The plaintiff issued summons against the Executor Dative in the Estate of the late I.V. Rukatya of Chiredzi claiming an order that the cancellation of the Agreement of Sale by the defendant be set aside; that the plaintiff pays to the defendant the sum of Z$400 million (old value) within seven days; that the defendant takes all the necessary steps to pass transfer of Plot No.339 Mkwasine Settlement Holdings, Ndanga District to the plaintiff within 21 days of this Order failing which the Deputy Sheriff be authorised to sign all papers necessary to pass such transfer to the plaintiff.

The plaintiff issued out summons against the defendant out of this court on 13 march 2008 claiming delivery of twenty thousand (20,000) litres of diesel.

The defendants rigorously defended this claim.

On 13 of June 2008, the plaintiff withdrew action against the second defendant. Consequently, the action that remained before the court was against the first defendant.

At the conclusion of the hearing, I issued out an order out of this court framed as follows:-

“It is ordered

1. That judgment be and is hereby granted in favour of the plaintiff.

2. That the first defendant be and is hereby ordered to deliver to the plaintiff twenty thousand (20,000) litres of diesel within 14 days from the date of this order.

3. That the first defendant pays costs of suit.”

I indicated, at the time, that my reasons for judgement would follow. Here they are….,.

THE EVIDENCE

In support of its case, the plaintiff called the evidence of Dominic Musengi, the plaintiff's erstwhile Managing Director while the first defendant led evidence from its Chief Executive Officer and Chairman, Alex Kudakwashe Mahuni, Stephen Gahadzikwa and Cephas Macdonald Muswere.

The applicant is a female adult resident in Marondera. The first respondent is a surviving spouse of the late Timothy Musariri who died on 25 September 1994. The first respondent was married to the late Timothy Musariri in terms of the African Marriages Act (now Customary Marriages Act [Chapter 5:07]). The late Timothy Musariri was the registered holder of interests and rights in the matrimonial home being House No. 7 Kasipiti Way, Rujeko, Marondera.

The second respondent is the son of the late Timothy Musariri and the first respondent. At the time of Timothy Musariri's death he was a minor. The third respondent is a duly constituted Urban Council.

On 4 August 2001, the applicant and the first respondent entered into an Agreement of Sale of House Number 7 Kasipiti Way, Rujeko, Marondera. Upon payment of the purchase price the applicant took occupation. It is not disputed that full payment was made to the first respondent and that at some stage the first respondent undertook to effect cession. No such cession has taken place. The applicant's efforts to have the first respondent sign the necessary papers to effect cession has met with resistance. As a result of the resistance, in September 2005, the applicant filed a court application at Marondera Magistrates Court seeking an order compelling the respondents to sign all necessary documents to enable cession of House Number 7 Kasipiti Way, Rujeko, Marondera.

The respondents opposed the application.

The application was not successful as the presiding magistrate ruled that he had no jurisdiction to deal with the matter because the value of the property exceeded his monetary jurisdiction. That judgment was delivered on 12 March 2007.

The applicant, thereafter, approached this court for relief by way of a court application. This application was filed on 29 June 2007.

In the application, the applicant seeks an order that the Deputy Sheriff , Marondera be authorized and directed to attend at the offices of the third respondent to effect cession from the respondents to the applicant in respect of the property in question.

The first and second respondents opposed the application.

The second issue is whether or not the defendant should be ordered to complete the repairs or to pay the plaintiff the costs of the repairs. The plaintiff's claim was for an order compelling the defendant to complete the repairs…,. Alternatively, repair costs…, in the sum of $2,000,000,000= or as valued by a valuer to be agreed upon by both parties.

The question of specific performance was not argued at length by counsel for both parties. Equally, during the trial, not much was said about the practicality of such an order. What was clear from the evidence was that the defendant is still in the panel beating business and so there was no case of impossibility or performance. It was not disputed that the defendant was still able to repair the motor vehicle to the appropriate standard.

The factors to consider in deciding whether to order specific performance or not have been dealt with in a number of cases. In Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H) ROBINSON J had occasion to deal with factors to be considered in cases where specific performance is sought. The learned judge quoted in extensor from the judgment of HEFER JA in Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A)…, thus-

“In Haynes v King Williams' Town Municipality (supra) at 378 DE VILLIERS AJA dealt with the matter in the following terms:

'It is correct, as Mr. Miller states, that in our law a plaintiff has the right of election whether to hold a defendant to his contract and claim performance of him of precisely what he had bound himself to do or to claim damages for the breach…, This right of choice a defendant does not enjoy; he cannot claim to be allowed to pay damages instead of having an order for specific performance entered against him....,.'.

It is, however, equally settled with us that although the court will, as far as possible, give effect to a plaintiff's choice to claim specific performance, it has a discretion, in a fitting case, to refuse to decree specific performance and leave the plaintiff to claim and prove his id quod interest. The 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.”

Further on, the judge went on to say that-

“This does not mean that the discretion is, in all respects, completely unfettered. It remains, after all, a judicial discretion, and, from its very nature, arises 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 be the case, eg. if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

Other circumstances where the court may not grant an order for specific performance include when performance has become impossible. Where performance is possible there are other factors that may still influence the court not to grant an order for specific performance. In Zvoma v Amalgamated Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60 (H) ADAM J quoted with approval the works of DE VILLERS AJA in Haynes v King Williamstown Municipality…, wherein the learned judge said that-

“As examples of the grounds on which the courts have exercised their discretion in refusing specific performance, although performance was not impossible, may be mentioned:

(a) Where damages would adequately compensate the plaintiff;

(b) Where it would be difficult for the court to enforce its decree;

(c) Where the thing claimed can readily be bought anywhere;

(d) Where specific performance entails the rendering of services of a personal nature; …,.

(e) Where it would operate unreasonably hardly on the defendant, on where the agreement giving rise to the claim is unreasonable, or where the decree would produce injustice or would be inequitable under all the circumstances…,.”

Where specific performance is claimed, the onus is upon the defendant to establish the facts and circumstances which the court considers in the exercise of its discretion to refuse specific performance.

In casu, the defendant did not allude to impossibility of performance nor to any undue hardship it may suffer if specific performance were ordered. The defendant did not even indicate how much it would cost to complete the repair work as demanded by the plaintiff. Clearly in my view, the defendant should be ordered to complete the repairs in terms of their agreement.

In terms of their agreement, the parties had agreed on a technical inspection by the Automobile Association of Zimbabwe and the issuance of a certificate of fitness by the Automobile Association of Zimbabwe. The Automobile Association of Zimbabwe was coming in as an independent or neutral assessor to confirm the quality of work done by the defendant. That should still be the case.

Accordingly, judgment is hereby entered against the defendant, and for the plaintiff as follows-

1. The defendant is hereby ordered to complete repairs to the plaintiff's Mazda 626 motor vehicle as per paragraph 11 of the plaintiff's declaration within thirty (30) days of the date of this order to the plaintiff's satisfaction. Upon completion of the repairs, the defendant is ordered to take the motor vehicle for a technical inspection by the Automobile Association of Zimbabwe and a report obtained there be served on the plaintiff.

2. In the event that the defendant fails or neglects to comply with clause (1) above, the defendant is ordered to pay repair costs to the plaintiff in the sum of USD5,264= with interest at the prescribed rate from the date of this order to the date of full payment.

The applicant is a registered owner of Stand No.671 Borrowdale Township of Subdivision 4 of Lot D of Borrowdale Estate. The applicant entered into an Agreement of Sale of the property with the first and second respondents, who are husband and wife, on 30 May 2001. The applicant later purported to cancel that Agreement alleging that the purchasers had not paid the purchase price in time.

After the purported cancellation, the applicant entered into another Agreement of Sale with the fourth respondent, for the same property, on 25 July 2001. The fourth respondent made payments in cash and by cheques.

On or about 24 August 2001, the first and second respondents filed an urgent chamber application under case no. HC8068/01 for an order restraining the applicant from transferring the property to anyone. A provisional order was granted on 28 August 2001. That provisional order was subsequently confirmed on 20 February 2002 in default of the applicant. Upon learning of the confirmation, the applicant successfully applied for the rescission of the default judgment under case no. HC1924/02. The applicant subsequently filed his opposing papers on 6 November 2002. In the interim, the fourth respondent, who had not been part to the initial proceedings in HC8068/01, successfully applied for joinder under case no. HC10464/02. He subsequently filed his opposing papers on 26 November 2002.

The first and second respondents did not take their case in HC8068/01 any further. They did not file answering affidavits and also did not file heads of arguments.

The fourth respondent filed his heads of arguments and proceeded to set down the matter for hearing in July 2006. The applicant did not file his heads of argument. He argued that he was not served with the fourth respondent's heads of argument. He had been waiting for the first and second respondents, as the applicants in the main case, to file their answering affidavits and heads of arguments. Upon realizing that the two were not complying with the Rules he unsuccessfully applied for the dismissal of their application for want of prosecution under case no. HC2619/06.

By virtue of the delay in filing his heads of argument after the fourth respondent had filed his heads the applicant was barred. It is in this respect that at the start of the hearing counsel present addressed the court on the issue.

The applicant's explanation for not filing heads of argument in time was plausible and as there had been no proof that the fourth respondent's heads of argument had been served on the applicant as the first respondent in the main case. On the 15 October 2009, I ruled in favor of the applicant.

As regards the first and second respondents' position, both counsel for the applicant and the fourth respondent were agreed that the first and second respondents remained barred as they had not even seen it fit to make a formal application for upliftment of the bar. The result was that the provisional order they had obtained in HC8068/01 was discharged with costs.

The issue for determination remained as between the applicant and the fourth respondent. This judgment is essentially on the counter- application filed by the fourth respondent against the applicant (first respondent in the main case HC8068/01).

In the counter-claim, the fourth respondent sought an order compelling the applicant to transfer the property in question to him.

The applicant opposed the counter- application principally on the basis that the fourth respondent did not discharge his contractual obligations in full. He contended that a payment in the form of a cheque made to Intermarket Building Society (formerly Founders Building Society) in the sum of $2,697,236=53 was dishonored….,.

The applicant's case was to the effect that the fourth respondent issued him cheques payable to his creditors. The cheque payments were meant to exhaust the applicant's debt. He received the balance in cash from the fourth respondent. The cheques issued by the fourth respondent were dishonored when presented for payment by the applicant's creditors resulting in one of the creditors, Founders Building Society, foreclosing on the property. When the property was advertised for sale by the Deputy Sheriff he managed to pay off the debt thus saving the property from being sold by auction. The fourth respondent did not replace the dishonored cheques. To confirm the above, he tendered a bank statement in the name of his company, Fairview Construction Pvt. Ltd., as annexure B. 

Though the applicant, in his papers, referred to 'cheques' as having been dishonored by his creditors, he seemed to, in fact, be referring to only one cheque in the sum of $2,697,236=53 which was made in favor of Founders Building Society. His papers did not reveal any other cheque that was dishonored.

The fourth respondent contended that he paid the purchase price in full. He denied that the cheque in question was dishonored. He contended that the cheque he issued, in the sum of $2,697,236=53 was, in fact, met. To buttress his contention, the fourth respondent indicated that a careful examination of the applicant's bank statement, submitted as annexure 'B' to the applicant's opposing affidavit, shows that the sum in question appears five (5) times in the applicant's bank statement. The sum appears as payment (credit) into Fairview Construction (Pvt) Ltd's account three times. It also appears as a deduction (debit) into the said account two (2) times. The net effect, he contended, is that the sum of $2,697,236=53 from him was credited into Fairview Construction (Pvt) Ltd's bank account. The fourth respondent attached his own bank statement showing that cheque No.59, in the sum of $2,697,236=53, was presented to his bankers on 15 December 2001 and was duly met as there were sufficient funds in the account.

A careful analysis of the entries in the two parties' bank statements tends to favor the fourth respondent's version. The applicant's bank statement, in the name Fairview Construction (Pvt) Ltd, shows the following entries as from 14 November 2001 to 31 December 2001:-

Type                      Date       Stat-ref                      txn Value                               Actual balance                                                                                                                                                        

                       14 November 2001                                                         -5,086,922.06

Cheque deposit 29/11/2001 N/A                           2,697,236.53               -2,389,685.53

Int. debit            30/11/2001                                    -150,411.10              -2,540,096.63

Cheque deposit 06/12/2001 N/A                         2, 697,236. 53                    157,139.90

Function chg 10/12/201 returned cheque                    -1,000.00                      156,139.90

Chq Dishnr    10/12/2001 Deposited cheque dis  -2,697,236.53                  -2,541,096.63

Cheque deposit 13/12/2001    N/A                         2,697,236.53                      156,139.90

Function chg 14/12/2001 returned cheque                  -1,000.00                      155,139.90

Chq Dishnr 14/12/2001 Deposited cheque Dis     -2,697,236.53                  -2,542,096.63

Flat Charg 31/12/2001 Annual mortgage serv                -500.00                   -2,542,596.63

It is clear from the above that there were 3 credits and 2 debits involving a cheque for the sum of $2,697,236=53….,.

The fourth respondent's bank account, on the other hand, shows only one entry wherein the sum of $2,697,236=53 was debited in the form of cheque no.59. This was on the 15^th December with the value date of 14 December 2001. There are no entries showing that that cheque was dishonored. That statement was attached as annexure 'A' to the fourth respondent's answering affidavit.

Apart from this cheque, there is no other cheque that the applicant pointed out as having been dishonored. Since from the documents tendered, including the applicant's own bank statement, a credit payment remained in favor of the applicant it cannot be said the fourth respondent did not make that payment. The applicant could not tender the 'referred to drawer' cheque or anything to contradict the entry in the fourth respondent's bank account showing that the cheque in question was, in fact, met on presentation - albeit after some query by the applicant's bankers.

The applicant contended that he cancelled the Agreement of Sale in 2003 due to the perceived breach and the fourth respondent did nothing about it. Unfortunately, his papers did not confirm this. The letter by his legal practitioners, dated 22 October 2003, purporting to cancel the Agreement of Sale was swiftly responded to by the fourth respondent's legal practitioners in their letter of the 28^th October 2003 in which the respondent denied being in breach and denied that any of his cheques was referred to drawer. That letter was followed by another letter dated 5 November 2003 in which the respondent's legal practitioners pointed out that the respondent had furnished them with clear proof that his cheque was met upon presentation to the bank. These letters by the respondent's legal practitioners were apparently not rebutted by the applicant and neither did he address this aspect in his affidavit and submissions in court.

I am therefore of the view that the cheque for $2,697,236=53 was, in fact, honored….,.

On his part, the fourth respondent argued that the amount he was to pay to Founders Building Society was not going to extinguish the applicant's indebtedness which he understood to have been around $5,701,236=53. The cheque that the applicant said was dishonored was not going to liquidate that debt. Instead, the parties had agreed that the respondent would obtain a mortgage bond from Beverly Building Society to pay off the balance. Beverly Building Society duly granted the respondent a legal undertaking to pay the balance upon transfer. When the applicant was not forthcoming with the transfer the fourth respondent said he went ahead and paid part of the balance of the purchase price to Mr. Mwayera himself in addition to other creditors. The applicant received the payments and up to date has not denied receiving these payments. To confirm this he tabulated the payments he made vis-à-vis the purchase price as follows:-

Purchase price…………………………………….. ……………………,. $6,300,000=

Payment to Founders……………………,. $2,697,236=53

Payment to ZIMBANK……………………,.$1, 034,632=18

Payment to Chibanguza Group of

Hotels (for caveat removal) …………….,. $1,500,000=

Payment to Mwayera…………………(1)   $   850,000=

                                                            (2)  $   500,000=

                                                            (3)  $   450,000=

Differential…………………………………………………………………,. $   731,958=71

                                                                  $7,031,958=71                    $7,031,958=71

The three payments of $850,000=, $500,000= and $450,000= were made directly to the applicant as part of the purchase price and the substantial part was to go towards the unfinished works on the house of which the applicant had said he would handle the completion of the house himself.

The applicant's contention that the respondent did not fulfill his obligation is also defeated by his own affidavit which he deposed to in opposition to the first and second respondents application in HC8068/01. That affidavit was deposed to on 6 November 2002 - almost a year after the fourth respondent had made the cheque payment in question and had not been advised that the cheque had been dishonored. To quote in extensor from paragraph 6.3 of his opposing affidavit -

“6.3 I proceeded to sell the property to a second purchaser, namely, Gilbert Jonga, with the knowledge and clear understanding that the sale to the Applicants had been cancelled and was invalid. The sale of the property to Gilbert Jonga still stands and my conveyancers are attending to the transfer. Furthermore, the second purchaser has since paid a total sum of $6,735,868=69 in and under his sale agreement with me. I enclose as Annexure 'B' being a copy of my conveyancers' letter to the second purchaser. The latter's sale agreement is attached as Annexures 'C1' to 'C6'. In addition, Gilbert Jonga paid a sum of $1,800,000= directly to me so that I could finish off building the property.”

And in paragraph 10 thereof that -

“The second purchaser, as per Annexure 'B', has paid a total sum of$6,735,868=69 to Founders Building Society and Zimbabwe Banking Corporation Limited being arrears outstanding on the two mortgages registered over the property. A transfer to the Applicants will mean that the two financial institutions mentioned will move in to sell the property as Gilbert Jonga guarantees to them will fall away. I point out that the payments made to them were conditional upon transfer being registered in favour of Gilbert Jonga, the second purchaser, who retains a right to claim a refund if transfer is not made to him.”

Further on that:-

“The second purchaser is an innocent party who would be unduly prejudiced if specific performance were to be ordered. Most importantly, if the second purchaser's guarantees and conditional offers of payment to my creditors were to fall away, the property would most certainly be sold in execution by my creditors who retain the right to do so until they are fully paid.”

In paragraph 14 thereof, he went on to confirm the fact that the $2,697,236=53 cheque was not to extinguish the debt but the fourth respondent was to obtain a bond to pay the balance of the debt when he said that:-

“I attach as Annexure “G” a letter from Byron Venturas and Partners to Honey and Blanckenberg which confirms that the second purchaser paid a total sum of $2,697,236=53 and provided a guarantee for the sum of $3,004,000= to meet Founders Building Society's cancellation requirements. I refer to the last paragraph of that letter from which it will appear clearly that my conveyancers specifically requested Founders Building Society to hold the money in trust pending cancellation of the bond and to enable the second purchaser to apply for a refund should the property not be registered in his name. I also attach as Annexures “H” and “I” letters dated 6 December 2001 and 17 October 2002 from Byron Venturas and Partners to Gill, Godlonton and Gerrans the first of which enclosed a cheque of $1,034,632=16 paid by the second purchaser conditionally to Zimbabwe Banking Corporation Limited to meet their cancellation requirements. The second letter confirms that the cancellation costs were paid by Gilbert Jonga on my behalf. This letter points out that the cancellation of the bond can only be effected upon transfer to Gilbert Jonga…,.”

The import of the above is that as of the date of the affidavit the applicant confirmed that the fourth respondent's guarantees and conditional offer to pay were dependent on the transfer taking place - only then will his creditors be paid in full. When transfer did not take place, despite giving instructions to his conveyancers, the applicant seemed to have opted to use that as an excuse to resile from the Agreement. Unfortunately for him, the fourth respondent made payments which he acknowledged and whose total sum exceeded the purchase price. The applicant also acknowledged that part of the money paid directly to him was for him to continue with the construction of the property.

The applicant, having acknowledged receipt of the sums in question, can surely not be allowed to resile from the Agreement of Sale at his own whim.

I am inclined to conclude that the fourth respondent fulfilled his obligation and is thus entitled to obtain transfer of the property in question. Accordingly, it is hereby ordered that:-

1. The counter application be and is hereby granted.

2. The applicant, Mr. Fanuel Mwayera, be and is hereby directed to sign all documents necessary to effect transfer of a certain piece of immovable property, being subdivision 4 of Lot D of Stand 671 Borrowdale Township, Borrowdale, measuring 5427 square metres held under Deed of Transfer Number 1814/96 to the fourth respondent, Gilbert Jonga, within 5 days of the date of the service of this order on him.

3. Should Fanuel Mwayera fail to comply with the terms of paragraph 2 above, the Deputy Sheriff be and is hereby authorized, directed, and empowered to sign all the necessary transfer documents in his stead.

The plaintiff issued summons against the defendants claiming the following:

(a) The setting aside of the agreement of sale between the first defendant and the second defendant;

(b) An order directing the third defendant to transfer the rights, title and interest in Flat 196 Block 40 Odzi Flats into the plaintiff's name; and

(c) Costs of suit against the first and second defendants jointly and severally, the one paying the other to be absolved.

The basis of the claim is briefly this:

In about October, 2005 the second defendant offered to sell the Flat in question to the plaintiff. After being shown the Agreement of Sale of the Flat between the second defendant and the third defendant and proof that the second defendant had fully paid for the flat, the plaintiff accepted the offer. On 2 November, 2005 the parties entered into an Agreement of Sale and on 3 November, 2005 the full purchase price was paid and the second defendant acknowledged receipt thereof. Later, the second defendant advertised the same flat for sale but was thwarted by the plaintiff's 2^nd wife who intervened via court actions. The second defendant later misrepresented to the plaintiff's 1^st wife that he was a joint owner of the flat and was willing to sell it and share the proceeds equally with the 1^st wife. At the time, the plaintiff was in remand prison. The second defendant purportedly sold the flat to the first defendant, fraudulently misrepresenting that the plaintiff had signed the Sale Agreement yet the plaintiff was in prison at the time.

All the documents used to facilitate that sale were forged and thus there was no sale between the first defendant and the plaintiff.

