The appellant is the registered owner of a certain property called Lot 4 of Stand 31A,
Groombridge Township 2, Harare, measuring 4318 square meters and held under
deed of Transfer No. 5295/74.(“the property”).
She is resident in the United Kingdom. Sometime in January
2009, she gave to Vivian John de Villiers (“de Villiers”) power of attorney to
manage her affairs here in Zimbabwe. In about July 2009, Vivian John de
Villiers advertised the property for sale on the internet. The respondent's Director,
Mrs Chipo Makamure, who had been on the lookout for a property to buy, heard of
it through Midstar Properties (Private) Limited Estate Agents (“Midstar”).
Together with her husband, Alex Makamure, she viewed the property and made an
offer to purchase which resulted in an Agreement of Sale being concluded on 25
August 2009. The Agreement was drawn by Midstar Properties (Private) Limited
Estate Agents and signed by Vivian John de Villiers on behalf of the Seller,
and Mrs Makamure for Voteti.
Clause 9 of the Agreement contained the terms of payment.
The purchase price was USD145,000= of which USD10,000= was to be paid by the Seller
as commission. A deposit of USD50,000= was to be paid upon signature of the Agreement
and the balance of USD95,000= was to be paid into the Seller's account. No account
was nominated in the Agreement. Vacant
possession was to be given to the Purchaser on 1 November 2009.
When Mr Makamure, on behalf of Voteti, attempted to make
payment into the offshore account details of which were provided by Vivian John
de Villiers (through Midstar Properties (Private) Limited Estate Agents) he was
advised that the funds in Voteti's account were not free funds and could not be
transferred to a foreign account without the approval of the Reserve Bank of
Zimbabwe. Further, it would cost an additional USD2,000= to effect the
transfer. The Makamures returned to Midstar Properties (Private) Limited Estate
Agents to advise of the problem. Midstar Properties (Private) Limited Estate
Agents's Group Chief Executive Officer, Dr A Magirazi, (“Magirazi”) telephoned Vivian
John de Villiers who authorized payment of the purchase price into Midstar
Properties (Private) Limited Estate Agents's account.
On 2 September 2009, Voteti made full payment of the
purchase price into the account of Midstar Properties (Private) Limited Estate
Agents. On 4 September 2009, Dr A Magirazi wrote to Musariri Law Chambers
instructing them to attend to the transfer of the property to Voteti.
In October 2009, the date is not given, the appellant came
to Zimbabwe. During her stay, she sold her personal belongings (which were at
the property) and had cordial meetings with the Makamures. She was aware,
according to Vivian John de Villiers, that Midstar Properties (Private) Limited
Estate Agents was in receipt of the entire purchase price, USD40,000= of which
had already been transferred into the nominated account in Ireland which was
held by her niece, one Fiona Fields. She did not discuss the purchase price
with the Makamures. She met with Dr A Magirazi and her attorneys, Lofty and
Fraser. She returned to the UK after
giving instructions to Vivian John de Villiers that the balance of the purchase
price should be paid into Lofty and Fraser's trust account. The title deeds of
the property were being kept by that firm.
By 19 October 2009, transfer of the property to Voteti had
not been effected and its legal practitioners wrote to Dr A Magirazi as well as
to Lofty and Fraser demanding the release of the title deeds to enable the
transfer to be effected and advising that in the event of their failure to
comply with that demand it was their intention to sue for specific performance
of the contract and damages. No response was received to this letter. Instead,
on 1 November 2009, Voteti was given vacant possession of the property by Vivian
John de Villiers. By then, the balance
of the purchase price had not been paid by Midstar Properties (Private) Limited
Estate Agents to Lofty and Fraser.
On 3 November 2009, an agreement described as a 'Memorandum
of Understanding' (MOU) was concluded between “Mr Viv De Villias “FOR KATHLEEN
HANCOCK” being the Seller of No.7 Thornburg Avenue, Mount Pleasant, Harare” (it
is common cause that this was a misspelling of De Villiers) and “Midstar
Properties (Pvt) Ltd HERETO REFERRED TO AS THE SELLERS' AGENT.”
The terms of the Agreement were as follows:
“THE PARTIES TO
THIS MEMORANDUM AGREED THAT:-
1. Midstar Properties (Pvt) Ltd received from Voteti
Trading (Pvt) Ltd the sum of US145,000= for the purchase of No.7 Thornburg Ave
Mt Pleasant by the later.
2. The agent's negotiated commission was US$10,000=. The
deposit amount of US$40,000= was transferred by Midstar Properties (Pvt) Ltd
into the seller's offshore account on 1st September 2009.
3. The next payment of US$30,000= was paid by the agent
into Lofty and Frazer Legal Practitioner's Stanbic Account on 29th
October 2009.
