The
applicant is seeking an order in a draft in the following terms:
“It
is ordered that:
(1)
Upon tendering of the balance of the purchase price by the applicant,
first to fifth respondents be and are hereby directed to take all
reasonable steps necessary to effect transfer of Stand 3553
Emganwini, Bulawayo, into applicant's name.
(2)
In the event that first to fifth respondents refuse to accept
payment, the Deputy Sheriff be and is hereby authorized to accept the
money on their behalf and proceed to sign all the necessary documents
at 7th
and 8th
respondents' offices to effect transfer of Stand Number 3553
Emganwini, Bulawayo, into applicant's name.
(3)
The 7th
and 8th
respondents be and are hereby directed to transfer Stand Number 3553
Emganwini, Bulawayo into applicant's name.
(4)
First to fifth respondents are to pay the costs of this suit on an
attorney-client scale.”
The
salient facts of the matter are the following.
The
first respondent is the estate of the late A Mtsana. The second,
third, fourth and fifth respondents are the late A Mtsana's
children.
During
her lifetime, the late A Mtsana entered into an agreement with the
applicant for the sale of a Stand yet to be identified by the late at
a total cost of $18 million to be paid in fixed monthly installments.
Only the second respondent was privy to this agreement, the third to
fifth respondents were not.
As
per the agreement, the first respondent secured Stand Number 3553
Emganwini, Bulawayo for the applicant. It is apparent from the
annexures filed by the applicant that both the applicant and the late
A Mtsana signed the agreement which stipulates that the price was
varied to $100 million and that the Stand was then identified as 3553
Emganwini. The annexures A-C contain the agreement between the late A
Mtsana and the applicant and it is in the following terms:
“27
September 2004
UHebert
Mabunu Sikosana I.D. 08-282566 N 73 ubhadale i$2,000,000 eyestand.
Cost $18,000,000. Balance $16,000,000.
S
Ncube (signed)
A
Mtsana (signed)
H
Sikhosana (signed)
5
October 2004
Paid
$3,000,000
Balance
$13,000,000
S
Ncube (signed)
H
Sikhosana (signed)
A
Mtsana (signed)
24
October 2004
Paid
$2,000,000
Balanace
$11,000,000
S
Ncube (signed)
A
Mtsana (signed)
7
November 2004
Paid
$2,000,000
S
Ncube (signed)
Balance
$9,000,000
A
Mtsana (signed)
Herbert
(signed)
20/11/04
Paid
$1,000,000
Balance
$8,000,000
S
Ncube (signed)
A
Mtsana (signed)
11/12/04
Paid
$1,500,000
Balance
$6,500,000
A
Mtsana (signed)
S
Ncube (signed)
New
Year 2005
19/01/05
Mr H Sikhosana
Paid
$3,000,000
Balance
$3,500,000
S
Ncube (signed)
A
Mtsana (signed)
8-03-05
Paid
$2,000,000
Balance
$1,500,000
S
Ncube (signed)
A
Mtsana (signed)
H
Sikhosana (signed)
Sale
of Stand No. 3553
Continued
from 27 September 2004
$100,000,000
$16,500,000
Balance
$83,500,000
S
Ncube (signed)
A
Mtsana (signed)
H
Sikhosana (signed).”
It
is beyond dispute that the late Mtsana and the second respondent
signed against each payment that the applicant made. It is beyond
dispute, from the foregoing, that the applicant and the late Mtsana
signed for the variation. The only term varied is the purchase price
which was increased from the initial $18 million to $100 million.
The
late A Mtsana died in April 2005 when the agreement between the
parties was still valid and effective. It was after the deceased's
death, when the applicant went to make his payment, when the second
to fifth respondents refused to accept the money and advised the
applicant that they were now cancelling the contract prompting the
applicant to seek redress in this court via this application.
In
opposing this application, the third respondent then filed an
opposing affidavit allegedly on behalf of the first to fifth
respondents.
