As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-

“The Roman law principle that a contract is a nullity if, at the time it was made, it was impossible of performance forms part of our law.

'By the Civil Law, a contract is void if at the time of its inception its performance is impossible: impossiblium nulla obligatio (D50.17.185).'

But, the principle thus stated may easily be misunderstood and requires immediate qualification in four respects:

(i) First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract.

(ii) Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract.

(iii) Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract.

(iv) Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promises or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

A purchase price in the sum of $12,000,000 and installation charges of $3,000,000 were agreed upon.

Pursuant to the agreement, an invoice was made out to the applicant giving the total amount payable as $15 million.

It was made clear to Douglas Chihuri that payment would be made through the African Banking Corporation and would take a few weeks to be processed.

A month later, payment was effected in the agreed sum. This was made in favour of Chartered Enterprises, Douglas Chihuri's trading mantle.

A week after payment had been made, the applicant met with the respondent to discuss the details of the delivery of the centre pivot. Douglas Chihuri was in attendance. At the meeting, the respondent unilaterally increased the purchase price of the centre pivot. Instead of holding the respondent to the agreed price, the applicant agreed to pay an additional $5million and executed an acknowledgement of debt to this effect.

The seller also appended his signature to the acknowledgement. So did Douglas Chihuri.

Payment of the $15 million was then made to the respondent according to his instructions. Still acting as the seller's agent, Douglas Chihuri agreed to have the centre pivot delivered to the applicant.

The respondent did not deliver the centre pivot, prompting the applicant to bring this application seeking an order compelling the respondent to deliver a 140HA center pivot to it.

In opposing the application, the respondent denies knowledge of what transpired between the applicant and Douglas Chihuri, but admits that he was, at that time, selling two centre pivots, the details of which he gave to Douglas Chihuri. He further confirmed, that, in time, Douglas Chihuri advised him that he had secured a buyer for one of the centre pivots. He also confirmed that he received the sum of $14 million dollars for the centre pivot that Douglas Chihuri had sold to the applicant on his behalf and that a balance in the sum of $5 million would be paid in due course.

It was also suggested to him that a further $15 million would be paid for the same pivot after the applicant had sold his beasts or that he could collect the beasts himself as further payment for the sold pivot. He however opted for a cash payment. He did not agree to the delivery of the pivot in the absence of full payment and did not deliver the center pivot because he did not receive the full purchase price of $35 million.

At the hearing of the application, it emerged that the respondent had sold the centre pivot, the subject of this dispute, after being served with this application but before the matter was determined.

This emerged from supplementary affidavits filed by both parties days before the hearing and which were filed with my leave. I granted leave to the parties to file the supplementary affidavits as, in my view, they air the full dispute between the parties and bring out the real issue for determination in this matter.

In his supplementary affidavit, the respondent deposed, that, after the filing of the above application, a director of the applicant caused his arrest on allegations of fraud. It was alleged, in the criminal proceedings, that the respondent had fraudulently misrepresented to the said director that the centre pivot was available for sale when he knew that it was not as it was to be sold to a third party. The respondent was duly prosecuted but was acquitted at the close of the trial.

In it own supplementary affidavit, the applicant admitted the facts given in the respondent's additional affidavit but urged me to find the contents of the affidavit inadmissible on the basis of irrelevancy.

Before proceeding further, I will dispose of the admissibility of the contents of the affidavit.

In my view, once a court grants leave to a party to file an additional affidavit, that grant of leave necessarily implies that the contents of the affidavit are admissible. Supplementary affidavits should only be filed if their contents are relevant to the dispute before the court.

It is a general rule of evidence that irrelevant evidence is inadmissible.

Section 26 of the Civil Evidence Act [Chapter 8.01] provides that evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point in issue shall not be admissible.

This section is simply a codification of the position at common law which holds that all facts relevant to the issue in legal proceedings may be proved and where a legally recognized exception to this rule is not invoked, relevancy remains the fundamental rule governing the admissibility of evidence.

As indicated above, this is the rule that a court summarily employs before granting leave to file additional affidavits in motion proceedings.

In my view, the rule against admissibility of irrelevant evidence is rooted more in common sense than in a legal principle. It is a common sense approach by the court to govern that which it will accept or reject lest it be inundated by evidence of all facts surrounding a dispute and trials will take longer than is necessary to resolve if the parties were left at liberty to drag in all they wish or think is necessary.

It however remains clear that the rule against irrelevant evidence is against evidence of facts that have little to do with the issue in dispute.

In casu, I was of the view that the disposal of the centre pivot pending litigation is the issue in dispute and thus facts tending to prove the disposal cannot be irrelevant. Further, and in any event, the facts sought to be rendered inadmissible by the applicant are common cause and thus no party will be prejudiced by its admission into evidence.

It is on the basis of the above that I ruled admissible the contents of the two supplementary affidavits.

I now turn to consider the merits of the application.

The issues that fall for determination in this application are mainly two in my view:

(i) Firstly, I have to determine whether or not there was an agreement between the applicant and the respondent for the sale of the centre pivot for $20 million.

The respondent has sought to argue that the agreed purchase price was $35 million. He deposed in his opposing affidavit that after the applicant had paid the first $15 million and had promised a further $5 million, by way of the acknowledgement of debt; the parties agreed to a further payment of $15 million after the applicant had sold its beasts.

