KAMOCHA J: Betty
Gasela was one of the directors of a company known as Bhekani Investment (Pvt)
Ltd. She was cited as applicant when in
fact the correct applicant was Bhekani Investment (Pvt) Ltd being represented
by her. She, unfortunately passed away
after she had deposed to the following affidavit. The applicant seeks the following order:-
“It is ordered that:-
1.
first
respondent be and is hereby ordered and directed to, within seven days of the
service of this order upon him, attend at the offices of second respondent and
there and then sign all papers necessary to effect transfer of stand number KN
120 Kelvin North, Bulawayo from him to applicant, failing which the Deputy
Sheriff or her lawful assistant be and are hereby authorized to act on behalf of
first respondent;
2.
second
and third respondents be and are hereby ordered and directed to take all
necessary steps to facilitate transfer of stand number KN 120, Kelvin North,
Bulawayo to applicant; and
3.
the
costs of this application shall be borne by first respondent on the scale as
between legal practitioner and client.”
On 4 January 1990 the 1st respondent Leonard
Malinga herein referred to as Malinga entered into an agreement of sale of
stand number 14097 Kelvin North, with the City of Bulawayo. For some reason not known to the court it
would seem that there is some relationship between stand number 14097 and stand
number 120 Kelvin North. In the papers
filed of record the parties refer to both stands as if it is one and the same
property.
The stand was vacant at the time Malinga purchased it and he
was expected to develop it within a certain period in accordance with the
municipality building conditions. Apart
from constructing a durawall around the property, Malinga did not develop it in
any way for a period in excess of 10 years.
In July 2000 Malinga entered into an agreement of sale of the
property with the applicant. He signed
the agreement of sale on 19 July 2000.
The purchase price was a cash payment of $375 000 Zimbabwe dollars
payable upon the registration of transfer of the property. It was, however, paid in full when the
representative of the applicant signed the agreement of sale on 17 July 2000.
The full purchase price was paid to Malinga's agents Knight
Frank who passed it over on 27 September 2000 to Lazarus and Sarif who were to
transfer the property from City of Bulawayo to Malinga and thereafter from
Malinga to the applicant. Lazarus and
Sarif acknowledged receipt by letter dated 5 October 2000 wherein they stated
that they had written to the Town Clerk's department requesting them to
instruct their lawyers to attend to the registration of transfer of the said
property into Malinga's name and they in turn would transfer the property into
the name of the applicant.
The sale from Malinga to applicant was subject to a special
condition that it had to be approved by the City of Bulawayo. It was Malinga's obligation to obtain the
City of Bulawayo's approval. He failed
to do so. It was his fault that such
consent was not obtained from the City of Bulawayo. It was further his fault that he did not
request for it from the Municipality. He
had a duty to take positive steps to ensure that the consent was obtained but
simply did not do so. The applicant
cannot be made to suffer because of Malinga's in action. This is a case where the doctrine of
fictional fulfillment applies as was stated by INNES CJ in Gowan v Bowern 1924 AD 550. See also Macduff
and Co. Ltd v Johannesburg
Consolidated Investment Co. Ltd 1924 AD 573 and Ndlovu v Marandu 1999(2)
ZLR 341(H).
While the City of Bulawayo may not be bound by a contract
where its consent was not granted prior to the sale of the property, the
agreement is not illegal and invalid, it cannot, however, be enforced against
City of Bulawayo. It is, of course,
enforceable against Malinga and this court can justifiably order him to
transfer the property to the applicant since the City of Bulawayo transferred
it into his name in 2003.
Having paid the purchase price in full the applicant obtained
a development permit dated 14 March 2001.
The development permit, which had to be implemented within 24 months was
for a workshop. The applicant effected
the developments in accordance with the Municipality requirements using its own
resources.
Malinga alleged that the applicant breached the contract by
not obtaining a development permit immediately.
The allegations are without foundation as there was no clause in the
agreement itself which obliged the applicant to obtain a development permit
immediately. He also alleged that the
applicant had failed to pay rates and rentals resulting in a “massive” sum
being over due. He, however, failed to
adduce evidence in support of his allegations.
The applicant on the other hand attached to its answering
affidavit, receipts from the City of Bulawayo showing that it was paying
rates. The applicant only stopped making
payment after Malinga unlawfully diverted rentals from tenants and refused to
pass transfer.
Similarly Malinga's allegation that the cancellation of the
contract between him and City of Bulawayo was due to applicant's dilatoriness
in applying for a development permit is without foundation. The more likely reason why the contract was
being cancelled was that he had not effected any development on the property in
a period of 11 years from 4 January 1990 until applicant developed it in 2001.
The applicant submitted that the cancellation was, in any
event, erroneous. On 3 March 2001 City
of Bulawayo stipulated 24 months within which applicant had to develop the
stand. It, therefore, could not validly
cancel the agreement on 4 July 2001 on the basis that applicant had failed to
effect development within the period scheduled.
The applicant in fact commenced the development of the stand on 1 April
2001 which it completed on 1 October 2001 – a period of just seven months.
It was on the strength of the developments effected by the
applicant that Malinga was able to negotiate the re-instatement of the stand to
him which Council granted on 12 June 2002.
Further, the transfer into his name was only effected after applicant's
developments to the stand. Council would
not have effected transfer without the developments.
Finally, Malinga alleged that there were disputes of fact
which could be resolved on the papers even if the court adopted a robust
approach. I disagree. I entertain no doubt whatsoever that the
matter is easily resolved on the papers.
I would in the result grant the application in terms of the
draft on page 1 supra with costs on the ordinary scale as there is no
justification for awarding punitive costs.
Dube & Partners applicant's legal practitioners
James, Moyo-Majwabu and Nyoni, 1st
respondent's legal practitioners
