Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.

At the end of the hearing I dismissed the application with costs and promised to deliver the reasons later.

These are they.

The applicant said he had “bought” the house from the first respondent. The first respondent was the son to his late father (“the deceased”) and the heir to the estate.

The deceased had been buying the property from the second respondent under the usual rent-to-buy agreement common among the local authorities.

The applicant's case was that the respondent was refusing to “transfer” the property to him for the most unreasonable of reasons.

The second respondent was saying it could not consent to the “transfer” because it was aware that the deceased's widow, one Mlingo Mbewe, had certain rights over the house which the son, the first respondent, was trying to override or trample upon by surreptitiously “selling” it to a third party, the applicant.

The second respondent did not exactly use such words; but, that was clearly the import of its opposition.

It said until the widow was joined to the application, and until it was satisfied that the dispute between her and the son had been resolved, it was not going to consent.

It seems that previously the son had instituted an action to evict the widow from the house. However, the action had not been proceeded with. The matter had been resolved on the basis, that, the son would have entitlement to one of the rooms at the house and another room in the outbuilding, with both of them sharing the rentals from the remainder of the rooms.

To that, the applicant said the second respondent was not raising any defence valid at law but was merely trying to protect the widow out of sympathy for her. That was corruption and an abuse of office, he said.

The first respondent, the son, supported the applicant's case.

He filed a “Consent to Judgment” in terms of which he was consenting to be ordered by this court to “…, take all the necessary steps to transfer [the] right, title, and interest in [the] property…,.), failing which the Sheriff should be authorised to do that on his behalf.

What was remarkable in this case was the misconception exhibited by all the parties in relation to the true nature of their rights and obligations.

Terms such as “sale/purchase of rights, title and interest in” 'transfer' etc. were manifestly misguided.

Only somewhere in the second respondent's heads of argument was there a fleeting reference to the true legal position. In paragraph 21 it was said:

“21 The record must be correctly set. Ownership of the property in dispute vests in the 2nd Respondent. The 1st respondent, on his own, as asserted by Application (sic) or jointly with Mlingo Mbewe, in 2nd Respondent's view, only hold personal rights in the property.”

As long ago as 1992, the Supreme Court voiced concern over the use of such wrong terminology in such situations. That was in the case of Gomba v Makwarimba 1992 (2) ZLR 26 (SC). At pp27-28 McNALLY JA said:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council….,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

In the present case, although the owner, the second respondent, was cited as a party (undoubtedly because it was the one refusing to consent), the rent to buy agreement was not produced by any of the parties.

But, it was common cause that any rights in the property had devolved to the deceased, and subsequently to the first respondent, in terms of that agreement.

None of the parties gave any coherent answer why that agreement was not produced.

The applicant was content to start and end with his own agreement with the first respondent. But, that agreement was irrelevant, particularly given that the first respondent was actually supporting his cause.

The applicant's true grievance lay with the second respondent.

If he claimed that the second respondent's refusal to consent to the cession (not transfer) was unreasonable, then, he ought to have produced that agreement and pointed out those terms that showed that such refusal was unreasonable.

That was so because, among other things, the usual rent-to-buy agreement contains clauses expressly prohibiting the cession or assignment of rights under them, or the parting of rights of occupation of the property, or the alienation or disposal of the property without the prior written consent of the local authority.

In the case of Hundah v Murauro 1993 (2) ZLR 401 (SC) McNALLY JA said…,:

“It is surely a matter of general common knowledge, at least among lawyers, that land in the high density suburbs belonged to the local authority, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the fourth category of lodgers or dependants).
They were:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants-to-buy under an agreement which permitted them to take title once the property was surveyed and the full price paid;

3. Owners, who graduated from category two, in the fullness of time.

It is astonishing that no one thought to ask [the appellant] into which of these categories he fell. Even more astonishing when one remembers that he actually alleged 'it is still property of the City of Harare'.

[The appellant] was not the owner of the property. [He] is not now the owner of the property. At the time the estate agent drew up the agreement…, he was not even a tenant-to-buy. He was just a simple tenant….,.

In this situation we regularly hear the submission: 'But Roman-Dutch law does not require a seller to own the property he sells. He can enter into a valid agreement of sale as long as he realises he may face an action for damages if he is unable to give good title to the purchaser when the time comes to hand over vacant possession, and, in the case of immovable property, give transfer.'

This answer may score well in an examination, but, it overlooks the fact, which should be common knowledge among practitioners, that, the standard agreement of lease or lease to buy used by the Harare and Chitungwiza Municipalities (and many others) contains a clause designed to prevent such agreements.”

The pronouncement by the Supreme Court, in Hundah v Murauro 1993 (2) ZLR 401 (SC), all but sums up the applicant's insurmountable problems in this case.

In a great number of cases of this nature, the local authority is little concerned with what the tenant to buy does with his rights and interest in the property. The local authorities normally consent in advance of the alienation or disposal of such rights, or they subsequently ratify. When litigation ensues, often against the double-dealing or recalcitrant lessee-to-buy, the local authorities simply indicate their willingness to abide by the order of the court.

Unfortunately for the applicant in this matter, this was not the case.

In the present matter, not only had the local authority not given its consent to the intended cession, but, it was expressly refusing to grant it.

The applicant's situation was actually worse off than any of those in similar situations, for example, in Hundah v Murauro 1993 (2) ZLR 401 (SC) and Gomba v Makwarimba 1992 (2) ZLR 26 (SC).

There were others.

In Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) GUBBAY CJ had this to say…,:

“It is trite that where a contract of lease contains prohibitions against sub-letting, cession or assignment, either absolutely or without the lessor's consent, a sub-lease, cession or assignment, entered into without title to do so, is valueless and confers no rights on the third party; for he can acquire no greater rights in the property than the lessee has….,. A further obvious consequence of the prohibition is that the court will refuse to enforce the sub-lease, cession or assignment, at the instance of the lessee. To do otherwise would be to confer a right upon the lessee not given by the lessor….,.

Plainly enough, in the present case, the content of the lease-to-buy agreement was…, invalid because of a failure of the parties to it to request and obtain the written consent of the Council – a failure that related to a contractual formality….,.”

In Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), a case only marginally different from the present one in that the tenant-to-buy had since obtained title to the property even though at the time that he had purported to sell it to the third party he had not, EBRAHIM JA said this at pp335-336:

“Once the first defendant had taken transfer of the property, he was entitled to sell it. The first defendant had agreed to sell at a time when he was not the registered owner. All the time that the City of Harare remained the owner, the agreement to sell was unenforceable, because the first defendant could not transfer ownership without the consent of the Municipality. Once the Municipality's consent was not required, however, the contract became enforceable….,.

The agreement in Pedzisa's case supra was described as 'invalid' because it had failed to comply with a contractual formality….,.”

In Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475 (HC) GILLESPIE J reviewed a number of decisions of both this court and the Supreme Court on the issue of “township houses” administered by local authorities under the lease-to-buy agreements and which are disposed of in breach of the terms of such agreements.

Some of those cases that the learned judge reviewed included Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S); Guta v Chimbunde & Anor HH194-94; and Nkomo v Mujuru 1997 (1) ZLR 155 (H).

At p481 the learned judge said:

“I am therefore of the respectful view, that, the following statement of principle is to be gleaned from the Supreme Court decisions.

A cession of a right, originally acquired subject to a pactum de non cedendo, but in breach of that reservation, creates rights as between the parties to that subsequent cession, which rights, however, cannot bind the original holder of those rights.

The court may, at the instance of the third party, enforce that contract as against the lessee-purchaser; no order, however, may be given which can bind the original holder of those rights. Thus, no order of transfer can be given against that original holder.

An order of specific performance of transfer may, at the court's discretion, be given against the lessee-purchaser; such an order has the effect of obliging that party to effect transfer if he is in a position to do so, or to take transfer of the property in order to give it, if such be necessary.

Depending on the circumstances, however, the court may confine a third party to an alternative claim against the lessee-purchaser in damages.

This statement of principle explains completely the results in all the other judgments, and was the principle expressly applied by SMITH J and ROBINSON J in Guta and Magwenzi.”…,.

In the present case, whether the second respondent withheld its consent to the cession because the widow had not been cited, and whether or not such a reason was unreasonable under the circumstances, are issues that are immaterial, especially in the absence of the rent-to-buy agreement.

If the first respondent required the prior written consent of the second respondent before he could in any way alienate or dispose of his rights in the property to somebody else, and, if the first respondent had not obtained that consent prior to selling his rights to the applicant, then, that was the end of the road for the applicant in his claim against the second respondent.

Whether or not the applicant does have a remedy against the first respondent is an issue of no concern in the present application.

As stated in Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC), the agreement between him and the first respondent was invalid or unenforceable against the second respondent for want of compliance with a contractual formality.

It was for that reason, that, at the end of the hearing, I dismissed the application with costs.

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

Anthony Turner averred, in his opposing affidavit, that, he required £12,000 to import a new engine for the craft that he was building, known as the “Zambezi Trader”. This craft would not be in competition with the houseboat at all and he was building it for his own account with the moral support and blessing of Peter Jameson Dobson.

Peter Jameson Dobson agreed to pay this amount into his daughter's bank account in the United Kingdom.

He repeated this allegation in paragraphs 31 and 32 of his founding affidavit in Case No. HC5264/05.

This was to be in lieu of the balance of the purchase price of $112 million.

In Case No. 5264/05, in paragraphs 26 and 27 of his opposing affidavit, Peter Jameson Dobson did not respond to these averments in so far as they refer to the alleged mode of payment in foreign currency.

That payment was to be in foreign currency is clear from Peter Jameson Dobson's own founding affidavit.

In paragraph 18, he averred, that, even when he met Anthony Turner, per chance, at the Borrowdale Race Course, in November 2004, he reassured him, that, notwithstanding the fall in the value of the Zimbabwean dollar against the Pound Sterling, the amount outstanding as the purchase price remained £12,000 being the amount in pounds in July 2004.

The two gentlemen agreed, that, the accountant and company secretary of Zambezi Paddle Steamer (Pvt) Ltd, Paul Turner (Paul), a partner in Ernst and Young Chartered Accountants, would effect the share transfer and receive Anthony Turner's letter of resignation as a director therein.

There was a delay in the transfer of the shares which was occasioned by Paul Turner's attempts to structure a tax avoidance scheme for the benefit and at the insistence of Antony Turner.

I make this finding based on Antony Turner's deliberate failure to respond to Paul Turner's affidavit, which was filed in support of Peter Jameson Dobson's founding affidavit.

It was agreed, that, on 3 August 2004 and 21 August 2004, Peter Jameson Dobson wrote to Anthony Turner enquiring whether or not he had signed the necessary transfer documents and resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd - the two factors which would trigger the payment of the balance of the purchase price by Peter.

It also appears, that, even on 5 November 2004, a date disputed by Athony Turner, who put it as being sometime in September 2004, when the two met at Borrowdale Race Course, Antony intimated that he had been too busy to visit Paul Turner. The parties re-affirmed, that, despite an adverse movement of the Zimbabwe dollar since July 2004, the balance of the purchase price would be paid into Antony's daughter's account in the United Kingdom at the exchange rate agreed in July 2004.

On 17 January 2005, Antony Turner proceeded to appoint Peter Drummond and Martin King as directors of Turner & Sons (Pvt) Ltd, in his stead, who were charged with the responsibility of overseeing Turner & Sons (Pvt) Ltd's interests in the Southern Belle.

A flurry of e-mails followed which attempted to resolve the issue of the sale of Antony Turner's shares in Zambezi Paddle Steamer (Pvt) Ltd, who was claiming, that, the failure by Peter Jameson Dobson to pay the balance of the purchase price timeously amounted to repudiation of the contract.

He therefore regarded himself released from the contract.

The negotiations by the parties culminated in a letter of 23 August 2004 by Turner & Sons (Pvt) Ltd's erstwhile legal practitioners to Dobrock (Pvt) Ltd's legal practitioners which set out the history of their association.

In that letter, Turner & Sons (Pvt) Ltd indicated that it would seek an order to wind up the company in terms of section 206(g) of the Companies Act [Chapter 24:03].

Dobrock (Pvt) Ltd held the firm belief that it had purchased Turner & Sons shareholding and was therefore the sole shareholder in Zambezi Paddle Steamer (Pvt) Ltd.

These disagreements resulted in the two applications, for specific performance and liquidation, that are now before me.

The first issue for determination is whether or not a binding contract of sale was reached between Dobrock (Pvt) Ltd and Turner & Sons (Pvt) Ltd.

It is, I believe, common cause that an agreement of sale was entered into.

In its opposing affidavit, in paragraph 17, Turner & Sons (Pvt) Ltd acknowledges that the parties had a loose gentleman's agreement. Antony Turner concludes that paragraph by stating that "I believe, with respect, that the only explanation that is reasonable in the circumstances is that applicant repudiated the contract."

Paragraph 49(iii), in Case No. HC5264/05, by Turner & Sons (Pvt) Ltd, is to the same effect.

Turner & Sons (Pvt) Ltd's defence was, in the main, predicated on repudiation by conduct of the contract that was executed between the parties. Indeed, Mrs Wood, for Turner & Sons (Pvt) Ltd, in paragraph 2 of her written heads of argument, wrote:

"It is apparent from the applicant's own case that the agreement in question was very loose even if it was binding between the parties."

Counsel concentrated their submissions on the question whether time was of the essence in the performance by Dobrock (Pvt) Ltd of the term relating to payment of the outstanding purchase price.

It was on the assumption that it was of the essence that Turner & Sons (Pvt) Ltd alleged repudiation.

The onus, in my view, lies on Turner & Sons (Pvt) Ltd to show that time was of the essence and that the failure by Dobrock (Pvt) Ltd to act timeously entitled it to rescind the contract.

Turner & Sons (Pvt) Ltd blamed Dobrock (Pvt) Ltd for the delay in paying the balance of the purchase price.

The facts, as I find them, do not bear out the correctness of Turner & Sons (Pvt) Ltd's view.

Paul Turner indicated, in his unchallenged affidavit, that, the tax avoidance scheme was initiated at the instance of Antony Turner, and was for Turner & Sons (Pvt) Ltd's benefit.