The first and second defendants denied the plaintiff's averments challenging him to prove them. The first defendant counter claimed for an order ejecting the plaintiff and all those claiming a right of occupation through him from Flat 196 Block 40 Odzi Flats, payment of $400= per month from 1 February, 2009 to date of eviction for unlawful occupation of her flat and costs of suit at the prevailing Law Society Tariff.

The plaintiff adduced evidence from two witnesses. Daniel Chawira Madziva, a young brother to the late Wilson Madziva gave the following evidence:

He knows the first and second defendants as people who sold each other a flat in Eastlea. As the plaintiff was in prison at the time he signed the documents relating to the sale on behalf of the plaintiff. Prior to that, in about 2000, the second defendant had been offered the flat by the third defendant for purchase but the second defendant had not enough money to buy it. The second defendant had then asked the plaintiff for money to pay off the third defendant and the two would then have a 50-50 “shareholding” in the flat. This was done and the plaintiff put his second wife, Evelyn Mashura, into the flat to share with the second defendant from 2002 to 2007. The plaintiff, in 2007, told him that he had bought out the second defendant and documents pertaining thereto were with his 3^rd wife Magret Mtetwa.

Regarding the sale between the first and second defendants, the second defendant came to him at his place of employ, viz Vercham Real Estate, saying he was retiring and wanted to sell the flat and give him the plaintiff's 50% share. He advised the second defendant to go and see the plaintiff at prison. The second defendant later came back saying he had seen the plaintiff who had given his green light to the sale and he (Daniel Chawira Madziva) should sign the Sale Agreement. He called Mary Zivurawa, the plaintiff's 1^st wife, who was not aware that the plaintiff had such a flat, and told her that what the second defendant said what was to be done. She said they should sell the flat. He signed documents pertaining to the sale of the flat on behalf of the plaintiff. He did not know then that the plaintiff had not given his nod to have the flat sold. He also signed an affidavit on behalf of the plaintiff because the second defendant had told him that the plaintiff had said he should sign all the documents on his behalf.

He is not aware whether the plaintiff's 1^st wife was paid half the purchase price because he was not present when she received it. When the plaintiff was released from remand prison on bail and learnt of the sale of the flat a dispute ensued.

The plaintiff's other witness was Mary Zivurawa.

She told the court that the plaintiff was her husband. She came to know the second defendant in February 2007 when he came to her house. At the time, her husband was in prison. The second defendant introduced himself to her saying he had been directed to her by Daniel Madziva – the first witness. The second defendant told her that the plaintiff had a house in Eastlea. She was unaware of the fact. He suggested that they should meet the next day to discuss issues pertaining to the plaintiff's arrest. Next day, the second defendant, Daniel Chawira Madziva and herself met. The second defendant indicated that he had an idea that would assist the plaintiff to be released from remand prison. He said they could sell the house and he would give her half of the price while he took the other half. He explained that the plaintiff had given him some money used to buy the house with the two agreeing to share proceeds 50-50 on selling it. He said he had seen the plaintiff at remand prison who had given the go ahead to sell the house.

Regarding sale of the house to the first defendant, she signed the Agreement at the second defendant's behest but after signing it she was not given anything. She had not been given the Z$80 million when she signed the document that alleges she received the amount. She signed it expecting the second defendant to call her later for the money but he never did.

She was aware of the second defendant's intention to sell the flat in January and an interdict was sought by the plaintiff's 2^nd wife who obtained a provisional order. The plaintiff later withdrew that matter following his 2^nd wife's withdrawal of the same in November 2009.

That was the plaintiff's case.

The defendants led evidence from three witnesses. The first defendant, Caroline Kunaka, told the court this version of events:

She resides at 8 Pineliegh Close in Hatfield, Harare and is self- employed. She had a house in Ruwa which she sold intending to purchase a bigger residence to reside at with her children. At the time, she was staying in Eastlea. When she saw an advertisement in the newspaper for sale of the flat in question by Vercham Real Estate she went to the estate agents and saw Daniel Chidziva the plaintiff's 1^st witness – who was the sales agent.

She was in the company of Mr Chimbare of Fremus Executors. She was told to wait for the property owners who arrived shortly thereafter in the person of the second defendant and his legal practitioner. She informed the parties present that she wanted to first verify with the Ministry of Housing who the owner of the flat was. She went to the Ministry offices where it was confirmed that the second defendant was the owner of the flat and that the property was unencumbered. Back at Vercham Real Estate, Daniel Chawira Madziva said all was in order. The second defendant said he had a document that needed clarification for he had borrowed some money from the plaintiff. The plaintiff was then in prison. Daniel Chawira Madziva said there was no big deal as he was the plaintiff's young brother, was the one who had put the advertisement in the paper and that he would visit the plaintiff at prison that afternoon and would take the document there with him so that the plaintiff would sign it. She asked who the payee would be and Daniel Chawira Madziva said the plaintiff's wife who then arrived. This was the second witness for the plaintiff Mary Zivurawa. Daniel Chawira Madziva said he would phone her the next day after solving whatever needed to be solved. The Agreement of Sale, exhibit 3, was reduced to writing by Vercham Real Estate. The following morning, Daniel Chawira Madziva phoned her to come as everything was now in order. She went and found also the second defendant, Mr Chimbare and Mary Zivurawa and they went to Fremus Executors offices where Daniel Chawira Madziva produced the document which he said the plaintiff had signed. After all had been done, she produced her suit case containing Z$160 million in two batches of Z$80 million each. The second defendant took his share of Z$80 million and Mary Zivurawa also took hers whilst all were watching. They were then given the Agreement of Sale…, and Mary Zivurawa signed her acknowledgement of receipt…., and the second defendant signed his…..,. Daniel Chawira Madziva and Mary Zivurawa then put Mary Zivurawa's share in a small bag.

She is aware of proceedings in case number 1471/07 instituted against her and 3 others by Evelyn Mashura and the plaintiff wherein they wanted an order declaring them to have the first option to buy the flat in question. The two later withdrew the application.

In her counter claim she prayed for the eviction of all those claiming occupation of the flat through the plaintiff because the flat is rightfully hers, having purchased it for cash. Despite buying the flat, she has never set foot in it. She is also claiming holding over damages of $400= per month. She was surprised by Mary Zivurawa's sudden about-turn denying receiving the plaintiff's share of the purchase price yet at the time she was grateful for the money saying it would pay the plaintiff's bail and school fees for her children.

Bobby Samasuwo Mangodza told the court that he came to know Wilson Madziva when he gave the latter, as estate agent, the mandate to sell his Stand in Hillside. He came to know the first defendant when he sold her the flat in contention. He denied ever concluding an Agreement of Sale of the flat with the plaintiff let alone receiving any purchase price for it from the plaintiff.

He joined the Local Government Pay for your house scheme on 21 November 1994 and was paying monthly subscription of $650= up to 23 February 2002 when he was informed that he would get his house but more money was required. The required balance was $224,000= and this is the amount that he borrowed from the plaintiff. After paying off that balance, he was given the flat in question as his. He had agreed with the plaintiff that the $224,000= was a loan to be paid back. The plaintiff was in the business of moneylending. After two weeks he went to repay the loan to the plaintiff. He had got the money from National Railways of Zimbabwe as the second portion of his pension. It took him long, until November, to see the plaintiff as he would always find only Daniel Chawira Madziva in the office. Daniel Chawira Madziva had a document stating that the plaintiff would get 50% share if he sold the flat. Initially he refused to sign it as it was not what they had agreed on when he borrowed the money. He only signed that document in November when he saw the plaintiff.

Thereafter, he commenced residing at the flat alone. In April 2004, the plaintiff brought Evelyn Mashura saying she was his 2^nd wife and asked for temporary accommodation for her. Her stay, however, turned out not to be temporary. Feeling uncomfortable staying with her, he decided to sell the flat. He visited the plaintiff, who was in prison, and advised him of his intention. The plaintiff needed legal fees and agreed with the idea to sell and that his 50% share be paid to his legal practitioners, Musekiwa and Associates. Evelyn Mashura, however, was averse to the sale and challenged it. The plaintiff then directed him to liase with Daniel Chawira Madziva at Vercham Real Estate to look for a buyer. He also directed that his 50% share should no longer be paid to Musekiwa and Associates but to his first wife. He went to Vercham Real Estate and told Daniel Chawira Madziva about the issue. Daniel Chawira Madziva said he needed to verify it with the plaintiff first. He asked Daniel Chawira Madziva for the plaintiff's first wife's address and he was given and went and saw her. By arrangement, the plaintiff's first wife, Daniel Chawira Madziva, himself and his legal practitioner, Mr Mushambadope, met at Chicken Inn at Construction House where Daniel Chawira Madziva advised that he had verified with the plaintiff that the flat be sold. Mr Mushambadope drafted a Memorandum of Understanding indicating that the plaintiff had agreed that the flat be sold. This document was taken to the plaintiff for signature by Mr Mushambadope. Subsequently, he entered into a Sale Agreement with the first defendant for the flat. The purchase price of Z$160 million was paid and the plaintiff's first wife signed an acknowledgement of receipt and got the Z$80 million representing the plaintiff's share. For her to allege that she did not receive the money is a blue lie. He denied forging any document to facilitate the sale of the flat to the first defendant….,.

Mr Weston Munashe Makwara did not believe that the intervention of the Reserve Bank of Zimbabwe rendered the defendant incapable of meeting or paying its debts. It remained an importer and could rely on other resources. The defendant remained obligated to pay the plaintiff the balance still outstanding on the loan. The calculations of the balance were in terms of the facility letter (Agreement).

Mr Neil James Bruce said the statutory surrenders required by the Reserve Bank of Zimbabwe had affected the plaintiff's ability to service its loans.

Mr Neil James Bruce said although the surrender policy of the Reserve Bank of Zimbabwe had affected the defendant's ability to pay, it (the defendant) was now in a position to pay although under extreme difficulty.

Counsel for the defendant submitted that the Reserve Bank of Zimbabwe's statutory surrender policy of a proportion of foreign exchange generated from exports affected the defendant's ability to pay and as such the defendant was entitled to resile from the contract.

4. The Agreement became unenforceable due to impossibility after the Reserve Bank of Zimbabwe intervened in the market and compelled defendant to surrender export proceeds

The above factor, in my view, fell away when Mr Neil James Bruce admitted that, notwithstanding the Reserve Bank of Zimbabwe's intervention, the defendant remained in business. Admittedly its ability to service its loans was affected. He said “it was extremely difficult to pay but not impossible.” The burden to prove impossibility lay with the defendant. There was, therefore, in my view, no supervening impossibility. The difficulties experienced by the defendant fail to meet the requirements of a supervening impossibility.

I believe that in dealing with the main issues on which the defendant anchored its rejection of the plaintiff's claim I have also covered all the issues identified for determination at the pre-trial conference.

All in all, the plaintiff has an unassailable and enforceable claim against the defendant.

In its summons, the plaintiff prays for the delivery of the vehicles in question or, in the alternative, for payment of the value of the vehicles as at the time of judgment.

In its declaration, the plaintiff alleged that the first defendant had breached the terms of the Agreement and that despite being paid in full for the vehicles the first defendant had failed to deliver any of the vehicles, and, further, that despite numerous requests by the plaintiff, the first defendant had failed and or neglected to deliver the said vehicles.

In response to this averment, the defendants had denied that they had failed, neglected or refused to deliver and that the plaintiff was aware that the defendants had applied to the Reserve Bank for the allocation of foreign currency. It was further averred by the defendants that the allocation was approved on 9 February 2007 but the bank did not have the required foreign currency to avail to the defendants to fulfill the terms of the contract.

At the pretrial conference three issues were extracted for trial. I will therefore dispose of the dispute on the basis of those issues….,.

I turn now to the substance of the relief being prayed for.

The plaintiff has claimed for specific performance, or, in the alternative, payment of the replacement cost or value of the vehicle.

It is trite that our law entitles a plaintiff to claim specific performance and it is within the discretion of the court to decide whether or not the plaintiff is, on the facts of the matter before it, entitled to an order for specific performance. It is generally accepted that the court's discretion must be exercised judicially upon a consideration of all the relevant facts.

Legally, a Seller has the obligation to deliver the thing sold to the Purchaser in a deliverable condition. That they are obligated to do this has never been denied by the defendants. It emerged in evidence that the vehicles which the parties had contracted for had gone out of production. It was not in dispute that it was possible for the manufacturer to supply the model but that it would be at a higher cost than normal. In view of this development the defendants contended that they were unable to comply with an order for specific performance due to impossibility.

Ordinarily, the onus to establish impossibility of performance lies on the defendant. See Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398. The defendant must place facts before the court which may lead the court to find that it is impossible for the defendant to perform its obligations in terms of the contract….,.

It turns out, however, that the plaintiff has established, through independent means, that the vehicle is no longer in production and I have to accept the evidence from the defendants that the model the parties had contracted for is no longer in production. It is therefore quite obvious that the remedy of specific performance is no longer available for the plaintiff the only possible remedy now being an award of damages.

It is common cause that the applicant made payment to the second respondent through a cheque. The cheque was not deposited. The cheque was later returned to the applicant as it had become stale. It is also common cause that the first respondent paid the judgment creditor through other means.

The issue of whether the applicant paid the purchase price of the property is, in my view, not res judicata. It only came to light in February 2009 when the applicant received the letter from the second respondent advising that the sale had been aborted. The matter before MUSAKWA J was concluded in June 2006.

The applicant is suing for specific performance.

He has not performed his obligations in terms of the contract of sale, neither has he tendered performance. Although he tendered a cheque to the second respondent, his estate was not diminished by the amount of the cheque as it was not deposited. What the applicant is asking the court to do is to order specific performance when he has not paid a cent for the property.

Damages for Breach of Contract

The plaintiff's claim in the Declaration initially sounded in delict, and, alternatively, in contract. Following the defendant's concession that it had a contractual obligation to submit the plaintiff's retention application to the Reserve Bank of Zimbabwe, which obligation the defendant breached, the plaintiff's claim is now confined to one sounding in contract.

This is an application wherein the applicant seeks the following relief-

“1. The first and second respondents sign all documents and take all necessary steps (including obtaining the Master's Consent) to pass transfer in favour of the applicants of the property, being a certain piece of Land situate in the District of Salisbury, being Lot 1 of Subdivision A of Lot 18 of Greendale held under Deed of Transfer Number 5266/84.

2. In the event of them failing to do so within seven (7) days of this Court Order, the Deputy Sheriff, Harare be and is hereby authorized to sign all documents and take all necessary steps to pass transfer of the property into the Applicants names.

3. The first respondent and second respondents be and are hereby ordered to pay the applicants' costs of suit on the Attorney and Client scale jointly and severally.”

The brief facts surrounding the relief sought are these.

The facts that gave rise to this case arose in the financial tumultuous period of August 2008 when hyper-inflation wrecked the Zimbabwean economy. The plaintiff company issued summons out of this court on 24 July 2009 seeking specific performance, and, in the alternative, contractual damages for breach of contract in the sum of US$4,000=.

The action was contested by the defendant company.

Most of the facts were common cause. What happened was this. On 13 August 2008, the plaintiff, through its Managing Director, Godwin Dingwiza, went to the Harare town branch of the defendant company to purchase three different types of batteries for its customers. It desired thirty (30) batteries of a type called 622; ten (10) of a type called 631 and ten (10) of a type called 652. The defendant's sales representative, one Collin Chakupa, confirmed that the batteries were in stock. Collin Chakupa tore a bond paper into half and wrote the quantity of each type and the value of each battery and date stamped and appended his signature on the paper before handing it over to Godwin Dingwiza. Collin Chakupa directed Godwin Dingwiza to pay for the order using a bank cheque in place of an electronic bank transfer commonly referred to as Real Time Gross Settlement, RTGS. The reason for the preference was that electronic bank transfers were taking two weeks to effect payment. Godwin Dingwiza duly went to his bank where he applied for a bank cheque in the sum of $250,000= instead of the total of $227,978= reflected on the piece of paper. He collected the bank cheque on 14 August 2008 and took it to Collin Chakupa on 15 August 2008. Collin Chakupa received the cheque and took it to his Branch Manager, Mrs Jennifer Anne Jayne. The Branch Manager informed Godwin Dingwiza that his order was too large. In his presence and hearing she phoned Mr Fourie, the Sales Manager, based at the defendant Head Office in Graniteside Harare. Mrs Jennifer Anne Jayne told Godwin Dingwiza that she had made a special order for him and that the he should collect his batteries on 18 August. 

She kept the cheque.

On 18 August the batteries were not at hand. On 27 August Collin Chakupa telephoned him to come and collect half the number of type 631 batteries and some undisclosed number of the 622 type. When he arrived at the Branch he was shown the consignment which had been set aside for him. Mrs Jennifer Anne Jayne approached him and advised him that Head Office had ordered her not to release the batteries to him. She referred him to Mr Fourie. Godwin Dingwiza went back to his office and wrote a letter of 1 September detailing what had transpired from the time he received the quotation through to the events of 27 August and seeking the delivery of the order. Mrs Jennifer Anne Jayne responded to it on the same day. She denied personally giving him a “quotation” and confirmed that she did not have the batteries in stock on 15 August and that she was to make a special order which she would supply once approved by Mr Fourie. Mr Fourie approved, but for reasons not known to her, the batteries were not dispatched from the factory. She regretted that she had kept his cheque for two weeks and had failed to supply the order. She indicated that he had, on a few occasions, declined to collect his cheque insisting on the supply and returned the cheque. He refused to accept the cheque and returned it to the defendant.

The applicant seeks an order in the following terms:

“It is ordered that:-

1. It be and is hereby ordered that the transfer of the right, title and interest in and to Stand Number 1820 Emganwini, Bulawayo, from Nicholas Masuku to Jonah and Polina Dumbe (sic) and is hereby declared to be invalid and accordingly cancelled.

2. The fifth respondent be and is hereby ordered to reverse the transfer of the right, title and interest in and to Stand Number 1820 Emganwini Township, Bulawayo from second respondent into the third and fourth respondents' names and instead transfer the said rights into the name of the applicant, namely, Mahluleli Nixon Dube.

3. The second respondent be and is hereby ordered to sign all documents necessary to be signed at fifth respondent's offices to effect transfer of the right, title and interest in and to Stand Number 1820 Emganwini, Bulawayo into the name of the applicant, and should he fail to do so within seven (7) days of the granting of this order, then the Deputy Sheriff be and is hereby authorized to sign the said documents in his stead.

4. The fifth respondent be and is hereby ordered to sign all documents necessary to give effect to the transfer of the right, title and interest in and to Stand Number 1820 Emganwini, Bulawayo into the name of the applicant, namely, Mahluleli Nixon Dube.

5. The first and second respondents, only, shall pay the costs of this application on a legal practitioner/client scale, jointly and severally, the one paying the other to be absolved, provided that the third, fourth and fifth respondents shall pay the costs of the application jointly and severally, only if they oppose the application.

Alternatively

6. The first and second respondents be and are hereby held to be liable to compensate plaintiff (sic) by paying him the equivalent of R150,000= being the current market value of Stand 1820 Emganwini, Bulawayo.”

The brief circumstances giving rise to these proceedings are these.

On 21 October 2005, the applicant and the first and second respondents signed an Agreement wherein the applicant purchased the right, title and interest in Stand Number 1820 Emganwini Township, Bulawayo from the two respondents. The right, title and interest in the property had been registered in the name of the second respondent's late wife.

The purchase price was $270,000,000=. A deposit of $140,000,000= paid to the Sellers by the Buyer in respect of Stand Number 4583 Gwabalanda, Bulawayo was converted to a deposit of the property under discussion. The balance of $130,000,000= would be paid in cash or bank cheque upon transfer of the right, title and interest in the property being effected at the Bulawayo City Council offices.

In terms of paragraph 5 of the Agreement the parties agreed to lodge a copy of their Agreement with the Bulawayo City Council. The applicant's legal practitioners accordingly did so under cover of a letter dated 24 October 2005 – four days after the agreement was signed. The letter reads thus-

“Estate late Sihle Mlauzi – Stand 1820 Emganwini, Bulawayo DRB 175/2005

We send herewith a copy of a Memorandum of Agreement of Sale entered into by and between Mr Nicholas Masuku and Mahluleli Nixon Dube in respect of Stand 1820 Emganwini, Bulawayo. We actually represent Mahluleli Nixon Dube as represented by Thulani Ndlovu, but are writing to you at the instance of all parties to the Agreement.  Mr Masuku is the executor of the Estate of the late Sihle Mlauzi.

We are writing to you and sending you the Agreement so that you may note our client's interest in the property so that the property may not be sold or transferred to anybody else except our client.  Please note that the necessary paperwork is being sorted out at the Assistant Master's office at the High Court and as soon as it has been finalized the parties will attend at your offices to effect change of transfer.

Yours faithfully”

At the same time the legal practitioners addressed another letter to the Master of the High Court's office which reads as follows:-

“Estate late Sihle Mlauzi: DRB 175/2005

We refer to the writer's recent visit to your office to confirm whether or not Mr Nicholas Masuku was entitled to dispose of the right, title and interest in and to Stand 1820 Emganwini, Bulawayo. We confirm that in our conversation with yourselves it was confirmed that Mr Masuku could dispose of the property.

Please now find herewith the Memorandum of Agreement entered into by Mr Masuku and our client Mahluleli Nixon Dube as represented by Mr Thulani Ndlovu.  As you can see from the Agreement our client had earlier on signed an Agreement with Mr Nicholas Masuku in respect of another property in Gwabalanda, but this fell through and to remedy the situation, Mr Masuku then offered the Emganwini property.

We therefore request that you give the necessary consent for the property to be transferred from the deceased estate to our client's name. We believe this would not be too difficult as the property is on lease hold with the City of Bulawayo and does not have titled deeds.

We await to hear from you in due course.”

