This is an appeal against the whole judgment of the High Court, handed down on 31 July 2023, in which it confirmed the cancellation of an agreement of sale between the first respondent and the appellants.
After hearing the appeal, on 23 October 2023, the Court gave an ex tempore judgment and issued the following order:
“IT IS ORDERED THAT:
1. The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo is set aside and substituted with the following:
(a) The application be and is hereby referred to trial.
(b) The applicant's founding affidavit shall stand as the summons.
(c) The first and second respondent's opposing papers shall stand as their appearance to defend.
(d) Thereafter, pleadings shall be in terms of the rules.
(e) Costs shall be in the cause.”
Thereafter, on 30 September 2024, counsel for the appellants wrote a letter to the Registrar requesting for written reasons for the order we granted. These are they.
FACTUAL BACKGROUND
On 10 May 2018, the appellants and the first respondent entered into a sale agreement. The agreement was for the sale of Stand No.1239, Stand 1239 Good Hope Township of Lot 16 Good Hope, Harare by the first respondent to the appellants for US$50,875.
A deposit of US$25,000 was to be paid on the signing of the agreement, in cash, to the first respondent. The balance of US$25,875 was to be paid, as cash, in monthly installments of US$718 per month to the first respondent, over a period of 13 months commencing on 1 August 2022 until it was paid in full.
In terms of clauses 1 and 2, all payments were to be made directly to the first respondent in cash.
The first respondent cancelled the agreement of sale four years later, on 4 May 2022, alleging that the appellants had not paid the deposit and instalments in terms of clauses 1 and 2 of the agreement of sale.
At the time of cancellation, the appellants had completed the construction of the ground floor of the house they were building on the property.
In their opposing affidavit, deposed to by Shuwiso Bandika, their agent, on the authority of a Power of Attorney issued to him by the first appellant, he stated that he paid the deposit to the first respondent in cash, in the presence of his wife, the second respondent.
He further stated, that, at the signing of the agreement and payment of the deposit, his principals, the appellants, who stay outside the country, were participating through phone calls.
He further stated, that, the first respondent received the deposit and asked his wife (the second respondent) to issue a receipt to the appellants. He stated that the second respondent issued the receipt on 1 June 2018.
In respect of installments, he stated that he would approach the first respondent to make payments, who would, on each occasion, instruct him to make the payments to his wife, who would give him receipts for the payments.
He further stated, that, the first respondent allowed the second respondent, his wife, to market the property and receive payments of instalments on his behalf. He stated that all the installments were paid to the second respondent on the instructions of the first respondent.
After the first respondent cancelled the agreement, on 4 May 2022, he applied to the court a quo for the confirmation of the cancellation.
The deponent to the appellants opposing affidavit further stated, that, the first respondent was duping purchasers of Stands in his development scheme using the same modus operandi. He averred in paragraphs 6 to 8 of the appellants opposing affidavit that:
“6. A resolution of the dispute cannot be objectively attained without the calling of further evidence. Which evidence can be tested through cross-examination.
The events, as alluded to by the applicant and the respondents, are irreconcilable.
The Applicant states, that, the first and second respondents have never paid to him any money towards the purchase of the property, which is at variance with the evidence of the respondents who state, that, they paid the purchase price in full - a point which can be confirmed by the third respondent who was, and still is, the agent of the Applicant whom he had authorised to receive payments on his behalf. A fact which he now denies in bad faith so as to contemplate huge financial prejudice on the first and second respondents. I hereby attach the proof of payment and globally mark them as Annexure 'B'.
7. The Court should also take judicial notice of the fact, that, the Applicant is using the same modus operandi to prejudice home seekers who would have paid to him the full purchase prices for homes and he now disowns them. An example of similar cases that are before the honourable court are a Court Application for the confirmation of the cancellation of an agreement of sale filed under reference HCH5557/22 between the Applicant and Ronald Sithole and Two Others. Another Court Application for the confirmation of the cancellation of an agreement sale filed under reference HCH3646/22 between the Applicant and Fillet Madenga and Another and many others that contains similar facts to the present case.
8. This ought to encourage the Court to lean in favour of having all issues canvassed through the leading of evidence and have the witnesses cross examined. This will give the court the benefit of determining the issues of credibility of the witnesses while having an opportunity to deal with the core of the dispute.”
It is clear, that, the dispute between the parties is that the first respondent deliberately caused the appellants to pay instalments to the second respondent, his wife, after he had personally accepted the deposit, after which he instructed his wife to issue the receipt.