Relying on these averments by the respondent, counsel for the respondent argued that the correct purchase price of the center pivot cannot, in the circumstances, be ascertained without the leading of oral evidence and thus the application should fail on this basis.

It is common cause that Douglas Chihuri, acting as the agent of the respondent, agreed to sell the centre pivot to the applicant for $15 million. The parties agreed, later, to vary the purchase price to $20 million, when, after making payment of the initial purchase price, the applicant promised, by way of an acknowledgement of debt, to pay an additional $5 million.

The agency of Douglas Chihuri to represent the respondent, whilst challenged in the opposing affidavit, was not advanced in argument.

In my view, counsel for the respondent was well advised not to advance the argument in view of the affidavit by Douglas Chihuri and the fact that the respondent accepted the sum of $15 million paid by the applicant through Chihuri.

By his own conduct, of accepting the payment, the respondent put paid to whatever argument he may have had against the agency of Douglas Chihuri. By this conduct, he gave out and confirmed that Douglas Chihuri was indeed selling the centre pivot on his behalf and is thus bound not only by what Douglas Chihuri did but by what he also personally did.

If there was any doubt about the agency of Douglas Chihuri, the respondent personally removed that doubt by accepting the part payment of the purchase price and agreeing with the applicant that the balance now stood at $5 million, thereby putting beyond doubt that the purchase price was $20 million.

In my view, he is thus condemned by his own actions as revealed by the papers filed of record.

I am aware that the respondent has repeatedly and vehemently denied, in his affidavit, that the purchase price of the centre pivot was $20 million.

It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by McNALLY J…, in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed.

A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

In casu, I believe the papers filed of record present ready answers to the questions posed by the respondent. He argues that he wanted more than the $20 million that the applicant contends was the agreed purchase price.

(a) Firstly, the papers filed of record clearly show that the respondent's agent negotiated and agreed to the sum of $20 million.

At law, the actions of the agent bind the principal - even if the agent is breaching his own contract of agency with the principal.

There is thus no need to lead evidence to show what the terms of the agency contract were regarding the purchase price he had to seek. The respondent, through the agency of Douglas Chihuri, agreed to $20 million that the applicant has paid in full.

(b) Secondly, it is common cause that the respondent received the sum of $15 million dollars through his agent, and, thereafter, acknowledged, in writing, that the balance due was $5 million.

He did not, at that stage, query the fact that the balance was only $5 million instead of $20 million according to his assertions.

By appending his signature to the acknowledgement of debt, which clearly indicates the balance as $5million, he gave out to the applicant that he agreed with the applicant in this regard.

Thus, in my view, on the basis of the papers, it is clear that the total purchase price agreed to between parties was in the sum of $20 million which was paid in full.

I find nothing on the papers to indicate that the parties may have agreed to a price other than $20 million.

The only suggestion that this may be so is the averment by the respondent, in his opposing affidavit, to this effect. It is not backed up by any other evidence. It is contradicted by the facts that are common cause and is thus clearly simply meant to introduce an illusory conflict where none exists.

Aligned to the alleged conflict of fact on the agreed purchase price is whether the respondent agreed to deliver the centre pivot before payment of the purchase price in full.

Again, counsel for the respondent urged me to find that I could not resolve this dispute in the absence of oral evidence.

I am afraid I cannot agree.

Having found that the agreed purchase price was $20 million which was paid in full, it matters not, in my view, if the respondent agreed to deliver the centre pivot as delivery is a legal consequence following the conclusion of a sale agreement. It cannot be the subject of a separate agreement between the parties.

It is therefore my finding, that, there is no material conflict of fact in this application.

The parties concluded an agreement of sale of the centre pivot for the sum of $20 million which has since been paid in full. The respondent is bound by the law of sale to deliver the centre pivot to the applicant.

The first respondent owns an immovable property known as Stand 237 Redcliff Township of Redcliff Estate Situate in the district of Kwekwe..., also known as Number 5 McNab Road, Redcliff.

On 30 April 2007, the Board of Directors of the first respondent passed a resolution to dispose of that property with a view to buying another immovable property. In their resolution, the Board of Directors nominated Nandi Properties (Private) Limited to act as the disposing agent.

On 2 May 2007, all the three Directors signed the resolution.

It is not disputed that Mr. Michael Hanyani, as the Managing Director, thereafter gave instructions to Nandi Properties (Private) Limited, in furtherance of that resolution.

Nandi Properties (Private) Limited proceeded to source for buyers for the property.

On 21 June 2007, the applicant made an offer to purchase the property at a price of Z$1.9 billion. The amount was paid by RTGS....,.

The irrevocable offer letter and acceptance was apparently faxed to Kwekwe, fax number (055) 23192, attention Hanyani, to whose attention it was said the offer letter was drawn, is alleged to have appended his signature on the same date, and had the document faxed back to Harare.

On 26 June 2007, Mr. Michael Hanyani signed a special power of attorney..., in favour of Messrs. Magwaliba & Kwirira, authorising them to sign all documents relating to the sale and transfer of rights, and interests, in the property in question.

The document was sent to Magwaliba & Kwirira by fax on that same date.

On the same date, 26 June 2007, the Agreement of Sale was signed by the parties. Mr. T. Magwaliba signed on behalf of the first respondent, in terms of the special power of attorney, and the applicant signed as Purchaser.

On 28 June 2007, the applicant paid the total purchase price of Z$1,9 billion through RTGS, in terms of the Agreement of Sale.

