MAVANGIRA J: On
15 November 1996 the applicant and first respondent entered into an
agreement of sale in terms of which applicant purchased from first
respondent an immovable property known as Stand No.6670 Chikanga 3,
Mutare. The purchase price was agreed at $18,000. Of this amount,
$10,000 was paid on the date of the signing of the agreement being 15
November 1996 as recorded in clause 1 of the agreement.
In terms of clause 2 of the agreement, commencement of payment of the
balance of the purchase price in the sum of $8,000 was to be paid
after a grace period which extended from the date of signature up to
30 June 1997. A monthly payment of $750 was to be made with effect
from 1 July 1997 and thereafter the same amount was to be paid by the
first day of each succeeding month until full payment was made.
In terms of clause 3 the seller, being the first respondent, was to
deliver vacant possession of the property to the buyer, that is the
applicant, within 7 (seven) days from the date of payment of the
final instalment. Transfer the property to the purchaser was to be
effected at the same time.
In terms of clause 4 the purchaser was to pay all charges in respect
of the property with effect from the month of December, presumably of
the year, 1997, onwards. The purchaser was also required to develop
the property to the level or stage at which the third respondent
would approve transfer (cession) of the property, in terms of its
by-laws.
In terms of clause 5 of the agreement the purchaser would pay the
monthly instalments into the seller's POSB account, the details of
which account would be furnished to the purchaser by the seller. The
clause then further provides as follows:
“This is the
only agreement the parties will go by and no other whatsoever unless
this agreement is expressly and in writing otherwise amended or
replaced”.
The concluding paragraph is to the effect that the meaning and import
of the agreement has been explained to the parties in the Shona
language and they have understood the same.
The applicant avers that he paid the full purchase price of the
property as evidenced firstly, by clause 1 of the agreement which
acknowledges payment of the initial $10,000 and secondly, by
receipts, copies of which he attached to his founding affidavit. He
also avers that he prepared plans which were approved by the third
respondent. In this regard Annexure C1 to his founding affidavit is a
document dated 2 January 2003 addressed to the applicant by the third
respondent's City Engineer's department and in respect of the
stand in issue. It informs the applicant that his plans which were
submitted in respect of the stand in question have been approved
subject to the relevant Municipal Bye-laws and certain conditions
stated therein.
Annexure C2 dated 21 June 2005 is also addressed to the applicant by
the third respondent's City Engineer's department in respect of
the same stand. It also informs the applicant that one copy of his
plan has been “pre-approved” on condition that he adheres to
certain conditions also stated therein. It further states that the
“pre-approval” is valid for one year from the date stamped on the
plans.
Annexure D to the founding affidavit reflects copies of two
inspection logs. One is dated 27 July 1999 showing approval by the
City Engineer's Department of the stage referred to as
“Brickfooting”. The other is dated 27 August 1999 showing
approval of the stage referred to as “Hardcore”.
The applicant also avers that he commenced to build on the
undeveloped and vacant stand and has erected a house which is at
window level. Then sometime in June 2005, the first respondent began
to interfere with the applicant's access to the premises. This led
to the applicant's legal practitioners writing a letter on 7 July
2005 to the first respondent and amongst other things, giving her
fifteen days' notice to effect cession of the property into the
applicant's name as well as 2 months' notice to vacate the
property.
The first respondent did not cede the property to the applicant.
However the applicant then received a water bill dated 17 July 2006
addressed in the name of the second respondent. This prompted him to
make inquiries with the third respondent and he then ascertained that
the first respondent had ceded the property into the name of the
second respondent. The second respondent was un-cooperative when he
approached her. The first respondent became evasive.
The applicant contends that the second respondent ought to have known
that the applicant was the new owner of the property as his builders
were on site and the plans for the house that was being erected on
the property were in the applicant's name. He also contends that
the second respondent was reckless and was not diligent in not making
inquiries as she would not have purchased the property which he had
already purchased. He contends that the cession to the second
respondent was done maliciously by both the first and the second
respondents.
The applicant prays for an order in the following terms:-
“That:
1. The first
and second respondents be and are hereby order and directed to attend
at third respondent and cede their rights and title in House No. 6670
Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from
the date of service of this court order.
