This is an appeal against the whole judgment of the High
Court - passed over 16 years ago on 10 January 2001.
The facts of the matter are as follows:-
The late Andrew Dhlakama (“Andrew”) and his wife were the
owners of certain immovable property known as Stand 763 Malbereign Township. On
30 December 1994, the late Andrew Dhlakama then entered into an agreement
concerning the property with the appellant. The terms of the agreement were,
inter alia, that the property would be leased out to the appellant for ZWD1,200=
per month. It was a further term of the contract that the appellant would have
the option to buy the house and in that case he would be required to pay a
deposit of ZWD10,000= and then pay at least half of the total agreed price of
the house, which was ZWD215,000=, by August 1995. In the event that he failed
to pay half of the purchase price, the agreement would exist as a lease
agreement only and the appellant would continue to pay the agreed rent of $1,200=
per month.
The Dhlakamas then left the country and went overseas with
instructions on how the appellant would pay the agreed sums, that is, which
banks and accounts it would be paid into. However, the couple, after some
months, realized that the appellant had not only failed to pay the agreed half
of the purchase price for the house, but was also defaulting on rent. They
proceeded to cancel the agreement after giving him due notice and instituted
eviction proceedings against the appellant in the Magistrates Court.
The appellant, thereafter, decided to counter sue the
Dhlakamas in the High Court, arguing that he had not breached the terms of the
agreement, tendering what he described as the remaining balance of the purchase
price and praying that the house be transferred into his name. He argued,
further, that the respondents having failed to give him 30 days' notice to
remedy his breach as required by section 8(2) of the Contractual Penalties Act
[Chapter 8:04], their purported cancellation of the agreement was a
nullity for want of compliance with that Act.
CHIDYAUSIKU JP…, found no merit in the claim, dismissed it,
and upheld the Dhlakamas counterclaim for the appellant's eviction from the
premises in question.
The appellant has now appealed to this court on the
following grounds:-
(1) The Honourable Judge President erred in finding that
the evidence led by the Appellant did not prove the existence of a lease to buy
agreement.
(2) The Honourable Judge President erred in finding that
the Contractual Penalties Act was inapplicable in the circumstances and that the
first and second respondents were not obliged to render the required notice in
terms of the said Act, prior to the termination of the lease agreement….,.
The appellant prays for an order granting the appeal with
costs, setting aside the whole judgement of the High Court and substituting it
with an order upholding his claim and dismissing the Dhlakamas' counterclaim
with costs.
It is my view that a finding on whether or not the
appellant breached the agreement between the parties would dispose of this matter.
Before addressing that issue, however, it is important to
determine the type of agreement that the parties entered into. The appellant's
case is that the agreement was one commonly described as a 'lease to buy' the
property in question. The respondents on the other hand submit that the
agreement was one of lease with an option to buy in favour of the appellant.
The court a quo considered the agreement in question, which
is entitled “LEASE: Memorandum of Agreement” and refers to the parties as
'lessee/tenant' and 'lessor/landlord' in appropriate respects. Its paragraphs 1
to 11 contain the standard provisions and conditions that are found in any
lease agreement. Its paragraph 12 then reads as follows:-
“The tenant shall deposit with the landlord the sum of $10,000=
(ten thousand dollars) as part of the deposit.
Rent to buy: and shall pay at list (sic) half of the agreed amount of $215,000=
in August 1995. If the tenant fails to pay then the tenant will be renting only
at $1,200= per month.”
After considering the whole agreement and its import in
light of the evidence before it, the court a quo rejected the appellant's
interpretation of the document and stated as follows:
“It is apparent from the above that the agreement between
the parties was an agreement to lease with an option to purchase. It is quite
clear that for the agreement lease (sic) to convert into an Agreement of Sale
the plaintiff had to fulfill certain conditions, namely, the payment of the $10,000=
deposit and the payment of half of the purchase price. The plaintiff does not
plead that he fulfilled any of the two conditions…,.”
I do not find any fault with this finding nor the reasoning
behind it. The agreement signed by the parties is clear in its terms and
meaning, and specifically articulates its composite nature by making reference
to both 'lease' and 'option to buy.' I am not persuaded that the parties, in
the light of this, could have understood the agreement to be anything other
than what it says.
The appellant's first ground of appeal, which suggests that
the agreement was one of a 'lease to buy' the property in question, accordingly
has no merit.
Having made the finding that the agreement signed by the
parties was one of a lease with the option to buy the property, I will now
consider whether, as claimed by the respondents, the appellant breached the
agreement.
To ascertain this point, one only needs to turn to the
record of proceedings in the trial court.
The appellant himself testified at the trial, and part of
what he said, in my view, decisively answers the question;
“Q: Possibly, just in winding up, do you confirm that as of
the 15th of June 1995, if we are to go by the letter on page 11 of
the bundle of documents, the last paragraph. The Dhlakamas were still ready to
accept the sale agreement if you had paid the full price by August 1995?
A: Yes, I can see that.
Q: You did not pay?
A: Yes. (sic)
Q: Of course you have said that the amount which you have already
paid now amounts to about ZWD61,592=.
A: Yes.
Q: That is the amount since January 1995?
A: Yes.
Q: You are still paying monthly rentals at ZWD1,200=?
A: No.
Q: How much are you paying?
A: I'm not paying.
Q: Since when have you not been paying?
A: For some time.
A: Roughly when, you don't remember?
A: I think it was
around May when I made the last payment….,. “
Later, as the cross examination continued, the following is
recorded;
“Q: The agreement goes on to say the rent to buy, I (sic)
shall pay at least half of the agreed amount of ZWD215,000= in August 1995.
A: Yes.
Q: Did you pay half the purchase price on that date?
A: No….,.”
The appellant thus admitted not only that he failed to pay
half of the ZWD215,000= purchase price by due date, but also that he failed to
pay the monthly rentals of ZWD$1,200=, to allow him to remain as a tenant.
I find this testimony to be quite damaging to the
appellant's case since its effect was to concede the case brought against him
by the respondents.
This brings me to a consideration of the appellant's second
ground of appeal, that concerning
the absence of 3 months' notice to him, of the cancellation of the
agreement as required by section 8(2) of the Contractual Penalties Act.
Section 8 of the Contractual Penalties Act provides as
follows:-
“8 Restriction of sellers'
rights
(1) No seller under
an instalment sale of land may, on account of any breach of contract by the
purchaser -
..,.
(b) Terminate
the contract;
unless he has given notice in terms of sub s (2) and the
period of the notice has expired without the breach being remedied, rectified or discontinued, as the
case may be.
(2) Notice for the purposes of subsection (1) shall…,.”…,.
Section 8(2) of the Contractual Penalties Act clearly
relates to agreements of sale by instalment.
The court a quo's finding, which I find to be sound, was
that the parties' agreement was one of lease with an option to buy. It was not
an Agreement of Sale. It is not in dispute that the appellant did not exercise
the option to buy the property; a circumstance that resulted in the agreement
maintaining the status of a lease agreement only. That being the case, the
finding of the court a quo, to the
effect that section 8(2) of the Contractual Penalties Act did not apply to the
circumstances of the case, is, in my view, unassailable.
I find that the appellant's second ground of appeal, like
his first one, lacks merit….,. The appeal ought to be dismissed.
It is accordingly ordered as follows -
The appeal be and is hereby dismissed with
costs.