My view is that, at that stage, Paul Turner was working as an agent of Turner & Sons. It became, in my finding, the duty of Turner & Sons to impress on him to act with speed if time was of the essence to it.

It is clear to me, that, Antony Turner understood and appreciated that the balance of the purchase price would not be paid out until the share transfer had been effected by Paul Turner; until Antony Turner had resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd; and, until Antony Turner had obtained a capital gains clearance certificate from the Zimbabwe Revenue Authority (ZIMRA).

The delay cannot, therefore, be attributed to Dobrock (Pvt) Ltd.

Peter Jameson Dobson, after all, was desirous that transfer be effected with speed as shown by his enquiries of 4 August and 21 August 2004 which Antony Turner did not acknowledge.

Antony Turner never did challenge the averment, that, when they met at Borrowdale Race Course, he indicated that he was responsible for the delay for he was too busy to make a follow up with Paul Turner.

Paul Turner, after all, was acting, as regards the tax avoidance scheme only, as an agent of Antony Turner.

It is therefore my finding, on the papers, that, it was in fact Antony Turner who was responsible for the delay. He could not, therefore, lawfully repudiate the contract by projecting his own inaction onto Dobrock (Pvt) Ltd.

Mrs Wood contended, with reference to Concrete Products Co. (Pty) Ltd v Natal Leather Industries 1946 NPD 377…, and Broderick Properties v Rood 1962 (4) SA 447 that the mere fact that the agreement did not provide a particular date of performance did not mean that time was not of the essence.

She submitted, that, to Peter Jameson Dobson's knowledge, Antony Turner had to purchase an engine for another boat that he was building for £12,000 immediately, that is, at the time that they concluded the agreement.

In her view, though not spelt out in the oral agreement, the nature of that agreement, and the purpose to which Antony Turner wanted to utilize the funds were inherently indicative that both parties contemplated that payment had to be speedily made.

Speed payment was inherent in the agreement itself.

The proposition, in my view, conforms with the examples that were highlighted in Broderick Properties v Rood 1962 (4) SA 447 concerning the purchase of theatre tickets and repairs of a motor vehicle at a garage which are required for use within a set time frame.

The appreciation that I attribute to Antony Turner, of the conditions that had to be fulfilled before payment was made, in my view, removes his case from one relating to mora ex re (time set out in the contract) to one of mora ex persona, which requires demand before the time limits for performance are reached.

I associate myself with the statement of law that was propounded by GUBBAY CJ in Asharia v Patel 1991 (2) ZLR 276…,. He stated thus:

"The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon as is reasonably possible in the circumstances. But, the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform.

This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default.

The demand, or interpellatio, may be made either judicially, by means of a summons, or extra-judicially by means of a letter of demand, or even orally; and to be valid, it must allow the debtor a reasonable opportunity to perform by stipulating a period of performance which is not unreasonable - if unreasonable, the demand is ineffective.

Where a debtor has fallen into the mora ex persona after demand, the creditor can acquire a right to cancel the contract by serving notice of rescission, in which a second reasonable time limit is stipulated, making time of the essence. Both demand and notice of rescission are necessary in order to allow for cancellation for non-performance. The two may be, and commonly are, contained in the same notice. Such notice will then fulfil a double function. It will fix a time for performance after which the debtor will be in mora, and create a right in the creditor to rescind the contract on account of the mora."

In the present case, payment of the purchase price was not due immediately on conclusion of the contract. It was due as soon thereafter as was reasonably possible in the circumstances.

The circumstances related to the transfer of Turner & Sons (Pvt) Ltd's shareholding by Paul Turner; receipt by him of Antony Turner's resignation letter; and of a clearance certificate from the Zimbabwe Revenue Authority (ZIMRA).

It was within Antony Turner's power to expedite these matters.

Indeed, that it was not immediate was clearly demonstrated by the use put by Antony Turner of the part payment which was made of $138 million. He bought a pick up vehicle.

He also was duty bound to place Peter Jameson Dobson in mora if he believed that a delay had been occasioned in paying up the outstanding balance of the purchase price.

CHRISTIE, in The Law of Contract in South Africa, 3rd edition, Butterworths, 1996 deals with the line of cases culminating in Broderick Properties v Rood 1962 (4) SA 447 at pages 556 to 557. At page 555 he stated:

"The general rule will be seen in the next section, is that, when the contract does not fix a time for performance there can be no mora ex re, only mora ex persona; so, a demand by the creditor is necessary in order to place the debtor in mora. Whether there are exceptions to this general rule is a question that has led to differences of judicial opinion, but the present law can be stated with a fair degree of confidence."

It seems to me, that, in Zimbabwe, Asharia v Patel 1991 (2) ZLR 276 has provided the answer.

It confirms the correctness of the general rule as set out by CHRISTIE.

It appears to me too, that, the differences of judicial opinion that CHRISTIE noted may be resolved by applying the general rule to the particular facts of each matter in order to ascertain its validity to the time frames as contemplated by the parties. It is only after this has been done that a decision on whether mora ex re or mora ex persona applies can be made.

I, therefore, hold, in the present matter, that, Turner & Sons (Pvt) Ltd could not lawfully repudiate the contract without first placing Dobrock (Pvt) Ltd in mora.

Mrs Wood further submitted, with reference to section 11(1) of the Exchange Control Regulations 1996, SI109 of 1996, that, on the applicant's own case, the agreement was illegal because payment of the balance of the purchase price was to be made outside the country.

Mr de Bourbon, on the other hand, submitted that the contract was not illegal.

He contended, that, there was nothing on the papers to show that the obligations of Dobrock (Pvt) Ltd would be met by it. Rather, so he opined, it was only in the nature of assistance between friends, between Peter Jameson Dobson and Antony Turner which was permissible in terms of the Exchange Control Regulations.

There is a plethora of cases which have been determined by both the High and Supreme Court which are in point.

My starting point is section 11 of the Exchange Control Regulations 1996, S.I.109 of 1996. It reads:

"11(1) Subject to subsection (2) unless otherwise authorized by an exchange control authority, no Zimbabwean resident shall -

(a) Make payment outside Zimbabwe; or

(b) Incur any obligation to make payment outside Zimbabwe.

(2) Subsection (1) shall not apply to:

(a) Any act done by an individual with free funds which were available to him at the time of the act concerned;

(b) Any lawful transaction with money in a foreign currency account."

Mrs Wood contended that Dobrock (Pvt) Ltd was registered in Zimbabwe and was therefore resident in this country.

This contention is, in my view, correct, as it reflects the position set out in section 3(1) of the Exchange Control Regulations 1996, SI109/1996 for artificial persons.

She further contended that Dobrock (Pvt) Ltd had not shown that it had been authorized by the Exchange Control Authority before it incurred the obligation to make payment outside Zimbabwe. It had not demonstrated that this was a lawful transaction with money in a foreign currency account. She contended further, that, the free funds exception was applicable to individuals and not to companies, and that Dobrock (Pvt) Ltd could not save the agreement on that basis as it was inapplicable to it.

In International Who's Who Ltd v Bernstein Clothing (Pvt) Ltd SC28-99, MUCHECHETERE JA, considered the effect of section 8(1) of the Exchange Control Regulations RGN 399/77 where the respondent, a limited liability company, registered locally, incurred an obligation to pay 20,450 Swiss francs to the appellant, a limited liability company registered in England, in Johannesburg, for transmission to Vaduz, Switzerland.

The respondent raised a point in limine averring illegality.

At page 4-5 of the cyclostyled judgment, the learned judge of appeal stated as follows:

"At the outset, I should state that I agree with Mr Moyo's submission, that, the contract between the parties was illegal, invalid, and unenforceable because it was in breach of section 8(1) of the said Regulations. The provisions of the section are peremptory: see Abreu v Campos 1975 (1) RLR 198 and Swart v Smuts 1971 (1) SA 819 at 829-30.

As already indicated above, the appellant conceded that no authority had been obtained by the parties from the relevant authority for any payment outside Zimbabwe when the contract was entered into.

On the law, see Macape (Pty) Ltd v Executrix, Estate Forrester 1991 (1) ZLR 315 at 320D-E where McNALLY JA said:

'In other words, when one is concerned with payments INSIDE Zimbabwe (section 7 of the said Regulations) it is perfectly lawful to enter into the agreement to pay. But, without authority from the Reserve Bank, the actual payment may not be made. By contrast, when dealing with payments OUTSIDE Zimbabwe (section 8 of the said Regulations) it is unlawful even to enter into the agreement to pay without first obtaining the authority of the Minister which has been delegated to the Reserve Bank.' (my emphasis)

See also Abreu v Campos, supra; Young v Van Resnburg 1991 (2) ZLR 149 (S) at 155; Adleu v Elliot 1988 (2) ZLR 283 (S) at 287.”

The facts in Young v Van Resnburg 1991 (2) ZLR 149 (S) are distinguishable from the present matter.

It involved individuals who were foreign residents.

Its importance, in my view, lies in the sentiments of KORSAH JA, at page 153G-154A, where he agreed with Mr de Bourbon, in that case, that, subparagraph 8(1)(a), which barred a Zimbabwean resident from doing any act, outlawed the doing of even a single act.

It is noteworthy that section 8 of the 1977 Regulations is the precursor to section 11 in the 1996 Regulations, even though there are some variations in the wording of the two sections in these respective Regulations.

In International Who's Who Ltd v Bernstein Clothing (Pvt) Ltd SC28-99, MUCHECHETERE JA agreed with the observation of McNALLY JA in Macape (Pty) Ltd v Executrix, Estate Forrester 1991 (1) ZLR 315 that an agreement to pay outside Zimbabwe by a resident, without Exchange Control authority, where the resident was not an individual without free funds or where the resident was not utilising money in a foreign currency account, was void ab initio.

In Hattingh and Others v Van Kleek 1997 (2) ZLR 240 where a foreign visitor to Zimbabwe, Van Kleek, who was not aware that the Exchange Control Regulations prohibited local residents from incurring obligations to pay money abroad, agreed to give a loan to a Zimbabwean to be used to develop a Safari business and the money loaned was to be paid into that Zimbabwean's bank account outside Zimbabwe, and that Zimbabwean, and two other locals, signed a promissory note to repay the loan, the High Court then ordered the locals to repay the loan.

They appealed on the basis that they acted illegally by incurring an obligation to make payment outside Zimbabwe without the requisite Exchange Control authority.

The appeal was dismissed.

KORSAH JA held at page 244D that:

“Section 8 of the Regulations only prohibits, but does not declare void or illegal, the transactions enumerated therein” and found that the transactions did not contravene section 8 of the Regulations.

At page 246B he stated:

“The cases clearly show, that, where a contract is, on the face of it, legal but, by reason of a circumstance known to one party only, is forbidden by statute, it may not be declared illegal so as to debar the innocent, party relief, for to deprive the innocent person of his rights would be to injure the innocent, benefit the guilty, and put a premium on deceit.”

The facts of Hattingh and Others v Van Kleek 1997 (2) ZLR 240 are distinguishable from the present matter.

In addition, in casu, both parties were aware that their agreement fell foul of the Exchange Control Regulations.

In Greebe & Another v Famaps Investments (Private) Limited & Anor HH124-04, MAVANGIRA J dealt with the question whether a local resident could withhold and keep the assets that accrued to him from a sale by another local resident of those assets situated in Zimbabwe in circumstances where no payment was made abroad as agreed, on the basis that to do so would violate section 11(1)(b) of the Exchange Control Regulations 1996, S.I.109/1996.

She held that while the agreement contravened section 11 of the Exchange Control Regulations, the facts called for a relaxation of the par delictum rule, for, if she were to decline to do so, she would reward the purchaser by giving him a premium for deceit.

In Adleu v Elliot 1988 (2) ZLR 283 (S) GUBBAY JA…, recognised, that, in oral contracts, the court had the power to determine whether the terms of that contract required exact performance or the performance of some equivalent act. He stated thus:

“The application of this broad principle [that it is not for the court to remake a contract of the parties in line with INNES CJ in Ambrose and Aitken v Johnson and Fletcher 1917 AD 327 at 343 and the remarks of BEADLE CJ in Holmes v Palley 1975 (2) RLR 98 (AD) at 105C that one party to a contract was not entitled to expect that it will be carried out in a different manner than agreed because of the absence of prejudice] does not, of course, preclude a court from determining whether the parties to an agreement intended that a particular term thereof was to be fulfilled in forma specifica, that is, in the exact manner agreed upon by the parties or per acquipollens, that is, by some equivalent act.

Where the agreement is in writing, and the language employed is sufficiently clear, the common intention of the parties must be extracted from the agreement itself. But, if the language is ambiguous or where the agreement of the parties was oral, then, the court is obliged to have regard to the surrounding circumstances, and to any other admissible evidence in order to ascertain whether the common intention of the parties was to be fulfilled in forma specifica or whether performance thereof by some equivalent act would suffice.”

In Adleu v Elliot 1988 (2) ZLR 283 (S) the parties entered into an agreement of sale in which part of the purchase price was payable abroad in foreign currency and the remainder at home in local currency. GUBBAY JA approved the four factors outlined by CLAASEN J in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA…, that:

“1. If the surrounding circumstances, and other admissible evidence, afford no clue as to what was in the contemplation of the parties, then, there is a rebuttable presumption in favour of performance in forma specifica. But, the presumption cannot be rebutted where it is clear from the terms of the contract that performance in forma specifica had been stipulated.

2. In case of doubt, the court will be more likely to find in favour of performance per acquipollens if the manner of performing the term is not material and also where performance in forma specifica is impossible through no serious fault on the promissor's part.

3. The act or performance tendered per acquipollens, where such is permissible, must be an equivalent act to that stipulated for or be of such a nature that it can make no material difference to the promise.

4. Where the promissor succeeds in rebutting the presumption mentioned above, there may be circumstances falling short of impossibility and even where there may be some fault on the part of the promissor; a court may be justified in concluding that the promissor's perfomance, or tendered performance, amounted to substantial performance.”

