On 17 April 2007 the plaintiff issued summons against the defendants claiming the following:

“(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza;

(b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and

(c) Costs of suit.”

In these proceedings the first defendant, who is late, is represented by Herbert Muwirimi, the executor of her estate.

The brief facts leading to the above claim are these:

On 18 July 2005 the plaintiff and the first defendant entered into an Agreement of Sale whereby the plaintiff purchased from the first defendant Stand Number 14826 Unit 'O' Seke, Chitungwiza (“the property”) for $80,000,000= (Eighty million dollars). The amount was paid in instalments, and, as at 27 November 2005, the full amount had been paid. Transfer of property, however, remained outstanding.

Notwithstanding the above Agreement of Sale between the plaintiff and the first defendant, on 16 March 2006 the first defendant, through another Agreement of Sale, sold the same property to the second defendant for $500,000,000= (five hundred million).

The property was then immediately transferred to the second defendant without the plaintiff's knowledge.

The above facts are common cause.

The plaintiff gave evidence in support of his claim. He confirmed the Agreement of Sale between him and the first defendant and stated that following full payment of the purchase price he took vacant possession of the property on 1 February 2006. He remains in possession.

The plaintiff said apart from requesting the first defendant, on three occasions, to attend to the transfer of the property, he had actually visited her at her rural home where upon she had promised to come to Chitungwiza to attend to the transfer. It was the plaintiff's evidence that when the first defendant finally came to Chitungwiza, during the first week of March 2006, she indicated that she was no longer willing to proceed with the sale of the property. This was so because her family members had objected to the sale of the property for the reason that it was a 'family house'.

The plaintiff's reaction was that he could only move out of the property if the first defendant bought him a similar property. He said he never agreed to the cancellation of the agreement. He also said there was never any suggestion of a top up. The first defendant, he testified, never advised him of the second sale of the property to the second defendant. He only discovered that the property had been transferred into the name of the second defendant through water bills which bore her name.

The plaintiff said the first defendant, in the company of the second defendant and her husband, visited him at the property during the second week of March 2006. It was then that the second defendant had disclosed that she had bought the property and therefore wanted him to move out. He refused to move out.

The plaintiff denied that he ever agreed to pay rent to the second defendant. He had paid the full purchase price and the property was now his. All what remained was transfer of the property to him. He denied ever receiving any reimbursement.

After his testimony, the plaintiff closed his case.

Herbert Muwirimi, the executor of the first defendant's estate, gave evidence, which, in the main, was based on hearsay. He said that the late first defendant was his aunt and was the owner of the property in dispute. He, however, only became aware of the contract between the plaintiff and the first defendant when he came to court. He was not aware of the second sale to the second defendant. All what her aunt had told him was that the plaintiff had not paid the 'top up'. He trusted that his brother, Onismus Muwirimi (Onismus), had accounted for all the money that had been paid by the plaintiff through him. The money was for the first defendant (i.e payments towards the agreed purchase price of $80 million).

Onismus Muwirimi, who was called as the last witness for the first defendant, testified that he was involved in the negotiations that led to the purchase of the property by the plaintiff. He said the first defendant was his aunt. He confirmed that an Agreement of Sale was signed between the plaintiff and the first defendant. The full purchase price of $80 million, including a top up of $2.5 million, was paid by the plaintiff. He said the 'top up' had arisen as a result of complaints from the first defendant's brothers who felt the price of $80 million was low.

Onismus Muwirimi, who was a close friend of the plaintiff, testified that her aunt's first legal practitioners, Messrs C Mutsahuni, Chikore & Partners had paid a refund of $82.5 million to the plaintiff. A receipt (exhibit 5) was produced. He, however, said the plaintiff had refused to accept the refund. The witness said he had told the plaintiff that because of his failure to pay the top up price, of $50 million, his aunt, the first defendant, was considering selling the property to someone else. Furthermore, his aunt's brothers were accusing him of conniving with him (the plaintiff) in order for the plaintiff to purchase the property at a cheaper price. He said when the property was finally sold to the second defendant, he did not disclose the first sale to her (the second defendant).