The
opposing papers raised the following issues:
(a)
The applicant has used the wrong procedure as he should have
proceeded by way of summons;
(b)
That the applicant has nothing against the respondents since he did
not know the property he was purchasing at the time of contracting;
(c)
That the respondents have cancelled the contract since the applicant
breached it by failing to pay timeously; and
(d)
That a new term of the contract was introduced at the time of the
variation in terms of which the applicant was required to pay $40
million immediately upon signing the agreement and that he failed to
fulfill this obligation.
I
propose to consider these issues in turn.
1.
Whether the dispute cannot be resolved on affidavit
In
my view, the essential issues in casu are common cause or at least
beyond dispute between the parties, and, further, the outstanding
disputed issues can easily be resolved on the papers even without
adopting a robust approach. In the circumstance, the application
procedure was the proper method of bringing this dispute before this
court.
It
is common cause, as evinced by the above written agreement, that the
applicant and the late A Mtsana, who was assisted by the second
respondent throughout, entered into an agreement of sale of a Stand
yet to be identified by the said A Mtsana at a total cost of $18
million to be paid in monthly instalments. The applicant was
substantially complying with his obligations though at times he
failed to pay the full installment. The late A Mtsana and the second
respondent would receive these instalment amounts including those
payments less than the full installment and acknowledge payments by
signing on the above-mentioned document together with the applicant.
It
is beyond dispute that the deceased eventually offered Stand Number
3553 Emganwini to the applicant and the latter accepted the offer. As
highlighted above, the applicant and the late A Mtsana, upon finally
agreeing on the actual Stand, varied the terms of the contract by
increasing the purchase price from $18 million to $100 million.
This
new agreement was also reduced into writing in March 2005.
It
is also beyond dispute that annexures A to C, whose contents have
been articulated above, are genuine documents done by the applicant
and the late A Mtsana and witnessed by the second respondent. In
particular, the authenticity of these documents is not disputed in
the opposing papers of the respondents. The only disputed factual
issue is the allegation by the third respondent that when the
agreement was varied, the applicant was supposed to pay $40 million
immediately upon signing the agreement and that the agreement fell
away after the applicant failed to pay the said amount. This is the
only contentious issue in this matter. This issue does not warrant
the hearing of oral evidence for a variety of reasons that follow.
First,
it is common cause that the third respondent was at no point involved
in the dealings between the applicant and the late A Mtsana. Both the
initial and varied agreements were executed only in the presence of
the second respondent. As the second respondent had the personal
knowledge of the facts deposed to, she was supposed to file an
affidavit on this issue. She did not.
Second,
the parties, throughout their dealings in respect of this agreement,
reduced every step into writing. Nowhere in the agreement was it
recorded that the applicant was to pay $40 million instantly. This
issue is absent from the written agreement because it was never part
thereof and it is a mere creature of the third respondent.
It
is trite that even where there are dispute of facts, the court should
endeavour to resolve these without hearing oral evidence if that can
be done without doing an injustice to either party.
In
casu,
the facts are really not in dispute and the rights of the parties
depend upon a question law, there is a manifest advantage in dealing
with the matter by the speedier and less expensive method of
application – Frank
v Ohlsson's Cape Breweries Ltd
1924 AD 289…, and Van
Rensburg v Van Rensburg en Andere
1963
(1) SA 505 (A).
As
alluded to above, the issue of the instant payment of $40 million can
only be determined on the considerations of probability without
involving also the credibility of witnesses giving evidence viva
voce
–
Less
and Anor v Bornstein & Anor
1948 (4) SA 333 (C) and
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T).
It
is trite that the determination of the question whether a real and
genuine dispute of fact exists is a question to be determined by the
court – Ismail
& Anor v Durban City Council
1973 (2) SA 362 (N)…,. The respondent's allegation of the
existence of such a dispute is not conclusive.
In
Peterson
v Cuthbert & Co Ltd
1945
AD 420…, it was held:-
“In
every case, the court must…, see whether in truth there is a real
issue of fact which cannot be satisfactorily determined without the
aid of oral evidence. If this were not done, the respondent might be
able to raise fictitious issues of fact and thus delay the hearing of
the matter to the prejudice of the applicant.”
See
also Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T)…, and The
Civil Practice of the Supreme Court of South Africa
(4th
Edition), HERBSTEIN and VAN WINSEN…,.
