The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.

The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.

At the commencement of the trial, the plaintiff applied to amend the damages figure or the summons to read $9,792,245,000 000 instead of $7,800,000,000. The amendment was meant to address the effect of inflation on the original figure. Counsel for the defendant did not oppose the application for amendment. I granted the application for amendment, and, consequently, the plaintiff's claim herein is for:

“(a) An order that the defendant supply and deliver to the plaintiff a total of twenty (20) IBM A50 desktop computers forthwith alternatively an order that defendant pays to plaintiff a total of $9,792,245,000,000 representing the current value of the said computers.

(b) Interest on the amount representing the value of the computers from the date of summons to the date of payment; and

(c) Costs of suit.”

It is common cause, that, on 23 February 2005 the plaintiff ordered from the defendant a total of thirty (30) computers. Each computer was quoted at a price of $9,860,400, bringing the total cost, including V.A.T. payment, to $340,183,800. This amount was then paid in full on 28 February 2005. The defendant, however, only managed to deliver ten (10) computers on 2 March 2005. This left a balance of twenty (20) computers.

It is the non-delivery of these twenty (20) computers that has led to this court action.

The defendant explains non-delivery by citing the failure to obtain the requisite foreign currency allocation from the Reserve Bank of Zimbabwe through the auction system which was then in operation. It is the defendant's position that both parties were fully aware that the amount paid by the plaintiff would be utilised for the purchase of foreign currency in order to meet the requirements of the defendant's foreign supplier, namely, a company called 'TriContinental Limited' (Tri-Continental).

However, the plaintiff's position is that delivery was to be effected soon after payment and the total amount paid represented the full payment for the thirty (30) computers ordered.

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-

“(1) What were the terms of the Agreement between the parties?

(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving foreign currency allocation by the Reserve Bank of Zimbabwe.

(3) Whether the plaintiff is entitled to the order sought.

(4) Whether the defendant is liable to the plaintiff in damages.”

The plaintiff called two witnesses to support its case, and, through the witnesses, it submitted a total of nine (9) exhibits.

The first witness called by the plaintiff was Mr Patrick Gwara (“Mr Gwara”) who said he is currently employed by the plaintiff as a Stores Supervisor with the main responsibility of taking care of the plaintiff's stocks.

Mr Gwara testified that upon an evaluation of quotations the defendant was awarded the contract/tender to supply the plaintiff with thirty (30) computers. He said upon being paid the sum of $340,180,800 to cover the total cost of the computers, the defendant delivered ten (10) computers. The ten (10) computers were received by the plaintiff on 2 March 2005. That left a balance of twenty (20) computers already paid for.

It was Mr Gwara's evidence that at the time of placing the order with it, the defendant had indicated that it had twenty-five (25) computers in stock and 'it would get the other five (5)'.

He said, apart from paying the requisite purchase price for the computers, the plaintiff was not aware of the financial arrangements between the defendant and its suppliers.

He went further to say if the plaintiff had known that the defendant would face supply problems, it (plaintiff) would not have placed the order with the defendant. This was so because the computers were needed urgently for its Harare and Bulawayo offices.

Under cross-examination, Mr Gwara said he was not aware that his seniors had moved the delivery date to 1 July 2005 as indicted in the replication. He however maintained, that, as far as he was concerned, delivery was to be made soon after payment. He said that although the plaintiff had in the past accepted long delivery periods with respect to other contracts, this was not the case with respect to the thirty (30) computers because they were needed urgently.

The contract/tender had been awarded to the defendant on the basis that it had the computers in stock.

Mr Gwara denied knowledge of the offer by the defendant to refund the plaintiff. He said as far as he was concerned the plaintiff wanted delivery of the twenty (20) computers.

The second witness called by the plaintiff was Mr Mischeck Chigatse (“Mr Chigatse”). He said he is employed by the plaintiff as a Procurement Officer.

Mr Chigatse was, in that capacity, responsible for the procurement of goods and services for the plaintiff. He was, however, not aware of the issue of the thirty (30) computers since the contract had been entered into before he was employed by the plaintiff.

The witness, however, gave evidence on current prices of computers such as those forming the subject of the dispute herein. He said the prices ranged from $300 billion to $700 billion. His evidence was based on three (3) quotations obtained by the plaintiff. He said based on the quotations, the current price of a similar computer to the one that had been ordered by the plaintiff would be $489 billion.

The defendant called only one witness to support its case.

It called Mrs Doreen Nyamusara (“Mrs Nyamusara”). She said she joined the employ of the defendant in April 2005 as a Finance Manager but was, as from January 2008, promoted to the position of General Manager. She told the court that she was unaware of the details of the contract in issue since she joined the employ of the defendant when the contract had already been concluded. She was, however, involved in negotiations with the defendant's suppliers for the delivery of the remaining twenty (20) computers.

Mrs Nyamusara testified, that, at one stage the defendant had asked the plaintiff to participate in the auctions(s) for foreign currency. The plaintiff had refused to do so. She said after all efforts to obtain foreign currency had failed to produce results, the defendant had offered to refund the plaintiff. The plaintiff had, however, declined the offer, insisting that it wanted delivery of the computers.

Mrs Nyamusara also stated that the parties failed to resolve the matter amicably largely due to differences in the calculation(s) of interest. As a result of the differences, the matter was never resolved amicably. This was notwithstanding the fact that the defendant made a payment of $1,392,000 through the plaintiff's legal practitioners – which payment was still being held by the plaintiff's legal practitioners.

Under cross-examination, she agreed that the sum of $1,392,000 was too little to pay for the twenty (20) computers.

Also admitting that the type of computers originally ordered by the plaintiff had been phased out, Mrs Myamusara said a similar computer (ie A55 Lenovo) would, as per exhibit 24, cost $143,750,000,000.

Counsel for the plaintiff submitted that there was no doubt that delivery was to be effected immediately upon payment of the full purchase price. He said the issue of foreign exchange was only brought up in an effort to justify a clear breach of contract by the defendant. He said, that, in concluding the contract the issue of foreign exchange was never raised. He said the quotations which resulted in the award of the contract were in local currency – with the foreign exchange element having been taken into account. It was his view that if indeed the issue of foreign exchange had been a factor, the parties would have said so upon executing the contract.

He urged the court to dismiss the defendant's defence based on the shortage of foreign currency because it came as an afterthought.

Relying on RH CHRISTIE's The Law of Contract in South Africa 3ed, counsel for the plaintiff submitted that 'an impossibility to perform must be absolute'.

He argued that, in casu, that defence was not available, and, as such, the defendant was clearly in breach and was liable for the prejudice suffered by the plaintiff. To that end, counsel for the plaintiff prayed either for the delivery of the twenty (20) computers or payment of damages representing the current market value of the computers.

Counsel for the plaintiff submitted, that, if payment of damages were to be ordered, the sum of $9,792,245,000,000 would be reasonable because it would enable the plaintiff to procure the computers on its own. That value, he argued, had not been challenged.

