KAMOCHA J: The applicant seeks
an order in the following terms:-
“It is hereby ordered that:
1.
the 1st respondent
be and is hereby interdicted from carrying out construction work of any sort on
stand number 16764 Romney Park, Bulawayo until the proceedings in case number
HC 1276/06 are finalised;
2.
the 1st respondent
be and is hereby interdicted from selling the stand in question to any person
and also from transferring the same to any person save to the applicant;
3.
the 1st respondent
be and is hereby directed to remove all tools, implements, building materials
including the removal of any person employed by him, from that portion of the
stand that was purchased by the applicant within 48 hours of this order failing
which the deputy sheriff be and is hereby authorised the remove (sic) such
implements and such person from the stand;
4.
the 2nd respondent
be and is hereby interdicted from processing and registering transfer of the
stand in question to any person save to the applicant; and
5.
the 1st respondent
be and is hereby ordered to bear the costs of this suit on the attorney and
client scale.”
The
applicant entered into a memorandum of agreement of sale on 27 January
2002. The seller who was the contractor
purchased from the Municipality of Bulawayo stand number 13232 Romney Park,
which was also known as 21 Andrea Drive, Romney Park, Bulawayo measuring 704
square metres.
In
terms of the agreement the seller was required by the Municipality of Bulawayo
to construct, on the stand, residential property to a value stipulated by the
Municipality of Bulawayo and further the seller was expected to sell the
residential property built thereon to a person who is a resident of Bulawayo
and registered with the City Council as a person looking for accommodation. The seller (who is the 1st
respondent) ended up allocating the property to Ndumiso Dube (the applicant).
The 1st respondent
hereinafter referred to as Dube had purchased the said stand 13232 from City of
Bulawayo on 19 June 1990 but the agreement relating to that stand was cancelled
by the City of Bulawayo on 25 July 2004.
There after the City of Bulawayo created a new and bigger stand which it
numbered 16764.
An agreement of sale relating to
stand number 16764 was entered into between Dube and City of Bulawayo on 28
July 2004. According to the agreement
the new stand was sold for $652 000,00.
The new agreement has terms restricting the sale of the said property to
third parties. Clause 17 recites thus:
“Save with the prior written
consent of the Municipality, the purchase shall not at any time during the
currency of the agreement nor during the period of 5 years immediately
following the transfer of the property into the purchaser's name, lease, part
with possession, sell, donate, transfer or otherwise dispose, of the said piece
of land or any portion thereof.”
The agreement forbids the cession
assignment or transfer of rights and/or obligations to any other person by the
purchaser without the prior consent of the Municipality of Bulawayo.
The question to be answered is
whether or not the agreement between Dube and the applicant was still extant
and enforceable in the light of the finding that the agreement relating to
stand 13232 was cancelled by the Municipality of Bulawayo and a new one
relating to stand 16764 entered into.
The applicant contended that the
termination of that agreement did not affect matters between him and Dube and
sought to have Dube bound by it. He
however, adduced no evidence to show that the parties entered into another
agreement relating to stand 16764.
Whatever assertion the applicant made in respect of the stand is hotly
disputed and there is simply no proof that the parties ever concluded an
enforceable agreement in relation to the new stand. In the light of the clear dispute of fact the
issues can only be resolved by way of trial proceedings.
The applicant sought to invoke the
provisions of the Contractual Penalties Act [chapter 8:04] without showing that
the parties concluded an instalment sale in respect of the new stand. Those provisions do not apply where a party
seeking to rely upon them fails to prove the existence of a sale of land by
instalments.
Finally, applicant sought to
interdict Dube from carrying out construction work of any sort in stand number
16764 until the proceedings in case number HC 1276/06 are finalised without a
valid basis for so doing. A look at the
original agreement between him and Dube shows that Dube as the contractor was
required, by the Bulawayo Municipality, to construct thereon a residential property. Dube was obliged , in terms of his new
agreement with the Municipality of Bulawayo, to construct a dwelling house not
latter than 6 months from the date of agreement which should be completed 24
months from the said date. Consequently
it seems to me that the application to interdict him from continuing with
construction on the property is ill conceived.
In the result, I would dismiss this
application with costs on the ordinary scale as there is no basis for awarding
punitive costs in this matter.
Job Sibanda & Associates, applicant's legal practitioners
Calderwood, Bryce Hendrie & Partners, 1st respondent's legal practitioners