It seems to me, as appears from Dobrock (Pvt) Ltd 's averment, that, the parties contemplated that payment would be in sterling pounds in England into the account of Antony Turner's daughter, Jenny.

Dobrock (Pvt) Ltd was willing to pay “where and when” Turner & Sons (Pvt) Ltd desired it be made.

The agreement was sealed when Dobrock (Pvt) Ltd agreed to make payment in foreign currency in England.

The parties thus contemplated exact performance and not some substantial performance.

That exact performance was, however, illegal.

There is no room for the application of CLAASEN J's formulation in Diggelen v de Bruin and Another 1954 (1) SA 188 SWA in these circumstances.

It is my view, that, Hattingh and Others v Van Kleek 1997 (2) ZLR 240 does not apply to the present matter.

Dobrock (Pvt) Ltd was aware that it was contravening the Exchange Control Regulations when it promised to pay “where and when” and agreed to pay in England.

This is clear from the lack of particularity on the decision on the mode of payment that is apparent in its affidavits.

I cannot allow this court to be an accomplice to an illegality by enforcing this illegal contract, as prayed for by Dobrock (Pvt) Ltd.

I agree with Mrs Wood, that, Dobrock (Pvt) Ltd's claim on specific performance, and other subsequent relief related thereto, should be dismissed.

After all Dobrock (Pvt) Ltd is not an individual so the free funds exception would not avail it.

The oral agreement was transacted between the parties by individuals who were representing them respectively.

Peter Jameson Dobson did not aver, nor even suggest, that he had free funds from which he would pay Turner & Sons (Pvt) Ltd.

Even though he was an individual, he was acting for Dobrock (Pvt) Ltd. He had no Exchange Control approval to incur the liability to pay on behalf Dobrock in foreign currency in England.

The agreement reached is illegal, invalid, and unenforceable: see also Barker v African Homesteads Touring and Safaris (Pvt) Ltd & Anor SC18-03.

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

WHETHER THE MAGISTRATE ERRED IN ORDERING EVICTION OF THE APPELLANT?

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.The FactsIt is not in dispute, that, the parties entered ...

The Facts

It is not in dispute, that, the parties entered into the agreement of sale aforesaid or that the purchase price was $75,000. Nor is it disputed, that, at the time the agreement was entered into, a subdivision permit had not yet been granted by the local authority, or that the agreement was never cancelled.

It is further not disputed, that, the plaintiff made payments towards the purchase price in full.

The Dispute Between the Parties

The parties are not agreed as to who appointed the Estate Agents in the matter.

The applicant avers, that, Trevor Dollar Real Estate Company was the agent for the first respondent, while the first respondent avers the contrary.

Further, there is a dispute as to whether the purchase price was paid to the first respondent.

The applicant claims that it paid the purchase price in full to the first respondent's agents, Trevor Dollar Real Estate Company. It attached receipts and RTGS transfer forms showing payment to Trevor Dollar trust account in the amount of $87,200.

It argues, that, the estate agents, being the first respondent's agent for the sale of her property, on commission, once the applicant paid the purchase price and transfer fees to them, it discharged its obligations and was entitled to transfer.

The applicant based this averment on the fact, that, the first respondent was a personal friend of Mr Trevor Dollar, and, Trevor Dollar Estate Agents advertised that the first respondent intended to sell subdivisions of her land.

In any event, if Trevor Dollar Real Estate Company was its agent, that would be tantamount to making payment to itself, which would be illogical.

On her part, the first respondent submits, that, she never received any payment from the estate agents.

Besides, she was not the principal of Trevor Dollar Estate Agents, and, since she never received the purchase price from them, she is therefore not obliged to transfer the property.

The third area of dispute is whether there was a valid agreement of sale between the parties.

The applicant submits, that, the parties concluded a conditional sale, subject to the first respondent obtaining a subdivision permit, which was a condition precedent. There was thus no contract between the parties until the permit was obtained. Once the permit was issued, it brought the contract into existence. Therefore, at the time the contract came into existence it was not contrary to the provisions of the law as it did not contravene sections 39 and 40 of the Regional Town and Country Planning Act [Chapter 29:12].

On her part, the first respondent submits, that, there was no condition precedent to the sale and it was thus illegal as it was contrary to the Regional, Town and Country Planning Act aforesaid and is therefore unenforceable....,.

Contract Proscribed by Law

The first respondent is on firmer ground to avoid liability to transfer the property sold to the applicant, if, she can show that the contract was contrary to section 39 of the Regional Town and Country Planning Act [Chapter 29:12] and therefore void for illegality.

Section 39 of the Regional, Town and Country Planning Act reads:

“39 No Subdivision or Consolidation Without Permit

(1) Subject to subsection (2), no person shall —

(a) Subdivide any property; or

(b) Enter into any agreement —

(i) For the change of ownership of any portion of a property; or except in accordance with a permit granted in terms of section forty.”

The law with regard to contracts prohibited by statute may be summarised as follows:

“As a general rule, a contract or agreement which is expressly prohibited by statute is illegal and null and void even when, as here, no declaration of nullity has been added by the statute:" see York Estates Ltd v Wareham 1949 SR 197, per LEWIS ACJ.

Therefore, once a court finds that an agreement or a contract it is being enjoined to endorse as valid was entered into by the parties contrary to statutory provisions, that disposes of the matter.

The requirement for courts to uphold statutes is such that even where the parties have not brought the issue up, the court is entitled, mero motu, to raise the issue of illegality: see Hativagone & Anor v CAG Farms (Pvt) Ltd & Ors [SC152/14] (2015) ZWSC 42.

Hence, the question that the court has to address is whether section 39 of the Regional, Town and Country Planning Act [Chapter 29:12] prohibits persons from entering into an agreement for the change of ownership of any portion of a property - even where the agreement is made, expressly or impliedly, conditional upon the obtaining of a permit.

This question, has, in my view, already been answered by the Supreme Court in the affirmative when it was held, in X-Trend-A-Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S), that:

“…, section 39 forbids an agreement for the change of ownership of any portion of a property except in accordance with a permit granted under section 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for the change of ownership of the subdivided portion of a Stand.

It was irrelevant whether the change of ownership was to take place on signing, or on an agreed date, or when a suspensive condition was fulfilled. The agreement itself was prohibited.”…,.

Counsel for the applicant is quite correct to raise the point, that, it is an established common law principle governing the law of contracts that an agreement of sale that is subject to the fulfilment of a condition is not a valid sale until that condition has been fulfilled: see Leo v Loots 1909 TS 366…,.

The import of this is that, where a suspensive condition operates in an agreement, the contract itself does not exist until the suspensive condition is fulfilled. A non-existent contract cannot therefore be deemed to be illegal: it is not there.

Therefore, until the contract comes into existence, with the fulfilment of the suspensive condition, there is nothing to declare illegal.

Building on from this common law position, counsel for the applicant makes the ingenious argument, that, in casu, because there was a condition to obtain a development permit before transfer could be effected, there was thus no valid agreement in existence between the parties until that condition was met. The contract only came into existence on the date the condition was fulfilled, and, as at that date, there was therefore no illegality.

I am, however, not persuaded by this argument.

It is my view, that, he goes astray when he implies that the agreement is then only effectively entered into as at the date the suspensive condition is fulfilled.

This belies the fact, that, in reality, the agreement between the parties was reached as at the date of signature.

And, in terms of that agreement, from the date of its signature, the parties had certain obligations to fulfil within time limits prescribed therein: the first respondent had to obtain a subdivision permit, and, thereafter, effect transfer, while the applicant had to make payment as agreed.

It is therefore at the date of signature of that agreement that the mischief sought to be avoided by the legislative provisions arises: parties are prohibited from entering into any agreement at all until the legislative requirements are met.

In this case, the parties ought not to have reached any agreement at all until a sub-division permit had been issued.

In my view, therefore, what did not exist was an agreement to effect transfer before the subdivision permit was issued.

Otherwise there was an agreement between the parties to effect transfer once the subdivision permit was issued - and it is that agreement which is proscribed by law.

The agreement between the parties was clearly intended, that, once the sub-division permit was granted, then change of ownership would be effected.

According to X-Trend-A-Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S), it was that agreement that was prohibited.

The question of the condition that a permit should be obtained is therefore irrelevant. In fact, special condition number 1 reads as follows:

“The Purchaser acknowledges that the process of subdivision and survey is on-going simultaneously with transfers. The Seller shall take all necessary steps to enable the Development Permit to be granted within a reasonable period from the date on which this agreement is contracted.”….,.

There is thence, a clear acknowledgment between the parties, that;

(i) Firstly, the agreement has been entered into in the absence of a subdivision permit; and

(ii) Secondly, such permit will only be obtained subsequent to the date of the agreement.

This brings the agreement squarely within the ambit of the comment of MAVANGIRA J, in Phillip Tsamwa v Ndoda Hondo and 2 Others HH53-08…, when she stated:

“The issuance of the permit, after the agreement had already been entered into, cannot have any legal effect on the validity of the agreement insofar as compliance with the Act in question is concerned. It is the state of affairs prevailing at the time that the parties entered into the agreement, in relation to the existence or otherwise of a subdivision permit, that is relevant.”

The agreement, therefore, runs afoul of the law and is therefore illegal.

It is trite that the courts do not give effect to illegal agreements.

Consequently, I do not agree that this case is distinguishable from X-Trend-A-Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S).

In fact, in that case, the Supreme Court clearly intended to clarify the position of agreements entered into contrary to the law, whether or not, they were subject to conditions precedent or suspensive conditions, and, hence, McNALLY JA's finding that it is the agreement itself which is prohibited.

Therefore, by asking this court to find that a contract of sale to change ownership, after a suspensive condition had been fulfilled, was not contrary to section 39 of the Regional Town and Country Planning Act, [Chapter 29:12], it seems to me, that, counsel for the applicant is inviting this court to overrule the Supreme Court decision by the back door.

I refuse to accept such invitation.

In the premises, I cannot find favour with the application to compel transfer.

However, having found that the applicant succeeded in proving that the purchase price was paid to the first respondent pursuant to the invalid agreement, and that she should therefore restitute, otherwise she would unjustly benefit, I make the following order:

1. The application to compel transfer is dismissed.

2. In the alternative, the first respondent shall pay to the applicant the sum of Seventy Five Thousand United States Dollars (USD75,000) with interest at the prescribed rate, from the date of payment of the last instalment to the date of full and final payment, as a restitution for the purchase price paid by the applicant.

3. That, the first respondent shall pay costs of suit on a legal practitioner and client scale.

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

The plaintiff issued summons against the defendants for the following relief:

“1. That the plaintiff be and is hereby declared the rightful owner of Stand number 454 Unit Seke, Chitungwiza;

2. That the transfer of Stand 454 Unit C Seke, Chitungwiza into Gideon Musendo's name be and is hereby nullified;

3. That the 2nd defendant cede rights, title and interest in the property aforementioned back to the plaintiff within seven (7) days of this order failure of which the Sheriff be and is hereby empowered to sign documents necessary to effect cession to the Plaintiff;

4. That the 1st defendant and all those claiming occupation though her be evicted from House No.454 Unit F Seke Chitungwiza; and

5. That the 1st and 2nd defendants pay costs of suit on an attorney client scale.”

The first respondent filed an appearance to defend and opposed the order sought.

Before trial, the parties agreed that the matter proceed by way of a Stated Case. The facts agreed by the parties are as follows:

House Number 454 Unit F Seke, Chitungwiza (hereinafter referred to as the property) is owned by and belongs to the second defendant as it has no title to date.

The second defendant gave occupation of the property to one Moses Mutandwa, under a lease to buy agreement. Moses Mutandwa died and his heir, Gordon Madzima, assumed occupation of the property under the same terms and conditions the house was held by the late Moses Mutandwa.

In 1992, Gordon Madzima sold the property to the first defendant's deceased husband, Gideon Musendo.

The said late Gideon Musendo, pursuant to the agreement, took occupation of the property.

On 13 March 1993, Gordon Madzima entered into another sale agreement with the plaintiff - for the sale of the same property. Gordon Madzima alleged to have cancelled the earlier agreement of sale with the late Gideon Musendo.

Gordon Madzima failed to give vacant possession of the property to the plaintiff.

The second defendant also refused to enforce the sale agreement between Gordon Madzima and the plaintiff on the basis that it had not consented to the sale of the property; it being the owner of that property.

The plaintiff, under HC case number 9232/93, approached this court seeking the agreement of sale between him and Gordon Madzima to be declared valid and to compel Gordon Madzima to transfer the right, title and interest in the property to herself.

The order was granted in default by the High Court on 27 April 1994.

The second defendant was not cited as a party to the proceedings.

In compliance with the court order, the second defendant, on 7 June 1994, issued the plaintiff with a certificate of occupation and ownership card for the property. Rates and water bills were transferred into the plaintiff's name.

The plaintiff sought to evict the first defendant from the property in the Magistrates Court, under case number 155/94.

The order was granted.

The first defendant appealed to the Supreme Court and the order was set aside and the first defendant's deceased husband was granted leave to defend the eviction proceedings.

The first defendant's deceased's husband was also advised to seek rescission of HC case number HC9232/93.

The matter before the Magistrate Court was later dismissed.

The first defendant's deceased husband remained in occupation of the property.

On 11 December 2002, the first defendant's deceased husband 'applied' to the second defendant for allocation of the property.

In September 2006, a lease to buy was entered into between the second defendant and the first defendant's deceased husband for the property. On 4 September 2006, the second defendant issued the first defendant's deceased husband with a certificate of occupation of the property.

The plaintiff persists in its claim as per summons.

The first defendant opposed the claim on the basis, that, Gordon Madzima could not have legally sold the property to the plaintiff without the second defendant's consent.

Both parties are claiming costs on a higher scale.

The issues referred for determination are;

(1) Whether the matter is res judicata; and

(2) Who between the plaintiff and the first defendant is the rightful owner of Stand 454, Unit F Seke....,.

Who is the rightful owner of the property?

I shall move on to determine who, between the plaintiff and the first defendant, is the true owner of the property.

It is common cause that the first defendant was the first purchaser. The late Gordon Madzima sold the property to the first defendant's husband in 1992. The sale agreement with the plaintiff was only entered into in 1993.