The primary aim in asking for damages was to put the plaintiff to where it should have been were it not for the breach of contract by the defendant.

Counsel for the plaintiff further submitted that the issue of money paid to the plaintiff's legal practitioners should not be allowed to cloud the issues before the court. That money could still be recovered.

Counsel for the defendant submitted that the dispute was mainly on the issue of the delivery dates.

She said that the parties were not agreed on what was the delivery date. She, however, agreed that the defendant's only witness could not testify to the terms of the contract since it was concluded before she joined the defendant's employ.

Counsel for the defendant submitted, that, as per the plaintiff's replication, the delivery date in terms of the contract should have been 1 July 2005. That, according to her, meant there was no question of immediate delivery in line with the parties' conduct on previous supply contracts. She went further to suggest that the failure by Mr Gwara to explain the averment in the replication referring to 1 July 2005 supported the defendant's case in the sense that a delay of some four months after payment meant that the computers would be delivered only after the defendant had paid its supplier, namely, Tri-Continental. Payment involved foreign currency.

It was therefore counsel for the defendant's submission that the plaintiff, despite denial, was aware from inception that delivery of the computers would only be effected after the procurement of foreign exchange by the defendant. Accordingly, when that became impossible, it meant the defendant could no longer deliver as had been agreed.

The failure to obtain foreign currency was, in her view, a supervening impossibility which served to extinguish the defendant's obligations under the contract.

She said according to JOUBERT's General Principles of the Law of Contract, the defence of a supervening impossibility was available to the defendant. To that end, she quoted JOUBERT's General Principles of the Law of Contract …,where he states:-

“Performance may become either absolutely or relatively impossible after the conclusion of the contract. In the case of absolute or objective impossibility of performance the rule is undoubtedly that the duty of the debtor to perform is extinguished….,.”

On the basis of the above, counsel for the defendant submitted that it was improper for the plaintiff to insist on specific performance. In so doing, she argued, the plaintiff had contributed to its own loss.

She said the loss would have been mitigated if the plaintiff had accepted the refund offered in May 2005.

The defendant had, all the same, gone ahead to refund the plaintiff with a sum of $1,362,980=32. That money was still being held in trust by the plaintiff's legal practitioners. The amount, it was argued, had been calculated properly, and, therefore, the defendant's view was that the plaintiff had been refunded in full. There was therefore no basis for this action.

On the possibility of the court finding in favour of the plaintiff and ordering payment of damages, counsel for the defendant submitted that the figures quoted by the plaintiff were excessive and did not accurately reflect the current prices for the originally ordered computers.

She said although there was no case for damages, the defendant's own quotation of $143,750,000, would represent a reasonable figure.

The fact that the plaintiff's loss would have been mitigated if it had participated in foreign currency auctions or had accepted the refund as offered in May 2005 could not be ignored. Accordingly damages payable, if any, should be reduced, she argued.

Counsel for the defendant also urged the court to be cautious when evaluating Mr Gwara's evidence. She said this was so because Mr Gwara had denied knowledge of the refund issue yet there was evidence that correspondence on the issue was copied to him.

I shall, taking into account evidence from both parties' witnesses and submissions by their legal practitioners, now deal with the agreed issues for determination….,.

In dealing with this matter, I believe that a finding of whether or not delivery of the computers was subject to the availability of foreign currency to meet the defendant's suppliers' financial requirements will greatly narrow issues for consideration.

In order for that argument to succeed, the court has to be convinced, that, in paying the sum of $340,183,800 the plaintiff was fully aware that this was merely part payment which would go towards the purchase of foreign currency.

There must be evidence that the defendant made it clear to the plaintiff that delivery would be dictated by the availability of foreign currency to meet the requirement of Tri-Continental, its supplier. This is clearly so, because, apart from quotations and payment confirmations, the contract terms were not reduced to writing.

In casu, the evidence from papers and that led in court leads me to the conclusion that the defendant cannot avail itself to the defence of a supervening impossibility.

This is so because it is clear to me that the plaintiff gave the contract/tender to the defendant on the understanding that the computers were in stock and readily available. All what the plaintiff was required to do was to effect full payment and then delivery would follow immediately.

The defendant had indeed indicated to the plaintiff that it had the computers in stock - at least twenty-five (25) of them.

The plaintiff effected full payment on 28 February 2005. Payment was in accordance with the defendant's quotation for the delivery of thirty (30) computers.

Contrary to the defendant's legal practitioner's perception of Patrick Gwara, I found him to be a credible witness who knew exactly what took place when the contract was entered into between the two parties. His failure to know subsequent details of discussions between the plaintiff's senior management and the defendant's representatives, on the issue of delivery times and the refund, should not be allowed to carve a dent into his evidence.

The witness, Patrick Gwara, was adamant that the issue of foreign currency was never raised when the contract was granted to the defendant. He pointed out that if at all the plaintiff knew there would be problems of foreign currency the contract would not have been granted to the defendant. The plaintiff needed the computers urgently and the defendant had indicated that it had twenty-five (25) in stock and would look for the other five (5).

That evidence was never satisfactorily challenged in court.

All the defendant could say was that the computers were in stock at Tri-Continental.

Clearly, if that detail was necessary, the defendant could have revealed it to the plaintiff at the time of concluding the contract.

That was not done, and, as submitted by the plaintiff's legal practitioner, I hold the view that the price quoted in Zimbabwean dollars included the foreign exchange component.

Indeed, even upon the speedy delivery of ten (10) computers, there was no mention of a possible top up to cater for the foreign currency element required for the remaining twenty (20) computers.

It is also significant to note that full payment was made on 28 February 2005, and, within a few days (ie. 2 March 2005) ten (10) computers were delivered.

That reinforces the issue of immediate delivery upon full payment and the availability of computers in stock in Zimbabwe.

As already indicated, the defendant has also argued that failure to procure foreign currency rendered performance impossible, and, hence, the defence of a supervening impossibility.

As correctly argued by the plaintiff's legal practitioner, that defence is not available to the defendant.

Right from the inception of the contract, the defendant made the plaintiff believe the computers were in stock in Zimbabwe. That is why within three (3) days the defendant was able to deliver ten (10) computers.

The issue of foreign currency only came up as an excuse for failure to deliver.

I am, therefore, on a balance of probabilities, satisfied, that, upon making full payment on 28 February 2005, the plaintiff had fully discharged its obligation under the contract. That means, the issue of foreign currency was never raised when the contract was concluded and did not therefore form part of the contract terms.

Upon failure to reach an out of court settlement, the plaintiff remained ready to accept delivery. This remained the plaintiff's position up to the hearing of this matter.

To that end, I would reject the defence of a supervening impossibility because my finding is that, when the contract was made, the defendant assured the plaintiff of immediate delivery upon payment, as evidenced by the delivery of the first ten (10) computers. There was no basis for the plaintiff to ever think or imagine that the remaining twenty (20) computers were not in stock.

