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 ...
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.
(ii) Having disposed of the first issue, I now turn to the second issue. It concerns the relief that the applicant is entitled to in the circumstances of this matter.
It is common cause that the centre pivot that the respondent sold to the applicant has since been sold to a third party. It is also common cause that the respondent sold the centre pivot whilst fully aware that this application had not yet been determined and thereby sought to render the outcome of the litigation ineffective by disposing of the subject matter of the suit beforehand.
I find the conduct of the respondent, in this regard, a mockery of this court and its proceedings.
It was not put in issue by the respondent that the centre pivot was not res litigiosa at the time that he sold it to a third party. I will therefore proceed to deal with the matter on the basis that it was.
In doing so, I am aware that there is a possible distinction as to when the subject matter of litigation becomes res litigiosa depending on whether the suit before the court concerning the object is an action in rem or a personal action.
The authorities seem to suggest that in an action in rem, the subject matter becomes res litigiosa upon service of summons, whereas, in all other actions, the subject matter becomes res litigiosa upon litis contestatio or the closure of pleadings: see Opera House (Grand Parade) v Cape Town City Council 1986 (2) SA 656 (CPD)…,.
In any event, and for the avoidance of doubt, although the applicant is suing ex contractu, to enforce a personal right against the respondent, at the time the centre pivot was sold, the parties had filed both the application and the opposing affidavits and thus the matter had, in my opinion, reached litis contestatio and the application could have, at that stage, been set down for hearing.
The sale of res litigiosa has been dealt with by the courts for decades. The position at law appears settled. I believe I can do no better than refer to the words of INNES CJ in Caronel v Gordon Estate & G.M. Co 1902 T.S. 95…, when he had the following to say:
“Now, it is undoubtedly the case that under Roman law any right which was res litigiosa could not be alienated. But, a thing only became res litigiosa when there was an action in rem concerning it; the doctrine of litigiosity had no place in regard to merely personal action.
Coming to Roman-Dutch law, there is some authority for the proposition that the same rule prevailed….,. I think then that the weight of Roman-Dutch law authority does not forbid the alienation of res litigiosa: but, even if the doctrine of litigiosa is to be applied, it would be necessary to fix some point or stage in process of an action at which it shall begin to operate. This is desirable and necessary in the interests of the public who may have dealings with a litigant.
Now, the only point or stage in the process at which to fix the vesting of this right to prohibit alienation would be litis contestatio.”
My reading of the above remarks by INNES CJ is that prior to the right of litigiosity vesting, the res can be alienated, but, after litis contestio had been reached, litigiosity operates to prohibit the alienation of the res.
I am fortified in coming to this conclusion by the further but separate remarks made by BARRY J in Hall v Howe 1929 TPD 591, where, after referring to old Roman-Dutch authorities, the learned judge held that res litigiosa could be alienated provided that if the litigant succeeded in his claim against the seller, he, the litigant, could recover the property in dispute from the new possessor.
The doctrine was raised recently in PS Booksellers (Pty) Ltd and Another v Harrison and Others 2008 (3) SA 633 (C) where MEER J also referred to the old Roman Dutch authorities and to Opera House (Grand Parade) v Cape Town City Council 1986 (2) SA 656 (CPD) emphasized the right of the first buyer to recover the res from the third party by summary process. In paragraph 107 of his judgment, he had this to say:
“It seems to me, that, notwithstanding the different phraseology employed by different sources relating to the safeguarding of the third party's interest(s) in the res, extensive concern for such interest(s) is, in each case, the same and that there is what may be accepted as unanimity of this point.
The position is that it is now generally accepted that despite the fact that a thing is res litigiosa this does not preclude or prevent it from being alienated or similarly dealt with, so long as the rights of the non-alienating litigant in the res are protected…,.
This means, when applied to the instant case, that, respondent, albeit that the Rotunda Hotel site is res litigiosa, can only be restrained from dealing with it as it (respondent) proposes doing…, if applicant's rights in and to the site, viz as owner in the event that it is restored to it on the conclusion of the pending action, are not, and will not be, prejudiced by such dealing.”
While I have not been able to come across a case in point from the above authorities, I am coming to the conclusion, that, after litis contestaio has been reached, res litigiosa cannot be alienated and, where it has been alienated, the plaintiff, if successful, can recover it from the possessor.
The old authorities suggest that the non alienating party can summarily recover the res from the third party.
In Hall v Howe 1929 TPD 591, the point is made that, if successful, the non-alienating plaintiff, if successful, can recover the res by execution from the new possessor.
The authors SILBERBERG & SHOEMAN, in The Law of Property, 3rd Ed…, put the position lucidly, in my view, as follows:
“This means that the sale of a res litigiosa is valid inter partes, but the purchaser is bound by the judgment in the action and the successful plaintiff can recover it from the new possessor by execution and without fresh proceedings.”
In the result, and on the basis of the foregoing, I make the following order:
1. The applicant is, by execution, to take delivery of the 140HA centre pivot sold to it by the respondent.
2. The respondent shall bear the applicant's costs of suit on a legal practitioner and client scale.
