GOWORA J: In 1995 the
applicant (Agro Chem) purchased an undeveloped stand (the stand) from
the second respondent (City of Harare). The full purchase price was
paid. In terms of the agreement, Agro Chem was enjoined to undertake
certain minimum developments on the stand within a stipulated period
after the purchase.
It is common cause that no development has been undertaken on the
stand by Agro Chem. Sometime in June 2008 it came to the attention of
officials in Agro Chem that developments were being undertaken on the
stand in question. After investigations it emerged that the first
respondent (Gomo) had moved onto the stand. He had purchased the same
from City of Harare. A copy of such agreement has been attached to
papers filed on his behalf and the contract between the two was
concluded on 12 May 2008.
There seems to be some dispute as to whether or not the parties did
conclude an agreement of sale or whether in fact the stand was
awarded to Gomo as a retrenchment package.
It is common cause that Gomo is a former employee of City of Harare.
I do not believe that it matters for purposes of resolution of this
dispute what the nature of the transaction was. I will therefore
accept that Gomo purchased the stand from the City of Harare.
The applicant had the property transferred to itself before the
developments envisaged in the agreement were effected. The applicant
has now approached the court seeking the eviction of Gomo from the
stand.
Both respondents have opposed the relief being sought by Agro Chem.
Gomo is opposed to the relief on the basis of his agreement with City
of Harare. He is also of the view that Agro Chem has now lost its
title to the stand because City of Harare had cancelled the
agreement.
The view of City of Harare is that Agro Chem failed to undertake
developments within the period set in the agreement and that as a
result it, City of Harare, had cancelled the agreement and
repossessed the stand.
It is pertinent to note at this juncture that although the City of
Harare wrote letters to Agro Chem there is no other action that has
been taken by it to repossess the stand in question. As a result of
certain submissions made by counsel for the two respondents I
requested that additional heads of argument be filed in relation to
those submissions.
Before I go into the merits of the application it is only pertinent
that I examine the basis upon which Agro Chem seeks the eviction of
Gomo and discuss the legal status of the stand as matters stand
presently.
It is not in dispute that the
stand is registered in the name of Agro Chem, such title having been
registered in favour of Agro Chem on 20 November 1995. Registrations
of title in land are made in terms of the Deeds Registries Act [Cap
20:05], the Act,
specifically section 14 thereof which provides as follows:
“Subject to this Act, or any
other law-
(a) the ownership of land may be conveyed from one person to another
only by means of a deed of transfer executed or attested by a
registrar;
(b) other real rights in land may be conveyed from one person to
another only be means of a deed of cession attested by a notary
public and registered by a registrar;
Provided that attestation by a notary public shall not be necessary
in respect of the conveyance of real rights acquired under a mortgage
bond.”
The registration of title in
one's name constitutes the registration of a real right in the name
of that person. A real right is a right in a thing which entitles the
holder to vindicate his right, i.e. to enforce his right in the thing
for his own benefit as against the world; that is against all persons
whatsoever.
Another definition of a real
right is that it is a right in a thing which confers on the holder of
the right an exclusive benefit in the thing which benefit is
indefeasible by any other person. What, then, are the consequences
attendant upon the acquisition of a real right of this nature? The
effect of registration of a person's name as owner of a piece of
land is that he is the owner of the land including the permanent
buildings on it, in the absence of fraud, error or other exceptional
cases. Thus it is a principle of our law that the dominium
in immovable property remains in the seller until the same is
registered in the name of the purchaser. It follows therefore that an
owner of property cannot be deprived of his property against his
will. Consequently no person who is not the owner can transfer
ownership in anything whether or not such transferor was acting in
good faith or mala
fide. Since an owner
cannot be deprived of his property against his will, conversely, such
owner is entitled to recover his property from anyone who possesses
the property without his consent.