The contract was not subject to the defendant being availed foreign currency by the Reserve Bank of Zimbabwe. If indeed that were the case, the contract would have said so.

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-

“The Roman law principle that a contract is a nullity if, at the time it was made, it was impossible of performance forms part of our law.

'By the Civil Law, a contract is void if at the time of its inception its performance is impossible: impossiblium nulla obligatio (D50.17.185).'

But, the principle thus stated may easily be misunderstood and requires immediate qualification in four respects:

(i) First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract.

(ii) Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract.

(iii) Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract.

(iv) Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promises or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

In casu, there is nothing to suggest impossibility at the time of contracting or to suggest any conditionalities.

There is also nothing to suggest that the issue of foreign currency led to a complete paralysis of the defendant's business. To date, it is still in the business of selling computers.

As already stated, it is my finding that the defendant clearly represented to the plaintiff that he had the computers in stock, and, since the plaintiff needed them urgently, he gave the contract/tender to the defendant.

In breach of contract, and without any fault on the part of the plaintiff, the defendant delivered ten (10) computers only, leaving a balance of twenty (20) computers.

Clearly, therefore, and in line with the principles of law enunciated by R.H. CHRISTIE in the above quoted passage, the defendant is liable for specific performance or damages: see Lupu v Lupu 2000 (1) ZLR 120 (S).

The plaintiff still insists on specific performance or payment of damages to cover the cost of similar computers at today's prices.

I also did not hear the defendant to say it cannot perform.

The defendant is still in the business of selling computers.

Quotations were produced to indicate current prices for similar computers. The defendant produced one quotation and argued that the plaintiff's prices were for superior machines. The defendant said that a computer similar to the one originally ordered would cost $143,750,000,000. The plaintiff, however, believes that, in order for it to be put back to where it would have been had the twenty (20) computers been delivered, a sum of $9,792,245,000,000 should be payable in the event of failure by the defendant to deliver. That amount is based on quotations for each similar computer on exhibits 8 ($382,455,561,600), 9 ($489,622,500,000) and 10 ($776,250,000). Given the effects of inflation, the plaintiff recommended the midway price of $489,622,500,000.

The defendant, on its part, and despite denying liability, insisted that it was possible to procure similar computers at the price it quoted (ie. $143,750,000,000).

Counsel for the plaintiff submitted that the matter of a refund should not be allowed to cloud the real issues before the court.

I agree.

I believe the payment of $1,392,000, through the plaintiff's legal practitioners, only serves to confirm a failed attempt to settle the matter out of court. In any case, Mrs Nyamusara, who testified for the defendant, agreed that the money was too little to cover the cost of twenty (20) computers.

I hold the view that a party that is in clear breach should not be allowed to dictate the amount of damages that should be paid to the party that is not at fault, and, moreso, an innocent party that will have fully met its obligations under a contract. To allow that would be to encourage parties to pull out of contracts on the strength of their capacity to pay damages.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H), addressing the issue of specific performance, the late ROBINSON J…, had this to say:

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen, then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying, if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of breach. Businessmen at fault will, therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them….,.”

I fully endorse the above sentiments.

In view of the foregoing, and having determined all the issues raised…, in favour of the plaintiff, I believe that, in casu, the circumstances demand that the relief prayed for by the wronged party, the plaintiff, should be given favour by this court.

Accordingly, I order as follows:-

1. That the defendant be and is hereby ordered to supply and deliver to the plaintiff twenty (20) IBM A55 (Lenovo) desktop computers forthwith;

2. That, in the event of failure to deliver as indicated in 1 above, the defendant be and is hereby ordered to pay the plaintiff damages in the sum of $9,792,245,000,000 forthwith;

3. That the amount referred to in 2 above shall be payable with interest at the prescribed rate from the date of summons to the date of payment; and

4. That the defendant shall bear the costs of this suit.

According to Martin Makomva, the current cost of a bottle and cap is US23 cents. The money paid by the plaintiff, in November 2007, only covered the cost of what was actually supplied, and, therefore, the balance of the plaintiff's order cannot be met at current prices.

The entire contract was premised on the continuation of the Basic Commodities Supply Side Intervention Facility (BACOSSI) facility….,.

Under cross-examination, Albert Chitapi explained the sequence of the conditions set out in the defendant's standard form quotation [Exhibit 4] as follows:

(a) The quotation is sent to and received by the customer;

(b) The latter must confirm availability of the product before making payment;

(c) After confirmation, the customer effects payment;

(d) Delivery of the product then commences.

The price change stipulation only comes into play before confirmation of product availability and before payment of the purchase price is effected. Once product availability is confirmed and the purchase price is paid, any price change cannot be imposed.

In the instant case, the plaintiff did not confirm the availability of the goods between the date of the quotation and the date of payment. Nevertheless, despite that failure to confirm, the defendant accepted the plaintiff's payment of $53 billion as the full purchase price. Moreover, the defendant only increased the unit prices on the 24th of December 2007 after National Incomes and Pricing Commission (NIPC) approval of the new pricing structure.

Contractual Conditions

The principal issue for determination in casu is whether the defendant is absolved of its liability to deliver the balance of the plaintiff's order by virtue of the conditions pleaded in paragraph 2 of its plea as amended. In essence, the defendant's plea is that delivery of the remaining goods was subject to;

(a) The continued availability of the BACOSSI facility; and

(b) The express term stipulated in the quotation that prices were subject to change at any time without notice.

As regards the BACOSSI facility, there is little doubt that the defendant's pre-existing access to the facility was the principal factor that enabled it to charge a considerably lower price for the products required by the plaintiff and that this in fact influenced the plaintiff to enter into the contract with the defendant. However, there is nothing in the testimony or documentation before this Court to indicate that the continued availability of the facility, after the plaintiff's order had been placed and confirmed, was a condition upon which the contract was premised. Moreover, the fact that the defendant's access to the facility would cease after one month was never communicated to the plaintiff at any stage before the conclusion of the contract.

The plaintiff's order was to be fully delivered within 5 weeks (according to Lishon Chipango) or 6 to 8 weeks (according to Martin Makomva). The first indication of the BACOSSI facility having terminated was only given at a meeting between Lishon Chipango and Martin Makomva on the 24^th of January 2008 - almost 11 weeks after payment of the full contract price had been effected. On these facts, it is abundantly clear that the continued availability of the BACOSSI facility was not a condition for the due performance of the contract between the parties.

As for the conditions set out in the plaintiff's quotation, it is clear that the price change stipulation could only have come into play before confirmation of product availability and before payment of the purchase price was effected. In this respect, Albert Chitapi had no option but to concede that once product availability was confirmed and the purchase price was paid, any subsequent price change could not have been contractually imposed.