The second defendant gave evidence in support of the second sale of the property to her and was supported by two other witnesses. She confirmed that through a Mr Chihota, she had, in terms of an agreement of sale dated 16 March 2006, purchased the property from the plaintiff for $500 million. She said upon checking on ownership details with the Council, she had, within five days, proceeded to have the property transferred into her name before paying the purchase price. She also said she had not viewed the property since she had a general knowledge of the types of houses in the area. She had to move fast because she had been advised that there was also a soldier who was keen to pay more money for the property. She said she only discovered that the property had also been sold to the plaintiff after she had already transferred ownership to herself. The first defendant had only told her that a relative of hers was staying at the property.

The second defendant said one of her main aims in buying the property was to build a bigger house. She said that upon proving her ownership of the property to the plaintiff, he had initially agreed to pay $10 million per month as rental pending his final departure from the property. She said the plaintiff had, however, reneged on the rental arrangement.

Mr Livingstone Chituriro Chihota testified that he had indeed facilitated the purchase of the property by the second defendant. He said all negotiations leading to the purchase of the property by the second defendant had been conducted at his house, which was about 300 metres away from the property in issue. He said it was, however, not his duty to show the second defendant the property that the first defendant was selling. He said that his only duty was to find a buyer for the first defendant. Once he had found a buyer he sent Onismus Muwirimi for the first defendant, with the second defendant paying for Onismus's transport to the rural area to fetch the first defendant.

Clement Nhau was called as the last witness for the second defendant. He said the second defendant was his wife and that he had been present at Livingstone Chituriro Chihota's house when the purchase of the property was discussed and concluded. Like the second defendant, he also confirmed that they had not seen or viewed the property. He and the second defendant had been told that there was a soldier who was also interested in buying the property. He said, as a result, moving with speed became necessary in order not to lose the property. In the main, his evidence corroborated that of the second defendant.

In order to put all the evidence and submissions from the parties' legal practitioners in proper prospective, I think, in the face of the evidence now before me, it is necessary to restate the issues identified for trial at the pre-trial conference. The agreed issues were:

“1. Whether or not plaintiff was in breach of the contract between him and first defendant.

2. Whether or not the Agreement of Sale between the plaintiff and the first defendant was ever cancelled.

3. Whether or not second defendant is an innocent third party.”

Upon restating and evaluating the evidence of the plaintiff, counsel for the plaintiff submitted that the double sale situation had arisen as a result of greed on the part of the first defendant. He submitted that the plaintiff had paid the full purchase price in terms of the agreement. There was no dispute that the sum of $80 million had been paid.

Relying on Chimponda v Rodgriques and Others 1997 (2) ZLR 63, counsel for the plaintiff correctly submitted that it is the primary right of a wronged first buyer to have the remedy of specific performance unless there is some equitable reason disqualifying him/her from obtaining such a relief. He said, in casu, there were no special reasons/circumstances militating against the plaintiff's right to specific performance.

Counsel for the plaintiff submitted that the second defendant had conducted herself in a suspicious and questionable manner and hence leaving room for one to conclude that she was aware of the first sale i.e the sale of the property to the plaintiff. That being the case, counsel for the plaintiff argued, the second defendant's remedy was in an action for damages against the estate of the first defendant i.e the seller of the property. All in all, counsel for the plaintiff's position was that the plaintiff's rights under the contract entered into between him and the first defendant should be enforced by this court.

Counsel for the first defendant also cited the case of Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and submitted that in a double sale situation the basic rule is that, in the absence of special circumstances, the first purchaser should succeed. Also relying on Guga v Moyo and Others ZLR 2000 (2) 458 (S), she went on to state that the special circumstances to be looked at are:-

“(i) Who has paid more money than the other.

(ii) Who has taken possession of the property and expended considerable sums on the house.

(iii) Whether first purchaser took any action to protect his interest when he became aware that the seller was behaving dishonestly.”

Counsel for the first defendant submitted that in casu the second defendant had paid more money than the plaintiff i.e. $500 million as compared to $82,5 million paid by the plaintiff. She said the plaintiff had, in any case, failed to protect his interest after being told, in February 2006, by his wife, that the second defendant was inquiring about whether or not the house was still on sale. She went on to say the plaintiff had also not reacted swiftly when told by officers at Chitungwiza Municipality that the file had been taken to the Head Office. She argued that such information should have indicated to the plaintiff that something was happening to the house. The plaintiff, she argued, did not, however, take prompt action to protect his interest. She concluded her submissions by urging the court to regard the second defendant as an innocent purchaser in whose favour the special circumstances should lie so as for her to be awarded the property.

