GARWE
JA:
This
is an appeal against the judgment of the High Court directing the
appellant to fully service residential stands in Phase 1 of the Knowe
Housing Development in Norton.
The
facts of this case are these.
The
appellant, a private company, is a property developer whilst the
respondent is an association of residents of the Knowe Housing
Development who in 1998 entered into agreements of sale with the
appellant in their individual capacities for the purchase of
residential stands.
The
association was formed by the residents in order to compel the
appellant to carry out its obligations in terms of the various
contracts it had entered into with the various individuals who form
the association.
The
High Court found that the appellant had breached the terms of
agreement between itself and the residents in regard to Phase 1 of
the development. Consequently the court granted an order directing
the appellant to fully service phase 1 of the Housing Development
within 90 days and in particular to connect to all stands reticulated
water, sanitary systems, tarred roads and a proper drainage system.
Dissatisfied
with that order, the appellant appealed to this Court on the grounds
that:
(a)
the court a quo had erred in finding that the respondent had locus
standi in judicio to institute the proceedings; and
(b)
the court a quo had erred in rejecting the appellant's contention
that it had complied with its obligations in terms of the relevant
development permit.
At
the hearing of the matter before this Court Mr Mazonde for the
appellant abandoned the other grounds of appeal and attacked the
judgment of the court a quo on the sole basis that there were
material disputes of facts which were incapable of resolution on the
papers and for that reason the matter should either have been
referred to trial or dismissed.
The
sole issue for determination before this Court therefore is whether
the court a quo erred in resolving the disputes raised on the papers
without hearing evidence.
In
terms of condition 27 of the development permit issued to the
appellant by the second respondent, the appellant was obliged at his
own expense to: “provide all infrastructural services viz roads,
electricity, water mains and sewerage disposal, to the specification
approved by and to the satisfaction of Norton Town Council and all
such services shall be handed over to council at a date to be agreed
upon by the two parties involved.”
In
its founding papers before the High court the first respondent
alleged that the appellant had breached the contract in various
respects.
The
first respondent alleged that although the appellant had tarred the
roads in phase 1 it had done so in a substandard manner, that no
proper drainage system had been constructed and tapped water was not
available at all the stands. The first respondent further alleged
that no street lighting had been put in place and social amenities
such as schools and clinics were still to be constructed.
In
its opposing affidavit the appellant asserted that it had done its
best to carry out its obligations under the difficult economic
conditions prevailing in Zimbabwe and that it was on course to
completing its obligations.
It
further stated that although there were no tarred roads in phases 1
and 2, it had acquired state of the art equipment in order to carry
out this task.
The
appellant further stated that the roads had not been tarred because
of the scarcity of diesel and unavailability of tar in Zimbabwe.
However
the appellant also stated that the road network in phase 1 had been
done satisfactorily by a Chinese Sub-contractor.
The
appellant further remarked that no drainage system had been put in
place because the tarring of the roads had to be completed first.
Culverts too were to be constructed after the roads had been tarred.
The drainage was not as bad as suggested by the first respondent.
The
appellant also stated that water mains had been installed and what
remained was for the individual stand holders to apply for
connections.
As
regards street lighting the appellant submitted that this could only
be attended to once the roads had been tarred.
Lastly
the appellant remarked that it had not deliberately avoided fully
servicing the area but had been constrained by factors beyond its
control and that if given three months it would ensure that the roads
are completed.
In
its opposing papers the second respondent highlighted the fact that
the appellant had not successfully completed phase 1 and therefore
should not have embarked on phases 2 and 3 of the development
project.
In
determining that the appellant was in breach of its contractual
obligations the court a quo remarked at page 6 of the cyclostyled
judgment:
“It
was quite apparent from the papers before me that the first
respondent was indeed in breach of the terms of his contract in
regard to phase one of the development. The applicant through its
members has complied with their part of the contract and paid for the
stands in full. In my view they may properly seek an order for
specific performance. In its opposition the first respondent argued
that the court should not exercise its discretion in favour of the
applicant as the obligation was too onerous for it to perform. The
excuses made by the first respondent relating to unavailability of
diesel and tar were in my view merely an excuse as the applicant
could carry out its obligations if it was diligent in its efforts.
Whilst the court takes judicial notice of the socio-economic
hardships complained of it also notes that other successful
developments have continued in spite of these challenges.
The
second issue raised by the first respondent was that there was no
time frame for performance in the permit and they were therefore
still in the process of completing the task.
This
in my view was no defence to the order sought by the applicants.
Whilst
it is noted that the permit does not indeed give a time frame within
which the infrastructural development must be carried out, it is an
implied term of the contract that performance must be conducted
within a reasonable time.
In
reading an implied term into a contract the court must of course be
bound by the principles set out in case law. (See Mullin (Pvt) Ltd v
Benade Ltd 1952 (1) SA 211).
The
applicants in this case entered into the contracts with the first
respondent in 1998. This application was filed on 22 June 2005.
Clearly the time lapse between the time of entering into the contract
and time for performance exceeds by any stretch of the imagination
the definition of a reasonable time.
In
my view a period in excess of six years is no longer a reasonable
time even in these challenging times.”
On
the facts of this case, I am in no doubt that the court a quo was
correct in determining the disputes on the papers.
The
appellant had obligations which it had failed to discharge even at
the time of the hearing of the matter before the High Court in
November 2006. The second respondent had still not issued the
appellant with a certificate of compliance.
The
appellant does not dispute in its papers that it had not discharged
all its obligations in terms of the permit. Instead the appellant
states that it did the best in the prevailing socioeconomic situation
and that it was on course to discharging its obligations under the
contract.
The
second respondent in its papers states that the servicing of phase 1
had not been completed.
The
remark by the appellant that the drainage is not as bad as portrayed
is an admission that the work was not complete. Indeed the appellant
admitted that work was still to be done in tarring the roads,
constructing a drainage system and providing amenities.
The
dispute on the facts could be resolved without hearing evidence. The
position is now well established that:
“in
motion proceedings a court should endeavour to resolve the dispute
raised in affidavits without the hearing of evidence. It must take a
robust and common sense approach and not an over fastidious one;
always provided that it is convinced that there is no real
possibility of any resolution doing an injustice to the other party
concerned.”
See
Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC) at
339 C-D.
I
agree with the submission by the respondent that the dispute was not
so much on the substance but rather on the extent of non-compliance.
I find no basis upon which the approach taken by the court a quo can
be impugned.
The
appeal is without merit. It is accordingly dismissed with costs.
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
Scanlen
& Holderness, appellant's legal practitioners
Lofty
& Fraser, first respondent's legal practitioners
Muskwe
& Associates, second respondent's legal practitioners