4. Upon confirmation of delivery of US$30,000=, the total
released at the date of this understanding is US$70,000= leaving a balance of
US$65,000=.
5. The balance will be paid in weekly instalments of
US$20,000= effective 1st November 2009.
6. The agent, Midstar Properties (Pvt) Ltd, guarantees that
these amounts shall be disbursed through telegraphic transfer into Lofty and
Frazer Legal Practitioner's Stanbic Account.
7. The seller will allow the buyer to take occupancy of the
property, namely, No.7 Thornburg Avenue, Mount Pleasant, Harare effective 1st
November 2009 on a rental basis at a cost of US$600= per month. This cost to (sic)
shall be borne by the Agent and shall be payable until such time as payment has
been received in full.
8. Legal costs incurred by both the buyer and seller as a
result of the handling of this sale shall be borne by Midstar Properties (Pvt)
Ltd and paid on presentation.
9. This understanding shall remain in force until such time
as the agent has paid the whole outstanding amount and no amendments shall be
made by either party unless by consent and in writing.”
Following this Memorandum of Understanding, a payment of
USD10,000= was deposited by Dr A Magirazi on 4 November 2009 into the trust
account of Lofty and Fraser.
It was not until 4 January 2010 that the appellant's legal
practitioners wrote to Voteti's legal practitioners responding to their letter
of 19 October 2009. In that letter, they alleged that the purchase price had
not been paid in full in accordance with the terms of the Agreement and that
unless the full purchase price was paid, it was the Seller's intention to
cancel the contract.
Four months later, on 7 April 2010, the appellant's legal
practitioners, by letter to Voteti's legal practitioners, advised that the Agreement
was cancelled.
By 13 June 2010, no further payment in terms of the Memorandum
of Understanding had been made and Vivian John de Villiers reported the matter
to the police. Two days later, on 15 June 2010, Voteti issued summons against
the appellant claiming, inter alia, transfer of the property, and, in the
alternative, a refund of the purchase money paid in the sum of USD145,000=.
The appellant counter- claimed for the ejectment of Voteti
from the property and tendered the amount received by her which she claimed to
be USD80,000=.
The court a quo heard evidence from Alex Makamure and Vivian
John de Villiers. It found Alex Makamure's evidence to be 'more consistent and
certainly more credible than the contradictory version presented by de Villiers.'
It found that Midstar Properties (Private) Limited Estate Agents was the agent
of the Seller and that it was endowed with authority by the Seller's representative,
Vivian John de Villiers, to receive payment of the purchase money into its
account. It concluded that the payment by Voteti into the account of Midstar
Properties (Private) Limited Estate Agents constituted a valid discharge of its
obligations in terms of the contract of sale.
The main issues argued on appeal were whether the court a
quo was correct in finding that Midstar Properties (Private) Limited Estate
Agents was the agent of the Seller, and, if so, whether Midstar Properties (Private)
Limited Estate Agents was possessed of the necessary authority to receive
payment on behalf of the Seller.
These issues are dealt with in turn.
Whether Midstar
Properties (Private) Limited Estate Agents was the agent of the Seller or the Purchaser
It was contended, on behalf of the appellant, that the
finding of the court a quo that Midstar Properties (Private) Limited Estate
Agents was the agent of the Seller was wrong. It was also contended that Midstar
Properties (Private) Limited Estate Agents was, in fact, the agent of Voteti
since it was mandated by the Makamures to find them a property to purchase. The
Memorandum of Understanding, so it was submitted, was drawn up by Memorandum of
Understanding in discharge of its mandate as agent of Voteti.
Apart from the denial by Makamure that Midstar Properties (Private)
Limited Estate Agents was Voteti's agent, there are pointers in the evidence
which support the conclusion arrived at by the trial judge.
a) The Memorandum of Understanding signed by Vivian John de
Villiers and Dr A Magirazi on the 4th November 2009, states clearly that Dr A
Magirazi is the Seller's agent.
b) In its (Voteti's) further particulars, filed on the 28th
July 2010, in response to a request filed by the appellant, the following paragraph
appears:
“1. Ad Paragraph
1
First Defendant sold the house through her agent, Viv de
Villiers and estate agent, Midstar Properties (Private) Limited. Plaintiff was
instructed, verbally, to deposit the full purchase price into the Midstar
Properties account, namely, Kingdom Bank Limited account number 47025427.”
c) When, on the 7th October 2010, the appellant
filed her plea and counter-claim she made the following allegation in paragraph
5 of the counterclaim:
“5. Midstar Properties (Private) Limited, an estate agency
was appointed prior to the signing
of the agreement by Plaintiff (Appellant) for the purpose of, specifically, finding a willing and
able buyer of the abovementioned
property.”…,.