I am fortified in this view by
the comments of JANSEN J.A. in Chetty
v Naidoo
to the following effect:
“…………..It may be
difficult to define dominium
comprehensively (c.f. Johannesburg
Municipal Council v Rand Townships Registrar and Others
1910 T.S. 1314 at pa 1319), but there can be little doubt (despite
some reservations expressed in Munsamy
v Gen-gemma 1954 (4)
S.A. 468 (N) at pp 470H-471E) that one of incidents is the right of
exclusive possession of the res,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever holding it. It is inherent in the
nature of ownership that possession of the res
should normally be with the owner and it follows that no other person
may withhold it from the owner unless he is vested with some
enforceable right against the owner (e.g. a right of retention or
contractual right). The owner in instituting a rei
vindicatio, need,
therefore, do no more than allege and prove that he is the owner, and
that the defendant is holding the res-the
onus
being on the defendant to allege and establish any right to continue
to hold against the owner (c.f. Jeena
v Minister of Lands
1955 (2) S.A. 380 (A.D.) at pp 382E-383). It appears to be immaterial
whether in stating his claim, the owner dubs the defendant's
holding “unlawful” or “against his will” or leaves it
unqualified (Krugersdorp
Town Council v Fortuin
1965 (2) S.A. 335 (T)). But if he goes beyond alleging merely his
ownership and the defendant being in possession (whether unqualified
or described as “unlawful” or “against his will”, other
considerations come into play.”
With the exception of certain
instances where title may have been through fraud, the transfer of
ownership in a piece of land transfers dominium
in such land from the
holder to the purchaser and thus bestows on the transferee rights
control and possession of the land which rights are completely
unfettered except as may be subject to conditions in the deed of
transfer. In Willoughby's
Consolidated Co. Ltd v Copthall Stores Ltd,
LORD DE VILLIERS stated:
“………………………………….There
is no principle more clearly established in our law than that a clean
transfer of land coram
lege loci, which is in
the nature of a semi judicial act, passes the dominium
to the transferee, and
that, except perhaps in the case of ownership acquired by
prescription, the title appearing on the title deed is conclusive in
favour of a bona fide
purchaser, to whom such transfer has been effected. Even when land
has been acquired by prescription the practice is for the party who
has so acquired it to institute an action for duly registering his
acquired rights in the Deeds Office.”
When an owner of property
delivers the property sold and has the capacity of alienation, or if
he is not the owner but has the consent of the owner to alienate, the
effect of delivery is to transfer to the person of the purchaser the
property in the thing sold, provided the purchaser has paid for the
property or has been granted credit by the seller. On delivery, the
purchaser obtains a ius
in re, a real right in
the thing sold. With respect to immovable property delivery is
achieved through registration in the Deeds Office, as was decided in
Harris v Buissine's
Trustee, 2
M. The pertinent
passage from the judgment is as follows:
“By the law of Holland the
dominium
or ius in re
of immovable property can only be conveyed by transfer made coram
lege loci, and this
species of transfer is essential to divest the seller of, and invest
the buyer with, the dominium
or ius in re of the
immovable property, as actual tradition is to convey the dominium
of movables and that the delivery of the actual possession of
immovable property has no force or legal effect whatever in
transferring its dominium.”
A passage to the same effect is
found from C.I. Belcher in his book Norman's Purchase and Sale in
South Africa 4 ed quoting from Pothier, Vente,
319 et seq
had this to say:
“When the vendor is the owner
of the thing sold and has a capacity of alienation, or, if he is not,
when he has the consent of the owner, the effect is to transfer to
the person of the purchaser the property in the thing sold provided
the purchaser has paid the price or the vendor has given him credit
for it. The contract of sale by itself cannot produce this effect.
Contracts can only make personal engagements between the parties. It
is only delivery made in pursuance of the contract which can transfer
the property in the thing sold according to the rule Traditionibus
et usucapionibus domina rerum non nudis pactis transferantur.”
