MTSHIYA J: This is an application wherein the applicant
seeks the following relief:-
“1. The first and second
respondents sign all documents and take all necessary
steps (including obtaining
the Master's Consent) to pass transfer in favour of
the applicants of the
property being a certain piece of Land situate in the
District of Salisbury,
being Lot 1 of Subdivision A of Lot 18 of Greendale
held under Deed of Transfer
Number 5266/84.
2.
In the event of them failing to do so within seven (7)
days of this Court Order, the Deputy Sheriff, Harare be and is hereby
authorized to sign all documents and take all necessary steps to pass transfer
of the property into the Applicants names.
3. The first respondent and second respondents
be and are hereby ordered to pay
the applicants' costs of suit on the
Attorney and Client scale jointly and
severally.”
The brief facts surrounding the relief sought
are these:-
It
is common cause that on 10 February 2005 applicants entered into an agreement
of sale with the first respondent in his personal capacity and as Executor of
the estate of his late wife, namely Emelia Maria Bernadette Rodrigues for the
purchase of Lot 1 of subdivision A of Lot 18 of Greendale, measuring 4118
square metres (the property). The property is also known as number 8 Harris Road,
Highlands, Harare.
The agreed purchase price of the property was seven hundred and sixty million
dollars (ZW $760 000 000-00). On 15 February 2005 the applicants paid the full
purchase price through the first respondents' conveyancers, namely Wintertons
Legal Practitioners. The money paid was to be held in trust pending transfer of
the property into the names of the applicants.
Clause
3(b) of the agreement of sale, signed by the parties on 10 February 2005,
provided
as follows:
“3(b) That this
Agreement is subject to the Seller obtaining the necessary authority from
the Master of the High Court to sell
the one half undivided share registered in the
name of Emilia Maria Bernadette Rodrigues, of which
the said Thomas Rodrigues
is the sole beneficiary.”
As at 10 May 2005 the Master of the
High Court (the Master) had not yet been approached for granting the necessary
authority to sell the one half undivided share registered in the name of Emilia
Maria Bernadette Rodrigues. The first respondent's legal practitioners then
wrote to the applicants in the following terms:
“RE: SALE T C P
RODRIGUES – ESTATE LATE EMILIA MARIA
BERNADETTE
RODRIGUES
We
refer to the above agreement of sale.
We have been instructed by the Executor in
the Estate, to cancel the Agreement of
Sale
as the beneficiaries in the Estate have repudiated the sale on the basis that
the
Executor did not act in the best interest of
the Estate.
We are accordingly left with no alternative
but to formally cancel the sale and to
return to you monies paid pursuant to the
agreement.
Accordingly, we forward herewith our cheque
drawn in the sum of $765,613,085.00
in
full and final settlement of this matter.
Please acknowledge safe receipt of the
enclosed payment”
On
5 July, 2005 the applicants' legal practitioners wrote to the respondents' legal
practitioners in the following terms:-
“RE: TRANSFER
FROM THOMAS C P RODRIGUES & ESTATE LATE
EMB RODRIGUES TO
DAVID & NELIA CHIGODORA
We refer to the
above and advise that we have been retained by Mr and Mrs Chigodora to act for
them in this matter. We do understand that there has been some communication
between yourselves and Messrs Dzimba Jaravaza & Associates who were
representing our clients
We
have been given your letter of the 10th May 2005 together with the
agreement of
sale. We have also perused the
Master's file DR 3208/04 which shows that there
has been no application for his
consent to dispose of the property. We are instructed
to write to you as follows:
1. The agreement that was signed between our
clients and Mr Rodrigues in his
Personal capacity and in his capacity as the
Executor of his wife's estate states
Clearly that he is the
beneficial owner of the property held under Deed of
Transfer Number 5266/84 which is the subject
of the sale.
2. Our
clients duly complied with the agreement of sale and paid the purchase
Price and the transfer costs.
3. The agreement was subject to the Master's
Consent in terms of Section 120 of
The Administration of Estates.