Counsel for the second defendant submitted that the important factor to consider in a double sale was whether or not the second purchaser was aware of the first purchase of the same house. He submitted that at the time of the agreement to purchase the property and also at cession of rights, title and interest in the property, the second defendant was not aware or had no knowledge of the first sale. He said that the fact that the second defendant went on to purchase the property without seeing or viewing it could not be construed as conduct confirming that she had known of the first sale. In any case, he argued, the second defendant had given adequate explanation for her conduct. He said whereas the second defendant had protected her interests by quickly seeking transfer of property, the plaintiff had done nothing to protect his interests despite the fact that he had become aware of the first defendant's reluctance to proceed with the sale (i.e. through asking for a 'top-up'). Furthermore, counsel for the second defendant argued, the second defendant had paid more money than the plaintiff. He therefore submitted that the second defendant's case should succeed. The plaintiff, he suggested, could seek damages from the estate of the first defendant.

The facts in casu, in my view, clearly establish the existence of a double sale.

The first sale was completed on 27 November 2005 when the last instalment towards the purchase price of $80 million was paid by the plaintiff to the first defendant. The payment was in terms of the Agreement of Sale dated 18 July 2005. The issue of a top up only came some three months after the plaintiff had fulfilled his obligation under the contract. What remained to be done under that agreement was cession of rights, title and interest in the property to the plaintiff. The purported reversal of the Agreement of Sale, in March 2006, does not, in my view, invalidate the first sale.

The second sale was concluded on or before 16 March 2006 when the second defendant paid $500 million to the first defendant in terms of the agreement signed between the first defendant and the second defendant on that date.

In concluding that the evidence confirms the existence of a double sale, I am in the same vein stating that the plaintiff complied with his obligations under the Agreement of Sale dated 18 July 2005. The plaintiff did not breach that agreement. There was therefore nothing on which the first defendant could anchor cancellation on and worse still without notice.

In her plea filed of record on 6 July 2007, and prepared during her life time, the first defendant said she had cancelled the agreement between herself and the plaintiff because:-

“(i) He had failed to pay the full purchase price.

(ii) He chased away first defendant's lodger without her permission and he imposed himself on the property in question.

(iii) He started cutting trees at the house without permission.”

The above 'breaches' were never placed before the plaintiff.

The issue of a top-up amount is not mentioned anywhere in the pleadings. It was only raised during the hearing in court.

The plaintiff, who, I must say, I found to be a credible witness, denied that he had paid an additional sum of $2,5 million as a top up. He said the reason for the purported reversal of the agreement, as given him by the first defendant, was that the property “was a family house”. The family had therefore decided not to have it sold.

This does not tally with reasons given in the pleadings. The plaintiff had refused to accept a refund arguing that if anything, it was the first defendant's duty to get him a similar property.

Exhibit 5, showing the purported reimbursement of $82.5 million on 7 April 2006, through Messrs C Mutsahuni Chikore & Partners, throws mud in the first defendant's story.

The said legal practitioners are not mentioned anywhere in the pleadings, and, if indeed they had handled the matter one would have expected them to proceed against the non-rent paying plaintiff who had allegedly imposed himself on the property on 1 February 2006. That piece of evidence is suspect. I have, however, already indicated that as at 27 November 2005 the plaintiff had complied with the Agreement of Sale. He had, in terms of the agreement of sale, paid the only agreed and known purchase price of $80 million. Accordingly, in the absence of a breach, any purported cancellation of the agreement was of no effect. This finding disposes of the first two tissues; namely;

(i) Whether or not the plaintiff breached the agreement; and

(ii) Whether or not as a result of a breach the first defendant cancelled the agreement.

