In an application filed
before the High Court, the respondent claimed that he had purchased the above
property, but the appellant disputed the claim.
The respondent's claim was
based on the following background;-
He was employed by the
appellant on 20 June 1990, as a Plant Foreman, until the date of his
resignation on 27 March 2007. He claimed that on 1 November 2003 he
entered into an Agreement of Sale in which the appellant agreed to dispose of
its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to
its employees who were sitting tenants effective 1 December 2003.
At the time of signing the
Memorandum of Agreement of Sale, he was sitting tenant of House No. 591
Waterberry Crescent, Bindura and is still occupying that house. The house
was valued at $6,839,145= which price he claims to have paid in full. He
said the appellant has refused or neglected to expedite progress and sign all
relevant documents to ensure transfer passes to him despite demand.
The respondent filed the
Memorandum of Agreement. It reads as follows:
"MEMORANDUM OF
AGREEMENT
BETWEEN
ASHANTI GOLDFIELDS
MANAGEMENT
AND
EMPLOYEES
Ashanti
Goldfiels Zimbabwe hereby agrees to dispose of its housing units
situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees who
are sitting tenants effective 1 December 2003. Find the agreed prices
attached."
The document was then signed by the General Manager of the appellant and
the Financial Director. John Masarira, Emmanuel
Gambara and Kingstone Mufoti, who are Workers' Committee members, signed on
behalf of the employees. Thereafter the names of the employees were listed
with the house numbers, the new valuations and the monthly repayments.
The respondent also filed
receipts showing that he made certain payments totalling $7,000,000=. When
the respondent resigned from the appellant's employment, he was asked to vacate
the house in question.
In opposing the
application, the appellant denies that the respondent entered into or signed an
Agreement of Sale. The appellant says the document concerned was a Memorandum
of Understanding expressing an intention by the appellant to dispose of the
housing units to its employees. The appellant also points out that the
respondent subsequently signed a lease agreement.
It is clear that the lease
agreement was signed about nine days after the signing of the Memorandum of
Understanding.
The first question to be
asked is: Why would the respondent sign a lease agreement for property that he
has just purchased? The second question is: If he signed a lease
agreement with an option to purchase did he exercise the option and when?
It is difficult to
understand how the Memorandum of Understanding can be said to be an Agreement
of Sale. What is clear is that the appellant was offering the houses to
the sitting tenants who were its employees. There is nothing to show that
the respondent took up the offer. The respondent seeks to argue that the
Memorandum was an agreement. There is nothing to show that every one of
the employees on the list purchased the houses. At best, the document can
only be read as showing who occupied which house and the price they could pay
if they accepted the offer to purchase.
The respondent argues that
the agreement binds both the appellant and the respondent. It would
certainly do so if he had accepted the offer and the appellant refused to sell
to him.
The court a quo held that:
"The applicant (that
is the employee) also evidenced a genuine intention to buy the house once he
became a sitting tenant through the signatures of his agents, the members of the
workers' committee."
In my view, the court erred
in adopting this approach. There is nothing to show that the respondent
appointed members of the Workers' Committee to represent him in the purchase of
the property.
The members of the Workers Committee
represented the employees only in-as-far as establishing the right for each
employee tenant to purchase the house if they wished.
The lease agreement states
very clearly that the respondent would have an option to purchase the property
after sixty (60) months. It is therefore incorrect to say he had purchased
the house on 1 December 2003 when the lease agreement runs from 10 December of
the same year. The lease agreement also shows that the monthly payments
for the house were in the sum of $113,985.=75. The respondent made lump
sum payments which suggest that he was paying rental arrears as there are no
monthly rental payments shown.
In his own heads of
argument before the court a quo, he
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. The respondent never promised to pay the price for the
house in which he was a tenant.
The respondent relied on
the case of Chikoma v Mukweza 1998
(1) ZLR 541 (S). That case has no relevance to the facts of this case.
It is also clear that the
appellant did not accept the sale price from the respondent, but accepted the
rental. The respondent could not be paying the rental for property he had
purchased.
PROFFESSOR R.H. CHRISTIE
makes it clear in his Rhodesia Commercial Law Book…, that:
"There must obviously
be at least two parties to every contract and the necessary agreement between
them will always manifest itself in the form of an offer from the one side and
an acceptance of that offer by the other side."
In this case, the document
signed by the appellant was clearly an offer to dispose of its houses to its
workers who were sitting tenants. There is no acceptance of that offer
from the respondent.
Clause 1.1. of the lease
agreement signed on 10 December 2003 states that the lessor lets the property
for a period of sixty (60) months commencing on January 2004.
Clause 3.1. says the lessee
shall have the option to purchase the property after sixty (60) months.
In the circumstances, the
respondent could not have purchased the property when he asked for its transfer
to himself by 25 July 2006, which was only about three (3) years after the
signing of the lease agreement.
I am satisfied that the
court a quo erred in
concluding that the appellant had sold the house to the respondent.
The appeal must therefore
succeed.
I therefore make the
following order;-
1. The appeal is allowed with costs.
2. The judgment of the court a quo is set
aside and substituted as follows:-
"The application is dismissed with costs."