There has been placed before me no proof of the cancellation of the agreement of 1992.

The inescapable conclusion is that there was a double sale.

I agree with the legal position enunciated by the parties in respect of the double sales found in Chimphonda v Rodriques and Ors 1997 (2) ZLR 63 ZLR 63 (H) that:

“In a double sale situation, where the second buyer had knowledge of the first sale of the property, either at the time of the sale or at the time it took transfer of the property, then, unless there are special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer. In such instance, the second buyer's only remedy is an action for damages against the seller. In deciding whether there are special circumstances affecting the balance of equities, the court must bear in mind, that, the primary right of the wronged buyer is the remedy of specific performance which will be granted unless there is some equitable reason disqualifying him from obtaining such relief.”

See Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR (S); Guga v Moyo 2000 (2) 458 (S); that, once the second purchaser has knowledge of the prior sale, then, the first purchaser, in the absence of special circumstances affecting the balance of equities, is entitled to recover the property from the second purchaser.

The second purchaser's rights are limited to claiming damages from the seller.

Applying the above principles to the present case, the first defendant's late husband was the first purchaser. The plaintiff, at the time of the purchase of the property, knew of the existence of the sale agreement between the seller and the first defendant's late husband.

It is clear, that, from 1992 to date, the first defendant and her family have been in occupation of the property. The plaintiff has not been able to get vacant possession of the property.

The plaintiff even attempted to evict the first defendant from the property. The plaintiff failed in that regard as far back as 1994.

The evidence tends to point to the fact, that, the plaintiff has been aware, all along, that the first defendant was also claiming ownership of that property.

The plaintiff did nothing, then, to have the parties rights determined by a competent authority.

It is common cause, that, the plaintiff, in 1994, sued the seller and got judgment to have the property transferred to her. Later on, it is also common cause, that, the first defendant got certificate of occupation to the property.

The doctrine of notice decrees, that, if the latter purchaser, at the time it took transfer, knew that the property had been sold to another, then, the property must be transferred back to the other.

Herein, it is apparent, that, the plaintiff knew, at the time she applied to court for rights in the property, that the property had been sold to the first defendant's late husband.

The plaintiff conceded that point in the Statement of Agreed Facts.

It follows, then, that, when the plaintiff attempted to take transfer, it was a form of fraud.

In the case of Riley v Sliep NO [2008] ZANHC 22, the court quoted with approval an earlier judgment which held that “it is a species of fraud to attempt to secure a res (an item of property) which is known to have been promised to another.”

The same applies with full force in the present matter.

The plaintiff fraudulently obtained an order, under HC9233/93, having known that the property had earlier on been sold to another: see also Grundal Brothers (Pvt) Ltd v Lazarus N.O. and Anor 1991 (3) SA 812.

Having found as above, it is obvious there are no special circumstances affecting the balance of equities.

The first purchaser ought to succeed to be declared the true owner of the property.

The plaintiff bought the property when the first defendant was already in occupation of the property. The balance of equities cannot weigh in her favour.

This court has not been favoured with any evidence showing that the late Gordon Madzima cancelled the agreement of sale between himself and the late Musendo.

Without such evidence, the agreement of sale between the late Madzima and late Musendo is valid.

Consequently, the late Musendo is the first purchaser, and, there being no special circumstances favouring the plaintiff, it is my finding that the first defendant is the true owner of the property.

The plaintiff can always adopt the option of suing for damages.

Consequently, the plaintiff's claim is dismissed with costs.

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 July 2022 under judgment number HB188-22.After hearing the parties, the court dismissed the appeal with costs. The reasons therefor appear hereunder.FACTUAL BACKGROUNDStatement of Agreed FactsThe parties filed a statement of agreed facts ...

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 July 2022 under judgment number HB188-22.

After hearing the parties, the court dismissed the appeal with costs. The reasons therefor appear hereunder.

FACTUAL BACKGROUND

Statement of Agreed Facts

The parties filed a statement of agreed facts before the court a quo. The statement was reproduced by the court a quo in its judgment and may be summarised, materially, to the following effect:

(a) Sometime in November 2014, the first respondent and the appellant entered into a written agreement of sale over Stand Number 6505 Bulawayo Township of Stand 6541 Bulawayo Township, situate in the district of Bulawayo.

In their papers, the parties refer to it as “the initial agreement”.

The appellant took occupation of the property immediately upon the signing of the agreement in accordance with the terms thereof. The terms of the agreement also provided that the appellant was to pay the purchase price of the property in the sum of USD105,000 as follows:

(i) A deposit in the sum of USD25,000 upon the signing of the agreement.

(ii) The balance of USD80,000 by way of three equal instalments commencing on the 28th of February 2015, and, subsequently on or before 28 April 2015 and finally on or before 31 July 2015.

(b) The said purchase price was as per the then prevailing fair market value of the property.

The appellant paid a deposit of USD37,000 “by 12 March 2015.”

The appellant however breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner stipulated in the agreement.

The notice of termination of the initial agreement of sale, authored by the first respondent, was, according to the Sheriff's return of service, served upon the appellant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the appellant's worker.

In terms of the notice of termination, the initial agreement was cancelled on 4 September 2015.

(c) An action was instituted by the first respondent on 16 February 2017, under case number HC446/17, seeking the following relief:

(i) An order confirming the cancellation of the initial agreement.

(ii) An order evicting the appellant and all those claiming occupation from the property in question.

(iii) An order that the appellant pays “occupational damages” to the first respondent in the sum of USD800 per month or USD26.67 per day from the 4th of September 2015, being the date of the cancellation of the initial agreement to the date of eviction.

(d) A default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the relief as prayed for in the summons in HC446/17. In terms of the writ of execution and ejectment issued on 8 February 2018 pursuant to the default judgment, the appellant was evicted from the property in question.

(e) On 22 November 2018, the default judgment under HC446/17 was rescinded and set aside under HC1576/18. On 26 November 2018, the appellant entered an appearance to defend the action under HC446/17. On 18 February 2019, he filed a special plea but had not (as at the time of the filing of the statement of agreed facts) pleaded over to the merits.

(f) During the period when the order (in default) in HC446/17 was extant, the first respondent entered into a written agreement of sale over the same property (second agreement) with the second respondent. In terms of the second agreement, the second respondent was to pay the full purchase price in respect of the property being the sum of USD130,000 as follows:

(i) A deposit in the sum of USD70,000 upon the signing of the agreement.

(ii) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.

(g) The purchase price prescribed in respect of the property in terms of the second agreement was also per the then prevailing fair market value. In accordance with the terms of the second agreement, and by the 18th of July 2018, the second respondent had paid the full purchase price in the sum of USD130,000 to the first respondent.

(h) The third respondent was made aware of the second agreement of sale in terms of a report by the first respondent and he duly recorded such sale in his minutes in respect of a creditors meeting held on 21 June 2018. The minutes of the said meeting are contained in the third respondent's final liquidation file under CRB2/10.

I interpose at this juncture, for the sake of clarity, to explain that the first respondent acts in his official capacity as the liquidator of a company, Tabs Avon Lighting (Pvt) Ltd (in liquidation), the seller of the property in issue, hence the involvement of the third respondent.

(i) On 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (in liquidation), being NMB Bank Limited, approved of the second agreement of sale and the third respondent was duly made aware of such approval. The letter by this sole creditor is also filed in the third respondent's final liquidation file under CRB2/10.

(j) In the aftermath of the granting of the order under HC1576/18, and after the conclusion of the second agreement of sale and the payment by the second respondent of the full purchase price in respect of the property, the appellant took steps aimed at remedying his breach of the initial agreement of sale. He did so by depositing USD68,000 into the first respondent's legal practitioners trust account, being the balance of the purchase price.

(k) The steps taken by the appellant, aimed at remedying his breach of the initial agreement, were not accepted by the first respondent. The first respondent's legal practitioners tendered back to the appellant the said amount of USD68,000 that had been paid into its trust account.

(l) By way of an order granted under HC3144/18, the second respondent (being the purchaser in the second agreement) was joined to the main proceedings. He duly entered an appearance to defend the action and filed his plea thereto.

(m) As at the date of the Statement of Agreed Facts, and following the appellant's eviction therefrom in terms of the writ of execution and ejectment issued against him under HC1576/18, neither of the parties were in physical or lawful occupation of the property nor had any party taken transfer thereof.

In the Statement of Agreed Facts, the parties listed the following as the issues for determination by the court a quo:

(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo, between the plaintiff (appellant) and first defendant (first respondent), was lawfully terminated.

(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff (first respondent) and the second defendant (second respondent) at the material time.

(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred.

SUBMISSIONS BEFORE THE COURT A QUO

On the first issue, the appellant argued, that, the notice was not delivered in compliance with section 8(3) of the Contractual Penalties Act [Chapter 8:04] ('the Act') in that it was not delivered to him personally or by registered post to his chosen address.

On the other hand, the first respondent submitted, that, the appellant was notified of the breach in a manner that complied with the provisions of section 8 of the Contractual Penalties Act, and that the agreement was lawfully cancelled.

The second respondent, on his part, contended that the agreement between the appellant and the first respondent was lawfully terminated. According to him, the question that arose was whether the service of the notice on the appellant, by way of handing it to his worker, was valid service in terms of section 8 of the Contractual Penalties Act.

THE COURT A QUO'S DETERMINATION

In determining the matter, the court a quo found that it was “required to tease out the intention, purpose or context of section 8(3)(b)” of the Contractual Penalties Act.

It found, that, its purpose is to make provision for effective service of a written notice of breach of an instalment sale agreement. It stated that service of the notice of the termination of the agreement was served at the appellant's given address of service and concluded that service on the appellant's worker amounted to effective service of the notice.

The said court noted, that, the notice of cancellation clearly specified that the appellant had breached the agreement of sale by failing to pay the instalments. The appellant was given thirty days notice to remedy the breach by settling the amount due. The notice specified that failure to settle the amount within thirty days would lead to an automatic cancellation.

The appellant unilaterally deposited into the first respondent's legal practitioners trust account the balance of the purchase price almost three years after the deadline of 1 September 2015.

Therefore, the issue whether the agreement between the appellant and the first respondent was lawfully terminated, was settled accordingly.

On the second issue, the first respondent contended, that, the second agreement was concluded after the cancellation of the first agreement and also at the time the default judgment confirming cancellation was extant. It was also submitted, on his behalf, that, the fact that the default judgement confirming the cancellation was later rescinded was of no moment.

Per contra, the appellant argued that the preamble to the agreement between the first respondent and the second respondent described the property as Stand 6512 Bulawayo Township. It was submitted, that, it therefore followed that the parties in the second agreement had in mind Stand 6512 and not Stand 6505, the subject matter of the initial agreement. Furthermore, that there was thus no privity of contract between the first respondent and second respondent concerning the property the subject of this appeal.

The second respondent contended, that, the appellant breached the agreement by failing to pay the balance of the purchase price. Subsequently, the appellant was notified of the breach and failed to rectify the breach. He stated, that, the sale to him (second respondent) was conducted during the period when the order confirming the cancellation of the initial sale was extant and that there were therefore no legal impediments to the conclusion of the said (second) agreement of sale.

The court found, that, the property referred to in the agreed facts was Stand Number 6505 Bulawayo Township, situate in the District of Bulawayo. It found that there was no factual dispute as to the identity of the property in issue, the subject matter of the agreement between the first and second respondents.

Further, that, in any event, the validity of the agreement of sale between the first and second respondents was not an issue that the appellant should have concerned himself with. His matter did not turn on whether the second agreement was valid or not. His matter turned on whether he had breached the agreement of sale with the first respondent and whether his agreement was lawfully cancelled.

The court ultimately found that the agreement of sale between the appellant and the first respondent was lawfully cancelled.

With regard to the third issue for determination, the first respondent submitted, that, since the agreement of sale was lawfully terminated, and that the only valid agreement was the one between the first and second respondents, it followed that the property ought to be transferred to the second respondent.

It was further argued, that, ordering a transfer of the property to the appellant would be tantamount to creating a contract between the appellant and the first respondent where none existed.

It was also contended, that, such an order to transfer to the appellant would be tantamount to ordering specific performance, which remedy was not available to the appellant because he had failed to fulfil his contractual obligations, a factor which eventually led to the cancellation of the agreement.

The appellant argued that the court ought to order transfer of the property to him, coupled with an order for specific performance as the appellant had paid the purchase price by depositing the balance into the account of the first respondent's legal practitioners trust account.

The court found, that, by his own admission, the appellant breached the sale agreement and was not entitled to specific performance. It noted, that, the appellant's attempt at remedying the breach was not accepted by the first respondent and that a party cannot, after a breach, make a unilateral payment way outside the stipulated time frame, hoping to remedy the breach. It found, that, the second respondent was entitled to specific performance for the reason, that, in terms of the agreed facts he (the second respondent) agreed and undertook to pay the full prescribed purchase price and proceeded to do so in compliance with the terms of the agreement. Therefore, transfer of the property was to be done in favour of the second respondent.

In the result, the court a quo issued an order in the following terms:

1. The cancellation of the agreement of sale entered into between the plaintiff (first respondent in this appeal) and the first defendant (appellant in this appeal) in respect of a property known as Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo measuring 3109 square metres, D.T 2749/84 is confirmed.

2. The plaintiff shall transfer the property, being Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo measuring 3109 square metres, D.T. 2749/84 to the second defendant (second respondent in this appeal) within thirty (30) days of this order.

3. First defendant pays the costs of suit for plaintiff and second defendant on a party and party scale.

Aggrieved by the decision of the court a quo, the appellant has noted this appeal on the following grounds of appeal:

“GROUNDS OF APPEAL

1. The court a quo erred in law in finding that the agreement of sale in instalments over Stand 6505 Bulawayo township of Stand 6541A Bulawayo Township (the property) between appellant and first respondent was lawfully terminated.

2. The court a quo misdirected itself in law in finding that service of notice to remedy a breach in the instalment sale of land over the property on one Mr.Ncube, a gardener, was competent service as contemplated in section 8(2)(3) of the Contractual Penalties Act [Chapter 8:04].

