MTSHIYA J: On 23 August 2009 the applicant filed this
application seeking the following relief:-
“It
is hereby ordered that:-
1. First and second respondents be and are
hereby ordered to sign an agreement of sale for Stand No.492, Bautina Road, Chiredzi
in favour of applicant within 10 days of the granting of this order.
2. First and second respondents be and are
hereby ordered to take all necessary steps to ensure transfer is effected to
the applicant upon applicant making all necessary payments
3. Should the respondents fail to comply
with para 1 and 2 of this order then leave be and is hereby granted for the
applicant to lodge a copy of this order as an caveat with the Registrar of
Deeds, Harare against the property.
4. The applicant be and is hereby granted
right of occupation of the said premises until such a time the first and second
respondents comply with the provisions of the order”.
The
background to the relief sought can briefly be given as follows:
The first respondent is the owner of
the property known as Stand No. 492, Bautina
Road, Chiredzi (the property). On or
before 14 May 1991 the respondent leased the
property to RMS, a section or branch
of the first respondent. On 23 April 1991 the property was inspected for
occupation and on 14 May the applicant, an employee of RMS, took occupation. On
14 January 1999, following a collective bargaining agreement between itself and
its employees, the first respondent issued special notice 2313 relating to the
disposal of houses. The relevant parts of the notice, which was intended for
the first respondent's employees only, read as follows:-
- “It
is notified for the information of staff and all concerned that National
Railways of Zimbabwe (N.R.Z.), the three Unions, namely Railway
Association of Engineman (R.A.E.), Railway Artisan's Union (R.A.U.) and
the Zimbabwe Amalgamated Railwaymen's Union (Z.A.R.U.) recently completed
negotiations on the terms and conditions of the disposal of Railway Houses
in the major and smaller Urban centres.
DISPOSAL OF HOUSES
- The
Railways agrees to dispose of houses which it holds under freehold title
in major and smaller urban centres to Railway sitting tenants in Grades 4
– 10 and to non-Railway sitting tenants in the following order of
priority,
2.1.1. Sitting tenants
2.1.2. Married emergent staff on the
waiting list.
2.1.3. In the event that the aforementioned
categories of buyers do not exercise their option to purchase Railway housing
on offer, the option to purchase the houses shall be given to the rest of the
Railway employees who are not sitting tenants at prices shown in clause 2.2.2.
2.1.4. Should there be houses remaining
unsold, these shall be offered to members of the public, who may or may not be
sitting tenants at market prices.
2.2.
Selling Price
2.2.1. ……
2.2.2. ……
2.2.3. Non-Railway Employees : Sitting Tenants
Selling Price shall be prevailing
market prices at date of sale.
2.3.
……
2.3.1. ……
2.3.2. ……
2.3.3. ……
2.3.4. ……
3. ……
4. ……
5.
……..
5.1.
…...
5.2
......
6.
EFFECTIVE DATE
The agreement shall be effective
from 1 October, 1998 and shall apply to serving employees and those who were in
service as at 30 September, 1998.
7.
MODALITIES OF IMPLEMENTING THE ABOVE AGREEMENT
7.1.
Applications
Staff wishing to purchase houses
will be asked to indicate in writing and within 14 days from the date of
publication of this Special Notice, their intention to buy the houses on offer.
The applications should be submitted to Manager, Supplies and Stores, c/o
Secretary, Tender Board, Room 807, Africa House. An agreement of sale will be
entered into between the purchaser and the Administration and the relevant
forms will also be available in the office of the Chief Civil Engineer, Estates
Section.
7.2.
…..
8.
……”
On 11 January 2002 the first
respondent entered into a direct formal lease agreement with the applicant. The
effective date of the lease was 1 December 2001.
On
20 January 1999, on the basis of Special Notice 2313, the applicant addressed
the following letter to the first respondent's Manager Supplies & Stores.
“PURCHASE
OF N.R.Z. DISPOSED HOUSES – RE JL77
Sir
I MUSHANDIKWA EZERA (R1568) Ex NRZ
311870 residing at 492 Bautina Road, Chiredzi (J L77) wish to purchase the
above mentioned property on the conditions stated in Weekly Notice 2313 dated
14/1/99.
I look forward to your
considerations.
Thank you.
E. MUSHANDIKWA”
The
first respondent never responded to the applicant's letter and on 24 May 2002
the applicant again wrote to the first respondent inquiring on progress. The
applicant's letter, addressed to the District Civil Engineer and indicating
that an earlier inquiry had been made, read as follows:-
“RE-DISPOSAL OF RAILWAY HOUSES J.L.
77 (D 492)
Sir
I write this letter as a follow up
to my letter dated 02/01/02 of the same reference. Please may I know the
progress to the matter.
Yours faithful
Ezera Mushandikwa
(Sitting Tenant)”
The
applicant did not receive any response from the respondent and on 13 August
2002 he filed this application seeking the relief spelt out on page 1 of this
judgment.
In
his submissions, Mr Mugadza, for the
applicant, stated that in terms of clause 1 of Special Notice 2313 the
applicant qualified as a sitting tenant. The said clause provides as follows:-
“1. The Railways agrees to dispose of houses
which it holds under freehold title in major and smaller urban centres to
Railway sitting tenants in Grades 4-10 and to non-Railway sitting tenants in
the following order of priority”.
That
being the case, he argued, Special Notice 2313 constituted an offer to the
applicant, which offer the applicant accepted on 20 January 1999. The
applicant, having taken occupation on 14 May 19991, had also concluded a valid
lease agreement which granted him the right to occupy the property. That lease
agreement, he said, was affirmation of the fact that the applicant was indeed a
sitting tenant.
