaintiff's evidence that when the first defendant finally came to Chitungwiza, during the first week of March 2006, she indicated that she was no longer willing to proceed with the sale of the property. This was so because her family members had objected to the sale of the property for the reason that it was a 'family house'.

The plaintiff's reaction was that he could only move out of the property if the first defendant bought him a similar property. He said he never agreed to the cancellation of the agreement. He also said there was never any suggestion of a top up. The first defendant, he testified, never advised him of the second sale of the property to the second defendant. He only discovered that the property had been transferred into the name of the second defendant through water bills which bore her name.

The plaintiff said the first defendant, in the company of the second defendant and her husband, visited him at the property during the second week of March 2006. It was then that the second defendant had disclosed that she had bought the property and therefore wanted him to move out. He refused to move out.

The plaintiff denied that he ever agreed to pay rent to the second defendant. He had paid the full purchase price and the property was now his. All what remained was transfer of the property to him. He denied ever receiving any reimbursement.

After his testimony, the plaintiff closed his case.

Herbert Muwirimi, the executor of the first defendant's estate, gave evidence, which, in the main, was based on hearsay. He said that the late first defendant was his aunt and was the owner of the property in dispute. He, however, only became aware of the contract between the plaintiff and the first defendant when he came to court. He was not aware of the second sale to the second defendant. All what her aunt had told him was that the plaintiff had not paid the 'top up'. He trusted that his brother, Onismus Muwirimi (Onismus), had accounted for all the money that had been paid by the plaintiff through him. The money was for the first defendant (i.e payments towards the agreed purchase price of $80 million).

Onismus Muwirimi, who was called as the last witness for the first defendant, testified that he was involved in the negotiations that led to the purchase of the property by the plaintiff. He said the first defendant was his aunt. He confirmed that an Agreement of Sale was signed between the plaintiff and the first defendant. The full purchase price of $80 million, including a top up of $2.5 million, was paid by the plaintiff. He said the 'top up' had arisen as a result of complaints from the first defendant's brothers who felt the price of $80 million was low.

Onismus Muwirimi, who was a close friend of the plaintiff, testified that her aunt's first legal practitioners, Messrs C Mutsahuni, Chikore & Partners had paid a refund of $82.5 million to the plaintiff. A receipt (exhibit 5) was produced. He, however, said the plaintiff had refused to accept the refund. The witness said he had told the plaintiff that because of his failure to pay the top up price, of $50 million, his aunt, the first defendant, was considering selling the property to someone else. Furthermore, his aunt's brothers were accusing him of conniving with him (the plaintiff) in order for the plaintiff to purchase the property at a cheaper price. He said when the property was finally sold to the second defendant, he did not disclose the first sale to her (the second defendant).

The second defendant gave evidence in support of the second sale of the property to her and was supported by two other witnesses. She confirmed that through a Mr Chihota, she had, in terms of an agreement of sale dated 16 March 2006, purchased the property from the plaintiff for $500 million. She said upon checking on ownership details with the Council, she had, within five days, proceeded to have the property transferred into her name before paying the purchase price. She also said she had not viewed the property since she had a general knowledge of the types of houses in the area. She had to move fast because she had been advised that there was also a soldier who was keen to pay more money for the property. She said she only discovered that the property had also been sold to the plaintiff after she had already transferred ownership to herself. The first defendant had only told her that a relative of hers was staying at the property.

The second defendant said one of her main aims in buying the property was to build a bigger house. She said that upon proving her ownership of the property to the plaintiff, he had initially agreed to pay $10 million per month as rental pending his final departure from the property. She said the plaintiff had, however, reneged on the rental arrangement.

Mr Livingstone Chituriro Chihota testified that he had indeed facilitated the purchase of the property by the second defendant. He said all negotiations leading to the purchase of the property by the second defendant had been conducted at his house, which was about 300 metres away from the property in issue. He said it was, however, not his duty to show the second defendant the property that the first defendant was selling. He said that his only duty was to find a buyer for the first defendant. Once he had found a buyer he sent Onismus Muwirimi for the first defendant, with the second defendant paying for Onismus's transport to the rural area to fetch the first defendant.

Clement Nhau was called as the last witness for the second defendant. He said the second defendant was his wife and that he had been present at Livingstone Chituriro Chihota's house when the purchase of the property was discussed and concluded. Like the second defendant, he also confirmed that they had not seen or viewed the property. He and the second defendant had been told that there was a soldier who was also interested in buying the property. He said, as a result, moving with speed became necessary in order not to lose the property. In the main, his evidence corroborated that of the second defendant.

In order to put all the evidence and submissions from the parties' legal practitioners in proper prospective, I think, in the face of the evidence now before me, it is necessary to restate the issues identified for trial at the pre-trial conference. The agreed issues were:

“1. Whether or not plaintiff was in breach of the contract between him and first defendant.

2. Whether or not the Agreement of Sale between the plaintiff and the first defendant was ever cancelled.

3. Whether or not second defendant is an innocent third party.”

Upon restating and evaluating the evidence of the plaintiff, counsel for the plaintiff submitted that the double sale situation had arisen as a result of greed on the part of the first defendant. He submitted that the plaintiff had paid the full purchase price in terms of the agreement. There was no dispute that the sum of $80 million had been paid.

Relying on Chimponda v Rodgriques and Others 1997 (2) ZLR 63, counsel for the plaintiff correctly submitted that it is the primary right of a wronged first buyer to have the remedy of specific performance unless there is some equitable reason disqualifying him/her from obtaining such a relief. He said, in casu, there were no special reasons/circumstances militating against the plaintiff's right to specific performance.

Counsel for the plaintiff submitted that the second defendant had conducted herself in a suspicious and questionable manner and hence leaving room for one to conclude that she was aware of the first sale i.e the sale of the property to the plaintiff. That being the case, counsel for the plaintiff argued, the second defendant's remedy was in an action for damages against the estate of the first defendant i.e the seller of the property. All in all, counsel for the plaintiff's position was that the plaintiff's rights under the contract entered into between him and the first defendant should be enforced by this court.

Counsel for the first defendant also cited the case of Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and submitted that in a double sale situation the basic rule is that, in the absence of special circumstances, the first purchaser should succeed. Also relying on Guga v Moyo and Others ZLR 2000 (2) 458 (S), she went on to state that the special circumstances to be looked at are:-

“(i) Who has paid more money than the other.

(ii) Who has taken possession of the property and expended considerable sums on the house.

(iii) Whether first purchaser took any action to protect his interest when he became aware that the seller was behaving dishonestly.”

Counsel for the first defendant submitted that in casu the second defendant had paid more money than the plaintiff i.e. $500 million as compared to $82,5 million paid by the plaintiff. She said the plaintiff had, in any case, failed to protect his interest after being told, in February 2006, by his wife, that the second defendant was inquiring about whether or not the house was still on sale. She went on to say the plaintiff had also not reacted swiftly when told by officers at Chitungwiza Municipality that the file had been taken to the Head Office. She argued that such information should have indicated to the plaintiff that something was happening to the house. The plaintiff, she argued, did not, however, take prompt action to protect his interest. She concluded her submissions by urging the court to regard the second defendant as an innocent purchaser in whose favour the special circumstances should lie so as for her to be awarded the property.

Counsel for the second defendant submitted that the important factor to consider in a double sale was whether or not the second purchaser was aware of the first purchase of the same house. He submitted that at the time of the agreement to purchase the property and also at cession of rights, title and interest in the property, the second defendant was not aware or had no knowledge of the first sale. He said that the fact that the second defendant went on to purchase the property without seeing or viewing it could not be construed as conduct confirming that she had known of the first sale. In any case, he argued, the second defendant had given adequate explanation for her conduct. He said whereas the second defendant had protected her interests by quickly seeking transfer of property, the plaintiff had done nothing to protect his interests despite the fact that he had become aware of the first defendant's reluctance to proceed with the sale (i.e. through asking for a 'top-up'). Furthermore, counsel for the second defendant argued, the second defendant had paid more money than the plaintiff. He therefore submitted that the second defendant's case should succeed. The plaintiff, he suggested, could seek damages from the estate of the first defendant.

The facts in casu, in my view, clearly establish the existence of a double sale.

The first sale was completed on 27 November 2005 when the last instalment towards the purchase price of $80 million was paid by the plaintiff to the first defendant. The payment was in terms of the Agreement of Sale dated 18 July 2005. The issue of a top up only came some three months after the plaintiff had fulfilled his obligation under the contract. What remained to be done under that agreement was cession of rights, title and interest in the property to the plaintiff. The purported reversal of the Agreement of Sale, in March 2006, does not, in my view, invalidate the first sale.

The second sale was concluded on or before 16 March 2006 when the second defendant paid $500 million to the first defendant in terms of the agreement signed between the first defendant and the second defendant on that date.

In concluding that the evidence confirms the existence of a double sale, I am in the same vein stating that the plaintiff complied with his obligations under the Agreement of Sale dated 18 July 2005. The plaintiff did not breach that agreement. There was therefore nothing on which the first defendant could anchor cancellation on and worse still without notice.

In her plea filed of record on 6 July 2007, and prepared during her life time, the first defendant said she had cancelled the agreement between herself and the plaintiff because:-

“(i) He had failed to pay the full purchase price.

(ii) He chased away first defendant's lodger without her permission and he imposed himself on the property in question.

(iii) He started cutting trees at the house without permission.”

The above 'breaches' were never placed before the plaintiff.

The issue of a top-up amount is not mentioned anywhere in the pleadings. It was only raised during the hearing in court.

The plaintiff, who, I must say, I found to be a credible witness, denied that he had paid an additional sum of $2,5 million as a top up. He said the reason for the purported reversal of the agreement, as given him by the first defendant, was that the property “was a family house”. The family had therefore decided not to have it sold.

This does not tally with reasons given in the pleadings. The plaintiff had refused to accept a refund arguing that if anything, it was the first defendant's duty to get him a similar property.

Exhibit 5, showing the purported reimbursement of $82.5 million on 7 April 2006, through Messrs C Mutsahuni Chikore & Partners, throws mud in the first defendant's story.

The said legal practitioners are not mentioned anywhere in the pleadings, and, if indeed they had handled the matter one would have expected them to proceed against the non-rent paying plaintiff who had allegedly imposed himself on the property on 1 February 2006. That piece of evidence is suspect. I have, however, already indicated that as at 27 November 2005 the plaintiff had complied with the Agreement of Sale. He had, in terms of the agreement of sale, paid the only agreed and known purchase price of $80 million. Accordingly, in the absence of a breach, any purported cancellation of the agreement was of no effect. This finding disposes of the first two tissues; namely;

(i) Whether or not the plaintiff breached the agreement; and

(ii) Whether or not as a result of a breach the first defendant cancelled the agreement.

The last issue to be determined is whether or not the second defendant is an innocent purchaser.

I am unable to accept counsel for the second defendant's submission that the second defendant's conduct should not be construed as to mean that she had knowledge of the first sale. Admittedly, there is no direct evidence of knowledge. However, the following factors lead me into believing that the second defendant had knowledge of the first sale and that all she needed to do before parting with $500 million, was to establish that transfer of the property to the plaintiff had not yet taken place. That, as per her own evidence, she proceeded to do with speed.

The factors that confirm my belief that the second defendant knew of the first sale are these:-

1. The negotiations of the second sale were hurried and confined to Livingstone Chituriro Chihota's house despite the fact that the first defendant knew the plaintiff very well. The plaintiff had even helped her (first defendant) in registering the estate of her late husband, Mr White. That fact was not disputed. I find no good reason as to why the hurried negotiations were not held at her house which was only 300 metres away from Mr Chihota's house. The first defendant had no long association with Mr Chihota;

2. The second defendant did not bother to view the property which was only 300 metres from where the negotiations were taking place. The mere fact of buying the property, at a high price of $500 million, without inspecting/viewing it is strange. The only reasonable conclusion I can make is that the first and second defendants colluded to deprive the plaintiff of the property. This plan was enhanced by the fact that transfer of property had not yet been effected. The second defendant was even prepared to go out of her way to pay Onismus Muwirimi's transport costs in order for him (Onismus) to fetch the first defendant from her rural home;

3. The speed at which the transaction was concluded is quite unusual. Once the second defendant had established that transfer had not yet occurred she made sure that everything got sealed within five days. This was so in order to ensure that the plaintiff would remain in the dark until the transaction, particularly transfer of property, was through; and

4. The plaintiff only issued summons in this case on 17 April 2007. That is one year after the sale of the property to the second defendant on 16 March 2006. I believe that, were it not of the second defendant's knowledge of the dirty deal she had entered into with the first defendant, she would have, with the same speed she had employed in the transaction, caused the eviction of the plaintiff, who, worse still, according to her evidence, had refused to pay rent.

On the basis of the above factors, my conclusion is that there was connivance between the first defendant and the second defendant.

They were assisted in the execution of their plan by Onismus Muwirimi and Livingstone Chituriro Chihota. All ensured that the plaintiff would only be told after transfer of the property to the second defendant had been effected. That, as shown by evidence, is exactly what happened. That is the only reasonable way to explain the reason for confining the negotiations to Livingstone Chituriro Chihota's house and the failure to view the property which was only 300 metres away. The four knew they were doing something wrong, something whose results the plaintiff would only know when it was too late.

Accordingly, my finding, on a balance of probabilities, is that the second defendant was fully aware of the first sale.

In view of the foregoing, and given the authorities cited by counsel for the plaintiff, I fully agree that in the absence of special circumstances militating against the plaintiff, there is every reason for me to rule in his favour. The plaintiff is therefore entitled to his primary right of specific performance.

The fact that he paid less than the second defendant cannot be used against him in a situation where it has been established that through her conduct, the second defendant displayed her knowledge of the first sale. The court cannot ignore the manner in which both defendants conducted themselves.

I am also not persuaded by the argument that the plaintiff did nothing to protect his rights.

Having fulfilled his obligation under the agreement, the plaintiff quickly took possession - and is still in possession. Evidence shows that even before and after 16 March 2006, the plaintiff was pestering the first defendant with his demand for the transfer of the property to his name. The subsequent intentions of the first defendant only became clear after the second sale had been fully executed. Clearly, the plaintiff was duped and the second defendant was a big player in the clandestine transaction.

All in all, the equities in casu favour the plaintiff. The second defendant, if she so wishes, can proceed to claim damages from the estate of the first defendant. See both Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and Guga v Moyo and Others ZLR 2000 (2) 458 (S).

The plaintiff's claim succeeds and it is therefore ordered as follows:-

1. That the plaintiff be and is hereby declared the lawful owner of Stand Number 14826 Unit 'O' Seke, Chitungwiza.

2. That the third defendant be and is hereby ordered to cancel the cession of rights title and interest in Stand Number 14826 Unit 'O' Seke, Chitungwiza, made in favour of the second defendant.

3. That the third defendant be and is hereby ordered to cede rights, title and interest in Stand Number 14826 Unit 'O' Seke, Chitungwiza to the plaintiff; and

4. That the first and second defendants shall pay costs of suit jointly and severally.

The applicant seeks an order for specific performance of a contract of sale of an immovable property called Lot 1 of Subdivision 2 of Lot 382A Highlands Estate measuring 4,043 square metres held under Title Deed No.13635/2001, registered in the names of the first and second respondents, husband and wife respectively….,.

The second respondent is opposed to the order sought by the applicant.

She counter-applies for an order declaring the agreement of sale relied upon by the applicant null and void ab initio. She avers that, as joint owner of the property in question, she never consented to the sale of the property. She states that the signature appended to the Power of Attorney executed in favour of the first respondent granting him power to transfer her half-share is a forgery.

The applicant makes the following averments regarding the circumstances leading to this application:

On 15 February 2005, the first and second respondents sold the property to one Wonderful Chizema. On 1 July 2005, the first and second respondents sold the same property to the applicant. At the time of the sale the applicant was unaware of the prior sale to Wonderful Chizema.

On 20 July 2005, the first and second respondents sought to cancel the sale of the property to Wonderful Chizema. Chizema did not accept the cancellation. He obtained a provisional order, on 23 August 2005, in this court, interdicting the first and second respondents from alienating the property in any way. The provisional order was never confirmed. The applicant states that Wonderful Chizema has since fallen out of the picture.

On 2 August 2005, the first respondent sought to cancel the sale of the property to the applicant. The applicant did not accept the cancellation. It obtained a provisional order in this court on 2 September 2005 interdicting the first and second respondents from alienating the property in any way pending the determination of an application compelling transfer of the property to it.

On 5 October 2005, the applicant obtained default judgment against the respondents in terms of the order in the present application. Consequently, the property was transferred to it.

On 10 October 2005, a writ of eviction was issued out in favour of the applicant for the eviction of both the first and second respondents from the property. The first and second respondents obtained an order staying eviction pending the filing of an application for rescission of judgment.

On 20 December 2006, the second respondent applied for and obtained rescission of the judgment granted on 5 October 2005.

This application deals with the merits of the main application.

The issue is whether the applicant is entitled to the order sought in the application for specific performance.

The first respondent has not opposed the order sought.

The second respondent states that her marriage to the first respondent, around 24 February 2004, the date the power of attorney in favour of the first respondent was signed, was on the rocks due to the first respondent's association with one Ivy Kombo. As such, she could not possibly have executed the power of attorney as alleged. In any event, she had already executed such power of attorney in favour of her sister.

Counsel for the applicant urged this court to find for the applicant on the following grounds:

(a) Firstly, he contended that as the second respondent was fully aware of the sale of the joint matrimonial property to the applicant, she must be ordered to pass transfer to the applicant.

(b) Secondly, if this court held that she was unaware of the sale to the applicant, and, therefore, found that her signature consenting to the sale is a forgery, the court must still order specific performance as she will not suffer any prejudice since she can still call upon the first respondent to account for the sale of the proceeds of the sale of the matrimonial assets in the pending divorce action.

(c) Thirdly, since, at common law, the second respondent is regarded as co-owner of the asset in issue, she will be entitled to a share on the property proportionate to her shareholding. See Runciman v Schultz 1923 TPD 45 where…, the following appears;

“The principle of our law on this point seems to me to be contained in the first paragraph of Digest (10.3.6.2), where Ulpton says;

'A joint owner (socius) will be bound by the actio communi dividundo to account for whatever he has acquired from the common property, whether by letting the common property or by cultivating it himself.”

The applicant argues that the first respondent need not have obtained the second respondent's consent before disposing of his half-share. As such, the sale of the first respondent's half share to the applicant cannot be impugned. If the applicant does not obtain transfer, the result will be that the applicant, a company, and the second respondent, will become co-owners of a residential property which, for strangers, is absurd. The applicant urged the court to exercise its wide discretion to make such an order as the justice of the case may require. Estate Rother v Estate Sandig 1943 AD 47.

In Bennett N.O. v Le Roux 1983 ZLR 301 (H) the relevant authorities are discussed and set out as follows;

“The task of the court is to decide how the property should be sold, and, in doing that, it is being guided by the following passage in Oosthuizen's The Law of Property on p63:

“If the joint owners are unable to agree upon the manner in which the property is to be divided, any one of them may approach the court for relief by instituting the actio communi dividundo. The court has a wide discretion in regard to the partition and may make such order as appears to be fair and equitable in the circumstances. It may, for example, order one joint owner to pay a certain sum to each of the others in order to equalise the division; the court may award it to one of the joint owners subject to the payment of compensation to the other; or it may order that the property be sold by public auction and the proceeds to be divided among the joint owners in accordance with their shares.”

The second respondent is vehemently opposed to the grant of the order sought, and, as I said, makes a counter-application for an order declaring the agreement of sale null and void ab initio.

She raised a point in limine that as there is a dispute of fact incapable of resolution on the papers, the matter must be referred to trial.

It seems to me that there are sufficient facts which are common cause on the papers upon which this court can, adopting a robust approach to the whole matter, rely upon to resolve the dispute.

As I understood it, the contention by counsel for the second respondent is that despite the fact that a divorce is pending, at law, she is still married to the first respondent. By virtue of her marriage she is a joint owner of equal and undivided share in the property. She was never party to the agreement of sale which the applicant seeks to enforce. The power of attorney used to effect the agreement of sale was forged in favour of the first respondent. As such, she is not bound by the agreement.

It is true that a co-owner may not purport to alienate the property which is jointly co-owned without the consent of the other owners; and that alienation of jointly owned property can only be effected by the joint action of all the owners. Masubey v Masubey 1993 (2) ZLR 36.

There may, however, be circumstances in which a court may be called upon to consider whether or not to recognise an alienation which violates this principle of our law.