3. A fortiori, the court a quo erred in law in finding that the appellant was properly placed in mora by the respondent.

4. The court a quo erred in law in finding, that, the first respondent, as seller in the instalment sale, clearly and unambiguously communicated its election to cancel the sale to the appellant as purchaser.

5. The court a quo erred in law in finding that the rescission of judgment granted in appellant's favour, in HC1576/18 on the 22nd of November 2018, was of 'no moment'.

6. The court a quo erred in law in finding that the appellant was not entitled to the relief of specific performance.

7. The court a quo erred in law in ordering transfer of the property into the second respondent's name in circumstances where a clear material dispute of fact existed as to the identity of the property sold to him by the first respondent.

RELIEF SOUGHT

WHEREFORE the appellant prays for the following relief:

1. The instant appeal succeeds.

2. The judgment of the court a quo is set aside in its entirety and in its place substituted the following -

(a) The plaintiff's claims be and are hereby dismissed.

(b) The plaintiff is ordered to transfer into first defendant's names Stand Number 6505 Bulawayo Township of Stand 6541A Bulawayo Township situate in the district of Bulawayo measuring 3,109 square meters held under Deed of Transfer 2749/84 within 30 days of this order.

(c) The plaintiff and second defendant are to pay the cost of suit, jointly and severally the one paying the other to be absolved on an attorney and client scale.

3. The first and second respondents are to pay the costs of this appeal, jointly and severally the one paying the other to be absolved.”

SUBMISSIONS BEFORE THIS COURT

Appellant's Submissions:

Counsel for the appellant submitted before this Court, inter alia, that, it is now accepted that courts interpret the provisions of section 8 of the Contractual Penalties Act strictly, and, in that regard, cited Washaya & Anor v Makebreak Trading (Pvt) Ltd SC163-21 where a shortfall of one day in the notice period was ruled to amount to non-compliance with the requirements of the section.

He further submitted, that, the Contractual Penalties Act requires personal service on the purchaser, and that, in casu, there was no personal service on the appellant as the purchaser. The appellant's gardener was not a nominated person and service on him was therefore not in compliance with section 8 of the Contractual Penalties Act.

He further submitted, that, section 40 of the Interpretation Act only becomes relevant and applicable where the provisions of an Act are not clear or the Act does not stipulate how service of documents is to be effected.

Section 8 of the Contractual Penalties Act, being clear in its provision, it follows that section 40 of the Interpretation Act has no role to play.

It was also contended by counsel for the appellant, that, there was “a serious dispute of fact” in that the initial and the second agreements related to two different properties. Thus, the appellant purchased a different property from that purchased by the second respondent.

Counsel conceded that the appellant did not make payments in accordance with the agreement of sale. To be specific, counsel's response to the court's question as to whether the appellant had paid in accordance with the agreement, was:

“He defaulted. That is why he was given the notice, but, subsequently, he tendered the payment.”

Note may be taken, at this juncture, that, the notice given to the appellant to remedy the breach was in August 2015 and that it afforded him 30 days to do so.

Counsel also conceded, that, the appellant did not rectify the breach within the given period.

He further confirmed, that, the appellant had subsequently received the summons issued by the first respondent for the confirmation of the cancellation of the agreement of sale and for his eviction.

When asked whether the appellant had “reacted” to the summons, counsel made reference to the payment of the outstanding balance that the appellant purported to make in 2018 and stated that the said payment was rejected.

Notably, the summons was issued on 16 February 2017 while the purported payment was made in December of 2018.

It was also counsel's submission, that, the reflected or implicit position in the Statement of Agreed Facts, that the property the subject matter of the initial agreement was the same property sold in the second agreement, was agreed to by mistake on the appellant's part because the two agreements related to two different properties.

He submitted, that, the issue of the two agreements relating to two different properties was brought to the attention of the court a quo which ought to have asked for an explanation why it was being asked to award to the second respondent property that had been bought by the appellant. He submitted that the court a quo ought to have advised that the matter should go to trial.

First Respondent's Submissions:

Counsel for the first respondent submitted, that, section 8 of the Contractual Penalties Act should not be read to be doing away with the provisions of section 40 of the Interpretation Act. He submitted, that, this was so because section 8(3) of the Contractual Penalties Act states clearly that it is “without derogation from section 40…,” and specifically provides as follows:

“Without derogation from section 40 of the Interpretation Act [Chapter 1:1], a notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (1) -

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned, or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Counsel for the first respondent submitted, that, Washaya & Anor v Makebreak Trading (Pvt) Ltd SC163-21, cited by the appellant, was distinguishable because in that case service was by registered mail and such service is provided for in section 8 of the Contractual Penalties Act; there was thus no need to consider section 40 of the Interpretation Act.

He also submitted, that, it was incorrect to say, as submitted for the appellant, that section 8 of the Contractual Penalties Act should be read alone to the exclusion of section 40 of the Interpretation Act.

It was counsel's contention, that, in casu, there was effective service and that section 8 of the Contractual Penalties Act was complied with.

With regard to the alleged dispute of fact, counsel argued, that, the appellant's argument would only carry the day where, as in Leathought Investments (Pvt) Ltd v Chirangano and Others SC60-21, such dispute of fact appears on the face of the Statement of Agreed Facts itself and in the pleadings.

He submitted that in casu, the parties decided to forgo preliminary issues and that the real issue that they placed before the court was the question: “who is entitled to take transfer of the property?”

Furthermore, the appellant should have followed the proper channels to resile from the Statement of Agreed Facts.

Without having done so, the appellant must be held to the facts as reflected in the Statement of Agreed Facts.

The issue of the Stand Number is thus overridden by the Statement of Agreed Facts which the parties signed.

Further to that, after so signing, the appellant had, as agreed, filed a plea in which the issue of the Stand Number did not arise.

The issue only arose during the hearing.

He argued, that, the parties were bound to the facts in the Statement of Agreed Facts and that the court only assists the parties by determining issues of law that arise therefrom. The appellant cannot therefore start alleging disputes of fact at the stage where the parties are addressing the court on issues of law.

Second Respondent's Submissions:

Counsel for the second respondent contended, that, the question for determination is whether or not the service of the notice of termination on the appellant's employee was proper service in terms of the law. She referred to Nenyasha Housing Co-op v Violine Sibanda 2019 (3) ZLR 9 (H)…, where the court stated as follows, inter alia:

“The notice (to) (sic) must be in writing as stipulated in section 8(2)(a) of the Act. The procedure to be followed by the seller entails him giving notice to rectify, discontinue, or remedy the breach, followed by the institution of proceedings. The mischief behind this provision is to offer protection to purchasers in instalment sales.”

Counsel highlighted that the appellant conceded that he saw the notice of termination. Counsel also observed that the appellant was subsequently served with summons for cancellation but did not do anything about it.

Counsel for the second respondent argued, that, section 8 of the Contractual Penalties Act does not require personal service on the purchaser. She contended that section 8(3) of the Contractual Penalties Act gives the seller the option to either deliver personally or on a nominated agent of the purchaser or to post by registered post. She contended that, in casu, the appellant was served effectively in that the notice was served on a responsible person at his usual address in accordance with the terms of section 40(2)(c) of the Interpretation Act.

On the alleged dispute of fact, counsel submitted, that, there was no merit in the allegation as the parties are all in agreement that the Stand in issue is Stand No. 6505. She further highlighted, that, the court a quo held that the validity of the agreement of sale between the first respondent and the second respondent is not an issue that the appellant should concern himself about; his matter does not turn on whether the second agreement was valid or not.

Counsel contended, that, the appellant was not genuine in pursuing the appeal but was merely frustrating the other parties and causing unnecessary delay in the finalisation of the matter. She further highlighted that the appellant had re-occupied the property and was benefitting from it and urged the court to dismiss the appeal with costs.

ISSUES FOR DETERMINATION BY THIS COURT

Considering the grounds of appeal, as well as the submissions made before this Court, the following issues emerge for determination:

1. Whether or not service on the appellant's gardener, of the notice to remedy the breach, was proper service.

2. Whether or not the appellant was entitled to specific performance.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the appellant was entitled to specific performance

In his sixth ground of appeal, the appellant contends, that, the court a quo erred in law in finding that he was not entitled to the relief of specific performance.

The law on specific performance is settled.

By claiming specific performance, the innocent party is asking the court to order the defaulting party to do exactly what he contracted to do, or, put differently, to fulfil his contractual obligations. However, specific performance cannot be granted to a party who has not fulfilled or is unwilling and is not ready to fulfil his contractual obligations.

This point was emphasized by this Court in the case of Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (S) as follows:

“Before I deal with this matter, I think it prudent for the court to remind itself of the correct manner in which the remedy of specific performance should be approached.

Historically, it was KOTZE CJ in Cohen v Shrines, McHattie & Kind [1882] 1 SAR 41 at 45, who, after consulting authorities, held that Roman-Dutch law clearly recognised the right to a specific performance of a contract, and, it is interesting to note that the classic exposition of the rule on specific performance was expressed in a case which arose in the High Court of this country and which came before the South African Appellate Division, namely, Farmers Co-operative Society (Reg) v Berry 1912 AD 343. In that case, INNES JA stated, at 350;

'Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger 'the right of a plaintiff to the specific performance of a contract, where the defendant is in a position to do so, is beyond all doubt.'”

An order for specific performance lies in the discretion of the court.

In Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A)…, it was held that the discretion of the court is:

“[not]…, completely unfettered. It remains, after all, a judicial discretion, and, from its very nature arises the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335)). It is aimed at preventing an injustice, for cases do arise where justice demands that a plaintiff be denied his right to performance, and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

In exercising its discretion, and in coming to the conclusion that it did, the court a quo stated that the general rule is that, prima facie, every party to a binding agreement, who is ready to carry out his own obligation under it, has a right to demand the other party, so far as it is possible, to perform its undertaking in terms of the contract.

It found, that, the second respondent was entitled to specific performance because in terms of the agreed facts, the second respondent agreed and undertook to pay the full prescribed purchase price in respect of the property and he met his side of the bargain.

On the facts of this matter, as reflected in the Statement of Agreed Facts, the court a quo correctly exercised its discretion in awarding the second respondent specific performance.

On the facts, to deny the second respondent specific performance would cause him undue hardship as he has already paid the full purchase price, and he did so in accordance with the agreed terms of the sale agreement. The court a quo correctly exercised its discretion in finding, that, the second respondent was entitled to specific performance.

Such discretion cannot be lightly interfered with.

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) the court held that:

“If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always (it) has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”...,.

It follows from the above analysis, that, the court a quo having correctly exercised its discretion, the appellant's sixth ground of appeal lacks merit and ought to be dismissed.

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.BACKGROUND FACTSThe background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them ...

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.

BACKGROUND FACTS

The background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them in full.

Upon commencement of development on the allocated Stands, one Mr Mukada indicated to the first respondent that he had been allocated a portion of the same Stands, thereby essentially constituting a double sale.

Upon enquiry, the second respondent admitted that it had erroneously made a double sale.

In a bid to cure the error, the second respondent allocated new Stands to the first respondent in 2014.

Just as the first respondent was about to commence development, the second respondent persuaded him to allow Total Zimbabwe to take over the Stands with the promise that he would be allocated replacement Stands next to Total Zimbabwe.

As a result, the first respondent averred that he was allocated five commercial Stands (numbers 1497, 1498, 1499, 1500 and 1501 of Nyazura Township) (hereinafter called “the Stands”) by the second respondent sometime in 2014 which are the subject matter of this appeal.

The allocation was done through a letter written to him by the second respondent advising him that he had been allocated the five Stands as replacement for the 2006 allocation.

Once the first respondent made plans to develop the Stands, he contacted the employees of the second respondent who assured him that he was the sole owner of the Stands.

However, on 9 January 2020, the second respondent's legal practitioners wrote to the first respondent demanding proof of confirmation of ownership.

Having been instructed about the letter, the first respondent's legal practitioners contacted the second respondent's legal practitioners for a round table conference. At the round table conference, it was highlighted to the first respondent that the second respondent had done a double allocation of the Stands.

On 21 January 2020, the first respondent became aware of a third party (the appellant) who had already initiated developments on the Stands.

Upon enquiry at the second respondent's offices, it was indicated that the second respondent had leased the Stands to the appellant for a truck hire business until 2024.

PROCEEDINGS BEFORE THE MAGISTRATES COURT

It is against this background that the first respondent filed an application for an interdict in the Magistrates Court.

The first respondent first filed an ex parte application in which the appellant was interdicted from occupying or effecting any development or construction on the Stands. The application was made on the grounds that the appellant was infringing on the first respondent's right to occupation of the Stands. He also sought that the appellant, and all those claiming occupation through it, be ordered to vacate the aforementioned Stands.

In seeking confirmation of the provisional order, the first respondent contended that there were no material disputes. He submitted that the real dispute of fact was whether a holder of rights to unsurveyed land cannot protect such rights through an interdict. He also contended, that, since he was allocated the Stands ahead of the appellant, he was entitled to an interdict.

In opposing the confirmation of the provisional order, the appellant averred that it had a valid lease agreement with the second respondent. The appellant further contended, that, it had already commenced developing the Stands and that the developments could not be interfered with since they were bona fide in terms of the lease.

The appellant also argued, that, the first respondent was not entitled to an interdict since he had not tendered adequate proof of ownership.

It further stated, that, the first respondent, by not approaching the second respondent for redress, had not exhausted all domestic remedies available to him.

The Magistrates Court held, that, the second respondent received the purchase price from the first respondent. It further held that after receiving the purchase price, the second respondent proceeded to allocate the Stands in question to the appellant on a lease basis. It found that notwithstanding the absence of title deeds there was proof that the first respondent paid the purchase price thus establishing a clear right over the land. It further found that the first respondent could not have sought redress from the second respondent as the second respondent had interfered with the first respondent's right over the land in favour of the appellant.

In the result, the Magistrates Court was of the view that the requirements for an interdict had been satisfied and thus the application was granted.

The effect of the order was to prohibit the appellant, its agents, employees, contractors, and all those claiming through it from occupying or making any developments on the Stands. It also ordered the appellant to remove its equipment and materials and to restore vacant possession to the first respondent.

