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.