Once City of Harare had sold and
transferred the dominium
in the stand it lost any right to treat the property as its own. It
could sell the stand to Gomo as it did but it could not transfer the
dominium
in the same as it had lost it when it sold and transferred the same
to Agro Chem. The purchaser thus has the right to defend his rights
in the property against the world at large. The two respondents have
however sought to oppose the application on the basis that the
contract of sale has been cancelled and that not only does the City
of Harare have the right to sell it, it (City of Harare) can deal
with the property in any manner it deems appropriate.
I will therefore examine the defences mounted by the respondents to
the application. To put matters in context it is appropriate to start
with the second respondent, City of Harare.
It is contended on behalf of both respondents, both in the opposing
affidavits and in the supplementary heads of argument requested by
myself, that not only had the City of Harare cancelled the agreement
of sale it had commenced the process of re-transfer in terms of
clause 12 of the agreement of sale. Both make reference to two
letters allegedly sent to Agro Chem by City of Harare, the letters
are dated 26 February and 20 June 2008 respectively.
The deponent to the answering
affidavit filed on behalf of Agro Chem denies having received the
letters in question. According to the respondents, Agro Chem did not
respond to the letter of 20th
June which required that it surrender the title deeds to the legal
practitioners of the local authority as demanded and therefore its
silence meant that it had not challenged the process of re-transfer
that had been started by the local authority. The submission is also
made that the cancellation of the agreement of sale had also not been
challenged.
I am being entreated by the respondents to enquire into the agreement
and the terms and conditions of the same.
Both respondents contend that the agreement between the City of
Harare and Agro Chem was cancelled due to non performance of its
contractual obligations by the latter and that therefore the City of
Harare was entitled to sell the stand anew to Gomo.
Although both respondents talk of the agreement as having been
cancelled, it seems that of the two, Gomo was certainly alive to the
need to have something done about the agreement and to have the
transfer to Agro Chem set aside before any meaningful action could be
taken in having the property transferred to him. It seemed that this
necessary legal process completely escaped the local authority. The
mere demand by it of the return of the deed of transfer does not in
itself reverse ownership in the stand from Agro Chem to itself.
Equally the lack of response to the alleged letters of cancellation
does not, in itself exhibit that the recipient has accepted that the
property has changed hands as contended on behalf of the respondents.
According to the local authority when the parties signed the
agreement both were aware that ownership would be determined only
upon the development of the property.
I have not been referred to any
authority that would convince me to accept this submission and find
that ownership in the stand, notwithstanding the transfer to Agro
Chem would still be uncertain. I have examined the deed of transfer
that is attached to the papers and it does not have any conditions in
which there is any limitation on the vesting of title in the title
holder. Mr Hussein
has referred me to section 154 of the Urban Councils Act [Cap
29: 15] which provides
as follows:
“Conditions of title to land
transferred by municipal council
In the case of land granted to a municipality it trust for the
inhabitants of the municipality, such area being known as municipal
township land, which was granted subject to the conditions that-
(a) the British South Africa Company or the Governor of Southern
Rhodesia shall have the right to resume ownership of and to retake
possession of the said land or any portion thereof on payment of such
compensation as may be mutually agreed upon, or failing such
agreement, as may be determined by arbitration; and
(b) the right to all minerals in or the power to make grants of the
right to prospect for minerals on that land was reserved, either to
the British South Africa Company or the Governor of Southern
Rhodesia;
any such land which is or has been transferred whether before or
after the date of commencement of this Act, by the municipality or by
any successor in title to the municipality shall be deemed to have
been transferred and shall be held, notwithstanding anything to the
contrary in any other law, subject to the conditions referred to in
paragraphs (a) and (b) which were applicable to the municipal
township land concerned, save that any reference to the British South
Africa Company or the Government shall be construed as reference to
the President, and subject to any other conditions that may be
imposed by the municipality or any subsequent owner of the land.”