d) Prior to that, on the 26th June 2010,
following upon the report made by Vivian John de Villiers on the 13th
June, the police recorded a statement from Vivian John de Villiers. Thereafter,
on the 23rd August 2010, Dr A Magirazi was charged with Theft of
Trust Property and a warned and cautioned statement was recorded from him. The
preamble to that statement reads as follows:
“I, ANDREW MAGIRAZI NR – 43-089352B-43 of the house number
528 Gemsbok Close, Mandara, Harare, do admit having been informed by Detective
Assistant Inspector Nduva of Criminal Investigation Department; Serious Fraud
Squad, Harare, that enquiries are being made in connection with a case of Theft
of Trust Property as Defined in Section 113 of Criminal Law [Codification and Reform]
Act [Chapter 9:23], which occurred on the 25th of August 2009 at
number 9 Lezard Avenue, Milton Park, Harare where it is being alleged that I
was mandated by Viv De Villias to sell property styled 7 Thornburg Avenue,
Mount Pleasant, Harare, for USD145,000= on behalf of the property owner
KATHLEEN HANCOCK. It is further alleged that my company sold the said property
and realised USD145,000= but only remitted USD80,000= to the owner of the
property through Viv De Villias. I make this statement on my own free will.”
On 28 October 2010, Voteti filed its plea to the counterclaim
filed by the appellant. In relation to paragraph 5 of the counterclaim (set out
above), Voteti pleaded:
“2. Ad Paragraph 5
Plaintiff has no knowledge of the particular terms of
reference for Midstar Properties and only knows that it is First Defendant's
Estate Agent with the usual mandate for Estate Agents.”
The appellant's response in its replication in reconvention,
dated 15 November 2010, was:
“2. Ad paragraph
2
The mandate of the
estate agent excluded receipt of funds. The agreement quite clearly
demonstrates this. There was no express mandate to receive payment.”…,.
Clearly, the appellant was, up to 15 November, asserting
that Midstar Properties (Private) Limited Estate Agents was her agent.
It was common cause at the hearing of the appeal that no
amendment of the pleadings was applied for or granted. Thus, it is difficult to
understand why the question of the agency of Midstar Properties (Private)
Limited Estate Agents became an issue which was stated in the joint pre-trial
conference minute for determination at the trial.
In view of all the statements emanating from the appellant
that Midstar Properties (Private) Limited Estate Agents was her agent the trial
court's conclusion to that effect cannot be faulted.
Whether
Midstar Properties (Private) Limited Estate Agents was authorized to receive
payment on behalf of the Seller
The resolution of this issue depends on the evidence which
the court a quo accepted as credible. In this regard, this Court, as an
appellate court, is at a disadvantage. This is because:
“The trial judge has advantages - which the appellate court
cannot have - in seeing and hearing the witnesses and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and whole personality. This should never
be overlooked. Consequently, the appellate court is very reluctant to upset the
findings of the trial judge.”
See The Civil Practice of Superior Courts in South Africa
by HERBSTEIN & VAN WINSEN 3ed….,. See also Beckford v Beckford 2009 (1) ZLR
271 (S)…,.
The court a quo believed Alex Makamure having found his
evidence to be credible and that of Vivian John de Villiers to be
contradictory. This finding was justified on the papers. The appellant has not
been honest. The denial of the fact of the agency of Midstar Properties (Private)
Limited Estate Agents which it had accepted up to 15 November 2010 is clear
evidence of this. Alex Makamure 's evidence was that when he encountered
difficulties in making the payment into the account of Fiona Fields, he and his
wife approached Alex Makamure and advised Dr A Magirazi of the problem. In
their presence, he telephoned Vivian John de Villiers and explained the
problem. Dr A Magirazi then advised them that Vivian John de Villiers had
authorised him to receive payment of the purchase price into his account. They
then proceeded to make the payment as advised.
Vivian John de Villiers' behavior, after the payment into Midstar
Properties (Private) Limited Estate Agents's account is supportive of the fact
that he had indeed authorised Midstar Properties (Private) Limited Estate
Agents to receive the money into its account. He did not call the Makamures and
request the balance of the purchase price. Instead of demanding the full amount
of the purchase price, which he knew was being held by Midstar Properties (Private)
Limited Estate Agents, he entered into an agreement with Dr A Magirazi
extending the time of payment into Lofty and Fraser's account by four to five
weeks. He accepted an offer by Dr A
Magirazi to pay rent at US$600= per month until full payment of the purchase
price was effected. At no time did he indicate to the Makamures that the
purchase price had not been paid as per his instructions. Instead, he proceeded
to give vacant possession of the property to Voteti assuring the Makamures that
there was nothing to worry about.
The evidence, in my view, clearly established that Vivian
John de Villiers authorized Midstar Properties (Private) Limited Estate Agents to
receive payment of the purchase price into its account on behalf of the Seller.
The judgment of the court a quo is therefore
upheld and the appeal is dismissed with costs.