A common occurrence of such a circumstance occurs in matrimonial property. In Ncube v Ncube 1993 (1) ZLR 39 (S) the court was called upon to do exactly that. At p46 the Supreme Court expressed itself thus:

“It is true that joint owners of property own each and every part of the property equally, and, therefore, own equal shares in the value of the property. But when property comes to be apportioned or divided under section 7 of the Act, even though the spouses may be joint owners of the property, the Act confers on a court of law, in the interest of justice and fair play, power to take part of a spouse's share in property jointly owned to give it to the other spouse, if, by doing so, it could place the spouses in the position they would have been had a normal marriage relationship continued between them.”

In the present case, it is my finding that the first respondent misrepresented to the applicant that he had the power of attorney to enter into the agreement of sale in respect of the second respondent's half share in the immovable property. I also find that the applicant had no reason to suspect that there was a misrepresentation of fact in respect of the authority to pass transfer by the first respondent. The papers do not suggest that it was in the public domain that the first and second respondent's marriage was on the verge of collapse in 2005. It therefore cannot be argued that the applicant was not an innocent purchaser for value when it bought the property. Indeed, that is not the second respondent's contention. She relies on her lack of knowledge and consent to the sale of her half-share by her husband only.

Having come to that conclusion I must decide whether or not I should order specific performance.

Our law is clear that a plaintiff is always entitled to specific performance, and, if he or she makes out a case, his or her claim will be granted - only subject to the court's discretion. The locus classicus for this view is the judgment of INNES J in Farmers Co-operative Society (Reg) v Beny 1912 AD 343 where…, he says:

“Prima facie, every party to binding agreement who is prepared to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger (1894) 1 OR at p301;

'The right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond doubt.'

It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance will be made. They will not, of course, be issued where it is impossible for the defendant to comply with them. And there are many cases in which justice between the parties can be fully and conveniently done by an award of damages. But that is a different thing from saying that a defendant who has broken his undertaking has an option to purge his default by the payment of money. For, in the words of Storey (Equity in Jurisprudence, sec 717(a));

'It is against conscience that a party should have a right of election whether he would perform his contract or only pay damages for the breach of it.'

The election is rather with the injured party, subject to the discretion of the court.”

In exercising the court's discretion I am aware that “…, (t)he discretion which a court enjoys, although it must be exercised judicially, is not confined to specific types of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its own circumstances.” per DE VILLIERS AJA in Heynes v Kingwilliamstown Municipality 1951 (2) SA 371…,.

In this case, what I find to weigh heavily in favour of the granting of the order sought is;

(a) The fact that the applicant entered into the agreement of sale without any suspicion that the first defendant may have forged his wife's signature to the agreement.

(b) Secondly, the applicant has made full payment for value to the first respondent. It is for the first respondent to disgorge his ill-gotten gains in favour of his estranged wife.

(c) Thirdly, in view of the pending divorce proceedings, the second respondent will not suffer any prejudice by making a claim for her share in those proceedings taking into account the findings against her husband made in this judgment.

(d) Further, a balance of convenience favour the making of an order in favour of the applicant in the terms sought.

In the premises, therefore, the second respondent's counter-claim is dismissed with costs. In the premises I make the following order:

1. The third respondent be and is hereby ordered to transfer a certain piece of land situate in the district of Salisbury known as Lot 1 of Subdivision 2 of Lot 382 A Highlands Estate measuring 4,043 square metres held under Deed of Transfer No.13635/2001 to the applicant.

2. The Sheriff of the High Court of Zimbabwe or his lawful Deputy be and is hereby authorised to sign all papers necessary to transfer title in favour of the applicant in terms of paragraph 1 above.

3. The fourth respondent be and is hereby ordered to issue a duplicate Capital Gains Tax Clearance Certificate to Matipano and Musimwa legal practitioners of the Certificate he issued to Musunga and Associates upon application and in fulfilment of his requirements for him to issue such certificate.

4. Matipano and Musimwa legal practitioners be and are hereby authorized to process the conveyancing of the property referred to in paragraph 1 above to the applicant.

5. The Deputy Sheriff be and are hereby ordered to evict the first and second respondents and all those claiming through them from a certain piece of land situate in the district of Salisbury known as Lot 1 of Subdivision 2 of Lot 382 A Highlands Estate measuring 4,043 square metres held under Deed of Transfer No.13635/2001 otherwise known as 4 Knightsbridge Crescent, Highlands, Harare with the assistance of the members of the Zimbabwe Republic Police, if necessary, upon giving five days notice.

6. The first and second respondents, jointly and severally, the one paying the other to be absolved, be and are hereby ordered to pay costs of suit.

Under the exceptio non adimpleti contractus, a party avers that the other party has come to court to enforce a contract which he himself has been in breach of.

The dispute in casu is steeped in the sale of a deceased immovable property whose purchase price was paid by the applicant but transfer of which the respondent failed to effect. The draft order the applicant seeks is couched in these words:

“IT IS HEREBY ORDERED THAT:

1. The respondent is hereby ordered to deliver and register a four roomed house; comprising two bedrooms, kitchen, dining room and a toilet in either Nyameni, Dombotombo, Rujeko or Rusike high density Suburbs of Marondera, to the plaintiff (sic) within thirty (30) working days of this order.

2. In the event of the respondent failing to perform in accordance with para 1 above, the applicant is hereby empowered to execute this order against respondent's property.

3. The respondent to pay costs of suit on a client legal practitioner scale.”

THE FACTS

The respondent is a co-director of Pricassons Investments (Pvt) Ltd, a company, as can be gleaned from its letterheads, whose core business is buying and selling of Stands and houses, developers and brokers, driving school, car hire, dealers in imported new and used cars, trucks and mini buses and construction of agreements of sale.

In December 2007, the respondent, acting on behalf of Joseph Tsamwayi, the appointed executor of the estate of the late Patrick Tsamwayi, entered into an agreement of sale with the applicant in terms of annexure A1-A5 wherein the applicant purchased Stand Number 8 Dziva, Dombotombo, Marondera for a purchase price of Z$18 billion. The salient terms of annexure A1-A5 are:-

(i) Clause 2(c), providing that all the moneys shall be deposited into Pricassons (Pvt) Ltd's Standard Chartered account number 0100254284900;

(ii) Clause 9, providing that in the event of the seller breaching any term or condition of this agreement and the seller fails to remedy the breach within 7 days of written notice to do so, then, without prejudice to his rights at law, the purchaser shall be entitled to either cancel the agreement and claim damages which shall be equal to the value of purchasing a similar comparable property at the time of such claim or seek an order of specific performance;

(iii) Clause 10, providing that the seller shall cede all rights in the property to the purchaser within three months of signing this agreement which time it is anticipated the seller would have been issued with the certificate of authority by the Master of the High Court; and

(iv) Clause 11, providing that the agent, Mr Patson Nawasha, of Pricassons (Private) Limited hereby undertakes and guarantees that the seller will perform as per the agreement, and, in the event of any material breach, he will be jointly responsible with the seller in paying damages to the purchaser.

The applicant paid the full purchase price for the house, which was brick under asbestos, composed of two bedrooms, kitchen, lounge and toilet.

The respondent failed to fulfil his part of the agreement and admitted that he had sold a deceased estate house which had a dispute – the minor children of the deceased having refused to approve of the sale.

On 4 July 2008 the parties signed a Memorandum of Understanding (annexure 'B') clause two of which stipulated that the respondent would deliver to the applicant an alternative house within 14 days of signing of the memorandum. Despite this undertaking, the respondent still did not deliver the alternative house. On 26 July 2008 the respondent wrote to the applicant and her then husband, Gideon Muchada, reiterating that he wanted to honour his undertaking in annexure 'B' vide annexure 'C'. However, to date the respondent has not fulfilled his undertaking.

THE DEFENCE

In his opposing papers, as well as the heads of argument, the respondent basically raised three issues or defences.

The first is that there exists a material dispute of fact which cannot be resolved on the papers without hearing viva voce evidence. This is premised on the allegation by the respondent that the applicant averred that the respondent knew that the estate property had a dispute and despite that knowledge he fraudulently misrepresented to the applicant to enter into the contract of sale. Because the respondent disputes this averment this necessitates the hearing of viva voce evidence.

The second issue raised is one of supervening impossibility. This is premised on the fact that the purchase price was deposited into the respondent's trust account and it remained there until the Zimbabwe dollar currency became moribund through no fault of the respondent. This was out of his control hence constitutes a supervening impossibility to perform. He could not provide the alternative house he had guaranteed to do because the purchase price paid had been rendered valueless.

The third issue raised relates to non-joinder of the principal, viz Joseph Tsamwayi. For this averment, the respondent relies on clause 11 of the agreement of sale alluded to supra, viz that in the event of any material breach of the agreement by the seller the respondent will be jointly responsible with the seller in paying damages to the purchaser. The non-joinder of the seller, so the argument went, is fatal to the application.

Mr Mahuni is from the law firm Matsanura and Associates who are corresponding attorneys of Messrs Laita and Partners representing the respondent. The latter firm drafted the respondent's opposing papers including the heads of argument. At the hearing of argument Mr Mahuni conceded, correctly in my view, that the averments that there exist a material dispute of fact and also supervening impossibility have no legal leg to stand on. The concession's propriety is hinged on the fact that the alleged material dispute of fact is misplaced because the applicant's cause of action is founded not on the agreement of sale annexure 'A1-A5' but on annexures 'B' and 'C' and also that for more than a year the purchase price lay in the respondent's trust account without the respondent either purchasing an alternative house for the applicant or reversing the transfer of the deposited funds.

The sole issue that is left for my resolution is the one relating to the alleged non-joinder of the principal.

THE LAW AND ITS APPLICATION TO THE FACTS

In Wood v Visser 1929 CPD 55 WATERMEYER J…, restated the general rule regarding the liability of agents in these words:-

“The general rule, undoubtedly, is that a person contracting with an agent can only sue the principal on that contract, but, in some cases, he can sue the agent; if, for example, he contracts with the agent as a principal, makes him his debtor and gives credit to him and not to his principal, then he can sue the agent personally on such contract.”

See also Blower v Van Noorden 1909 T.S. 898 where INNES CJ said:-

“The usual test would be to enquire to whom the contracting party looked. Nam in talibus contractibus semper inspictur cujus fides secuta sit. That would be the governing principle.”

In clause 11 of the agreement of sale quoted above, the respondent holds himself out as a guarantor and surety, and will be “jointly responsible with the seller in paying damages to the purchaser” in case of a material breach of the contract. He thus makes himself a co-principal debtor.

In Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SALR 463 it was held that the only consequence (albeit an important one) that flows from a surety also undertaking liability as a co-principal debtor is that vis-à-vis the creditor he thereby tacitly renounces the ordinary benefits available to a surety, such as those of excussion and division and he becomes liable jointly and severally with the principal debtor…,. See also CANEY's The Law of Suretyship In South Africa, Juta and Co. Ltd 3^rd ed. 1982…,.

In the instant case, it is beyond caevil that the unassailable interpretation that must be gleaned from the wording of clause 11 of the agreement of sale is that by holding himself out as a guarantor and surety, followed by his conduct of retaining the purchase price in his company's trust account for some 13 months, coupled with his undertaking in annexure 'B' as “agent and guarantor in the main agreement of sale…, to secure for the purchaser an alternative property within 14 days from the signing of this agreement”, the applicant purchaser looked to the respondent not only as a co-principal debtor, but, through novation, via annexure 'B', as the sole debtor who could be sued in either instance alone without joining the principal or original principal as the case may be.

In any event, by agreeing to be a co-principal debtor, the respondent tacitly renounced the benefit of excussion, and, consequently, it is idle for him to now clamour or grope for it.

The applicant is perfectly entitled, at law, to proceed against either party at her discretion. The party successfully sued may be reimbursed by the other party who has not been joined to the suit.

CAN APPLICANT RIGHTLY DEMAND SPECIFIC PERFORMACNE FROM RESPONDENT

As far back as the 17^th century it was held, in Cohen v Shires McHattie & King (1882) 1 SAR 41, that Roman Dutch law clearly recognised the right to a specific performance of a contract.

And in Farmers' Co-operative Society (Reg) v Berry 1912 AD 343…, INNES JA stated:-

“Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract.”

That right has been recognised and re-affirmed in a plethora of cases such as Woods v Walters 1921 AD 303…,; Haynes v King Williamstown Municipality 1951 (2) SA 371 (A)…,; and Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (HC).

It is settled law that the grant or refusal of an order for specific performance is entirely a matter for the discretion of the court in which the claim for specific performance is made: Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (HC)…,.

This judicial discretion is not circumscribed by rigid rules; rather, each case must be judged in the light of its own circumstances. Courts have ruled that the remedy of specific performance can be eschewed where such an order is inequitable to the defaulting party or operates unreasonably harshly on the defendant, or where the agreement giving rise to the claim was unreasonable, or where the decree would produce injustice or would be inequitable under all circumstances. See Haynes v King Williamstown Municipality 1951 (2) SA 371 (A).

In Tamarillo (Pvt) Ltd v R.N. Aitken (Pty) Ltd 1982 (1) SA 398 (A) MILLER JA…, dealt with the question of what the plaintiff or the defendant must do in order to persuade the court, in the exercise of its discretion, to grant or refuse an order for specific performance and on which party the onus lies. It is for the defendant to raise impossibility as a defence and the onus rests on him to prove impossibility.

In the instant case, the respondent did not raise the defence of impossibility of performance. In fact the defence of supervening impossibility that was initially raised was abandoned at the hearing by Mr Mahuni. The sole defence that remained for resolution pertained to the non-joinder of the principal which I have already disposed of supra. Mr Mahuni submitted that the respondent was not disputing liability in the face of annexures 'A' and 'B'. His only quarrel was regarding the non-joinder.

On the facts of this case, it has not been shown that a decree of specific performance, as prayed for in the draft order, would produce injustice or be inequitable or operate unreasonably harshly upon the respondent. On the contrary, its refusal would wrought grave injustice or operate unreasonably harshly on the applicant who parted with her life time savings paying for a house which the respondent failed to deliver, even following an undertaking to deliver an alternative property within 14 days, yet the respondent kept her money in his company's trust account for 13 months. To deny the decree and direct that the applicant should claim damages when the currency she paid is no longer of any value to anyone would offend against all known tenets of equity and justice. She performed her part of the contract and was not responsible for the respondent's non-performance.

The statements of account attached to the respondent's opposing affidavit are of no probative value. They simply indicate that the applicant, on 24 December 2007, deposited Z$15 billion. The statements run up to 29 February 2008. It has not been proven that by February 2009, when the new currency regime was introduced, the applicant's purchase price was still locked in that trust account. The respondent could have, and must have, used it for his benefit.

Why should the applicant be unduly harshly treated by denial of the decree in the circumstances? Justice, and even public policy considerations, would not allow it.

In the result, judgment be and is hereby entered for the applicant in terms of the draft order with the amendment in paragraph 3 thereof that costs be on the ordinary scale.

The defendant should not be allowed to resile from a clear contract. He ought to be prepared to meet his obligations under the contract. In that vein, I associate myself with the late ROBINSON J.who said:

This is an appeal against the decision of the High Court dismissing with costs the appellant's claim for delivery of two hundred heifers and two hundred steers.

The background to this matter is as follows;

At the relevant time, Nuanetsi Ranch (Pvt) Ltd (“the respondent”) was one of the largest cattle breeders in the country. During 2003, the respondent experienced acute cash flow problems as a result of which a decision was taken, by management, to dispose of some of the cattle in order to raise money. On or about 7 May 2003 the respondent entered into a written agreement with the appellant in terms of which the respondent sold to the appellant a total of four hundred cattle consisting of two hundred heifers and two hundred steers. The purchase price was agreed at Z$450 per kilogram for the heifers and Z$500 per kilogram for the steers.

The appellant paid the agreed deposit of Z$15 million on 8 May 2003. In terms of the agreement, the balance of the purchase was payable “on Monday 12 May 2003 or after the animals have been weighed and delivered whichever occurs later.”

The cattle were not weighed by 12 May 2003, and, consequently, the balance was not paid by that date.

In June 2003, the respondent then advised the appellant that it could collect one hundred and twenty steers which the respondent said was equivalent to the deposit of Z$15 million previously paid.

At the hearing of the matter before the court a quo, the court found that the cattle had been weighed on 16 May 2003, and, that although the appellant had been advised of this fact no payment had been forthcoming despite numerous visits and telephone calls by the respondent's Managing Director. The court also found that the respondent had cancelled the contract and that it had done so by implication. Consequent upon these findings, the court a quo dismissed the appellant's claim with costs.

It is against this order that the appellant has appealed to this Court.

In its grounds of appeal, the appellant has raised various issues. These are that the court a quo erred:

(1) In finding that the cattle were weighed on 16 May 2003 and that the appellant was advised of this fact and the need to pay.

(2) In finding that the respondent cancelled the contract between the parties by implication.

(3) In not making a finding whether the respondent placed the appellant in mora.

(4) In declining to grant the appellant an order of specific performance.

I propose to deal with the first two grounds together as they are inter-related and arise from the same set of circumstances.

There is a dearth of evidence as to what happened exactly after the payment of the deposit of Z$15 million was made. The respondent says the cattle were weighed on 16 May 2003 after which the appellant was then advised of the fact. How the appellant was advised was never clarified during the trial. The witnesses who gave evidence for the respondent told the court a quo that the invoice was faxed to the appellant.

A copy of the fax slip was, however, not produced to confirm this.

The witnesses further told the court that the invoice had been sent by fax and the original by post and that one Betty Mudenge had done so. Betty Mudenge was not called to testify to this fact.

At the end of the day, therefore, all that was before the court a quo was an unsubstantiated claim that an invoice had been forwarded to the appellant on or about 16 May 2003.

On the basis of such evidence, the court a quo had no basis for finding that the invoice was forwarded to the appellant on or about 16 May 2003 and that the appellant, having seen the invoice, failed or refused to pay. Clearly, there was no such evidence before the court a quo.

There was evidence, however, that there were numerous visits and telephone calls by the respondent's Managing Director to the appellant's offices. I agree with the trial court that the cattle were in fact weighed at some stage and that, as a result, the respondent's Managing Director then made numerous calls in order to get payment.

It is unlikely that the respondent's Managing Director would have behaved in such a fashion if in fact the cattle had not been weighed. However, it is unclear when he made the calls or paid visits to the appellant's offices.

The evidence on record shows that what next happened was that the respondent wrote to the appellant on 12 June 2003. In that letter, the respondent advised the appellant that the deposit it had paid was equivalent to one hundred and twenty steers and that an invoice to that effect was attached to that letter. The letter was received and responded to by Mr D G Lupepe, the appellant's Managing Director. In his response, Mr Lupepe accepted the one hundred and twenty steers but rejected the suggestion that there should be a fresh quotation in respect of the remainder of the cattle.

I am prepared to find, on the evidence, that the cattle must have been weighed and the appellant notified on an unknown date but before 12 June 2003. The appellant, it is common cause, did not pay.

The question that now arises is whether the contract was properly cancelled.

It was the evidence of the respondent's Managing Director that the cancellation was implied from the letter of 13 June 2003. In other words, it was accepted that the respondent did not explicitly cancel the contract.

In its submissions, the appellant says cancellation by implication is unknown at law. The respondent disagrees.

It is clear that in its letter of 13 June 2003 the respondent was suggesting that it was prepared to let the appellant take delivery of one hundred and twenty steers against the deposit of $15 million previously paid. The remark by the respondent that “if you need more cattle, you are free to contact us and we give you a fresh quotation” suggests that the respondent considered, at that stage, that the contract was no longer in existence.

The appellant's immediate reaction was that the contract was still in force and that the respondent should comply with that contract.

The position is now settled that:

“Notice of cancellation must be clear and unequivocal and takes effect from the time it is communicated to the other party…,.”

R H CHRISTIE, The Law of Contract in South Africa, 3ed…,. See also Du Plessis v Government of the Republic of Namibia 1995 (1) SA 603…,.

A notice of intention to cancel must be such that the other party is or ought to be aware of its nature, but it is not necessary to use the word “cancellation.” The intention to cancel may be made sufficiently clear in other ways; KERR, The Principles of the Law of Contract, 4ed…,.

On the evidence, the respondent did not cancel the agreement in clear and unequivocal terms. Indeed, this is common cause. The respondent's evidence was that the cancellation was implicit from its letter of 13 June 2003.

In that letter the respondent wrote:

“Find attached your receipt for the 120 steers which you purchased from Nuanetsi Ranch. If you need more cattle, you are free to contact us and we give you a fresh quotation.”

This letter clearly implied that the contract was no longer in existence and that if the appellant required to purchase more cattle a fresh quotation would have to be provided.

Indeed, the appellant understood the letter to mean that the contract was no longer in existence, and, for that reason, wrote back to say that as far as the appellant was concerned the contract was still binding.

The question that now arises is whether, in law, a contract can be cancelled by conduct. Although the appellant has submitted that cancellation by implication is unknown to law, the question really is whether cancellation can be by conduct.