In the instant case, Lishon Chipango met with Albert Chitapi on the 15^th of October 2007 to confirm the defendant's capacity to deliver 700,000 bottles and caps over a period of 5 weeks. On the 18^th of October, the defendant forwarded its quotation for the 700,000 bottles and caps. Thereafter, Lishon Chipango called Albert Chitapi to re-confirm the price and, having reconfirmed the price, he proceeded to effect payment of the full contract price of $53 billion on the 9^th of November. On the 13^th of November, Albert Chitapi confirmed receipt of the payment by the defendant. Subsequently, on the 20^th of November, the parties confirmed a delivery plan and the defendant then commenced delivery of the bottles and caps.

Given this sequence of events, it is very clear that the defendant accepted the plaintiff's payment of $53 billion as the full purchase price before commencing delivery of the contracted goods. Thereafter, the defendant was contractually precluded from changing the purchase price as it purported to do on the 24^th of December 2007. Indeed, it would be absurd, in any commercial transaction, to allow the seller to alter the contract price after he has accepted the agreed amount in full payment and begun delivery of the contracted goods in accordance with an agreed delivery plan.

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they:

During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known as Stand 1124 Samaita Crescent, Ruwa. The lease was concluded on 18 August 1999 but was effective from July 1999 and would endure for a period of six years.

On 2 December 2003, Peter Kandeya entered into an agreement with Aston Musunga in terms of which the latter purchased a piece of land called Stand 3408 Gora Crescent, Ruwa. Although there seems to be a difference in the Stand numbers and the street address it is clear from the lease agreement between Peter Kandeya and the third respondent that it is in fact the same Stand. On the same day that the two concluded an agreement of sale, they also entered into an agreement of lease wherein Peter Kandeya leased the property in question from Aston Musunga. The lease was to expire after six months.

According to the founding affidavit deposed to by the applicant, on 21 June 2005, Aston Musunga then donated Stand 3408 Gora Crescent, Ruwa to him.

The Deed donating the property to the applicant has not been produced.

I do not doubt that indeed such donation took place. It is on the basis of this donation that the applicant seeks that the first respondent cede and transfer her right, title and interest in Stand 3408 Gora Crescent, Ruwa to himself.

The third respondent has opposed the granting of the relief on the basis that, as the owner of the Stand, his written consent to the alienation had not been sought prior to Peter Kandeya entering into any agreement for the transfer of rights that Peter Kandeya had in the lease agreement.

The first respondent contends that the Agreement of Sale being alleged by the applicant is null and void ab initio due to the provisions of clause 12 of the lease agreement governing the relationship between the deceased and the third respondent.

In Nkomo v Mujuru 1997 (1) ZLR 155, ROBINSON J found that an agreement of sale in respect of premises subject to an agreement of lease with the Government as lessor wherein the prior written consent of Government was required before rights therein could be alienated, whilst not being void ab initio, was, nevertheless, unenforceable against the Government at the instance of the seller or purchaser of rights accruing from the lease.

In my view, this clear legal position and the stance adopted by the third respondent herein, that it would not consent to the order being sought, should have alerted the applicant and his legal practitioner that there would be very little mileage to be made in pursuing this court application further.

It should have occurred to the applicant and his legal practitioners that Aston Musunga had to obtain cession of rights from Peter Kandeya before the donation could be effective in favour of the applicant in which case a real right would have been donated. However, wiser counsel did not prevail and the applicant proceeded regardless.

Despite the fact that the applicant did not conclude an agreement with the first respondent or the deceased, the applicant seeks an order for specific performance for the cession of rights in the Stand to himself.

I have not been addressed on the legal premise on which I should find that the first respondent is obligated to transfer rights in the Stand to the applicant. There is no agreement between the two parties, and, as such, the applicant has not advanced any cause for this court to find that he is entitled to the relief that he is seeking.

When I questioned the applicant's counsel on the issue I was advised that the practice was that a party in the shoes of the applicant could sue for the transference of such rights. Her response was indicative of knowledge that this practice was not grounded on any principle in law. Nevertheless, she persisted to argue that the applicant was entitled to an order of specific performance.

I was unable to understand the submission, as it was not backed by legal principle.

There is no privity of contract between the applicant and the first respondent. In the circumstances, I find myself unable to accede to the applicant's prayer for relief in the terms sought.

The second respondent, the Ruwa Local Board, did not file an opposing affidavit to the application but a letter written by the Board to the applicant has been attached to the papers filed by the respondent.

The letter, dated 26 September 2006, clearly stated that the applicant was in occupation of the Stand in question without having met stipulated conditions for such occupation. It also advised that the purported sale between Peter Kandeya and Aston Musunga was illegal and of no force and effect in the absence of the consent of Government. Therefore, the donation by Aston Musunga to the applicant was itself null and void. He was further informed that the property was now being dealt with as part of the deceased estate of Peter Kandeya.

It does not seem as if the applicant was in the mood to heed this advice. He did not respond to the letter and did not suspend his building operations.

His position is unenviable as he is unable to prove the alleged contract between Peter Kandeya and Aston Musunga. As the receipient of a free Stand he cannot drag Aston Musunga to court for an order of specific performance for the transfer of rights in the Stand to him.

Aston Musunga did not however obtain a real right from Peter Kandeya when he “purchased” the said Stand. All he obtained were personal rights against Peter Kandeya. Since Aston Musunga did not obtain real rights he could pass no better right to the applicant and without Aston Musunga having been joined to the dispute the applicant's case has no starting point as it is the alleged rights that Aston Musunga “purchased” which are in issue. Without Aston Musunga having obtained rights the applicant cannot claim from the estate of Peter Kandeya, and, in the circumstances, I find that there is no merit in the application.

The application is therefore dismissed. The applicant is ordered to pay the costs of the first and third respondents.

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983.

He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant was appointed executor of his estate.

He left, in his estate, an immovable property known as the remainder of subsection B of subsection C of Lot 9 of Hatfield Estate measuring 6,359 square meters otherwise known as Number 11 Chedgelow Road, Logan Park, Hatfield Harare (“the property”) which was to devolve upon his two minor children.

The second defendant was the brother of the first defendant. He was mandated by the first defendant to administer the estate on her behalf through a general power of attorney.

Following the registration of the estate and the issuance of the Letters of Administration by the Master of the High Court (the Master) the first and second defendants entered into an Agreement of Sale with the plaintiff and sold the property. Transfer was not effected to the plaintiff. In 2005 the third and fourth defendants sold and transferred the property to the fifth defendant.

The plaintiff issued summons out of this court seeking a declarator that transfer of the property to the fifth defendant by the third and fourth defendants is wrongful, unlawful and fraudulent as he had already purchased the property from the estate. He seeks an order for the cancellation of the transfer and an order for specific performance in terms of his contract. In the alternative, he seeks an order for damages against the first and second defendants in the sum of Z$4,5 billion….,.

Section 122 of the Administration of Estates Act [Chapter 6:01] deals with disposal of estate property where minors have an interest in such property.

Section 122 of the Administration of Estates Act provides as follows:

"In cases where minor heirs are interested in property inherited from the estate of any deceased person, the Master may apply, through the chamber book, to a judge in Chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge make such order as in the circumstances he considers advisable."…,.

