KAMOCHA J: The
applicant seeks an order for summary judgment in the following terms:-
“It is ordered that:-
(a)
Defendant
pays a sum of US$68 551,88; alternatively
Stand number 6813 Bulawayo Township of 6872 A Bulawayo
Township situate in the district of Bulawayo measuring 2331 square metres be
sold by public auction or private sale conducted by the Deputy Sheriff to
recover the sum of US$68 551,88 and defendant gets the balance;
(b)
Defendant
pays interest at the prescribed rate calculated from the 2nd June
2010 to date of full payment; and
(c)
Defendant
pays costs of suit.”
The respondent had, during the month of September 2008,
entered into an agreement of sale of house number 29 Landau Drive or 13 Copley
Crescent, Khumalo, Bulawayo with Nathan Madzwanya and Kudzanai Madzwanya. The purchase price was US$150 000 payable in
installments. The purchasers were unable
to meet their obligation as agreed. The
parties ended up agreeing that it would not be possible for the agreement of
sale to be consummated due to the fault of the purchasers who at that time had
only paid US$80 649,28 towards the purchase price.
When the parties took each other to
court the seller invoked the provisions of clause 13 of their agreement of sale
in terms of which, in the event of the purchaser breaching the agreement of
sale by failing to pay on due date, she was entitled to cancel the agreement of
sale and resume possession of the house and sue for damages she may have
suffered, if any. She was also entitled
to retain 15% of any payments made by the purchaser which means that she was
entitled to 15% of the US$80 649,28 which is a figure of US$12 097,39.
Having deducted the US$12 097,39
from the US$80 649,28 she should have given back to the purchasers the sum of
US$68 551,88. She was granted the court
order on 2 June 2010. She resumed
possession of the house and used the US$12 097,39 she was entitled to but has
failed to return the US$68 551,88 to the purchasers prompting them to issue
summons out of this court on 15 June 2010 claiming the said amount.
Summons was served on her personally
on 19 August 2010 and she entered appearance to defend but has not filed her
plea to date. When this application for
summary judgment was served on her she resisted it contending that she had a
defence to the purchasers' claim. Her
defence was that the purchasers had breached the agreement of sale. She was, therefore, going to claim damages in
terms of clause 13 of the agreement of sale.
The respondent was just being
dishonest because she had earlier attempted to claim for damages in terms of
clause 13 of the agreement of sale at the hearing of 2 June 2010. But when the provisions of section 5 of the
Contractual Penalties Act [Chapter 8:03] “the Act” were drawn to her through
her lawyer, she then withdrew the claim for damages. Section 5 reads as follows:
“5. Restriction on entitlement to damages
A creditor shall not be entitled, under a penalty
stipulation, to both the penalty and damages or, except where the
contract expressly so provides, to damages in lieu of penalty.” Emphasis
added
These provisions prohibit anyone
from claiming both damages and a penalty stipulation. It also prohibits claiming damages instead of
a penalty stipulation.
The advice that she should withdraw
the claim for damages was sound and proper.
It is therefore, difficult to understand why she now returns to this
court to suggest that she had a defence to the purchasers' claim when she knows
that she cannot claim damages as she already claimed a penalty stipulation
which was granted. She clearly has no
defence to the purchasers' claim of the sum of US$68 551,88.
The respondent raised a number of
issues. Firstly she alleged that this
matter was not properly before this court as Cassim Sibanda instituted the
proceedings in his own name instead of the names of his principals. As can be seen Cassim Sibanda says he was
doing so on behalf of Nathan Madzwanya and Kudzanai Madzwanya. In Sentrakoop
Hendelaars Bpk v Lourens & Anor
1991 (3) SA 540 (W). The court remarked
that while it was procedurally wrong for an agent to sue in his name on behalf
of his principal, the procedure was not so fatally defective as to vitiate
proceedings. At page 542 the court had
this to say,
“The case of Leslie was so interpreted in Hallis & Co. v Eastern Districts Sporting Club 1909 TS 450 at 452, where SOLOMON J said:
“Because Alexander was merely acting as their agent, the
petition was in fact the petition of Hallis
& Co and it should have been so stated on the face of the petition, but
I do not think that is a fatal defect.
In Leslie's Trustee v Leslie 1903 TS 701 it was pointed out
that a petition by an agent on behalf of a principal should be drawn in the
name of the principal, but the fact that it was drawn in the name of the agent
was not held to be a fatal defect in that case, and I do not think that it
should be so treated now. In any case,
it was the simplest matter to amend the petition and put it in order, but
personally I do not think that merely because there is such a defect in the petition,
it should be treated as a fatal defect and that the rule nisi should have been
discharged on that ground.”
In
casu as alluded to above the agent instituted the proceedings in his name
but made it clear on the face of this application and summons that he was doing
so on behalf of his principals whose names he also endorsed on the face of the
summons and this application for summary judgment. I hold the view that although what he did was
procedurally wrong, the procedure was not so fatally defective as to vitiate
the proceedings.
The respondent further complained
that Cassim Sibanda had not entered into any agreement with her. She therefore did not know him. That, of course, cannot be true. She has dealt with him during negotiations
for an out of court settlement in this matter.
She knew he represented Nathan and Kudzanai Madzwanya.
Although papers of the applicants
had a number of mistakes in them the mistakes were not so serious as to be
classified as triable issues. There is
no possibility of her succeeding as she does not even have a plausible
case. Instead she was clearly dishonest
when she claimed to have a defence in the form of a claim for damages as she
knew that she was prohibited by section 5 of the Contractual Penalties Act supra.
She had in fact withdrawn that claim before she was granted an order by
this court on 2 June 2010.
This court shall express its
displeasure by awarding the applicant costs on an attorney and client
scale. In the result the order of this
court is as follows:-
It is hereby ordered that:-
(1)
The
respondent pays to Nathan and Kudzanai Madzwanya through their agent Cassim
Sibanda the sum of US$68 551,88 on or before Friday 1 April 2011; Failing which
stand number 6813 Bulawayo Township of 6872 A Bulawayo Township situate in the
district of Bulawayo measuring 2331 square metres be sold by public auction or
private sale conducted by the Deputy Sheriff to recover the sum of US$ 68
551,88 and defendant gets the balance;
(2)
Respondent
pays interest on the sum of US$ 68 551,88 at the prescribed rate of 5% per
annum from 2 June 2010 to date of full payment; and
(3)
Respondent
pays costs of suit on an attorney and client scale.
Samp Mlaudzi and Partners applicants' legal practitioners
Messrs Majoko and Majoko respondent's
legal practitioners