It is trite that where cancellation is lawful and justified on account of breach it takes effect from the time that the innocent party communicates the breach to the defaulting party. For this proposition, see Bako & Anor v Bulawayo City Council 1996 (1) ZLR 232…, wherein GUBBAY CJ stated the following dicta:

“Thus, it is those actions and events which occurred after 23 March 1992 to which regard must be had in determining whether the resistance to the cancellation was justified in law; for cancellation takes effect from the time it is communicated to the other party. See Swart v Vosloo 1965 (1) SA 100 (A) at 105 (G); Phone-A-Copy World-wide (Pty) Ltd v Orkin & Anor 1986 (1) SA 729 at 752A-C.”..,.

In Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR 1 (S), SANDURA JA considered that a period of twelve months before an innocent party decided to terminate an agreement based on the alleged breach of the same by the other party to the contract is not a reasonable period. In casu, more than a decade went by before the local authority decided to do something. Even then, its attempt to enforce its rights under the agreement cannot even be termed half-hearted. They are virtually non-existent….,.

It was contended, on behalf of Gomo, that an aggrieved party to a contract of sale has the option of not only cancelling an agreement of sale but also claim cancellation and restitution of what he has paid over or transferred under the contract.

In casu, cancellation was communicated more than twelve years after default occurred and there has been no effort on the part of the seller to claim re-transfer in the Stand. Apart from an excerpt from KERR, I was not referred to any authority to bolster the contention that after the transfer of real rights to it, Agro Chem could be compelled to re-transfer the Stand on the basis of a breach which occurred prior to the registration of real rights in its name….,.

It is a correct statement of the law that a seller has an option to cancel and to claim restitution of the merx, even where there has been delivery. The question I posed to counsel for the first respondent was whether in fact a seller, after having transferred land and authorized its registration in the name of the purchaser can cancel the contract and obtain re-transfer. I have not been pointed to any authorities on the issue in point. The only authorities I have had occasion to read are those where either movables were the subject of the sale, or, if an immovable was the subject matter, then cancellation would be before transfer of rights to the purchaser.

In this regard, I have been invited to look at the conditions of the agreement by Gomo, which conditions he contends were not performed by Agro Chem. It was contended, further, that the court in casu could not ignore the Agreement of Sale as it recorded the intention of the parties vis-à-vis the transfer. It is further contended that the election to claim rescission of a contract and the return of the thing sold is available to a seller where the contract contains a clause (a lex commissoria) providing for rescission in the circumstances in question….,.

Indeed, the agreement which gave rise to this application does contain a clause for rescission, but the local authority, apart from the letters I have mentioned above, has not sought to have the sale set aside and the property re-transferred to itself.

In any event, the Agreement of Sale was antecedent to the transfer and once transfer is effected the court cannot revert to the agreement except in certain exceptional circumstances not pertinent to this dispute.

The plaintiff is a duly registered company trading under the name Borrowdale Motor Sales. As the trade name suggests, it, the plaintiff, trades in motor vehicles.

On 6 June 2006, the plaintiff entered into an agreement with the defendant, in terms of which the plaintiff agreed to purchase a vehicle owned by the defendant, to wit, a Ford Taurus registration number 720-532L. A copy of the agreement, which is attached as Annexure A to the summons, reveals that the purchase price of the vehicle was $700,000= (revalued) payable as to a deposit of $300,000= and the balance payable in two installments of $200,000= each within a further period of five months.

In its declaration, the plaintiff avers that it paid the deposit of $300,000 and a further sum of $200,000 being the first instalment. The plaintiff further avers that on tendering the remaining instalment to the defendant, he, instead, made a verbal offer to buy back the vehicle from the plaintiff and that as a result a verbal agreement was concluded for the defendant to buy back the vehicle for the price of $3 million. The plaintiff avers, further, that the defendant breached the verbal agreement by paying a total amount of $570,000 instead of the agreed sum.

The plaintiff has therefore claimed for an order cancelling the verbal agreement with the defendant, and, further to that, for an order that it pay back the sum of $770,000 to the defendant being a reimbursement of the $570,000.00 paid under the verbal agreement by the defendant and the sum of $200,000 being the balance of the purchase price of the vehicle in terms of the written agreement concluded by the parties on 6 June 2006.

