On
9 May 2001, this court, per BARTLETT J, in HC10065/2000, grants the
following relief:
“1.
That the purported cancellation of the Agreement of Sale between
Dzingayi Kashumba and Mavis Shorai Nzara be and is hereby declared
null and void and set aside.
2.
That the purchaser, Mr Dzingayi Kashumba, be and is hereby directed
to pay the balance ...
On
9 May 2001, this court, per BARTLETT J, in HC10065/2000, grants the
following relief:
“1.
That the purported cancellation of the Agreement of Sale between
Dzingayi Kashumba and Mavis Shorai Nzara be and is hereby declared
null and void and set aside.
2.
That the purchaser, Mr Dzingayi Kashumba, be and is hereby directed
to pay the balance of the purchase price due and outstanding within
30 days of the date of this order.
3.
That the Respondent be and is hereby ordered to transfer to Dzingayi
Kashumba the properties known as Stands 552 and 553 Quinnington
Township of Subdivision F of Quinnington of Borrowdale Estate
measuring in extent 3,999 square metres and 4,002 square metres
respectively by signing all the necessary transfer documents within
10 days of payment of the balance of the purchase price.
4.
That in the event of the Respondent failing to comply with the
provisions of paragraph 3 hereof that the Deputy Sheriff for Harare
be and is hereby authorised and empowered to sign the relevant
transfer papers.
5.
That the Respondent pays the Applicant's costs of this
application.”…,.
There
is an immediate major fall-out over this order. The parties read or
discern different things into and from it….,.
Some
aspects of the controversy, whether or not the Late Dzingayi Kashumba
has paid the balance of the purchase price spills back to this court
- back to BARTLETT J. The specific aspect on this controversy is
whether or not the Late Dzingayi paid the balance of the purchase
price in full - not whether or not he had paid it within the 30 days
deadline….,.
On
11 December 2001 BARTLETT J issues his second order. The issue
whether or not the Late Dzingayi Kashumba
has paid the balance of the purchase price in full in terms of the
earlier order on 9 May 2001 is referred to arbitration….,.
The
arbitrator finds that the Late Dzingai Kashumba
has not paid the balance of the purchase price in full. He determines
the amount by which it had been underpaid….,.
On
the basis of the arbitrator's award, the first applicant takes the
view that the Late Dzingayi Kashumba,
not having paid the balance of the purchase price in full, the Deed
of Sale (DOS) has definitely been cancelled….,.
Whether
the Deed of Sale (DOS) was ever cancelled
Counsel
for the applicants
argued that after the order by BARTLETT J on 9 May 2001 that, inter
alia,
gave the Late Dzingayi 30 days within which to pay the balance of the
purchase price, the Deed of Sale (DOS) stood cancelled since, as it
subsequently transpired, the Late Dzingayi had in fact not paid
within that period. Not only that, counsel for the applicants
submitted, that on 17 May 2002 the arbitrator, having ruled that the
balance had not been paid in full, the first applicant had
unequivocally cancelled the Deed of Sale (DOS).
Counsel
for the applicants relied on the letter from Mutamangira &
Associates to Wintertons on 4 June 2002. It read:
“We
trust by now you are in receipt of the Arbitrator's award. The
award was in favour of our client and we now treat this matter as
finalised. The agreement of sale is therefore cancelled.”
Counsel
for the applicants said the need to give a notice of cancellation had
been obviated by the 30 day clause in the court order.
I
disagree.
In
my view, that was the achilles
tendon in the applicants' case. The court order, in giving the Late
Dzingayi 30 days within which to pay the balance of the purchase
price, did not say that if he failed or neglected to do so the Deed
of Sale (DOS) would stand cancelled.
Counsel
for the applicants said this was implied.
I
disagree for three reasons:
(i)
The
Deed of Sale (DOS) required a positive act of cancellation if the
purchaser should fail or neglect to pay the balance of the purchase
price in accordance with its provisions. It required 14 days'
notice. The Contractual Penalties Act overrides such short notices
and provides for 30 days. It is not clear whether or not, before the
fights started, the first applicant had ever given any period of
notice. But this is immaterial. On 9 May 2001 this court, in the very
first paragraph of its order, declared the purported cancellation
null and void. So with that ruling the legal position was that the
Deed of Sale (DOS) had never been cancelled.
(ii)
The remedy proffered by the order of 9 May 2001 was, in my view,
inchoate.
It
was preliminary or intermediary. I construe it to mean that if the
Late Dzingayi failed or neglected to pay the balance of the purchase
price within the stipulated 30 days then the first applicant could
cancel the Deed of Sale (DOS) as required by its terms, as read with
the Contractual Penalties Act. The Act merely gives the period of
notice. It is not the notice itself. The court order was not the
notice itself. If the
Late Dzingayi Kashumba
paid within the 30 days, the first applicant would be obliged to
transfer to him, within 10 days of the payment, failing which the
Deputy Sheriff would step into her shoes and sign the transfer
papers.
Courts
do not make contracts for the parties. They interpret and enforce
them.
Whatever
form of cancellation the first applicant had given previously was
blotted out by the court order. So by giving the Late Dzingai
Kashumba
30 days within which to pay, the court was merely reading into the
Deed of Sale (DOS) the period of cancellation as set out in the
Contractual Penalties Act, seeing that the first applicant had not
complied with it, and that, in any event, the period in the Deed of
Sale (DOS) was unenforceable.
(iii)
The Late Dzingayi Kashumba
did in fact make payment within the 30 day period.
I
resolve in his favour the controversy whether his cheque for
$337,187=77 was received by Munangati & Associates on 31 May 2001
[receipting it on 4 June 2001] or on 5 July 2001. I do so for four
reasons;
(a)
Firstly, it seems when the parties came back to court for the second
time on that same issue the applicant's actual grievance was that
the Late Dzingayi's payment had been inadequate - not that it had
been made out of time. That, in my view, explains why in his second
order, on 11 December 2001, BARTLETT J phrased it thus:
“2.
The issue whether the purchase price was paid in full in terms of the
Court order of the 9th
of May 2001 be and is hereby referred to arbitration…, whose
decision shall be final.”
(b)
Secondly, when the parties went for arbitration, it must have been
common cause that the cheque for $337,178=77 had been paid on 31 May
2001. That should explain why in his award the arbitrator used the
31st
of May 2001 as the cut-off date for payments made by the Late
Dzingayi from the inception of the Deed of Sale (DOS). In the course
of his award the arbitrator said:
“The
amount tendered on 31st
May 2001 was $337,187=77 which is less than the amount then due by
$166,394=25.”
(c)
Thirdly, at the hearing, counsel for the applicants all but admitted
that the cheque for $337,187=77 had been received by Munangati &
Associates on 31 May 2001 who had receipted it on 4 June 2001. His
argument was that owing to the required clearance period the proceeds
of the cheque had become available to the first applicant only on 5
July 2001. But that would not detract from the fact that it had been
paid within the 30- day period.
I
am conscious of the fact that the first applicant was subsequently
vindicated by the arbitrator. He ruled that the Late Dzingayi
Kashumba
had, in fact, not paid the balance of the purchase price in full by
the expiry of the 30 day deadline. However, in my view, this finding
merely entitled the first applicant to either cancel the Deed of Sale
(DOS) in accordance with its provisions, as read with the Contractual
Penalties Act, or to pursue the outstanding amount. Apparently, the
first applicant chose to cancel. But, as I have said already, and as
she had done before, she once again botched the procedure.