PROCEEDINGS BEFORE THE HIGH COURT

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal with the court a quo. The grounds of appeal were as follows:

1. The Magistrates Court erred in holding that there were no material disputes of fact.

2. The Magistrates Court erred in holding that the requirements for an interdict had been met despite the evidence.

3. The Magistrates Court erred in holding that the first respondent had proved his rights to the property despite evidence to the contrary.

4. The Magistrates Court erred in holding that there was a double sale despite the fact that the Stands constituted State land.

Before the court a quo, the appellant contended that there was a material dispute of fact regarding which Stands were in contention. Hence, there was need to lead viva voce evidence. Thus, the first respondent could not claim to have a clear right in respect of land he did not own.

The first respondent contended, that, there were no material disputes of fact warranting the leading of viva voce evidence. Thus, the first respondent argued that he had produced evidence proving that he had been allocated the Stands. He further argued that the second respondent had not produced any evidence pointing to the existence of different Stands from those it had allocated to the first respondent. Thus, he argued that the requirements for the granting of an interdict had been met.

The court a quo found no basis for interfering with the findings of the Magistrates Court.

It noted that what is required when a final interdict is sought is that the right must be established clearly on a balance of probabilities. The court a quo held, that, the first respondent had established the requirements for an interdict as he had a clear right.

In the result, the appeal was dismissed with costs.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred in law and misdirected itself in finding that the appellant's first ground of appeal, on material disputes of fact, was meaningless and invalid.

2. The court a quo erred in law and misdirected itself in finding, that, there was no misdirection in the magistrates court's ruling that the first respondent was the owner of the land in question and had thus established a clear right entitling him to the final interdict granted in his favour.

3. The court a quo erred in law and misdirected itself in finding that there was no misdirection in the magistrates court's ruling that the first respondent had established the second requirement for a final interdict, namely 'the absence of an alternative remedy'.

4. The court a quo erred in law and misdirected itself in not finding that the magistrates court had wrongly granted a final interdict in favour of the first respondent without an analysis of, an application of its mind to, the third requirement for a final interdict, namely 'irreparable harm actually committed or reasonably apprehended'.

5. The court a quo erred in law and misdirected itself in not finding that the final interdict granted by the magistrates court in favour of the first respondent was an eviction order against the appellant in circumstances where no eviction proceedings had been properly instituted in that court.

SUBMISSIONS BY COUNSEL

In oral submissions, counsel for the appellant focused on the second ground of appeal.

In urging the Court to find for the appellant, counsel argued that the court a quo erred in upholding the Magistrates Court's ruling when the first respondent had not established a clear right to the land.

He submitted, that, with regards to land rights, only a party with a real right is entitled to an interdict against a third party.

Counsel further argued, that, the court a quo had misdirected itself in holding that the respondent had established the requirements for an interdict, particularly a clear right, and that being the case such a finding could not stand.

Per contra, counsel for the first respondent argued that the first respondent had established a clear right, on a balance of probabilities, which entitled him to an interdict.

The fact that the appellant had paid the purchase price and was allocated the Stands was not disputed before the court a quo.

In addition to that, the second respondent did not deny that the Stands had been sold to the first respondent.

The acceptance of the purchase price by the second respondent meant that its rights to the land were now limited. Thus, the second respondent could not lease the Stands to the appellant.

The issue arising for determination in this appeal, in the Court's view, is the following:

Whether or not the court a quo erred in finding that the first respondent had a clear right entitling him to a final interdict

THE LAW

The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of unlawful conduct: in this respect, see HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…,.

The requirements for a final interdict are settled in this jurisdiction. These are:

(a) A clear right;

(b) Irreparable harm actually committed or reasonably apprehended; and

(c) The absence of an alternative remedy.

See Econet Wireless Holdings and Others v Minister of Finance and Others 2001 (1) ZLR 373 (S); Setlogelo v Setlogelo 1914 AD 221…,.

As regards a clear right, again, the authors HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…, define the meaning of clear right as it relates to interdicts as:

“…, the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all…,. A clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, a clear right as opposed to a prima facie right must be established. Thus, the word “clear” in the context of right in an interdict does not qualify such right but rather expresses the extent to which the right must be established by evidence on a balance of probabilities.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed also state, that, a right that is sought to be protected by an interdict arises from substantive law. The right can derive from any branch of substantive law to which one must have recourse in order to resolve the dispute involved.

ANALYSIS

It was the appellant's case, that, for the first respondent to be entitled to a final interdict, he ought to have proved ownership of the Stands in question, failure of which the application for the interdict ought to have been dismissed.

I was not persuaded by counsel for the appellant's argument, that the first respondent was required, in terms of the law, to have real rights to the Stands in order to establish a clear right for purposes of an interdict.

This is because the real dispute between the parties is not related to ownership rights.

In this respect, account must be taken of the purpose of an interdict; which, among other things, is to prohibit unlawful conduct.

It is noted, that, the first respondent sought to prohibit the appellant from occupying and developing the Stands because he had purchased them. The first respondent produced proof of the purchase and allocation of the Stands to him - and neither the appellant nor the second respondent were able to rebut that assertion.

For purposes of protecting his interest in the Stands, the first respondent did not need to prove ownership of real rights as argued by counsel for the appellant.

I am inclined to agree with the first respondent's counsel.

From the evidence placed before the Magistrates Court, and the court a quo, it is evident that the right of the first respondent is clear.

The second respondent issued a letter to the first respondent allocating to him the Stands in question. In addition, the first respondent offered the second respondent a purchase price which it accepted as was proven by the receipt produced before the Magistrates Court.

Therefore, on these facts, the first respondent managed to establish the existence of a clear right in respect of the Stands.

On this basis, I find no reason to attack the findings of the court a quo.

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”

THE FACTS OF THE CASE

The following facts are not in dispute in this case:

By a Deed of Sale signed by both parties on 26 January 2010, the plaintiff sold to the defendant 10 acres of land being part of 100 Acre of Lot 5A, Umguza District on certain terms and conditions outlined in the deed.

At the time the parties signed the agreement of sale, there was no subdivision of the land in question as required by section 40 of the Regional, Town and Country Planning Act [Chapter 29:12], thus rendering the agreement null and void from its inception.

As fate would have it, the parties ran into problems with their agreement, with allegations and counter allegations mounted against each other.

Under cases referenced HC491/11 and HC2828/12 both parties initiated civil action against each other over the invalid agreement.

Confusion reigned.

Both parties ended up withdrawing the civil suits against each other leaving the instant case to resolve their differences and provide some direction.

THE EVIDENCE

The evidence in this trial centred on the testimonies of the two protagonists aided by some documentary exhibits to strengthen each other's position. I proceed to deal with that.

THE PLAINTIFF'S EVIDENCE

The plaintiff, who was aged 94 years at the time he gave evidence in court, was in full control of his faculties and did not seem to show any sign of struggling due to his advanced age.

The witness gave a detailed narrative of his relationship with the defendant, whom he regarded as his “child”. He chronicled how he entered into an agreement of sale (exhibit 1 of Annexure 1) on 26 January 2010. The witness told the court, that, pursuant to the signing of the agreement and the payment of the initial US$10,000 (ten thousand) dollars, he allowed the defendant to commence construction on the purchased property.

He said it was part of the agreement that the defendant would pay expenses related to the processing of the subdivision permit.

The witness said he wanted the defendant to pay him $350 per month as rentals for staying and conducting his farming activities at the plot which was the subject of the sale agreement.

He said when they ran into problems with their agreement, owing to the defendant's failure to comply with their agreement, he wanted him to be evicted from the plot and the defendant's response was to report him to the police.

When the witness's attention was drawn to the fact that the defendant was alleging to have made improvements for which he had been enriched and therefore wanted to be compensated, he said that the improvements had not benefited him and that the defendant was free to destroy such improvements.

The witness confirmed the improvements consisted, inter alia, of two dwelling houses, the second one of which the defendant had constructed against his will. The witness further told the court, that, in installing electricity, the defendant had used substandard poles which got rotten, and, he concluded his evidence in chief by suggesting that the defendant had cheated him.

Under cross-examination from the defendant's counsel, the plaintiff confirmed that he and the defendant had signed the sale agreement in 2010 and that as a result of that, the defendant had carried out visible improvements on the purchased property.

The witness also confirmed, that, other than the sale agreement, he had not signed any lease agreement with the defendant.

When questioned about the borehole on the property, the witness was emphatic that it was him who had sunk it and that all the defendant did was merely to have it flushed.

On further cross-examination, the witness could not dispute that the houses built by the defendant had electricity installed by the defendant.

When the valuations of the improvements done by the defendant were brought to his attention, the plaintiff was unable to challenge same. The best the plaintiff could say on the valuations was;

“He did that on his own volition. I did not tell him to make such developments. There is a letter which says there should be no development until the case is over.”

The plaintiff's cross examination was concluded by an admission, that, when he concluded the agreement of sale with the defendant, he was fully aware that he did not have a sub-division permit.

When his attention was drawn to his arbortive attempt to obtain a subdivision permit in 2000, almost 10 year before signing the agreement with the defendant, the plaintiff denied having applied for such permit, and sought to argue that the only permit he had applied for was for the southern side of his plot.

THE DEFENDANT'S EVIDENCE

The defendant commenced his evidence by highlighting the cordial relationship which he had enjoyed with the plaintiff prior to entering into this agreement of sale with him.

He indicated, that, in order to raise the money to buy this particular plot, he had to dispose of his smaller 6 acre piece of land. The defendant told the court, that, after paying the initial agreed sum of US$10,000 (ten thousand United States Dollars), he embarked on the construction of his cottage which was subsequently followed by the main house and electrification of same.

The defendant testified on the difficulties that he had with the plaintiff which were centred on the latter's refusal to receive part of the payment owing to delay.

The defendant, said, owing to the frustrations which he faced as a result of the refusal by the plaintiff to accept payment, he ended up initiating legal proceedings against the plaintiff for breach of contract.

The plaintiff also confirmed the civil suit commenced against him by the defendant and its ultimate withdrawal.

The defendant testified, that, all in all he paid the plaintiff a total of US$19,550 (nineteen thousand five hundred and fifty United Stated Dollars) toward the agreement.

The defendant's further evidence was that he only became aware of the absence of the subdivision permit much later, and when he was well into the agreement, as a result of which he gave the plaintiff US$80 for the facilitation of the permit.

The defendant further stated, that, when he eventually got the subdivision permit, through the plaintiff's legal practitioners, it turned out to be a fake or not authentic document.

He insisted that other than paying for its processing, he had no input into its production and flatly denied ever being involved in the fraudulent acquisition of the sub-division permit.

In his further evidence in chief, he gave a detailed account of the various improvements he made at the “purchased” property and the numerous demands for his eviction made against him by the plaintiff.

The witness said he was prepared to move out of the property as long as he was fully compensated for the improvements made. In his own words, the defendant stated the following as regards his counter claim;

“May the court order that the plaintiff compensates, the reason being that I constructed my house after he had given me permission to do so. I constructed two houses and he was watching me do so. If he says I should vacate the piece of land I will do so by removing what I put there to enable me to construct again at a different place. If he does not end up a destitute or a person of no fixed abode.”

When questioned during his evidence in chief to indicate the improvements he made, the following is what he stated:

“First and foremost, I built a three-bedroomed house (cottage), and, secondly, a three bedroomed main house. I pulled electricity to the house. On that Stand was a dry borehole. I got a company which flushed the borehole. I then bought the pump and the jojo tank which I fixed for the storage of water. That is the water that we are using. The rest of the things have their valuation.”

The witness went further to give the three valuations of the improvements he carried onto the property which he averaged to come up with a figure of US$97,833=33.

The witness emphasized that he had invested all his resources on the property and maintained that if he did not get compensated for such improvements he would end up having no fixed abode.

The defendant was taken through cross examination, part of whose thrust was to challenge him why his (defendant's) lawyer had not suggested to the plaintiff that he was lying, if at all he was misleading the court during his testimony. Part of the exchanges which caught the court's attention and require emphasis went along the following:

“Q: You accept now that this land has always belonged to plaintiff until today?

A: Yes.

Q: You appreciate that the plaintiff's claim is based on you being unjustly enriched and him being unjustly impoverished?

A: I realize he was unjustly enriched. I paid some money towards the property to the plaintiff following our sale agreement.

Q: What do you want from the plaintiff?

A: I want him to reimburse me for the expenses I incurred on that piece of land so that I am able to get another place to stay with my children since he pretended as if he was selling me that piece of land, he knew I would never get any title deed in respect of that land…,.

Q: Your claim is based on unjust enrichment?

A: Yes.

Q: You heard him say he has no use of such improvements?

A: Yes, I heard him say so but he is going to use them. The structures are on his piece of land which he pretended to be selling. There is electricity which he will use. If he did not want the houses, he could not have allowed me to construct them….,.

Q: Your bundle, you have put in several receipts from pages 90-102 to support your expenditure. All these are from September 2010. These were incurred at a time plaintiff told you to stay away from his land and to keep your money?

A: We had entered into an agreement of sale.”

When it was suggested to the witness that he was supposed to be paying rentals to the plaintiff, the defendant denied ever entering into a lease agreement with the plaintiff, but rather a sale agreement.

In conclusion, the defendant said that the valuation reports that he submitted had collectively dealt with the improvements he made and for which he was claiming to be paid.

ASSESSMENT OF EVIDENCE

At a joint pre-trial conference (record pp56-58), held by the parties, the parties narrowed their contentious issues to the following:

(1) Whether or not the plaintiff is entitled to a reasonable rental arising from the defendant's unauthorized/authorized occupation of the property in dispute.

(2) Whether or not the defendant has been unjustly impoverished and the plaintiff unjustly enriched as a result of the alleged developments made by the defendant upon the disputed part of the land, and, if so, the quantum thereof.

It is with these issues in mind that I proceed to consider the evidence tabled in this court.

Is the plaintiff entitled to reasonable rentals

The evidence which is not in dispute is that the defendant took occupation of the property in issue pursuant to a sale agreement, which sale turned out to be null and void or invalid owing to its non-compliance with the mandatory provisions of sections 39(1)(b)(i) and 40 of the Regional, Town and Country Planning Act [Chapter 29:12].