On 29 June 2007, the first respondent, through Mr. Michael Hanyani, wrote a letter addressed to Mr. Madamombe, of Nandi Properties (Private) Limited, purportedly cancelling the Agreement of Sale for the property in question. The letter reads in part:

“We write to inform you that we are cancelling the Sale Agreement for the property on 5 McNab Street, Redcliff. The Directors of Bryden Technical Services (Pvt) Ltd felt that they cannot find a replacement property with an equivalent value as agreed on earlier (minutes of 30 April 2007).

The replacement property was pegged at Z$1,9 billion but after two weeks due to hyperinflation, and your delay in facilitating payment, the property now costs Z$3,5 billion. This, however, has left us with no option except to cancel the Agreement. Please may you reverse payment made as soon as possible.”

It is also common cause that in a separate agreement, the parties had agreed that, depending on an agreement on a purchase price, the respondent would buy the premises.

As revealed in the papers before the court, the parties were never able to agree on a purchase price for the premises.

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....,.

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....,.

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.

On 8 October 2008, the parties attended upon the defendant's legal practitioners where they were presented with a draft Agreement to sign. The Agreement reflected that the purchase price of the two properties sold was the sum of $265,000= and that a deposit of $85,000= was to be paid upon the signing of the Sale Agreement.

The parties signed the Agreement of Sale.

On the same day, the parties signed a similarly worded Agreement, but one where the purchase price of the properties was reflected as Z$10 billion.

The circumstances surrounding the signing of the second Agreement are in dispute...,.

Some money exchanged hands after the signing of the Agreements. The amount and the currency of the money paid by the defendant on the day are also in dispute.

On 1 April 2009, the plaintiffs issued summons out of this court claiming against the defendant an order cancelling the Agreement of Sale of 8 October 2008, an order cancelling the cession of rights in favour of the defendant of the two properties, an order declaring that the deposit paid by the defendant in terms of the first Agreement of Sale be declared forfeit to the plaintiffs as consequential damages, and costs of suit.

The suit was defended.

In the main, the defendant pleaded that he did not enter into the Agreement of Sale where the purchase price is denominated in United States Dollars. Instead, he averred that the binding contract between the parties was the second one, denominated in local currency, which he did not breach in any manner.

The applicant is seeking an order in a draft in the following terms:

“It is ordered that:

(1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name.

(2) In the event that first to fifth respondents refuse to accept payment, the Deputy Sheriff be and is hereby authorized to accept the money on their behalf and proceed to sign all the necessary documents at 7^th and 8^th respondents' offices to effect transfer of Stand Number 3553 Emganwini, Bulawayo, into applicant's name.

(3) The 7^th and 8^th respondents be and are hereby directed to transfer Stand Number 3553 Emganwini, Bulawayo into applicant's name.

(4) First to fifth respondents are to pay the costs of this suit on an attorney-client scale.”

The salient facts of the matter are the following.

The first respondent is the estate of the late A Mtsana. The second, third, fourth and fifth respondents are the late A Mtsana's children.

During her lifetime, the late A Mtsana entered into an agreement with the applicant for the sale of a Stand yet to be identified by the late at a total cost of $18 million to be paid in fixed monthly installments. Only the second respondent was privy to this agreement, the third to fifth respondents were not.

As per the agreement, the first respondent secured Stand Number 3553 Emganwini, Bulawayo for the applicant. It is apparent from the annexures filed by the applicant that both the applicant and the late A Mtsana signed the agreement which stipulates that the price was varied to $100 million and that the Stand was then identified as 3553 Emganwini. The annexures A-C contain the agreement between the late A Mtsana and the applicant and it is in the following terms:

“27 September 2004

UHebert Mabunu Sikosana I.D. 08-282566 N 73 ubhadale i$2,000,000 eyestand. Cost $18,000,000. Balance $16,000,000.

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

5 October 2004

Paid $3,000,000

Balance $13,000,000

S Ncube (signed)

H Sikhosana (signed)

A Mtsana (signed)

24 October 2004

Paid $2,000,000

Balanace $11,000,000

S Ncube (signed)

A Mtsana (signed)

7 November 2004

Paid $2,000,000

S Ncube (signed)

Balance $9,000,000

A Mtsana (signed)

Herbert (signed)

20/11/04

Paid $1,000,000

Balance $8,000,000

S Ncube (signed)

A Mtsana (signed)

11/12/04

Paid $1,500,000

Balance $6,500,000

A Mtsana (signed)

S Ncube (signed)

New Year 2005

19/01/05 Mr H Sikhosana

Paid $3,000,000

Balance $3,500,000

S Ncube (signed)

A Mtsana (signed)

8-03-05

Paid $2,000,000

Balance $1,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

Sale of Stand No. 3553

Continued from 27 September 2004

$100,000,000

$16,500,000

Balance $83,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed).”

It is beyond dispute that the late Mtsana and the second respondent signed against each payment that the applicant made. It is beyond dispute, from the foregoing, that the applicant and the late Mtsana signed for the variation. The only term varied is the purchase price which was increased from the initial $18 million to $100 million.

The late A Mtsana died in April 2005 when the agreement between the parties was still valid and effective. It was after the deceased's death, when the applicant went to make his payment, when the second to fifth respondents refused to accept the money and advised the applicant that they were now cancelling the contract prompting the applicant to seek redress in this court via this application.