The balance of $130,000,000= was to be paid into the trust account of the applicant's legal practitioners on or before 30 November 2005 and was duly paid. The legal practitioners were to give a letter of undertaking to the Sellers to pay over the money upon transfer of property. The legal practitioners did write the letter of undertaking to Mr Nicholas Masuku on 15 December 2005.

The applicant had therefore discharged his obligation to pay the purchase price which was going to be paid to the Seller on transfer.

On 20 May 2004, the plaintiff issued summons claiming the following against the defendants:-

“1. An order that the Agreement of Sale entered into by and between plaintiff and first and second defendants on 6 April 1999 be and is hereby declared valid and binding on first and second defendants;

2. An order setting aside the cession of Stand Number 1401 Dingumuzi Extension, Plumtree to first defendant;

3. An order that the first defendant, as the sole beneficiary and surviving spouse of the second defendant, takes all necessary steps in the 3^rd defendant's offices to transfer the right, title and interest in Stand Number 1401 Dingumuzi Extension, Plumtree to the plaintiff's names within 7 days of the granting of this order failing which the Deputy Sheriff, Bulawayo be and is hereby authorized to act in her stead;

4. An order that the first and second defendants, jointly and severally, the one paying the other to be absolved, pay the costs of suit on an attorney and client scale.”

The purchase price for the Stand was $29,000=. But before payment for the Stand was made the parties agreed to go and verify at the Council offices if, indeed, the said Stand belonged to Mfakazi Dennis Ndlovu. The defendant did not go to the Council offices but both the plaintiff and her husband averred that she had not objected to the sale of the Stand by her husband. Instead, she gave the impression that she was quite happy with the sale of the Stand. On arrival at the Council offices, the officials of the Council confirmed that the Stand belonged to Mfakazi Dennis Ndlovu and was registered in his name. That being the case, the plaintiff and her husband then paid the full purchase price of $29,000= to Mfakazi Dennis Ndlovu in his office at Agritex where he was employed.

After the purchase price had been paid the parties discussed the issue of constructing a dwelling house on the vacant Stand. An agreement was reached to the effect that the plaintiff could go ahead with construction pending changing of ownership. The late Mfakazi Dennis Ndlovu reduced the agreement to writing thus-

“This is to certify that I, Mfakazi Dennis Ndlovu, of Agritex, Box 87, Plumtree, GP2231, Park Rd have allowed Sithembile Sibanda to proceed and carry out construction of Stand 1401 ZBS known as Dingumuzi Extension for $29,000=…,.”

The document bore the signature of the author as M. D. Ndlovu and was signed by two witnesses, one Ncube, and, one P. Moyo, and was dated 6 April 1999. The deceased also wrote his telephone number at the foot of the document and signed M. D. Ndhlovu at the foot of it.  This time he spelt his Ndhlovu with an “h”.

After he had executed the above document he gave them an approved plan of the building to be constructed on the Stand. The plaintiff and her husband started construction of a dwelling house on the Stand using the said approved plan in 2000 and completed it in mid-2003.

It was the plaintiff's evidence, and that of her husband, that the defendant was aware that there was construction going on at the said Stand right from the beginning up to the end. They based their assertion on the ground that she knew that the Stand had been sold to the plaintiff. Moreover, the Stand was about two (2) kilometres from where the defendant lived, and was, therefore, not far and was also on the way to town. She therefore saw construction going on for more than three years but she did not report to the local authority that someone was unlawfully building on her Stand. She even could have reported to the police if she did not get any joy from the local authority.

The witnesses told the court that they had agreed with the late Mfakazi Dennis Ndlovu that the Stand would be registered in the name of the plaintiff and her husband but he unfortunately passed away before that could be done.

They, however, learnt of his death after sometime and went to pay their condolences to the defendant at the loss of her husband and to also discuss the issue of the transfer of the Stand. When the subject was raised with her she advised them that she was in the process of winding up the estate of her late husband. She assured them that she would contact them as soon as she completed processing the estate. She had promised to phone them but never did. She led them to believe that she had no problem with facilitating the transfer of the said property into their names.

The defendant did not mean what she had assured the plaintiffs she would do. Instead, when she was awarded the Stand as the sole beneficiary of the estate on 10 April 2003, she proceeded to have ownership of the property changed from her late husband's name into hers on 15 October 2003.

The plaintiff only discovered what had happened when she went to pay her water bill. The plaintiff and her husband then went to confront the defendant who, to their surprise and dismay, pretended not to know what they were talking about and professed ignorance of the sale of the said property.

The plaintiff and her husband stated that they found the defendant busy writing at a table which was full of papers. As the defendant was denying any knowledge of the sale of the stand the husband of the plaintiff noticed the affidavit of sale on the table and immediately pointed it out to her and she read it. The affidavit, quoted in extension…., belied her story but she persisted that she had done nothing wrong.

The parties then agreed to go to the Magistrates' Court to seek legal advice. An Officer there advised the defendant that she was wrong and should transfer ownership of the property into the plaintiff's name.  She did not accept the opinion and advice of the Officer. She suggested that the parties go to seek a second opinion from the police. The parties proceeded to the police station where she was told, once more, that she had done wrong and was advised to transfer the property into the plaintiff's name.  She still did not accept that she had done any wrong and handed the matter to her lawyers.

The plaintiff and her husband were subjected to lengthy cross examination which, in each case, appeared to be designed to get the witness tell the court about the exact dates, times when things were done and places where they were done and who did what. For instance, a lot of time was spent on what date were documents…., were written and where they were authenticated. The witnesses were also asked about who had done the introductions when they were at the house of the defendant.

The plaintiff and her husband emphasized, under cross-examination, that the defendant agreed to the sale of the Stand to them and she even told them that she had received the proceeds of the sale from her late husband. She said it was a lot of money which she banked. They further revealed that the construction was at window level when Mfakazi Dennis Ndlovu died. They were, therefore, emphatic that both the defendant and her late husband were fully aware of the construction taking place at the Stand.  The plaintiff and her husband knew only one wife of Mfakazi Dennis Ndlovu and that is the defendant.  She is the one who was in agreement with her husband to sell the Stand.

The plaintiff and her husband repeated, under cross-examination, that when they went to see her after the death of her husband she pretended not to know them and secondly she professed ignorance of the sale of the Stand, but, the fortuitous discovery of the affidavit of sale belied her innocence. She, thereafter, changed her attitude and promised to contact them to sign certain documents after sorting out the estate.

Betty Gasela was one of the Directors of a company known as Bhekani Investment (Pvt) Ltd. She was cited as the applicant when in fact the correct applicant was Bhekani Investment (Pvt) Ltd being represented by her. She, unfortunately, passed away after she had deposed to the following affidavit.  The applicant seeks the following order-

“It is ordered that:-

1. The first respondent be and is hereby ordered and directed to, within seven days of the service of this order upon him, attend at the offices of the second respondent and there and then sign all papers necessary to effect transfer of Stand Number KN, 120 Kelvin North, Bulawayo from him to applicant, failing which the Deputy Sheriff, or her lawful assistant, be and are hereby authorized to act on behalf of first respondent;

2. The second and third respondents be and are hereby ordered and directed to take all necessary steps to facilitate transfer of Stand Number KN, 120 Kelvin North, Bulawayo to applicant; and

3. The costs of this application shall be borne by first respondent on the scale as between legal practitioner and client.”

On 4 January 1990, the first respondent, Leonard Malinga, .., entered into an Agreement of Sale of Stand Number 14097 Kelvin North with the City of Bulawayo. For some reason not known to the court it would seem that there is some relationship between Stand Number 14097 and Stand Number KN 120 Kelvin North. In the papers filed of record the parties refer to both Stands as if it is one and the same property.

In July 2000, Leonard Malinga entered into an Agreement of Sale of the property with the applicant. He signed the Agreement of Sale on 19 July 2000. The purchase price was a cash payment of $375,000= Zimbabwe dollars payable upon the registration of transfer of the property. It was, however, paid in full when the representative of the applicant signed the Agreement of Sale on 17 July 2000. The full purchase price was paid to Leonard Malinga's agents, Knight Frank, who passed it over, on 27 September 2000, to Lazarus and Sarif, who were to transfer the property from City of Bulawayo to Leonard Malinga and thereafter from Leonard Malinga to the applicant. Lazarus and Sarif acknowledged receipt by letter dated 5 October 2000 wherein they stated that they had written to the Town Clerk's department requesting them to instruct their lawyers to attend to the registration of transfer of the said property into Leonard Malinga's name and they in turn would transfer the property into the name of the applicant….,.

Having paid the purchase price in full, the applicant obtained a Development Permit dated 14 March 2001. The Development Permit, which had to be implemented within twenty four (24) months was for a workshop. The applicant effected the developments, in accordance with the Municipality requirements, using its own resources….,.

Leonard Malinga alleged that the applicant breached the contract by not obtaining a Development Permit immediately.

The allegations are without foundation as there was no clause in the Agreement itself which obliged the applicant to obtain a Development Permit immediately.

The applicant in this matter was seeking an order of this court in the following terms:-

“It is ordered that:-

1) Respondent, at its costs, do (sic) all things and sign all such documents as may be necessary to transfer to applicant a portion of Stand 5453A Salisbury Township as approved by the City of Harare under authority of sub-divisional permit N.O. SD1337/02.

2) Should respondent fail, for whatever reason, to give effect to this order within 7 days from the date of service on it of this order, then the deputy sheriff be and is hereby directed and authorized to sign all such documents as may be necessary to give effect to the transaction.

3) Respondent pay the costs of this application on the scale as between attorney and client save that respondent will be entitled to recover such costs from George Maulidi.”

On 8 January 2004, the present plaintiff issued summons seeking an order compelling the first to the fifth defendants, who are beneficiaries of the estate of the late Smart Milton Mxotshwa Sibanda, to transfer their rights, title and interest in House Number 70996 Lobengula West, Bulawayo into his name. All the five defendants are children of the late Smart Milton Mxotshwa Sibanda who died on 13 February 2000. The children jointly inherited the house which is at the centre of this dispute – being House Number 70996 Lobengula West, Bulawayo.

The plaintiff alleged that the said house was not eligible for distribution to the defendants as he claimed to have purchased it following a verbal agreement he had entered into with the deceased sometime in 1981. He alleged that the house was sold for $500= which amount he allegedly paid in full in 1982. He took occupation of the house in 1981. However, the said Smart Milton Mxotshwa Sibanda continuously deferred the cession of his rights, title and interest in the property until he, unfortunately, died. After the deceased's death, the first defendant was appointed executor of the estate. When asked to transfer the rights, title and interest in the property to the plaintiff, he refused to do so until the estate was wound up.

Hence this protracted litigation.

All in all, the parties have sought redress in the courts no less than five times in this court, once in the Magistrates' Court and once more in the Small Claims Court.

On 8 January 2004, the plaintiff, Benjamin Sibindi issued summons out of this court seeking to compel the respondents to transfer their rights, title and interest in House Number 70996 – the property.

The respondents excepted to the plaintiff's summons and filed a plea in bar.

The applicant is seeking an order in the following terms:-

“It is hereby ordered that:-

1. The agreement of sale between the applicant and the respondent be and is hereby confirmed.

2. The respondent be and is hereby ordered to supply to the applicant 3,000 tonnes of molasses within 4 days of this order being served on it, failing which the respondent is ordered to pay to the applicant the value thereof as at the date of judgment.

3. The respondent be and is hereby ordered to pay costs.”

The order that was being sought by the applicant was in these terms:-

“It be and is hereby ordered that:-

(a) The Agreement of Sale between applicant and 1st respondent in respect of Stand 148 Neqi Township of Jos Peters 100 acre grant dated 5th December 2007 be and is hereby declared to be binding between the parties.

(b) The 1st respondent be and is hereby ordered to sign all papers necessary to give effect to the transfer of the said property from her name to that of the applicant.

(c) In the event that 1st respondent fails to sign such documents the Deputy Sheriff of Bulawayo be and is hereby authorized to sign such documents in the place and stead of the 1st respondent.

(d) In the event that the title deed in respect of the said property has not been registered in favour of the 1st respondent at the time that this order is granted, that the 2nd respondent shall, according to law, and provided all requirements to effect such transfer have been met, register the said property from the 1st respondent to the applicant.

(e) The 1st respondent pays the costs of this application.”

The background facts giving rise to these proceedings may be summarized thus.

Eunice Dube, the mother of the applicant, wanted to buy him immovable property. As she went looking for a property to buy, she was referred to Calderwood, Bryce-Hendrie and Partners Legal Practitioners. She was referred to the Conveyancing Department at Calderwood, Bryce-Hendrie and Partners Legal Practitioners where she dealt with an employee known as Thando Mabaisa who worked in the Conveyancing Department as a Conveyancing clerk. It turned out that Calderwood, Bryce-Hendrie and Partners Legal Practitioners, at that time, was handling the transfer of ownership of an undeveloped housing Stand Number 148 Neqi Township of Jos Peters 100 acres grant from the Bulawayo City Council to Siphiwe Mthupha, the first respondent, who was based in the United Kingdom. As a Conveyancing clerk, Thando Mabaisa had, therefore, access and possession of the documents relating to the transfer of ownership of the said property to the first respondent. Thando Mabaisa had knowledge that the first respondent intended to sell the property once ownership was transferred into her name. She then informed the applicant's mother about the undeveloped property and that the first respondent, who was based in the United Kingdom, intended to sell it. She went on to explain to the applicant's mother that the first respondent was being represented by her sister one Sibonginkosi Chidakwa. After that explanation, Thando Mabaisa arranged that the applicant's mother and Sibonginkosi Chidakwa meet so that the two could go to the property in order for the applicant's mother to view it. The two met and went to view the property and parted ways - and so did their stories - as they become different from that point.

The applicant's mother seems to suggest that she went with Sibonginkosi Chidakwa to Thando Mabaisa's office where she made known her desire to buy the property. Sibonginkosi Chidakwa, however, averred that she had last seen her when they left the property.

It is not difficult to tell where the truth lies on that point. It lies in Sibonginkosi Chidakwa's version.

This is so, because, after viewing the property, she proceeded to Calderwood, Bryce-Hendrie and Partners Legal Practitioners where she entered into a written Agreement of Sale with Thando Mabaisa - who purported to represent the first respondent. That was very strange because Thando Mabaisa herself had earlier on told the applicant's mother that the first respondent, who was based overseas, was being represented by her sister Sibonginkosi Chidakwa. Yet, the Agreement of Sale reflects that the first respondent, who was the Seller, was represented by Thando Mabaisa.

Sibonginkosi Chidakwa does not feature in the Agreement of Sale.

After concluding the written agreement with Thando Mabaisa, the applicant's mother paid the full purchase price to her since, according to the written agreement, the purchase price of four billion Zimbabwe Dollars had to be paid when both parties signed it. Although the agreement reflected the price as four billion Zimbabwe dollars, the applicant's mother paid the sum of US$3,000= to Thando Mabaisa who gave her an acknowledgment of receipt written on the compliment slip of Calderwood, Bryce-Hendrie and Partners Legal Practitioners.

The agreement stipulated that the Seller would arrange to tender transfer of the property to the Buyer as soon as possible through Calderwood, Bryce-Hendrie and Partners Legal Practitioners. The applicant's mother was advised accordingly. She then proceeded to take possession of the undeveloped Stand and effected improvements thereon. She is in the process of constructing a dwelling structure which is at roof level.

Thando Mabaisa did all this without involving Sibonginkosi Chidakwa - the sister of the owner of the property. Sibonginkosi Chidakwa was the representative of her sister. She denied ever authorizing Thando Mabaisa to enter into an Agreement of Sale of the property with the applicant's mother. 

There is no evidence that her sister did.

The background of the matter is that the plaintiff was appointed executrix of the estate of the late Philimon Singo by the Additional Master on the 4^th April 2007. The first defendant was appointed executrix of the estate of the late Ernest Phillip Sithole who died on 29^th October 1996, on the 18^th May 2006. The plaintiff issued summons in this matter on the 3^rd April 2009 seeking an order;

(a) Confirming as valid and enforceable, the Sale Agreement entered into between the late Philimon Singo and the late Ernest Phillip Sithole in 1995 involving House Number 1651 Dulubadzimu, Beitbridge;

(b) Directing the first defendant, in her capacity as executrix dative of the estate of the late Ernest Phillip Sithole, to sign transfer papers passing transfer of that house to the estate of the Philimon Singo; and

(c) Alternatively, payment of damages in the sum of R200,000= as the replacement value of the house in question.

In that summons, the plaintiff claims that the purchase price was paid in full in 1995 and that the late Philimon Singo took occupation immediately thereafter. For some reason, transfer was not given to the late Philimon Singo until the late Ernest Phillip Sithole died aforesaid in 1996. In paragraphs 6 and 7 of the declaration, the plaintiff avers that the late Philimon Singo lodged a claim against the estate late Ernest Phillip Sithole before his death but the fourth defendant disregarded that claim as a result of which a review application was lodged in this court as case number HC1479/06.

The defendant contended that the plaintiff had not put him in funds sufficient to complete the construction of the perimeter pre-cast wall. What the plaintiff paid, according to the defendant's contention, was only a deposit. He was prevented from completing the construction because the plaintiff claimed that the workmanship was of poor quality and thereafter ejected the defendant from the site.

From the evidence placed before this court by the plaintiff and the third defendant's representatives it is clear to the court that the parties agreed that the third defendant was to drill a complete borehole at a cumulative cost of $2,600= which was split as follows:

A deposit of $1,500= which was paid in advance by the plaintiff to enable the third defendant to do the work with the balance to be paid upon completion of the work at hand.

I am aware that the parties who testified in this regard were not in agreement on this point. I prefer the narration of events as given by the plaintiff as to me it accords with normal business or contractual practice.

The story told by the first and the second defendants is highly unlikely and consequently unconvincing for the following reasons: if accepted it would mean that the plaintiff entered into an agreement with the third defendant without being appraised of the contract price. That approach is not feasible as it is not normal for people to enter into an open-ended contractual arrangement. Such an arrangement would bring about uncertainty into the whole arrangement.

The parties who testified are agreed that the third defendant did not manage to complete the task that it had undertaken to do.

I do not accept the position adopted by the third defendant's representatives that their inability to complete the drilling was due to the alleged non-payment of $1,100= by the plaintiff. This money was supposed to be paid upon completion of the job. The view I take is that the initial payment of $1,500= was supposed to be used to take care of all the requirements in the drilling of the borehole from start to completion and that the remaining amount was only due to the third defendant upon completion of the work.

The generous hand extended by the plaintiff, in assisting the third defendant's representatives in looking for a generator, must be viewed as a desperate measure by the plaintiff to see the borehole drilling completed to enable him to embark on his farming activities as testified by him.

I have not the slightest doubt in my mind that in failing to complete the borehole drilling the third defendant was in breach of the contract.

The plaintiff sued the defendant, a construction company and land developer, for specific performance, that is, for an order compelling the defendant to complete the construction of a house on Stand 3187 of Subdivision A of 159 Prospect, or, alternatively for an order that the defendant pays the costs for the completion of construction of the house in question. She also sought an order for the transfer of that property to herself and costs of suit.

In her declaration, the plaintiff averred that on 3 November 2006 the parties signed an agreement in terms of which the defendant sold Stand 3187 of Subdivision A of 159 Prospect to herself. The purchase price of $42,500,000= (Zimbabwean currency) was to be paid by a deposit of $19,150,000= with the balance of $23,350,000= being paid in due course. The plaintiff averred, further, that the defendant was required to construct a house on the Stand for the plaintiff, as described in the Agreement of Sale, using the purchase price paid by the plaintiff. She averred that she duly paid the purchase price and the defendant commenced construction about November 2006, but, in breach of the Agreement between the parties, it failed to complete the construction within the agreed period of 6 months.

Outstanding construction work relates to floors, scheming and painting, plastering and decorating the ceiling, plumbing, fittings, electrification, fitting of doors and painting them, walling, sliding gate, driveway and gutters. It is this outstanding work which the plaintiff would like the defendant to complete.

In its plea to the plaintiff's claim, the defendant averred that the plaintiff failed to comply with the Agreement of the parties in that she did not pay the deposit of $19,150,000= within 48 hours from the date of signing the Agreement as required by that Agreement; she failed to pay the full purchase price by 15 November 2006 in breach of the Agreement; made payment to Fingold Real Estate instead of paying to the defendant directly; and also failed to pay interest on outstanding amounts. The defendant averred that the failure to complete construction within 6 months was occasioned by the fault of the plaintiff who refused to provide construction material provided for in the Agreement. It maintained, in paragraph 3 of the plea, that;-

“The only construction work that remains undone is that which requires these materials (i.e those set out in clause 2viii of the agreement). It is therefore denied that the defendant has failed to deliver to the plaintiff a complete dwelling within six months of November 2006 and the plaintiff is put to the strictest proof of the contrary.”

The defendant went on, in paragraphs 5 and 6 of the plea, to aver;-

“5. Ad paragraph 7

The defendant avers that the breach is the result of factors beyond its control. The defendant has been unable to undertake walling owing to a death (sic) of cement on the market. The little supplies the defendant has managed to receive have been used to complete plastering of the dwelling.

The fitment of doors, locks, electrical installations, scheming and painting are conditioned on glazing being completed first. The plaintiff has been reluctant to comply with clause 2(viii) and provide the defendant with the material necessary to the glazing of the dwelling.

6. Ad Prayer

The main and alternative relief being sought by the plaintiff is untenable. Plaintiff cannot demand that defendant perform its obligations under the agreement when plaintiff has not tendered to perform her own obligations under the agreement. Further an order for specific performance would cause undue hardship on the defendant as its failure to complete construction is due to factors beyond its control (cement shortage) and is conditioned upon provision of material by the plaintiff which material is not forthcoming.