The sale agreement entered into by the parties is self-explanatory and it is too ambitious, if not too generous, to read into the agreement that it could, at any stage, be turned into a lease agreement to provide for a basis for the plaintiff to claim rentals.

It cannot possibly be the correct position, as stated by the plaintiff in his declaration, that:

“In or about March 2010, Defendant forcibly occupied a portion of Umguza 100 Acre Lot 5A….,.”

This averment is clearly not borne out by the overwhelming evidence in this court which speaks to the defendant's occupation as informed by the agreement of sale.

The fact that under case HC2828/12 the plaintiff initiated a civil suit against the defendant to force compliance with the sale agreement cements the existence of the agreement of sale between the parties.

The argument is simply, that, if in 2010, the defendant had forced himself onto the plaintiff's property, there would have been no need for the plaintiff to try and enforce compliance with some agreement in 2012 - two years down the line.

The plaintiff, in his own testimony, confirmed that the defendant only took occupation of the plot pursuant to an agreement.

What cannot be disputed is that subsequent to the defendant's occupation, the agreement ran into challenges. Despite this, these challenges did not in any way change the defendant from being a purchaser to a tenant.

The parties were fully conscious of what they wanted when they entered into this agreement.

It is not for this court to re-write the contract for the parties.

As was observed by the Supreme Court in the case Magodora and Others v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,:

“It is not open to the courts to write a contract entered into between the parties or to excuse any of them from consequences of the contract that they freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

For these reasons, the court is not prepared, for whatever reasons, to convert or to read into a simple sale agreement, a lease agreement.

One gets the obvious impression that reference to the defendant's alleged forced occupation of the property was slotted in as a desperate attempt to justify a claim for rentals by the plaintiff.

The averment clearly lacks merit and it is not sustainable.

Has the defendant been unjustly enriched at the expense of the plaintiff

This enquiry is intricably linked to the existence or non-existence of a lease agreement.

I have already made my position clear, that, the plaintiff is not entitled to any rentals flowing from a lease agreement because no such agreement ever existed or can be inferred from the evidence led in this court. If anything, the evidence shows, beyond doubt, that, it is in fact the plaintiff who has been unjustly enriched and the defendant impoverished in the process.

It is not in dispute, that, pursuant to the sale agreement the defendant paid a total of $19,550 towards the fulfillment of that agreement. The $19,000 was for the purchase of the land and $550 was paid towards the facilitation of the subdivision of the sold piece of land when the defendant realized that he had been sold the land in violation of the mandatory provisions of the Regional, Town and Country Planning Act.

The defendant's evidence in support of this payment was not challenged by the plaintiff.

In fact, in his declaration filed in this court on 22 April 2015, the plaintiff made an unsolicited offer to refund the defendant US$19,000 on monthly instalments of US$395.

The defendant's claim is built in his counterclaim filed in this court on 24 June 2015.

In that counter-claim, the defendant states that he made a number of improvements which would prejudice him if they were to accrue to the plaintiff without him being compensated.

In his closing submissions, the plaintiff's counsel criticized the defendant's pleadings and commended as follows:

“Of significance is that in paragraph 5 above defendant did not specifically allege that the alleged improvements have resulted in plaintiff being enriched.”

I accept the position taken by the plaintiff's counsel, that, the defendant's pleadings, especially in the counter claim, were poorly drafted. They lacked elegance. They could have been drafted in a much better way.

However, I do not accept that when the defendant's case is looked at holistically, the alleged defects in the pleadings can be raised to the level of fracturing his case. This is because the defects were cured by the overwhelming evidence in support of the defendant's case.

The defendant's uncontroverted evidence was that pursuant to the agreement of sale (which turned out to be invalid), he had poured substantial resources on the plaintiff's property. In the process, the plaintiff ended up being enriched and the defendant impoverished and that the defendant wanted to be compensated for this.

This was the basis of the defendant's claim, and even the plaintiff's counsel fully understood this as demonstrated by the tone and nature of his cross-examination of the defendant.

It is therefore not sustainable for counsel to argue that the defects in the pleadings must lead to the collapse of the defendant's case.

I now proceed to consider the defendant's case.

The plaintiff's case was largely built around the alleged breach of the agreement of sale. However, as the evidence led in this court has shown, there was no agreement to talk about for lack of compliance with the statutory requirements of the Regional, Town and Country Planning Act which prohibits any agreement of sale in respect of land which is not yet subdivided in accordance with a permit granted under section 40 of the Regional, Town and Country Planning Act.

In the case of X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (SC), the Supreme Court had occasion to deal with the law as regards the kind of sale which the plaintiff and defendant purported to enter into in this case. The court had this to say:

“Section 39 forbids an agreement for the change of ownership of any portion of a property except in accordance with a permit granted under section 40 allowing for a subdivision. The agreement under consideration was clearly an agreement for the change of ownership of the unsubdivided portion of a Stand. It was irrelevant whether the change of ownership was to take place on signing or on an agreed date fulfilled. The agreement itself was prohibited.”

This Supreme Court decision was subsequently followed by the High Court in the case of Tsamwa v Hondo and Others 2008 (1) ZLR 401 (H)…, where the court remarked as follows:

“The plaintiff's claim must be dismissed, as, at the time the parties entered into the agreement, there was no subdivision permit in existence. An agreement made in such circumstances is forbidden by section 39(1)(b)(i) of the Act. Any purported agreement for the change of ownership of a portion of a property is a nullity and no effect can be given thereto.”

In the preceding portions of this judgment, I have already dealt with the fallacy of the plaintiff's claim for rentals and it is not my intention to revisit same save to emphasize that when the plaintiff gave evidence in this court, he repeatedly stated that he allowed the defendant to take occupation of the portion of the land pursuant to the signing of the deed of sale.

Indeed, clause 3.1 of the agreement fully supports this averment.

It therefore follows that the plaintiff has dismally failed to plead a valid cause of action for rentals.

The defendant was taken to task by the plaintiff's counsel on why his lawyer did not specifically tell the plaintiff that he was lying on certain aspects of his evidence which the defendant disputed in his evidence in chief or in his own cross-examination.

Over my years on the Bench, I have always been marveled by this way of reasoning.

In the first place, a litigant can be a lay person (as in this case), and, when he gives instructions to his counsel he/she does no more than tell a simple story in his own simple understanding. In court, such a litigant has no capacity to frame appropriate questions for his legal practitioner. The legal practitioner, who is properly trained in the field of law, is assumed to know better how to frame his questions for cross-examination.

A simple, untrained litigant has absolutely no control over that process.

More importantly, a court does not require the cross-examination of a party in pointed terms labeling him a liar to make a finding that such a party is indeed a liar. The ultimate decision of finding someone to be a liar is not for the cross-examiner but it is a prerogative of the trier of fact after taking into account all the evidence in that trial.

In fact, in my view, a cross examiner must be slow to label a witness a liar because the trier of fact might see things differently and arrive at a completely different conclusion, which, by implication, might then project the cross-examiner as a liar himself.

As I will demonstrate later in this judgment, contrary to the effort made in this trial to portray the defendant as not worth believing, I found his credibility to be beyond reproach.

The plaintiff was clearly far from convincing.

Let me deal first with the legal position in as far as it impacts on the agreement entered into by the parties in casu.

It has already been spelt out that the contract entered into by the parties was null and void, and, therefore, unenforceable. As observed by R.H. Christie, in Business Law in Zimbabwe, published by Juta and Company Ltd 1998…,:

“The law cannot be expected to lend its aid to the enforcement of a contract which the law itself prohibits: City of Gweru v Kombayi 1991 (1) ZLR 333 (S). Unenforceability means that, as in York Estates Ltd v Wareham 1949 SR 197; 1950 (1) SA 125, specific performance will not be granted.”

Taken to its logical conclusion, the plaintiff cannot sue for breach of contract in this case.

But, our law recognizes that quite often, in the process of engaging in an illegal or unenforceable contract there may be other “collateral or connected transactions that do not amount to indirect attempts to enforce the illegal contract:” see R.H. Christie, Business Law in Zimbabwe, published by Juta and Company Ltd 1998.

In general terms, our law will not enforce an illegal or an invalid contract unless public policy demands that such approach be relaxed: see Jajbay v Cassim 1939 AD 537 which created the guiding rules.

Where someone has been unjustly enriched, in circumstances where the victim's innocence is beyond question, the court will come to the aid of such a party.

The defendant's case is a clear example of the need to relax the rule.

In what is probably the leading case in this country on unjust enrichment, in Industrial Equity Ltd v Walker 1996 (1) ZLR 269 (H)…, the court affirmed the position that a general enrichment action is recognized in our law and that the pre-requisites of such an action are:

“(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another, in that the plaintiff must be impoverished and there must be a causal connection between the defendant's enrichment and the plaintiff's impoverishment;

(c) The enrichment must be unjustified;

(d) The enrichment must not come within the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses an action for the impoverished person.”

See also the recent case of Charles Nyathi v Estate Late Philemon Ncube Mabuza and Tandie Mabuza N.O. and the Master of High Court N.O. HB54-19.

It is noted that, the defendant, in his counter claim has established all the requirements for unjust enrichment which call for his compensation.

In an attempt to resist the defendant's claim, the plaintiff raised basically three arguments, viz:

(i) That the counterclaim was not properly framed;

(ii) That he did not authorize the improvements; and

(iii) That the improvements are not useful to him, and therefore does not need them.

I have earlier own dealt with the alleged defects in the pleadings and made a specific finding that any such defects were cured by the overwhelming evidence in support of the defendant's claim.

As correctly argued by counsel for the defendant, the contention that the plaintiff did not authorize the improvements effected on the plaintiff's land is untenable because of clause 3.1. of the Deed of Sale which authorized construction to commence upon payment of a deposit of $10,000.

The plaintiff's own evidence confirmed that this initial payment was made and the defendant confirmed same.

In his evidence in chief, the plaintiff made a stout effort to convince the court that at the time the Deed of Sale was signed he did not know that there was no subdivision.

Compare this with the defendant's position that the plaintiff had been made to believe the whole transaction was above board. Unfortunately, the letter dated 17 August 2000 from the Land Surveyor's office…, which was copied to the plaintiff, exposed the plaintiff and threw his credibility into the dustbin.

The letter showed the extent to which the plaintiff was prepared to go in misleading the court.

Even the averment that the plaintiff made in his declaration, that the defendant had forced himself on his piece of land, projected the plaintiff in bad light because when he gave evidence in court, he conceded that the defendant's occupation of the land in issue was as a result of the agreement of sale.

The plaintiff's position got worse when he admitted that he had at one time sued the defendant to force him to comply with the sale agreement.

Such witnesses cannot claim to be credible witnesses.

The defendant gave a lucid testimony on the various improvements he made on the land in issue and the plaintiff was unable to controvert that evidence.

Under cross-examination, the plaintiff conceded that he did not bother to monitor the improvements the defendant was making because the latter had bought the portion of the land in issue.

To show that his credibility was beyond reproach, the defendant was able to back up his evidence with documentary exhibits.

The Deed of Sale signed by both parties fully supported the circumstances surrounding the defendant's occupation of the piece of land and the improvements he made.

The improvements made by the defendant were supported by sworn valuation reports from three different real estate agents: see exhibits 9, 10 and 11….,.

The third contention by the plaintiff in casu, that the improvements effected by the defendant are not useful to him, was clearly a misconceived view of the law given that the inescapable conclusion was that such improvements had added value to his property.

In throwing out the plaintiff's contention, this court is guided by the view taken by McNALLY JA in the case of Reza v Nyangani 2001 (1) ZLR 202 (S)…, where the court remarked as follows:

“…, usefulness of improvements must be measured in terms of added value, and not on the basis of whether the plaintiff would require the structure for his own use.”

It cannot be seriously contended, that, in casu, the improvements made have not added some value to the plaintiff's land, and, that in the process of doing so, and as correctly stated by the defendant, the defendant has been impoverished.

The valuation reports given by the defendant, which were not challenged by the plaintiff, give an estimation of the cost of obtaining a piece of land of the same size as purchased by the defendant as the sum of $35,000.

In coming up with a figure which he deemed to be fair and reasonable compensation, the defendant simply averaged the three valuation reports and added the price of similar land to get $132,833=33.

The proposed approach seems to be alien to well known principles of computation of such compensation.

I propose to accept the lowest valuation of $90,000 plus $35,000 being the estimated costs of purchasing a similar piece of land which would give the amount of $125,000 as fair compensation for the improvements.

The defendant's uncontroverted evidence in court was that he had virtually invested all his resources on the “purchased” piece of land thinking that it would be his permanent home, and that he has no financial resources to secure alternative accommodation for himself and his family.

He was very emphatic that if evicted without compensation his family would be rendered homeless and become destitute.

There is no doubt that the defendant and his family is in a serious predicament and that unless protected by this court, may end up as destitutes.

As argued by his counsel, the defendant is a bona fide possessor of the portion of land in issue and that he effected useful improvements thereon in good faith believing that he had purchased the piece of land.

The defendant therefore has a lien entitling him not to be evicted without being compensated.

As further noted by his counsel, in Rubin v Botha 1911 AD 568…, INNES J…, had this to say:

“The equitable relief given by Roman Dutch Law to a person who had made improvements upon the land of another was the outcome of the modification of the maxim that whatever is affixed to the soil belongs to it, by maxim that no man should be allowed to enrich himself at the expense of another….,.”

I might add and say the courts must endeavour to do justice between man and a man, and, further, that the decisions made must not encourage parasitic tendencies.

This court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim.

This is mainly because the defendant has a real lien over the portion of the land in issue.

Consequently, it is ordered as follows:

1. That the purported Deed of Sale concluded by the parties on 26 January 2010 in respect of a portion of Umguza 100 Acre, Lot 5A, be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That the plaintiff be and is ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That the prescribed interest be levied on the amount (under 3) (supra) with effect from 24 June 2015 to date of full payment.

5. That the plaintiff pays costs of suit.

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

IntroductionOn 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece ...