4. To their surprise our clients then received
a letter from yourselves dated 10th
May 2005 in which you
purported to cancel the agreement on the instructions
of the Executor of the
Estate. The reason advanced for the cancellation was
that the beneficiaries had complained that the
“Executor did not act in the best
interests of the Estate.”
5.
Firstly our
clients have not been informed of the identity of these
Alleged beneficiaries and
this averment is the total opposite of what Mr Rodrigues
stated in the agreement that
was prepared by ourselves. Our client would like to
know who these beneficiaries
are so that they can be cited in the proceedings that our
clients intend to institute should
this matter not be resolved amicably.
6.
Secondly the
property in question was the matrimonial home of the Rodrigues family
hence the need to give Mr
Rodrigues a period not exceeding ninety (90) days
to find alternative
accommodation after the date of transfer .The inheritance of a
matrimonial home is governed
by s 3A of the Administration of Estates
Amendment Act [Cap 6:02]. It is clear in terms of that
section that Mr Rodrigues
is the only beneficiary of
the matrimonial home. It can therefore not be true that there
are any other beneficiaries
who would object to the disposal of that house.
7.
In the circumstances we are instructed to demand, which
we hereby do, that as the Conveyancers you advise us that you are proceeding
with the transfer of the property in terms of the agreement of sale. May we have confirmation of this by Friday
the 8th July 2005.
8.
In the event that we do not receive such confirmation
by end of business on Friday we will institute proceedings to compel transfer.
We will also file an urgent chamber application to stop your client from
transferring the property to any other person pending finalization of the
application to compel transfer.
9.
In the applications we will pray that the resultant
costs be borne by your Client on the attorney and own client scale as it is
clear that the reason advanced for the purported cancellation is not valid at
law and is not bona fide.
We wait to hear from you as a matter
of urgency.”
Subsequent to the above letter and
on 17 August 2005 the respondents' Legal Practitioners addressed the following
letter to the Master:
“Dear Sir.
RE: ESTATE LATE E M B RODRIGUES
We act for Mr T Rodrigues who is
the executor of the above estate, The estate is
a half owner of a certain piece of land in
the district of Salisbury being Lot 1 of
Sub-division A of Lot 18 of Greendale.
The executor entered into an agreement
of sale with Mr and Mrs
Chigodora a copy of which is annexed hereto in terms
of which he sold the estate's
half share of the property together with his own
half share. The sale was subject to your consent as is required for a
sale by
Private treaty in terms of s 120 of the
Administration of Estates Act [Cap 6:01].
Our client is obliged to make application to
you for your consent however,
Since entering into the
agreement his two daughters have objected to the sale
we understand that a copy of
their objection has been lodge with you
by a letter dated 30th June 2005.
Our client has also been
advised that at the time that he entered into the
Agreement the property was
worth far more that the agreed purchase prize
And we have asked our client for furnish to us
a valuation in this respect.
It seemes to us that the purpose of s 120
of the Administration of
Estates Act which requires
that the sale of assets of an estate to be done by
Public auction is designed to
protect both the estate and the beneficiaries in
the event of an executor selling the property
for less than its market value.
Whilst our client is duty
bound to make this application he does seek your
protection.
In the circumstances our
client leaves it to you as to whether or not you
should grant your consent.
Please let us hear from you
as soon as possible.”
On
20 September 2005 and upon being served with this application, the Master's
office issued the following report:
“A copy
of the application has been served on me in terms of Rule 248
of the High Court Rules of 1971
as amended.
The estate of the late Emilia Maria Bernadette
Rodrigues is registered
with me under Dr 3208/04 and 1st
Respondent who is also the surviving
Spouse was appointed as an
executor. I submit that all assets involving
Deceased estates when being sold
requires the Master's consent as per
s 120 of the Administration of
Deceased Estates Act [Cap 6:01].
According to information on
record it appears when first respondent sold
the immovable property under dispute no such
authority was granted
neither was the estate represented as no
executor was appointed .
However, it would appear first respondent
had the intention to sale (sic) the
Property and I do not have any objection in
regularizing the sale.
I have no further submissions to make and will
abide by the court's
decision.”