In opposing this application, the third respondent then filed an opposing affidavit allegedly on behalf of the first to fifth respondents.

The opposing papers raised the following issues:

(a) The applicant has used the wrong procedure as he should have proceeded by way of summons;

(b) That the applicant has nothing against the respondents since he did not know the property he was purchasing at the time of contracting;

(c) That the respondents have cancelled the contract since the applicant breached it by failing to pay timeously; and

(d) That a new term of the contract was introduced at the time of the variation in terms of which the applicant was required to pay $40 million immediately upon signing the agreement and that he failed to fulfill this obligation....,.

2. Whether the contract was invalid from its inception

It is trite that parties to a contract have the freedom to contract on any terms of their choice provided that the contract is not tainted with illegality.

The issue here is the sale of an un-ascertain Stand.

It is trite law that parties can contract for the sale of property not yet ascertained or in existence – Business Law in Zimbabwe (1^st Edition) by R CHRISTIE…, and Rhodesian Wire Industries (Pvt) Ltd v A & J Construction 1964 RLR 456…,.

The non-availability of the Stand, at the initial stages of the contract, does not invalidate the contract. The parties were in agreement that they were contracting for a Stand yet to exist. The role of the court in such a case is to enforce the will and wishes of the parties. Once the contract was concluded, the seller, the late A. Mtsana, immediately had an obligation and duty to deliver a Stand hence her subsequent securing Stand Number 3553 Emganwini and offering it to the applicant.

The plaintiff, who is employed as a painter in South Africa, told the court that, during the year 2000, he approached a company known as Zimbabwe-Australia (Pvt) Ltd..., seeking to buy a Stand. Some official there told him that he had to pay what was termed “construction money” in the sum of $280,000= in addition to the $1,000= for the Stand.

He paid those amounts to Zimbabwe-Australia (Pvt) Ltd.

The plaintiff did not sign any Agreement of Sale of the Stand. Neither was he shown any proof that the Stand the he was paying for belonged to that company.

Due to the economic meltdown, the plaintiff said Zimbabwe-Australia (Pvt) Ltd told him to buy building materials because they were unable to so themselves.

He obliged.

He filed of record receipts for the materials bought from some of the suppliers...,. Also filed of record were receipts reflecting various amounts of money paid to Zimbabwe-Australia (Pvt) Ltd for the purchase of a Stand and construction.

The deposit of $25,000= for a Stand was paid on 28 December 2000. He also paid a sum of $1,000= administration fee on that same day.

The court observes that there is no information indicating which Stand the plaintiff was paying for.

It was the plaintiff's evidence that no-one claimed ownership of the Stand during the entire period that the house was being built on it. When the house was complete and habitable, he took occupation. He put his relatives in the house since he himself lived, and worked, in South Africa. To his surprise, it was only then that the first defendant pitched up and claimed ownership of the Stand, and the house on it.

The first defendant evicted the plaintiff's relatives and removed the plaintiff's property from the house.

It was only then that the plaintiff went to the City Council to ascertain who the Stand belonged to. He then established that the Stand belonged to the first defendant, and was registered in his name. It dawned to him that Zimbabwe-Australia (Pvt) Ltd purported to sell him a Stand which did not belong to them.

The plaintiff approached Zimbabwe-Australia (Pvt) Ltd, whose General Manager swore to an affidavit on 27 April 2004. The affidavit does not seem to assist the plaintiff at all as it seems to suggest that the purported takeover of the Stand by the plaintiff was only done after management had resolved at a meeting sometime in 2003. Management made the resolution after the first defendant had allegedly stopped making payment for a long time – i.e. more than eighteen months.

Under cross-examination, the plaintiff accepted the simple truism that a person cannot lawfully sell what does not belong to them, and that it was, therefore, wrong for Zimbabwe-Australia (Pvt) Ltd to purport to sell to him the Stand which did not belong to them.

He accepted that he was the author of his own misfortune, although he tried to attribute that to ignorance.

The plaintiff would also not dispute the fact that the first defendant had, in fact, paid Zimbabwe-Australia (Pvt) Ltd to construct a house on his Stand. He further would not dispute that the first defendant had, in fact, paid in full for the construction of the house on his Stand, but said he only did so after he himself had taken occupation of the house.

He accepted that if he had been careful, and did not want to cut corners, he would not have been in the position he now finds himself in.

The first defendant's case is simple.

He owns the Stand in dispute and has title to it.

He approached Zimbabwe-Australia (Pvt) Ltd to construct a house for him on his Stand. He was asked to pay for the construction – which he did. He was later told that what he had paid that far was no longer sufficient, as it had been eroded by hyperinflation. He alleged that he had paid the full amount for the construction of a five-roomed house.

The parties entered into a written agreement.

Instead of constructing a five-roomed house as agreed, Zimbabwe-Australia (Pvt) Ltd built a four-roomed house. When queried about why they did that, they said that was what was permitted by the City of Bulawayo...,. After the house had been completed, the first defendant went to take occupation but found that the house had been occupied by the plaintiff's relatives.

When Themba Sibanda, the director, was asked about what was happening, he said Zimbabwe-Australia (Pvt) Ltd had temporarily put somebody in the house for security reasons...,.

What emerges from the evidence of the parties is that each of them paid Zimbabwe-Australia (Pvt) Ltd some money for construction of a house. But the difficulty that has not been is what did Zimbabwe-Australia (Pvt) Ltd do with the money, and building materials received from the plaintiff?