With regard to the prayer for transfer, it is averred that such relief is being sought prematurely. Clause 2 (vii) of the agreement provides transfer of the property will be effected subject to full payment of the purchase price by the plaintiff and completion of the construction work by the defendant. None of the two conditions have been fulfilled.”

In terms of clause 1(i) of that Agreement the purchase price was Z$42,500,000= plus 15% VAT and this was for an 869 square metre Stand and a 4 bedroomed house, specifications of which were set out therein. That clause further states:-

“A DEPOSIT of nineteen million one hundred and fifty thousand dollars ($19,150,000=) is inclusive of the purchase price for both the Stand and the house chosen with the above description. Cash deposit must be fully paid within 48 hours of signing this Agreement of Sale, failure to which the Seller cancels the proposed sale without any further notice.”

Clause 2 provides that the balance of the purchase price shall attract interest of 120% per annum and that the balance in question was due on 15 November 2006. It also empowers the Seller to cancel the sale in the event of the Purchaser's failure to pay instalments, after giving the latter 24 days' notice to remedy the breach. That clause also requires the Seller to complete construction of the house within 6 months from the date of purchase which is the date of receipt of the full deposit.

In terms of clause 2(viii);-

“Should the purchaser manage to pay the whole purchase price of $42,500,000= (forty two million five hundred thousand dollars) latest by 15 November 2006, then the cost of building the above house shall only relevantly adjust to increase in price should any or all of the consumed or used fragile building material(s) increase in price by more than five percent (5%) so as to defray the resultant excess costs. These particularly being glazing, bathroom and toilet sets, all earthenware pipes together with the relevant accessories.”

Clause 10 provides that should the Purchaser fail to pay any sum of money due in terms of the Agreement, the Seller has the right to call upon the former in writing to comply within 30 days and if no compliance is done, to cancel the agreement. Clause 11 accords the Purchaser the right to cancel the Agreement in the event of the Seller's failure to build the house after giving the Seller notice to comply within 30 days.

Gloria Rondozai testified that the defendant insisted on the full deposit being paid before the signing of the Agreement, which she did on behalf of the plaintiff, resulting in the Agreement being signed at the offices of Fingold Real Estate, the agents selling the property on behalf of the defendant, on 3 November 2006. Elizabeth Chidavaenzi represented the defendant. She went on to say that subsequent to that, she paid the balance in instalments as she received the money from the plaintiff who is based in the United Kingdom, she having moved there in 2002.

Gloria Rondozai produced receipts (exhibits 2(a) 2(b) and 2(c)) showing that on 6 September 2006 $9,000,000= was paid to Fingold Real Estate; $1,000,000= on 16 October 2006; $1,000,000= on 19 October 2006; and $6,200,000= on 23 October 2006. This means that $17,200,000= had been paid towards the deposit of $19,150,000= at the time of signing the Agreement on 3 November 2006, leaving a balance of $720,000= on the requisite deposit. That balance on the deposit was only paid on 6 November 2006 when a sum of $10,800,000= was paid to Fingold Real Estate. This means that the balance of the deposit was paid a day late. The payment of the deposit left a balance of $23,350,000= on the purchase price and the exhibits show that sums of $640,000= and $12,096,000= were paid on 7 and 14 November 2006 respectively. Therefore, by the due date of 15 November 2006, the plaintiff had paid a total of $22,816,000= towards the balance of the purchase price leaving a balance of $534,000= on the purchase price. Further sums of $1,400,000= and $3,200,000= were paid on 22 February 2007 and 6 March 2007 respectively with the latter being receipted by the defendant and the former by one Leanah Tsatsa on behalf of the defendant. The receipts produced by the witness reveal that although the purchase price was not paid in full by 15 November 2006, it was paid by 22 February 2007 with an extra sum of $2,836,000=, which, according to the plaintiff's case, was charged by the defendant as “interest component as well as a penalty for late payment.”

The witness stated that most of the instalments were paid to Fingold Real Estate because they were the agents of the defendant through whom the plaintiff was purchasing the property and the agents insisted on the money being paid through them. She went on to say that the money was indeed forwarded to the defendant.

She stated that when she demanded that the defendant perform its part of the Agreement by completing construction, the defendants' representative started complaining that they were not in a position to do that because the purchase price had not been paid properly, it having been paid to Fingold Real Estate who had deducted their commission before remitting payment to the defendant. The defendant was insisting that after payment of the deposit to Fingold Real Estate, the plaintiff should have paid the balance directly to the defendant.

Surprisingly, the defendant had accepted the remittances from Fingold Real Estate.

Gloria Rondozai went on to say that when she last visited the property in September 2012 the house had been constructed but there were no window frames, burglar bars, durawall and sliding gate. The defendant had advised her that it had failed to finish the construction within the 6 month period provided for in the Agreement because of a shortage of cement and that its builders had been contracted to South African firms to do construction work in preparation for the 2010 World Cup tournament which was to be hosted by that country. The witness maintained that at no time did the defendant attempt to cancel the agreement and it never demanded from the plaintiff any other money except cash payments to enable the defendant to purchase fragile material, that is, glazing, bathroom and toilet sets and earthenware pipes. She said the amount of $1,400,000= paid in cash to the defendant was for the purchase of the fragile material as demanded by the defendant. The defendant was insisting these were not covered by the Agreement. Although payment was made, the defendant still did not complete construction of the house. Under cross examination, this witness readily conceded that the full purchase price was not paid by the deadline of 15 November set in the Agreement, and, that due to inflation, the delay in payment would disadvantage the defendant. She, however, stated that by agreeing to pay for the fragile material, over and above the purchase price paid, the plaintiff was compensating the defendant for the delay in payment. She explained that the defendant never demanded payment. She also conceded that VAT and the 10% endowment fee due to the Municipality was not paid.

Only Elizabeth Chidavaenzi, the defendant's Managing Director, testified for the defendant.

She stated that the defendant gave Fingold Real Estate a mandate to identify a suitable buyer and sell the property. In return, Fingold Real Estate was to be paid a commission which is determined by the Estate Agents Institute, that is, 5% of the purchase price. In that regard, Fingold Real Estate was given the defendant's banking details to deposit the money. Elizabeth Chidavaenzi stated that in terms of the mandate given to Fingold Real Estate, the latter was to receive only the deposit, deduct the 5% commission and remit the rest to the defendant. Once that was done, Fingold Real Estate's mandate would cease and the balance of the purchase price was to be paid by the purchaser directly to the defendant. When Fingold Real Estate identified the plaintiff as purchaser of the property, problems arose after the deposit was paid in instalments over a period instead of it being paid within 48 hours of the signing of the Agreement. Although the Sale Agreement still contained a clause providing for payment of deposit within 48 hours, the defendant validated the transaction even as the bulk of the deposit had been paid before the signing. She said she, however, insisted that further payments were to be made directly to the defendant.

This was not done as the plaintiff paid all but one of the instalments to Fingold Real Estate. She confirmed that the plaintiff's representative notified her that Monica Mutodi of Fingold Real Estate had instructed the plaintiff to continue paying through Fingold Real Estate. Although she stated that this complicated issues, she did not stop Fingold Real Estate from receiving payments on behalf of the plaintiff neither did she return payments forwarded by Fingold Real Estate. Elizabeth Chidavaenzi stated that hyperinflation was wreaking havoc in the economy at the time. The situation got so bad that everything came to a halt, workers stopped coming to work, shops were closing, fuel to run around doing business was in the black market and eventually industries closed including the giant cement supplier Lafarge which closed for a year. Under cross-examination, she changed her story to say that Lafarge did not close, but was unable to supply cement for a year. She stated, further, that when she noticed that the plaintiff had not paid the full extent of her liability by due date, she had telephoned Gloria Gondozai, who told her that the plaintiff had delayed sending money. She did not do anything but continued to receive late payments which should have been received on a “without a prejudice” basis. However, this was not done or endorsed on the receipts because payments were made to Fingold Real Estate. Although it was the policy of the defendant to mark receipts for late payment “without prejudice” she did not explain why the receipt issued by the defendant on 6 March 2007 was not so marked.

Although the witness claimed that the defendant had written a letter to the plaintiff advising her that she was in breach of the Agreement, she did not produce that letter. It is difficult to accept that such a letter was ever written. If it was, surely the defendant would have produced it.

The witness stated that the defendant constructed the house in terms of the Agreement until they reached a stage where they required the fragile material, that is, glazing, drain pipes, ceramic fittings, toilet fittings etc. These had not been purchased earlier because they easily break and it is the norm to require them when fitting is done. She stated that they demanded payment for the purchase of the fragiles from the plaintiff who refused to pay insisting that the defendant supply and fit those fragiles and then claim compensation from the plaintiff. This affected the defendant as it was the responsibility of the plaintiff to pay for that material. As a result, the defendant could not complete construction.

Elizabeth Chidavaenzi testified that the defendant did not take action to cancel the Sale Agreement because when they sent a letter to the plaintiff to purge her breach, all industries closed. No counter claim was made in this action because the defendant felt that the plaintiff would feel hard done by such course of action. They then elected to leave everything for the court to decide.

It is difficult to follow the logic of this testimony. If, indeed, the plaintiff was in breach, surely the defendant was at liberty to take action as provided for in the Agreement. If, truly, the defendant has a counterclaim, with the benefit of legal counsel it has enjoyed throughout, it would have made such counter-claim. It did not.

Elizabeth Chidavaenzi estimated that the value of what the plaintiff paid for equates to only 30% of the cost of constructing the house. Under cross-examination, she stated that the value of what was done on the house before the plaintiff refused to pay for the fragiles was about US$60,000=. She later shifted ground to say it is only $15,000= and that a completed house is worth about $60,000=. She stated that although the money paid by the plaintiff was improperly paid, the defendant used it to pay its wages bill and several other expenses. She, again, later shifted ground saying that the defendant did not return the money to the plaintiff and did not do anything with it because there was nothing to buy on the market and eventually Zimbabwe dollar accounts were closed. This is very unreliable evidence.

Whether there is a shortage of cement, and, if so, whether such shortage constitutes a supervening impossibility

In my view, this issue has been overtaken by events. Although there may have been a shortage of cement in 2007, that problem no longer subsists, and, by its own admission, the defendant has long constructed the fence wall which would have required cement and installed a sliding gate.

Therefore nothing turns on this issue at this stage.

Whether the plaintiff is entitled to the relief claimed

Having concluded all the above issues, except for issue 3, in favour of the plaintiff, the inescapable conclusion is that the plaintiff is entitled to the relief that she seeks.

I have qualified the issue of fragile material because I am not persuaded that the plaintiff paid anything towards the provision of that material yet the evidence shows that it was intended by the parties that she would supply the material. It also shows that the only outstanding work on the house is the installation of fragile material. Upon supply of that material the defendant should be able to perform its obligation to finality.

The parties identified the fragile building material as glazing, bathroom and toilet sets, all earthenware pipes and relevant accessories. The plaintiff should deliver that material at the site for completion of construction work. In the result, I find in favour of the plaintiff who is clearly entitled to specific performance.

Accordingly, it is ordered that:

1. Upon delivery by the plaintiff of fragile building material, namely, glazing, bathroom and toilet sets, all earthenware pipes and relevant accessories, the defendant should complete construction of the house at Stand 3187 of Subdivision A of 159 Prospect, Harare.

2. Such construction work should be completed within 30 days of delivery of the material set out in para 1 above.

3. Within 30 days from the date of completion of the construction of the house, the defendant shall sign all documents necessary to effect transfer of Stand 3187 of Subdivision A of 159 Prospect, Harare to the plaintiff.

In this application, the applicant seeks an order compelling the first respondent to sign documents necessary to transfer a property in Seke Chitungwiza to him. He alleges that he purchased the said property from the first respondent and has produced an Agreement of Sale brokered by Moonwave Properties t/a Maps Asset Management which he says was signed by the parties.

In his opposing affidavit, the first respondent states that he never entered into such Agreement of Sale and denies that it is his signature which is appended on the Agreement of Sale. In his address to the court he confirmed that he had an arrangement with the estate agent to dispose of his house. He also stated that the applicant and his father called at his house intending to pay the purchase price directly to him because they did not trust the estate agent.

These facts suggest that, indeed, there was a relationship between the parties and that the first respondent is now trying to dodge his commitment for other reasons. This cannot be allowed. I am therefore satisfied that a good case has been made for the relief sought and accordingly grant the following order, that:

1. The first respondent be and is hereby ordered to sign all papers necessary to facilitate cession of rights to the applicant's favour in respect of the Stand Number 17085 Unit 'M', Seke, Chitungwiza Municipality, Chitungwiza.

2. In the event that the first respondent fails to sign such papers within (48 hours) of service upon him of this order, the Deputy Sheriff is directed to sign papers in his place and stead.

3. The third respondent is directed to facilitate the above cession and to update its records therewith.

The background of this matter, whose facts are largely common cause, are that applicant and the first and second respondents entered into an agreement on the 6^th of December 1995 in terms of which applicant was given an option to purchase Stand 604, Victoria Falls. The agreed purchase price was $100,000= of which $80,000= was paid upon signature of the parties and the balance of $20,000= upon transfer of the property to the applicant.

The option was exercisable at any time after the respondents became the owners of the property in terms of clause 2 of the Agreement. At the time of signing of the Agreement, the property was yet to be transferred from the Municipality of Victoria Falls to the respondents and the said transfer was only effected on the 5^th of August 2005.

The respondents have sought to cancel the Agreement on the basis that they misunderstood the terms and conditions of the Agreement, and, secondly, that they were of the view that they were not supposed to sell the property which they had no title to. At the same time, the applicant, together with her husband, Adrian, had loaned the respondents $10,000= which they now wanted to set off against the $20,000= balance to the respondent. The respondents disagree with this arrangement. The respondents further argued that the balance of $20,000= is no longer valuable to them as at it has been eroded by inflation.

The question then is: what is the respondent's defence in resisting the transfer of this property to the applicant?

I find no justifiable reason at all other than the obvious inflationary painful result of the prejudice suffered by those who sold their properties in Zimbabwean currency at the time the hard economic situation prevailing was fluid and galloping. This, however, is not a justifiable reason, in law, to breach a contract. Legally speaking, the applicant has complied with all the requirements of a legitimate contract she entered into with the respondents. The contract is a valid one and as such must be enforced. This contract has all the hallmarks of a contract with an option to purchase. See Film and Video Trust v Mahovo Enterprises Ltd 1993 (2) ZLR 191 H.

As regards the second issue, it follows that upon cancellation of the Buyback Agreement, the status quo ante was restored, namely, that the parties reverted to the original Agreement of Sale which accorded the plaintiff rights, title and interest in the property.

It is common cause that the Buyback Agreement was cancelled by way of a court order. The argument that the plaintiff breached the first agreement by failing to pay the full purchase price is lame in that the defendants would not have entered into the Buyback Agreement with a party that did not have rights, title and interest in the property, for one may ask, what rights would the plaintiff pass to the defendants?

Much was said about the plaintiff's alleged tardiness to enforce his rights since 2006. In my view, this criticism is baseless in that according to the second defendant's own words, the Certificate of Registered Title was issued in 2008. This then necessitated the plaintiff to institute fresh proceedings in order to have this document delivered to him. For these reasons, I find that the plaintiff has rights, title and interest in the property. The second defendant stated that he is prepared to comply with the order in case no. HC3860/04. Consequently, there was no need to defend this case at all.

Accordingly, an order in the following terms is granted:

(a) That the first and second defendants shall deliver to the plaintiff's legal practitioners within seven (7) days from the date of service of this order upon them, the Certificate of Registered Title in respect of an immovable property known as Subdivision No.6 of Stand 278 of the remaining extent of Sherwood Estate situated in the District of Salisbury.

(b) In the event that the first and second defendants do not comply, for any reason, with the terms of clause 1 hereto, the Deputy Sheriff, Harare or his lawful deputy shall enter upon the premises of the first and second defendants and take possession of the certificate of registered title in respect of immovable property mentioned in (a) above.

(c) The third defendant, shall, in the event of no copy of the certificate of registered title referred to in clauses (a) and (b) above available at the premises of the first and second defendants deliver and make available to the plaintiff's legal practitioners a copy of the said certificate of registered title within fourteen (14) days from the date of service of this order upon him.

(d) The first, second and third defendants be and are hereby interdicted, pending the transfer of the immovable property to the plaintiff, from dealing with the property in any manner or transferring to any person other than the plaintiff.

In his evidence, the plaintiff told the court that he lived at Flat Number 42064/13 Madlela Flats, Makokoba, Bulawayo, and was employed as a driver by Homage Funeral Services. He had retired from the Zimbabwe Republic Police after 26 years service on 9 February 2001.

On 27 July 2001, he saw an advert in the Chronicle Newspaper, inserted therein by the first and second defendants, inviting offers for the purchase of Flat Number 42064/13 Madlela Flats, Makokoba, Bulawayo. He phoned one of the numbers supplied to the newspaper and spoke to a lady who directed him to the second defendant, Mangisi and Associates. He proceeded there and on arrival he saw the lady he had spoken to over the phone at the reception. He identified himself to her and she took him to the first defendant, Christopher Mangisi, whose office was on the same floor as Mangisi and Associates. The witness did not know Christopher Mangisi before that day. The plaintiff introduced himself and informed Christopher Mangisi that he was interested in buying the Flat which had been advertised in the Chronicle Newspaper and requested to go with Christopher Mangisi to view it. Christopher Mangisi acceded to the request and drove the plaintiff to Makokoba to show him the Flat. On arrival, they found a young man of about 20 years who opened the door to the Flat. They entered the Flat for viewing purposes. The plaintiff noticed that the Flat had two broken windows.

Christopher Mangisi told the plaintiff that that was the flat that he was selling for $215,000=. The plaintiff negotiated for the reduction of the purchase price to $210,000=. The reasons being that he would be paying cash for the flat and that he would also replace the broken windows. Christopher Mangisi accepted the reduced purchase price of $210,000= cash. Christopher Mangisi then drove the plaintiff back to Mangisi and Associates where they discussed about how payment was going to be effected. The plaintiff told Christopher Mangisi that he was a pensioner who had just received a lump sum. Christopher Mangisi was pleased with that and gave the plaintiff his business card. He then called in his wife, the fourth defendant, and informed her that he had accepted the reduced purchase price of $210,000= for the flat since the plaintiff would be paying cash for it. The wife said there was no problem in the light of that. The plaintiff told the couple that he needed to use $40,000=. He suggested that he would write a cheque in the sum of $250,000= in the name of Christopher Mangisi to be withdrawn from POSB.  Christopher Mangisi and his wife would keep the $210,000= and give the plaintiff the $40,000= which he needed to use.

The suggestion was acceptable to Christopher Mangisi.

He was then asked to fill in a form of offer to purchase which he duly filled in and signed on that same day, 27 July 2001. The form was filed of record as Annexure “A”…,. The form shows that the plaintiff offered to purchase the flat for $210,000= cash.

After the form had been filled in, the plaintiff left it at Mangisi and Associates and proceeded to POSB and made a cheque withdrawal in the name of Mangisi and Associates. He was told by the bank officials to return and collect the cheque on 31 July 2001. He went and advised Christopher Mangisi accordingly. On 31 July 2001, he went to Mangisi and Associates before proceeding to collect the cheque and informed Christopher Mangisi that he was going to collect the cheque. Christopher Mangisi told him that that was in order. He proceeded to the bank and collected the cheque….,. He returned with the cheque to Christopher Mangisi who called his wife and secretary. He instructed the secretary to issue the plaintiff with two receipts which were issued to the plaintiff in the presence of Christopher Mangisi and his wife, the fourth defendant. The two receipts were filed of record…,. They are both on Mangisi and Associates letterheads. Both receipts reflect that the plaintiff had purchased Flat Number 42064/13 Madlela Flats on 31 July 2001 and he had paid the purchase price of $210,000= in full.

After the payment in full was made, the plaintiff asked for the form of offer to purchase but Christopher Mangisi told him that the form was no longer relevant since he had paid the purchase price in full but the plaintiff suspected that Christopher Mangisi was hiding it as he (Christopher Mangisi) had not signed it. He then asked Christopher Mangisi when he was going to take occupation and was told the end of September 2001. He then advised Christopher Mangisi that he had been given a grace period by his former employer and was in no hurry to occupy the flat. Surprisingly, on 10 August 2001, Christopher Mangisi called him to his office and asked him if he could accompany him to the Mzilikazi Housing Office. It turned out that that was the day the Flat was transferred into Christopher Mangisi's name. From there, he drove the plaintiff to House Number 33297, Entumbane where he introduced him to the occupants as his friend. After going round and round in circles, Christopher Mangisi finally told the plaintiff that the people occupying the flat were refusing to vacate despite the fact that they had been given notice to vacate.  He went on to tell the plaintiff that he had no money to pay a lawyer to have them evicted. It was then that it dawned to the plaintiff that Christopher Mangisi was calling him to his office to tell him that. The plaintiff was naturally not amused by that. He got angry, and in a fit of anger he told Christopher Mangisi that he was no longer interested in the flat and demanded his $210,000= back. As expected, Christopher Mangisi, said he no longer had the money as he had already used it to purchase a car and to clear his other debts.

The next day, after his anger had cooled down, he went back to Christopher Mangisi who took him to some legal practitioners known as Hara & Moyo Legal Practitioners and introduced him to Mrs Moyo.  He told the lawyer that the plaintiff was the new owner of Flat 42964/13 Madlela Flats, Makokoba. Christopher Mangisi informed the lawyer that he had no money to pay for the evictions of the tenants therefrom.