It is correct, as contended on behalf of the City of Harare that, in
terms of the section local authorities have been accorded the right
to impose conditions on the transfer of such land in the transfer of
lands falling under municipal township lands which would have
devolved upon such local authorities by way of grants from central
government.
The deed of transfer exhibited to me does not contain conditions
apart from a servitude registered in favour of the municipality and
the further requirement that any transfer from the title holder will
require its prior written consent.
I will assume that the reservation for resumption of title and the
right to prospect for minerals provided for in the section quoted in
the heads of argument are also applicable. Other than these remarks,
I find no relevance in the section referred to the current dispute.
The title deed did not impose any conditions other than those that
are stated on the same and we are not in this dispute dealing with a
resumption of ownership by the State or a dispute relating to mineral
rights.
Mr
Hussein makes the
submission that the conditions referred to in clause 12 of the
agreement did not have to be mentioned in the deed of transfer.
I am not sure by that submission if he means that the section he
quoted gives his client the right to summarily expropriate any
municipal land. To begin with, his client is a local authority and
cannot be equated under any circumstances to the President as
provided for in the quoted section. In any event, his client has not
set in motion any legal process to reclaim the stand apart for the
alleged letters that I have made reference to above. The view I take
is that the attempt to rely on section 154 of the Urban Councils Act
does not assist his client's position at all.
I do not have before me the issue
of the cancellation of the agreement between City of Harare and Agro
Chem and I am mindful that it is therefore incumbent upon me to tread
very carefully in this enquiry lest I compromise any future
proceedings in connection with this matter. However, it appears to be
the position of the respondents that the agreement between Agro Chem
and City of Harare has been cancelled and it is therefore virtually
impossible to decide the dispute without considering the position
they have adopted. The point was made by Mr
Hussein that upon
receipt of the letters allegedly sent to Agro Chem the latter should
either have complied with the demand to hand over the title deeds or
seek a declaratory order raising its entitlement to the claimed
property.
I have already dealt with the lack of co-operation to return the
title deeds and I will deal here with the suggestion that Agro Chem
should have sought a declaratory order.
This was apparently to deal with the conflict which is in the
agreement and the title deed. If the local authority finds that there
is a conflict in the agreement and the title deed then it would be
within its rights to have such conflict resolved by the court. The
local authority has not seen fit to do the same and has instead been
content to defend a vindicatory action brought by the title holder to
evict a claimant to the stand in question. A court cannot resolve a
dispute that has not been brought before it for specific relief.
In so far as the issue that the agreement was cancelled is concerned,
the attitude of Agro Chem is that any claim by the local authority
seeking the cancellation has now prescribed. The agreement was
concluded in 1995 and transfer to the purchaser was effected before
the year was up.
In terms of section 15(d) of the
Prescription Act [Cap
8: 11] a debt shall
prescribe after a period of three years. Debt, in the Act is defined
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. It therefore goes without
saying that the claim for cancellation of the agreement of sale is a
debt which then would prescribe within three years. Although this
submission was made in the heads of argument filed on behalf of Agro
Chem, the issue was not discussed by the local authority. My prima
facie view is that any attempt on the part of the local authority to
seek cancellation and re-transfer will be met with the defence of
prescription and I cannot fathom of any factor that may be available
to counter it.
It is trite that where
cancellation is lawful and justified on account of breach it takes
effect from the time that the innocent party communicates the breach
to the defaulting party. For this proposition, see Bako
& Anor v Bulawayo City Council,
wherein GUBBAY CJ stated the following dicta:
“Thus, it is those actions and
events which occurred after 23 March 1992 to which regard must be had
in determining whether the resistance to the cancellation was
justified in law; for cancellation takes effect from the time it is
communicated to the other party. See Swart
v Vosloo 1965 (1) SA
100 (A) at 105 (G); Phone-A-Copy
World-wide (Pty) Ltd v Orkin & Anor 1986
(1) SA 729 at 752A-C.”