In Du Plessis v Government of the Republic of Namibia 1995 (1) SA 603…, the Namibian High Court accepted that a summons claiming damages was an implied notice of cancellation. The decision to cancel a contract may also be by conduct – see KERR, Principles of the Law of Contract, 4ed…,.

Indeed, repudiation of a contract by the defaulting party may be by words or conduct justifying cancellation by the aggrieved party; KERR, Principles of the Law of Contract, 4ed…,.

If the defaulting party can repudiate by words or conduct, surely, the aggrieved party should be able to terminate the contract by conduct too.

Suppose that the defaulting party has evinced an intention to repudiate the contract. Suppose too that the aggrieved party accepts such repudiation, and, by his conduct, clearly evinces his view that the contract has terminated. Would one not talk of termination in such a case? The answer, in my view, is in the affirmative.

As in all cases, the circumstances must be such that that is the only reasonable inference that may be reached. In such a case, I would have no difficulty in describing the contract as having been terminated by conduct.

Considering the circumstances of this case, I would have no difficulty in concluding that the respondent's Managing Director was in fact saying the contract had come to an end and that if the appellant wished to buy more cattle, then it would have to enter into a new agreement. I find, therefore, that the respondent did, in fact, cancel the agreement although it did not do so expressly.

The question that now falls for determination is whether the respondent lawfully terminated the agreement, and, in particular, whether the appellant had been placed in mora.

It is clear from all the facts of the case that the respondent was in financial dire straits and required payment as a matter of urgency. Clearly, therefore, this was a contract in which time was of the essence. However, since the cattle were not weighed by 12 May 2003, no time had been fixed within which payment had to be made.

In cases such as the present, the general rule is that:

“When the contract does not fix a time for performance there can be no mora ex re, only mora ex persona, so a demand by the creditor is necessary in order to place the debtor in mora…,.”

R H CHRISTIE, The Law of Contract in South Africa, 3ed…,.

The view has been expressed in several decided cases that no demand is necessary to place the debtor in mora when no time for performance was stipulated but it is clear that immediate performance was contemplated; R H CHRISTIE, The Law of Contract in South Africa, 3ed…,.

This view does not appear to correctly reflect the law as it currently stands. The present position is that:

“When no time for performance is fixed but time is of the essence, the debtor is not in mora and the creditor cannot cancel for non-performance unless a proper demand for performance has been made….,. The concept of time of the essence relates to the consequences of a breach and not to the breach itself, so if no time is fixed there can be no breach by non-performance, whether or not time is of the essence, until the creditor has informed the debtor when he maintains performance is due.” R H CHRISTIE, The Law of Contract in South Africa, 3ed…,.

In the present case it is clear that the appellant was never placed in mora.

The respondent proceeded to cancel the agreement but did not place the respondent in mora. In the circumstances, the contract was not lawfully terminated and therefore continued to subsist.

Having come to the conclusion that the contract between the two parties continues to subsist, the issue that falls for determination is whether the appellant would, in the circumstances, be entitled to an order of specific performance.

It is not in dispute that the decision by the respondent to sell part of its herd had been triggered by a precarious financial position that the company found itself in. The stipulation in the agreement, that a deposit of Z$15 million was payable immediately and the balance within five days, underscored the urgency with which the respondent treated the situation.

Whilst it is unclear when the cattle were weighed and the date on which the appellant was advised of this fact, there is nothing on record to suggest that the appellant itself was in a hurry to perform its side of the agreement. The appellant does not appear to have done much after the payment of the deposit.

In June 2003, the respondent advised the appellant that if it wanted more cattle then a fresh quotation would be prepared. The appellant objected to this, maintaining that a valid contract was still in existence. What this meant was that the appellant wanted to buy the cattle, some three months later, at the contract price of Z$450 per kilogramme for heifers and Z$500 for steers.

This Court can take judicial notice of the fact that inflation has been a problem in our economy for some time - including the year 2003. Indeed, on two occasions, the monetary authorities have had to slash zeros from our currency to enable financial transactions to continue. A price of Z$450 or Z$500 per kilogram weight of beef in 2003 would have been a trifling sum in 2005 when the High Court was called upon to adjudicate over the dispute.

Were specific performance to be granted, the effect would be that the appellant would take delivery of 280 heifers and steers for a very small amount of money. In other words, the appellant would be entitled to take possession of a herd of cattle worth a considerable sum of money for which it would have paid virtually nothing. In these circumstances, specific performance cannot be granted.

The general rule is that:

“Prima facie, every party to a binding agreement, who is ready to carry out his own obligation under it, has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract;” per INNES JA in Farmers' Cooperative Society v Ben 1912 AD 343…,.

An order of specific performance is, however, at the discretion of the court and there are circumstances in which a court may refuse to grant an order of specific performance. The discretion is:

“[not]…, completely unfettered. It remains, after all, a judicial discretion and from its very nature arises from the requirement that it is not to be exercised capriciously nor upon a wrong principle; Ex parte Neethling (supra at 335). It is aimed at preventing an injustice; for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle, thus, is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.” Per HEFER JA in Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A)…,.

The contract that gave rise to the proceedings in the High Court was entered into in May 2003. That was more than two years before the High Court gave its decision and almost six years to the time this Court will determine the appeal. Naturally, a lot has happened since the signing of the agreement. There is a somewhat unsubstantiated suggestion by the respondent, in its heads, that it no longer had steers of the age and weight required by the appellant. Most importantly, however, as this Court has found, an order of specific performance would no doubt operate unduly harshly on the respondent and would undoubtedly result in the appellant being unjustly enriched at the expense of the respondent. The finding of the court a quo to this effect cannot be impugned. Whilst accepting that the agreement was not lawfully terminated an order of specific performance would not, in these circumstances, be appropriate.

In the circumstances, the appeal cannot succeed.

It is accordingly dismissed with costs.

In its prayer, the applicant seeks for an order for specific performance in terms of the contract against the respondent. The order, if granted, would result in the applicant having transfer of the immovable property into its name.

At the time that the respondent cancelled the contract, she reimbursed the applicant with the portion of the purchase price paid by the applicant up to that date. By November 2006, the applicant had become aware of the deposit of the purchase price in its account and it retained it. The sum total of these events is that the applicant has not paid the purchase price and it seeks therefore, in the appeal, an order that it pays to the respondent an amount of Z$16,000=. If this Court was to accede to the appeal and issue an order for specific performance, the applicant would acquire an immovable property for no value. Although the Zimbabwe dollar still is legal tender it has fallen into disuse. The respondent would have no use for it and it is most unlikely that the applicant would be in a position to effect payment of the sum tendered.

A party who claims a decree of specific performance must be willing and able to tender performance of his own obligations unless he has already performed. As matters stand, the applicant will not be in a position to pay value for the property in terms of the contract the parties executed.

I am therefore not persuaded that the applicant has prospects of success on appeal….,.

In the premises, the application is without merit and it is hereby dismissed with costs.

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1^st of April 2006 to the date of vacation.

The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims for the transfer of the Stands.

The plaintiff disputes the validity of the agreements of sale and pleads, in any event, that the defendant's claim in reconvention has prescribed.

At the trial of this case, the first witness (Peter Lewis Bailey) was called by the defendant. At the conclusion of this witness's testimony, it was agreed by both counsel that there were no material disputes of fact and that no further evidence would be adduced by either party.

Background Facts

In February 1998, Peter Bailey was appointed as the plaintiff's liquidator. Subsequently, in October 1999, a Deed of Compromise (the Deed) was concluded with the creditors and Bubye Minerals (Pvt) Ltd, and, thereafter, sanctioned by this Court in Case No. HC15191/99 [Exhibit 1].

Under the Deed of Compromise, Bubye Minerals was to take transfer of all claims of the creditors against the plaintiff. By virtue of the Court order, Peter Bailey was appointed as agent of the parties; firstly, to effect the transfer of claims in terms of the Deed, and, secondly, in order to receive, administer, and make payments of all amounts payable to the creditors in terms of the Deed. The Court order operated to set aside the winding up of the plaintiff.

Peter Bailey testified that he was approached by Bubye Minerals to sell the two houses in Beitbridge to the defendant. Peter Bailey then authorised both sales which took place in September 2002. At that time, one of the houses was occupied by a third party who had been given notice to vacate by the plaintiff, while the other house was already occupied by the defendant as lessee.

Thereafter, the defendant paid the purchase price in cash and this was immediately transferred to Bubye Minerals. The money was to be used to continue the running of the plaintiff's mines and thereby generate more income for the benefit of all the creditors. Peter Bailey's evidence was that the agreements of sale [Exhibits 2A and 2B] were entirely open and above board. Moreover, there was no indication, at the time, that the parties did not intend the sale of the houses or that the sales should be cancelled and the money paid by the defendant be refunded. On the contrary, after the purchase price was paid, the plaintiff gave vacant possession of both Stands to the defendant who then duly took occupation of the houses.

Authority to Sell

According to Peter Bailey, clause 2.3 of the Deed of Compromise, as read with clauses 4.1.1.3 and 4.2.1, empowered him to authorise Bubye Minerals to effect the sales in casu. Moreover, the disposal of the houses did not require any resolution of the plaintiff's Board of Directors whilst the Deed was in place.

By virtue of clause 2.3 of the Deed of Compromise, for so long as any amount payable to the preferred or concurrent creditors remained unpaid, Bubye Minerals was prohibited from alienating any of the plaintiff's assets “without the prior written consent of the Liquidator having first been obtained.”

In terms of clause 4.2.1, “the Liquidator shall exercise sole and absolute discretion in relation to the interpretation and implementation of this Deed and in the event of a dispute arising thereon, his decision shall be final and binding on all the parties hereto.”

In my view, although Article 2.3 is negatively couched in the form of a prohibition against alienation, when read in conjunction with clause 4.2.1, its necessary implication is that the liquidator was empowered to authorise the disposal of the plaintiff's assets if and when he deemed it appropriate to do so in the execution or furtherance of his general mandate.

In the agreements of sale concluded in September 2002 [Exhibits 2A and 2B] the plaintiff, as the seller, was represented by Adele Farquhar as “being duly authorised thereto”. At that time, Adele Farquhar was the Managing Director of Bubye Minerals. As appears from certain correspondence between March 1998 and March 2006, Adele and Michael Farquhar and/or Bubye Minerals were assumed to be the majority shareholders in the plaintiff [Exhibits 5, 6 and 7], while the Farquhars also evidently became directors of the plaintiff [Exhibits 4A, 4B and 4C].

Article 78 of the plaintiff's Articles of Association [Exhibit 9] provides for the appointment of Board of Directors. It empowers the existing directors to fill casual vacancies or appoint additional directors. Every such appointment is “subject to confirmation by the members at the next ordinary meeting.”

In the instant case, a former Director (one Cowper) gave notification, by letter dated the 30^th of August 2002, of his resignation as director of the plaintiff with immediate effect and his replacement in that capacity by Adele Farquhar. However, no evidence was placed before the Court as to whether the existing directors had concurred in this appointment or whether it was subsequently ratified at the next ordinary meeting of members.

In any event, the agreements of sale in casu were entered into by Adele Farquhar on the 5^th of September 2002 - after her ostensible appointment as a Director of the plaintiff. In this regard, according to Article 101 of the Articles of Association, “all acts done…, by any person acting as a Director shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of the Directors or persons acting as aforesaid, or that they or any of them are disqualified, be as valid as if every person had been duly appointed or was qualified.”

Under the law of agency, it is trite that the agent's actions operate to create a contractual or other legal tie between the principal and the third party. The agent's authority to act may arise either by dint of actual authority, whether express or implied, or by way of ostensible or apparent authority or authority by estoppel.

According to CHRISTIE: Business Law in Zimbabwe (1985)…,:

“In the language of the law of agency, apparent and ostensible authority are synonymous…, and ostensible authority is sometimes said to be created by the principal holding out the agent as having authority…, although sometimes a distinction seems to be drawn between apparent authority (flowing from the capacity in which the agent is employed) and holding out (by particular words or actions)…,.

Ostensible authority may arise otherwise than from the capacity in which the agent is employed, as exemplified by:…, from a course of dealing;…., from the third party's knowledge that the agent had authority to pay certain debts and presumption that he had authority to pay others;…, where the presumption of continuity was applied and the third party was entitled to assume that an agent to whom (unknown to the third party) the principal had transferred his business was still the principal's agent.

What is not clear is whether apparent authority, ostensible authority and authority by holding out are all synonymous with authority by estoppel, which requires not only a representation by the principal but that the third party has acted on it to his prejudice. No doubt, in ninety-nine cases out of a hundred the third party will have no difficulty in establishing prejudice, but it is suggested that it is not necessary for him to do so, as the situation contains all the elements of quasi-mutual assent, for which proof of prejudice is unnecessary.”

As regards the principal's right to vindicate property disposed of without his authority, the learned author states as follows…,:

“A principal whose agent has, without authority, disposed of property entrusted to his care may recover that property from third parties unless estopped from doing so, as by having given the agent ostensible authority to deal with the property.”

Applying these general principles of agency to the facts of this case, it seems to me that Adele Farquhar was duly authorised to represent the plaintiff as the seller of the two houses in September 2002.

Adele Farquhar's authority to do so derives, firstly, from the sales having been authorised by Peter Bailey in terms of clause 2.3 as read with clause 4.2.1 of the Deed of Compromise, and, secondly, from her ostensible appointment and subsequent acts as a Director of the plaintiff under Article 78 as read with Article 101 of the plaintiff's Articles of Association.

In my view, the cumulative effect of these provisions, coupled with the conduct of the parties before and after the disputed sales, affords the requisite authority to sell the houses in question.

It is to be noted in this regard that the first intimation of the sales being challenged was only provided in a letter from the plaintiff's lawyers addressed to the defendant on the 7^th of September 2004 [Exhibit 8] - over two years after the houses had been sold. In the intervening period, the plaintiff did not question the propriety of the sales and in fact gave vacant possession of the houses to the defendant. The latter, on its part, paid the agreed purchase price in full and took occupation of the houses. If the sales were to be reversed at this juncture, the defendant would be significantly prejudiced in terms of its monetary outlay for the Stands in 2002.

In the premises, I am satisfied that Adele Farquhar did possess the requisite ostensible authority to represent the plaintiff in the agreements of sale and that they were therefore validly concluded. The plaintiff is accordingly bound by the agreements and thereby estopped from recovering the Stands in question.

It follows that the plaintiff's claim for the eviction of the defendant cannot be sustained and it is accordingly dismissed with costs.

It also follows that the defendant is entitled to enforce the binding agreements of sale and therefore succeeds in its counterclaim for the transfer of the two Stands, subject to the determination of the plaintiff's special plea of prescription of the counterclaim.

Prescription of Counterclaim

In terms of common clause 2 of both agreements of sale “transfer of the property into the name of the Purchaser shall be effected…, as soon as possible after the purchase price has been paid, and within fourteen (14) days of the Seller's legal practitioners requiring the Purchaser to do so.”

While this clause is somewhat vague and not categorically clear as to when transfer is to be effected, it accords in essence with the established common law position, viz. that the seller is obliged to transfer the immovable property sold upon payment of the purchaser price, and, conversely, that the purchaser is entitled to demand specific performance, i.e. transfer, as soon as the purchase price is paid.

See Lamprecht v Lyttleton Township (Pty) Ltd 1948 (4) SA 526 (T)…,.; Chiwawa v Mutzuris HH07-09…,.

Section 14 of the Prescription Act [Chapter 8:11] provides for the extinction of debts by prescription, while section 15 specifies the relevant periods of prescription in respect of different debts. In terms of section 16 of the Prescription Act:

“(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises:

Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

Section 2 of the Prescription Act defines the word “debt” as follows:

“Without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

It is abundantly clear from this definition that in a contract for the sale of land the purchaser's right to sue for transfer or demand specific performance by the seller is a “debt” which may be sued for or claimed by reason of an obligation arising from contract. See Desai N.O. v Desai & Others 1996 (1) SA 141 (A) – apropos the equivalent definition in the South African Prescription Act (No.68 of 1969).

As a rule, unless prescription is delayed or interrupted, as envisaged in sections 17, 18 and 19 of the Prescription Act, and provided that the creditor is aware of the identity of the debtor and of the facts from which the debt arises, prescription commences to run as soon as the debt is due.

In the present context, the seller's obligation to transfer and the purchaser's reciprocal right to claim transfer or specific performance arise from the date when performance is due, viz. as soon as the purchase price is paid. As of that moment, the debt becomes due and extinctive prescription begins to run against the purchaser. See Lamprecht v Lyttleton Township (Pty) Ltd 1948 (4) SA 526 (T)…,.; see also Norman's Law of Purchase and Sale (4^th ed.)…,.

Section 17 of the Prescription Act provides for instances where the running of prescription is delayed. In terms of section 17(2):

“A debt which arises from a contract and which would, but for this subsection, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed.”

Reciprocity of debts, as envisaged in this provision, requires some close and immediate correlation between the debts concerned. See Minister of Public Works and Land Affairs v Group Five Building Ltd 1996 (4) SA 280 (A)…,.

Where the sale of immovable property is involved, the purchaser's obligation to pay the purchase price is ordinarily reciprocated by the seller's obligations to give occupation and effect transfer. See Pasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (WLD)…,.

The parties' obligations are reciprocal because they arise from what is essentially a bilateral or synallagmatic contract. See CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

In the instant case, the plaintiff seeks to vindicate the two Stands in dispute. Its claim is not founded on an obligation in contract or delict. It is essentially a proprietary claim and the defendant's potential right to claim ownership after 30 years of open, adverse and uninterrupted possession, by virtue of section 4 of the Prescription Act, does not constitute a reciprocal contractual right. It follows that the plaintiff's claim for eviction is not a reciprocal debt arising from the same contract and that the prescriptive period of 30 years applicable to that claim does not operate in terms of section 17(2) to delay the running of prescription as against the defendant's right to claim transfer of the Stands.

Section 18 of the Prescription Act deals with the interruption of prescription by acknowledgement of liability, as follows:

“(1) The running of prescription shall be interrupted by an express or tacit acknowledgment of liability by the debtor.

(2) If the running of prescription is interrupted in terms of subsection (1), prescription shall commence to run afresh –

(a) From the date on which the interruption takes place; or

(b) If, at the time of the interruption, or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.”

In paragraph 1 of its further particulars (filed on the 3^rd of June 2008), the plaintiff avers that it “became aware of the illegality of the sales towards the end of 2004.” Furthermore, the correspondence between the defendant, its lawyers and the conveyancing lawyers shows that until 2004 they were mutually pursuing the question of transfer. This is confirmed in the letter of the 7^th of September 2004 which I have already referred to [Exhibit 8], from the plaintiff's current lawyers to the defendant, in which they indicate their request to the conveyancing lawyers “to desist from proceeding with the request of transfer until such time that our clients' application has been determined by the High Court.”

All of this, in my view, demonstrates a tacit admission by the plaintiff, for a period of approximately two years, of its obligation to transfer the Stands to the defendant pursuant to the agreements of sale concluded in September 2002. In short, the plaintiff tacitly acknowledged its liability to effect transfer to the plaintiff until September 2004, as contemplated in section 18 of the Prescription Act, and prescription only began to run as against the plaintiff thereafter.

The defendant filed its counterclaim on the 5^th of June 2006, well within the 3 year prescriptive period, and its claim for transfer has therefore not prescribed in terms of sections 14 and 15 of the Prescription Act [Chapter 8:11].

Apart from the foregoing, I think that there is an entirely different basis on which the plaintiff's plea of prescription cannot be sustained.

I have already found that the agreements of sale in casu were validly concluded and that they are binding on the plaintiff. The judgment herein, in itself, constitutes a fresh cause of action which the defendant will become entitled to enforce within the prescriptive period of 30 years specified for judgment debts. It would therefore be quite absurd and pointless, at this juncture, to decline the defendant's counter claim for transfer founded on the agreements of sale, simply to await the institution of a further claim for transfer predicated on this judgment.

For the above reasons, the plaintiff's special plea of prescription must fail and it is hereby dismissed.

Order

In the result, judgment is entered in favour of the defendant as against the plaintiff, as follows:

(i) The plaintiff be and is hereby ordered to transfer the two properties known as Stand 322 Beitbridge Township and Stand 324 Beitbridge Township into the name of the defendant.

(ii) The plaintiff shall pay the costs of suit.

The plaintiff in this matter, in terms of the summons as amended by consent at the trial, claims as against the defendant the specific performance of a contract to deliver 319,240 plastic bottles and 369,320 tearstrip closures.

The defendant admits that it has failed to deliver the remaining quantity of bottles and closures originally contracted for but denies that its failure constitutes a breach of contract because of the withdrawal, by the Reserve Bank, of its Basic Commodities Supply Side Intervention Facility (BACOSSI).