On
17 November 2005, the Master's office wrote to the respondents' Legal
Practitioners in the following terms:
“Dear Sir
ESTATE
LATE: E.M.B. RODRIGUES
I
have noted that an estate property was sold without my consent to sale
in terms of Section 120 of the Administration of Deceased Estates Act
[Cap
6:01]. It is also reported that the beneficiary who once sold the
said property is no longer interest in
the sale, as such my office is not
in a position to authenticate the alleged
sale.
Please be guided accordingly.”
In a supplementary report dated 12 March
2007 the Master's office confirmed the appointment of the first respondent as
Executor Dative of the estate of the late Emilia Maria Bernadette Rodrigues
with effect form 8 April 2005.
The above detailed background, explained
in various exchanges of correspondences
between the
parties, explains why on 2 August 2005 the applicants approached this court for
the relief indicated on the first page of this judgment. The application for the relief sought is
opposed.
I believe that the crucial issue in
this application is to determine whether or not the condition precedent (i.e obtaining
the consent of the Master) was ever fulfilled. It is only upon a finding on
that aspect of this matter that an order for specific performance may then be
granted in favour of the applicants.
Whilst admitting that at the time
this application was filed, the Masters' authority
had not yet been
obtained, the applicants argue that the position was later 'regularized' by the
Masters' report of 20 September 2005. The clause relied upon in that report
reads as follows:-
“However, it
would appear the first respondent had the intention to sale (sic) the said property and I do not have
any objection in regularizing the sale.”
The
applicants argue that once the Master had 'regularized' the sale in the manner indicated
above, there was no need for the Master's report of 17 November 2005 in which
the Master then stated :-
“My office is
not in a position to authenticate the alleged sale”
Advocate Mushore, for the applicants, submitted
that after the report of 20 September 2005 the Master became fuctus officio. Accordingly, the report reversing
the regularization of the sale should never have been authored. The applicants,
she argued, had fulfilled their obligations under the contract and therefore
the respondents could not avoid specific performance.
In making the
above submission Advocate Mushore cited
the case of Intercontinental Trading
(Pvt) Ltd v Nestle Zimbabwe
(Pvt) Ltd 1993 (1) ZLR 21(H) where the late ROBINSON J. said:-
“I would wind up
by saying that if the right of specific performance is to be shown to have real
meaning to businessmen, then the loud and clear message to go out from the
courts is: businessmen beware. If you fail to honour your contracts, then don't
start crying if because of your failure, the other party comes to court and
obtains an order compelling you to perform what you undertook to do under your
contract. In other words, businessmen who wrongfully break their contracts must
not think they can count on the courts, when the matter eventually comes before
them, simply to make an award of damages in money, the value of which has
probably fallen drastically compared to its value at the time of the breach.
Businessmen at fault will therefore, in the absence of good grounds showing why
specific performance should not be decreed, find themselves ordered to perform
their side of the bargain, no matter how costly that my turn out to be for
them…”
Advocate Mushore also urged the court to award costs on a higher scale.
I
have indeed in one or two of my earlier judgments on other similar matters, but
for different reasons, agreed with the above sentiments of the late ROBINSON J.
Mr Madya for the respondents submitted that at the time of entering
the agreement of sale the parties were mindful of s 120 of the Administration
of Estates Act [Cap 6:01] which
provides as follows:
“If, after due inquiry, the Master is of the opinion
that it would be to the advantage of
persons interested in the estate
to sell any property belonging to such estate otherwise
than by public auction he may, if
the will of the deceased contains no provisions to the
contrary, grant the necessary
authority to the executor so to act.”
Mr Madya said that it was
because of the above provision in our law that the parties found it necessary
to incorporate clause 3(b) in their agreement of sale.
Mr
Madya further argued that upon
failure by respondents to timeously apply for the Master's consent, the
applicants should have made an application for respondents to be compelled to
seek the necessary consent, so as for the condition precedent to be fulfilled.