It is common cause that the letter in which the local authority
sought to cancel the agreement of sale was written on 26 February
2008 which was a period well in excess of twelve years after the
contract was concluded. I do not think that it can be argued that
Agro Chem did not breach the agreement. It did not perform part of
the obligations imposed on it in the agreement, in that it failed to
construct buildings of a minimum standard and value as demanded by
the agreement. It is not in dispute that prior to the letter of 26
February 2008, there was no intimation on the part of the local
authority that it was canceling the agreement due to the breach. The
local authority therefore was within its rights to elect to cancel
the agreement due to the breach. It is common cause that instead of
acting on the breach the local authority went on to have transfer of
the stand registered in the name of Agro Chem.
In his heads of argument, Mr
Hussein took issue
with the date on the Power of Attorney that was prepared in respect
of the transfer to Agro Chem.
This averment, which is evidentiary in nature is made as a submission
in the heads of argument. If indeed there was issue to be taken on
the date on the Power of Attorney the appropriate manner of bringing
it to the attention of the parties was by averment under oath in the
opposing affidavit, which was not done. Indeed, one would have
expected that the document itself would have been exhibited to the
court as part of the papers used by the local authority in opposing
the application.
In any event, why would the local authority question the authenticity
of the Power of Attorney when transfer is not being challenged?
The moot point however, is that in all this debacle the local
authority has never sought to have the transfer reversed even if one
were to accept that it was effected in an irregular manner.
Again in the heads of argument it is submitted that the local
authority waived its rights to claim cancellation of the contract.
According to Christie -The Law of Contract 3ed p 488 there is a
presumption against waiver of contractual rights even in some cases
strongly suggesting the same. Thus there is a heavy evidentiary
burden on the party alleging waiver to establish the same on a
balance of probabilities.
In considering the question of waiver, I am reminded that the issue
was brought up in written submissions and was not raised as an
averment in the papers filed by the parties.
An examination of the facts as presented on the papers may throw some
light, as to whether, despite not having raised it on the papers,
Agro Chem can rely on the issue of waiver as submitted in the heads
of argument.
In the opposing affidavit filed
on behalf of the local authority there is an acceptance that the
property was transferred to Agro Chem and that demand of the Deed of
Transfer was made by a letter dated 26 February 2008. This is the
cancellation that is being relied on to defeat the claim for
eviction. It seems to me that by transferring the stand to Agro Chem
the local authority elected to abide by the contract. The local
authority in fact discharged its obligations in terms of the
agreement between the parties. If the innocent party to the contract
elects to abide by the contract, he cannot thereafter rescind it for
the original breach, even though a subsequent breach may give rise to
a fresh right to cancel. Thus a tacit election to affirm the contract
may be viewed as a form of waiver. As to what amounts to an election
this is what SANDURA JA said in Guardian
Security Services (Pvt) Ltd v ZBC:
“…………………………It
is clear that election generally involves a waiver. One right is
waived by choosing to exercise another right which is inconsistent
with the former.”
What is referred to as the
doctrine of election was discussed in the earlier case of Segal
v Mazzur
at pp 644-5 by WATERMEYER AJ in the following terms:
“Now, when an event occurs
which entitles one party to a contract to refuse to carry out his
part of the contract, that party has the choice of two courses. He
can either elect to take advantage of the event or he can elect not
to do so. He is entitled to a reasonable time in which to make up his
mind, but once he has made his election he is bound by that election
and cannot afterwards change his mind. When he has made an election
one way or another is a question of fact to be decided by the
evidence. If, with knowledge of the breach, he does an unequivocal
act which necessarily implies that he has made his election one way,
he will be held to have made his election that way; this is, however,
not a rule of law, but a necessary inference of fact from his
conduct…..”
The evidence I have to consider is none other than the Deed of
Transfer in favour of Agro Chem as well as the agreement of sale
itself, specifically the latter, the pertinent part of which is as
follows:
“12 (a) THE PURCHASER shall
effect or cause to be effected on the stand principal buildings
designed for industrial manufacturing, factory or other purposes
permitted by the Municipality to the minimum value of $750,000.00.
