On
or about August 2006, the parties entered into an oral agreement in terms of
which the plaintiff sold to the defendant a certain dwelling house commonly
known as Number 56 Burnside Road, Bulawayo for the sum of US$60,000= payable as
follows:
(a)
The sum of US$30,000= to be paid in the Zimbabwean Dollar equivalent; and
(b)
The balance of US$30,000= to be paid in the equivalent of the South African
Rand.
It
was an implied term that the defendant would pay the purchase price within a
reasonable time from the date of sale. The defendant paid to the plaintiff the
following sums of money i.e. Z$17,500,000= and ZAR6,500= as follows:
(a)
October 2006 - Z$2,000,000= [equivalent US$2,000= at time].
(b)
April 2007 - Z$5,500,000= [equivalent
US$220= at time].
(c)
October 2007 – Z$10,000,000= [equivalent US$50= at time].
(d)
July 2007 - ZAR4,000=.
(e)
September 2007 – ZAR500=.
(f)
November 2007 – ZAR500=.
(g)
January 2008 – ZAR500=.
(h)
March 2008 – ZAR500=.
(i)
May 2008 - ZAR500=.
No
further payments were made by the defendant since May 2008 despite demand. In
June 2008, the plaintiff cancelled the agreement and informed the defendant and
demanded that the defendant vacates the house. The defendant did not vacate
resulting in the institution of summons by the plaintiff seeking-
(a)
An order declaring the Agreement of Sale cancelled or alternatively an order
declaring the agreement to be invalid, void
ab initio;
(b)
The ejectment of the defendant and all those claiming under him;
(c)
Damages in the sum of ZAR4,000= per month calculated from 1 September 2006 to
date of judgment together with 10% interest; and
(d)
Costs of suit.
This
is an exception by the defendant to the plaintiff's particulars of claim on the
ground that they disclose no cause of action in law.
For
the purpose of determining the exception, its basis is the following:
“Submissions
in brief
It
is submitted that the parties entered into an instalment sale of land, and that
if the defendant breached the agreement, as alleged by the plaintiff, by not
paying the balance of the purchase price within a reasonable time, then the
plaintiff failed to comply with the Contractual Penalties Act, therefore has no
actionable right against the defendant.
Submissions
in detail
1.
Section 7 of the Contractual Penalties Act [Chapter 8:04] states as follows…,.
2.
In terms of paragraph 3 of the plaintiff's declaration, there is no dispute
that an oral agreement for the sale of land was entered into…,.
3.
From paragraph 5 of the plaintiff's declaration it is clear that payment
towards the purchase price was made in more than three instalments.
4.
Section 8, sub-section (1) of the Contractual Penalties Act, aforementioned,
reads as follows…,.
5.
….,.
6.
It is clear that in the present matter, the plaintiff did not give the
requisite notice in terms of section 8 of the Contractual Penalties Act, and,
as such, the plaintiff's purported cancellation of the agreement is null and
void, and of no force or effect.
7.
See also the case of Preston vs Charuma Blasting & Earthmoving Services
(Pvt) Ltd and Anor 1999 (2) ZLR 201 (S) especially at page 203 where SANDURA JA
stated as follows:
“In
the circumstances, before terminating the sale agreement the appellant was
obliged to comply with the provisions of subsections (1) and (2) of section 8
of the Act. In terms of those provisions, he was obliged to call upon the
respondent to pay the instalment within thirty days, and would have been
entitled to terminate the agreement only if the respondent failed to pay the
instalment within that period.”
8.
For the foregoing reasons, it is submitted that the plaintiff's action is
without merit and it is prayed that it be dismissed with costs and judgment
entered in favour of the defendant, declaring the plaintiff's purported
cancellation of the agreement between the parties to be invalid and
unactionable.”
If
there was no alternative claim which seeks to have the agreement declared null
and void, I would have upheld the exception on the above-mentioned grounds
stated by the excipient i.e. failure to comply with the provisions of section
8(1) of the Contractual Penalties Act [Chapter 8:04] and section 8(2) of the
Contractual Penalties Act [Chapter 8:04]).
In
casu, the alternative claim gives the
matter an entirely different complexion. In the alternative claim, the
plaintiff, in his declaration, alleges that the alleged Agreement of Sale does
not exist. He pleads as follows -
“The
parties' purported agreement of sale is invalid, void ab initio, and therefore of non-effect….,.”
For
the Contractual Penalties Act [Chapter 8:04] to be said to apply, there must be
proved, at the first instance, that there is a valid agreement. The plaintiff,
in its declaration, puts to issue the very existence of such an agreement.
Accordingly, the exception, as taken by the
defendant, is wrong, and, at best, premature. I dismiss the exception with
costs.