Mr Mugadza went further to submit that although the applicant was not
an employee of the first respondent, Special Notice 2313 covered non-railway
sitting tenants. He said in terms of clauses 2.2.3. of Special Notice 2313, a
market price for the property would have been easily established by Messrs
Richard Ellis and the applicant would have been prepared to accept such a
price. He said clauses 7.1. of Special Notice 2313, which set out procedures
for taking advantage of the first respondent's offer of houses for sale, was a
mere formality to enable transfers.
In
his written submissions Mr Bhamu, for
the first respondent, submitted that there were several material disputes of
fact in the case and accordingly the matter should have been brought to court
by way of action as opposed to application. He submitted that for that reason
alone the matter should be dismissed. Mr Bhamu
listed some of the serious disputes of fact as follows:-
“1.3(a) There is a dispute whether as at 14 January 1999,
applicant was a tenant of first respondent or of RMS (Pvt) Ltd
1.3(b) There is a dispute as to when the applicant
became first respondent's tenant.
1.3(c) There is a dispute whether Chiredzi was one
of the centres where houses were to be disposed of.
1.3(d) There is a dispute as to whether or not
applicant was offered the property by first respondent
1.3(e) There is a dispute as to whether applicant
fell into the category of persons to whom the houses could be disposed and if
so his priority or ranking thereof.
1.3(f) There is a
dispute as to the genuinesses of the letters allegedly addressed to first
applicant and emanating from the applicant.
1.3(f)(i) As averred by respondent, the alleged
letters were never received and
there is no proof that they
were ever posted or delivered.
1.3(f)(ii) ……”
Mr
Bhamu, argued that when the applicant
took occupation in May 1991 the recognised tenant was RMS, the applicant's
employer. He said as a non-employee of the first respondent, the applicant was
not covered under Special Notice 2313. He said the applicant could only be covered by Special Notice 2313 as a member of the public whereby
houses not sold to respondent's employees could be sold to the public upon
application. He said no offer was ever made to the applicant and consequently
there was never any agreement of sale. The first respondent could not therefore
be compelled to enter into such an agreement.
In
dealing with this matter, I find myself not in agreement with Mr Bhamu that there are many material
disputes of fact which disable the court from making a determination. I say
this because of the following unchallenged positions.
1.
Special
Notice 2313 was directed to the first respondent's employees only
2.
The
applicant was an employee of RMS and not the first respondent.
3.
As
at 30 September 1998, the applicant, as an employee of RMS, was not a serving
employee of the first respondent and was therefore not covered by the agreement
(i.e. collective bargaining Agreement which took effect from 1 October 1998)
4.
As
at 14 January 1999 applicant was a tenant of RMS and only became tenant of the
first respondent on 1 December 2001 as per the lease agreement.
5.
Special
Notice 2313 did not cover Chiredzi. There is nothing in the papers to indicate
that Chiredzi was covered and that the first respondent held freehold title in
properties in Chiredzi.
6.
There
is no agreement of sale between the applicant and the first respondent, as
envisaged by clause 7.1. of Special Notice 2313, and
7.
The
first respondent never made an offer to or accepted an offer from the applicant
in terms of Clauses 2.1.4. of Special Notice 2313 and accordingly the purported
correspondence from the applicant is of no consequence.
In view of the above positions I do
not see any reason why this court cannot determine the matter on the papers.
The above facts clearly show that
there was never any agreement of sale, whether oral or written, between the
applicant and the first respondent. There is no agreement which this court can confirm and/or on the
basis of which it can order specific performance on the part of the first
respondent. It is not denied that the applicant was not an employee of the
first respondent and it is also not denied that prior to the lease agreement
signed by the applicant on 3 December 2001 the sitting tenant was RMS who had
allocated the property to its employee (the applicant).
It is also interesting to note that
whereas the applicant claims to have accepted the offer in Special Notice 2313
on 20 January 1999, he went on to sign a lease agreement on 3 December 2001
without raising the issue of his offer. According to the papers before me, he
only makes an inquiry in January 2002 (i.e. as per his letter of 24 May 2002 which
appears on p 5 of this judgment).
The
foregoing leads me to the conclusion that the applicant's claim indeed lacks
merit. The first respondent, who was not his employer never made an offer to
him as a member of the public. Furthermore the applicant did not as at 1
October 1998, qualify to be a sitting tenant of the first respondent. It is
common cause that the tenancy was held by RMS. The applicant only became the
first respondent's tenant on 1 December 2001.
The absence of an agreement of sale does
not help the applicant's case at all. That fact alone clearly demonstrates the
absence of agreement between the parties. The first respondent never offered to
sell the property to the applicant for any price in terms of Special Notice
2313 (Clauses 2.1.4) and the applicant, as a member of the public, never made
an offer which was accepted by the first respondent. There was therefore no
contract between the parties and this court cannot force a contract on them.
That, as submitted by the first respondent's counsel, would be contrary to the
freedom of contract. Courts cannot create contracts for litigants. Courts can
only interpret, enforce or decline to enforce litigants' contacts in terms of
law.
In
the main therefore the facts of this case do not at all disclose the existence
of a clear offer and acceptance as required in the law of contract. There was
therefore never any agreement of sale between the applicant and first
respondent. The court cannot create one
for the parties and in the circumstances the court is disabled from granting
the relief sought.
The
application is dismissed with costs.
Madanhi &
Associates,
applicant's legal practitioners
Mbidzo,
Muchadehama & Makoni,
respondents' legal practitioners