2. In the
event of the first and second respondents failing to comply with
paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign
all relevant cession papers for and on behalf of the first and second
respondents and the cession papers with the third respondent who is
obliged to accept them and effect the cession into applicant's
name.
3.
Alternatively the first respondent pays he applicant ten million
(10,000,000,000-00) or the current market value of the house as
approved by two evaluators which ever figure is higher.
4. The first
respondent pays the applicant's costs of suit.” (sic)
The first respondent opposes the application and avers that the
applicant failed to pay the balance of the purchase price in the sum
of $8,000 claiming that the payments reflected in the receipts
attached as annexures B1, B2, B3, and B4 to the applicant's
founding affidavit were meant for supplementary charges and not for
instalments towards the liquidation of the balance as alleged.
The applicant claims that if these were instalments meant to go
towards the liquidation of the balance of the purchase price as
claimed by the applicant, the applicant would not have paid the
higher amount of $1000 per month instead of the agreed $750 per
month. She further alleges that the building plans could not have
been in the applicant's name as the stand was registered in her
name and cession had not yet been effected.
The first respondent also alleges that although the applicant built a
house to window level, when she started to demand payment of the
balance and of water bills and supplementary charges which he had
stopped paying, the applicant then ceased building. Then in February
2005 the applicant stated that he had purchased another stand in
Harare and was no longer interested in developing the stand in
question. She alleges that the applicant then said that all that he
wanted from her was $15,000,000 “for the stand at its state” so
that she could have the stand back from him. She claims that they
reached an agreement and in pursuance thereof she raised the
$15,000,000. However, when she tried to contact the applicant so that
she could make the payment to him, he could not be found. On two
occasions she went to his rural home but failed to find him. When she
finally made contact with him in August 2005, he promised to come and
collect the money but never did.
The first respondent contends that the applicant breached their
agreement by failing to pay the balance of the purchase price and the
supplementary charges and that the property thereby reverted to her.
She disputes that the applicant had any building material at the
stand and further disputes that she used such material to construct
an outbuilding as alleged by the applicant. As the property reverted
to being hers she then sold it to the second respondent in November
2005 and ceded it to her. She further states on her opposing
affidavit that as the applicant failed to collect his money as
detailed above, she was thus tendering it.
The first
respondent agrees that the applicant was the first purchaser. She
however claims that they later agreed that she retain her property,
which she did “after having managed to raise the agreed purchase
price”. She then thereafter sold the property to the second
respondent who was a bona
fide
purchaser. She claims that she was at that stage at liberty to sell
the property to anyone.
In
supplementary heads of argument filed on behalf of the first
respondent, the point is raised in limine
that the applicant's cause of action is prescribed in terms of
section 15(d) of the Prescription Act, [Cap
8:11].
She submitted
therein that the agreement between the applicant and the first
respondent having been entered into on 15 November 2006, when this
court application was filed on 10 October 2006, it was long after the
expiry of three years and as there had no judicial interruption
during the interceding period, the claim had since prescribed on the
merits it is submitted that there are irreconcilable disputes of fact
which no matter how robust the court is, it cannot possibly resolve
without hearing viva
voce
evidence.
The first respondent thus prays for the dismissal of the application
with costs.
The second respondent, despite being served with the court
application, has filed no opposing papers.
PRESCRIPTION
Section 15 of the Prescription Act provides as follows:-
“15
Periods of prescription of debts
The period of prescription of a debt shall be –
(a)……….
(b)……….
(c)……….
(d) except
where any enactment provides otherwise, three years, in the case of
any other debt.”
Section 16(1) then provides:
“(1) Subject
to subsections (2) and (3), prescription shall commence to run as
soon as a debt is due.”
The Act defines “debt” as:
“without
limiting the meaning of the term, includes anything which may be sued
for or claimed by reason of an obligation arising from statute,
contract, delict or otherwise”.
In casu,
the applicant's claim is for cession of Stand 6670 Chikanga 3,
Mutare. Such cession arises from the contract entered into by the
applicant and the first respondent on 15 November 1996. It thus in my
view, falls within the definition of “debt” in the Act.