The defendant, in his plea, denied that the plaintiff was entitled to the relief being sought, and, instead, averred that the plaintiff had not performed its obligations in terms of the written agreement and has averred that the plaintiff breached the written agreement by failing to pay any of the installments due under the written agreement. Due to such breach, the defendant avers that the parties agreed to terminate the agreement on condition that the defendant would pay back to the plaintiff the sum of $570,000 and the latter would return the vehicle to the defendant.

The defendant further avers that he duly paid the agreed amount to the plaintiff but that the plaintiff refuses to return the vehicle. The defendant therefore has filed a counter-claim in which he prays for the return of the vehicle and payment of damages for unjustified enrichment in the sum of $800,000 for use of the vehicle and for the value lost on the use of the $570,000.

The plaintiff purchased the vehicle from the defendant and paid a deposit of $300,000 upon signature of the agreement. Subsequently, additional other sums, which the plaintiff puts at $200,000, were paid. The defendant puts the amount at $100,000 which amount he states is the first breach by the plaintiff of the terms of the written agreement.

The plaintiff has produced vouchers which bear the signature of the defendant and states that the defendant did receive the amount of $200,000. The defendant denies that he signed the vouchers although admitting the signature to be his.

The plaintiff then claims the existence of a verbal agreement in terms of which the defendant would repurchase the vehicle at a stipulated price. The plaintiff claims that the defendant breached the agreement and therefore prays for its cancellation and payment to the defendant of monies not paid under the first agreement and a refund to the defendant of monies paid under the second agreement.

Most of the facts are common cause. The dispute relates to the payment of the instalments by the plaintiff due on the written agreement.

It is common cause that the parties entered into a verbal agreement in respect to the vehicle, and the question for determination is what the terms of that verbal agreement were. Each of the parties has a version which differs from the version rendered by the other.

At the commencement of the trial the parties agreed to some of the issues agreed to at the pre-trial conference and captured in a joint pre-trial conference minute filed by them. The only issues left for determination at the trial were the following therefore:

(a) What were the material terms of the verbal agreement between the parties?

(b) Whether the defendant breached the verbal agreement by failing to pay the deposit timeously?

(c) Whether the defendant is entitled to the return of the motor vehicle?

(d) Whether the defendant has suffered any damages and whether the plaintiff is liable to the defendant in the amount claimed or any other sum at all?

There were no issues to be decided on the written agreement, but, in the presentation of their evidence, it would seem as if the parties were focused on issues mainly to do with the written agreement.

The defendant, in its counter claim, alleges breach of the agreement by the plaintiff and denies the existence of a verbal agreement involving a buy back of the vehicle. The plaintiff, in turn, claims ownership of the vehicle based on the written agreement.

If the plaintiff premises its claim on the written agreement, the dispute, it appears to me, cannot be resolved without an examination, at the outset, of what the terms of the written agreement were and what rights the parties retained in the vehicle pursuant thereto.

It is clear, therefore, that the terms of the written agreement then are an issue for determination as to whether the defendant is entitled to a return of the vehicle or if ownership, by virtue of the agreement, vested in the plaintiff.

I propose to deal with the matter by examining each of the issues in turn based on the evidence adduced by the parties.

What were the terms of the written agreement?

The pertinent terms of the contract are contained in clause 2 of the written agreement. The clause is in the following terms;

“2. The parties have agreed on the following terms:

(i) The first agreed deposit payable on signing of this agreement shall be $300,000,000= (old currency) (Three Hundred Million Dollars) shall be paid in cash i.e.

(a) $192,000,000= directly to Legacy Financial Services, No.13 Van Praagh Avenue, Milton Park, Harare to clear a debt incurred with them by Mr Ndenda; and

(b) A cheque in favour of Old Mutual Properties for $50,000,000=. The balance of $58,000,000= shall be paid in cash to Mr Ndenda on the day of signature of this agreement.

(ii) The balance of $400,000,000= shall be paid at a rate of $200,000,000= (two hundred million dollars) after the first two weeks and the last payment from the third week of the second payment or at such time as shall be agreed by the parties and in a manner determinable and agreed and documented by the parties.

(iii) The parties to this agreement agree that ownership of the said vehicle shall pass on to the buyer on signing of this agreement of sale.”

The first two sub-clauses do not, in my view, require any examination as they are clear. They deal with the terms of the payment and it is obvious from the evidence of the parties that each of the parties understood the times within which the purchase price had to be paid by the plaintiff.