In this case, the Master of the High Court's consent was never sought in accordance with section 122 of the Administration of Estates Act [Chapter 6:01].

Where a provision prescribed by statute is not followed then it renders the contract void.

In the case of Schiourt v Minister of Justice 1926 AD 99…, INNES CJ held as follows:

"It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done - and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act."

The same sentiments were expressed by SANDURA JA in the case of Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 where the respondents had not complied with the provisions of the Code of Conduct in suspending an employee. He stated as follows;

"There is no doubt in my mind, whatsoever, that it was null and void. It was a complete nullity. In this respect, I can do no better than quote what LORD DENNING said in McFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

'If an act is void then it is, at law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without further ado though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'"

Turning to the facts at hand, it is my view that the plaintiff's case falls on this basis.

The agreement which he entered into with the executor of the estate was null and void as it related to property in which minors had an interest and no authority to sell was sought either from the Master of the High Court or from the court for such sale.

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

The plaintiff in this matter is an English teacher at a local girls school. In August 2007, he was in the process of building a residence for his family in one of Harare's suburbs. He approached the defendant for steel as per the diagram drawn up by his engineers. He was given a quotation of the cost of the material that he required. Some days later, he returned to the defendant and made payment of the amount reflected on the quotation by way of a bank transfer.

He furnished the defendant with proof of payment and was promised delivery of the steel.

He checked on progress of the delivery and was advised to give the defendant a few more days. He checked again and was referred to the defendant's Branch Manager at the Harare outlet. He was informed that the defendant was having difficulties in obtaining some of the steel that he had ordered and that the defendant was in fact considering refunding to him the amount he had paid for the steel that was unavailable. He insisted on getting all the steel that he had ordered from the defendant.

He then sought legal advice on the matter and after he had delivered a letter of demand from his legal practitioners, to the defendant, he received delivery of the bulk of the steel he had ordered, save the two items that form the subject of this suit.

On 16 October 2009, he discovered that the defendant had reversed part of his electronic money transfer and had returned into his account the cost price of the steel that had not been delivered. He, in turn, reversed the re-deposit. On the advice of his engineers, he bought part of the steel that the defendant had failed to deliver from some other source to protect his building project from the rains. Still aggrieved by the defendant's failure to deliver the outstanding items, he caused summons to be issued out of this court claiming delivery of the 2.147 tonnes of Y12 steel and the 0.085 tonnes of ANN wire.

The suit was defended.

In its plea, the defendant, whilst admitting that it gave the plaintiff the quotation that was adduced into evidence by consent, averred that at the time of giving him the quotation, the plaintiff was advised that the Y12 and ANN wire were not in stock and were currently not available in the country and may have to be imported. It was further averred that the plaintiff agreed to wait on his entire order until the two items of steel were available. The defendant thus conceded, in its plea that, the Y12 and ANN wire remained undelivered as it failed to source the two products locally and also failed to access foreign currency to import the steel. It denied that, in the circumstances, it was liable to deliver the outstanding steel to the plaintiff as claimed.

At the trial of the matter, the plaintiff gave evidence.

His narration of the facts, which are largely common cause, is as captured in the opening paragraph of this judgment. It was his specific testimony that he was not advised, at the time he made payment to the defendant for the entire order, that the defendant was experiencing any difficulties in procuring the Y12 and ANN wire. He was only told this after he had checked with the defendant's Branch Manger as to why his order was delaying after he had made the requisite payment. He did not know where the defendant was sourcing its steel. When he was advised that the defendant had secured some of the steel that he had ordered, he informed the defendant that he would wait until all the steel he had ordered was available.

The witness gave his evidence very clearly. He came across as a firm and unyielding man. Under cross –examination he remained firm that all he wanted was the steel that he had paid for. He was clear that he was not seeking damages from the defendant but was simply holding the defendant to the contract that it has concluded with him.

While the witness was quite firm about the propriety of his claim in the circumstances, I did not believe him when he testified that he was not made aware of the unavailability of the Y12 and ANN wire when he made payment. Given the unyielding stance that he has revealed in the witness box, it is most unlikely, in my view, that he would have accepted the delay in the delivery of the entire order had he been unaware that part of the order was unavailable at the time. It appears to me that he was prepared to wait for the defendant to receive the items from its supplier because he was aware that the products were not in stock at the time. According to his testimony, it was only when the defendant sought to refund the cost price of the outstanding steel that he sought legal advice on the matter and decided to hold the defendant to the written quotation.

After testifying as detailed above, the plaintiff closed his case without calling any other evidence, prompting counsel for the defendant to apply for absolution from the instance on the basis that before me was insufficient evidence upon which I could find for the plaintiff.

I dismissed the application on the turn and indicated that my reasons would follow. It is convenient that I now set them out. These they are.

In making his application, counsel for the defendant was quite alive to the fact that the plaintiff was approaching the court for an order for specific performance without an alternative claim for damages.

In his view, there was an undisputed supervening impossibility that prevented the defendant from fully discharging its obligations under the sale agreement. He further submitted that the plaintiff could not dispute that the defendant failed to secure the outstanding steel from its local supplier and also that it failed to obtain foreign currency from the Central Bank for the importation of the steel. In conclusion, he argued that by virtue of the supervening impossibility, the plaintiff was not entitled to specific performance as to order such would work an undue hardship on the defendant and would produce an injustice.

While agreeing, in the main, with the submissions made by counsel, it appears to me that in a claim for specific performance, the court may not prudently exercise its discretion after hearing only one party to the dispute. This is so because specific performance is a remedy in the discretion of the court and is founded in equity. That discretion has to be judicially exercised upon a consideration of all relevant facts. The discretion that the court enjoys in this regard is not confined to specific cases or is it circumscribed by rigid rules. It appears to me that a plaintiff claiming specific performance bears no onus to show that the grant of the order will not work an undue hardship on the defendant. A plaintiff, in our law, has the right to elect to hold a defaulting defendant to the contract and once having made that election, bears no further burden to prove that their election is equitable in the circumstances of the matter. Thus, if I am correct that the plaintiff bears no burden to prove that specific performance is equitable in the circumstances of their matter, there is no basis upon which a court, acting reasonably, can, at the close of the plaintiff's case, hold that the plaintiff has not adduced sufficient evidence to show that an order of specific performance should be granted in his or her favour.

It further yet appears to me that since specific performance can only be granted after a finding of breach of a material term of the contract, where such breach is still in issue, it is not prudent or even proper for the court to jump to resolve the dispute between the parties on the basis of the unavailability of specific performance without first determining the issue of the alleged breach.

At the close of the plaintiff's case, and in view of the contents of the plea, I felt that the issue of the alleged breach of contract was still alive and that there was need for me to hear the defendant's version of events to enable me to determine whether or not the defendant had breached the sale agreement as alleged.

It is on the basis of the above that I dismissed the application for absolution from the instance when it was made. I was also guided by the sound advice given by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd 1971 (1) RLR 1 (A), that, when in doubt, a court must always lean towards the matter proceeding.