DETERMINATION OF THE COURT A QUO
In granting the first respondent's application, the court a quo, on the issue of whether or not the appellants had paid the purchase price in the manner stated by their deponent said:
“Manifestly, the applicant's cause of action does not hinge on the fact that the respondents did not pay the purchase price. It hinges on the fact that the payment was not made strictly in accordance with the agreement of sale that required payments to be made directly to him in cash.
The applicant denies ever receiving the purchase price at all.
But, the respondents have produced incontrovertible proof that they did pay, albeit, via the third respondent. The applicant says he never authorised the third respondent to receive the purchase price for him.
Yet, the third respondent is not a distant and an unrelated third party.
To begin with, she was, at all material times, the wife of the applicant. But, more importantly, she was very much an integral player in the sale deal. On the agreement of sale, not only did she sign as the applicant's witness, but, also, whilst the applicant is captioned as the 'seller' below her own signature is the caption: 'SOLD BY MRS RATIDZAI MATUKUTIRE.'”
In arriving at its decision, the court a quo, in paragraph 13 of its judgment, said:
“[13] However, in the light of the Supreme Court decision in Matukutire v Makwasha & Ors above, and the doctrine of stare decisis, the dispute in this matter is practically issue estoppel. The respondents are estopped from raising the grounds of defence that they have raised in this matter. The superior court has already ruled against such a defence, namely, that they paid the purchase price via the third respondent. The law on issue estoppel, a species of res judicata, is settled: see Galante v Galante (2) 2002 (1) ZLR 144 (H).
In paraphrase, it is this: in the interest of finality in litigation as a tenet of public policy, a party is precluded from raising in subsequent proceedings an issue, whether of fact or of law, that was previously determined to finality by a competent court between the same parties or their privies: see Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S).”…,.
The court a quo eventually granted the first respondent's application for confirmation of the cancellation of the agreement of sale.
SUBMISSIONS BEFORE THIS COURT
Counsel for the appellants submitted, that, there are disputes of facts which cannot be resolved without leading viva voce evidence.
He referred us to the appellants opposing affidavit which states, that, the first respondent received the deposit and instructed his wife to issue the receipt. He also referred to payments of instalments after the first respondent, on being approached for payments, instructed the appellants to make the payments to the second respondent - his wife. He referred us to the receipts issued by the second respondent as proof of payment of the purchase price.
Counsel for the first respondent argued, that, the appellants breached the contract by failing to pay in terms of the contract.
THE ISSUE
The issue which arises for determination is whether or not there were disputes of facts which warranted a remittal of the case for the hearing of evidence.
APPLICATION OF THE LAW TO THE FACTS
The law on disputes of facts was clarified by MAKARAU JP…, in the case of Supa Plant Investments (Pvt) Ltd v Edgar Chidavaenzi 2009 (2) ZLR 132 at 136F, where she said:
“A material dispute of fact arises when such material facts put 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 this case, we are of the view, that, the issue is on whether the first respondent used deception to cancel the agreement of sale.
The appellants allegation is that the first respondent personally received the deposit but did not personally issue the receipt, having instructed his wife to issue the receipt to the appellants. On installments, the appellants said the first respondent was approached for purposes of payment but he would divert the appellant's agent to his wife to whom payments were eventually made. The appellants further alleged there are other purchasers under the first respondent's Housing Scheme who were duped in this manner.
They gave details of cases in the court a quo of persons who were subjected to the same modus operandi.
These, in our view, are disputes which do not leave the court with a ready answer. They warrant the hearing of viva voce evidence.
The issue goes beyond what the law says.
It calls for the determination of whether or not the first respondent personally received the deposit and instructed his wife to issue the receipt. It further calls for a determination on whether or not the appellant's agent approached the first respondent to pay installments but was deliberately instructed to go and pay to the second respondent.
In respect of the case heard and determined by this Court in Mutukutire v Makwasha SC92-21, in which the first respondent successfully appealed against the High Court's refusal to confirm his application for confirmation of the cancellation of the agreement of sale, we took the view, that, though it dealt with an agreement of purchase of land in the same scheme, the parties are different and the details of what happened differ.
We are of the view, that, the hearing of evidence will establish whether or not the first respondent duped, or induced, the appellants to pay in the manner they did. If he did, the issue of whether he can benefit from his wrongdoing would arise.
It was for these reasons that the court issued the order referred to in paragraph 1 of this judgment.