It is the clause providing for the passing of ownership that is at the root of the dispute.

Each of the parties is claiming the right of retention of the vehicle on the basis that it is the owner. Any rights that the plaintiff claims to ownership of the same can only have been acquired by virtue of the agreement of sale, and, specifically, clause 2(iii). The defendant, on the other hand, would claim that he owned the vehicle and that ownership of the same was not transferred to the plaintiff by virtue of the written agreement.

According to the plaintiff, the agreement in respect of the sale by the defendant of the vehicle to the plaintiff was a credit sale, and, as a result, bearing in mind the provisions of clause 2(iii), ownership passed when the agreement was signed and delivery made to the plaintiff.

In written submissions filed on its behalf, the plaintiff poses a further question as to whether, in the event that ownership passed on 6 June 2006, it would revert to the defendant assuming that the defendant has proved breach of the written agreement on the part of the plaintiff.

The defendant's view is however that the agreement was not a credit sale and that ownership did not pass to the plaintiff on delivery of the vehicle. It is accepted by the defendant that the agreement was not one for hire purchase. The stance by the defendant is that what was concluded was not a credit sale but a sale by installment and that, as such, ownership in the vehicle did not pass to the plaintiff until the full purchase price would have been paid. In his evidence, the defendant's stance was that ownership in the vehicle never passed to the plaintiff.

The defendant did not, in pleading to the summons and declaration filed and served upon him by the plaintiff, allege or aver that the agreement was an instalment sale governed by the provisions of the Act.

In the written submissions, the defendant accepts that ownership had passed to the plaintiff but that the agreement was cancelled due to breach on the part of the plaintiff.

This is one of those matters where the pleadings do not bring out clearly and concisely the facts upon which the cause of action is based.

It would have been appropriate for the plaintiff to have pleaded that ownership had passed in terms of the agreement of sale and the defendant would then have responded appropriately. The question of whether or not ownership had passed is central to the resolution of the dispute and should have been one of the issues extracted for trial. Unhappily it was not. However, with the defendant having accepted that ownership did pass, it then becomes necessary to determine if the agreement that was concluded was an instalment agreement as contended by the defendant.

In the written submission made on his behalf, it appears that a concession is made that ownership did pass but that the agreement, being an agreement of sale by installment, then, in the event of breach, the defendant would be entitled to the return of the vehicle.

The defendant has submitted that the court should tell the parties the nature of the agreement that they entered into. I take that to mean that the court is being asked to interpret the agreement placed before it. It cannot mean that the court should, in such exercise, rewrite the contract for the parties.

The defendant seeks reliance on a passage from WILLIE and MILLIN's Mercantile Law of South Africa 16ed…, which is as follows;

“If credit is given for part of the purchase price on condition that the balance is paid in cash, the sale is one for cash and delivery does not pass the ownership. It is otherwise if the sale is on credit for there the ownership of the goods passes to the buyer on delivery to him though he has not paid the price.”

The passages quoted by counsel for the defendant refers to the cases decided in South Africa but I have not been referred to any authorities in this jurisdiction dealing with installment sales other than those governed by the Hire Purchase Act in our jurisdiction. At page 164 of their book, WILLIE and MILLIN's Mercantile Law of South Africa 16ed, the learned authors state:

“Installment sale agreements are defined as agreements of sale where ownership passes on delivery and the price is to be paid in instalments, two or more of which are payable after delivery, and the buyer is prohibited from alienating or encumbering the goods sold until the purchase price has been paid in full, or, the full purchase price becomes payable if the buyer alienates or encumbers the goods sold, or the seller is entitled to return of the goods if the buyer fails to comply with any one or more of the provisions of the contract: section 1.”

A closer reading of that passage leads me to conclude that the learned authors were discussing a section of the South African Hire-Purchase Act.

That passage cannot have the meaning ascribed to it by counsel for the defendant that any agreement within this jurisdiction where payment has been provided for in instalments is an installment sale as provided for by the Hire Purchase Act of South Africa.