Evidence for the Plaintiff

Lishon Chipango is the plaintiff's Chief Executive Officer. His evidence was as follows.

In August 2007, the plaintiff launched a new product through its subsidiary, Mazoe Citrus Estates, requiring 2 litre plastic bottles with caps. Subsequently, on the 1^st of October 2007, Lishon Chipango met the Managing Director of the defendant (Martin Makomva) at the Reserve Bank's presentation of its Monetary Policy Statement. Martin Makomva indicated that the defendant had already received BACOSSI funding for making bottles and referred him to the defendant's Marketing Director (Albert Chitapi). After several meetings and phone calls, he sent an e-mail to Albert Chitapi on the 12^th of October 2007 [Exhibit 3] asking him to finalise a quotation for 700,000 bottles and caps.

On the 15^th of October he met with Albert Chitapi who confirmed that the defendant could supply the required bottles and caps over a period of five (5) weeks. On the 18^th of October he received an e-mail from the defendant [Exhibit 4] attaching a quotation for 700,000 bottles and caps. The total cost, inclusive of bottles, closures, cartons and freight charges, was quoted as a sum slightly over $53 billion.

The plaintiff then made arrangements to borrow this sum from Barclays Bank. Thereafter, Lishon Chipango called Albert Chitapi to reconfirm the price. After the price was re-confirmed, he effected payment of the contract price on the 9^th of November. On the 12^th of November he e-mailed Albert Chitapi asking him to confirm receipt of the payment [Exhibit 5A] and Albert Chitapi responded on the 13^th of November to confirm payment [Exhibit 5B].

Thereafter, the defendant's staff met with the plaintiff's staff to agree on delivery of the products. On the 20^th of November the parties emailed each other to confirm a delivery plan and the defendant then commenced delivery of the bottles and caps. Each delivery was accompanied by a delivery note and cumulative invoice showing the deliveries to date, as summarised in a schedule prepared by the plaintiff [Exhibit 7].

The invoices furnished by the defendant expressed the unit prices for the bottles and caps in the same amounts as were quoted in Exhibit 4. When the deliveries became erratic, Lishon Chipango e-mailed Albert Chitapi on the 3^rd of December [Exhibit 8A] and the latter responded explaining that the defendant had problems with its mould [Exhibit 8B]. At a subsequent meeting, in mid-December, the defendant's staff indicated that they were encountering machine breakdowns. On the 17^th of December, the plaintiff again queried the erratic deliveries [Exhibit 9A] and Albert Chitapi responded, on the same date [Exhibit 9B], raising pricing difficulties for the first time. On the 24^th of January 2008, Lishon Chipango met with Martin Makomva who indicated that the BACOSSI funding had ended and that the price for the remaining bottles and caps should be re-negotiated.

The proposed price adjustment was rejected and Martin Makomva wrote, on the 20^th of February [Exhibit 10], restating his position at the meeting. The plaintiff's lawyers then forwarded a letter of demand to the defendant on the 27^th of February [Exhibit 11].

Gabriel Chinembiri is the Managing Director of Mazoe Citrus Estates. He testified that the summary of deliveries [Exhibit 7] was prepared by Mazoe Citrus Estates. The deliveries listed from the 20^th of November 2007 to the 4^th of January 2008 amounted to 380,760 bottles and 330,680 caps. The prices listed in the delivery notes and invoices were exactly the same as those stated in the original quotation [Exhibit 4] with respect to the bottles, closures and cartons. However, the cost of freight charges was higher than was originally quoted.

Gabriel Chinembiri corroborated the testimony of Lishon Chipango as regards the confirmation of transport arrangements for the delivery of 700,000 bottles and caps. He also corroborated the evidence relating to the plaintiff's complaints concerning erratic deliveries and the defendant's explanations relating to plant problems and pricing issues.

On the 24^th of December 2007, he received an e-mail from the defendant [Exhibit 12A] stating that the old price would only apply to 300,000 bottles and caps as agreed at a meeting held on the 17^th of December. He refuted any such agreement between the parties, having regard to his email of the same date to the defendant [Exhibit 9A] as well as the e-mail from the plaintiff to the defendant on the 28^th of December [Exhibit 12B].

Evidence for the Defendant

Martin Makomva has been the Managing Director of the defendant for the past 9 years. He confirmed his meeting and discussion with Lishon Chipango on the 1^st of October 2007. He told Lishon Chipango that the defendant had already benefited from the BACOSSI scheme and would therefore be able to supply products at lower competitive prices. He then referred Lishon Chipango to Albert Chitapi.

His evidence was that the plaintiff's order required about 6 to 8 weeks to fulfil. In the event, the order could not be met in full because the Reserve Bank only availed BACOSSI assistance to the defendant for one month. The funding was stopped at the end of September 2007 and covered customers' orders for the month of October only. Consequently, the defendant wrote to the Reserve Bank, on the 29^th of November [Exhibit 13], pointing out that the BACOSSI material had run out and that this had impacted significantly on the defendant's pricing structure entailing a ten-fold increase in costs and prices.

Martin Makomva himself had previously written to the National Incomes and Pricing Commission (NIPC), on the 22^nd of November [Exhibit 14], requesting its approval of price adjustments in light of the defendant's cost build-up. This was followed by further applications to the NIPC on the 28^th of November [Exhibit 15], 30^th of November [Exhibit 16], and 10^th of December 2008 [Exhibit 17]. In early December, the defendant received NIPC approval to adjust prices in response to one of the applications.

On the 17^th of December he met with staff from Mazoe Citrus Estates to discuss pricing and supplies relating to the plaintiff's order. New prices were agreed at that meeting subject to clearance from Lishon Chipango. The latter refused to accede to the revised prices at a meeting in January 2008 and Martin Makomva then wrote to him, on the 20^th of February [Exhibit 10], pointing out that the BACOSSI facility had terminated and suggesting that supplies be continued at revised prices. This offer was rejected by the plaintiff.

According to Martin Makomva, the current cost of a bottle and cap is US23 cents. The money paid by the plaintiff, in November 2007, only covered the cost of what was actually supplied, and, therefore, the balance of the plaintiff's order cannot be met at current prices.

The entire contract was premised on the continuation of the BACOSSI facility.

Under cross-examination, Martin Makomva conceded that in terms of the conditions stipulated in the quotation [Exhibit 4] the goods were to be despatched once payment had been made into the defendant's account and that payment of the full contract price was confirmed on the 13^th of November 2007. He also accepted that the first change in unit prices was only reflected in an invoice generated on the 24^th of December, over two (2) months after the original quotation. The prices were increased after National Incomes and Pricing Commission (NIPC) approval was granted. However, this was not communicated to the plaintiff in any written form nor was there any clear agreement between the parties for the prices to be increased.

Albert Chitapi is the Marketing Director of the defendant. He confirmed that the defendant had forwarded the quotation [Exhibit 4] to the plaintiff on the 18^th of October 2007 and that he had agreed with Lishon Chipango, over the telephone, that the defendant would be able to deliver 700,000 bottles and caps as and when they became available.

He also confirmed receipt by the defendant of the plaintiff's payment of $53 billion on the 9^th of November. Deliveries of the goods then began on the 20^th of November and continued until it became necessary to review the prices because of the stoppage of BACOSSI assistance. He then met Gabriel Chinembiri and other Mazoe Citrus Estates staff on the 17^th of December and agreed on a new pricing structure. However, he conceded that the e-mails between the parties, on the 17^th and 18^th of December [Exhibits 9A, 9B & 9C], do not reflect any agreement on new prices and that subsequent emails, on the 24^th and 28^th of December [Exhibits 12A & 12B], make it clear that there was no such agreement. He further conceded that the agreement with Mazoe Citrus Estates was subject to confirmation by the plaintiff and that no one representing the plaintiff was present at the meeting.

Under cross-examination, Albert Chitapi explained the sequence of the conditions set out in the defendant's standard form quotation [Exhibit 4] as follows:

(a) The quotation is sent to and received by the customer;

(b) The latter must confirm availability of the product before making payment;

(c) After confirmation, the customer effects payment;

(d) Delivery of the product then commences.

The price change stipulation only comes into play before confirmation of product availability and before payment of the purchase price is effected. Once product availability is confirmed and the purchase price is paid, any price change cannot be imposed.

In the instant case, the plaintiff did not confirm the availability of the goods between the date of the quotation and the date of payment. Nevertheless, despite that failure to confirm, the defendant accepted the plaintiff's payment of $53 billion as the full purchase price. Moreover, the defendant only increased the unit prices on the 24^th of December 2007 after National Incomes and Pricing Commission (NIPC) approval of the new pricing structure.

Contractual Conditions

The principal issue for determination in casu is whether the defendant is absolved of its liability to deliver the balance of the plaintiff's order by virtue of the conditions pleaded in paragraph 2 of its plea as amended. In essence, the defendant's plea is that delivery of the remaining goods was subject to;

(a) The continued availability of the BACOSSI facility; and

(b) The express term stipulated in the quotation that prices were subject to change at any time without notice.

As regards the BACOSSI facility, there is little doubt that the defendant's pre-existing access to the facility was the principal factor that enabled it to charge a considerably lower price for the products required by the plaintiff and that this in fact influenced the plaintiff to enter into the contract with the defendant. However, there is nothing in the testimony or documentation before this Court to indicate that the continued availability of the facility after the plaintiff's order had been placed and confirmed was a condition upon which the contract was premised. Moreover, the fact that the defendant's access to the facility would cease after one month was never communicated to the plaintiff at any stage before the conclusion of the contract.

The plaintiff's order was to be fully delivered within 5 weeks (according to Lishon Chipango) or 6 to 8 weeks (according to Martin Makomva). The first indication of the BACOSSI facility having terminated was only given at a meeting between Lishon Chipango and Martin Makomva on the 24^th of January 2008 - almost 11 weeks after payment of the full contract price had been effected. On these facts, it is abundantly clear that the continued availability of the BACOSSI facility was not a condition for the due performance of the contract between the parties.

As for the conditions set out in the plaintiff's quotation, it is clear that the price change stipulation could only have come into play before confirmation of product availability and before payment of the purchase price was effected. In this respect, Albert Chitapi had no option but to concede that once product availability was confirmed and the purchase price was paid, any subsequent price change could not have been contractually imposed.

In the instant case, Lishon Chipango met with Albert Chitapi on the 15^th of October 2007 to confirm the defendant's capacity to deliver 700,000 bottles and caps over a period of 5 weeks. On the 18^th of October, the defendant forwarded its quotation for the 700,000 bottles and caps. Thereafter, Lishon Chipango called Albert Chitapi to re-confirm the price and, having reconfirmed the price, he proceeded to effect payment of the full contract price of $53 billion on the 9^th of November. On the 13^th of November, Albert Chitapi confirmed receipt of the payment by the defendant. Subsequently, on the 20^th of November, the parties confirmed a delivery plan and the defendant then commenced delivery of the bottles and caps.

Given this sequence of events, it is very clear that the defendant accepted the plaintiff's payment of $53 billion as the full purchase price before commencing delivery of the contracted goods. Thereafter, the defendant was contractually precluded from changing the purchase price as it purported to do on the 24^th of December 2007. Indeed, it would be absurd in any commercial transaction to allow the seller to alter the contract price after he has accepted the agreed amount in full payment and begun delivery of the contracted goods in accordance with an agreed delivery plan.

Specific Performance

It is settled that a plaintiff who elects to enforce a contract is entitled to specific performance where the defendant is in a position to perform the contract – because justice demands that those who enter into contracts should fulfil their obligations. See Farmers Co-op Society v Berry 1912 AD 343…,; Smith & Ors v Zimbabwe Electricity Supply Authority 2003 (1) ZLR 158…,.

However, the Court has a discretion to refuse to grant an order for specific performance on several grounds. In particular, a decree of specific performance might be declined, inter alia, where it would operate unreasonably hardly on the defendant or where it would produce injustice or be inequitable in all the circumstances. Moreover, the Court is not confined to the circumstances prevailing at the time that the contract was entered into and is at large to consider the circumstances at the time that specific performance is claimed. See Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A)…,; Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)…,.; CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

In the instant case, it is submitted that an order for specific performance would cause undue hardship to the defendant. More specifically, it is argued that the BACOSSI facility was only availed to the defendant for one month and that the defendant would now have to incur its expenses in foreign currency. It is further argued that it would be unduly inequitable to require the defendant to deliver the outstanding balance at twice the original cost (in local currency) and that the plaintiff has not suffered any loss as a result of the defendant's failure to deliver.

Having regard to all the relevant circumstances, both past and present, I am unable to see any merit in these submissions.

Looking, firstly, at the plaintiff's position, it is not disputed that it obtained a Bank loan in order to pay the contract price and that it would be required to repay that loan with interest. Moreover, as a result of the defendant's failure to deliver the contracted goods timeously, the plaintiff was unable to fulfil the projected sales of its own product. On these facts, it is difficult to sustain the argument that the plaintiff has emerged materially unscathed from the transaction in casu.

Turning to the defendant's situation, it is common cause that the defendant had already availed itself of the BACOSSI facility on very favourable terms before entering into the present contract. Armed with that commercial advantage, it then promised to deliver to the plaintiff a quantified amount of goods at an agreed price and within a specific period. Before making that promise, the defendant was presumably equipped with all the information and material resources that it required in order to make an economically sound decision on the matter. In these circumstances, the only inference that one can reasonably draw is that the defendant's failure to deliver, as promised, was attributable to its failure to exercise due commercial diligence. It has obviously mis-managed and squandered the financial advantage afforded by the BACOSSI facility and cannot now entreat the Court to condone its commercial incompetence.

Disposition

It follows from all of the foregoing that the defendant is liable to deliver the outstanding balance as contractually agreed and that the plaintiff is entitled to an order for specific performance of the contract. However, having regard to the evidence before me, I do not think that it would be either feasible or equitable, at this juncture, to expect the defendant to comply with its contractual obligations within the period of 7 days as per the relief sought by the plaintiff. In my view, a longer period for due compliance would more aptly meet the justice of the case.

In the result, judgement is entered in favour of the plaintiff as against the defendant as follows:

(i) The defendant be and is hereby ordered to deliver 319,240 (2 litre) plastic bottles and 369,320 tear-strip closures to the plaintiff within 30 days of the date of service of this order upon the defendant.

(ii) The defendant shall pay the costs of suit.

The plaintiff's claim is for the delivery, by the defendants, of two Mercedes Benz C200 Kompressor vehicles to the plaintiff in terms of an agreement entered into by and between the parties. In the event of failure to deliver the motor vehicles, the plaintiff claimed a refund of one hundred and seventy million dollars to be paid by the defendant, in performance of their part of the contract, together with interest thereon at the prescribed rate from 16 September 2004, being the date of demand to the date of full payment.

The plaintiff also claimed the sum of US$94,654, being the difference in cost of the two Mercedes Benz at the time of breach and the time of the contract, and interest thereon together with the cost of suit.

After the trial of this matter, the parties continued to engage in discussions with a view to settling the matter, and according to the plaintiff's legal representative, the parties agreed, and the defendants made a full refund of the purchase price plus interest.

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they:

During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known as Stand 1124 Samaita Crescent, Ruwa. The lease was concluded on 18 August 1999 but was effective from July 1999 and would endure for a period of six years.

On 2 December 2003, Peter Kandeya entered into an agreement with Aston Musunga in terms of which the latter purchased a piece of land called Stand 3408 Gora Crescent, Ruwa. Although there seems to be a difference in the Stand numbers and the street address it is clear from the lease agreement between Peter Kandeya and the third respondent that it is in fact the same Stand. On the same day that the two concluded an agreement of sale, they also entered into an agreement of lease wherein Peter Kandeya leased the property in question from Aston Musunga. The lease was to expire after six months.

According to the founding affidavit deposed to by the applicant, on 21 June 2005, Aston Musunga then donated Stand 3408 Gora Crescent, Ruwa to him.

The Deed donating the property to the applicant has not been produced.

I do not doubt that indeed such donation took place. It is on the basis of this donation that the applicant seeks that the first respondent cede and transfer her right, title and interest in Stand 3408 Gora Crescent, Ruwa to himself.

The third respondent has opposed the granting of the relief on the basis that, as the owner of the Stand, his written consent to the alienation had not been sought prior to Peter Kandeya entering into any agreement for the transfer of rights that Peter Kandeya had in the lease agreement.

The first respondent contends that the Agreement of Sale being alleged by the applicant is null and void ab initio due to the provisions of clause 12 of the lease agreement governing the relationship between the deceased and the third respondent.

In Nkomo v Mujuru 1997 (1) ZLR 155, ROBINSON J found that an agreement of sale in respect of premises subject to an agreement of lease with the Government as lessor wherein the prior written consent of Government was required before rights therein could be alienated, whilst not being void ab initio, was, nevertheless, unenforceable against the Government at the instance of the seller or purchaser of rights accruing from the lease.

In my view, this clear legal position and the stance adopted by the third respondent herein, that it would not consent to the order being sought, should have alerted the applicant and his legal practitioner that there would be very little mileage to be made in pursuing this court application further.

It should have occurred to the applicant and his legal practitioners that Aston Musunga had to obtain cession of rights from Peter Kandeya before the donation could be effective in favour of the applicant in which case a real right would have been donated. However, wiser counsel did not prevail and the applicant proceeded regardless.

Despite the fact that the applicant did not conclude an agreement with the first respondent or the deceased, the applicant seeks an order for specific performance for the cession of rights in the Stand to himself.

I have not been addressed on the legal premise on which I should find that the first respondent is obligated to transfer rights in the Stand to the applicant. There is no agreement between the two parties, and, as such, the applicant has not advanced any cause for this court to find that he is entitled to the relief that he is seeking.

When I questioned the applicant's counsel on the issue I was advised that the practice was that a party in the shoes of the applicant could sue for the transference of such rights. Her response was indicative of knowledge that this practice was not grounded on any principle in law. Nevertheless, she persisted to argue that the applicant was entitled to an order of specific performance.

I was unable to understand the submission, as it was not backed by legal principle.

There is no privity of contract between the applicant and the first respondent. In the circumstances, I find myself unable to accede to the applicant's prayer for relief in the terms sought.

The second respondent, the Ruwa Local Board, did not file an opposing affidavit to the application but a letter written by the Board to the applicant has been attached to the papers filed by the respondent.

The letter, dated 26 September 2006, clearly stated that the applicant was in occupation of the Stand in question without having met stipulated conditions for such occupation. It also advised that the purported sale between Peter Kandeya and Aston Musunga was illegal and of no force and effect in the absence of the consent of Government. Therefore, the donation by Aston Musunga to the applicant was itself null and void. He was further informed that the property was now being dealt with as part of the deceased estate of Peter Kandeya.

It does not seem as if the applicant was in the mood to heed this advice. He did not respond to the letter and did not suspend his building operations.

His position is unenviable as he is unable to prove the alleged contract between Peter Kandeya and Aston Musunga. As the receipient of a free Stand he cannot drag Aston Musunga to court for an order of specific performance for the transfer of rights in the Stand to him.

Aston Musunga did not however obtain a real right from Peter Kandeya when he “purchased” the said Stand. All he obtained were personal rights against Peter Kandeya. Since Aston Musunga did not obtain real rights he could pass no better right to the applicant and without Aston Musunga having been joined to the dispute the applicant's case has no starting point as it is the alleged rights that Aston Musunga “purchased” which are in issue. Without Aston Musunga having obtained rights the applicant cannot claim from the estate of Peter Kandeya, and, in the circumstances, I find that there is no merit in the application.

The application is therefore dismissed. The applicant is ordered to pay the costs of the first and third respondents.

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983.

He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant was appointed executor of his estate.

He left, in his estate, an immovable property known as the remainder of subsection B of subsection C of Lot 9 of Hatfield Estate measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield Harare (“the property”) which was to devolve upon his two minor children.

The second defendant was the brother of the first defendant. He was mandated by the first defendant to administer the estate on her behalf through a general power of attorney.

Following the registration of the estate and the issuance of the Letters of Administration by the Master of the High Court (the Master) the first and second defendants entered into an Agreement of Sale with the plaintiff and sold the property. Transfer was not effected to the plaintiff. In 2005 the third and fourth defendants sold and transferred the property to the fifth defendant.

The plaintiff issued summons out of this court seeking a declarator that transfer of the property to the fifth defendant by the third and fourth defendants is wrongful, unlawful and fraudulent as he had already purchased the property from the estate. He seeks an order for the cancellation of the transfer and an order for specific performance in terms of his contract. In the alternative, he seeks an order for damages against the first and second defendants in the sum of Z$4,5 billion.

The claim was opposed by the fifth defendant.

He states, in his plea, that he purchased the property in good faith from the fourth defendant. The property has been transferred into his name. He filed a counter claim for the eviction of the plaintiff from the property and holding over damages.

