On
15 November 1996 the applicant and the first respondent entered into
an Agreement of Sale in terms of which the applicant purchased from
the first respondent an immovable property known as Stand No.6670
Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of
this amount, $10,000= was paid on the date of the ...
On
15 November 1996 the applicant and the first respondent entered into
an Agreement of Sale in terms of which the applicant purchased from
the first respondent an immovable property known as Stand No.6670
Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of
this amount, $10,000= was paid on the date of the signing of the
agreement, being 15 November 1996, as recorded in clause 1 of the
agreement.
In
terms of clause 2 of the agreement, commencement of payment of the
balance of the purchase price, in the sum of $8,000=, was to be paid
after a grace period which extended from the date of signature up to
30 June 1997. A monthly payment of $750= was to be made with effect
from 1 July 1997, and, thereafter, the same amount was to be paid by
the first day of each succeeding month until full payment was made.
In
terms of clause 3, the seller, being the first respondent, was to
deliver vacant possession of the property to the buyer, that is the
applicant, within 7 (seven) days from the date of payment of the
final instalment. Transfer of the property to the purchaser was to be
effected at the same time.
In
terms of clause 4, the purchaser was to pay all charges in respect of
the property with effect from the month of December, presumably of
the year 1997, onwards. The purchaser was also required to develop
the property to the level or stage at which the third respondent
would approve transfer (cession) of the property, in terms of its
by-laws.
In
terms of clause 5 of the agreement, the purchaser would pay the
monthly instalments into the seller's POSB account, the details of
which account would be furnished to the purchaser by the seller. The
clause then further provides as follows:
“This
is the only agreement the parties will go by and no other whatsoever
unless this agreement is expressly and in writing otherwise amended
or replaced.”
The
concluding paragraph is to the effect that the meaning and import of
the agreement has been explained to the parties in the Shona language
and they have understood the same.
The
applicant avers that he paid the full purchase price of the property
as evidenced, firstly, by clause 1 of the agreement which
acknowledges payment of the initial $10,000=, and, secondly, by
receipts, copies of which he attached to his founding affidavit. He
also avers that he prepared plans which were approved by the third
respondent. In this regard, Annexure C1 to his founding affidavit is
a document dated 2 January 2003 addressed to the applicant by the
third respondent's City Engineer's department and in respect of
the Stand in issue. It informs the applicant that his plans, which
were submitted in respect of the Stand in question, have been
approved subject to the relevant Municipal Bye-laws and certain
conditions stated therein.
Annexure
C2, dated 21 June 2005, is also addressed to the applicant by the
third respondent's City Engineer's department in respect of the
same Stand. It also informs the applicant that one copy of his plan
has been “pre-approved” on condition that he adheres to certain
conditions also stated therein. It further states that the
“pre-approval” is valid for one year from the date stamped on the
plans.
Annexure
D to the founding affidavit reflects copies of two inspection logs.
One is dated 27 July 1999 showing approval by the City Engineer's
Department of the stage referred to as “Brickfooting.” The other
is dated 27 August 1999 showing approval of the stage referred to as
“Hardcore.”
The
applicant also avers that he commenced to build on the undeveloped
and vacant Stand and has erected a house which is at window level.
Then, sometime in June 2005, the first respondent began to interfere
with the applicant's access to the premises. This led to the
applicant's legal practitioners writing a letter, on 7 July 2005,
to the first respondent, and, amongst other things, giving her
fifteen days' notice to effect cession of the property into the
applicant's name as well as two (2) months' notice to vacate the
property.
The
first respondent did not cede the property to the applicant. However,
the applicant then received a water bill dated 17 July 2006 addressed
in the name of the second respondent. This prompted him to make
inquiries with the third respondent and he then ascertained that the
first respondent had ceded the property into the name of the second
respondent. The second respondent was un-cooperative when he
approached her. The first respondent became evasive.
The
applicant contends that the second respondent ought to have known
that the applicant was the new owner of the property as his builders
were on site and the plans for the house that was being erected on
the property were in the applicant's name. He also contends that
the second respondent was reckless and was not diligent in not making
inquiries as she would not have purchased the property which he had
already purchased. He contends that the cession to the second
respondent was done maliciously by both the first and the second
respondents.
The
applicant prays for an order in the following terms:-
“That:
1.
The first and second respondents be and are hereby order and directed
to attend at third respondent and cede their rights and title in
House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen
(14) days from the date of service of this court order.