The plaintiff has not proved that his building materials were used on that particular house. Zimbabwe-Australia (Pvt) Ltd could have used the materials to build on any other Stand. There was no evidence from Zimbabwe-Australia (Pvt) Ltd to the effect that the plaintiff's materials were used on that particular house.

Zimbabwe-Australia (Pvt) Ltd was a company which seems to have been run by crooks. People purported to sell what was not theirs. That is why they could receive money from two different people for the alleged construction of the same house. The carelessness of the plaintiff exacerbated the problem.

In the light of the foregoing, the answers to the issues referred for the trial determination of this court are these -

1. The rightful owner of Stand 3722 Emganwini is the first defendant, who paid for the Stand and holds title to it.

2.  Both parties paid Zimbabwe-Australia (Pvt) Ltd for the construction of a house. But it was not established which house the plaintiff paid for. Neither was it established where the building materials that he bought was used. What admits of no doubt is the fact that both the plaintiff and the first defendant paid Zimbabwe-Australia (Pvt) Ltd some money for the construction of a house. The first defendant paid for the construction of a house on his Stand. But it is not known what Zimbabwe-Australia (Pvt) Ltd did with the money, and building materials that it got from the plaintiff.

Accordingly, the plaintiff should look to Zimbabwe-Australia (Pvt) Ltd for his money and building materials.

The general rule is that once the parties are in agreement over the merx and the payment of the purchase price payable for the merx, a valid contract of sale comes into being between the parties. The contract them casts upon the seller the obligation to deliver the merx sold and upon the purchaser, the obligation to pay the purchase price.

To defend a claim under an agreement of sale, then, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him.

On 30 May 2007, one A P Da Silva, a representative of the Portuguese Club, addressed a letter to Football Club Windermere in the following terms:-

“Dear Sir,

Re: Purchase of Portuguese Club

I refer to your letter dated 1^st March 2007 and we have not had any further communication from you as to your meeting with Mr Magagula, Director of Housing, City of Bulawayo on the outcome of your proposal. Since March 2007 there has been a rapid decline in the Zimbabwe Dollar i.e. inflation has risen sharply since our discussion. We need to have another meeting so that by negotiations we can adjust our purchase price to meet the current inflation rates.

Please advise what your intentions are.

We await your early reply.

Yours faithfully

A.P. Da Silva”…,.

Football Club Windermere responded to the above letter on 21 June 2007 in the following terms and the letter was marked for the attention of Mr A.P. Da Silva.

“Re: Portuguese Club

I refer to your letter dated 30^th May 2007 which I received yesterday the 20^th June 2007.

As per our conversation of the 20^th of May 2007, I confirm that all the necessary City Council requirements have been met.  All what remains is for us to agree on the purchase price. I also confirm that the initial agreed figure of $200 million has been eroded by inflation and therefore I propose a new figure of $1.4 billion subject to discussion.

We will always work together with the Portuguese community and that your social practice and protocol at the club will not be interfered with.

I am looking forward to hearing from you at your earliest convenience.

Yours sincerely

Mr O. Sibanda

Managing Director”….,.

The first of the two letters supra established that the parties were engaged in negotiations concerning the purchase price of the Portuguese Club. A figure had been suggested which was eroded by inflation before the parties could reach a final agreement on it. Consequently, it was imperative that the parties meet again to negotiate and agree on a new purchase price to cater for the current inflation rates. In the second letter, Mr O. Sibanda, the Managing Director of Football Club Windermere, appreciated that the parties needed to agree on the purchase price. He was also alive to the fact that the figure of $200 million discussed previously had been eroded by inflation and even proposed a figure of $1.4 billion for discussion at the parties' next meeting.

It is therefore quite safe to state that no Agreement of Sale of the Portuguese Club had been reached between the parties that far. There would be no basis to suggest that the Cession Agreement between the parties was perfected when discussions relating to the purchase price had not yet been finalized. Mr O. Sibanda, the Director of the applicant, deposed to the applicant's founding affidavit and had this to say in paragraph 8 of the affidavit:-

“From annexures “B” and “C” it will be evident that even on the question of compensation we went as far to agree (sic) on a figure and also subsequently agree that such figure had been eroded by inflation and it should be reviewed. Unfortunately, these negotiations over the level of compensation have never been concluded. Applicant, however, places it on record that it is still committed to paying first respondent fair compensation in respect of the improvements and in such amount as the parties may agree or as may be fixed for them by a third party chosen by them or determinated by the Honourable court at the request of either party. First respondent is now refusing to negotiate on the issue of compensation.”…,.

The above clearly shows that there was simply no valid agreement between the parties. Further, there is nowhere in the papers filed of record where such an agreement on the purchase price was recorded. There is no record of it because it does not exist. 

In his own heads of argument before the court a quo, the respondent correctly states the legal position to the effect that:

"A sale in Roman-Dutch law has been defined as a contract in which one person promises to deliver a thing to another, who, on his part, promises to pay a certain price."

In this, case there was no such arrangement. 

On the face of it, exhibit 5 would satisfy the basic tenets of an Agreement of Sale. The thing to be sold is identified and the price is indicated. The intention to sell and buy is pre-supposed. In addition, the signatures of the seller, buyer and witnesses are appended in the agreement.