In
casu,
the third respondent has raised a fictitious issue of fact which is
not contained in the written agreement of the parties.
As
rightly pointed by PRICE JP in Soffiantini
v Mould
1956 (4) SA 150 (E)…,.:
“If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to court on motion, then motion proceedings are
worthless; for a respondent can always defeat or delay a petitioner
by such device. It is necessary to make a robust, common-sense
approach to a dispute on motion as otherwise the effective
functioning of the court can be hamstrung and circumvented by the
most simply and blatant stratagem. The court must not hesitate to
decide an issue of fact of affidavit merely because it may be
difficult to do so. Justice can be defeated or seriously impeded and
delayed by an over-fastidious approach to a dispute raised in the
facts.”
Lalla
v Spafford NO & Ors
1974 (1) SA 191 (R) and Joossab
& Ors v Shah
1972 (4) SA 298 (R)….,.
2.
Whether the contract was invalid from its inception
It
is trite that parties to a contract have the freedom to contract on
any terms of their choice provided that the contract is not tainted
with illegality.
The
issue here is the sale of an
un-ascertain Stand.
It
is trite law that parties can contract for the sale of property not
yet ascertained or in
existence – Business
Law in Zimbabwe
(1st
Edition) by R CHRISTIE…, and Rhodesian
Wire Industries (Pvt) Ltd v A & J Construction
1964 RLR 456…,.
The
non-availability of the Stand, at the initial stages of the contract,
does not invalidate the contract. The parties were in agreement that
they were contracting for a Stand yet to exist. The role of the court
in such a case is to enforce the will and wishes of the parties. Once
the contract was concluded, the seller, the late A. Mtsana,
immediately had an obligation and duty to deliver a Stand hence her
subsequent securing Stand Number 3553 Emganwini and offering it to
the applicant.
3.
Whether the proposed cancellation of the contract by the third
respondent is valid
It
is beyond dispute that in terms of section 2 of the Contractual
Penalties Act [Chapter 8:04] [hereinafter referred to as the “Act”]
the agreement in
casu
is an installment sale of land because it involves the sale of land
in three or more instalments as evinced by the record of payment in
the above mentioned annexures. In the circumstances, the contract
between the parties must be terminated in terms of the provisions of
section 8 of the Contractual Penalties Act.
Section
8 of the Contractual Penalties Act [Chapter 8:04] provides:
“(1)
No seller under an installment sale of land may, on account of any
breach of contract by the purchaser -
(a)
Enforce a penalty stipulation or a provision for the accelerated
payment of the purchase price; or
(b)
Terminate the contract; or
(c)
Institute any proceedings for damages, unless he has given notice for
damages, unless he has given notice in terms of subsection (2) and
the period of the notice has expired without the breach being
remedied, rectified or discontinued, as the case may be.
(2)
Notice of the purposes of subsection (1) shall -
(a)
Be given in writing to the purchaser; and
(b)
Advise the purchaser of the breach concerned; and
(c)
Call upon the purchaser to remedy, rectify or desist from continuing,
as the case may be, the breach concerned within a reasonable period
specified in the notice which period shall not be less than -
(i)
The period fixed for the purpose in the instalment sale of the land
concerned;
(ii)
Thirty days;
whichever
is the longer period.”
In
casu,
it has not been alleged nor contended by the respondents that they
gave the applicant a notice to terminate the contract as required by
the Contractual
Penalties Act.
In fact, no such requisite notice was given. At the time of the late
A Mtsana's death the agreement was in existence and the alleged
breach had already been committed and condoned by the deceased
personally before her demise. She accepted the late, and sometimes
inadequate, payments personally and went further on to sign the
renewal agreement thereafter. This in fact amounted to condonation of
the breach.
In
the circumstances, the second to fifth respondents cannot
retrospectively cancel the agreement on the basis of the same breach
which the deceased herself condoned in her lifetime.
Accordingly,
the purported cancellation is invalid – Preston
v Choruma Blasting Co
1999
(2) ZLR 201 (S).
In
view of the above, the applicant has established a case for the
relief sought. Accordingly, it is ordered that the applicant be and
is hereby granted an order in terms of the above-mentioned draft
order.