The plaintiff then agreed to pay, on behalf of Christopher Mangisi, for the evictions of the tenants. He paid $100,000= to Mrs Moyo – Hara & Partners, on 21 August 2001, and was given a receipt. Annexure “E”..,. The plaintiff further paid a sum of $31,797=50, on behalf of Christopher Mangisi, on 28 March 2002, for the eviction of a tenant known as Isaac Moyo who was eventually evicted at the end of September 2002. The receipt was filed of record…,. Christopher Mangisi was given the receipt and was happy that Isaac Moyo was evicted.

Christopher Mangisi and his wife were aware that the plaintiff would take occupation of the flat after Isaac Moyo's eviction at the end of September 2002. He actually informed them when he took occupation.

Trouble started when the plaintiff requested that the Flat be transferred into his name. Christopher Mangisi began to demand a further payment of $900,000= and stated that his wife was asking for that amount because of inflation as the Zimbabwe dollar was losing value. He refused to effect cession before that amount was paid.

The plaintiff went to inform Ms Moyo, the lawyer, about the new developments and she referred him to his current legal practitioners because Christopher Mangisi was her client. His legal practitioners addressed a letter to Mangisi and Associates on 11 October 2007 pointing out to them that their refusal to transfer the property into the name of the plaintiff was wrongful and unlawful. They were advised that the position they had taken was illegal and malicious and were warned that failure to make appropriate arrangements to effect transfer within seven (7) days would lead to litigation being instituted for which attorney and clients cost would be claimed.

The plaintiff told the court that he had stayed at House Number 33297, Entumbane for 11 months whilst Christopher Mangisi was battling to evict the tenants from the flat. Christopher Mangisi had asked one Alex Mazula to accommodate the plaintiff pending eviction of the tenants from the flat. The plaintiff paid rentals directed to Alex Mazula. After the evictions of all the tenants from the flat, the plaintiff took occupation as its owner. Christopher Mangisi and his wife never demanded for rentals from him. He has been paying rates and taxes ever since he took occupation of the flat as the owner….,.

The court has not difficulty in finding that there was clearly a valid contract between the parties.

The applicant seeks an order that the sale agreement she entered into on 12 March 1996 with the second respondent be declared valid and binding on the parties. She also seeks an order that the transfer of the property in issue to the second, third and fourth respondents be set aside and the second respondent pass transfer of the property to the applicant….,.

The brief background to the matter is that the late Phillip Munemo, during his lifetime, was the owner of Stand No.16648 Unit M Seke. He died on 8 October 1995. On 29 May 1996, the estate of the late Munemo was registered under DR888/96. The second respondent was appointed heir in terms of Letters of Administration issued to him. Earlier on, on 12 March 1996, the second respondent, in his capacity as heir, entered into an Agreement of Sale to sell the property to the applicant. The agreement was with the consent of the surviving spouse, the mother to the second respondent. The applicant paid the purchase price in full, in the sum of $39,000=, to the Estate Agent who was handling the sale. She also took occupation of the property. The second respondent and his mother were given $29,000= leaving a balance of $10,000= in trust, to be paid upon cession of the property.

The surviving spouse died sometime in 1998.

The second respondent became evasive regarding the cession issue, misrepresenting that the Estate had not yet been registered. At some point, he was incarcerated. When he came out of prison, he demanded that the applicant make further payments towards the purchase price and she refused.

Meanwhile, on 24 November 2004, the third and fourth respondents registered the estate at Chitungwiza Magistrate Court under DR No.5283/04. The third respondent was appointed Executor Dative and was given authority to effect cession of the property into the names of the second, third and fourth respondents. This was done on 8 February 2005. In December 2004, the applicant was shocked to receive summons for eviction issued by the third respondent. The matter was dismissed in the Magistrate's Court. 

The applicant then brought the present proceedings.

This is an opposed application. Shortly after hearing argument, I issued the following order;

1. The first and second respondents sign all necessary documents to effect transfer of Stand 1396, Cosmos, Westgate Township, to applicant.

2. In the event that first and second respondents do not comply with (1) above, fourth respondent be and is hereby authorised to sign necessary documents to effect transfer of Stand 1396, Cosmos, Westgate Township, to applicant.

3. Third respondent be and is hereby directed to transfer Stand 1396, Cosmos, Westgate Township, to applicant.

4. First and second respondents to pay costs of suit on a higher scale.

This order was issued on 12 December 2013. Subsequently, on 14 February 2014, counsel for the first and second respondents requested for reasons. These are they.

The facts of this matter are, in the main, common cause. They are as follows:

The first and second respondents, who reside in California, USA, granted one Jimias Madzingira of No. 29 Churchill Avenue, Alexandra Park, Harare power of attorney to act for them in any lawful way with respect to the following subjects;

(a) Real property transaction;

(b) Banking and other institution transactions; and

(c) Tax matters.

Further, the first and second respondents granted their agent the following “special instructions:  The real property transaction is related to property No.1396 Cosmos Street, Westgate, Bluff Hill, Harare, Zimbabwe.”

Acting on this power, Jimias Madzingira entered into an Agreement of Sale with the applicant in respect of Stand 1396, Cosmos, Westgate Township, Harare, belonging to the first and second respondents, on 30 October 2012. The applicant, a duly registered Family Trust had been a tenant on the subject property since 2003 in terms of a lease agreement between Brian Mafirambudzi and the first and second respondents. The lease was facilitated by the respondents' own agents, namely, Property Hopes Real Estate, to whom the applicant had always paid rentals for onward transmission to the respondents. The applicant was informed by these estate agents that the property was for sale in 2011. Negotiations ensued, culminating in an Agreement of Sale – see Annexure A….,. In terms of this Agreement, the first and second respondents sold the property to the applicant for US$95,000= payable on or before 7 November 2012. The applicant paid the full purchase price into the first and second respondents' nominated agents account by August 2012.

Despite giving the applicant vacant occupation, the first and second respondents have failed, or refused, to pass transfer to the applicant prompting the applicant to make this application.

The first and second respondents opposed the application through their agent, Jimias Madzingira, who filed their opposing affidavit. In that affidavit, it is conceded that, indeed, the property was sold to the applicant. It is further conceded that the applicant was represented in those “negotiations for the sale of property” by Brian Mafirambudzi. The respondents averred, however, that there was, in fact, no agreement of sale concluded between the parties because Brian Mafirambudzi did not sign the Agreement of Sale – see execution clause of the agreement…,. Further, it was conceded that the applicant paid at least US$73,500= to the parties' joint estate agents, Property Hopes Real Estate.

The respondents also contended that they cancelled the Agreement of Sale on 13 December 2012 and served a notice to this effect on the estate agent. The respondents prayed for the dismissal of the applicant's case with costs on a higher scale.

The applicant then filed an answering affidavit in which it insisted, inter alia, that there was a valid Agreement of Sale between the parties and that it paid the purchase price in full as evidenced by the receipts attached and marked Annexure A….,.

On the merits, the respondents, in their heads of argument, submitted that there was no valid agreement between the parties in that the written agreement was not signed by the applicant's representative. The argument is put thus;

“6.1 Pursuant to that power of attorney, Jimias Madzingira nominated and appointed Property Hopes Real Estate (Pvt) Ltd as an agency for the first and second respondents represented by Madzingira concluding a written agreement which the applicant did not sign.”

Further, it was submitted, in the same heads, that the applicant was in breach of the terms of the written agreement. The argument was couched in the following manner;

“4. The applicant has breached the terms of the alleged agreement by failing to pay the whole amount due to the first and second respondents resulting in the first and second respondents cancelling the purported agreement and counter-suing for an order confirming cancellation….,.

9. The applicant has breached the terms of this agreement which he did not sign by failing to pay the purchase price. See clause 2 of the agreement which says that “the purchaser shall pay the full purchase price of US$95,000= to Property Hopes Real Estate by the 30^th of October 2012 and to be released to the seller within seven days of signing of the agreement of sale but not later than 7 November 2012 less estate agent commission and capital gains tax.”

During the hearing, counsel for the respondents indicated to the court that he was “dropping, the second point and concentrating on the first point in limine.”

 WHETHER THE SUBDIVISION OF THE FARM HAD ANY EFFECT ON THE ORDER OF SPEIFIC PERFORMANCE

The court ordered specific performance wherein the basis for the respondent in approaching the court was the allegation against the appellants that they had subdivided their farm and were selling the subdivisions thereof. 

The court a quo found, for a fact, that the farm had been subdivided. The court said…,:

“Instead, they tried to sell divided portions of the farm to other people contrary to the agreement.”

The Final Offer was in respect of the whole farm. A whole piece of land is a different entity to subdivided portions of the same. Once the appellants obtained a subdivision permit in respect of the farm, the merx, as it originally stood and offered to the respondent, had ceased to exist. The subdivision of the farm resulted in the creation of a number of different properties, such that there no longer was a farm, but a number of plots where the farm once stood.

It is trite that the remedy of specific performance is a discretionary power vested in a judicial officer. In Farmers' Co-operative Society (Reg) v Berry 1912 AD 343, INNES JA stated…, 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. As remarked by KOTZE CJ in Thompson v Pullinger (1 OR p 301), 'the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt'. It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance will be made."

In Zimbabwe Express Services (Pvt) Limited v Nuanetsi Ranch (Private) Limited 2009 (1) ZLR 326 (S), GARWE JA had occasion to comment:

“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) at 783 C-D.”

The principle lex non cogit ad impossibilia states that specific performance should never be ordered if compliance with the order would be impossible; RH Christie, The Law of Contract in South Africa, 3^rd ed….,; also see Rissik v Pretoria Municipal Council 1907 TS 1024 1037.

The respondent inexplicably assumed that the merx, viz the farm still existed, this despite the subdivisions. The subdivision of land is not a matter of form, it is one of substance. The remedy of specific performance was not available to the respondent.

Instead of suing for specific performance, it was open to the respondent to sue for a mandamus directing the appellants to attend to the consolidation of the subdivisions so that the remedy of specific performance could be complied with. However, that is not the route that the respondent took and the court a quo should have considered the dispute on the facts before it. 

The order it gave was impossible and incapable of performance by the appellants.

DISPOSITION

It is not in doubt that the court a quo held that the Irrevocable Memorandum of Understanding was an enforceable agreement and granted the relief of specific performance on its basis. In doing this, the court a quo was clearly wrong in three fundamental respects;

(i) Firstly, it erred in holding that the Irrevocable Memorandum of Understanding and the Final Offer could amount to a contract of sale. The Irrevocable Memorandum of Understanding was not an enforceable contract as concluded by the court a quo.

(ii) Secondly, it erred in ordering specific performance on the basis of the Irrevocable Memorandum of Understanding which was not only void for want of statutory compliance, but whose existence had terminated through effluxion of time. If the Irrevocable Memorandum of Understanding was an 'enforceable' contract, it was invalid for want of compliance with the Land Acquisition (Disposal of Rural Land) Regulations, S.I.287 of 1999.

(iii) Thirdly, it ordered specific performance where the merx was no longer in existence and available for disposal.

In addition, specific performance could not possibly have been granted because the merx was no longer available. There was no basis for the court a quo to order specific performance on the basis of the Final Offer and the Irrevocable Memorandum of Understanding.

I am satisfied that, for the above reasons, the appeal has merit and must therefore succeed.

In the result, the following order will issue:

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and in its place the following is substituted:

IN GENERAL

Much time was also devoted by the appellant and the court a quo on whether the bursary was withdrawn by the respondent and whether there was any basis for such withdrawal.

As already stated earlier in this judgment, there was no such withdrawal; the respondent having met all its obligations for the period of four years during which Fortune studied at the University of Cape Town. The respondent agreed to the deferment of Fortune's obligations for a year to enable him to obtain passes at the required level and to commence work with it thereafter.

DISPOSITION

Fidelis Josiah Chiwedza issued summons against the defendants claiming the following:-

1. A declaratory order that the Agreement of Sale (Annexure B) which was entered into between him and the first defendant's deceased husband be and is hereby held to be valid; and

2. An order that the plaintiff be declared to be the lawful purchaser of the deceased's rights, interest and title in Stand 2384, Highfield Township, Harare; and

3. An order compelling the fifth defendant to accept and approve documents signed by the second defendant and/or fourth defendant, upon the upliftment of the caveats registered against the property, transferring the property from the deceased to the plaintiff failing which the fifth defendant be ordered to accept and approve the documents, signed by the seventh defendant or his lawful deputy transferring the property from the deceased to the plaintiff; and

4. An order that the sixth defendant confirms that he approved and/or approves the sale of the property from the deceased to the plaintiff; and

5. An order directing and authorising the seventh defendant to uplift caveats no.309/88 and 744/95 registered over the property under Deed of Transfer No.6771/85.

6. An order that the costs of suit be paid by the first, second and fourth defendants, jointly and severally, the one paying the others to be absolved.

Fidelis Josiah Chiwedza thereafter died and has been substituted by his wife, Osburga Ndolvu, who was appointed executrix dative of his estate.

The first defendant, Lusia Gombarume, is the surviving spouse of the late Paradzayi George Gombarume who entered into the Sale Agreement with the plaintiff. The second defendant, Polka Executors Services, is the executor dative of the late Paradzayi George Gombarume's estate. The third defendant, Africa Real Estate, is an estate agent which has been mandated to sell the house in dispute by the second defendant. The fourth defendant, P. W Makunike and Partners, was a firm of legal practitioners. Mr Makunike, who filed a consent to judgment on 22 August 2014 indicated in that document that Makunike & Partners (is now obsolete). Mr Makunike was formerly practising with Hove, Mutasa and Associates. He apparently took the late Paradzayi George Gombarume's file with him when he left Hove, Mutasa and Associates (see exhbibit 12).

Osburga Ndolvu, who testified for the estate late Fidelis Josiah Chiwedza, told a simple and straight forward story of how her husband bought Stand 2384, Highfield Township from the first defendant's late husband.

They were looking for a house to buy.

Her husband had recently become a pensioner and had funds from which they could buy a house. They, among several other houses, viewed the late Paradzayi George Gombarume's house. They found the first defendant at home, who confirmed that the house was on sale, as had been advertised in a newspaper. She asked them to come back and talk to her husband who was responsible for the sale of the house. They went back in the evening and found the first defendant's husband not yet at home. He however arrived and agreed with her husband on the sale of the house. The parties eventually agreed to involve the seller's legal practitioners leading to the sale agreement being drawn by Hove, Mutasa and Associates. They agreed on occupation taking place three months later. They moved into the house and lived there peacefully though the late Paradzayi George Gombarume died before transferring the property to her husband.

Her husband also died before the property was transferred to him.

This led to several court cases being filed by her husband and against him till she took over as the executor of her late husband's estate. She produced several supporting documents with the defendant's legal practitioner's consent. She told the court that she was, on most occasions, present when her husband transacted with the late Paradzayi George Gombarume. She said she was present when the late Paradzayi George Gombarume took them to his lawyers where the agreement was reduced to writing.

The first defendant, who was the only witness for the defence, disputed that the property was ever sold to the plaintiff. She told the court that the late Fidelis Josiah Chiwedza and his family were their tenants who refused to continue paying rent after her husband died.

The issue to be determined is whether or not the plaintiff bought the house in dispute from the late Paradzayi George Gombarume.

The determination of the case hinges on the credibility of the witnesses and the corroboration of their testimonies by documental evidence.

The plaintiff's witness gave her evidence convincingly. Most of her evidence is supported by documental evidence. She stood firm under cross-examination. She gave information which could only have been given to her and her late husband by the seller.

The first defendant was not a truthful witness. She lied about not knowing her husband's legal practitioners. She, at some stages, acknowledged them, but deliberately denied knowing them when it became clear that their involvement confirmed the sale.

The fact that the seller's legal practitioners drew the Agreement of Sale is proof that the seller sold his house to the plaintiff. It is inconceivable that the plaintiff would, on his own, discover the seller's lawyers and purport, with their co-operation, to have bought their client's house. It is further inconceivable that the buyer would know, without the seller's cooperation, details of the seller's mortgage bond. It is also inconceivable that if the plaintiff and his family were tenants, the first defendant would not have enforced her right to be paid rentals.

The paper trail from the Agreement of Sale to the fake transfer proves the existence of a sale which the plaintiff wanted finalised.

Counsel for the defendant raised the issue of the forged title deeds as an indication that the agreement of sale and other documents could also have been forged.

I agree that the forging of the Title Deeds suggests that the lawyer concerned cannot be trusted.

This, however, does not affect the Agreement of Sale which was prepared by Hove, Mutasa and Associates whose credibility cannot be affected by Mr Makunike who forged the title deeds long after he left their law firm. The forging of the Title Deeds does not suggest collusion between Mr Makunike and the late Fidelis Josiah Chiwedza; as if that was the case, he would not have reported him to the Law Society as he did through exhibit 12 in which he gave details of how he had been following up the transfer with Mr Makunike who eventually told him, in 2000, that the title deeds were now available. Receipts for the payment of the purchase price issued by Hove and Mutasa (exhibit(s) 2 and 4) are also not affected by Mr Makunike's forgery. The forgery of the title deeds, years after the sale, suggests an attempt by the legal practitioner to silence a purchaser, whose demands for transfer, he was failing to meet. The Agreement of Sale was signed at Hove and Mutasa on 5 February 1995. Payments were receipted at Hove and Mutasa on 6 and 16 February 1995. This fits well into the sequence of events explained by Osburga Ndlovu.

I am therefore satisfied that the first defendant's late husband sold Stand 2384, Highfield to the plaintiff.

The declaratory order, and ancillary orders sought, will therefore be granted except that seeking the upliftment of the caveats. The plaintiff did not cite the Cold Storage Commission and the other person in whose favour those caveats were registered. A court cannot grant orders against a party who has not been cited and given an opportunity to defend himself.

The confirmation of the sale by the Master of the High Court is not necessary as the sale took place during the seller and purchaser's lifetime.

It is therefore ordered as follows:-

1. It is declared that the Agreement of Sale (Annexure B) which was entered into between the late Fidelis Josiah Chiwedza and the late Paradzayi George Gombarume be and is hereby held to be valid; and

2. The Estate late Fidelis Josiah Chiwedza be and is hereby declared to be the lawful purchaser of the late Paradzayi George Gombarume's rights, interest and title in Stand 2384, Highfield Township, Harare; and

3. The fifth defendant shall accept and approve documents signed by the second defendant, upon the upliftment of the caveats registered against the property, transferring the property from the estate late Paradzayi George Gombarume to the estate late Fidelis Josiah Chiwedza, failing which the fifth defendant shall accept and approve the documents signed by the seventh defendant or his lawful deputy transferring the property from the estate late Paradzayi George Gombarume to the estate late Fidelis Josiah Chiwedza; and

4. The costs of suit shall be paid by the first and second defendants, jointly and severally, the one paying the other to be absolved.

Self-created impossibility does not discharge the contract, but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.

The background facts are that the plaintiff expressed interest in Stand 5233 Salisbury Township Lands, measuring 3,309 square metres, which is the property in dispute.

The property belongs to the estate of the late Robert Eric Rae. An Agreement of Sale was concluded on 22 October 2009 between the plaintiff and Property Shop, the estate agent firm which handled the transactions, for the sum of US$220,000=. On mode of payment, the Agreement provided as follows:

“The Purchaser shall pay cash deposit of US$100,000= [one hundred thousand United States Dollars] of which US$30,000= [thirty thousand United States Dollars] shall be non-refundable] upon signing of the agreement of sale.

The purchaser shall pay the sum of US$60,000= [sixty thousand United States Dollars] on or before 30 November, 2009 and the balance of US$60,000= [sixty thousand United States Dollars] on or before the 31^st December, 2009.”

The above mode of payment has been the source of the dispute.

The plaintiff claims to have paid the US$100,000= cash deposit upon signing of the Agreement of Sale as stipulated by the clause. The first defendant, representing the estate, denies, that any deposit was paid.

The agreed issues for the trial were whether the plaintiff breached the Agreement of Sale with the first defendant, and, if he did, whether the first defendant cancelled the sale. The second agreed issue was whether this was a double sale, with the third defendant as the second purchaser, and, if so, in whose favour did the balance of equities lie.

In my view, the first issue for determination by the court is whether the plaintiff paid the requisite deposit upon signature of the Agreement.

The plaintiff's evidence was that he paid US$100,000.00=, in cash, to Felicity Lock, The Property Shop negotiator, after counting the money at her house in the presence of Shirley Margaret Rae who represented the seller, who was still alive, by virtue of a Power of Attorney. He said he did not ask for a receipt, neither did he obtain any other proof of payment from Felicity Lock. The plaintiff's evidence was that he paid the US$100,000= before he signed the Agreement because payment of that amount was a condition precedent to the signing of the Agreement.

Felicity Lock denied that any payment was made.

She said she expected the plaintiff to pay soon after signing but then the plaintiff showed her some Kingdom Bank documents and said for him to get the money to pay, he needed to sell his shares first and for him to sell the shares, he needed a signed agreement. She said she then gave him Shirley's Rae's Stanbic Account number and told him to deposit the money into that account. She also gave him a Property Shop Account number for him to deposit the agency commission. Her evidence was that Shirley Rae signed the agreement first, in the absence of the plaintiff, and, later, she took the agreement to the plaintiff at some agreed meeting place near Hellenic School.

Shirley Rae also denied that any payment was made to her or Felicity Lock in her presence. Her testimony was that she had not even met the plaintiff when the agreement was executed. She saw him for the first time at the pre-trial conference.

The plaintiff told the court that he is an astute businessman aged 35 years. He said he has been in business since he was 22 years old and has about 13 years business experience. He also said he is a qualified accountant and he has experience in the acquisition of properties as he has eleven properties to his name.

The court found it highly improbable that a qualified accountant and an experienced property investor would part with US$100,000= cash, in the year 2009, when foreign currency was still scarce, without bothering to obtain a receipt or other proof of payment; yet that was the plaintiff's evidence on pages 51 and 52 of the transcribed record;

“Q. Now, before a dispute before the parties erupted, did you ever ask for a receipt?