If cession to
the applicant (the debt) became due on 15 November 1996, the date
relied upon by the first respondent in articulating the preliminary
issue of prescription, then clearly, in the absence of any judicial
interruption the applicant's claim would have long expired by the
date that this application was filed, 10 October 2006, some ten years
later. But clause 4 of the agreement stipulates, inter
alia,
that the purchaser (applicant) “shall develop the property to the
stage where the City of Mutare will approve the transfer in terms of
the by-laws”.
I am aware of the apparent mutual exclusiveness of clauses 3 and 4 of
the agreement. However, it is common cause that this stand is
situated in the Mutare Municipal area. Clause 3 would therefore be
impossible of fulfilment insofar as transferring the property to the
purchaser (applicant) is concerned unless there is compliance with
third respondent's requirements or by-laws. This requirement for
the third respondent's requirements to be met is acknowledged in
clause 4 which however places the obligation on the purchaser's
shoulders to develop the stand “to the stage where the City of
Mutare will approve the transfer in terms of the by-laws”.
The question then arises whether the applicant developed the stand to
the level or stage enabling or resulting in the City of Mutare, the
third respondent, approving transfer or cession of the property.
That the
applicant constructed the house at the stand in question at least up
to window level is common cause. It is also clear by the first
respondent that she sold to the second respondent the same stand 6670
Chikanga Township “together with improvements of incomplete house
build (sic)
(built) up to window level comprising 5 living rooms, dining, kitchen
and combined toilet with provisional of in-suit (en suite?) as seen”
(sic).
There is no evidence of any construction having been carried out by
the first respondent at any stage or to any level.
The agreement of sale to the second respondent was entered into at
the end of November 2005. The date of cession to the second
respondent is not clear on the papers but the applicant states that
at the end of 2005 he was completely denied access to the property by
the first respondent. Furthermore, when he received the water and
services statement dated 17 July 2006 and which was addressed to the
second respondent, his pursuant inquiries then informed him that the
property had been ceded to the second respondent. The first
respondent states in her opposing affidavit that she refused to cede
the property to the applicant when his legal practitioners demanded
such cession as the applicant had breached their agreement by not
paying the purchase price and supplementary charges and as this was
also in accordance with their subsequent oral agreement.
It is clear that the first respondent was able to effect cession into
the second respondent's name on the strength or basis of the
developments made on the property by the applicant. She did not
herself effect any further improvements. The answer to the question
above appears to me therefore to be that the applicant did develop
the stand to the stage where the third respondent would approve
transfer.
The next question that arises is when did the applicant attain the
level of development that would and in fact did enable the third
respondent to approve cession, albeit to a different person/third
party?
It is clear on the papers this was certainly not on 15 November 1996.
It is also
clear that in 2003 and 2005, the applicant was in communication with
the third respondent in respect of plans for the development of the
stand as evidenced by the two letters from the third respondent's
Engineer's Department already referred to above. It is also clear
that in July and August 1999, the applicant was in the process of
effecting developments and the approval of two stages of development
were approved then by the City Engineer's Department.
It is
undisputed that the applicant began experiencing problems in
accessing the premises from sometime in June 2005 and that he was
completely barred at the end of 2005, the sale to the second
respondent being also contracted at the end of November 2005. As no
further development was made to the property besides what the
applicant had done, it can be safely concluded that at the very
least, by the end of November 2005 when the property was sold to the
second respondent, and the applicant was also totally barred from
entry onto the premises, the applicant had already developed the
stand to the stage where the third respondent would approve the
transfer or cession in terms of its by laws.
Having made
such a finding, it appears to me that the debt (cession to the
applicant) became due at the end of November 2005. The instant court
application would thus have been filed some eleven (11) months after
the cause of action arose.
It is my view
that this cause of action arose when he complied with clause 4 of the
agreement. As stated in Mukahlera
v Clerk of Parliament & Ors
HH 107/05, prescription begins to run when the cause of action arose,
the cause of action being the combination of facts material for the
plaintiff (applicant in
casu)
to prove in order to succeed in his action. In
casu
the applicant must prove inter
alia,
his compliance with clause 4 in so far as developing the property is
concerned, as already discussed above.