An Agreement of Sale is not an agreement to transfer ownership. MACKEURTAN: Sale of Goods in South Africa…, states that there are three (3) essential elements of a contract of sale. They are;

(i) The agreement (consensus ad idem);

(ii) The thing sold (merx); and

(iii) The price (pretium).

The parties enter into a contract with a view to exchange the thing for a price. If the three elements are there, there is a sale. Neither delivery nor the payment of the purchase price is necessary for the creation of the contract. Delivery and payment fall within the category of the performance of the contract.

A contract of sale merely obliges the seller to pass vacua possessio. As a result, it is not a pre-requisite of the contract of sale that the seller be the owner of the merx. In other words, a non-owner of a property can enter into a valid agreement of sale. This means, therefore, that the signing of an Agreement of Sale does not automatically result in ownership being transferred to the buyer. Parties should therefore agree on when transfer should be effected. If they agree on the date of transfer, it is on that agreed date that the debt becomes due in terms of section 16(1) of the Prescription Act [Chapter 8:11].

Prescription begins to run as from that date as the seller (debtor) would have been placed in mora….,.

In Asharia v Patel & Others 1991 (2) ZLR 276 (SC)…, GUBBAY CJ said:

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective.”

Four elements constitute the contract of purchase and sale. These are:

(a) The seller who wants to sell;

(b) The buyer who wants to buy;

(c) The thing or the subject–matter of the contract; and

(d) The price.

See NORMAN's Purchase and Sale in South Africa 4^th ed…,: MACKENRTAIN's Sale of Goods in South Africa, 4ed…,.

Where one of the elements is missing, the contract is not one of sale.

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

It is also significant that nowhere in the five defendants' pleas and synopsis of evidence is the alleged purchase price mentioned.

All in all, this witness was totally unreliable and his testimony is not worthy of any belief.

Collen Ndebele

He, like the other defendants, gave similar evidence, which was not supported by any documentation, but in fact contradicted by documentation before the court.

He had no documentation to support his assertion that he entered into an agreement to rent-to-buy the house he was claiming. All he relied upon was a rent card which in fact showed that he was a tenant. He said he believed that he had paid for the house in dispute in full, yet, on his own version he paid just over 20 years. His rent card showed nothing of ownership. His testimony suffers the same weakness as that of the previous witness. He was as un-impressive as the last witness. He was equally evasive on the purchase price and the lack of Agreement of Sale.

Sihlobo Sibanda

He was equally not impressive as a witness. The documents showed that he was allocated the disputed house because of his position as a Bursar, but he made a valiant attempt to deny this.

In his case, he was aware of the problem regarding the houses because he took minutes at Council meetings when the issue was discussed as far back as November 1997. He had no purchase price for the house, but said that he was supposed to pay over thirty (30) years. He said that his waiting list card was taken at the time he was allocated the house in issue, but, somehow, he was allocated another Stand.

The waiting list card must have been taken when he was allocated the latter Stand and not the house in issue.

It is significant to note that in the latter application he used a misleading address i.e. 2512. This was misleading to disguise the fact that he already had another house, 4246 Chinotimba.

In his own version he would have been sold two residential Stands in a space of three years contrary to Government policy. It is clear that he was never sold the house in issue. He is, however, still in the plaintiff's employ and continues to pay rentals through deductions. In this regard, his position is different from other defendants.

Shadreck Ndlovu

Like the previous witnesses, he said a lot but had no documentation to support his assertion that the plaintiff sold him the house in issue.

He had no idea of the purchase price of the house, he was not sure if he paid in full for the house: he was just swimming in a sea of uncertainty.

He said that despite the fact that his waiting list card was taken away when he was allocated the house in dispute, he was allocated Stand 4237 simply because he was a war veteran. He was unable to show anything in the housing policy document to illustrate that war veterans were entitled to be allocated more than one Stand in the high density suburbs.

In any event, in respect of Stand 4237, there were proper documents to show that he entered into a rent-to-buy agreement and yet for the house in dispute such documents were conspicuous by their absence.

Stephen Mpofu

Like other defendants he had no documentation to support his story that he owned the house in question. He had no idea of the purchase price and he did not know how long he was supposed to take to pay for the house. He appeared confused and did not know what was happening.

Everson Ndebele

Like other defendants, he had no documentation for the alleged purchase of the Stand in dispute. His testimony is equally incredible. He received documentation for the other Stand, 4817, but not for the disputed Stand.

Osina Nyathi

She testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so.

Alice Ndlovu

Whereas, Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, this witness attempted to be the spokesperson for the defendants relating to the ZimSun houses.

She made a valiant attempt to use the rent card as proof of ownership.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard. She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

Smolitha Maseko

Like the previous witness, Sihlobo Sibanda, she is still in the plaintiff's employ and rentals are being deducted from her salary, according to the testimony of the plaintiff's witness Thembinkosi Khumalo.

Like other defendants, she failed to establish that the house in dispute was sold to her. Although, unlike the other defendants, she and Sihlobo Sibanda may not be evicted in terms of the cause of action in casu and ordered to pay damages, suffice to say that they are in occupation of their respective properties on account of their continued employment by the plaintiff and not on account of a sale agreement.

Kambarashe Zex Raura

Like other defendants, he had no agreement of sale to establish that he purchased the house in dispute.

His untruthfulness is evinced by the fact, that, in his application for Stand 5049 he stated that he did not own any other Stand as at 1996, when, in his own version, in 1991, he had been allocated Stand 4407.