A.. No, from Felicity no, I never asked for a receipt…,.

Q. It's a simple question, did you ever ask for a receipt?

A.. From Felicity Lock.

Q. Did you ever ask for a receipt?

A.. No, I have proof of payment.”

When the questioning about not asking for a receipt persisted, the plaintiff, in response, said Property Shop was operating from home and the office was not running professionally.

All the more reason why he should have asked for a receipt or some other form of proof of payment if he knew that Property Shop was not being run professionally.

The plaintiff also told the court, in his evidence, that paying US$100,000= cash was a condition precedent to the signing of the agreement. The Agreement is part of the court record and nowhere does the agreement say payment was a condition precedent. It is also highly improbable that a qualified accountant would pay US$100,000= deposit before the agreement has been concluded and leave without any proof of payment.

Even if Felicity Lock had no receipts on account of being “unprofessional”, as the plaintiff alleged, the plaintiff himself could have prepared an acknowledgement note. He knew this was possible.

“Q…,. You could have done an acknowledgement of receipt and say I, Felicity, acknowledge that I have received US$100,000=; you could have done that…,.

A. I could have done that.”…,.

The plaintiff confirmed that he could have done an acknowledgement of receipt himself. But he did not. He admitted that as a businessman he knew that disputes could arise and that he could have had an independent witness with him to confirm the payment; but he said he went alone to make this huge cash payment.

On the other hand, Felicity Lock's evidence was that they did not accept cash as a matter of policy; they gave clients account details for them to deposit the money into the appropriate accounts. She said in this instance she gave the plaintiff Shirley Rae's Stanbic account. She said once the money was deposited into an account, the deposit slip would be sufficient proof of payment. Her evidence sounded truthful and the court accepted it.

Shirley Rae is an 83 year old lady who was around 78 years at the time of the incident with the plaintiff. Her evidence was that the plaintiff never paid cash in her presence and never deposited any money into her account.

Her evidence was believable. Why would an 83 year old lie against the plaintiff and say he did not pay if he had paid? All she wanted was a purchaser who would pay for her husband's property. If the plaintiff had paid, why would she have turned down his money in favour of the third defendant's money when the money tastes the same? The court therefore accepts her evidence as truthful.

In addition to that, on 27 October 2009, when the plaintiff wrote to the second defendant through his lawyers requesting him to put a caveat on the property, he never said he had paid anything. The third paragraph of that letter stated the following;

“The agreement of sale is to be satisfied within a period of three instalments as it fully appears from the attached copy of the agreement of sale.”

The use of the phrase 'is to be satisfied' shows that payment had not yet been done. If the plaintiff had already paid US$100,000= the letter would have said so.

In view of the above improbabilities in the plaintiff's claims, the court rejects the plaintiff's testimony and accepts that of Felicity Lock and Shirley Rae that no US$100,000= cash was ever paid by the plaintiff as a deposit for the property.

The above finding means the plaintiff was in breach of contract from the very day the sale agreement was concluded. He ought to have paid US$100,000= on signing of the agreement; he did not. That was the first breach.

The plaintiff admitted breaching the further requirements to pay $60,000= by end of November and $60,000= by end of December. These were the second and third breaches respectively.

In view of the three breaches, the plaintiff has no basis to claim specific performance by the first defendant.

As held in the case of Lasagne Investments (Pvt) Ltd & Others v Highdon Investments (Pvt) Ltd & Others 2010 (2) ZLR 296…, referred to by the third defendant's counsel, a litigant who seeks an order for specific performance must perforce establish that he has complied with his obligations under the agreement.

The first defendant, through its representatives, comprising of Property Shop and Sinyoro and Partners, gave the plaintiff some grace period.

Felicity Lock's evidence was that she continued to follow up for payment. Mataba, of Sinyoro and Partners', evidence was that when the plaintiff stopped responding to Property Shop's follow up, he got into the fray and also followed up the plaintiff.

All the plaintiff paid was the agent's commission and the conveyancing fees.

These follow ups and indulgences were in order because of the provisions of clause 8 of the Agreement of Sale between the parties.

After getting no joy from the follow-ups for payment, on 27 November 2009, Sinyoro and Partners gave the plaintiff 30 days' notice to remedy the breach. The letter was sent to the plaintiff's domicilium citandi executandi given in the Agreement of Sale on the schedule of details as 40 Dover Road, Chisipite, Harare as provided in clause 9 of the Agreement of Sale.

The plaintiff claimed not to have seen the notice. However, since the notice was sent to his domicilium, in terms of the Agreement, the notice was validly given.

Clause 9.2 of the Agreement of Sale provides as follows:

“All notices required to be given in terms of this agreement and all process shall be deemed to have been validly given or served if addressed to the party concerned and delivered to the given domicilium, postal, or e-mail address.”

This means that a party had to choose to deliver to the given domicilium, post to the domicilium or use an email address.

In this instance, the notice was “addressed to the party concerned and delivered to the given domicilium.”

The plaintiff did nothing about the notice, and, on 30 December 2009, a letter confirming the cancellation of the Agreement was addressed to the plaintiff and sent to the given domicilium.

During the trial, the plaintiff tried to take issue with the fact that by 30 December 2009, thirty (30) days notice was not complete.

While the plaintiff's basis for saying that is not clear, the court notes that no prejudice was caused to the plaintiff thereby because the third defendant's evidence clearly shows that his own Agreement of Sale was concluded when thirty days had expired - in January 2010.

In any event, the default clause provided that the breach should be rectified “within thirty (30) days of notice calling upon him to do so”. It did not say after thirty (30) days' notice.

It is clear from the facts of this case that the first defendant and its representatives always sought to abide by the terms of the contract while the plaintiff was busy doing his own thing - which was at complete variance with the signed agreement. He therefore repudiated the contract from the onset.

The cases referred to by the first defendant's counsel on repudiation of contracts are relevant to this case. In Chinyerere v Fraser NO 1994 (2) ZLR 234 it was held that -

“Before a contract could be said to have been fulfilled per acquipollens, it was necessary that the act or performance tendered must be equivalent to that mentioned in the contract…,.”

In this instance, the performance which was required was that of paying $100,000= “upon signing the contract.” The plaintiff did not pay upon signing as required by contract. In Ross T Smyth & Co Ltd v TD Bailey, Sons Co [1940] ALL ER 60 (HL)…, the court said -

“I do not say that it is necessary to show that the party alleged to have repudiated should have an actual intention not to fulfil the contract. He may intend, in fact, to fulfil it, but may be determined to do so only in a manner substantially inconsistent with his obligation, and in no other way.”

The plaintiff's case is a good example of a party wanting to pay on his own terms, and not in terms of the stipulation in the contract. As held in Ross T Smyth & Co Ltd v TD Bailey, Sons Co [1940] ALL ER 60 (HL), such conduct amounts to repudiation.

Consequently, the plaintiff's contract was validly terminated after he breached it from the outset and failed to remedy the breach during the grace period accorded to him.

The third defendant is therefore not a second purchaser because there was no other agreement in force when his own contract of sale was concluded.

The plaintiff's claims that his contract be declared valid and enforceable while that of the third defendant is declared null and void are therefore dismissed.

All the parties prayed for costs on a higher scale, and, during the proceedings, they all made some justification for the higher scale.

The plaintiff shall therefore pay the defendants' costs on the legal practitioner and client scale.

In Adleu v Elliot 1988 (2) ZLR 283 (S) GUBBAY JA…, recognised that in oral contracts the court had the power to determine whether the terms of that contract required exact performance or the performance of some equivalent act. He stated thus:

“The application of this broad principle [that it is not for the court to remake a contract of the parties in line with INNES CJ in Ambrose and Aitken v Johnson and Fletcher 1917 AD 327 at 343 and the remarks of BEADLE CJ in Holmes v Palley 1975 (2) RLR 98 (AD) at 105C that one party to a contract was not entitled to expect that it will be carried out in a different manner than agreed because of the absence of prejudice] does not, of course, preclude a court from determining whether the parties to an agreement intended that a particular term thereof was to be fulfilled in forma specifica, that is, in the exact manner agreed upon by the parties or per acquipollens, that is, by some equivalent act…,.

Where the agreement is in writing and the language employed is sufficiently clear, the common intention of the parties must be extracted from the agreement itself. But, if the language is ambiguous or where the agreement of the parties was oral, then the court is obliged to have regard to the surrounding circumstances, and to any other admissible evidence in order to ascertain whether the common intention of the parties was to be fulfilled in forma specifica or whether performance thereof by some equivalent act would suffice.”

In Adleu v Elliot 1988 (2) ZLR 283 (S), the parties entered into an agreement of sale in which part of the purchase price was payable abroad in foreign currency and the remainder at home in local currency. GUBBAY JA approved the four factors outlined by CLAASEN J in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA…, that:

“1. If the surrounding circumstances and other admissible evidence afford no clue as to what was in the contemplation of the parties then there is a rebuttable presumption in favour of performance in forma specifica. But the presumption cannot be rebutted where it is clear from the terms of the contract that performance in forma specifica had been stipulated.

2. In case of doubt, the court will be more likely to find in favour of performance per acquipollens if the manner of performing the term is not material and also where performance in forma specifica is impossible through no serious fault on the promissors part.

3. The act or performance tendered per acquipollens, where such is permissible, must be an equivalent act to that stipulated for or be of such a nature that it can make no material difference to the promise.

4. Where the promissor succeeds in rebutting the presumption mentioned above, there may be circumstances falling short of impossibility and even where there may be some fault on the part of the promissor; a court may be justified in concluding that the promissor's perfomance or tendered performance amounted to substantial performance.”

It seems to me, as appears from Dobrock (Pvt) Ltd's averment, that the parties contemplated that payment would be in sterling pounds in England, into the account of Antony Turner's daughter, Jenny.

Dobrock (Pvt) Ltd was willing to pay “where and when” Turner & Sons desired it be made. The agreement was sealed when Dobrock (Pvt) Ltd agreed to make payment in foreign currency in England. The parties thus contemplated exact performance and not some substantial performance. That exact performance was, however, illegal. There is no room for the application of CLAASEN J's formulation in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA in these circumstances….,.

I agree with counsel for Turner and Sons that Dobrock (Pvt) Ltd's claim on specific performance and other subsequent relief related thereto should be dismissed.

I must point out that the harsh economic environment leading to the late payment of rentals is a moral issue for the parties.

The court notes that the prevailing economic situation affects those in Zimbabwe in business across all the financial and industrial sectors.

In my view, this moral issue does not absolve or indeed exonerate parties from complying with contractual obligations. Such an approach would lead to chaos in business and many would seek to escape from their obligations on the flimsiest of excuses.

In Pioneer Transport (Pvt) (Ltd) v Delta Corporation & Anor 2012 (1) ZLR 58 (H)…, it was held that;-

“The nature of a contract is that two or more parties thereto reciprocally promise, or one of them promises to the other or others, to give some particular thing, to do, or to refrain from doing some particular act. There is, consequently, a presumption that in every bilateral or synallagmatic contract the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations.”

The doctrine of sanctity of contract provides that once a contract is entered into freely and voluntarily, it becomes sacrosanct and courts should enforce it.

A person cannot enter into a contract freely, obtain a benefit from it, and then be allowed to repudiate from the obligations he has undertaken.

In African Banking Corporation of Zimbabwe t/a BANCABC v PWC Motors & Ors HH123-13, MATHONSI J…, expressed the following sentiments -

“I find it utterly deplorable that business people are very quick to receive money from Banks undertaking to repay on certain terms. When they have expended the money and enjoyed the benefits they cry foul when the lender demands its dues. We cannot allow a situation where business people grab loans and then refuse to pay.

As they say, the time to pay the piper has come.”

I will hasten to point out that the defendant's own conduct, between the period 2004 and 2011, does not show that they believed that the hyper-inflationary environment relinquished their obligations in terms of the contract, but, rather, that the sums due had to be re-calculated.

I say so because, in 2004, they offered to pay the plaintiff ZW$207,000= (Zimbabwean dollar); they did not say to him that it was no longer possible to meet their obligation. Again, in 2011, they offered the plaintiff US$167=, meaning right up to 2011, they still knew they had a duty to meet their part of the deal.

By the defendant's own conduct, it cannot be held that the contract was no longer possible to perform, but, rather, that they sought to alter the terms of the contract - which alterations were not accepted by the plaintiff….,.

In the case of Unibank Savings and Loans Ltd v ABSA Bank Ltd 2000 (4) SL 191 (W) FLEMING DJP remarked as follows:

“Impossibility is furthermore not implicit in a change of financial strength or in commercial circumstances which cause compliance with contractual obligations to be difficult, expensive or un-affordable. Deterioration of that nature can be foreseen in the business world at the time when the contract is concluded.”

The approach of the courts is therefore that the commercial circumstances that make compliance with contractual obligations impossible are factors which should be regarded as being foreseeable in the business world. It would therefore be very difficult to raise a defence of inability to perform in terms of the agreement that the circumstances caused by an economic recession. It would thus be prudent for the contracting parties to explicitly include vis major in their agreement and specifically provide for an economic recession as a ground for inability to perform in a contract.

The plaintiffs, for seven years, manifestly slept on their rights. They had paid the purchase price in full Yet the evidence established that they made no appreciable effort to take transfer.

The law helps the vigilant and not the sluggard.

Ndebele v Ncube 1992 (1) ZLR 288, 290; Masama v Borehole Drilling (Private) Limited 1993 (1) ZLR 288 (SC); Mubvimbi v Maringa & Anor 1993 (2) ZLR 24 (HC); Maravanyika v Hove 1997 (2) ZLR 88 (HC); Beitbridge Rural District Council v Russel Construction Co (Private) Limited 1998 (2) ZLR 190 (SC); and Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC).

This is an application for specific performance of an Agreement of Sale entered into by the parties....,.

An order for specific performance can only be granted where the applicant can show the existence of a binding contract between the parties, and, further, that the respondent breached the terms of that contract.

Where the existence of a contract is challenged on the basis of lack of authority and the parties continue to engage each other with respect to the contract in issue and perform in terms of the contract, it is pertinent and sensible, in order to discern the real intention of the parties, to consider the word or deed of the parties after the aftermath of the contract.

The facts of this matter, in my view, disclose a tangled web of deceit. The plaintiff is cast in the role of the big hairy spider, and the defendant would have the court believe that she is a harmless fly, caught in the spider's web. There is an underlying element that pervades this case, of an unfortunate malaise that has afflicted business transactions in this country in these harsh economic times. People borrow money, then turn around and come up with the flimsiest of excuses to avoid paying back.

This is an appeal from a judgment of the High Court given on 9 March 2006 dismissing with costs an application for an order compelling the first respondent to transfer Stand 151 of Plot 216 of Good Hope Township of Good Hope into the appellant's name in terms of an agreement of sale entered into between the appellant and the late Robert Mubayiwa Marere on 30 October 1998.

The appellant and the late Robert Mubayiwa Marere (“the deceased”) entered into a written contract on 30 October 1998 in terms of which the latter agreed to sell and the former agreed to purchase Stand 151 of Plot 216 of Good Hope Township of Good Hope (“the property”) for $230,000=.

The parties provided for two alternative methods of payment of the purchase price under Clauses 12 and 7. Under Clause 12, they agreed that the purchase price would be paid as follows:

“1. The sum of $50,000= (fifty thousand dollars) to be paid to ERS REALTY'S TRUST ACCOUNT on signing of this Agreement of Sale.

2. The balance of $180,000= (one hundred and eighty thousand dollars) to be paid at the rate of $30,000= (thirty thousand dollars) per month commencing on the 1st of July 1998 with interest at the rate of 25% effected if the purchaser does not meet the deadline of 30 December 1998.”

Under Clause 7, headed “TRANSFER”, the parties agreed that:

“Transfer shall be effected by the seller's conveyancers and the purchaser shall, within a period of fourteen days, pay or furnish a Bank or Building Society guarantee for payment of the purchase price against transfer. If such payment or guarantee shall not be furnished to the seller's conveyancers the purchase price shall bear interest at 19% per annum from the expiry of such period of fourteen (14) days until transfer shall be effected.”

The details of payment provided for under Clause 7 are so different from those under Clause 12 that an inference must be drawn, as a matter of construction from the terms used, that the parties intended that the appellant would have to decide which of the two methods of payment to follow and be bound by the terms.

Under Clause 10, the parties agreed that in the event of the purchaser failing to pay any sum owing under the agreement on the due date or in the event of any breach of any other condition of the agreement, the seller had to give the purchaser written notice to remedy the breach within fourteen days of the posting of such notice failing which the seller would be entitled to cancel and terminate the agreement of sale, or, alternatively, have the option to institute legal proceedings against the purchaser for the balance of the purchase price then owing under the agreement.

Lastly, they agreed, under Clause 11, that the agreement of sale constituted the entire contract between them and no variation of it would be valid unless reduced to writing and signed by or on behalf of the parties.

No payment of the sum of $50,000 was made by the appellant on signing of the agreement on 30 October 1998 in terms of Clause 12(1) of the contract. An amount of $50,000 had been paid to ERS Realty on 21 May 1998. The receipt states that the money was paid as a deposit of the purchase price in respect of Stand 21G of Lot 216 of Good Hope Township.

Counsel for the appellant argued, on appeal, that Stand 21G of Lot 216 was in fact the same as Stand 151 of Lot 216 of Good Hope Township.

Whilst that may be the case there was nothing said by the appellant in the founding affidavit to support the contention. Similarly, the founding affidavit was silent as to whether Stand 21G of Lot 216 of Good Hope Township in respect of the purchase price of which an instalment of $3,000 was paid to ERS Realty on 31 July 1998 was the same as Stand 151 of Lot 216 of Good Hope Township.

Five receipts of payments of $30,000 made by the appellant to Messrs Manase & Manase, a firm of legal practitioners appointed as the seller's conveyancers, were annexed to the founding affidavit. The payments were all made between 31 March and 12 October 1999. Each receipt states that the payment was a deposit for a purchase price for an unidentified piece of land. The payment is said to be to the credit of an entity called NYIKA Engineering.

Counsel for the appellant suggested, in argument on appeal, that NYIKA Engineering was a company owned by the deceased.

There was no reference to NYIKA Engineering in the founding affidavit.

Even if it is a company there was no explanation given as to why it received payment of the money in terms of a contract to which it was not a party.

The respondent, who became the executrix dative on 24 October 2003 in her husband's estate, denied that the estate received any of the sums of money paid by the appellant to ERS Realty and Messrs Manase & Manase for the property. She denied knowledge of any relationship between NYIKA Engineering and the deceased in his lifetime. She went on to aver, in paragraph 2 of the opposing affidavit that:

“It is also telling that the applicant has not been able to take vacant possession of the said Stand since 1998 and has not claimed it until well after my husband's death and has not sought to enforce his rights to take transfer. This is so because my husband repeatedly informed him that he had not received the purchase price. It is therefore apparent that the applicant knows of the problems associated with this sale and wishes to take his chances with me.”

The court a quo held that payment of the instalments of $30,000= per month to Messrs Manase & Manase constituted a breach of Clause 12(2) of the Agreement of Sale as the appellant was bound to pay the money to ERS Realty. As a result, the application was dismissed with costs.

The contention, on appeal, was that the learned Judge misdirected herself in making the finding that the payment of the instalments to Messrs Manase & Manase was in breach of Clause 12(2) of the agreement of sale. It was argued, in the alternative, that even if the payment was a breach of contract, the learned Judge ought not to have dismissed the application because the deceased or the first respondent had not initiated and completed the procedure agreed on by the parties under Clause 10 of the agreement of sale for termination of the contract.

To determine the correctness of the contention that the court a quo misdirected itself in holding that payment to Messrs Manase & Manase was in breach of Clause 12(2) it is necessary to decide the question as to which of the two methods of payment of the purchase price the appellant was found to have decided to follow.

It is clear that the learned Judge took the view that he followed the method of payment provided for under Clause 12 of the contract. Counsel for the appellant argued that the payments of the instalments were made in terms of Clause 7 of the agreement of sale.

The fact that there was in fact no payment of the deposit of $50,000 on signing of the agreement of sale on 30 October 1998 in terms of Clause 12(1) of the contract would suggest that the appellant decided to pay the purchase price in terms of Clause 7. It is, however, clear from the facts of the case that although the payment of $50,000 to ERS Realty by the appellant on 21 May 1998 was, at law, not payment in terms of the agreement of sale, he believed that it was payment towards the purchase price of the property.

Although he produced no evidence to support the allegation, the appellant had his case argued on the basis that Stand 21G of Lot 216 of Good Hope Township for the purchase price of which $50,000 was paid was in fact Stand 151 of Lot 216 of Good Hope Township.

The learned Judge was correct in finding, on the facts, that the appellant believed he had made the payments in terms of Clause 12 of the agreement of sale. I, however, do not agree with the finding by the learned Judge that if the payment to Messrs Manase & Manase was indeed in respect of Stand 151 of Lot 216 of Good Hope Township it was in breach of Clause 12(2) because it ought to have been made to ERS Realty.

The appellant was specifically required, under Clause 12(1) of the agreement of sale, to pay $50,000 of the purchase price to ERS Realty on signing of the contract. That exclusive mandate did not extend to the payment of the balance of $180,000. Clause 12(2), relating to the payment of the balance, is silent as to whom the payment was to be made. It therefore had to be made to the deceased.

Payment of the instalments of the purchase price to Messrs Manase & Manase, in terms of clause 12(2) of the agreement, would not be in breach of the contract provided the appellant made sure that the deceased received the money.

