Urgent Chamber Application
CHEDA J: This is an
application for an enforcement of a contract.
The first respondent is Thabani Khumalo, a male adult who is in the
business of contracting, acquiring and developing residential stands
for sale. He resides at House No. 8774 Cowdray Park, Bulawayo, which
is his address for service.
The second respondent is the
Executor in the Estate of the Late Sibonile Mlilo, cited as such in
his official capacity. His address for service is Chelmsford
Executors and Trust (Pvt) Ltd, Suite 112, 1st
Floor, Parkade Centre, Fife Street, Bulawayo.
Third respondent is the Assistant Master of the High Court of
Zimbabwe, Bulawayo, cited in his official capacity as a responsible
authority over matters to do with, amongst other things, deceased
estates administration. He is overseeing the winding up of the Estate
of the late Sibonile Mlilo registered in his office under DRBY
267/08.
The fourth respondent is the City of Bulawayo, a municipal body
established by law and under whose jurisdiction the property in
question presently falls. Its administrative officers are located at
the City Hall, Bulawayo, which will be its address for service.
The salient facts of this matter are that applicant and first
respondent entered into an agreement of sale wherein first respondent
sold and applicant bought Stand No.5495 Cowdray Park, Bulawayo for
$224 billion as the purchase price. First respondent initially
acquired the stand from one Sibonile Mlilo who has since died and her
estate is being handled by second respondent.
The purchase price was fully paid.
As an indication of his commitment to the agreement, first respondent
handled the agreement between himself and the late Sibonile Mlilo
together with the Registration book of his motor vehicle.
All was well until first respondent began advising applicant and her
husband of his intention to cancel the agreement of sale. The reason
for the cancellation is that the purchase price was no longer enough
for him to purchase a developed stand but rather enough to purchase
an undeveloped stand.
Upon receipt of these threats, applicant applied for an urgent
chamber application and obtained a provisional order interdicting
first respondent from selling or transferring the property to any
other person pending the finalization of the dispute which first
respondent opposed.
In his opposition first respondent argues that applicant should have,
in this urgent application under discussion disclosed that there was
a dispute relating to the Estate which was raised at the edict
meeting. For that reason, the matter cannot be resolved on the
papers. He, however, did not tell the court, what this dispute was
about.
It is necessary for first respondent to have disclosed the nature of
the dispute in order to enable the court to assess whether it is the
kind of dispute which would necessitate a referral to trial.
The legal position with regards
to referral of a matter brought to court by way of an exparte
application is that such a matter can be determined on the basis of
affidavits filed of record as long as there is no dispute of facts.
In the event of the existence of dispute of facts, the said facts
should be such that the matter cannot be determined without resort to
oral evidence.
The issue then is, is this the kind of matter which can be resolved
on the papers. In my view, it can be.
The dispute as referred to by first respondent is the edict meeting
which does not tell the court much. The hurdle as to implementation
of this agreement is as a result of first respondent's second
thought about the purchase price.
He freely priced this property and an agreement was reached on that
basis. The purchase price was subsequently fully paid. What is left
for him is to be honourable enough and fulfil his part of the
contract.
The facts are, therefore, very clear, there are no facts which
require oral evidence in this matter. The fact that he unilateral
made a mistake about the purchase price, by reason of miscalculation
in view of the prevailing inflationary environment is not a legal
reason which can justify his resiling from this contract.
This principle was clearly laid
down in University of
Zimbabwe v Gudza 1996
(1) ZLR (S) p249 quoted with approval in Smith
v Zesa 2003 (1) ZLR
158 where PARADZA J stated:
“where an offeror mistakenly
makes an offer that is accepted by the offeree, the offeror will only
be able to rescind the contract if-
(a) the offer was induced by
fraudulent misrepresentation by the offeree; or
(b) the mistake was a material
one the offeree knew or ought to have known that the offer had been
made in error.”
This, was not the position in the present case.
There is no legal justification for the cancellation of this
contract. The only reason for first respondent's conduct is the
desire to catch up with the ever escalating cost of immovable
properties. This, however, is not a good reason which can justify the
cancellation of the contract.
It is not applicant's duty to educate him about the pitfalls of a
failure to foresee economic downturns or upturns in life.
Applicant, as such was an innocent purchaser and needs to be
protected.
Costs
Applicant has asked for costs at
a higher scale. The courts, as a general rule are loathe to granting
punitive costs. They are ordered for instance among others, where the
losing party is shown to have lacked bona
fides
in his prosecution of his defence.
First respondent has absolutely no defence on the merits at all. All
he was doing was to try to deny applicant his legal right of
enforcing a clear contract. By so doing he abused court process as
his conduct was dishonest. The court in the present matter is
therefore obliged to show its indignation by awarding punitive costs
against him.
The provisional order granted on
the 2nd
July 2008 be and is hereby confirmed and the following order is
made:-
(a) that 1st
Respondent or in the alternative, 2nd
Respondent, be and is hereby ordered to cede the property called
Stand No. 5495 Cowdray Park, Bulawayo to the Applicant or her duly
authorized nominees or agents.
(b) that failing the above the
Deputy Sheriff, Bulawayo be and is hereby given leave to do all such
things in his powers as to cause the property to be ceded to the
Applicant by signing all necessary papers at the offices of the 4th
Respondent.
(c) that 1st
Respondent pays costs of suit on the legal practitioner and client
scale.
Shenje and company, applicant's legal practitioners
Mabhikwa, Hikwa and partners, respondent's legal
practitioners