The defendant opened its case by calling one Martin Mahlamvana (“Mahlamvana”). He is a Sales Clerk with the defendant and has been in the employment of the defendant for a commendable thirty years. He was the first contact that the plaintiff made with the defendant.

His evidence was also to large extent a narration of the events that are common cause in this suit as to how the plaintiff was given a quotation for the steel he required and how payment was made some days later. Regarding whether or not the Y12 and ANN wire were in stock at the time the plaintiff sought the quotation and subsequently made his payment, the witness was adamant that the plaintiff was advised by Mr Mano, the Harare Branch Manager that these two were not in stock. He denied that he had personally assured the plaintiff that such were in stock. He further testified that, in his presence, the plaintiff was told at the time he made payment that these two types of steel were not in stock but that an order for them had been placed by the defendant's head office in Bulawayo. It was his evidence that the plaintiff was advised that the defendant was waiting for the local supplier to supply the steel. The plaintiff agreed to wait.

Finally, the witness testified that, currently, the defendant is not selling any steel products as these remain unavailable from the local supplier.

The witness gave his evidence in a measured manner. So measured was he in his manner of speech that at times he appeared slow. He would not exaggerate and would defer questions to his superior where these fell out of the ambit of his duties. He was not shaken under cross–examination. I gained a favourable impression of him as a truthful and reliable witness.

Mr Boyina Mano, the defendant's Harare Branch office manager, also gave evidence. He has been in the employment of the defendant for the past twenty-eight years.

His testimony was similar to that of Martin Mahlamvana. He testified that he personally advised the plaintiff that Y12 and ANN wire were not in stock and the plaintiff assured him and Martin Mahlamvana that he would wait until the two items were in stock.

The witness was shown an order that the defendant had placed with ZISCO Steel for steel lengths, including the Y12 and ANN wire in dispute in this suit. He identified the order, dated 18 June 2007 which was then adduced into evidence by consent. He also identified a schedule that was prepared by the defendant showing that no Y12 and ANN wire were delivered from ZISCO Steel on the order in June 2007. The witness further confirmed that application was made to the defendant's Bank for the allocation of foreign currency to import the steel from South Africa. Had this happened, the cost price of the steel, as given on the quote, would have been affected and this is why the defendant had indicated on the quote that prices were subject to change.

Finally, the witness testified that the supply of steel had not improved since 2007 due to viability problems at ZISCO Steel, the main supplier. Currently, the defendant does not have the Y12 and ANN wire in stock and will only get these once the supplier starts rolling out the products.

The witness gave his evidence well. He was refreshingly clear and was easy to follow in his answers to questions put to him in cross-examination. I gained the impression that he was telling the truth when he testified that he informed the plaintiff that Y12 and ANN wire were not in stock when the plaintiff made his payment. He was, at that time, confident that since the defendant had placed an order for the steel, such would be delivered, and, in my view, he would have spread this confidence to the plaintiff. At that stage, there was no reason to doubt that delivery would be effected, and, in my view, it is highly improbable that the witness would have hidden that fact from the plaintiff.

After the testimony of this witness, the defendant closed its case.

On the basis of the above evidence, it appears to me that three issues arise;

(i) Firstly, I have to determine what the terms of the agreement between the parties were.

(ii) Secondly, and only after I have ascertained the terms of the agreement, I have to determine whether the defendant breached a material term of such agreement entitling the plaintiff to seek specific performance.

(iii) Finally, if I find that the agreement has been breached materially, I will have to determine whether specific performance is appropriate in the circumstances of this matter.

I return to the first issue.

It is common cause that the parties intended to conclude a sale agreement. The plaintiff inquired as to the prices at which the defendant would sell and deliver to him certain specified steel. The defendant gave the plaintiff the price list at which it could conclude the sale. This is not in dispute.

At the time that the plaintiff made the inquiry, and eventually made payment, it is my finding that he was aware that the Y12 and ANN wire were not in stock. In the circumstances, the issue that has exercised my mind is whether or not the parties concluded an unconditional sale agreement of all the steel products ordered - including the products that were not available. The plaintiff contends that they did and relies on the quotation and the payment of the amount quoted as proof of the unconditional sale.

While the point was not forcefully advanced on behalf of the defendant, I am of the view that the totality of the transactions between the parties did not amount to more than a conditional sale. It appears to me that by giving the quotation and accepting payment of the total amount on the quotation, after advising the plaintiff that it did not have the Y12 and ANN wire in stock, the defendant was not going beyond saying:

“I will sell you the Y12 and ANN wire at these prices when I get delivery from my supplier. In the meantime, I am accepting your money so that I will make delivery to you as soon as I receive the steel.”

When the defendant failed to receive the Y12 and ANN wire from its suppliers, it, in turn, could not supply same to the plaintiff. Its failure, however, to deliver these steel products to the plaintiff would, in the circumstances, not constitute a breach of the agreement between the parties. The condition precedent to the agreement had not been fulfilled and so the obligation to deliver did not arise.

I would have come to a different conclusion had the plaintiff been unaware that the two products were not in stock at the time he made payment. Then, I would have found that by accepting payment for the product, the defendant gave out to the plaintiff that it would deliver the product to him and is therefore bound to do so on the basis of the quasi mutual assent doctrine.

This is the view that the plaintiff urged me to take in the matter.

I cannot, as I found against him that he was aware that the two products were not in stock and had to be procured from the supplier before they could be delivered to him. He was prepared to wait, and did wait, for the products to become available. He only sought legal advice not because the products had delayed in coming but because the defendant wished to refund the purchase price for the products that had been sold subject to the condition as the condition could now no longer be met.

In my view, the plaintiff has taken too simplistic a view of the matter. He argued that the quotation given him by the defendant was the offer and his payment of the amount on the quotation was the acceptance of the offer, birthing a contract between the parties.

While, to some extent, this is correct, in my view, the entire contract is underlined by the fact that both parties knew that part of the products in the “offer and acceptance” were not in stock. They thus could not have agreed upon the sale of such items without qualification. The sale of such items could only have been conditional upon the availability of such since the defendant was merely a retailer and not the manufacturer of the products.

I am inferring the condition precedent to the agreement of sale by applying the well known “officious bystander” test. In my view, from the knowledge that both parties had as to the unavailability of the two items, had the officious bystander enquired of the parties why they were including the two items in the order, he would have received a prompt response that the sale was subject to the two items being delivered to the defendant by its supplier. None of the parties would have responded, at that stage, that the sale was unconditional and that the defendant had to procure the two items at its own cost, from wherever, for the benefit of the plaintiff.

In conclusion, it is therefore my finding that the parties entered into a conditional sale agreement. The condition precedent was not fulfilled and the defendant is not in breach. The plaintiff is not entitled to any remedy in the circumstances.