It is clear from the facts that the appellant failed to prove that the payments he made were in terms of the contract. He failed to show that there was payment of $50,000 to ERS Realty on signing of the agreement. There was no term in the agreement of sale by which the parties acknowledged payment of $50,000 before the signing of the contract. There was no evidence at all in the papers to show that the deceased received any of the payments made either to ERS Realty before the signing of the agreement of sale or to Messrs Manase & Manase after the signing of it.

The first respondent denied that the deceased received any of the payments. All that the appellant could say in the answering affidavit was that the question whether the deceased received the money in terms of the contract was not for him to answer.

The appellant chose to proceed by way of a court application to claim the order of specific performance against the first respondent. As the proceedings were by way of a court application and there were disputes of fact the final relief could only have been granted if the facts stated by the first respondent together with the admitted facts in the appellant's affidavit justified such an order. Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) …,.

As the court a quo was not satisfied as to the inherent credibility of the factual averments in the appellant's affidavit and the first respondent's denial not found to have been patently false it correctly held that it could not grant the order sought.

The appellant had applied for an order of specific performance of the deceased's contractual obligation to transfer the property into his name by the first respondent.

That a party to a contract has, in an appropriate case, a right to claim specific performance is not in doubt. In Shakinovsky v Lawson & Smulowitz 1904 TS 326 INNES CJ said…,:

“Now, a plaintiff has always the right to claim specific performance of a contract which the defendant has refused to carry out, but it is in the discretion of the court either to grant such an order or not.”

See also Farmers Co-operative Society (Reg) v Berry 1912 AD 319…,.; Haynes v Kingwilliamstown 1951 (2) SA 371 (A)…,.; Industrial & Mercantile v Anastassiou Bros 1973 (2) SA 601…,.; Ranch International Pipelines (Pvt) Ltd v LMG Construction (City) (Pvt) Ltd 1984 (3) SA 861…,.; Minister of Public Construction v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S)…,.

The right to claim specific performance of a contract by the other party is premised on the principle that the appellant must first show that he has performed all his obligations under the contract or that he is ready, able, and willing to perform his own side of the bargain.

WESSELS, The Law of Contract in South Africa, Vol 11…, states that:

“The court will not decree specific performance where the plaintiff has himself broken the contract or made a material default in the performance on his part (Lawson, s. 472, p.522).

A plaintiff is not entitled to succeed against a defendant in an action for breach of contract unless he can show that he has performed his part or is ready to do so; and, therefore, he cannot ask for specific performance unless he has either performed his part of the contract or unless he has been prevented from doing so by the defendant.”

See also Wolpert v Steenkamp 1917 AD 493…,.

The effect of the finding by the court a quo was that the appellant failed to show that he had fulfilled his own obligations under the contract. The view I have taken of the facts is also that the appellant failed to show on the papers that he had paid the purchase price of the property in terms of the agreement of sale. There was no payment of the sum of $50,000 on signing of the agreement of sale. There was no proof that the monies paid to Messrs Manase & Manase were received by the deceased.

Even if these sums of money could have been paid to the credit of the deceased, they were paid after the date the appellant would have been bound under Clause 12(2) of the agreement of sale to complete the purchase of the property. The interest which would have been due and owing would not have been paid.

The appellant did not tender any payment to show that he was ready, able, and willing to fulfil his own obligations under the contract. By his own conduct, the appellant dis-entitled himself to claim specific performance of the contract by the first respondent.

The appeal is accordingly dismissed with costs.

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot.

The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell Muzangaza. The defendant gave evidence and called the testimony of two other witnesses who were Pastor Elizabeth Nyakudanga and Tedius Kagande. A total of six (6) documentary exhibits were produced by both parties.

THE PLAINTIFF'S CASE

The plaintiff is an 83 year old woman. She cannot read or write. She has difficulty in walking. According to her summary of evidence, her husband died on 18 February 1982. In their pleadings, both parties accepted that she was appointed an executrix dative on 22 August 2007 and subsequently became the legal holder of the rights, title, and interest in Stand 1125 Makomo Extension, Epworth in Harare.

After the death of her husband she survived on handouts from well-wishers. She became a member of the Ambassadors for Christ Ministries; a church led by, amongst others, Tedius Kagande. Kagande doled out handouts to her, and, purporting to act under the auspices of the church, built for her a more habitable two roomed structure on the Stand in question. He requested her to sign a certain document on which he purportedly wrote out her grandchildren's names and the materials required for the construction of the more habitable structure. She did not know whether he built it from his or church funds. Thereafter, he introduced her to the defendant, who was a teacher by profession, and a member of the same church. The defendant was supposed to look after her. She allowed the defendant to build another two-roomed house for his use on the Stand after she was assured that he would be there for a short while. The defendant has been ensconced on her Stand for the past nine (9) years. He neither pays rentals nor municipal charges.

She was adamant that she did not sell the smaller portion for $16,000= or the bigger one for $23,000=. She disputed executing exhibit 1A and 1B averring that she was illiterate. She denied seeking the subdivision of the Stand in 2000. She averred that it was in 2008 that she went with the defendant to the Epworth Local Board to have the dispute resolved; and not to seek the subdivision of the Stand.

She was cross examined.

She considered Tedius Kagande as a leader of the church in Epworth and did not know Pastor Nyakudanga and Pastor Matyora. She disputed that she advised Kagande, in 1999, that she was selling a portion of her Stand. She denied receiving $16,000= in the presence of Tedius Kagande, the defendant's wife, and her daughter, Eneresi Simon. She disputed that the amount in question was used by Tedius Kagande in the construction of her two rooms. She denied requesting Eneresi Simon to sign exhibit 1A on her behalf before a Commissioner of Oaths. She also denied executing exhibit 1B. She disputed using her daughter to sign legal documents on her behalf.

She related how the defendant sought to evict her from her Stand at the Magistrates' Courts. She did not appear to be aware of exhibit 2, the warrant for the ejectment of the defendant which she obtained on 3 August 2001 in the Magistrates Court; exhibit 3, the affidavit signed on 16 May 2001, in her name, in the hand similar to that of her daughter in exhibit 1A and exhibit 4; her application for a peace order dated 13 December 2001 in which she graphically set out how the defendant was disturbing her peace. She denied attending a funeral in Malawi using the proceeds of the sale of a portion of the Stand. She was given money by her daughter who was her breadwinner. She denied informing Pastor Nyakudanga and Charles Shamuyarira of the sale of a portion of her Stand to the defendant.

Eneresi Simon stated that her mother never sold a portion of the Stand to the defendant. She identified exhibit 1A as the blank document on which she wrote out the plaintiff's name and national identity number. She stated that her mother did not sell a portion of the Stand for $16,000= or $23,000=. She denied signing exhibit 1A before a Commissioner of Oaths.

She stated that her mother's trip to Malawi was funded by her daughter-in-law in Malawi. In 2008, she accompanied her mother and the defendant to the Epworth Local Board offices where they saw Mr. Muzangaza. The plaintiff was against the subdivision of her Stand.

She was cross-examined.

She admitted to signing a blank exhibit 1A but denied signing exhibit 1B. She stated that the defendant sought to evict the plaintiff notwithstanding that exhibits 2 and 3 indicated her mother as the plaintiff. That the defendant sought to evict the plaintiff from the Stand was confirmed by exhibit 6, the summons issued out of the Magistrates' Court by him on 27 June 2002. She denied signing for her mother in exhibit 3 and 4. She disputed that $16,000= was paid in her presence. She averred that her mother, who is of Nyanja origin, could not converse in Shona.

Cagewell Muzangaza is a Building Inspector for the Epworth Local Board. In that capacity he deals, inter alia, with sub-divisions of residential Stands in Epworth. He told the court that the Stand is registered in the plaintiff's name. He stated that temporary structures, which are not based on an approved plan, are on the Stand. He explained that a subdivision of a Stand is initiated by the registered holder who writes to the local authority and fills in a special document to this effect identifying to whom the sub-division is to be registered. The Housing department vets the information and makes its recommendations and forwards these to his department. The witness checks the Stand on his master plan prepared by town planners and approved by the Department of Physical Planning in the Ministry of Local Government to satisfy himself whether it is feasible to subdivide the Stand. He forwards his recommendations to the Urban Development Corporation (UDCORP). He stated that it is only the local authority which approaches UDCORP and not the registered holder, or, for that matter, anyone else.

He stated that in the file of the Stand in his custody is a request purportedly made by the plaintiff in 2000 for a subdivision in favour of the defendant. The application was rejected for two reasons. Firstly, she was not the registered holder; her husband was, and, secondly, there was no subdivision permit for the Stand.

He further revealed that on 20 December 2007 the Urban Development Corporation (UDCORP) wrote an unsolicited letter, exhibit 5, to the local authority. The local authority ignored it because it had not originated from it. He categorically stated that a sale of a portion of a Stand cannot be approved by the local authority prior to sub-division.

He was cross examined.

He disputed the averment that he was interested in the portion that was allegedly disposed to the defendant. He denied that the Urban Development Corporation (UDCORP) wrote its letter in response to that of the local Board. At one time in 2008 the parties came to see him. The defendant wanted sub division but the plaintiff was against it as the matter was pending in Court and alleged that the defendant was forcing her to sub-divide the Stand.

As will more fully appear when I determine the issues referred to trial, I believed the plaintiff and her witnesses. They gave consistent and credible testimony.

THE DEFENDANT'S CASE

The defendant stated that he purchased a portion of the Stand from the plaintiff through the medium of Tedius Kagande. He paid $16,000= to the plaintiff in the presence of his wife, Tedius Kagande and Eneresi Simon in September 1999. They drove into town to Mr. Gode, a Commissioner of Oaths, before whom Eneresi Simon signed for her illiterate mother on exhibit 1A. The plaintiff persuaded him to buy the bigger portion of the Stand by an additional payment of $7,000=. She accepted periodic payments.

The latter agreement was recorded as exhibit 1B and executed for the plaintiff by her daughter, Eneresi Simon.

He commenced construction and started to reside on the Stand on 1 February 2000. Even though the Stand was in her late husband's name, the plaintiff submitted an application for sub-division to the local Board. The application failed because the plaintiff had not constructed the main house on the Stand. The plaintiff was not in a position to do so; so he suggested that he build the main house and have it registered in his name. She took the view that he wanted to evict her and all hell broke loose.

The plaintiff issued summons for his eviction and obtained a default judgment on 19 May 2001, in case number 7926/2001, as shown in exhibit 2. She deposed in an affidavit, exhibit 3, on 16 May 2001, that the defendant was her grown up son who was giving her problems. It was purportedly signed by her; her full names were handwritten above her typed name.

He confirmed the visit to Cagewell Muzangaza in 2008 where the plaintiff refused to have the Stand sub-divided into his name. He produced exhibit 5, a letter written to the local Board by the Urban Development Corporation (UDCORP) on 20 December 2007 for Stand 1171. The typewritten Stand number 1171 was cancelled by pen and the number 1125 inserted. The cancellation was not countersigned. It does not refer to any previous correspondence from the local authority. Its authenticity is questionable. In my view, it does not assist the defendant in his case.

He was cross-examined.

He stated that he borrowed $16,000= from his employers. Tedius Kagande told him of the purchase price and it was confirmed by the plaintiff. Tedius Kagande's young brother authored exhibit 1A. He further averred that the sum of $16,000= was paid in the presence of the young brother after he had drafted exhibit 1A. On 28 October a new agreement on the additional payment for the bigger portion was executed. The typed agreement, exhibit 1B, was typed by Tedius Kagande at his town offices. By then, the plaintiff had commenced building her two roomed structure. He commenced building on the portion sold to him after the execution of exhibit 1B. He paid the installments of $7,000= in two batches of $3,000= and 4,000= in February and April 2000, respectively, to the plaintiff in the presence of Eneresi Simon.

He disputed issuing summons to evict her contrary to exhibit 6, the summons in his name dated 27 June 2002, for the eviction of the plaintiff alleging he had purchased the Stand. He maintained buying the bigger portion of the Stand and denied conniving with Tedius Kagande to defraud the plaintiff of a portion of her Stand.

He called the evidence of Elizabeth Nyakudanga, a pastor of the church attended by the parties in 1999. The pith of her testimony was that the plaintiff informed her that she had sold a portion of the Stand so that she could use the proceeds to build a better house. Her church was not involved in humanitarian work at the time of the sale.

Under cross examination, she alleged that the defendant paid the full amount of $23,000= in 1999. She revealed that the defendant refreshed her memory of the events of 1999 in January 2009.

The last witness to testify for the defendant was Tedius Kagande. He stated that he was asked by the plaintiff to find a buyer and he connected her to the defendant. He took him to the plaintiff and handed $16,000= to Eneresi Simon who was with the plaintiff. On his suggestion exhibit 1A was executed. It was drawn up by his young brother and signed before a Commissioner of Oaths.

He built the cottage of cement blocks for her after listing the required materials. The materials cost half the amount paid by the defendant. He did not charge her for his labour. He did not supply her with free food handouts. She later approached him for the sale of the bigger portion and he referred her to the defendant. He was not involved in the latter agreement.

Under cross examination, he revealed that the defendant raised the purchase price without viewing the Stand. The price was fixed by the plaintiff and her daughter. His brother was not at the plaintiffs where the money was paid but was in town. The first agreement was signed at his town offices and taken to a commissioner for affirmation only. He denied cheating the plaintiff.

For the reasons that will become apparent when I determine the issues referred to trial, I found the defendant and his witnesses incredible witnesses.

THE ISSUES

At the pre-trial conference that was held on 1 July 2009, the matter was referred to trial on the issues set out in the defendant's minute of 20 May 2009. The issues for determination are as follows:

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant.

3. Whether the plaintiff is entitled to evict the defendant from the property.

RESOLUTION OF THE ISSUES

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth

The onus to show that an agreement of sale was executed lies on he who avers that such an agreement was concluded. In the present matter the incidence of proof falls on the defendant.

He relied on exhibit 1A and 1B.

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and signature in exhibit 1A.

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit.

A commissioner of oaths worthy his salt would have requested the plaintiff to append her mark and thumb print on the document. He would have known that it was improper for Eneresi Simon to sign as the plaintiff without indicating that she was signing as her duly authorised agent.

The defendant did not disclose why and how Tedius Kagande's young brother became involved in the matter.

It does not appear that the plaintiff was ever given a copy of the affidavit in question.

Neither Tedius Kagande's young brother nor the Commissioner of Oaths was called to confirm the versions of the defendant and Tedius Kagande.

The two defence witnesses also contradicted each other on when the money was paid. Tedius Kagande averred that it was paid at the plaintiff's home. The defendant prevaricated. In his evidence in chief he averred that it was paid at the plaintiff's home while under cross examination he alleged that it was paid after the affidavit had been compiled.

While the defendant stated that Tedius Kagande's young brother was present at the plaintiff's home when the money was paid, Tedius Kagande stated that his young brother was never at the plaintiff's home. Notwithstanding that, Kagande was of the view that the purchase price of $16,000 was too high in comparison with similar Stands in Glen View at the time. The defendant borrowed the money and paid it before he had visited the site. He did not negotiate for a lower price.

The contradictions in the defendant and Tedius Kagande's testimonies and the other shortcomings that I have highlighted show that exhibit1A is a questionable document. I am not satisfied that the defendant has discharged the onus on him to show, on a balance of probabilities, that it was executed by the plaintiff.

Exhibit 1B was purportedly executed on 28 October 1999.

The plaintiff purportedly sold her rights in the portion of the Stand where the main house was to be built for an additional payment of $7,000=. The amounts were to be paid on 30 February and 30 April 2000 in the sum of $4,000= and $3,000= respectively.

Again, the document indicates that the plaintiff signed the document. The defendant averred that it was signed by Eneresi Simon for her mother. The signature in exhibit 1B appears to be similar to the one in exhibit 1A and exhibit 3. The latter was an affidavit filed by the plaintiff for default judgment against the defendant but is different from the one in exhibit 4, an ex parte application for a peace order that she filed on 13 December 2001.

The defendant alleged that exhibit 1B was typed by Tedius Kagande. In his testimony, Tedius Kagande expressed ignorance about it. Unlike the defendant, Kagande alleged that he facilitated the purchase of the larger portion of Stand 1125. The defendant alleged that he paid the $7,000= on the due dates. He did not produce any proof of payment. The agreement records 30 February as a date for the payment of the first installment. Such a date does not exist. The application failed because the plaintiff was not then the registered holder of rights in the property, as averred by Cagewell Muzangaza and not because of the absence of a main house on the Stand, as alleged by the defendant.

The contradictions outlined above call into question the authenticity of exhibit 1B, especially in the face of the denials by the plaintiff and her daughter that they were involved in its creation and execution.

Counsel for the defendant submitted that the agreements were authentic. He predicated his submission on the basis that the plaintiff permitted the defendant to build a cottage on the Stand and allowed him to reside thereat without paying rentals.

The plaintiff stated that she fell under the influence of Tedius Kagande, whom she trusted as an elder in her church and as a philanthropist who helped her with food handouts and built a two-roomed cottage for her.

I found that her age and low intellect adequately explained her naivety, which Tedius Kagande and the defendant exploited to the latter's advantage.

In any event, notwithstanding his allegations that he had purchased a portion of the Stand, the defendant never volunteered to pay for his proportional measure of the supplementary charges due to the local Board.

I am unable to find the non-payment of rentals by the defendant indicative of the authenticity of the agreements.

Counsel for the defendant further submitted that the attempt by the plaintiff, in 2000, to register a portion of the Stand in the defendant's name was conclusive evidence that she had disposed her rights to him.

It was common cause that the plaintiff is illiterate.

Cagewell Muzangaza highlighted the elaborate paper work that is required of the registered holder in seeking a subdivision permit. The defendant did not produce the application in question. He did not adduce evidence on how the plaintiff applied for the subdivision in his favour. As she is illiterate it could very well be that someone else completed and signed the forms that are required. The plaintiff denied ever having done so. The defendant did not produce any credible evidence to show that she made the application in person. Cagewell Muzangaza's statement as to what he found in his file is insufficient to show that the plaintiff sold the Stand to the defendant.

There were unsatisfactory features in the plaintiff's version concerning her professed inability to understand Shona; her apparent ignorance that she once sued the defendant for eviction and the source of the funds she used to go to Malawi. These were, however, irrelevant to the resolution of the first issue.

Pastor Elizabeth Nyakudanga did not assist the defendant discharge the onus on him as it became clear when she was cross-examined that she was relying on what the defendant said to her in January 2009 rather than on her own recollection of events. She contradicted herself on the terms of the agreement of sale. I found her evidence unreliable.

Accordingly, I hold that the plaintiff did not sell her rights in a portion of Stand 1125 Makomo Extension to the defendant.

In any event, it was common cause that when the purported agreements of sale were executed, the rights in Stand 1125 vested in the deceased estate of the plaintiff's late husband. The only person who has control of property in a deceased estate is the executor duly appointed to that office by the Master of the High Court. The plaintiff was appointed an executrix dative on 22 August 2007. At the time she allegedly disposed of rights in the property she lacked the legal capacity to do so. She could not lawfully dispose of rights that she did not have. See Nyandoro & Anor v Nyandoro & Ors HH89-08…,.

I hold that the plaintiff did not sell a portion of Stand 1125 Makomo, Epworth to the defendant.

The resolution of the first issue in the plaintiff's favour would dispose of the matter both in the main and in reconvention. However, in the event that I am wrong on the first issue, I proceed to deal with the alternative submissions that were made by counsel.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant

It was common cause that the onus lay on the defendant to show that he was entitled to take cession.

Counsel for the defendant contended that such cession was predicated on the validity of the agreement of sale. He submitted that the agreement of sale was valid.

Counsel for the plaintiff, on the other hand, submitted that even if the agreements were entered into, they were invalid ab initio for two reasons. The first reason being that no sale was concluded as the merx was not ascertainable. She correctly set out the three essential elements of a contract of sale. These are;

(i) Agreement (consensus ad idem);

(ii) A thing sold (merx); and

(iii) A price (pretium).

On the authority of Chanock v Barnard 1921 OPD 207…, she submitted that no contract of sale was executed in the absence of an agreement on the merx. She contented that the defendant had failed to describe and identify the portion of the Stand that was sold to him.

Counsel for the defendant, on the other hand, contended that the portion sold was capable of ascertainment.

We are dealing with land.

The portion of land sold can only be identified by area often expressed in square metres. The defendant was not able to use this medium to identify the portion of land sold to him. The obvious impediment being that Stand 1125 is an indivisible unit. It was not subdivided at the time or at present. Thus, had I found that the parties concluded exhibits 1A and 1B, I would have found those agreements invalid for failure to meet an essential requirement of a contract of sale. The defendant cannot rely on Exhibit 5, the letter from the Urban Development Corporation (UDCORP) whose authenticity is questionable. The letter actually confirms that Stand 1171, or if it correctly refers to Stand 1125, has not been subdivided.

The second reason advanced by counsel for the plaintiff was that the agreement of sale contravened section 39 of the Regional Town and Country Planning Act [Chapter 29:12]. She submitted, on the authority of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S)…, that an agreement for the change of ownership of an unsubdivided portion of a Stand is prohibited by the section in question.

The contention by counsel for the defendant, that the agreement was for cession and not ownership, may legally be correct; but it runs contrary to the contents of exhibit1A wherein the plaintiff is alleged to have declared that she was granting change of ownership to the defendant in these words: “therefore, I now grant the change of ownership without delay.”

Counsel for the defendant, with reference to Chanda v Mutadzi & Anor SC74-94 and Mukarati v Mkumbu SC36-96, submitted that the Regional Town and Country Planning Act is excluded from the purview of cessions involving local Boards. That submission runs contrary to X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S).

In any event, the two cases he referred to involved the sale of rights in single units. They did not involve sales of unsubdivided portions.