(b) Such buildings shall be
commenced on the stand within six months from the date of sale and
shall be duly completed within twelve months from such date. If such
buildings have not been commenced or completed as aforesaid then in
either case the Municipality shall ipso facto be entitled to cancel
the sale of the stand or claim retransfer as the case may be. If the
sale of the stand is cancelled or the stand is claimed in terms of
this clause for default in the payment of the balance of the purchase
price or any interest thereon or by mutual consent then the
Municipality shall refund to the purchaser the amount paid in respect
of the purchase price of the stand plus compensation for any
buildings or other permanent improvements.”
The agreement was concluded on 29
March 1995. When regard is had to clause 12(a) and (b) therefore the
building of improvements with a minimum value of $750,000.00 should
have commenced within six months of the date of conclusion of the
agreement. Transfer to Agro Chem was effected on 20 November 1995,
which is a period just short of seven months after the agreement was
concluded. It was obvious at that date that no improvements had been
effected on the stand and that the purchaser might be in
mora in the
performance of its obligations. There is no suggestion on the papers
that it sought an extension of time within which to comply with that
particular obligation, yet, notwithstanding this failure to abide by
the conditions set in the contract, the property was transferred to
the purchaser. This failure to build on the stand is the reason that
the local authority seeks to rely on in alleging cancellation of the
contract. In my view, an event entitling the local authority to seek
cancellation occurred before the transfer was effected yet the local
authority elected to discharge the last of its obligations in terms
of the contract.
I will not dwell on the
suggestion by Mr
Hussein that in view
of the date of the Power of Attorney the transfer must have been
fraudulent. I take judicial notice of the fact that other than a
power of attorney other documents are submitted for purposes of
transfer and if indeed it was felt that the transfer had been
irregular something would have been done by now to set it aside on
the basis of such irregularity.
It was decided by SANDURA JA
that in determining whether or not the facts established an intention
to waive a right in a contract a court had to apply the objective
test. The learned judge of appeal had this to say:
“I find support for my views in
number of South African cases. In Palmer
v Poulter 1983 (4) SA
11 (T) at 20C-D, ACKERMAN J, in delivering the judgment of the Full
Bench, said:
'If the appellant, with full
knowledge of the facts has so conducted herself that a reasonable
person would conclude that she had waived her accrued right to cancel
the agreement or had affirmed the agreement, a mental reservation as
to the contrary will not avail her.'
The objective test therefore
prevailed. That decision was followed by the full bench of the Cape
Provincial Division in Multilateral
Motor Vehicle Accidents Fund v Meyerowitz 1995
(1) SA 23 at 27. Subsequently, in Bekazaku
Properties (Pty) Ltd v
Pam Golding Properties
(Pty) (Ltd) 1996 (2)
SA 537 (C) at 543J-544A, FRIEDMAN JP, in delivering the judgment of
the full court, said:
'If the innocent party with
full knowledge of his rights performs an unequivocal act from which a
reasonable person would necessarily infer that he has elected to
affirm the contract, he would be bound thereby, whatever subjective
reservations he might have had. On the other hand, if the act on
which it is sought to rely for the existence of an election is not
unequivocal, regard must be had to the subjective considerations
which motivated the party concerned in order to determine whether the
act in question does in fact constitute an election or not.'”
Applying these principles to the facts of this matter it leaps to the
mind that the conduct displayed on the part of the local authority's
officers an impression was created that not only was the latter
affirming the contract, it was complying with all its obligations
under the contract of sale.
A transfer to Agro Chem could not have been effected without the
specific authorization of the seller. Documents necessary for such
transfer would have been drawn up and signed by authorized
signatories on behalf of the local authority. At the time the
decision to transfer title to Agro was made there must have been an
awareness that there had been no compliance with the requirement to
effect the minimum improvements on the stand as required by the
agreement of sale. Notwithstanding the knowledge that the conditions
had not been complied with it took the local authority almost
thirteen years before it called up the agreement. If such
dilatoriness in seeking to enforce a right in a contract is not
indicative of a waiver of a right to cancel it would be difficult to
imagine what else such conduct constitutes.