This is either a deliberate lie or a confirmation that he was aware that Stand 4407 was a pool house.

He further said he was never told the purchase price, but was advised that he was to pay $250 as deposit and $250 per month. He said there was vague talk of paying $250 per month for 25 years but he was never informed of the purchase price and he could not answer questions on the issue of the purchase price.

I am satisfied he is equally an un-impressive witness.

Sivumo Ndlovu

Like other defendants, she had no documentation to prove that she had entered a lease to buy agreement in respect of the property in issue. This is in stark contrast to the documents which clearly set out the rights and obligations of the respective parties of Stand 5053. She also had no purchase price on the house she claimed she had bought.

Ruth Khumalo

Her testimony is characterized by hearsay. But, the bottom line is that she was unable to produce any documentation to show that she purchased the Stand in dispute.

Having made the above findings of facts, I proceed to consider the effect of these findings and the law applicable.

I have to determine whether there were contracts of purchase and sale between the protagonists in these two matters. I have to determine whether the essentials of a purchase and sale contract are present.

In casu, there is no dispute that there is more than one party to the alleged contracts – Barnhoorn v Duvenage 1964 (2) SA 486 (A)…,.

The crucial issue is whether there was true agreement between the parties.

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R H CHRISTIE 3rd Ed…,.

In order to decide whether a contract exists, one looks first for the true agreement of two or more parties, and, because such agreement can only be revealed by external manifestations, one's approach must of necessity be generally objective.

The court can only judge from external facts whether the minds of the parties have come together – Jordaan v Trollip 1960 IPH A25 (T) and Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) 164 (D)…,.

Looking at the evidence led by the plaintiff, there was no meeting of minds that these houses were being sold to the defendants.

It is trite that the most helpful way of determining whether there has been agreement, true or based on quasi-mutual assent, is to look for an offer and an acceptance of that offer. A binding contract is, as a rule, constituted by acceptance of an offer: Reid Bros (SA) Ltd v Fisher Bearing Co Ltd 1943 AD 232…,.

But, offer and acceptance must never be sought for their own sake but as aids in deciding whether an agreement has been reached.

A true offer means an express or implied intention to be bound by the offeree's acceptance – the animus contrahendi: Sambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)…, and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A).

In casu, there was no such offer to the defendants.

The rent cards produced do not constitute an offer made with the requisite animus contrahendi. There were no unequivocal offers of sale made to the defendants. The offer must be unequivocal i.e. positive and unambiguous: Boernie v Harris 1949 (1) SA 793 (A)…, and Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…,.

Accordingly, from the evidence, there was no agreement by consent or true agreement, or a meeting of minds, or a coincidence of wills, or consensus ad idem between the parties and the only credible explanation is that these houses were pool houses for use at the discretion of the plaintiff.

On this point alone the plaintiff's claims must succeed and the defendants' counter-claims fail.

Further, there is no agreement on the price.

As alluded to above, it is not easy to ascertain the alleged purchase price. This points to the relationship of lease and not purchase and sale between the parties.

The defendants, save for one, were all employees of the plaintiff at the time of allocation of the houses in dispute. They obviously know the difference between being pool accommodation and rent-to-buy houses. All the defendants later, but before this dispute arose, entered into proper rent-to-buy agreements with the plaintiff so they are familiar with such agreements. The latter agreements clearly state the terms of agreement and the parties.

They cannot be heard to be saying they mistook the rent cards for agreements of sale.

The defendants are just influenced by greed and are trying to obtain two properties each from the plaintiff by converting their leases of the pool houses into ownership agreements.

There is simply no agreements of sale in respect of the houses in issue and the court cannot contract for the parties: Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 (HL)…,; Globe Electrical Transvaal (Pty) Ltd v Brunhuber 1970 (3) SA 99E…,; Levenstein v Levenstein 1955 (3) SA 615 (SR) and Titaco Projects (Pty) Ltd v AA Alloy Foundry (Pty) Ltd 1966 (3) SA 320 (W)…,.

The plaintiff's claims must succeed against all the defendants save for Sihlobo Sibanda and Smolitha Maseko. These two defendants are still employed by the plaintiff as alluded to above and the plaintiff is still collecting rentals from their respective salaries. If the plaintiff wants to evict them, it cannot be on the basis of this cause of action.

As far as the damages are concerned, the plaintiff does not charge market-related rentals of US$150 per month as claimed in this case. The plaintiff is charging US$20 per month for the houses in dispute. There is no basis for granting the plaintiff damages based on market related rentals.

Accordingly, it is hereby ordered:

(1) That the plaintiff's claim for the eviction of the defendants Smolitha Maseko and Sihlobo Sibanda from houses 4408 and 4246 respectively be dismissed.

(2) That the counter-claims by Smolitha Maseko and Sihlobo Sibanda against the plaintiff be dismissed with each party bearing own costs.

(3) That the plaintiff's claim for the eviction of:-

3.1 Loida Nyathi - House 4251 Chinotimba;
3.2 Everson Ndebele - House 4255 Chinotimba;
3.3 Collen Ndebele - House 4247 Chinotimba;
3.4 Phindile Ncube - House 4242 Chinotimba;
3.5 Shadreck Ndlovu - House 4241 Chinotimba;
3.6 Stephen Mpofu - House 4244 Chinotimba;
3.7 Alice Ndlovu - House 4403 Chinotimba;
3.8 Sivumo Ndlovu - House 4401 Chinotimba;
3.9 Kambashu Zex Raura - House 4407 Chinotimba; and
3.10 Fred Khumalo - House 4400 Chinotimba;
be and is hereby granted.