I would uphold the submissions made by counsel for the plaintiff and deny the defendant cession of an unsubdivided portion of Stand 1125 of Makomo Extension, Epworth. A fortiori, the defendant's counter claim fails.

3. Whether the plaintiff is entitled to evict the defendant from the property

The corollary to my findings on the first two issues is that the plaintiff holds cession in Stand 1125. The defendant has no legal basis to be on that Stand. Accordingly, she is entitled to the order of eviction that she seeks.

DISPOSITION

It is ordered that:

1. The defendant and all those claiming occupation through him be and is hereby evicted from Stand No. 1125 Makomo Extension, Epworth, Harare.

2. The defendant's counterclaim be and is hereby dismissed.

3. The defendant shall pay the plaintiff's costs of suit for both the claim in convention and counter-claim.

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract.

The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 resulting from the plaintiff's bank account having been frozen by the defendant under circumstances which will be elaborated. Interest is also sought at the prescribed rate from the date of the summons to date of full payment. In addition, costs of suit are further sought as between attorney and client.

The damages are founded on the allegation that it was a tacit term of the agreement between the parties that the defendant would honour all cheques and negotiable instruments and transfers properly drawn.

The plaintiff, which was then engaged in the business of supplying vegetarian products states through its Director, Lion Chirove, that it could not access its account to effect business payments despite demands being made to the defendant and a court order having been obtained.

The plaintiff company was founded in 2006 and its Directors were then Avila Zvenyika and Lion Chirove. In May 2010, two brothers, Bruce Smith and Ahmad Smith, who had joined them in a business partnership, were made directors of the company. As explained in a “to whom it may concern letter” written in October 2010, being non-Zimbabweans and in the absence of a valid work or residence permit, the new partners could not sign on any Bank account. The letter explained that they had been temporarily removed from the company's CR14 form but that they were, in essence, still directors pending regularisation of their permits.

In September 2011, the plaintiff moved its banking account from CBZ to the defendant Bank.

At the time of opening the account its signatories were Lion Chirove and Avila Zvenyika. Mr Bruce Smith was however made a signatory in place of Mr Lion Chirove in a letter to the Bank dated 30 April 2012. It advised that a Board meeting had resolved to appoint him together with A Zvenyika. However, on 19 November 2012, following a dispute with the Smith brothers, Avila Zvenyika, the company's administrator, had written to instruct the Bank not to process any transactions unless it was authorised by the two Directors as captured on the CR14 form, namely, herself and Lion Chirove.

From the plaintiff's testimony, what flamed the dispute emanated from the fact that the Smith brothers had clandestinely registered a company in South Africa giving themselves a 100 percent shareholding when the agreement had been to go 50-50 with Mucal Enterprises. They had also registered a company in Zimbabwe giving themselves a 70 percent shareholding and the plaintiff and its director 30 percent. The dispute fully ignited when the Smith brothers proposed that a shareholder's agreement be signed between Mucal Investments and the two brothers as a separate agreement. Under the agreement, Mucal Enterprises would be owned by the Smith brothers in their South African company. The plaintiff's directors, Lion Chirove and Avila Zvenyika perceived this move as designed to swallow and push it out of business.

It was then that the instructions were given to the Bank regarding the change of signatories whereby Mr Chirove was reinstated as signatory in place of Mr Bruce Smith.

He further testified that on 21 January, when he tried to effect telegraphic transfers for the sum of R98,000= to a South African supplier (Fry Group), the defendant refused to honour the transaction, and, instead, froze the account. However, it emerged, in cross examination, that the reason why the Bank froze the account was that it had received instructions from Mr Bruce Smith that he had been improperly removed as a director and signatory.

The plaintiff's position is that the internal dispute was none of the Bank's business and that it was its responsibility to abide by the instructions of the directors as captured on the CR14 form. This showed the two directors as himself and his wife Avila Zvenyika.

Out of an abundance of caution, the defendant, on the other hand, had frozen the account until the dispute had been solved. At the time, the plaintiff held $24,797=35 in its account as per bank statement presented as Exhibit S.

That the dispute also set off a chain of events is not denied. Nonetheless, the plaintiff's position is that had the Bank risen above the dispute in light of its contractual obligations to its “true” client, none of the losses subsequently suffered would have occurred.

The chain of events is crucial to grasp as it places crucial variables to the otherwise linear causation of losses suffered as articulated by the plaintiff. The events were as follows:

1. On 23 January 2013 the Bank refused to effect the transactions following the representations made to it by Mr Bruce Smith that he had been improperly removed as signatory.

2. On 6 February 2013 a provisional order was sought by the plaintiff against the defendant in which it sought interim relief compelling the Bank to make accessible to “applicants directors” funds held under account 60101051739101 and to allow the free and unfettered transaction and operation by the applicant of its bank account. The provisional order was granted by consent of all parties. The final order sought to declare Lion Chirove and Avila Zvenyika as having the sole and exclusive right to transact under the relevant account.

Meanwhile, on this very same date, as the above order was being granted, the Registrar of Companies wrote to Mrs Zvenyika stating that they had received a complaint of fraudulent activities concerning removal of two directors (the Smith Brothers) without their knowledge and consent. She was asked, as company secretary, to clarify the position.

Criminal proceedings were also pending in the Magistrate's Court against the plaintiff's director, Lion Chirove, for fraud.

3. On 14 February 2013 the Smith brothers applied for an interdict, under HC882/13, to prevent Lion Chirove and Avila Zvenyika from accessing the account. The plaintiff's testimony was that this order was not granted as the court took the position that it was not possible to interdict an order granted by consent. Under cross examination it emerged that the crucial reason was also to provide the plaintiff a chance to seek for a final order articulating the rightful directors since what had been granted was simply a provisional order authorising “directors” to access the account.

4. On 11 March 2013 one Martha Chakanyuka, a Principal examiner in control of companies, signed a statement stating that the CR 14 form signed in October 2010 was fake and that the stamps and signatures were fake. She highlighted the procedures for change of directorship and averred that these had not been followed.

5. On 12 March 2013 Avila Zvenyika, in her capacity as company secretary, then replied stating that the claims were unfounded and highlighting that the company is wholly owned by its two directors, Lion Chirove and herself. She also explained that the two non-shareholding directors had been removed by a company resolution in October 2010. She also stated that the two directors, namely, the Smith brothers, had agreed to be removed back then to pave way for a loan since their immigration papers were not in order. She stated that everything had been done above board.

6. On 13 March 2013 the plaintiff's lawyers had written to the Bank regarding the opening of the account which was still not opened.

7. On 22 March 2013 the defendant's lawyers had written to the plaintiff's lawyers advising them of receipt of the statement made by the Registrar of Companies concerning the anomalies that had been detected. They also advised that the dispute needed to be resolved since the court had granted the order on the 6^th of February on the basis that the CR14 now under dispute had been the correct one. In view of these developments they also pointed out that their client, the Bank, was unable to accede to the request to activate the account.

8. On July 5, 2013 Martha Chakanyuka signed another statement - this time essentially confirming that following certain documents being availed that the CR14 form earlier criticised as improper was in fact proper. She confirmed that the Smith brothers had indeed been removed as directors on 4 October 2010.

9. On 16 July 2013 the plaintiff's directors finally accessed the account having been informed, according to the plaintiff, through a casual encounter with the Bank's manager, that the account had been reopened.

The Plaintiff's perceived loss

The gravamen of the plaintiff's evidence was that over the time when it was not allowed access to its account, it had contracts with several retail supermarkets as a supplier of vegetarian products. These included shops such as OK, Bon Marche and Spar shops. A contract with OK, dated 2010, was placed before the court as Exhibit E. The contract itself however did not indicate the value or volume of business between the parties.

From the OK and Bon Marche shops, the plaintiff valued its business for the relevant period when its account was frozen at $50,000= with a profit of $26,000= after expenses had been paid. Exhibits H1-H6 were handed in. Three of these were statements generated by the plaintiff's director while another three were said to be generated by OK although there was no official verification of these documents.

Also presented were the plaintiff's own calculations of business with the Spar shops (Exhibits G1-G5). However, the plaintiff did not produce any evidence or proof that business was actually being conducted constantly or on a monthly basis.

The plaintiff's director also presented its projections of business it was set to do with TM and Pick n Pay. It said the value lost amounted to approximately $74,000=. In addition, the plaintiff's company had a credit facility with TN Bank for up to $4,000= per month and was doing business with TN Harlequin (Exhibit F).

It terms of lost business, it had also secured an arrangement to supply the Seventh Day community with vegetarian products at its Adventist camp sites. With 52 campsites attended by about 5,000 people per camp annually, the plaintiff's estimation was that it lost a potential of US$5,000= per campsite giving a total loss of $260,000=.

In July 2012, the plaintiff had gotten another product for distribution from Good Hope International Enterprises for soya milk. It alleged that it would have been a sole distributor, and, on arrangement, would have been a regional distributor. However, no proof of this averment was produced. At the time, the plaintiff stated it had received an order by consignment from Good Hope for $30,000=. This would have been serviced from the account.

The plaintiff stated that, overall, it was expecting, during the period its account was frozen, a total of US$495,000= worth of purchases with Good Hope and from this amount $693,000= worth of sales thereby giving it profit of $198,000=. The plaintiff later clarified, in cross-examination, that it was still negotiating this contract and therefore no contract could be availed. However, it had received the order by consignment for $30,000= though, again, no proof was produced. From the Fry's Group, business lost over the seven month period was estimated to $102,712= after expenses.

The company, according to its Director, had also made inroads into the possible supply of meat-free products to Catholic schools around the country under which he estimated it would have made at least $20,000 - $25,000 per month.

All the above was the kind of business the plaintiff said it lost on probabilities. The devastating consequence arising from the defendant's perceived breach of contract was not only loss of income, according to the plaintiff's director, but also termination of contracts.

The distributorship business with the Fry Group was terminated in April 2013 and with Good Hope in September 2013. It lost all its suppliers because it failed to pay them. It lost all its clientele whom it failed to service. It was, according to him, a sole distributor of vegetarian products. It was also working with a “niche market”. It also lost its reputation in the process. By December 2012 the company, according to its director, had grown to 12 employees. Today it has none.

The plaintiff blames the defendant for the sum total of these woes because it could not access its account to conduct its business.

Interrogation of the loss in cross examination

The plaintiff was quizzed by the defendant's counsel…, on the company's financial accounting procedures.

The plaintiff's director conceded that he is fully aware of the need to keep proper books of account by any company. He agreed that such books would indeed vividly indicate the company's flow of business and any profit and loss made. He was also in agreement that annual tax returns would clearly indicate the actual profits made for tax purposes. He said all such documentation existed with respect to the plaintiff company but admitted that they had not been tendered as evidence.

He did not dispute that a Bank can place administrative requirements over those who operate accounts and that it is entitled to refuse access where it has concerns as to the authenticity of any representative. However, he was adamant that the Bank acted improperly, especially as it had been given the necessary information as who the directors were.

The plaintiff's director also confirmed that indeed the Smith brothers had come in as financial partners as the company was going through financial difficulties at the time. Their terms were to be shareholders on a 49-51 percent basis. The other condition was to secure them as signatories to the account.

It emerged from cross-examination that certain monies invested by the Smith Brothers had not been paid back by the plaintiff. The Smith brothers were therefore seeking to protect their investment.

He also agreed that no final order had been sought to the provisional order that had been granted by the court on 6 February 2013. He also conceded that the day that the order was granted, on 6 February 2013, was also the very day that the Registrar of Companies had written to the other director, Ms Zvenyika, seeking an explanation of allegations of possible fraudulent removal of directors. This information had not been before the court at the time that it was granting the provisional order.

He also did not deny that the Smith brothers had also sought an urgent chamber application to stay operation of the provisional order granted by the court on 6 February 2013.

He further agreed that he had not taken any concrete action to actively challenge the statement and that the statement was withdrawn in July against a backdrop of investigations the Registrar had carried out. He did however maintain that the statement was challenged when he was being prosecuted.

Although his view was that the provisional order granted on 6 February 2013 was clear as to its directive regarding the re-opening of the account. He did concede that it was the final order that specifically sought to confirm himself and Ms Zvenyika as the true directors of the company.

He admitted that no action was taken on his part to seek a final order as directed by Justice PATEL in HC882/13 which would have put an end to the dispute at least as way back as March 2013. He also admitted that on the same day that bail conditions were relaxed to allow him to operate the account was also the same day that the Registrar of Companies made the allegation that there was possible fraudulent activity.

The application for absolution

The defendant has applied for absolution from the instance largely on the basis that the plaintiff has essentially failed to make out a case against the defendant that is deserving of a reply. It is also argued that the plaintiff had failed to prove any breach of contract entitling it to special damages.

In terms of general principles on absolution from the instance the case of United Air Charter v Jarman 1994 (2) ZLR 341 (S) condenses the position as follows:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which the court, directing its mind reasonably to such evidence 'could or might (not should or would)' find for him.”

The above principle draws on cases such as Supreme Svc (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 (1) RLR 1; Lourenco v Raja & Steam Laundry (Pvt) Ltd 1984 (2) RLR 151.

The principles have also been canvassed in a number of cases such as Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S); Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H); Dube v Dube 2008 (1) 326.

In seeking to put the defendants to its defence, it is argued, by the plaintiff, that the Bank knew who the directors were as these were indicated on the CR14 form. It is also argued that as the account in question was the plaintiff's sole business account it should have been apparent that it would suffer loss if it was not permitted to transact under that account. The dispute, it insists, could have been solved at a later stage. It argues that for reasons such as these, which are common cause, it has done enough to put the defendant on its defence.

The plaintiff also lays emphasis on the fact that at this stage it is not about whether the evidence is true or false. In its view, absolution should only be granted where it has failed to establish an essential element of its claim. The plaintiff emphasises its contractual relationship with the defendant; the fact that the defendant breached the contract. In support of this, the plaintiff points out that the money would have been paid to suppliers and not to themselves.

In opposing absolution from the instance, the plaintiff places reliance on the position articulated in the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) that in considering absolution from the instance a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.

However, the preponderance to 'lean in favour of' is not the same as saying a judicial officer must always lean in favour of the case continuing. It is in cases where there is doubt that the court should lean in favour of continuing as SMITH J emphasized in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H). Where a judicial officer has no doubt in their mind from the evidence submitted, then by all means absolution should be granted. The key issue for consideration therefore is whether sufficient evidence has been placed before the court upon which the court might find for the plaintiff.

Factual and legal analysis

While damages are sought against the defendant as the unitary cause of the loss of business suffered by the plaintiff, the facts informing the claim are far from being one-dimensional.

The evidence that has been placed before the court indicates that an internal dispute and competing claims within the plaintiff company where at the heart of the chain of converging events that led to operational problems for the plaintiff company including the freezing of its account. Yet, only one cause, the freezing of its account is isolated by the plaintiff as leading to his perceived loss.

Just because a plaintiff strongly believes that a factor that he has isolated is the predominant cause of its problems does not exclude other explanations which have a bearing on the matter from being considered by the court in deciding whether sufficient evidence has been placed before it to exclude their impact.

Where a problem is multiply-caused, as in this case, the question of whether or not the court might find for the plaintiff on the evidence adduced, of necessity, depends on whether the evidence placed before the court, on a balance, sufficiently rules out other explanations as causes for the loss suffered by the plaintiff. In other words, if, from the evidence adduced it cannot be inferred, on a balance of probabilities, that the single behavioural event isolated by the plaintiff was the cause of its loss, then the evidence is simply not sufficient. The evidence adduced must, on a balance of probabilities, sufficiently pry apart other variables such as to leave the one the plaintiff relies on as the dominant cause. If, at the close of the plaintiff's case, insufficient evidence has been placed before the court to support an averment, this will not change even if the defendant is put to its defence.

What this court has before it at the conclusion of the plaintiff's case is a convergence of multiple factors, predominantly emanating from events within the plaintiff company that complicated the issue for the plaintiff.

The defendant's actions were largely responsive to such outside stimuli as opposed to being the dictator of them. Also, the defendant's actions, in refusing to release the funds, have to be put in perspective of the events that unfolded.

The Bank's client was the corporation. There was a dispute regarding the directors of the corporation. A criminal complaint was made by a competing director. The Registrar of Companies, at first, also confirmed the allegations of fraud and it was only in July when their initial position was reversed. Although a provisional order was obtained it is instructive that on the very day of its obtainment the dispute escalated rather than abated. The Bank was essentially faced with divergent claims to the account by two feuding parties each claiming legitimacy.

The plaintiff argues that the defendant breached its contract in failing to pay on demand.

Yet, in light of the facts, the Bank would equally have found itself liable to a claim from either of the competing parties to the account for wrongfully paying out of the account or un-authorised payment since each side had laid claim to the account.

There was no breach since its client was the corporation and competing claims had been placed before it by two sides within that corporation relating to its directorship. Only where the dispute was resolved in terms of clarity of directors could the Bank safely pay out. Only a foolish Bank would have paid out to any of the claimants without a final court order as to the true status of each of the claimants.

While the defendant may have acted on the strength of the documents written by the Registrar of Companies it was not the author of these documents.

The plaintiff also rests its argument for dismissal of absolution on the basis that it suffered damages as a result of the breach.

The case of Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) is cited in support of the contention that a Bank which fails to honour cheques when funds are available risks a claim of damages. The plaintiff argues that the contracts it placed before the court were sufficient, namely, those from OK Zimbabwe and the TN credit facility.

Finally, the plaintiff also argues that its loss was not remote.

Special damages are ordinarily regarded in law as being too remote to be recoverable. They are claimable in situations where it can be deduced that the parties actually or presumptively foresaw that they would probably flow from a breach of contract and were within the contemplation of the parties. As stated by GUBBAY CJ…, in United Air Charter v Jarman 1994 (2) ZLR 341 (S) in determining whether they are claimable it is of assistance to look to;

(a) The subject matter and terms of the contract itself;

(b) The special circumstances known to both parties at the time they contracted.

I do not think that damages arising from a quarrel among the directors was within the contemplation of the parties. In any event, the core point remains whether sufficient evidence has been placed before this court to justify such damages.

One crucial manner a purportedly dominant claim, particularly one for damages, is strengthened is by way of statistical evidence to support it.

Being a claim of special damages, the plaintiff had the responsibility to prove its quantum of damages by placing all relevant evidence before the court in order to prove its claim. Such special damages will not be granted if they are too remote.

The defendant argues that the evidence placed before the court was too scanty. No proof of invoices or proof of orders that were received and needed honouring by the Bank were submitted to the court by the plaintiff. These would have provided irrefutable proof of business that was actually lost. Also, the plaintiff did not produce any evidence which would have supported their position that the money that the defendants refused to pay would have been going to suppliers and not to themselves.

In seeking absolution from the instance, the defendant further argues that the plaintiff's books of accounts and tax returns would have been proof of the plaintiff's profitability as alleged by its Director. The plaintiff's director, in cross examination, averred to the existence of these documents but admitted that they had not been brought to court. In its written arguments against absolution the plaintiff then stated that the audited accounts were taken by the Smith Brothers and that the tax returns are filed with the taxman and can always be taken into account in damages.

Even if the plaintiff's argument is accepted that the books were taken away and that the tax returns were filed, it cannot, in my view, escape the responsibility of ensuring that these were placed before the court given that they form the heart of the dispute. It is not for the defendant to go and extract tax returns for the plaintiff. That was clearly the plaintiff's own responsibility. It is also not the plaintiff's averment that the soft copies of the accounts are what was taken. They simply state that the accounts were taken by the Smith brothers.

As argued by counsel for the defendant, where evidence is available that would assist the court to properly quantify damages and it is not produced, then the matter must fail and the defendant must be absolved from the instance. The case of Monumental Art Co. v Kinston Pharmacy (Pty) Ltd 1976 (2) SA 111 was cited in support of this contention.

Also, a party who shies away from producing evidence cannot escape the inference that he knows that such evidence will not be favourable to him. The cases of Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C); Tshishonga v Minister of Justice & Constitutional Development and Anor 2007 (4) SA 135 were cited by the defendant.

If accurate statistical evidence that is representative of the company's steady growth and success of over the years, as exemplified by tax returns, was available, then, it should have been obtained. How else would the court know from the outset that it is not dealing with isolated phenomenon in so far as the plaintiff's claims of a steady growth of the business over a number of years is concerned?

The plaintiff director's own testimonial evidence of growth and projected profits is not the kind of evidence that the court has in mind as constituting “sufficient evidence upon which the court might find for the plaintiff.”

In cases of this nature, where loss of business is alleged, tax returns and audited accounts constitute the type of evidence that would, on the face, constitute a sufficient basis for a claim upon which the court might find for the plaintiff.

Therefore, on the issue of damages for loss of business the strength of the plaintiff's evidence is essentially 'dead in the water' as a result of the failure to place the kind of credible evidence that one would expect of a company as pointed out by the defendant in its application for absolution from the instance.

At the close of the plaintiff's case, the preponderance of evidence did not point to the defendant as having been the actual cause of its loss or even being in any way the major cause of the plaintiff's loss. I am satisfied that there was insufficient evidence on which a reasonable court could or might find for the plaintiff.

The defendant seeks that costs be awarded on a higher scale especially on the grounds that the plaintiff had ample time to put all its evidence together in preparing for trial, and, as such, it has been put through an unnecessary expense.

Costs, in general, recompense a successful party for expenses to which he has been put in defending a claim. They are generally awarded on an ordinary scale. Courts are reluctant to award costs on a higher scale because they are highly punitive.

It would seem to me that the overall weakness of the plaintiff's case has emerged from the totality of having his day in court to present his case as he is entitled to. It would therefore be, in my view, tantamount to exercising hindsight to land him with costs on a higher scale.

The application for absolution from the instance succeeds with costs on an ordinary scale.