CHEDA J: This is an application for the
confirmation of a provisional order granted by this court on the 15th
of March 2006.
The interim relief
granted was couched as follows:
INTERIM RELIEF
GRANTED
''Pending the determination of this matter, it is ordered: -
1. That First and Second
Respondents be and are hereby ordered not to evict or attempt to
evict Applicant and all those claiming under
her, from Stand 604, Victoria Falls.
2. That First and Second
Respondents be and are hereby ordered not to transfer Stand 604,
Victoria Falls to any person other than
Applicant and are ordered not to register any
mortgage bond against the Title Deed as security in favour of any
person.
3. That Third Respondent be and
is hereby ordered not to: -
a) effect transfer of Stand 604, Victoria Falls
belonging to First and Second
Respondents held under Deed of Transfer
No. 2210/05 from them to any person
other than Applicant; and
b) register any mortgage bond against the Title
Deed of Stand 604, Victoria Falls in
favour
of any person.''
The final order sought
was couched as follows:
TERMS
OF FINAL ORDER SOUGHT
''It is ordered that:
1. That First
and Second Respondents be and are hereby ordered to transfer Stand 604,Victoria
Falls from them to Applicant on
condition that Applicant pays the balance of the purchase consideration of $20
000.00 and pays the costs of transfer.
2. That First
and Second Respondents be and are hereby ordered to do what is required of them
to give effect to the aforesaid transfer, to apply for the necessary
authorities, certificates, etc, and to sign all required documentation to
effect the transfer, within 14 days of the date on which this order is served
on them.
3. That should
First and Second Respondents fail to do what is required of them: -
a) Applicant be and is hereby given leave
to act on behalf of First and Second Respondents to achieve the transfer; and
b) the Deputy Sheriff, Bulawayo be and is
hereby authorised to sign the required documentation on behalf of First and
Second Respondents.
4. That First
and Second Respondents be and are hereby ordered to pay the costs of this
application on the attorney/client scale.''
The
background of this matter whose facts are largely common cause are that
applicant and 1st and 2nd respondents entered into an
agreement on the 6th of December 1995 in terms of which applicant
was given an option to purchase stand 604 Victoria Falls (thereafter referred
to as ''the property'') 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 applicant.
The
option was exercisable at any time after 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 respondents and the said
transfer was only effected on the 5th of August 2005.
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 applicant together
with her husband Adrian had loaned respondents $10 000 which they now wanted to
set off against the $20 000 balance to respondent. Respondents disagree with this
arrangement. 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 respondent's defence in resisting the transfer of this
property to 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 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.
Respondent's
attempt to frustrate and prevent applicant's right to enforce the agreement has
no legal support other than moral sympathy.
For that reason it is rejected.
Accordingly,
the provisional order is confirmed as prayed.
Messrs Coghlan and Welsh, Applicant's Legal Practitioners
Mahamba Legal Practitioners, 1st and 2nd
Respondent's Legal Practitioners c/o Majoko and Majoko
ADDENDUM
ELIZABETH
READ
VERSUS
MAIKOL PHIRI
AND
JENNIFER
PHIRI
AND
REGISTRAR OF
DEEDS
HIGH COURT OF ZIMBABWE
CHEDA J
BULAWAYO 28 AND 31 MARCH 2011
Miss E. Sarimana, for the applicant
N. Mlala, for 1st
and 2nd Respondents
CHEDA J: The judgment in the above matter
was delivered on the 31 March 2011.
Applicant had applied for an
amendment of the interim order which I should have effected in my judgment
referred to, but, due to an oversight I omitted to do so. The following amended is effected hereinunder
in terms of Rule 449 of the High Court rules:
“(1) That
first and second Respondents be and are hereby ordered to transfer Stand 604,
Victoria Falls from themselves to Applicant.”
The initial order is no longer
legally enforceable by operation law.
Messrs Coghlan and Welsh, Applicant's Legal Practitioners
Mahamba Legal Practitioners, 1st
and 2nd Respondent's Legal Practitioners c/o Majoko and Majoko