As indicated above, counsel for the defendant did not advance the fact that the sale agreement between the parties was conditional with much conviction. He, on the other hand, submitted that the remedy sought by the plaintiff in this suit was untenable and that I should use my discretion to refuse specific performance. Assuming, therefore, that I have erred in finding above that the sale between the parties in respect of the Y12 and ANN wire was conditional, I turn to examine whether the plaintiff would have been entitled to the order that he seeks.

It is the settled position at law that generally while a plaintiff who elects to hold the defaulting defendant to the contract is entitled to an order for specific performance, where the defendant is in a position to perform, the court has a discretion to refuse to grant the order on several grounds. In particular, the court will decline to grant the order where, at the time of the order, performance would be impossible or will work an undue hardship on the defendant. See Haynes v Kingswilliamtown Municipality 1951 (2) SA 371 (A)…,.

In casu, it is not in dispute that the defendant does not have in its stock the two steel products. It has not been proved before me that the steel products are readily available on the market. The plaintiff was uncharacteristically cagey when it came to testifying about the Y12 that he purchased elsewhere on the instructions of his engineers. He was not forthcoming with the name of the supplier and the cost of the item. He was of the view that this evidence was not material for the resolution of this dispute. He may have erred in this regard, for, in the circumstances, the evidence of the defendant that the two products are unavailable from the only and regular supplier remains uncontroverted.

I would distinguish the facts of this matter form those that my brother PATEL had to deal with in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09. In that matter, the defendant agreed to deliver a number of containers and their caps to the plaintiff at a concessionary price as it had been availed funds for the purpose under the Basic Commodity Supply Side Intervention Facility (BACOSSI) set up by the Reserve Bank. The defendant allowed the facility to end without supplying all the containers that it had undertaken to deliver under the facility. In holding the defendant to the contract, PATEL J reasoned that the only inference he could draw from the facts of the matter was that the defendant failed to deliver because it failed to exercise due commercial diligence by allowing the facility to run out before it had made good on all the promises it had made on the basis of the facility.

In casu, I have accepted that the defendant did not have the items in stock and were awaiting delivery on an order that had been made prior to its agreement with the plaintiff. In the circumstances, there was little that it could do to secure the product and was thus not guilty of commercial incompetence as was found in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09.

I have been referred to Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09. In that case, the Supreme Court declined to order specific performance of a contract whose contract price had been determined in 2003 and had been eroded into nothing by inflation at the time specific performance was sought. In declining to order specific performance, the court was of the view that were it to grant specific performance, the appellant in that matter would take delivery of 280 heifers for a very small amount of money. In other words, the court reasoned, the appellant would take possession of a herd of cattle worth a considerable sum of money for which it would have paid virtually nothing.

It was pressed on me that were I to order specific performance in this matter, the plaintiff would take delivery of steel products worth a lot of money in foreign currency and for which he paid very little in local currency.

I do not agree that this is solely the basis upon which specific performance may be declined or that this was the simplistic manner in which the Supreme Court arrived at its decision in Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09.

In my view, the law on specific performance has always been clear that where to order specific performance will result in an injustice, or where it is impossible, the court should not make such an order as this will act as an antithesis of what the law stands for.

In casu, it has been argued, and not challenged before me, that the defendant does not have the outstanding steel products in its stock. It has also been argued and not challenged that its supplier has not been able to supply it with the products. I have been told, in evidence, that the defendant has not been able to source the product from South Africa as it did not receive the necessary foreign currency allocation it required for the purpose. In the circumstances, to order the defendant to deliver the steel to the plaintiff will clearly, in my view, work an undue hardship on the defendant. On the evidence before me, it will be nigh impossible for the defendant to supply the steel from local suppliers.

On the basis of the foregoing, even if I have erred in finding that the defendant is not in breach of the sale agreement between the parties, I still would have declined to grant an order of specific performance in favour of the plaintiff as prayed.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendant's costs of suit.

The plaintiff in this case claims the delivery of 1,200 bags of PC15 cement or, in the alternative, damages for breach of contract equivalent to the current market value of the cement, being US$11,400=, and costs of suit.

The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the defendant receiving the same from its supplier, that it was unable to deliver due to supervening impossibility and that it is no longer able to deliver the cement and has offered a refund to the plaintiff in the sum of ZW$336 million.

Evidence for the Plaintiff

Elliot Mutangadura, the plaintiff, testified as follows. In July 2007 he approached the defendant to purchase various building materials. The defendant then submitted a quotation on the 18^th of July 2007 listing those materials that it was able to supply - including the cement in question [Exhibit 1]. At that time, PC15 cement was available on the market and also in the defendant's warehouse (though he was not aware of the quantity thereof). This was confirmed by the defendant's Branch Manager (Mavengere) as well as its Sales Manager (Jongwe) without any condition as to having to await delivery from the defendant's suppliers.

The plaintiff then paid the full purchase price for all the materials in six instalments amounting to $3.51 billion, as was confirmed in a letter from Jongwe dated the 30^th of August 2007 [Exhibit 2]. In that letter, Jongwe also confirmed that “we had promised delivery early August.” The defendant thereafter delivered all the purchased items - save for the cement.

On the 19^th of September 2007, Mavengere wrote a letter stating that the defendant was “unable to supply PC15 cement as per agreement” and offered to supply masonry or other building materials equivalent to the amount paid [Exhibit 3]. The plaintiff rejected the offer as the PC15 cement was specifically required for the building work in question.

On the 21^st of September 2007 the plaintiff's lawyers wrote a letter of demand to the defendant [Exhibit 5]. In response, on the 1^st of October, the defendant's lawyers offered a refund of the original purchase price of $336 million [Exhibit 4]. The plaintiff rejected this offer through a letter from his lawyers on the 9^th of October [Exhibit 6] because the money tendered was insufficient to pay for 1,200 bags of cement at that time.

Subsequently, from October 2007 to June 2008, the plaintiff sourced 1,200 bags of cement, on loan, from his uncle's hardware business. The return of the cement borrowed is now overdue. The requisite PC15 cement is currently available on the market at US$9.50 to US$10 per bag.

Evidence for the Defendant

Thomas Jongwe was the Sales Manager of the defendant's Harare branch at the relevant time. His evidence was as follows.

Before giving the original quotation to the plaintiff, on the 18^th of July 2007, he made enquiries with the defendant's suppliers and told the plaintiff that PC15 cement was available for supply to the plaintiff. However, before the first payment was received, on the 20^th of July, he verbally informed the plaintiff that the cement was not immediately available and would be sourced from Unichem, a supplier in Bulawayo. He then placed an order for 1,200 bags with Unichem on the 31^st of July [Exhibit 7]. Unichem did not have any clinker, a critical raw material in cement, and he verbally informed the plaintiff of that fact.

The plaintiff made six payments in all, from the 20^th of July to the 16^th of August 2007, as shown on the receipts therefor [Exhibit 8]. There was no indication on the receipts as to the specific items paid for. The payments were made towards the total quotation amount, with appropriation in respect of each item being made at the time of invoicing. No invoice was raised for the cement as it was not in stock to deliver. In accordance with the defendant's internal accounting system, an invoice is raised after payment is received and is given to the customer at the delivery point as a delivery note.