I therefore
find for the above reasons that the applicant's claim has not been
extinguished by prescription. The point raised in
limine,
that the applicant's claim has prescribed is therefore dismissed.
THE MERITS
It is true that there is a dispute of fact regarding whether or not
the applicant paid the purchase price in full. The payments reflected
on the receipts annexures B1, B2, B3, and B4 were made into the first
respondent's POSB account and in terms of the agreement were meant
to be payments of instalments for the balance outstanding in the sum
of $8,000, the initial payment or deposit of $10,000 having been made
at the time of the signing of the agreement.
The fact that
the applicant paid instalments in the amount of $1,000 per instalment
and not $750 as per agreement cannot possibly be a cause for
complaint by the seller. Rather, the payment of the outstanding
balance was completed in a shorter period than would have been the
case had the instalments been paid in the agreed amount. In any
event, it cannot be by coincidence that the payments reflected in the
said receipts amount to a total of $8,000 which is also the amount of
the balance of the purchase price after the initial payment of
$10,000.
It is highly improbable that the applicant would give priority to the
payment of supplementary charges and water bills whilst neglecting
payment of the balance thereby placing himself in breach of a
material term of the agreement. Furthermore, the payments having been
made into the first respondent's POSB account were also, barring
the quantum of each instalment paid, made in accordance with the
provisions of the agreement regarding payment of the balance. The
payments reflected in the receipts referred to above commenced on 1
July 1997 which date is also stipulated in the agreement as the date
of the payment of the first instalment which was to be made after a
grace period of about nineteen and half months that is from 15
November 1996 to 1 July 1997. Other charges in respect of the
property were to be paid by the applicant as from December.
For the above reasons the first respondent's version and claim that
the payments in question were not payments towards the liquidation of
the balance of the purchase price but rather were for water and
supplementary charges is highly improbable in the circumstances. Thus
the dispute of fact is not one that is incapable of resolution on the
papers.
On a balance of probabilities the applicant has proved that he paid
the purchase price in full. He did not breach the agreement as
alleged by the first respondent. The subsequent sale of the property
by the first respondent to the second respondent was therefore
improper and unlawful. She had no authority to sell it nor title to
pass.
I wish to comment briefly on the alleged oral agreement between the
applicant and the first respondent as claimed by the first
respondent, she alleged that the applicant effectively sold the
property back to her for $15,000,000 but that he frustrated her
efforts to pay him the said amount. The applicant disputes that such
an agreement was ever entered into. The second sentence in clause 5
of the agreement of 15 November 1996 reads:
“This is the
only agreement the parties will go by and no other whatsoever unless
this agreement is expressly and in writing otherwise amended or
replaced”.
The first respondent cannot thus purport to rely on an alleged
agreement that is expressly excluded on account of it not being in
writing by the agreement of 15 November 1996.
The second
respondent has chosen not to contest or oppose the application. There
is thus no dispute to the applicant's contention that the second
respondent is not a bona
fide
purchaser.
There is also no evidence before this court showing that the second
respondent made any payments towards the purchase of the property.
There appears therefore to be no impediment to the court making an
order that the property be ceded from the second respondent to the
applicant.
Having taken a robust approach to the dispute of fact in this matter,
this court finds that the applicant has proved his case and must
therefore succeed in this application. The balance of equities
favours the applicant in this matter. Costs must follows the cause.
In the event it becomes unnecessary for this court to consider
paragraph 3 of the draft order which is thus rendered irrelevant.
In the result the following order is made:
1. The second
defendant is ordered to cede her rights, title and interest to the
applicant within ten (10) days of the service of this order upon both
or either of the first and second defendants failing which the Deputy
Sheriff be and is hereby authorised and directed to sign all
documents as are necessary to effect the said cession.
2. The third
defendant is ordered to register such cession effected in terms of
paragraph 1 above.
3. The first
defendant shall pay the plaintiff's costs of suit.
Mushonga & Associates,
applicant's legal practitioners
F.M. Katsande & Partners,
first respondent's legal practitioners