The first, third and fourth defendants entered appearance to defend and filed a plea. The second defendant did not enter an appearance to defend.

The sixth defendant filed a report in terms of Rule 248 of the High Court Rules, 1971 as amended. The Master of the High Court stated that the estate of the late Panganyi Elias Mashita was wound up in 1995 after he had confirmed the distribution account which transferred the deceased's immovable property to his two children in equal shares.

At a pre-trial conference held on 3 July 2007, before a judge in chambers, the first, third and fourth defendants did not appear; they were held to be in default. The matter was thus referred to trial against the fifth defendant only on the following issues:

1. Whether or not the plaintiff validly and lawfully purchased the property from the estate of the late Panganayi Elias Mashita;

2. Whether the plaintiff's claim for transfer of the property to him has prescribed;

3. Whether, at the time that the fifth defendant purchased the property, he was aware of any claim by the plaintiff;

4. Whether the transfer to the fifth defendant should be reversed;

5. Whether the plaintiff and all those who claim through him should be evicted from the premises; and

6. Whether the plaintiff is entitled to damages based on the current value of the immovable property.

The plaintiff testified that he knew the first and second defendants and they were related by marriage. The second defendant was married to the plaintiff's sister. He first moved into the property in dispute as a tenant. This was during the period 1990 to 1994. The property consisted of a main house and a cottage. He moved into the cottage. The first defendant approached him with a proposal that he buys part of the property which consists of the cottage. The first defendant produced a Will which showed that she had been appointed executor of the estate late Panganayi Mashita (“the deceased”) who owned the property.

The Will was produced in court and confirmed that the first defendant was indeed the executor of the estate. She also showed him Letters of Administration issued by the Master of the High Court which authorized her to administer the estate of her husband.

The plaintiff and the first defendant then entered into an Agreement of Sale on 14 November 1994 wherein he purchased the property for the sum of $20,000=. The plaintiff paid a deposit of $5,000= and the balance was to be paid through a CABS account availed by the first defendant. At a later date, the second defendant approached the plaintiff and asked him to pay the installments for the property through Gabriel Real Estate, an estate agent company. Following this instruction he then received a letter from Gabriel Real Estate, dated 14 October 1999, wherein the author indicated that they were acting on behalf of the first and second defendants, the owners of the property. The letter then asks the plaintiff to pay the sum of $20,157=63 being arrears on the capital and interest. He then paid off the outstanding amount, and, to that end, produced copies of receipts from Gabriel Real Estate. The plaintiff further produced a letter addressed to him from Gabriel Real Estate, dated 16 March 2000, asking him to attend at their offices in connection with the transfer of the property.

Various correspondences were produced showing that the issue was handed over to Messers Scanlen and Holderness so that they could effect the transfer to him. At some stage, there was an indication that the title deeds had been lost and that they were in the process of obtaining replacements. The plaintiff thereafter received correspondence from Messers Scanlen and Holderness seeking a payment of $45,333=33 which he duly paid as detailed in the receipt that he produced to the court dated 6 May 2001. The plaintiff subsequently received notice that the third defendant had died and the transfer was stopped. In July 2004 he left for Australia before the transfer had been effected into his name.

On 4 January 2005, the fourth defendant wrote to him and advised that the late Panganayi Elias Mashita's estate had not been properly administered and asking him to pay an additional amount to the purchase price he had already paid. The plaintiff did not pay this amount as he was of the view that he had complied fully with the terms of the agreement with the first defendant. In May 2005 the fourth defendant advised him that he was selling the property following which he caused the plaintiff's children to be evicted. The plaintiff stated that unbeknown to him the property was then sold to the fifth defendant.

The plaintiff further testified that he was 56 years old and the immovable property was now his home. He had one year left in Australia in terms of his contract. He stated that at the time he moved into the house it was not electrified and he had it installed. He has put up a wall around the property and installed burglar bars. He had the property valued by an evaluator and the present value was placed at $210 quadrillion. An application to amend his claim to this amount was admitted by consent.

In cross examination, the plaintiff confirmed that he was related to the first and second defendants. He admitted that, in terms of clause two of the Will, the property was bequeathed to the late Panganayi Elias Mashita's minor children and therefore he was aware that the property belonged to the deceased's minor children. He however stated that as far as he was aware the Master of the High Court's consent to sell the property had been sought and obtained. He also confirmed that he later learnt that the property had been transferred into the names of the heirs to the estate. He also admitted that he had no agreement with the heirs as he had entered into an agreement of sale with the first defendant.

When it was put to him that his agreement was illegal he stated that he did not know the law.

He admitted that the fifth defendant was not related to any of the parties but had bought the property through an estate agent. The plaintiff also conceded that he had received notice, in May 2005, from the fourth defendant that he was selling the property and he had not done anything to stop the sale. He however explained that he was out of the country at the time. When questioned by the court, the plaintiff stated that in terms of their agreement he was not purchasing the whole property but only the cottage where he was residing. He confirmed that there was a subdivision of the property and this is the same property which was sold to the fifth defendant.

The plaintiff's evidence, in my view, was not convincing. He contradicted himself when he stated that he did not know that the property was sold to the fifth defendant and yet confirmed that the fourth defendant had advised him that he was selling the property. When he was told that the property was being sold he did nothing to protect his interests. It was apparent, from the evidence, that he was aware that the property he wished to purchase was estate property and yet he did not give a clear explanation regarding his failure to investigate whether or not the Master of the Master of the High Court's consent to the sale was obtained. He merely stated that it was the duty of the sellers to obtain such consent.

Edgar Nemuseso was the second witness for the plaintiff.

He stated that in 2004 he was asked by the plaintiff to stay at his place of residence which was Number 11 Chaghill Road, Hatfield. He said at some stage a Messenger of Court from the Magistrates' Court came and sought to evict them. They however managed to have the order set aside and they were restored into the property. He stated that at the end of 2004 some agents from Knight, Frank and Rutley came to inspect the property. He stated that he showed them documents which showed that the matter relating to the property was before the courts. At a later date, people from Generations Estate Agents came to the property and he again showed them the papers.

In September 2005, the fifth defendant then approached him and stated that he had bought the property and gave him notice to vacate the premises. The witness told the court that he agreed to meet with him in town the following day whereupon he told the fifth defendant that he would not talk to him but would refer the matter to his legal practitioners.

In cross examination, the witness admitted that he met the fifth defendant on two occasions after that and he promised to give him the keys to the property. He also told the court that many people would come to view the property and would not talk to him. The witness was however adamant that he had showed the people from Generations Estate Agents the Agreement of Sale between the plaintiff and the first defendant.

The witness's evidence, in my view, served to confirm that the sale to the fifth defendant was not done clandestinely. Whilst he told various estate agents that the property had been sold to the plaintiff he did not tell the agents who sold the property to the plaintiff - neither did he tell the fifth defendant. He also confirmed that the plaintiff was aware that the property was on the market. Thus, although he was a credible witness, in my view, he did not take the plaintiff's case any further.

With this evidence the plaintiff closed his case.

The fifth defendant testified that he is employed by Standard Chartered Bank and is presently based in Quatar. In June 2005 he saw an advertisement in the newspaper for the sale of a house. He then called the agent who gave him the address to the property. He went to view the property in Hatfield. On the first occasion he found no-one present. On the second occasion he was met by a lady at the gate who then showed him round the cottage. He subsequently entered into an Agreement of Sale on 23 June 2005. An evaluation of the property was conducted by Mabikacheche Valuers and a report was submitted to his employers who subsequently availed a loan to him to purchase the property.

On 26 August 2005, the property was transferred into his name after obtaining replacement deeds.

When he sought vacant possession of the property he was then advised by the plaintiff's agent that they had also bought the same property. He served him with an eviction notice dated 31 August 2005. He confirmed Edgar Nemuseso's testimony that they had met at Construction House on two separate occasions as he tried to get keys for the premises. When he failed to get access to the property he then instituted proceedings at the Magistrates' Court for the eviction of the plaintiff. He stated that he later abandoned those proceedings when the plaintiff instituted these proceedings against him.

The fifth defendant told the court that he was abandoning his claim for holding over damages and merely pursing the claim for eviction of the plaintiff.

In cross examination, the fifth defendant was adamant that he was unaware of the dispute over the property. He denied that he had viewed the property in the company of the agents from the estate agent which had the mandate to sell the property. He also told the court that he did not know the name of the seller until he signed the Agreement of Sale.

The fifth defendant gave his evidence well. He was an honest witness who was not shaken in cross-examination. His evidence was credible and supported in all material respects by documentary proof. It was apparent that he was unaware of any prior sale that had taken place between the plaintiff and the first defendant. It was apparent, from the Agreement of Sale which he produced, that the sellers of the property were the third and fourth defendants. There was no evidence that Messers Mabikacheche, who conducted the valuation, had been advised of the prior sale. One would have thought that since they were conducting the valuation on behalf of the Bank they would have raised the alarm on any impropriety. I found him a credible and reliable witness.

It seems to me that this matter may be resolved by the determination of the first issue that was referred to trial, namely, whether or not the agreement entered into by the plaintiff and the first and second defendants was legal.

From the evidence led during the trial it was quite apparent that the plaintiff was aware that he was purchasing property that related to a deceased's estate. He was also aware, having been shown the Will that the property devolved upon two minor children. It was also not in dispute that the consent from the Master of the High Court was never sought at any stage of the sale.

It is trite that estate property is regulated by the Administration of Estates Act [Chapter 6:01] (“the Act”). An executor appointed to administer an estate must act in accordance with the Act. In order for any agreement to be valid it must comply with the provisions of the Administration of Estates Act.

Sections 120 and 122 of the Administration of Estates Act deal with the disposal of estate property.

Section 120 of the Administration of Estates Act [Chapter 6:01] provides as follows:

"Sale of Property otherwise than by public auction

If, after due inquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such an estate otherwise than by public auction he may, if the Will of the deceased contains no provision to the contrary, grant the necessary authority to the executor so to act."

It is apparent from this provision that an estate property may not be sold through private treaty without the Master of the High Court's consent.

In this case, the consent of the Master of the High Court was never sought at any stage in order to effect the sale of the property to the plaintiff.

The plaintiff submitted that it was the first and second defendant's obligation to secure the Master of the High Court's consent, and, in any event, authority may be secured even after the sale.

I understood the plaintiff to be saying that the failure to obtain the Master of the High Court's consent before the sale did not make the sale void ab initio but merely voidable if the Master of the High Court subsequently did not give his consent. The fifth defendant, on the other hand, submitted that the failure to obtain the Master of the High Court's consent prior to the sale made the sale void ab initio.

It seems to me that it is not necessary, in these proceedings, to determine whether the effect of section 120 of the Administration of Estates Act [Chapter 6:01] is to make a sale void ab initio or voidable. I say this because the Master of the High Court's consent was never sought at all by the parties in this case. The estate was wound up in 1995 and is no longer in the hands of the Master of the High Court. The property was transferred into the names of the beneficiaries of the estate in accordance with the Will of the deceased.

Section 122 of the Administration of Estates Act [Chapter 6:01] deals with disposal of estate property where minors have an interest in such property.

Section 122 of the Administration of Estates Act provides as follows:

"In cases where minor heirs are interested in property inherited from the estate of any deceased person, the Master may apply through the chamber book to a judge in Chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge make such order as in the circumstances he considers advisable."

In casu, it is not in dispute that at the time of the sale to the plaintiff, the heirs to this estate were minors.

In terms of the provision set out above it was incumbent upon the parties to approach the Master of the High Court for his consent or so that he could apply to a judge for authority to sell the property. An interpretation of the provision, in my view, seems to indicate that the Master of the High Court is called upon to exercise his discretion as to the referral of the case to a judge in chambers. Thus, the word "may" is used instead of the mandatory "shall".

It seems to me that the rationale of this provision may stem from the South African provision. The South African section 87 of the Administration of Estates Act, No. 24 of 1913 which is similar to the Zimbabwean section 122 of the Administration of Estates Act [Chapter 6:01] prohibits the sale of property belonging to a minor by a tutor or curator (unless duly authorized to do so by a Will or deed appointing him) without a court order, or, if the property is below a certain prescribed value, the consent of the Master of the High Court.

The provision in the Zimbabwean legislation does not prescribe a value upon which the Master of the High Court is required to refer the case to a judge for his authority. The provision is couched in very wide terms thus giving the Master of the High Court a wide discretion once a request has been made to him to either grant the consent himself or refer the matter to a judge in chambers.

What is clear, in both the South African legislation and our legislation, is that property of a minor is protected and may not be disposed of without the consent of either the Master of the High Court or the court. Clearly, the intention of the legislature was to protect the inheritance of minors from unscrupulous executors. In my view, it might be necessary for Parliament to consider amending section 122 of the Administration of Estates Act in order to direct the Master of the High Court to refer the request to a judge where the value of the property to be sold exceeds a prescribed amount. This would ensure certainty with respect to the manner in which properties relating to minors are dealt with. It should also be noted that, due to the high turnover of officers in the civil service, such an amendment would provide guidance in the Master of the High Court's office when dealing with such matters.

D MEYEROWITZ, in, The Law and Practice of Administration of Estates, 2^nd ed…., explains the need for authorization as follows:

"Before considering giving his authority to sell, the Master will usually require a sworn appraisement of the property to be sold….,. He will want to know the reason why the property is being sold and why the sale will be to the benefit of the minor."

The learned author goes on to state that the same information will be required by a court and further comments as follows:

"…, the court will not grant such leave unless it is fully satisfied, beyond all reasonable doubt, that it will be to the advantage of the minor."

In this case, the Master of the High Court's consent was never sought in accordance with section 122 of the Administration of Estates Act [Chapter 6:01].

Where a provision prescribed by statute is not followed then it renders the contract void.

In the case of Schiourt v Minister of Justice 1926 AD 99…, INNES CJ held as follows:

"It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done - and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act."

The same sentiments were expressed by SANDURA JA in the case of Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 where the respondents had not complied with the provisions of the Code of Conduct in suspending an employee. He stated as follows;

"There is no doubt in my mind, whatsoever, that it was null and void. It was a complete nullity. In this respect, I can do no better than quote what LORD DENNING said in MacFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

'If an act is void then it is, at law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without further ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'"

Turning to the facts at hand, it is my view that the plaintiff's case falls on this basis.

The agreement which he entered into with the executor of the estate was null and void as it related to property in which minors had an interest and no authority to sell was sought either from the Master of the High Court or from the court for such sale. It is as if there was never a sale to the plaintiff by the first and second defendants. The heirs to the estate subsequently sold the property to the fifth defendant after they had inherited it from their father's estate.

The fifth defendant acquired rights of ownership over the property. It is trite that he can thus vindicate it from whoever is in possession. See Chetty v Naidoo 1974 (3) SA 13A.

The fifth defendant had not given the plaintiff an opportunity to vacate the premises before he is evicted. In the order that I will make I will give the plaintiff an opportunity to vacate the premises on his own. The fifth defendant abandoned his claim for holding over damages at trial and the claim therefore falls away.

The fifth defendant had claimed costs on a legal practitioner and client scale, but, in his closing submissions, he merely prayed for costs on the ordinary scale. I take the view that he has abandoned the claim for costs on an attorney and client scale which is punitive in nature. He has successfully defended his rights of ownership and entitlement to evict the plaintiff. He is thus entitled to his costs.

Accordingly I make the following order:

1. The plaintiff's claim is hereby dismissed with costs.

2. The fifth defendant's counterclaim is upheld and it is ordered that the plaintiff, and all those claiming occupation through him, be and are hereby evicted from the remainder of sub-division B of subdivision C of Lot 9 of Hatfield Estates measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield, Harare within seven days of service of this order.

3. The plaintiff shall pay the fifth defendants' costs of suit.

The plaintiff in this matter is an English teacher at a local girls school. In August 2007, he was in the process of building a residence for his family in one of Harare's suburbs. He approached the defendant for steel as per the diagram drawn up by his engineers. He was given a quotation of the cost of the material that he required. Some days later, he returned to the defendant and made payment of the amount reflected on the quotation by way of a bank transfer.

He furnished the defendant with proof of payment and was promised delivery of the steel.

He checked on progress of the delivery and was advised to give the defendant a few more days. He checked again and was referred to the defendant's Branch Manager at the Harare outlet. He was informed that the defendant was having difficulties in obtaining some of the steel that he had ordered and that the defendant was in fact considering refunding to him the amount he had paid for the steel that was unavailable. He insisted on getting all the steel that he had ordered from the defendant.

He then sought legal advice on the matter and after he had delivered a letter of demand from his legal practitioners, to the defendant, he received delivery of the bulk of the steel he had ordered, save the two items that form the subject of this suit.

On 16 October 2009, he discovered that the defendant had reversed part of his electronic money transfer and had returned into his account the cost price of the steel that had not been delivered. He, in turn, reversed the re-deposit. On the advice of his engineers, he bought part of the steel that the defendant had failed to deliver from some other source to protect his building project from the rains. Still aggrieved by the defendant's failure to deliver the outstanding items, he caused summons to be issued out of this court claiming delivery of the 2.147 tonnes of Y12 steel and the 0.085 tonnes of ANN wire.

The suit was defended.

In its plea, the defendant, whilst admitting that it gave the plaintiff the quotation that was adduced into evidence by consent, averred that at the time of giving him the quotation, the plaintiff was advised that the Y12 and ANN wire were not in stock and were currently not available in the country and may have to be imported. It was further averred that the plaintiff agreed to wait on his entire order until the two items of steel were available. The defendant thus conceded, in its plea that, the Y12 and ANN wire remained undelivered as it failed to source the two products locally and also failed to access foreign currency to import the steel. It denied that, in the circumstances, it was liable to deliver the outstanding steel to the plaintiff as claimed.

At the trial of the matter, the plaintiff gave evidence.

His narration of the facts, which are largely common cause, is as captured in the opening paragraph of this judgment. It was his specific testimony that he was not advised, at the time he made payment to the defendant for the entire order, that the defendant was experiencing any difficulties in procuring the Y12 and ANN wire. He was only told this after he had checked with the defendant's Branch Manger as to why his order was delaying after he had made the requisite payment. He did not know where the defendant was sourcing its steel. When he was advised that the defendant had secured some of the steel that he had ordered, he informed the defendant that he would wait until all the steel he had ordered was available.

The witness gave his evidence very clearly. He came across as a firm and unyielding man. Under cross –examination he remained firm that all he wanted was the steel that he had paid for. He was clear that he was not seeking damages from the defendant but was simply holding the defendant to the contract that it has concluded with him.

While the witness was quite firm about the propriety of his claim in the circumstances, I did not believe him when he testified that he was not made aware of the unavailability of the Y12 and ANN wire when he made payment. Given the unyielding stance that he has revealed in the witness box, it is most unlikely, in my view, that he would have accepted the delay in the delivery of the entire order had he been unaware that part of the order was unavailable at the time. It appears to me that he was prepared to wait for the defendant to receive the items from its supplier because he was aware that the products were not in stock at the time. According to his testimony, it was only when the defendant sought to refund the cost price of the outstanding steel that he sought legal advice on the matter and decided to hold the defendant to the written quotation.

After testifying as detailed above, the plaintiff closed his case without calling any other evidence, prompting counsel for the defendant to apply for absolution from the instance on the basis that before me was insufficient evidence upon which I could find for the plaintiff.

I dismissed the application on the turn and indicated that my reasons would follow. It is convenient that I now set them out. These they are.

In making his application, counsel for the defendant was quite alive to the fact that the plaintiff was approaching the court for an order for specific performance without an alternative claim for damages.

In his view, there was an undisputed supervening impossibility that prevented the defendant from fully discharging its obligations under the sale agreement. He further submitted that the plaintiff could not dispute that the defendant failed to secure the outstanding steel from its local supplier and also that it failed to obtain foreign currency from the Central Bank for the importation of the steel. In conclusion, he argued that by virtue of the supervening impossibility, the plaintiff was not entitled to specific performance as to order such would work an undue hardship on the defendant and would produce an injustice.

While agreeing, in the main, with the submissions made by counsel, it appears to me that in a claim for specific performance, the court may not prudently exercise its discretion after hearing only one party to the dispute. This is so because specific performance is a remedy in the discretion of the court and is founded in equity. That discretion has to be judicially exercised upon a consideration of all relevant facts. The discretion that the court enjoys in this regard is not confined to specific cases or is it circumscribed by rigid rules. It appears to me that a plaintiff claiming specific performance bears no onus to show that the grant of the order will not work an undue hardship on the defendant. A plaintiff, in our law, has the right to elect to hold a defaulting defendant to the contract and once having made that election, bears no further burden to prove that their election is equitable in the circumstances of the matter. Thus, if I am correct that the plaintiff bears no burden to prove that specific performance is equitable in the circumstances of their matter, there is no basis upon which a court, acting reasonably, can, at the close of the plaintiff's case, hold that the plaintiff has not adduced sufficient evidence to show that an order of specific performance should be granted in his or her favour.