As I have mentioned earlier on, our own Hire Purchase Act [Chapter 14:09] makes reference to instalment sale agreements. These are defined, in section 3 of the Hire Purchase Act, as follows;

“Instalment sale agreement means any contract of sale under which -

(a) The ownership in the goods sold passes either before or upon delivery; and

(b) The purchase price is to be paid in installments of which one or more are payable after delivery; and

(c) The seller is entitled to the return of the goods sold if the purchaser fails to comply with any of the provisions thereof;

and includes any other contract which has, or contracts which together have the same import, whatever form such contract or contracts may take.”

A perusal of the Hire Purchase Act reveals that it is meant to apply to specified agreements whose provisions are regulated by the Act. A feature of these agreements is that there should be reservation about the passing of ownership to the buyer. Whereas in an agreement for Hire-Purchase the purchaser obtains ownership after payment in full of the purchase price, in an instalment sale agreement, the Hire Purchase Act provides that ownership passes to the purchaser on delivery whether or not an installment has been paid. In the event of breach on the part of the purchaser the seller is entitled to return of the goods that are the subject matter of the sale.

It is the submission of counsel for the defendant that in defending the claim, by implication, the defendant claimed the return of the vehicle when the plaintiff failed to pay the last instalment.

I do not think that the submission can stand scrutiny.

The agreement executed by the parties did not provide that in the event of breach on the part of the plaintiff ownership in the vehicle would revert to the seller. Instead, the plaintiff was granted unreserved right to ownership upon the signing of the agreement. No conditions were placed upon the passing of such ownership and it is my view that the conditions upon which the parties intended to perform their contract is different to the conditions or provisions governing an installment sale agreement as stipulated in the Hire Purchase Act. In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser. I do not regard the agreement as falling in the category or form of agreements that are described in the Hire Purchase Act as instalment sale agreements.

The next question is whether this agreement can be termed a credit agreement as claimed by the plaintiff.

Neither of the legal practitioners who appeared before me was able to point me to an authority in this country where the court had to decide what constitutes a credit sale. I have not been able myself to find one within this jurisdiction.

According to CHRISTIE, Business Law in Zimbabwe…, the contract for sale does not always state whether it is for cash or credit so the law presumes that the sale is for cash, which presumption is not rebutted by the mere fact that the seller has made delivery without receiving immediate payment.

In casu, ownership was to pass to the plaintiff upon the signing of the agreement. It was therefore not a cash sale. The agreement itself does not, despite that ownership is to pass to the plaintiff upon signature, state that the agreement is one for credit or that the plaintiff has been given credit for the payment of the purchase price. In the absence of the parties having made specific averment as to whether or not the contract is one for credit, the court would have to examine the contract and deduce what the intention of the parties was.

I was referred to a plethora of authorities from South Africa. It is clear from the South African authorities that I have had to consider that the courts have not always found it an easy task to decide whether or not an agreement is one for credit or when it is that ownership is said to have passed. It appears that the matter first received attention from the courts in South Africa in the cases of Daniels v Cooper (1 E.D.C. p. 174), Sadie v Standard Bank (7 J. 87), and Quirk's Trustees v Assignees of Liddle & Co (3 J. 322) which are referred to in Laing v South African Milling Co. Ltd 1921 AD 387.

I have not been able to access the earlier authorities. It would appear however that those cases are the ones that settled the law as regards sales on credit in South Africa according to the dicta in Laing v South African Milling Co. Ltd 1921 AD 387. JUTA JA…, summarized the law thus:

“The authorities in our law were fully considered in the cases of Daniels v Cooper (1 E.D.C. p.174), Quirk's Trustees v Assigness of Liddle & Co. (3.J.322.), and Sadie v Standard Bank (7 J.87), and are to this effect; that, on a sale of movables followed by delivery the property does not pass until the purchaser has paid the money or secured the seller for the same, or, unless the sale is on credit. And there is ample authority for the further proposition that in the case of a sale where nothing is said as to ready money or credit and the goods are delivered to and taken away by the purchaser, the property does not pass; in other words, delivery to the purchaser and his taking away of the goods raise no presumption of the sale being on credit. On the contrary, the presumption is that the sale was for cash.”

Laing v South African Milling Co. Ltd 1921 AD 387 was followed by the case of Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 AD, in which the court found that even though there had been delivery to the purchaser and payment had been made by cheque despite the fact that the seller was aware that the vehicle was being sold to another person by the purchaser, the sale was for cash and credit had not been given.

