NDOU J: The
applicant seeks an order in the following terms -
"It is ordered that:-
a)
Respondent
be and is hereby ordered to transfer stand number 12483 Pumula South, Bulawayo
in applicant's name and hand over the title deeds to him.
b)
In
the event that respondent, for whatever reason, fails or neglect to act in
terms of para (a) within 14 days of this order above, the Deputy Sheriff be and
is hereby ordered and authorized to act in the place and stead of respondent in
order to effect transfer of the said property into applicant's name.
c)
Respondent
be and is hereby ordered to pay the costs of this application."
The salient facts of the matter are the following. The
applicant and the respondent entered into a written agreement where the
respondent sold stand number 12483 Pumula South on 14 February 2003 to the
applicant. The purchase price was Z$4
500 000,00 which was supposed to be paid through Overhead Accord Property
Consultants. The following appears in
clauses 3 and 5 of the agreement -
"3. MODE OF
PAYMENT
a.
The
Purchase shall pay to the Seller the sum of $3 000 000,00 (Three million
dollars) to Overhead Accord Property Consultants Trust account as deposit.
b.
The
balance of $1 500 000,00 will be paid on or before the 28th of
February 2003.
4. THE
PROPERTY .
5. GENERAL
CONDITIONS
a. .
b. the
right of either party shall not be in any way affected by an extension or
indulgence or concession which one party may grant to the other in respect of
the performance or either party's obligations."
Further, clause 10 provides -
"10. BREACH
a)
If
the Purchaser fails to pay the purchase price the seller has legal right to
cancel this agreement and enforce any other right the Seller may have at law."
There was no provision for giving any notice of intention to
cancel the agreement.
On 2 May 2003, respondent wrote a note purporting to cancel
the agreement of sale between the parties.
The note was served on the agent who was handling the sale
agreement. The applicant submitted that
the provisions of section 8(1) of the Contractual Penalties Act [Chapter 8:04]
("the Act") applies to this case. I do
not agree. The agreement does not require
payment to be made "in three or more instalments; or by way of a deposit and
two or more instalments .". All that
this agreement requires is a deposit of $3 000 000,00 and balance of $1 500 000,00 to be paid on or before 28
February 2003. It therefore does not
meet the requirements of an instalment sale of land as defined in section 2 of
the Act. In any event, the applicant
made payment by a deposit and one instalment.
Further, the agreement does not provide that the property would only be
transferred to the respondent after the purchase price had been paid in
full. This is also a requirement in
terms of section 2, supra - Preston v
Charuma Blasting & Earthmoving Svcs & Anor 1999 (2) ZLR 201 (S) at
203E-G.
I now propose to consider whether the "Withdrawal Note" dated
2 May 2003 constitutes a proper notice of cancellation of the agreement between
the parties. The note reads -
"RE: WITHDRAWAL NOTE
I, Dingani Tshuma, I.D. No. 29-174335 H 29 am terminating the
agreement of sale of my property number 12483 Pumula South with immediate
effect. This was between T Gwamure and
me and have no further involvement with the Overhead Accord Property Consultants,
from this date on.
(Signed)
Dingani
Tshuma
Witness: Maxwell
Tshuma"
It is clear from the respondent's opposing affidavit that the
said agents Overhead Accord Property Consultants were acting on his behalf and
not the applicant. This is evinced by
his averment in paragraph 3, wherein he concedes that they were "instructed by
my girlfriend Suzan Dube."
On the notice of cancellation it is trite that it must be
clear and unequivocal and takes effect from the time it is communicated to the
other party - R H Christie, Law of
Contract in South Africa 3rd Ed at 397, du Plessis v Government of
the Republic of Namibia 1995 (1) SA 603 (NH) at 605E and Zimbabwe Express Svcs (Pvt) Ltd v Nuanesti Ranch (Pvt) Ltd 2009 (1) ZLR
326 (S) at 330. A notice of intention to
cancel must be such that the other party is or ought to be aware of its nature,
but it is not necessary to use the word "cancellation". The intention to cancel may be made
sufficiently clear in other ways. The fundamental
flaw in the notice of cancellation in this case is that it was not communicated
to the applicant. Instead, the
respondent communicated it to his own agent who apparently did not communicate
it to the applicant as evinced by the fact that the agent received the
outstanding balance on 18 August 2003.
In any event, the termination of mandate given to the agent was not
communicated to the applicant by the respondent. At the end of the day the applicant was not
given notice of the intended termination of the agreement.
Finally, the contract was not lawfully terminated. The applicant paid the purchase price in full
to the respondent's agent as provided for in the written contract. Applicant is entitled to the order
sought. This kind of order is at my
discretion - Farmers Co-operative Society
v Berry 1912 AD 343 at 350; Benson v South Africa Mutual Assurance Society 1986 (1) SA 776 (A) at 783C-D
and Zimbabwe Expresses Svcs - case, supra, at 332G-D 333D. On the issue that the respondent was forced
by his girlfriend and her father to sell the house there is also no merit. The respondent does not allege that applicant
in any manner forced him into the agreement, or that applicant acted in any
manner that could cause the contract to be said to be void or voidable. He does not allege that applicant was acting
in collusion with the people who respondent claims put him under pressure. The applicant is an innocent third party who
entered into the contract with respondent and the contract is effective. The respondent did not take this court into
his confidence and divulge the so-called pressure on him. In the absence of
lawful termination of the agreement the contract has to be enforced.
Accordingly, it is order that:-
1)
The
respondent be and is hereby ordered to transfer stand number 12483 Pumula
South, Bulawayo into applicant's names and hand over the title deed to him.
2)
In
the event the respondent fails to comply with paragraph (1), supra, the Deputy
Sheriff, Bulawayo be and is hereby directed and authorized to act in the place
and stead of the respondent in order to effect transfer of the said property
into applicant's name.
3)
The
respondent shall bear costs of this application on the ordinary scale.
Messrs Moyo & Nyoni, applicant's legal practitioners
R. Ndlovu & Co,
respondent's legal practitioners