2.
In the event of the first and second respondents failing to comply
with paragraph 1 above the Deputy Sheriff be and is hereby ordered to
sign all relevant cession papers for and on behalf of the first and
second respondents and the cession papers with the third respondent
who is obliged to accept them and effect the cession into applicant's
name.
3.
Alternatively,
the first respondent pays he applicant ten million (10,000,000,000=)
or the current market value of the house as approved by two
evaluators which ever figure is higher.
4.
The first respondent pays the applicant's costs of suit.” (sic)
The
first respondent opposes the application and avers that the applicant
failed to pay the balance of the purchase price, in the sum of
$8,000=, claiming that the payments reflected in the receipts
attached as annexures B1, B2, B3, and B4 to the applicant's
founding affidavit were meant for supplementary charges and not for
instalments towards the liquidation of the balance as alleged.
The
applicant claims that if these were instalments meant to go towards
the liquidation of the balance of the purchase price, as claimed by
the applicant, the applicant would not have paid the higher amount of
$1,000= per month instead of the agreed $750= per month. She further
alleges that the building plans could not have been in the
applicant's name as the Stand was registered in her name and
cession had not yet been effected.
The
first respondent also alleges that although the applicant built a
house to window level, when she started to demand payment of the
balance and of water bills and supplementary charges which he had
stopped paying, the applicant then ceased building. Then, in February
2005, the applicant stated that he had purchased another Stand in
Harare and was no longer interested in developing the Stand in
question. She alleges that the applicant then said that all that he
wanted from her was $15,000,000= “for the Stand at its state” so
that she could have the Stand back from him. She claims that they
reached an agreement, and, in pursuance thereof, she raised the
$15,000,000=. However, when she tried to contact the applicant so
that she could make the payment to him, he could not be found. On two
occasions she went to his rural home but failed to find him. When she
finally made contact with him, in August 2005, he promised to come
and collect the money but never did.
The
first respondent contends that the applicant breached their agreement
by failing to pay the balance of the purchase price and the
supplementary charges and that the property thereby reverted to her.
She disputes that the applicant had any building material at the
Stand and further disputes that she used such material to construct
an outbuilding as alleged by the applicant. As the property reverted
to being hers she then sold it to the second respondent in November
2005 and ceded it to her. She further states on her opposing
affidavit that as the applicant failed to collect his money, as
detailed above, she was thus tendering it.
The
first respondent agrees that the applicant was the first purchaser.
She however claims that they later agreed that she retain her
property, which she did “after having managed to raise the agreed
purchase price”. She then thereafter sold the property to the
second respondent who was a bona
fide
purchaser. She claims that she was, at that stage, at liberty to sell
the property to anyone.
In
supplementary heads of argument filed on behalf of the first
respondent, the point is raised, in limine,
that the applicant's cause of action is prescribed in terms of
section 15(d) of the Prescription Act [Chapter
8:11].
She
submitted therein that the agreement between the applicant and the
first respondent having been entered into on 15 November 1996, when
this court application was filed on 10 October 2006, it was long
after the expiry of three years and as there had been
no judicial interruption during the interceding period, the claim had
since prescribed. On
the merits, it is submitted that there are irreconcilable disputes of
fact which no matter how robust the court is, it cannot possibly
resolve without hearing viva
voce
evidence.
The
first respondent thus prays for the dismissal of the application with
costs.
The
second respondent, despite being served with the court application,
has filed no opposing papers.
PRESCRIPTION
Section
15 of
the Prescription Act [Chapter
8:11]
provides as follows:-
“15
Periods of prescription of debts
The
period of prescription of a debt shall be –
(a)…,.
(b)…,.
(c)…,.
(d)
Except where any enactment provides otherwise, three years, in the
case of any other debt.”
Section
16(1) then provides:
“(1)
Subject to subsections (2) and (3), prescription shall commence to
run as soon as a debt is due.”
The
Act defines “debt” as:
“Without
limiting the meaning of the term, includes anything which may be sued
for or claimed by reason of an obligation arising from statute,
contract, delict or otherwise.”
In
casu,
the applicant's claim is for cession of Stand 6670 Chikanga 3,
Mutare. Such cession arises from the contract entered into by the
applicant and the first respondent on 15 November 1996. It thus, in
my view, falls within the definition of “debt” in the
Prescription Act.