(4) That each of the above-mentioned defendants, named in paragraph 3 above, be ordered to pay US$20 per month from the month of February 2009 to date of eviction.

(5) That the counter-claims by each of the defendants named in paragraph (3) above are dismissed.

(6) That the defendants named in paragraph 3 above are to bear costs of suit on the ordinary scale.

(7) That the plaintiff be declared owner of all the properties subject matter of this case.

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera.

At some stage during the period of employment, the respondent was issued with the employer's Ford Ranger 1800 pick-up registration number AAO 4838 for use although initially he was not entitled to it. When he was promoted to Branch Manager, it was a condition of employment that he be allocated a vehicle, and, therefore, held the vehicle as part of his conditions of service. In addition, he was also allocated a company house, being No.1088 Fairview Crescent, Winston Park, Marondera at a nominal rental of US$20 per month deducted from his salary.

On 16 May 2011, the respondent resigned from employment, and, in his letter of resignation of that date, he requested to purchase the motor vehicle that he was using. The applicant refused to sell the motor vehicle to him and demanded that he surrenders it and also vacate the company house on a given date. The respondent did not surrender the vehicle neither did he vacate the house.

I must mention that a dispute arose between the parties hinging on whether the respondent had resigned or had been dismissed as the applicant had, after the respondent's resignation, purported to conduct a disciplinary hearing and to dismiss him from employment. Although that leg of the dispute between the parties is not before me, I mention, for completeness, that it has since been resolved by the Labour Court which concluded that the respondent had in fact resigned and had not been dismissed.

Be that as it may, the respondent's refusal to surrender both the vehicle and the house prompted the applicant to make this application before this court seeking an order compelling the respondent to surrender the property.

The application is opposed, and, in his opposing affidavit, which also betrays the level of acrimony in the relationship between the parties, the respondent sought to argue that as the motor vehicle and accommodation were part of his employment benefits, those issues were outside the jurisdiction of this court and fell for determination by the Labour Court which was then seized with an appeal he had lodged therein.

The respondent insisted that in terms of the conditions of service of the applicant, he was entitled to purchase the vehicle as he had had it for 7 years when the conditions of service allowed an employee the right to purchase a vehicle allocated to him at the expiration of a period of 5 years....,.

Regarding the merits of the matter, the respondent's opposition is twofold, namely;

(i) That he is entitled to purchase the motor vehicle as he has had it for more than five (5) years as provided for in his conditions of service.

(ii) Secondly, he is entitled to remain in the employer's house until such time that he has been paid his terminal benefits.

Counsel for the respondent submitted that the respondent is willing to vacate the house but would want that to be tied to payment of his terminal benefits. While conceding that the respondent did not have a lien right over the house, he still insisted on some kind of entitlement.

What is clear from the papers is that the respondent did not purchase the vehicle. At no time did the parties conclude a sale agreement involving the motor vehicle. In fact, the respondent only requested to purchase the vehicle in his letter of resignation which request was turned down. I have also been referred to the applicant's Personnel Policy and Procedure Manual dealing with the vehicle policy; section 11 of which gives the applicant the sole discretion to authorise disposal of vehicles to employees, taking into account a number of factors including the employee's disciplinary record, good performance at work, and the vehicle's mileage.

It cannot be said, with any degree of certainty, that the respondent is entitled to purchase the vehicle. Even if he was, this cannot give rise to an entitlement to retain it pending the conclusion of a sale agreement. To that extent, the words of MAKARAU JP…, in Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…, are apposite. She said:

“I am unaware of any law that entitles a prospective purchaser to have possession of the merx against the wishes of the seller prior to delivery of the merx in terms of the sale agreement. I was not referred to any such law during the hearing of the matter. My limited research has not yielded any.”

In my view, it is the height of turpitude for the respondent to hold on to both the vehicle and the house years after termination of the employment contract under circumstances where he has no rights whatsoever over the properties.

Counsel for the respondent could not advert to any legal authority entitling a former employee to confiscate a former employer's property in the manner the respondent has done. He could not come up with any authority dis-entitling a former employer from vindicating against a former employee in respect of its property.

The fact that the respondent is owed terminal benefits is not a ground for refusal to surrender assets.

In the end, we are left with the tired and limping argument that because the respondent has referred the issue of whether the employment contract was terminated by dismissal or by resignation to the Labour Court, then this court should not entertain this application even though the Labour Court dispute not only did not have anything to do with the issues before this court but also determined that dispute by judgment delivered in May 2013. I am satisfied that the applicant has made a good case for the relief sought. Accordingly, I make the following order, that:-

1. The respondent, or any person possessing through him, shall, within 48 hours of service of this order, surrender to the applicant a motor vehicle, namely, a Ford Ranger 1800 registration number AAO 4838, failing which the Sheriff for Zimbabwe or his lawful deputy is hereby authorised and directed to take possession of the vehicle and hand it over to the applicant.

2. The respondent and all those claiming occupation through him shall vacate premises known as No. 1088 Fairview Crescent, Wiston Park, Marondera within two (2) days of service of this order failing which the Sheriff for Zimbabwe or his lawful deputy is hereby authorized and directed to evict them from the said premises and handover possession to the applicant.

3. The respondent shall bear the costs of suit.