It further yet appears to me that since specific performance can only be granted after a finding of breach of a material term of the contract, where such breach is still in issue, it is not prudent or even proper for the court to jump to resolve the dispute between the parties on the basis of the unavailability of specific performance without first determining the issue of the alleged breach.

At the close of the plaintiff's case, and in view of the contents of the plea, I felt that the issue of the alleged breach of contract was still alive and that there was need for me to hear the defendant's version of events to enable me to determine whether or not the defendant had breached the sale agreement as alleged.

It is on the basis of the above that I dismissed the application for absolution from the instance when it was made. I was also guided by the sound advice given by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd 1971 (1) RLR 1 (A), that, when in doubt, a court must always lean towards the matter proceeding.

The defendant opened its case by calling one Martin Mahlamvana (“Mahlamvana”). He is a Sales Clerk with the defendant and has been in the employment of the defendant for a commendable thirty years. He was the first contact that the plaintiff made with the defendant.

His evidence was also to large extent a narration of the events that are common cause in this suit as to how the plaintiff was given a quotation for the steel he required and how payment was made some days later. Regarding whether or not the Y12 and ANN wire were in stock at the time the plaintiff sought the quotation and subsequently made his payment, the witness was adamant that the plaintiff was advised by Mr Mano, the Harare Branch Manager that these two were not in stock. He denied that he had personally assured the plaintiff that such were in stock. He further testified that, in his presence, the plaintiff was told at the time he made payment that these two types of steel were not in stock but that an order for them had been placed by the defendant's head office in Bulawayo. It was his evidence that the plaintiff was advised that the defendant was waiting for the local supplier to supply the steel. The plaintiff agreed to wait.

Finally, the witness testified that, currently, the defendant is not selling any steel products as these remain unavailable from the local supplier.

The witness gave his evidence in a measured manner. So measured was he in his manner of speech that at times he appeared slow. He would not exaggerate and would defer questions to his superior where these fell out of the ambit of his duties. He was not shaken under cross–examination. I gained a favourable impression of him as a truthful and reliable witness.

Mr Boyina Mano, the defendant's Harare Branch office manager, also gave evidence. He has been in the employment of the defendant for the past twenty-eight years.

His testimony was similar to that of Martin Mahlamvana. He testified that he personally advised the plaintiff that Y12 and ANN wire were not in stock and the plaintiff assured him and Martin Mahlamvana that he would wait until the two items were in stock.

The witness was shown an order that the defendant had placed with ZISCO Steel for steel lengths, including the Y12 and ANN wire in dispute in this suit. He identified the order, dated 18 June 2007 which was then adduced into evidence by consent. He also identified a schedule that was prepared by the defendant showing that no Y12 and ANN wire were delivered from ZISCO Steel on the order in June 2007. The witness further confirmed that application was made to the defendant's Bank for the allocation of foreign currency to import the steel from South Africa. Had this happened, the cost price of the steel, as given on the quote, would have been affected and this is why the defendant had indicated on the quote that prices were subject to change.

Finally, the witness testified that the supply of steel had not improved since 2007 due to viability problems at ZISCO Steel, the main supplier. Currently, the defendant does not have the Y12 and ANN wire in stock and will only get these once the supplier starts rolling out the products.

The witness gave his evidence well. He was refreshingly clear and was easy to follow in his answers to questions put to him in cross-examination. I gained the impression that he was telling the truth when he testified that he informed the plaintiff that Y12 and ANN wire were not in stock when the plaintiff made his payment. He was, at that time, confident that since the defendant had placed an order for the steel, such would be delivered, and, in my view, he would have spread this confidence to the plaintiff. At that stage, there was no reason to doubt that delivery would be effected, and, in my view, it is highly improbable that the witness would have hidden that fact from the plaintiff.

After the testimony of this witness, the defendant closed its case.

On the basis of the above evidence, it appears to me that three issues arise;

(i) Firstly, I have to determine what the terms of the agreement between the parties were.

(ii) Secondly, and only after I have ascertained the terms of the agreement, I have to determine whether the defendant breached a material term of such agreement entitling the plaintiff to seek specific performance.

(iii) Finally, if I find that the agreement has been breached materially, I will have to determine whether specific performance is appropriate in the circumstances of this matter.

I return to the first issue.

It is common cause that the parties intended to conclude a sale agreement. The plaintiff inquired as to the prices at which the defendant would sell and deliver to him certain specified steel. The defendant gave the plaintiff the price list at which it could conclude the sale. This is not in dispute.

At the time that the plaintiff made the inquiry, and eventually made payment, it is my finding that he was aware that the Y12 and ANN wire were not in stock. In the circumstances, the issue that has exercised my mind is whether or not the parties concluded an unconditional sale agreement of all the steel products ordered - including the products that were not available. The plaintiff contends that they did and relies on the quotation and the payment of the amount quoted as proof of the unconditional sale.

While the point was not forcefully advanced on behalf of the defendant, I am of the view that the totality of the transactions between the parties did not amount to more than a conditional sale. It appears to me that by giving the quotation and accepting payment of the total amount on the quotation, after advising the plaintiff that it did not have the Y12 and ANN wire in stock, the defendant was not going beyond saying:

“I will sell you the Y12 and ANN wire at these prices when I get delivery from my supplier. In the meantime, I am accepting your money so that I will make delivery to you as soon as I receive the steel.”

When the defendant failed to receive the Y12 and ANN wire from its suppliers, it, in turn, could not supply same to the plaintiff. Its failure, however, to deliver these steel products to the plaintiff would, in the circumstances, not constitute a breach of the agreement between the parties. The condition precedent to the agreement had not been fulfilled and so the obligation to deliver did not arise.

I would have come to a different conclusion had the plaintiff been unaware that the two products were not in stock at the time he made payment. Then, I would have found that by accepting payment for the product, the defendant gave out to the plaintiff that it would deliver the product to him and is therefore bound to do so on the basis of the quasi mutual assent doctrine.

This is the view that the plaintiff urged me to take in the matter.

I cannot, as I found against him that he was aware that the two products were not in stock and had to be procured from the supplier before they could be delivered to him. He was prepared to wait, and did wait, for the products to become available. He only sought legal advice not because the products had delayed in coming but because the defendant wished to refund the purchase price for the products that had been sold subject to the condition as the condition could now no longer be met.

In my view, the plaintiff has taken too simplistic a view of the matter. He argued that the quotation given him by the defendant was the offer and his payment of the amount on the quotation was the acceptance of the offer, birthing a contract between the parties.

While, to some extent, this is correct, in my view, the entire contract is underlined by the fact that both parties knew that part of the products in the “offer and acceptance” were not in stock. They thus could not have agreed upon the sale of such items without qualification. The sale of such items could only have been conditional upon the availability of such since the defendant was merely a retailer and not the manufacturer of the products.

I am inferring the condition precedent to the agreement of sale by applying the well known “officious bystander” test. In my view, from the knowledge that both parties had as to the unavailability of the two items, had the officious bystander enquired of the parties why they were including the two items in the order, he would have received a prompt response that the sale was subject to the two items being delivered to the defendant by its supplier. None of the parties would have responded, at that stage, that the sale was unconditional and that the defendant had to procure the two items at its own cost, from wherever, for the benefit of the plaintiff.

In conclusion, it is therefore my finding that the parties entered into a conditional sale agreement. The condition precedent was not fulfilled and the defendant is not in breach. The plaintiff is not entitled to any remedy in the circumstances.

As indicated above, counsel for the defendant did not advance the fact that the sale agreement between the parties was conditional with much conviction. He, on the other hand, submitted that the remedy sought by the plaintiff in this suit was untenable and that I should use my discretion to refuse specific performance. Assuming, therefore, that I have erred in finding above that the sale between the parties in respect of the Y12 and ANN wire was conditional, I turn to examine whether the plaintiff would have been entitled to the order that he seeks.

It is the settled position at law that generally while a plaintiff who elects to hold the defaulting defendant to the contract is entitled to an order for specific performance, where the defendant is in a position to perform, the court has a discretion to refuse to grant the order on several grounds. In particular, the court will decline to grant the order where, at the time of the order, performance would be impossible or will work an undue hardship on the defendant. See Haynes v Kingswilliamtown Municipality 1951 (2) SA 371 (A)…,.

In casu, it is not in dispute that the defendant does not have in its stock the two steel products. It has not been proved before me that the steel products are readily available on the market. The plaintiff was uncharacteristically cagey when it came to testifying about the Y12 that he purchased elsewhere on the instructions of his engineers. He was not forthcoming with the name of the supplier and the cost of the item. He was of the view that this evidence was not material for the resolution of this dispute. He may have erred in this regard, for, in the circumstances, the evidence of the defendant that the two products are unavailable from the only and regular supplier remains uncontroverted.

I would distinguish the facts of this matter form those that my brother PATEL had to deal with in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09. In that matter, the defendant agreed to deliver a number of containers and their caps to the plaintiff at a concessionary price as it had been availed funds for the purpose under the Basic Commodity Supply Side Intervention Facility (BACOSSI) set up by the Reserve Bank. The defendant allowed the facility to end without supplying all the containers that it had undertaken to deliver under the facility. In holding the defendant to the contract, PATEL J reasoned that the only inference he could draw from the facts of the matter was that the defendant failed to deliver because it failed to exercise due commercial diligence by allowing the facility to run out before it had made good on all the promises it had made on the basis of the facility.

In casu, I have accepted that the defendant did not have the items in stock and were awaiting delivery on an order that had been made prior to its agreement with the plaintiff. In the circumstances, there was little that it could do to secure the product and was thus not guilty of commercial incompetence as was found in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09.

I have been referred to Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09. In that case, the Supreme Court declined to order specific performance of a contract whose contract price had been determined in 2003 and had been eroded into nothing by inflation at the time specific performance was sought. In declining to order specific performance, the court was of the view that were it to grant specific performance, the appellant in that matter would take delivery of 280 heifers for a very small amount of money. In other words, the court reasoned, the appellant would take possession of a herd of cattle worth a considerable sum of money for which it would have paid virtually nothing.

It was pressed on me that were I to order specific performance in this matter, the plaintiff would take delivery of steel products worth a lot of money in foreign currency and for which he paid very little in local currency.

I do not agree that this is solely the basis upon which specific performance may be declined or that this was the simplistic manner in which the Supreme Court arrived at its decision in Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09.

In my view, the law on specific performance has always been clear that where to order specific performance will result in an injustice, or where it is impossible, the court should not make such an order as this will act as an antithesis of what the law stands for.

In casu, it has been argued, and not challenged before me, that the defendant does not have the outstanding steel products in its stock. It has also been argued and not challenged that its supplier has not been able to supply it with the products. I have been told, in evidence, that the defendant has not been able to source the product from South Africa as it did not receive the necessary foreign currency allocation it required for the purpose. In the circumstances, to order the defendant to deliver the steel to the plaintiff will clearly, in my view, work an undue hardship on the defendant. On the evidence before me, it will be nigh impossible for the defendant to supply the steel from local suppliers.

On the basis of the foregoing, even if I have erred in finding that the defendant is not in breach of the sale agreement between the parties, I still would have declined to grant an order of specific performance in favour of the plaintiff as prayed.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendant's costs of suit.

The plaintiff averred that the defendants could restore his pre-accident truck, either by purchasing a truck similar to, or buy one of equivalent value to, the accident-damaged one.

He did not produce an assessor's report of the state of the vehicle after the accident. He confirmed that the engine, gearbox, front axle, differential, fuel tank, side boards, and tyres, were still usable. He would need to replace the front radiator, steering rack, and propel shaft, to put the truck back on the road.

He reiterated that he was not seeking any damages.

The plaintiff's claim was one of specific performance. He did not seek an alternative of damages.

In his oral submissions, counsel for the plaintiff conceded that the plaintiff did not lead any evidence to show that the truck could be restored to its pre-accident state by replacing the damaged parts. He further conceded that restoration was not a competent claim.

The plaintiff did not quantify the damages he suffered.

While in his summons he sought the pre-accident value of the truck, in his evidence in chief he failed to quantify that value.

The practical difficulties of restoring an accident-damaged vehicle to its pre-accident state were demonstrated in the case of Leighton v Eagle Insurance & Ors HH193-02...,. The parties in that case agreed that the defendants would repair the plaintiff's accident-damaged motorcycle at a particular firm, using second hand parts. The motorcycle was duly repaired but to the dissatisfaction of the plaintiff.

He abandoned the agreement and sought damages.

In the present matter, the plaintiff confirmed those practical difficulties.  While it is easy to claim restoration, it is, in my view, impossible to lead evidence to show, on a balance of probabilities that the defendants are able to repair the truck to its pre-accident state to the satisfaction of the plaintiff. The use of new parts would not restore the truck to the pre-accident state.  It would be difficult for the plaintiff to measure the “oldness” of the damaged parts and thereafter to find equivalent parts on the second hand market to fit onto the truck and restore it to its pre-accident state.

It seems to me that to restore the truck to its pre-accident state is an impossible feat.

The plaintiff failed to lead evidence to demonstrate that a vehicle similar to the truck, before the accident, could be purchased for him. Without a clear technical report on the state of the truck before the accident, it would be hard for the defendants to fulfil any restorative order of the court. In any event, it would be impossible to enforce such an order which would depend on the whims of the plaintiff. The plaintiff failed to discharge the onus on him to show that it could be done.

The plaintiff hamstrung his case by his failure to plead for damages in the alternative.

I am unable to grant the plaintiff the relief he seeks. Absolution from the instance is appropriate in these circumstances.

Accordingly, it is ordered that:

1. The defendants are granted absolution from the instance.

2. ...,.

The plaintiff in this case claims the delivery of 1,200 bags of PC15 cement or, in the alternative, damages for breach of contract equivalent to the current market value of the cement, being US$11,400=, and costs of suit.

The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the defendant receiving the same from its supplier, that it was unable to deliver due to supervening impossibility and that it is no longer able to deliver the cement and has offered a refund to the plaintiff in the sum of ZW$336 million.

Evidence for the Plaintiff

Elliot Mutangadura, the plaintiff, testified as follows. In July 2007 he approached the defendant to purchase various building materials. The defendant then submitted a quotation on the 18^th of July 2007 listing those materials that it was able to supply - including the cement in question [Exhibit 1]. At that time, PC15 cement was available on the market and also in the defendant's warehouse (though he was not aware of the quantity thereof). This was confirmed by the defendant's Branch Manager (Mavengere) as well as its Sales Manager (Jongwe) without any condition as to having to await delivery from the defendant's suppliers.

The plaintiff then paid the full purchase price for all the materials in six instalments amounting to $3.51 billion, as was confirmed in a letter from Jongwe dated the 30^th of August 2007 [Exhibit 2]. In that letter, Jongwe also confirmed that “we had promised delivery early August.” The defendant thereafter delivered all the purchased items - save for the cement.

On the 19^th of September 2007, Mavengere wrote a letter stating that the defendant was “unable to supply PC15 cement as per agreement” and offered to supply masonry or other building materials equivalent to the amount paid [Exhibit 3]. The plaintiff rejected the offer as the PC15 cement was specifically required for the building work in question.

On the 21^st of September 2007 the plaintiff's lawyers wrote a letter of demand to the defendant [Exhibit 5]. In response, on the 1^st of October, the defendant's lawyers offered a refund of the original purchase price of $336 million [Exhibit 4]. The plaintiff rejected this offer through a letter from his lawyers on the 9^th of October [Exhibit 6] because the money tendered was insufficient to pay for 1,200 bags of cement at that time.

Subsequently, from October 2007 to June 2008, the plaintiff sourced 1,200 bags of cement, on loan, from his uncle's hardware business. The return of the cement borrowed is now overdue. The requisite PC15 cement is currently available on the market at US$9.50 to US$10 per bag.

Evidence for the Defendant

Thomas Jongwe was the Sales Manager of the defendant's Harare branch at the relevant time. His evidence was as follows.

Before giving the original quotation to the plaintiff, on the 18^th of July 2007, he made enquiries with the defendant's suppliers and told the plaintiff that PC15 cement was available for supply to the plaintiff. However, before the first payment was received, on the 20^th of July, he verbally informed the plaintiff that the cement was not immediately available and would be sourced from Unichem, a supplier in Bulawayo. He then placed an order for 1,200 bags with Unichem on the 31^st of July [Exhibit 7]. Unichem did not have any clinker, a critical raw material in cement, and he verbally informed the plaintiff of that fact.

The plaintiff made six payments in all, from the 20^th of July to the 16^th of August 2007, as shown on the receipts therefor [Exhibit 8]. There was no indication on the receipts as to the specific items paid for. The payments were made towards the total quotation amount, with appropriation in respect of each item being made at the time of invoicing. No invoice was raised for the cement as it was not in stock to deliver. In accordance with the defendant's internal accounting system, an invoice is raised after payment is received and is given to the customer at the delivery point as a delivery note.

Under cross-examination, Thomas Jongwe accepted that by the date of the last payment, on the 16^th of August 2007, the plaintiff had discharged his obligation under the contract. He also conceded that he made enquiries with the defendant's suppliers and made certain that the cement was available before issuing the quotation to the plaintiff. He further confirmed that PC15 cement is presently available on the market.

Issues for Determination

The agreed issues for determination herein are as follows:

(a) What terms and conditions were agreed to or can be implied from the contract concluded between the parties?

(b) Whether the defendant is liable for specific performance in terms of the contract.

(c) What amount of compensation, if any, is the defendant liable to pay to the plaintiff?

Terms and Conditions of Contract

The evidence before the Court shows that after the plaintiff initially approached the defendant, its Sales Manager, Thomas Jongwe, made enquiries with the defendant's suppliers and received positive confirmation as to the availability of PC15 cement. Jongwe then made out the quotation [Exhibit 1] and upon handing it to the plaintiff on the 18^th of July 2007 gave a firm assurance that the cement would be delivered in early August.

At that time, the defendant did not, as it contends, stipulate any condition as to the fulfilment of the contract being subject to delivery from its suppliers. Thereafter, the plaintiff paid the full amount of the quotation in six instalments, beginning on the 20^th of July and finishing on the 16^th of August 2007. The defendant only raised the non-availability of PC15 cement from its suppliers over one month after full payment had been made and received.

All the payments made by the plaintiff were towards the total quotation and not towards any specific materials thereon. The defendant's invoicing process involved the appropriation of the amounts paid to particular items as and when delivery was effected and the invoices served as delivery notes. However, this was quite clearly a process that was internal to the defendant's accounting system and totally irrelevant to the conclusion of the contract between the parties.

It is quite clear from the foregoing that the contract in casu was concluded unconditionally on the 20^th of July 2007 when the defendant accepted the plaintiff's first instalment as part payment towards the entire quotation - including the PC15 cement. The terms and conditions of the contract were that the defendant would deliver the cement in early August against payment by the plaintiff of the full amount of the quotation in instalments. In effect, the parties concluded an unconditional and binding contract for the supply of 1,200 bags of cement to the plaintiff in early August 2007.

Specific Performance and Supervening Impossibility

The defendant avers that at the end of August 2007 it was unable to source PC15 cement from its suppliers because a requisite component (clinker) was not available at that time. It therefore contends that this market factor constituted a supervening event rendering impossible the performance of the contract for the supply of PC15 cement.

It is trite that a party to a binding agreement has the right to demand from the other party, as far as it is possible, performance of his undertaking in terms of the contract where he is in a position to do so. Such specific performance can only be avoided in compelling circumstances. In this respect, the onus lies on the party seeking to avoid the contract to establish the facts and circumstances justifying the court's exercise of its discretion to refuse specific performance. See International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H)…,.

The general rule in our law is that, if a supervening physical or legal factor renders the performance of a contract impossible, through no fault of the debtor, the obligations of the parties under the contract are thereby extinguished and cannot be enforced. See Beitbridge-Bulawayo Railways (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe Ltd SC91-07.

However, this general rule does not override the terms of the implications of the contract. The court must have regard to, inter alia, the nature and circumstances of the contract and the nature of the impossibility that is relied upon. If, for instance, it is ascertained that the parties contemplated the situation that gives rise to the impossibility and accepted the risk of the supervening event, the general rule does not apply and the parties are bound to perform their contract. See Beitbridge-Bulawayo Railways (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe Ltd SC91-07; Bekker N.O. v Duvenhage 1977 (3) SA 884 (ECD)…,.; Bischofberger v Van Eyk 1981 (2) SA 607 (WLD)…,.; CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

There is a further situation more pertinent to the facts in casu where the general rule does not override the obligation of the parties to perform their contract. This arises where a party is only temporarily disabled from fulfilling his contractual obligations, in contradistinction to the position where the contract becomes finally and completely impossible of performance. See Field N.O. & Another v Compuserve (Pvt) Ltd 1990 (2) ZLR 253 (HC)…, citing Beretta v Rhodesia Railways Ltd 1947 (2) SA 1075 (R)…., as follows:

“The law is clear that when a contract becomes finally and completely impossible of performance by reason of an act of State it is discharged. Peters Flamman & Co v Kokstad Municipality 1919 AD 427. But this does not cover the situation in which one party is temporarily disabled from fulfilling his obligation.