In the Guardian
Security case SANDURA
JA considered that a period of twelve months before an innocent party
decided to terminate an agreement based on the alleged breach of the
same by the other party to the contract is not a reasonable period.
In casu
more than a decade went by before the local authority decided to do
something. Even then, its attempt to enforce its rights under the
agreement cannot even be termed half-hearted. They are virtually
non-existent.
Having had transfer in the stand registered in the name of the
purchaser it cannot have escaped notice that what was required, if at
all it was still possible, was an effort to have the transfer set
aside. It has not done so and would in all probability not have come
to court to allege cancellation of the agreement if the purchaser had
not dragged it to court in a bid to evict Gomo.
From the facts established on the papers it is my view that the local
authority never reserved its rights in the contract, and that if it
did those reservations were never communicated to the purchaser. It
is my finding that it elected to abide by the agreement
notwithstanding the default by Agro Chem to construct improvements as
required by the agreement. I find therefore that there was waiver on
the part of the local authority and it cannot now rely on
cancellation to seek to prop up the defence proffered by Gomo to
defend the claim mounted for his eviction from the stand.
I turn now to consider the opposition mounted by Gomo against the
claim for eviction.
It seems to me that strength of
his defence to the claim is wholly dependant on how successful the
local authority is in defending its own position in this dispute. The
basis of the defence was that the agreement had been cancelled and I
have found that there was no cancellation as by the time the local
authority sought to cancel the agreement transfer had been effected
the result of which was to vest dominium
in the stand in Agro Chem.
It was contended on behalf of Gomo that an aggrieved party to a
contract of sale has the option of not only canceling an agreement of
sale but also claim cancellation and restitution of what he has paid
over or transferred under the contract.
In casu,
cancellation was communicated more twelve years after default
occurred and there has been no effort on the part of the seller to
claim re-transfer in the stand. Apart from an excerpt from Kerr I was
not referred to any authority to bolster the contention that after
the transfer of real rights to it, Agro Chem could be compelled to
retransfer the stand on the basis of a breach which occurred prior to
the registration of real rights in its name.
In the supplementary heads of argument filed on his behalf Gomo
contends that the reversal of transfer was in terms of clause 12(a)
of the agreement of sale between Agro Chem and City of Harare.
Unfortunately for Gomo there has been no process filed to have the
transfer set aside and Agro Chem therefore remains the registered
owner of the stand.
It is a correct statement of the
law that a seller has an option to cancel and to claim restitution of
merx,
even where there has been delivery. The question I posed to Mr
Zhou was whether in
fact a seller, after having transferred land and authorized its
registration in the name of the purchaser can cancel the contract and
obtain retransfer. I have not been pointed to any authorities on the
issue in point. The only authorities I have had occasion to read are
those where either movables were the subject of the sale or, if an
immovable was the subject matter, then cancellation would be before
transfer of rights to the purchaser.
In this regard I have been
invited to look at the conditions of the agreement by Gomo, which
conditions he contends were not performed by Agro Chem. It was
contended further that the court in
casu could not ignore
the agreement of sale as it recorded the intention of the parties
vis-à-vis the transfer. It is further contended that the election to
claim rescission of a contract and the return of the thing sold is
available to a seller where the contract contains a clause (a
lex commissoria)
providing for rescission in the circumstances in question.
Indeed the agreement which gave rise to this application does contain
a clause for rescission, but the local authority apart from the
letters I have mentioned above has not sought to have the sale set
aside and the property retransferred to itself.