He said that in the absence of the Master's consent the application for
specific performance was misplaced. In his view the Master's report of 20
September 2005 was not a response to a formal application for consent as envisaged
in law. That being the case, he argued, there was, until 17 November 2005,
never any final decision rendering the Master fuctus officio. The Master only
made a definitive decision on that date. He said it was only after making
specific inquiry, upon application, that the Master declined to give his
consent. The first report, he argued, was not pursuant to an application (See Logan v Morris N.O and others 1992 ZLR
(65) SC).
I have already indicated that the
main issue in casu is to determine
whether or not the condition precedent was ever met. It is only upon the
fulfilment of the condition precedent that the applicants can be entitled to
the relief they seek. It is indeed correct to say that in introducing Clause
3(b) in their agreement of sale, the parties were fully aware of the
requirements of law as provided for in s 120 of the Act. It is also common cause that at the time this
application was filed, the Masters' consent had not yet been obtained. The
condition precedent had therefore not yet been fulfilled. It is further common
cause that the Master's report dated 20 September 2005 was prompted by the
service on him of this application in terms of r 248 of the High Court
Rules 1971. It was not a formal response
to a formal application by the respondents for consent. One can safely say the
only application made to the Master was on 17 August 2005 – which application
finally resulted in the Masters' negative response of 17 November 2005.
However, in casu the applicants firmly believe that the Master's response of
20 September 2005 constituted the requisite consent envisaged by law. This is
so, because, in their view, the clause: “I do not have any objection in
regularizing the sale” amounted to a regularization of the sale. I disagree with that interpretation. The
Master merely indicated a willingness to regularize the sale. A formal process
of regularization had to be followed.
In the same report, which, as I said
earlier on, was a response to this application, the Master almost surrenders
his responsibilities to this court by saying “I have no further submission to
make and will abide by the court's decision.” My view is that this court should
not in any way be allowed to usurp the Master's authority which is conferred
upon him/her by an Act of Parliament.
It is clear from the report of 20 September 2005 that, prior to this
application being filed, the Master concedes that no formal application had
ever been made and hence no consent had been granted. In the report, however, the Master then goes
on to indicate willingness to regularise the sale. My understanding is that such regularization
should follow a formal process. That
process should entail a formal application by the respondents for the Master to
use his authority to put right what had been irregularly done. In casu that process was never undertaken.
The Master never took any formal steps to regularise the sale until he declined
to give his consent on 17 November 2005. The application of 17 August 2005 was
not for the Master to regularize what had transpired prior to being served with
this application. (ie. the application before me). I believe that once the
Master had, on 20 September 2005, revealed that his consent had never been
sought and that he was, however, prepared to regularize the transaction, the
applicants should have removed the matter from this court. The applicants would have then proceeded to
seek to compel the respondents to apply for the regularization of the sale by
the Master. The fact that such a process was never embarked upon and that on 17
November 2005 the Master formally withheld his consent, leads me to the
conclusion that the condition precedent was never fulfilled. As I have already
indicated, the intention to regularize did not constitute a formal decision on
the part of the master and therefore the issue of him being fuctus officio never arose.
A finding that the Master never decided on the issue of consent, prior to
this application being filed, means that the condition precedent was never fulfilled
and as such the agreement of sale remains unenforceable. That aspect of this
matter distinguishes it from Intercontinental, supra, where the court's finding
was that an enforceable contract existed. The agreement of sale could only come
into operation upon the fulfillment of the condition precedent. The fact that
the applicants might have met their obligations under the agreement of sale did
not bring that agreement into operation. As long as the Master's consent was
absent the agreement could not come into operation. This is not a case where
the respondents were merely trying to pull out of an operational agreement. The
agreement never became operational. (See Runatsa
v Rumari Estates (Pvt) Ltd & Ors (S) 54/09).
The application before me is not a review nor an appeal against the
Master's decision(s). The issue before me is to determine whether or not an
enforceable or operational contract exists – meriting the grant of an order for
specific performance in favour of the applicants. My finding is that the
condition precedent was never fulfilled and accordingly the applicants cannot
enforce the agreement of sale. The
application therefore lacks merit.
The application is dismissed with
costs.
Mawere & Sibanda, applicant's legal practitioners
Wintertons, 1st & 2nd respondents'
legal practitioners