It is nowhere suggested that the immediate effect of such temporary disability is to end the contract, and this is not surprising, for any such suggestion would involve consequences so extreme as to be unthinkable.”

On the evidence before the Court, there is nothing to indicate that the non-availability of clinker on the market was permanent and irreversible. According to Thomas Jongwe's testimony, this non-availability only occurred towards the end of August 2007 when the defendant's suppliers intimated their inability to supply PC15 cement. This would mean that the defendant was merely temporarily unable to source the 1,200 bags of cement and deliver the same to the plaintiff. Certainly, there was no evidence adduced to contradict the plaintiff's testimony that PC15 cement was available on the market from October 2007 onwards. In any event, the shortage of clinker on the market occurred one month after the promised date of delivery, and, therefore, it could not and should not have affected the defendant's undertaking to deliver the cement to the plaintiff in early August 2007.

It follows that the defendant's defence of supervening impossibility cannot be sustained, either at the time when delivery of the cement was to be effected as contemplated by the parties, i.e. in early August 2007, or at any time from October 2007 onwards, when cement was available on the market. It also follows that the defendant has failed to establish any basis for declining specific performance and must therefore be held bound to its undertaking to deliver PC15 cement to the plaintiff.

Quantum of Damages

Assuming that I am wrong in finding that the plaintiff is entitled to claim specific performance on the facts in casu, it is necessary to consider the measure of damages properly due to the plaintiff.

In this regard, the defendant submits that the plaintiff should have accepted the refund that was tendered by the defendant in October 2007. By refusing to accept that refund, so it is argued, the plaintiff has failed to mitigate his damages and must therefore bear the penalty of a commensurate reduction in the quantum of damages to be awarded.

In my view, these submissions are devoid of merit for several reasons.

It cannot be disputed that the plaintiff's entitlement to damages must entail him being placed in the position he would have been in but for the defendant's breach of contract. The plaintiff's unchallenged evidence was that in order to complete his building project he borrowed the requisite cement and presently remains obligated to replace the borrowed cement. More particularly, he rejected the defendant's offer to refund the purchase price originally paid specifically because the amount tendered would not have placed him in the position he was in at the time that the contract was concluded due to the hyper-inflationary economic environment that prevailed at that time. No evidence was adduced on behalf of the defendant to counter the plaintiff's testimony in the above respects.

I accordingly find that the plaintiff did endeavour to mitigate his loss and that his rejection of the refund offered by the defendant was perfectly justifiable at the material time. Moreover, it is common cause that the plaintiff duly performed his contractual obligations and that the defendant has remained in possession and beneficial use of the money paid by the plaintiff for the cement. It also not disputed that the current minimum price for cement is US$9.50 per bag.

In the final analysis, the law requires that the plaintiff be put in a position to purchase the cement that he requires at the current minimum market price in order to meet his obligation to replace the cement that he has borrowed. He is therefore entitled to the measure of damages that he claims in the alternative.

Disposition

Although the plaintiff's claim for damages was originally framed as an alternative in the event of the claim for specific performance being refused, I believe that it would be just and equitable, at this juncture, having regard to the facts of this case and the circumstances of both parties, to grant both an order for specific performance and damages as alternative remedies.

In the result, judgement is hereby entered in favour of the plaintiff as against the defendant for:

(i) The delivery of 1,200 bags of PC15 cement within 7 days of the granting of this order, or, alternatively, the payment of damages for breach of contract in the sum of US$11,400= being the current market value of 1,200 bags of PC15 cement; and

(ii) Costs of suit.

This is an opposed application where the applicant seeks the following relief:-

“1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent.

2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into applicant's name within ten (10) days of service of this order on him failure of which the Deputy Sheriff, Harare, be and is hereby authorised to sign all relevant cession papers for purpose of ceding first respondent's rights interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into the applicant's name.

3. First respondent shall be evicted forthwith from Stand No.3519 Dzavaguru Crescent, Ruwa.

4. First respondent shall pay the costs of this application on client legal practitioners.”

In seeking the above relief, the applicant alleges that the respondent breached a contract relating to his purchase of Stand No.3519 Dzivaguru Crescent, Ruwa, (the property).

It is common cause that on 15 February 2008 the applicant and the first respondent entered into a written agreement whereby the first respondent would sell his rights in the property to the applicant for a sum of ZW$20,000,000,000= (twenty billion Zimbabwe dollars). The applicant paid ZW$10,000,000,000= (ten billion Zimbabwe dollars) upon the signing of the agreement. It was then agreed that the balance of ZW$10,000,000,000= would be paid over a period of three months.

On 21 April 2008 (i.e. 66 days after paying the deposit) the applicant tendered payment of the balance of ZW$10,000,000,000= but the first respondent refused to accept the payment arguing that he had since cancelled the agreement after the applicant refused to pay $3,300,000,000= on 15 March 2009, which payment, according to the first respondent, would have constituted the first instalment.

On 9 May 2008, the applicant filed this application praying for specific performance in terms of the draft order (relief) quoted in full herein…,.

On 9 July 2008, the applicant obtained a default judgment against the first respondent from this court, and, on the basis of that judgment, he caused the registration of the property into his name. However, the default judgment was later rescinded on 7 May 2009.

In opposing the application, the first respondent argued that the purchase agreement was not enforceable because it did not carry the consent of the lessor, namely, the Minister of Local Government and National Housing (the Minister) who was not even cited in the proceedings.

The first respondent based his argument on clause 12 of the lease agreement between himself as the lessee and the Minister as the lessor. The said clause provides as follows:

“That the lessee shall not cede or assign this lease or sublet or part with the possession of the stand/stands, or any part thereof, or alienate, mortgage, donate or otherwise dispose of the same, or cede or assign any right acquired by him/it hereunder without the previous consent in writing of the Lessor, or until title to the stand/stands shall have been granted to him/it as hereafter mentioned.”

The first respondent conceded that, although he, as the seller, had not complied with the above condition, the agreement between him and the applicant was not null and void. It was only unenforceable and would remain so until the Minister (lessor) placed him in a position to pass title. He, however, correctly argued that the Minister, who was not a party to the proceedings, could not be compelled to pass title to either of the two parties.

The first respondent argued that Ruwa Local Board, cited in the case as second respondent, was merely an administrative entity and could not take the place of the lessor who could pass title. It was further submitted that the second respondent had indeed confirmed that it would require authority from the Minister for it to pass title. The second respondent was not therefore compellable to pass title to the applicant.

The first respondent further submitted that when the parties concluded the contract their main intention was that the balance of $10,000,000,000= would be payable in three equal instalments over a period of three months. However, in breach of that arrangement, the applicant had, on 15 March 2008, upon demand, refused to pay the first instalment of $3,300,000,000=. The applicant had indicated that he would pay the whole balance at the end of the three months' period. That refusal to pay led to the cancellation of the agreement by the first respondent. The first respondent regarded refusal to pay the first instalment as a breach of contract justifying cancellation of the same.

On his part, the applicant submitted that upon payment of the balance of $10,000,000,000=, through the High Court, following the rescinded court order granted on 9 July 2008, he had fully discharged his obligations under the contract. He had initially tendered the payment on 21 April 2008 but the first respondent had rejected the same.

It should, however, be noted that notwithstanding the rescission of the court's order of 9 July 2008, on 7 May 2009, the applicant went ahead to register the property into his name.

The applicant averred that the refusal by the first respondent to accept the balance was due to the fact that he (the first respondent) wanted to fetch a higher price from an unnamed third party. He said the agreement did not spell out any specific instalments for the three months period. The first respondent could not therefore resile from a contract that was entered into freely and voluntarily. Payment had been made within the confines of the agreement and that payment was subsequently paid through the court.

The applicant agreed that although the agreement in question was legal it did not bind the lessor (Minister). See Jangara v Nyajuyamba 1998 (2) ZLR 475 (H) and Chanda v Mutandadzi and Anor SC74-94.

He said clause 12 of the lease agreement merely enunciated general policy. In the main, however, the City Councils/Local Boards are, on behalf of the Minister, the ones who approve of persons who are eligible to purchase or occupy any piece of land. The City Council(s) or local board(s), with authority from the Minister, can ratify what the parties will have concluded outside the non-cession clause. To that end, it was argued, it is the city councils/local boards that obtain the necessary authority for cession(s) from the lessor (in casu: the Minister). He said authority to cede would only be withheld where public policy would be injured.

In the premises, and because the applicant had fully discharged his obligations under the contract, it was argued, it would be unjust and inequitable for the court not to order specific performance. He urged the court to find the agreement legal and enforceable – hence his cry for specific performance.

In dealing with this matter, I want to take judicial notice of the fact that, generally, State land in municipalities is administered by local councils through delegated authority from the Minister. The lessee, for all practical purposes, dealt with the Ruwa Local Board which was mandated by the lessor (Minister) to approve developments on the Stand or property that was the subject of purchase. Ruwa Local Board was therefore the authorized agent of the Minister.

To that end, I do not see any prejudice in the non-citation of the Minister who appears in the lease agreement as the lessor.

Pursuing that argument, in any case, is now academic in the sense that, at the time of the hearing of this of matter, the second respondent had already exercised its delegated authority by effecting cession to the applicant.

It is important to note that the court order that was later rescinded was never challenged by the lessor. That, alone, is testimony to the fact that Ruwa Local Board is the authorized agent of the lessor.

The problem faced by both parties regarding their contractual relationship is the interpretation of the phrase “balance over three months from date of sale.”

There is no mention of what would be paid per each month. However, in his opposing affidavit, the respondent states the following:-

“5.4 Reference to payments “over three moths” was clear reference to the monthly instalments which were agreed by the parties.

5.5 I recall that on or about the 15^th of March 2008, I demanded payment of the first instalment Zimbabwean dollars. The applicant refused to pay the amount and indicated that he was to going to pay the amount at the end of three months period together with the subsequent instalments. I advised him that because of loss of value for money, I was not prepared to accept the full payment of 10,000,000,000= (ten billion) Zimbabwean dollars at the end of the three months period. I accordingly insisted on the payment of instalment. The applicant refused. As a result, I advised him that I was cancelling the agreement of sale.….,.

5.6 On or about the 15^th of April 2008, some two months after the cancellation of the agreement of sale, the applicant came to my residence and tendered the payment of the sum of $10,000,000,000= (ten billion) Zimbabwean dollars. I rejected the payment indicating that I had already cancelled the agreement of sale to his knowledge. That resulted in him writing the letter, which is attached to the applicant's founding affidavit papers, to the Ruwa Local Board. The said letter was however not copied to me.

5.7 I wish to point out that, originally, I had indicated to the applicant that the purchase of the property should have been made on cash basis. He negotiated with me and pleaded with me to accept a deposit in the sum of $15,000,000,000= (fifteen billion) Zimbabwean dollars. However, on the appointed day when the agreement was drafted, he came up with the sum of $10,000,000,000= (ten billion) Zimbabwean dollars. Initially, I had insisted that the balance which would have remained, in the sum of $5,000,000,000= (five billion) Zimbabwean dollars should have been paid within a month of the agreement of sale, that is by the 15^th of March 2008. On the date when the agreement was drawn up, it was after pleading of the applicant that I asked him to pay the balance spread over three months.”

As can be seen, the above statements attempt to introduce new terms to the agreement that the parties signed on 15 February 2008.

The statements, being outside the contract, are denied by the applicant. The applicant's position is that he would only be in breach if he failed to pay the balance within the three months period.

I agree.

The failure by the parties to incorporate the issue of instalments in the agreement, in my view, suggests that what was most important is that the balance should have been cleared within the three months period. The applicant could have paid any amount, even the total balance, before the expiry of the three months period. What the applicant could not do, however, was to effect payment outside the three months period.

That view is consistent with the need to restrict the interpretation of the intentions of the parties to the contents of the agreed document ie within the four corners of the contract.

Accordingly, my view is that the respondent lacked competence to cancel the contract on 15 March 2008 before the expiry of the three months period.

I also believe that the short period within which the balance was to be paid was meant to accommodate the issue of inflation raised by the respondent. In fact, the reason for refusing to accept the money was given as:-

“I advised him that because of loss of value for money, I was not prepared to accept the full payment of $10,000,000,000= (ten billion) Zimbabwean dollars at the end of the three months period.”

The first respondent accepts the contract signed on 15 February 2008 but now wants to add the issue of defined instalments. That may sound a reasonable expectation but it was not part of the contract. I therefore strongly hold the view that the first respondent could only talk of breach and cancellation of the contract after the expiry of the three months period.

This court cannot, therefore, be used as a platform to assist parties who enter into 'bad' deals by way of allowing unilateral variation of contracts. The respondent therefore refused to accept the full payment on 21 April 2008 at his own peril.

On the basis of the principle that the law respects the sanctity of contracts, the respondent cannot therefore be allowed to resile from the contract. There was no breach on the party of the applicant and the purported cancellation of the contract was therefore null and void.

Having complied with the terms of the contract, the applicant is entitled to an order of specific performance.

In Unilever South East Africa v Viewleen Investments (Private) Limited HH37-07, CHITAKUNYE J, dealing with the issue of specific performance and relying on what the late ROBINSON J said in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe Ltd 1993 (1) ZLR (H), had this to say:-

“The money loss or inconvenience to be suffered by the defendant as a result of its own delay or failure to perform was discussed in the Intercontinental case, supra, and was held not to be good enough a ground to deny a party a prayer for specific performance.

Indeed, it would be a disservice to the business community if parties were to be allowed to will-nilly use likely monetary loss as a ground to defeat a prayer for specific performance.

I can do no better than quote the late ROBINSON J, in Intercontinental case, supra, at p37 where he said:

“I would wind up by saying that if the right of specific performance is to be shown to have real meaning to businessmen, then the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then don't start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract. In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach. Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them…,.”

This was a commercial transaction and I am therefore in complete agreement with the views expressed in the two judgments quoted above.

In casu, the first respondent, for financial considerations, refused to accept a legitimate payment that was being effected within the agreed period. The law is unable to protect him from his own deliberate but costly and legally unbackable action.

Accordingly I order as follows:-

1. That the purported cancellation of the agreement of sale signed on 15 February 2008 between the first respondent and the applicant be and is hereby declared null and void.

2. That the cession of the first respondent's rights, interests and title in Stand Number 3519 Dzivaguru Crescent, Ruwa into the applicant's name be and is hereby confirmed.

3. That the applicant be and is hereby authorized to evict the first respondent from Stand Number 3519 Dzivaguru Crescent, Ruwa within seven (7) days from service of this order; and

4. That the first respondent shall pay the costs of this application.

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the signing of the agreement, being 15 November 1996, as recorded in clause 1 of the agreement.

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

The applicant avers that he paid the full purchase price of the property as evidenced, firstly, by clause 1 of the agreement which acknowledges payment of the initial $10,000=, and, secondly, by receipts, copies of which he attached to his founding affidavit. He also avers that he prepared plans which were approved by the third respondent. In this regard, Annexure C1 to his founding affidavit is a document dated 2 January 2003 addressed to the applicant by the third respondent's City Engineer's department and in respect of the Stand in issue. It informs the applicant that his plans, which were submitted in respect of the Stand in question, have been approved subject to the relevant Municipal Bye-laws and certain conditions stated therein.

Annexure C2, dated 21 June 2005, is also addressed to the applicant by the third respondent's City Engineer's department in respect of the same Stand. It also informs the applicant that one copy of his plan has been “pre-approved” on condition that he adheres to certain conditions also stated therein. It further states that the “pre-approval” is valid for one year from the date stamped on the plans.

Annexure D to the founding affidavit reflects copies of two inspection logs. One is dated 27 July 1999 showing approval by the City Engineer's Department of the stage referred to as “Brickfooting.” The other is dated 27 August 1999 showing approval of the stage referred to as “Hardcore.”

The applicant also avers that he commenced to build on the undeveloped and vacant Stand and has erected a house which is at window level. Then, sometime in June 2005, the first respondent began to interfere with the applicant's access to the premises. This led to the applicant's legal practitioners writing a letter, on 7 July 2005, to the first respondent, and, amongst other things, giving her fifteen days' notice to effect cession of the property into the applicant's name as well as two (2) months' notice to vacate the property.

The first respondent did not cede the property to the applicant. However, the applicant then received a water bill dated 17 July 2006 addressed in the name of the second respondent. This prompted him to make inquiries with the third respondent and he then ascertained that the first respondent had ceded the property into the name of the second respondent. The second respondent was un-cooperative when he approached her. The first respondent became evasive.

The applicant contends that the second respondent ought to have known that the applicant was the new owner of the property as his builders were on site and the plans for the house that was being erected on the property were in the applicant's name. He also contends that the second respondent was reckless and was not diligent in not making inquiries as she would not have purchased the property which he had already purchased. He contends that the cession to the second respondent was done maliciously by both the first and the second respondents.

The applicant prays for an order in the following terms:-

“That:

1. The first and second respondents be and are hereby order and directed to attend at third respondent and cede their rights and title in House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from the date of service of this court order.

2. In the event of the first and second respondents failing to comply with paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign all relevant cession papers for and on behalf of the first and second respondents and the cession papers with the third respondent who is obliged to accept them and effect the cession into applicant's name.

3. Alternatively, the first respondent pays he applicant ten million (10,000,000,000=) or the current market value of the house as approved by two evaluators which ever figure is higher.

4. The first respondent pays the applicant's costs of suit.” (sic)

The first respondent opposes the application and avers that the applicant failed to pay the balance of the purchase price, in the sum of $8,000=, claiming that the payments reflected in the receipts attached as annexures B1, B2, B3, and B4 to the applicant's founding affidavit were meant for supplementary charges and not for instalments towards the liquidation of the balance as alleged.

The applicant claims that if these were instalments meant to go towards the liquidation of the balance of the purchase price, as claimed by the applicant, the applicant would not have paid the higher amount of $1,000= per month instead of the agreed $750= per month. She further alleges that the building plans could not have been in the applicant's name as the Stand was registered in her name and cession had not yet been effected.

The first respondent also alleges that although the applicant built a house to window level, when she started to demand payment of the balance and of water bills and supplementary charges which he had stopped paying, the applicant then ceased building. Then, in February 2005, the applicant stated that he had purchased another Stand in Harare and was no longer interested in developing the Stand in question. She alleges that the applicant then said that all that he wanted from her was $15,000,000= “for the Stand at its state” so that she could have the Stand back from him. She claims that they reached an agreement, and, in pursuance thereof, she raised the $15,000,000=. However, when she tried to contact the applicant so that she could make the payment to him, he could not be found. On two occasions she went to his rural home but failed to find him. When she finally made contact with him, in August 2005, he promised to come and collect the money but never did.

The first respondent contends that the applicant breached their agreement by failing to pay the balance of the purchase price and the supplementary charges and that the property thereby reverted to her. She disputes that the applicant had any building material at the Stand and further disputes that she used such material to construct an outbuilding as alleged by the applicant. As the property reverted to being hers she then sold it to the second respondent in November 2005 and ceded it to her. She further states on her opposing affidavit that as the applicant failed to collect his money, as detailed above, she was thus tendering it.

The first respondent agrees that the applicant was the first purchaser. She however claims that they later agreed that she retain her property, which she did “after having managed to raise the agreed purchase price”. She then thereafter sold the property to the second respondent who was a bona fide purchaser. She claims that she was, at that stage, at liberty to sell the property to anyone.

In supplementary heads of argument filed on behalf of the first respondent, the point is raised, in limine, that the applicant's cause of action is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

She submitted therein that the agreement between the applicant and the first respondent having been entered into on 15 November 1996, when this court application was filed on 10 October 2006, it was long after the expiry of three years and as there had been no judicial interruption during the interceding period, the claim had since prescribed. On the merits, it is submitted that there are irreconcilable disputes of fact which no matter how robust the court is, it cannot possibly resolve without hearing viva voce evidence.

The first respondent thus prays for the dismissal of the application with costs.

The second respondent, despite being served with the court application, has filed no opposing papers….,.

THE MERITS

It is true that there is a dispute of fact regarding whether or not the applicant paid the purchase price in full. The payments reflected on the receipts annexures B1, B2, B3, and B4 were made into the first respondent's POSB account, and, in terms of the agreement were meant to be payments of instalments for the balance outstanding in the sum of $8,000=, the initial payment or deposit of $10,000= having been made at the time of the signing of the agreement.