The arguments being presented by Gomo would be more properly and
appropriately made if they were being presented on behalf of the
local authority. As he was not a party to the agreement I cannot
accept that Gomo has even a modicum of standing to make submissions
in relation to the dilatoriness on the part of Agro Chem in the
performance of its obligations under the agreement.
There is before me no application for a reversal of the transfer and
to embark on this enquiry appears to be a futile exercise.
I also find that the suggestion that the court look at the intention
of the parties to the contract is ill-conceived. A party who was not
privy to a contract which is the subject matter of a dispute cannot
make submissions in relation to the intention of the parties to the
contract with any conviction. Any suggestion of what the parties
thereto may have intended can at best be described as conjecture.
Only the parties to the contract can speak to the terms and
conditions thereof and whether or not such terms accord with the
intentions of the parties at the time the contract was concluded.
In any event the agreement of sale was antecedent to the transfer and
once transfer is effected the court cannot revert to the agreement
except in certain exceptional circumstances not pertinent to this
dispute.
It was further contended on behalf of Gomo that what was before the
court was a situation which was akin to a double sale and that
therefore the principles applicable to a double sale should be
applied in determining this dispute.
I do not see how the situation I
am dealing with can be akin to a double sale. The local authority
sought to sell what was no longer its property. It is correct as
submitted by Mr Zhou
that a person can sell property that belongs to someone else. The
only problem is that the effect of registration of rights in land is
that the registered owner has the right to defend his right in the
property against the world at large. Gomo cannot get title because
the vendor in his case had no title to pass to Gomo.
It is not necessary in my view to
embark on another exercise as to whether or not Agro Chem was in
possession of the stand. It is for the trespasser to establish a
right to be on the stand. In Chetty
v Naidoo
JANSEN JA, quoting with approval the dicta in Jeena
v Minister of Lands
stated thus;
“………….The owner, in
instituting a rei vindication, need, therefore, do no more than
allege and prove that he is the owner and that the defendant is
holding the res - the onus being on the defendant to establish any
right to continue to hold against the owner (cf.. Jeena
v Minister of Lands
1955 (2) S.A. 380 (A.D.) at pp 382E, 383).”
It appears to be immaterial
whether, in stating his claim, the owner dubs the defendant's
holding 'unlawful' or 'against his will' or leaves it
unqualified (Krugersdorp
Town Council v
Fortuin,
1965 (20 S.A. 335 (T).”
The right claimed by Gomo cannot withstand a claim by the owner for
eviction, the former not having proffered a justifiable reason for
being on the stand. The registered has a right to vindicate his
property against anyone unless a lawful defence is presented against
the claim. No such defence has been established on these papers and
it is my finding that the applicant has established a claim for the
eviction of Gomo from the stand.
In the premises I make an order in the following terms:
It is ordered that:
(a) The respondent and any person
claiming occupation through him be and are hereby ordered to vacate
Stand 404 Willowvale Township of Willowvale, situate in the District
of Salisbury, within ten (10) days of the date of service of this
order and in the event of the first respondent or any person claiming
occupation through him failing or refusing to vacate the stand in
question, then the Sheriff for Zimbabwe or his lawful Deputy be and
is hereby authorized to evict them from the same and give vacant
possession to the applicant.
(b) The costs of this application
shall be borne by the first and second respondents jointly and
severally, the one paying the other being absolved.
Sawyer & Mkushi legal practitioners for the applicant
Hussein, Ranchod & Co legal practitioners for the first
respondent
Gill, Godlonton & Gerrans legal practitioners for the
second respondent
1. See Wille's Principles of South African Law 8ed p 259
2. 1974 (3) S.A. 13 at 20A-E
3. 1913 A.D 267 at 276
4. 1996 (1) ZLR 232 at 240F
5. 2002 (1) ZLR 1 (S) at 7A-B
6. 1920 CPD 634
7. Guardian Security Services P/L v ZBC (supra)
8. At p 7D-H
9. 1974 (3) SA 13 at 20C
10. 1955 (2) SA 380 (A.D)
