The
brief background to the matter is as follows:
On
11 March 2013 the plaintiff instituted an action against the
defendant. The relief claimed, as set out in the summons, is as
follows:
“(a)
Delivery (of) one acre of land in Gweru Town, or, alternatively,
payment in the sum of US$52,000= being current market value thereof
together with interest thereon at the prescribed rate of interest
with effect from date of summons to the date of payment in full.
(b)
Costs of suit.”
According
to the plaintiff's declaration, the claim was founded upon an
agreement concluded in March 2000 in terms of which the defendant
sold to the plaintiff “five acres of land which was a portion of
Gwelo Smallholding 1A”. The plaintiff makes the following further
averments in his declaration:
“4.
In terms of the agreement, the sale was subject to a subdivision
permit being granted in terms of the Regional, Town and Country
Planning Act.
5.
There were delays in the subdivision of the property and the
plaintiff left for the United States of America for studies.
6.
In 2011, Defendant delivered to plaintiff a subdivision of four (4)
which he represented to be five (5) acres.
7.
Upon discovering the discrepancy, plaintiff demanded delivery of the
remaining one (1) acre and defendant agreed to deliver the additional
one acre.
8.
The equivalent (sic) current market value of one acre of land in the
area is $52,000=.
9.
Despite demand, defendant has failed, neglected and/or refused to
deliver the remaining one acre of land or to pay the current market
value of such land in the City of Gweru in the sum of US$52,000=.”
The
summons and declaration were served upon the defendant on 26 April
2014. The defendant did not enter an appearance to defend and was
accordingly barred.
Following
the automatic barring of the defendant the plaintiff made a chamber
application for default judgment. The application was accompanied by
an affidavit and a draft order in terms of which the plaintiff asked
for the same relief set out in the summons. In paragraph 7 of that
affidavit the plaintiff avers that “the figure of US$52,000= is the
current monetary equivalence of one acre piece of land in the City of
Gweru.” He further states the following in paragraph 8 of the same
affidavit:
“To
arrive at this figure, I made consultations with the City of Gweru
who advised me that currently they are selling properties in similar
areas for US$13 per square metre. I also consulted private estate
agents in the City of Gweru who advised me that US$13 per square
metre is actually a conservative price. I attach hereto an extract
from the Herald dated 11 July 2013 which shows that private estate
agents actually sell low density properties like the one I bought for
US$15 per square metre as Annexure A.”
The
plaintiff attached a copy of a page from the classified
advertisements section of a newspaper as well as a copy of the
agreement of sale between him and the defendant. Clause 4 of the
Agreement of Sale states the following:
“That
notwithstanding the signing of here this agreement is subject to the
Seller applying for and obtaining a subdivision permit in terms of
the Regional, Town and Country Planning Act.”
When
the matter was placed before me I raised two queries:
(i)
The
first issue related to the validity of the Agreement of Sale given
the express admission in both clause 4 of the memorandum of agreement
and paragraph 4 of the plaintiff's declaration that there was no
subdivision permit which had been granted by the local authority at
the time that the agreement was concluded.
(ii)
The second query was whether the claim for the value of a one acre
property made in the alternative was a liquidated claim or a claim
for a debt which could be made through the chamber book in terms of
Rule 57.
I
also pointed out that in any event the affidavit filed did not prove
the amount claimed. The plaintiff initially responded to the queries
by letter but subsequently filed heads of argument. Nothing turns on
whether the claim was for a debt or liquidated demand for the
purposes of this judgment.
As
there was no subdivision permit in place at the time that the
Agreement of Sale was concluded, the agreement contravened section
39(1) of the Regional, Town and Country Planning Act [Chapter
29:12]
which provides as follows:
“Subject
to subsection (2), no person shall –
(a)…,.
(b)
Enter into any agreement –
(i)
For the change of ownership of any portion of a property; or
(ii)…,.;or
(iii)…,.;
(c)
Except in accordance with a permit granted in terms of section
forty.”
When
I raised the issue of the validity of the agreement of sale I drew
the attention of the plaintiff's legal practitioner to the case of
X–Trend-a-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd
2000
(2) ZLR 348 (S). In that case, the court held that a contract made in
contravention of the provisions of section 39(1) of the Regional,
Town and Country Planning Act [Chapter
29:12]
was illegal and unenforceable.
See
also Tsamwa
v Hondo & Ors
2008
(1) ZLR 401 (H); Mikesome
Investments (Pvt) Ltd v Silcocks Investments (Pvt) Ltd
2003
(2) ZLR 56 (H)…,.
The
plaintiff admits the illegality of the agreement. He, however,
submits that this is an appropriate case for the court to enforce an
illegal contract in order to prevent unjust enrichment to the
defendant. Reliance has been placed on the authority of the court to
relax the application of the in
pari delicto potior est conductio possidentis
rule
in an appropriate case.
That
rule means that where the parties to a contract are in equal guilt
the party in possession will prevail. The implications of the rule
were explained in the following terms by GOWORA J…, in the case of
Madziyire
v Makwabarara & Ors
2011
(1) ZLR 131 (H)…,.:
“The
effect of this rule is that where something has been delivered
pursuant to an illegal agreement the loss lies where it falls. The
objective of the rule is to discourage illegality by denying judicial
assistance to persons who part with money (and) incorporeal rights in
furtherance of an illegal transaction. But, in suitable cases, the
courts will relax the par
delictum
rule
and order restitution to be made. They will do so in order to prevent
injustice on the basis that public policy 'should properly take
into account the doing of simple justice between man and man'.”
The
authority of the court to relax the application of the par
delictum
rule, in appropriate cases, is settled. Evans
v Snapper
2004
(2) ZLR 121 (S); Logan
v Sibiya
2002
(1) ZLR 531 (H); Greebe
& Anor v Famaps Investments (Pvt) Ltd
2004
(1) ZLR 522 (H); Gambiza
v Taziva
2008
(2) ZLR 107 (H).
However,
as in the case of Madziyira
v Makwabarara & Ors
2011
(1) ZLR 131 (H)…,
the plaintiff in
casu
is
not asking for a refund of what he paid for the portion of land which
he alleges was not delivered. Instead, he is asking for specific
performance, in that he wants an order for the delivery of one acre
of land. The plaintiff makes an alternative claim for payment of
damages. In other words, the plaintiff is not asking for relaxation
of the par
delictum
rule
but is seeking enforcement of the agreement. If the court was to
grant that relief, which is for specific performance or payment of
damages, then it would be lending itself to an illegality. Dobrock
Holdings (Pvt) Ltd v Turner & Sons (Pvt) Ltd & Ors
2006
(2) ZLR 353 (H).
That
the court will not do.
That
is the approach which is consistent with the preponderance of
judicial thinking in relation to agreements concluded in
contravention of the provisions of section 39(1) of the Regional,
Town and Country Planning Act [Chapter
29:12].
As
for the question of costs, there was no opposition from the
defendant. Accordingly, it is appropriate to make no order as to
costs.
In
the result, IT IS ORDERED THAT:
1.
The plaintiff's claim be and is hereby dismissed with no order as
to costs.