If
cession to the applicant (the debt) became due on 15 November 1996,
the date relied upon by the first respondent in articulating the
preliminary issue of prescription, then clearly, in the absence of
any judicial interruption the applicant's claim would have long
expired by the date that this application was filed, 10 October 2006
- some ten years later.
But,
clause 4 of the agreement stipulates, inter
alia,
that the purchaser (applicant) “shall develop the property to the
stage where the City of Mutare will approve the transfer in terms of
the by-laws.”
I
am aware of the apparent mutual exclusiveness of clauses 3 and 4 of
the agreement.
However,
it is common cause that this Stand is situated in the Mutare
Municipal area. Clause 3 would therefore be impossible of fulfilment
insofar as transferring the property to the purchaser (applicant) is
concerned unless there is compliance with the third respondent's
requirements or by-laws. This requirement, for the third respondent's
requirements to be met, is acknowledged in clause 4 which however
places the obligation on the purchaser's shoulders to develop the
Stand “to the stage where the City of Mutare will approve the
transfer in terms of the by-laws.”
The
question then arises whether the applicant developed the Stand to the
level or stage enabling or resulting in the City of Mutare, the third
respondent, approving transfer or cession of the property.
That
the applicant constructed the house at the Stand in question, at
least up to window level, is common cause. It is also clear, by the
first respondent, that she sold to the second respondent the same
Stand 6670 Chikanga Township “together with improvements of
incomplete house build (sic)
(built) up to window level comprising 5 living rooms, dining, kitchen
and combined toilet with provisional of in-suit (en suite?) as seen.”
(sic)….,.
There
is no evidence of any construction having been carried out by the
first respondent at any stage or to any level.
The
Agreement of Sale to the second respondent was entered into at the
end of November 2005. The date of cession to the second respondent is
not clear on the papers but the applicant states that at the end of
2005 he was completely denied access to the property by the first
respondent. Furthermore, when he received the water and services
statement, dated 17 July 2006, and which was addressed to the second
respondent, his pursuant inquiries then informed him that the
property had been ceded to the second respondent. The first
respondent states, in her opposing affidavit, that she refused to
cede the property to the applicant when his legal practitioners
demanded such cession as the applicant had breached their agreement
by not paying the purchase price and supplementary charges and as
this was also in accordance with their subsequent oral agreement.
It
is clear that the first respondent was able to effect cession into
the second respondent's name on the strength or basis of the
developments made on the property by the applicant. She did not
herself effect any further improvements. The answer to the question
above appears to me therefore to be that the applicant did develop
the Stand to the stage where the third respondent would approve
transfer.
The
next question that arises is when did the applicant attain the level
of development that would, and in fact did, enable the third
respondent to approve cession, albeit to a different person/third
party?
It
is clear on the papers this was certainly not on 15 November 1996.
It
is also clear that in 2003 and 2005, the applicant was in
communication with the third respondent in respect of plans for the
development of the Stand as evidenced by the two letters from the
third respondent's Engineer's Department already referred to
above. It is also clear that in July and August 1999, the applicant
was in the process of effecting developments and the approval of two
stages of development were approved then by the City Engineer's
Department.
It
is undisputed that the applicant began experiencing problems in
accessing the premises from sometime in June 2005 and that he was
completely barred at the end of 2005, the sale to the second
respondent being also contracted at the end of November 2005. As no
further development was made to the property besides what the
applicant had done, it can be safely concluded that, at the very
least, by the end of November 2005, when the property was sold to the
second respondent and the applicant was also totally barred from
entry onto the premises, the applicant had already developed the
Stand to the stage where the third respondent would approve the
transfer or cession in terms of its by laws.
Having
made such a finding, it appears to me that the debt (cession to the
applicant) became due at the end of November 2005. The instant court
application would thus have been filed some eleven (11) months after
the cause of action arose.
It
is my view that this cause of action arose when he complied with
clause 4 of the agreement. As stated in Mukahlera
v Clerk of Parliament & Ors
HH107-05, prescription begins to run when the cause of action arose;
the cause of action being the combination of facts material for the
plaintiff (applicant in
casu)
to prove in order to succeed in his action.
In
casu,
the applicant must prove, inter
alia,
his compliance with clause 4 in so far as developing the property is
concerned, as already discussed above.
I
therefore find, for the above reasons, that the applicant's claim
has not been extinguished by prescription. The point raised in
limine,
that the applicant's claim has prescribed, is therefore dismissed.