The fact that the applicant paid instalments in the amount of $1,000 per instalment and not $750 as per agreement cannot possibly be a cause for complaint by the seller. Rather, the payment of the outstanding balance was completed in a shorter period than would have been the case had the instalments been paid in the agreed amount. In any event, it cannot be by coincidence that the payments reflected in the said receipts amount to a total of $8,000 which is also the amount of the balance of the purchase price after the initial payment of $10,000.

It is highly improbable that the applicant would give priority to the payment of supplementary charges and water bills whilst neglecting payment of the balance thereby placing himself in breach of a material term of the agreement. Furthermore, the payments having been made into the first respondent's POSB account were also, barring the quantum of each instalment paid, made in accordance with the provisions of the agreement regarding payment of the balance. The payments reflected in the receipts referred to above commenced on 1 July 1997 which date is also stipulated in the agreement as the date of the payment of the first instalment which was to be made after a grace period of about nine and half months that is from 15 November 1996 to 1 July 1997. Other charges in respect of the property were to be paid by the applicant as from December.

For the above reasons, the first respondent's version and claim that the payments in question were not payments towards the liquidation of the balance of the purchase price but rather were for water and supplementary charges is highly improbable in the circumstances. Thus, the dispute of fact is not one that is incapable of resolution on the papers.

On a balance of probabilities the applicant has proved that he paid the purchase price in full. He did not breach the agreement as alleged by the first respondent. The subsequent sale of the property by the first respondent to the second respondent was therefore improper and unlawful. She had no authority to sell it nor title to pass.

I wish to comment briefly on the alleged oral agreement between the applicant and the first respondent as claimed by the first respondent; she alleged that the applicant effectively sold the property back to her for $15,000,000 but that he frustrated her efforts to pay him the said amount. The applicant disputes that such an agreement was ever entered into. The second sentence in clause 5 of the agreement of 15 November 1996 reads:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The first respondent cannot thus purport to rely on an alleged agreement that is expressly excluded on account of it not being in writing by the agreement of 15 November 1996.

The second respondent has chosen not to contest or oppose the application. There is thus no dispute to the applicant's contention that the second respondent is not a bona fide purchaser.

There is also no evidence before this court showing that the second respondent made any payments towards the purchase of the property. There appears therefore to be no impediment to the court making an order that the property be ceded from the second respondent to the applicant.

Having taken a robust approach to the dispute of fact in this matter, this court finds that the applicant has proved his case and must therefore succeed in this application. The balance of equities favours the applicant in this matter. Costs must follows the cause. In the event, it becomes unnecessary for this court to consider paragraph 3 of the draft order which is thus rendered irrelevant.

In the result the following order is made:

1. The second defendant is ordered to cede her rights, title and interest to the applicant within ten (10) days of the service of this order upon both or either of the first and second defendants failing which the Deputy Sheriff be and is hereby authorised and directed to sign all documents as are necessary to effect the said cession.

2. The third defendant is ordered to register such cession effected in terms of paragraph 1 above.

3. The first defendant shall pay the plaintiff's costs of suit.

The applicant is a duly registered corporate entity under the laws of this country. On 30 March 2008, following conciliation through an arbitrator, the dismissal of the respondent from amongst the ranks of the applicant's employees was confirmed.

As a result, the parties' formal relation came to an end.

At the time, the respondent was in possession of a vehicle belonging to the applicant. The applicant had requested that the respondent, some time prior to these sad events, use her own vehicle for the business of the applicant. In turn, the applicant undertook to have the vehicle serviced and repaired at its own cost. The vehicle required certain repairs, and, as a result, the respondent was given use of the applicant's vehicle on the understanding that it would be returned once hers had been properly repaired. When the relationship was terminated, the respondent's vehicle was still undergoing repair. Some time thereafter the applicant sent the respondent's vehicle to her with a request that its own be returned. The respondent refused and it is that refusal that has prompted the applicant to launch these proceedings for a rei vindicatio for the return of the vehicle.

The respondent has opposed the granting of the relief in question.

Our law, as it currently stands, is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In Chisipite Schools Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324 GUBBAY CJ stated:

“Pending the removal of the suspension, the respondent was not entitled to the continued enjoyment of the benefits comprising the free occupation of the Headmistress's house and the continued use of the motor vehicle. A Labour Relations Officer cannot order the respondent to surrender these particular benefits. Consequently, the applicant, being unable to resort to self-help, approached the High Court for relief. I consider it was justified in doing so.”

I respectfully associate myself with the remarks of the learned Chief Justice.

The respondent stands dismissed and a conciliator has ruled in favour of the applicant. The respondent has noted an appeal to the Labour Court but the noting of the appeal cannot give her the right to retain the property that she had possession of as a result of the contract of employment which is currently terminated. She has then to return the property in the absence of a recognizable defence to the claim by the applicant for the return of its property. See Stanbic Finance Zimbabwe Ltd v Chivhunga 1999 (1) ZLR 262 (H) and Mashave v Standard Bank of South Africa 1998 (1) ZLR 436 (S).

In the latter case, the Supreme Court, per McNALLY JA…, stated authoritatively:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See, for instance, Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence is estoppel.”

This dicta was quoted by MALABA J…, in Stanbic Finance Zimbabwe Ltd v Chivhunga 1999 (1) ZLR 262 (H).

In casu, the respondent does not claim a right to retain the vehicle through an agreement to purchase the vehicle as was the case in the two cases quoted above. Rather, she seeks to rely on what has been termed an antecedent agreement between the parties.

In his heads of argument, counsel for the respondent argued that the parties had an agreement which imposed consecutive obligations on each other. He contends that the applicant had to finance and service the respondent's motor vehicle to a satisfactory and roadworthy condition, facilitate its transfer into the respondent's name, and, thereafter, deliver it to the respondent. It was only then, so the argument goes, that the applicant would be entitled to have the Toyota Corolla returned to it. He relies on SA Crushers (Pty) Ltd v Ramdass 1951 (2) SA 543 for this submission. At p 546D-F SHAW J stated;

“Mr Cooper, for the respondent, submitted that the two obligations could not be separated in this way although practically they would have to be performed consecutively. The passage above cited from Mackenzie's case, indicates, however, that where the obligations fall to be performed consecutively, the party who must first perform is not entitled to withhold performance merely because the other party has not tendered performance pari passu or expressed his willingness to perform at a later date.”

I did not understand counsel for the applicant to challenge the correctness of this principle.

His contention, rather, was that there were no consecutive obligations imposed by the parties on the return to the applicant by the respondent of the vehicle in question and that this was a defence mounted by the respondent as an afterthought to the vindicatory claim.

It is necessary therefore to consider the facts.

The vehicle was a benefit afforded to the respondent in terms of a contract of employment with the applicant. That contract has since been terminated. The respondent has therefore to establish a defence to the claim by the applicant for the return of its vehicle to its possession. The respondent has contended that the applicant was obliged to repair, service and register in her name, the vehicle she had purchased from the former and which was still in its name. The respondent has not produced a written contract and seeks to rely on an alleged oral agreement which the applicant disclaims.

The return of the vehicle was claimed by way of a written communication to the respondent dated 6 October 2008 but delivered to the respondent on 8 October 2008. Her own vehicle was returned under cover of the letter in question. The respondent received and retained her own vehicle but refused to surrender the applicant's. She wrote a note in which she raised the lack of insurance on the vehicle (hers), the lack of a licence, and that the vehicle, presumably hers, had nothing to do with her contract as “GM Finance and Corporate Affairs.”

On 9 October 2008, acting on instructions from their client, the applicant's legal practitioners addressed a suitable letter to the respondent demanding a return of the vehicle. The letter received a prompt reply from the respondent's legal practitioners, who requested for an extension to 27 October 2008 for their client, the respondent, to have use of the vehicle.

The alleged contract now being sought to be relied on as a defence was not alluded to by the legal practitioners in question.

The request was acceded to by letter dated 21 October 2008, and, on 22 October, the respondent's legal practitioners then wrote a letter to the applicant's legal practitioners requesting an indefinite extension for their client to return the vehicle. This was turned down and a repeated demand was made for the return of the vehicle ultimately resulting in the launching of these proceedings by the applicant for the recovery of its vehicle.

The respondent's use of the applicant's vehicle was by virtue of her employment with the applicant and her right to retain possession terminated with her dismissal from employment. She did buy a vehicle from the applicant and whatever obligations the applicant assumed under that agreement, those obligations were not tied to the respondent's use of her officially allocated vehicle as a member of staff of the applicant.

It is clear on the facts that the obligation by the applicant to service and repair the respondent's vehicle arose from the use by the respondent of her vehicle on the applicant's business and that this usage had occurred prior to her being suspended from duty. In any event, the communication from herself and her legal practitioners, prior to the institution of these proceedings, does not establish an oral agreement as alleged by her for the rectification of defects on her vehicle. There was no demand by her for the alleged service and repairs to be effected before she could return the applicant's vehicle. Indeed, as submitted by counsel for the applicant, repairs to her vehicle was not a condition upon which the parties had agreed for her to retain the applicant's vehicle. Rather, she is seeking to justify her retention of the vehicle on the basis of claims arising out of her contract of employment which she has not even litigated upon.

In the premises, I find that the applicant is entitled to an order as prayed. I therefore make an order in the following terms:

IT IS ORDERED THAT:

1. The respondent, within 24 hours of the date of service of this order upon her, shall deliver the applicant's vehicle viz, a Toyota Corolla registration number AAP 6950 to the applicant's premises at Pockets Hill, Highlands, Harare.

2. In the event that the respondent fails to comply with paragraph 1. above, then the Sheriff for Zimbabwe or his lawful deputy is hereby ordered and authorized and required to seize the aforementioned vehicle from the respondent or from whomsoever or wherever it may be found and to deliver the same to the applicant.

3. The Deputy Sheriff is authorized, in the execution of his duties above, to enlist the assistance of members of the Zimbabwe Republic Police as he may deem necessary.

4. The respondent shall pay the costs of this application.

The first respondent is the registered owner of a motor vehicle Isuzu KB 250, registration number 524-884G. The applicant prays for an order that the vehicle be released to him on the basis of an Agreement of Sale he alleges was concluded in respect of the vehicle on 29 August 2008.

The background to the dispute is as follows:

On 29 August 2008, the applicant visited the second respondent's showroom and observed an Isuzu KB250 on display. It was apparently on sale. Since he liked the vehicle he made enquiries regarding the purchase price and other conditions attaching to the agreement. The applicant avers that he dealt with Harris Kufunga and Shadreck Dzapasi. The applicant avers in the founding affidavit that they are directors of the second respondent. The price was agreed and settled at $112,000= which had to be paid by RTGS. The applicant avers further that he was informed by Harris Kufunga that he would have the registration book and the number plates once payment had been effected. An Agreement of Sale was then concluded. The applicant then paid the purchase price and subsequently took delivery of the vehicle.

On 14 November 2008 police officers from the Vehicle Theft Section attended on him and advised him that the vehicle had been reported stolen. He surrendered the vehicle to the police. Thereafter, attempts to follow up the vehicle with the police raised his suspicions as the vehicle was not parked at the police station as would be expected. It was subsequently returned to the police station after the intervention of his legal practitioners. He avers that he is a bona fide purchaser and should not be inconvenienced by a dispute between the first and second respondents.

I find that the vehicle was indeed displayed in the second respondent's showroom.

The circumstances under which the vehicle came to be displayed in the showroom, viewed from the explanation by the first respondent, raises question marks. The first respondent's explanation is that one Dzapasi had come to his residence on the evening of 29 August 2008 and had begged that the first respondent give him his vehicle as he had a client who required an Isuzu. The first respondent avers that he had been reluctant, initially, to surrender the vehicle to him; firstly, because of the manner in which Dzapasi's uncle Shadreck and Harris had treated him in the past. He did not elaborate on what this treatment related to. Secondly, he averred that he had pointed out to Dzapasi that it was night time and it would have been proper if the transaction were conducted during the day. He states that had had relented when Dzapasi gave him an assurance that the client seeking the vehicle was Dzapasi's, and, further, that the second respondent was not going to play a part in the sale. The first respondent had been assured by Dzapasi that if the client was satisfied with the vehicle, then the former would arrange for a meeting to discuss the purchase price. He had therefore retained the registration book and number plates on the understanding that the purchase price and payment arrangements would be negotiated by himself. They had not agreed on a purchase price with Dzapasi.

The first respondent denied that he had authorized Harris Kufunga or Shadreck Dzapasi to sell his vehicle. He further denied that Dzapasi had authority to sell the vehicle. He stated that if he had authorized the second respondent to sell the vehicle, he would have been given a mandate form to sign signifying the agreement between himself and the company for the disposal of the vehicle. This is the procedure they had adopted when they sold a Toyota Hilux on his behalf. He stated that the second respondent had defrauded him in respect of the sale of the Hilux and he would not have been so naïve as to take another vehicle to the second respondent to sell on his behalf.

Whilst he does not dispute the contention by the applicant that he may have seen the vehicle in the second respondent's showroom he, the first respondent, contends that if the applicant saw the vehicle on 29 August 2009 it must have been after 20:30 hours when he gave the vehicle to Dzapasi. The first respondent states that the vehicle must have been given to the applicant that night because when he visited the second respondent's showroom the following day, the vehicle was not there. He was not unduly worried by its absence because Dzapasi had told him that he would not involve the second respondent or its directors in the deal. He subsequently met Dzapasi and asked about the whereabouts of the vehicle, which is/when Dzapasi asked if Harris or Shadreck had not phoned him. That is when he heard about the alleged sale.

He reported the matter to the police, and, as a result, charges of theft of motor vehicle were preferred against Harris and Shadreck on 14 November 2008. They persuaded him to drop the charges. When the applicant refused to surrender the vehicle, he then made a report at the vehicle theft in Southerton. He said he used to see the applicant at the showroom when he was following up the issue of his vehicle but the latter never let on that he had purchased the vehicle until the first respondent had caused the arrest of Harris and Shadreck and it then came to light that the applicant was the purported buyer of the vehicle.

The first respondent denies having sold the vehicle or authorized its sale. The applicant has not filed an answering affidavit.

The first issue that falls for determination is whether or not the first respondent authorized the second respondent to sell the vehicle on his behalf.

Earlier, I commented that the explanation by the first respondent as to how the vehicle was displayed raised eyebrows. I am fortified in this belief by the contents of a letter attached to the opposing affidavit. The letter was written by the legal practitioners of the first respondent and is dated 29 August 2008 and demand is made for payment in respect of a Toyota Hilux allegedly sold by the second respondent on behalf of the first respondent as far back as May 2008.

It is too much of a coincidence that the letter is written on the same day that the applicant alleges he obtained possession of the vehicle. However, he who avers must prove.

The applicant has not filed an answering affidavit and the averments in the opposing affidavit, no matter how ridiculous they appear, have not been denied by the applicant. They are therefore taken as having been accepted as the truth of the events which transpired between the applicant and the persons who allegedly sold him the vehicle.

The first respondent, in opposing the application, questioned the lack of a purchase price on the Agreement of Sale.

The authority quoted by the applicant cannot be faulted in terms of the principle as regards the price of an item being sold.

What we have here, however, is that the applicant has cited the first respondent and sought an order for specific performance against the first respondent when he is not alleging an Agreement of Sale between himself and the first respondent. He is bringing this action as the owner of the vehicle when he did not get a transfer of the rights qua owner from any of the parties he allegedly dealt.

Although the first respondent has produced a registration book which shows that the vehicle is registered in the name of the first respondent the applicant has decided to ignore this factor. It needed an explanation as the applicant does not state that he purchased the vehicle from the first respondent.

The applicant has omitted to cite the persons he purchased the vehicle from as parties to this action. He has, instead, cited the first respondent and yet he never at any stage dealt with him. He seeks that the Agreement of Sale of 29 August 2009 be declared valid but has failed to cite the alleged parties to the sale in this application.

The agreement is on the letter head of Leo Chris Auto but the seller in the agreement is described as G R Chikoto. Chikoto is not the owner nor has he been cited. In citing the first respondent he is therefore non-suited as is clearly shown in his affidavit. He never dealt with the first respondent as regards the sale of the vehicle.

In the heads of argument filed on behalf of the applicant it is alleged, for the first time, that the second respondent was acting as an agent for the first respondent.

It is argued, in the heads of argument, that he entered into the agreement 'on the basis of agency'.

I have not been educated on the precise meaning of that cryptic phrase. I assume, however, that it is meant to convey that the second respondent was the first respondent's agent in the sale of the vehicle. If that was the basis of the claim by the applicant it should have been pleaded from the outset and been averred in the founding affidavit.

It is trite that an applicant must make his case in the founding affidavit and not in subsequent pleadings. This averment is not even in an affidavit but in heads of argument.

Whether or not the second respondent acted as an agent of the first respondent would be a factual issue which can then be subjected to scrutiny in accordance with established principles.

In the instant case no factual basis was laid to allege that there was in existence an agency relationship between the first and second respondents. Thus, the contract that the applicant argues that he entered into with the first respondent through the agency of the second respondent has not been established. If the applicant's case had been that he had entered into an agreement with the first respondent, my view is that in the draft order he would have sought a declaration as to the validity and enforceability of the alleged agreement. Instead, in the draft order he seeks an order declaring him to be the owner of the vehicle.

The allegations of agency contained in the heads of argument appear to be an after thought when it must have dawned on the applicant and his legal practitioners that the only basis upon which an agreement could be alleged against the first respondent was through agency.

I am unable to find that there ever was a contract between the applicant and the first respondent.

I turn next to the payment of the purchase price.

According to the applicant, the price had been agreed at $112,000= which had to be paid through a Real Time Gross Settlement System. The applicant averred that he had paid the money on 29 August 2008 and has attached what he states is proof of such payment.

An examination of the document in question shows that it is not an extract from a Bank.

It appears to be a computer generated entry from a company called Laryscope Healt. It bears a date at the top of either 6 November 2008 or 11 June 2008. In addition, the payment allegedly made to the second respondent was, according to the corresponding entry being referred to by the applicant, paid to Broadstars. This is not payment to the second respondent, and, if it was, the applicant has not seen fit to explain how the payment effected to a different entity meant that it was payment to the second respondent. The reality, therefore, is that even if the applicant was given the benefit of doubt with regards the Agreement of Sale, he has failed to prove that he paid the purchase price in respect of the alleged sale.

Without alleging, and proving, an Agreement of Sale between himself and the first respondent the applicant cannot have any basis for claiming the relief that he seeks from this court. The first respondent cannot be made to surrender the registration book, number plates and spare keys to the vehicle unless the applicant has averred, and proved, a contract between himself and the first respondent in terms of which the latter would have those obligations. No contract has been alleged, or proved, on the papers before me, and, in my view, the applicant is non suited.

In the result I find that there is no merit in the application and I therefore dismiss it with costs.

The applicant entered in a Memorandum of Agreement Sale on 27 January 2002. The Seller, who was the contractor, purchased, from the Municipality of Bulawayo, Stand Number 13232 Romney Park, which was also known as 21 Andrea Drive, Romney Park, Bulawayo, measuring 704 square metres.

In terms of the Agreement, the Seller was required, by the Municipality of Bulawayo, to construct, on the Stand, a residential property to a value stipulated by the Municipality of Bulawayo, and, further, the Seller was expected to sell the residential property built thereon to a person who is a resident of Bulawayo and registered with the City Council as a person looking for accommodation.

The Seller (who is the first respondent) ended up allocating the property to Ndumiso Dube (the applicant).

The first respondent..., had purchased the said Stand 13232 from City of Bulawayo on 19 June 1990 but the agreement relating to that Stand was cancelled by the City of Bulawayo on 25 July 2004. Thereafter, the City of Bulawayo created a new, and bigger, Stand which it numbered 16764.

An Agreement of Sale relating to Stand 16764 was entered into between the first respondent and City of Bulawayo on 28 July 2004. According to the Agreement, the new Stand was sold for $652,000=. The new Agreement has terms restricting the sale of the property to third parties. Clause 17 recites thus –

“Save with the prior written consent of the Municipality, the purchaser shall not at any time during the currency of the agreement nor during the period of 5 years immediately following the transfer of the property into the purchaser's name, lease, part with possession, sell, donate, transfer, or otherwise dispose, of the said piece of land or any portion thereof.”

The Agreement forbids the cession, assignment, or transfer of rights and/or obligations, to any other person by the purchaser without the prior consent of the Municipality of Bulawayo.

The question to be answered is whether or not the Agreement between the first respondent and the applicant was still extant and enforceable in the light of the finding that the Agreement relating to Stand 13232 was cancelled by the Municipality of Bulawayo and a new one relating to Stand 16764 entered into.

The applicant contended that the termination of that Agreement did not affect matters between him and the first respondent, and sought to have the first respondent bound by it.

He, however, adduced no evidence to show that the parties entered into another agreement relating to Stand 16764.