In a cash sale, payment of the purchase price is made against delivery of the merx and where payment is made by cheque, even where it is drawn against a Bank in a different town, it is a cash sale with payment being made only when the cheque has been cleared. Even in these circumstances if the cheque is not met the property does not pass.

On the other hand, a credit sale is one where the purchaser has been given time for payment of the purchase price, which time has been postponed for a substantial period. Where the period for payment has been postponed for an insubstantial period, the courts have held that the sale was for cash and not credit and that therefore ownership had not passed. The courts in South Africa have said that a period of ten days would be a reasonable period to hold that a sale is for cash where the seller has made no attempt to collect payment from the purchaser. A period in excess of that ten days is sufficient for the courts to find that credit had been afforded to the purchaser and that therefore the property had passed. The rule is based on the requirement in the Insolvency Act that an unpaid seller for cash must claim his goods within ten days of delivery.

In terms of our own Insolvency Act [Chapter 6:04] a seller who has not been paid in full after delivery, where the purchaser has gone insolvent, is allowed to reclaim his property if he has given notice within ten days of delivery to the insolvent or the trustee of his intent to reclaim his property.

The principles that have been stated by the courts, therefore, are to the effect that unless there is a specific provision to the contrary, every sale is presumed to be for cash - even where delivery has been made. Where the seller has not granted credit to the purchaser or has not accepted security for payment by the purchaser, the sale is for cash unless the seller has not given the purchaser a period which is not in-substantial for payment of the purchase price.

As to whether or not the seller wanted to pass ownership, the intention of the parties can be gathered from the facts.

Where the seller contracts for passing of the property to the buyer, where payment in full has not been made nor secured, then it is a sale on credit and ownership would pass upon delivery of the goods.

In an instalment sale, even if ownership passes, there is a reservation on the passing of such ownership and the Hire Purchase Act provides for the seller to be able to recover the property which is the subject of the contract upon breach by the purchaser.

In the instant case, the contract provided for the unreserved passing of the property to the purchaser upon the signing of the agreement by the parties. There can be no other meaning to be ascribed to the clause “that ownership shall pass to the plaintiff upon the signing of the agreement.” The wording is clear and unambiguous and this court cannot ascribe any other meaning to that clause. There was no provision for ownership to revert to the defendant in the event of any alleged breach on the part of the plaintiff. There was no provision for the seller to reclaim the vehicle in the event of breach on the part of the buyer. The features of the contract between the plaintiff and the defendant have all the hallmarks of a credit sale.

I can understand the difficulties that counsel for the defendant faced in trying to argue that it was a cash sale. It was not a cash sale.

As to whether it can be termed an instalment sale, I believe the onus was on the defendant to place before the court facts such as would make me conclude that what I had before me was such. That was not done.

Instead, what the facts show is an agreement where one of the parties sold his property to a buyer where the buyer was afforded an opportunity to pay the balance of the purchase over a period in excess of ten days. The only conclusion that the court can come to in such a situation is that the defendant wished to pass ownership to the plaintiff and I find that indeed ownership passed.

In so far as the first agreement is concerned, the defendant stated that he had not been paid for the second instalment.

The plaintiff has provided vouchers allegedly signed by the defendant when he was paid the $200,000 which was due under the second installment. The vouchers bear what the defendant confirms is his signature but he claims that the plaintiff superimposed his signature on a document which he had not signed. The documents that were tendered in evidence were all originals. The signature itself has not been disputed but the plaintiff did not adduce evidence to show how his signature was affixed to an original document.

I find that the documents are genuine and show that the defendant was paid in full for the second instalment.

In so far as the payment by the plaintiff of the balance of the purchase price is concerned, it is surprising that the defendant did not at any stage prior to the plaintiff bringing these proceedings ever call upon the plaintiff to rectify its breach - if it was in breach.

Despite such alleged breach, having delivered the vehicle to the plaintiff when the agreement was executed, the defendant never demanded the return of the vehicle until the plaintiff sued for the cancellation of the second agreement on the basis that the defendant was in breach thereof.

I turn now to the terms and conditions of the verbal agreement.