Under cross-examination, Thomas Jongwe accepted that by the date of the last payment, on the 16^th of August 2007, the plaintiff had discharged his obligation under the contract. He also conceded that he made enquiries with the defendant's suppliers and made certain that the cement was available before issuing the quotation to the plaintiff. He further confirmed that PC15 cement is presently available on the market.

Issues for Determination

The agreed issues for determination herein are as follows:

(a) What terms and conditions were agreed to or can be implied from the contract concluded between the parties?

(b) Whether the defendant is liable for specific performance in terms of the contract.

(c) What amount of compensation, if any, is the defendant liable to pay to the plaintiff?

Terms and Conditions of Contract

The evidence before the Court shows that after the plaintiff initially approached the defendant, its Sales Manager, Thomas Jongwe, made enquiries with the defendant's suppliers and received positive confirmation as to the availability of PC15 cement. Jongwe then made out the quotation [Exhibit 1] and upon handing it to the plaintiff on the 18^th of July 2007 gave a firm assurance that the cement would be delivered in early August.

At that time, the defendant did not, as it contends, stipulate any condition as to the fulfilment of the contract being subject to delivery from its suppliers. Thereafter, the plaintiff paid the full amount of the quotation in six instalments, beginning on the 20^th of July and finishing on the 16^th of August 2007. The defendant only raised the non-availability of PC15 cement from its suppliers over one month after full payment had been made and received.

All the payments made by the plaintiff were towards the total quotation and not towards any specific materials thereon. The defendant's invoicing process involved the appropriation of the amounts paid to particular items as and when delivery was effected and the invoices served as delivery notes. However, this was quite clearly a process that was internal to the defendant's accounting system and totally irrelevant to the conclusion of the contract between the parties.

It is quite clear from the foregoing that the contract in casu was concluded unconditionally on the 20^th of July 2007 when the defendant accepted the plaintiff's first instalment as part payment towards the entire quotation - including the PC15 cement. The terms and conditions of the contract were that the defendant would deliver the cement in early August against payment by the plaintiff of the full amount of the quotation in instalments. 

In effect, the parties concluded an unconditional and binding contract for the supply of 1,200 bags of cement to the plaintiff in early August 2007.

This is an opposed application where the applicant seeks the following relief:-

“1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent.

2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into applicant's name within ten (10) days of service of this order on him failure of which the Deputy Sheriff, Harare, be and is hereby authorised to sign all relevant cession papers for purpose of ceding first respondent's rights interests and title in Stand No.3519, Dzivaguru Crescent, Ruwa, into the applicant's name.

3. First respondent shall be evicted forthwith from Stand No.3519 Dzavaguru Crescent, Ruwa.

4. First respondent shall pay the costs of this application on client legal practitioners.”

In seeking the above relief, the applicant alleges that the respondent breached a contract relating to his purchase of Stand No.3519 Dzivaguru Crescent, Ruwa, (the property).

It is common cause that on 15 February 2008 the applicant and the first respondent entered into a written agreement whereby the first respondent would sell his rights in the property to the applicant for a sum of ZW$20,000,000,000= (twenty billion Zimbabwe dollars). The applicant paid ZW$10,000,000,000= (ten billion Zimbabwe dollars) upon the signing of the agreement. It was then agreed that the balance of ZW$10,000,000,000= would be paid over a period of three months.

On 21 April 2008 (i.e. 66 days after paying the deposit) the applicant tendered payment of the balance of ZW$10,000,000,000= but the first respondent refused to accept the payment arguing that he had since cancelled the agreement after the applicant refused to pay $3,300,000,000= on 15 March 2009, which payment, according to the first respondent, would have constituted the first instalment.

On 9 May 2008, the applicant filed this application praying for specific performance in terms of the draft order (relief) quoted in full herein…,.

On 9 July 2008, the applicant obtained a default judgment against the first respondent from this court, and, on the basis of that judgment, he caused the registration of the property into his name. However, the default judgment was later rescinded on 7 May 2009.

In opposing the application, the first respondent argued that the purchase agreement was not enforceable because it did not carry the consent of the lessor, namely, the Minister of Local Government and National Housing (the Minister) who was not even cited in the proceedings.

The first respondent based his argument on clause 12 of the lease agreement between himself as the lessee and the Minister as the lessor. The said clause provides as follows:

“That the lessee shall not cede or assign this lease or sublet or part with the possession of the stand/stands, or any part thereof, or alienate, mortgage, donate or otherwise dispose of the same, or cede or assign any right acquired by him/it hereunder without the previous consent in writing of the Lessor, or until title to the stand/stands shall have been granted to him/it as hereafter mentioned.”

The first respondent conceded that, although he, as the seller, had not complied with the above condition, the agreement between him and the applicant was not null and void. It was only unenforceable and would remain so until the Minister (lessor) placed him in a position to pass title. He, however, correctly argued that the Minister, who was not a party to the proceedings, could not be compelled to pass title to either of the two parties.

The first respondent argued that Ruwa Local Board, cited in the case as second respondent, was merely an administrative entity and could not take the place of the lessor who could pass title. It was further submitted that the second respondent had indeed confirmed that it would require authority from the Minister for it to pass title. The second respondent was not therefore compellable to pass title to the applicant.

The first respondent further submitted that when the parties concluded the contract their main intention was that the balance of $10,000,000,000= would be payable in three equal instalments over a period of three months. However, in breach of that arrangement, the applicant had, on 15 March 2008, upon demand, refused to pay the first instalment of $3,300,000,000=. The applicant had indicated that he would pay the whole balance at the end of the three months' period. That refusal to pay led to the cancellation of the agreement by the first respondent. The first respondent regarded refusal to pay the first instalment as a breach of contract justifying cancellation of the same.

On his part, the applicant submitted that upon payment of the balance of $10,000,000,000=, through the High Court, following the rescinded court order granted on 9 July 2008, he had fully discharged his obligations under the contract. He had initially tendered the payment on 21 April 2008 but the first respondent had rejected the same.

It should, however, be noted that notwithstanding the rescission of the court's order of 9 July 2008, on 7 May 2009, the applicant went ahead to register the property into his name.

The applicant averred that the refusal by the first respondent to accept the balance was due to the fact that he (the first respondent) wanted to fetch a higher price from an unnamed third party. He said the agreement did not spell out any specific instalments for the three months period. The first respondent could not therefore resile from a contract that was entered into freely and voluntarily. Payment had been made within the confines of the agreement and that payment was subsequently paid through the court.

The applicant agreed that although the agreement in question was legal it did not bind the lessor (Minister). See Jangara v Nyajuyamba 1998 (2) ZLR 475 (H) and Chanda v Mutandadzi and Anor SC74-94.

He said clause 12 of the lease agreement merely enunciated general policy. In the main, however, the Cit