Introduction

On 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:

“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece of land being Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo and which cancellation was occasioned by defendant's breach of the terms and conditions of the said sale agreement.

(ii) An order evicting the defendant and all those claiming through him from the aforesaid premises on the basis that the defendant and his claimants no longer have a lawful right to remain in occupation of the premises following the cancellation of the sale agreement.

(iii) An order that the defendant pays occupational damages to the plaintiff in the sum of US$800 per month or US$26=67 per day, from the 4th September 2015, this being the date of the sale agreement was cancelled to the date of eviction.

(iv) Cost of suit at an attorney and client scale.”

The defendant referred to in the order sought by the plaintiff is the first defendant in this matter. The second and third defendants were joined to this matter by an order of this Court in Case No. HC3144/18 granted on 8 January 2019.

At a case management meeting held on 19 February 2020, before a judge of this court, the parties agreed to file a written statement of agreed facts and to refer the matter to the Court for determination by way of a special case in terms of Order 29 of the High Court Rules 1971. A statement of agreed facts was drawn, signed and filed on the 1 October 2020.

The matter then proceeded as a special case in terms of the rules of court.

On 11 February 2022, the plaintiff filed a notice to amend the summons, declaration, and pleading filed of record in terms of Rule 41(1) of the High Court Rules 2021. The notice sought to delete the names of Thabani Siziba N.O. to be substituted with the name of Batandi Michael Mpofu N.O.

There was no written objection to the proposed amendment within the ten days of the delivery of the notice, the amendment sought was therefore effected.

The Facts

For the purposes of clarity and completeness, I reproduce in ex extensio the statement of agreed facts signed and filed by the parties in this matter. These are the agreed facts:

(i) That the plaintiff and first defendant, sometime in November 2014, entered into a written agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo (hereinafter 'the in initial agreement'). A copy of the initial agreement is annexed hereto and marked, “A”.

(ii) That the first defendant took occupation of the property immediately upon the signing of the initial agreement pursuant to the terms thereof.

(iii) That in terms of the initial agreement, the first defendant agreed and undertook to pay the full prescribed purchase price in respect of the property, being the sum of USD105,000 as follows:

(a) A deposit in the sum of USD25,000 upon the signing of the agreement.

(b) The balance of USD80,000 to be paid by way of three (3) equal instalments commencing on 28 February 2015, and subsequently on or before 28 April 2015, and finally on or before 31 July 2015.

(iv) That the purchase price prescribed in respect of the property in terms of the initial agreement was as per the then prevailing fair market value.

(v) That the first defendant initially paid a deposit of USD37,000 by 12 March 2015. A copy of the defendant's proof of payment of the deposit is annexed hereto and marked “B”.

(vi) That the first defendant breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner prescribed in the initial agreement.

(vii) That the notice of termination of the initial agreement of sale over the property was, according to the Sheriff's Return of Service, served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the first defendant's worker. A copy of the notice of the termination and the Sheriff's Return of Service hereto marked 'C' and 'D' respectively.

(viii) That in terms of the notice of termination, the initial agreement of sale was cancelled on 4 September 2015.

(ix) That an action was instituted by the plaintiff on 16 February 2017, under cover of case No. HC446/17, seeking:

(a) An order confirming the cancellation of the initial agreement;

(b) An order evicting the first defendant and all those claiming occupation from the property in question (sic);

(c) An order that the first defendant pay occupational damages to the plaintiff in the sum of USD800 per month or USD26=67 per day from 4 September 2015, being the date on the cancellation of the initial agreement to the date of eviction.

(x) The default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the rest of the relief as prayed for in the summons in the matter under cover of Case No. 446/17. A copy of the default judgment is annexed hereto marked 'E'.

(xi) That in terms of the writ of execution and ejectment issued out on 8 February 2018, pursuant to the default judgment in the matter under cover of Case No. HC446/17, the first defendant was evicted from the property in question. A copy of the writ of execution and ejectment is attached hereto and marked “F”.

(xii) That the default judgment in the matter under cover of Case No. HC446/17 was rescinded and set aside on 22 November 2018 in terms of the Order issued in the matter under cover of Case No. HC1576/18, a copy of which is annexed hereto marked “G”.

(xiii) That the first defendant entered an appearance to defend the action under cover of Case No. HC446/17 on 26 November 2018, and filed a special plea on 18 February 2019, but has not pleaded over to the merits of the matter.

(xiv) That during the period when the order in Case No. HC446/17 was extant, and on 14 March 2018, the plaintiff entered into a written agreement of sale over the property with the second defendant (hereinafter “the second agreement”). A copy of the second agreement is annexed hereto and marked “H”.

(xv) That in terms of the second agreement, the second defendant agreed and undertook to pay the full prescribed purchase price in respect of the property being the sum of USD130,000 as follows:

(a) A deposit in the sum of USD70,000 upon the signing of the agreement.

(b) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.

(xvi) That the purchase price prescribed in respect of the property in terms of the second agreement was per the then prevailing fair market value.

(xvii) That in accordance with the terms of the second agreement, and by 18 July 2018, the second defendant had paid the sum of USD130,000 to the plaintiff, being the full prescribed price in respect of the property in question. The prescribed purchase price was paid into the bank account of Waterbuck Trust (Pvt) Ltd as evidenced by the attached proof of payment marked “I”.

(xviii) That the third defendant was made aware of the second agreement of the sale in terms of a report by the plaintiff and duly recorded such sale in its minutes in respect of a creditors meeting held on the 21 June 2018. The minutes of such meeting are duly contained in the third defendant's final liquidation file under CRB2/10 and attached hereto marked “J”.

(xix) That on 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (the company under liquidation) being, NMB Bank Limited, approved of the second agreement of sale and the third defendant was duly made aware of such approval. The letter by the said sole secured creditor of the company under liquidation is contained in the third defendant's final liquidation file under CRB2/10 and is attached marked “K”.

(xx) That in the aftermath of the granting of the order in the matter under cover of Case No. HC1576/18, and after the conclusion of the second agreement of sale and the payment of the full purchase price in respect of the property by the second defendant, the first defendant took steps aimed at remedying his breach of the initial agreement of sale by depositing into the plaintiff's legal practitioners trust account the balance of the purchase price being USD68,000 in terms of the correspondence attached hereto marked “L”.

(xxi) The steps taken by the first defendant, aimed at remedying his breach of the initial agreement, were not accepted by the plaintiff in terms of correspondence attached marked “M”.

(xxii) The plaintiff's legal practitioners tendered back to the first defendant the amount paid into its trust account in the sum of USD68,000. This amount is currently held in trust by the plaintiff's legal practitioners as per the correspondence attached hereto marked “M”.

(xxiii) That by way of an Order granted in the matter under cover of Case No. HC3144/18, the second defendant was joined to the main proceedings, duly entered an appearance to defend the action and filed his plea thereto.

(xxiv) That as at the date of this statement, and following the first defendant's eviction therefrom in terms of the writ of execution and ejectment issued against him in the matter under cover of Case No. HC1576/18, neither of the parties are in physical or lawful occupation of the property nor has any party taken transfer thereof.

The Issues

The issues for determination by the Court are as follows:

(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo between the plaintiff and the first defendant was lawfully terminated.

(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff and the second defendant at the material time.

(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred?...,.

I now turn to the issues for determination as identified in the statement of agreed facts.

Whether the initial agreement between the plaintiff and the first defendant was lawfully terminated

In terms of the agreement of sale between the plaintiff and the first defendant, the latter had to pay a deposit of USD25,000 upon signing of the agreement and the balance of USD80,000 had to be paid in three equal instalments.

It was an instalment sale of land in terms of section 2 of the Contractual Penalties Act [Chapter 8:04] which says an “instalment sale of land” means a contract for the sale of land whereby payment is required to be made in three or more instalments; or by way of a deposit and two or more instalments; and ownership of the land is not transferred until payment is completed.

The agreed facts are that the first defendant paid a deposit of USD37,000 by 12 March 2015 and breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner prescribed in the agreement.

The notice of termination of the agreement of sale over the property was served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo, on 12 August 2015, by handing a copy thereof to his worker.

Cut to the bone, the first defendant argues that the notice was not delivered in compliance with section 8(3) of the Contractual Penalties Act [Chapter 8:04] in that it was not delivered to the first defendant personally or by registered post to his chosen address.

The plaintiff submitted, that, the first defendant was notified of the breach in a manner that complies with the provisions of section 8 of the Contractual Penalties Act, and that the agreement was lawfully cancelled.

The second defendant contended, that, the agreement between the plaintiff and the first defendant was lawfully terminated.

The question that arises is whether the service of the notice to the first defendant, upon handing it to his worker, was valid service in terms section 8 of the Contractual Penalties Act [Chapter 8:04].

Counsel for the first defendant submitted, that, the first defendant does not dispute that a notice was served on his worker on 12 August 2015; the contention is that it was not proper service.

Section 8 of the Contractual Penalties Act [Chapter 8:04] provides thus:

“Restriction of sellers rights

(1) No seller under an instalment 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 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, for 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; or

(ii) Thirty days; whichever is the longer period.

(3) Without derogation from section 40 of the Interpretation Act [Chapter 1:01], a notice shall be regarded as having being duly given to the purchaser for the purposes of subsection (1) —

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”…,.

Section 40(2) of the Interpretation Act [Chapter 1:01] provides thus:

“(2) Where an enactment authorizes or requires a document to be served on any person without directing it to be served in a particular manner, the service of that document may be effected —

(a) By personal service; or

(b) By post in accordance with subsection (1); or

(c) By leaving it for him with some person apparently over the age of sixteen years at his usual or last known place of abode or business; or

(d) In the case of a corporate body, or an association of persons, whether incorporated or not, by delivering it to a director, the secretary, or clerk of the body or association at the registered or principal office of the body or association, or serving it by post on such director, secretary, or clerk at such office; or

(e)…,.”

In Washaya and Another v Makebreak Trading (Private) Limited and 2 Others SC163-21, the court held thus:

“The contention advanced on behalf of the appellants overlooked the principle contained in section 2(1)(a) of the Interpretation Act, to the effect that the application of the provisions of the Interpretation Act to the construction of any enactment must be consistent with the intention, purpose, or context of the enactment.

The purpose of section 8(3)(b) of the Contractual Penalties Act is to make provision for effective service of a written notice of breach of the instalment sale of land by the seller to the purchaser where it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land.”

In determining whether service of the notice was valid service, the court is required to tease out the intention, purpose, or context of section 8(3)(b) of the Contractual Penalties Act.

Its purpose is to make provision for effective service of a written notice of breach of the agreement of sale.

In the agreement of sale, the first defendant provided his address as number 43 Aberdeen Road, Fortunes Gate, Bulawayo. That is the address where the notice of termination of the agreement was served.

The agreement does not specify the manner of service of a written notice in the case of breach.

The first defendant accepts that the notice was indeed delivered, but contends that it was not delivered in terms of the provisions of the law. The position taken by the first defendant is tantamount to saying “yes” the notice was delivered and I saw it, but it did not come to me via the correct route.

Such a position is unattainable.

What the law requires is the effective service of the notice, and leaving it with his worker amounts to effective service.

The written notice, drawing the attention of the first defendant, as the purchaser, to breach of the agreement and calling upon him to rectify the breach within thirty days of service of the notice on him failing which cancellation of the agreement would follow, was served on him in terms of section 8 of the Contractual Penalties Act as read with section 40(2)(c) of the Interpretation Act, in that it was served by leaving it with his worker at his usual or last-known place of abode which he provided in the agreement.

The notice of cancellation clearly specified that the first defendant had breached the agreement of sale by failing to pay the instalments. He was given thirty days notice, calculated from 1 August 2015, to remedy the breach by settling the amount due. The notice specified that failure to settle the amount within thirty days shall lead to an automatic cancellation of the agreement of sale.

The first defendant did not comply with the notice of cancellation, and he unilaterally deposits to the plaintiff's legal practitioners trust account the balance of the purchase price almost three years after the deadline of 1 September 2015.

On 19 May 2017, this court confirmed the cancellation of the agreement of sale between the plaintiff and the first defendant, and, while the order was extant, the property was sold to the second defendant.

That, on 22 November 2018, the order confirming cancellation of the agreement was rescinded is of no moment.

Therefore, the issue whether the agreement between the plaintiff and the first defendant was lawfully terminated is answered in favour of the plaintiff and the second defendant.

Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff and the second defendant at the material time

The agreed facts are that a default judgment was granted on 19 May 2017, confirming the cancellation of the agreement between the plaintiff and the first defendant. A writ of execution was issued and the first defendant was evicted from the property.

That, on 14 March 2018, during the period when the order in Case No. HC446/17 was extant, the plaintiff entered into a written agreement of sale over the property with the second defendant. The order in HC446/17 was rescinded and set-aside on 22 November 2018.

The plaintiff contends, that, the second agreement was concluded after the cancellation of the first agreement and also at the time the default judgement confirming the cancellation was still extant. It was submitted, further, that, the fact that the default judgment confirming the cancellation was later rescinded is of no moment.

The first defendant, in his heads of argument, contended that the preamble in the agreement between the plaintiff and the second defendant describes the property as Stand 6512 Bulawayo Township. It is submitted further, that, the parties had in mind Stand 6512 instead of 6505, and, therefore, there is no privity of contract between the plaintiff and the second defendant concerning the property.

The second defendant contends, that, the first defendant breached the terms of the agreement by failing to pay the balance of the purchase price by 31 July 2015, which was the last date of payment provided in the agreement.

Subsequently, the first defendant was notified of the breach and was asked to remedy it within thirty days in accordance with section 8(1)(c)(ii) of the Contractual Penalties Act. It was submitted that the notice was served on the first defendant, and he failed to remedy the breach within thirty days thereof. The agreement was cancelled as per the notice.

Thereafter, the plaintiff sued out a summons and obtained a default judgment, and the first defendant was evicted from the property.

It is contended, that, during the period when the order confirming the cancellation was extant, the plaintiff sold the property to the second defendant.

It was submitted, that, there was no legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff and the second defendant at the material time.

I have found supra that the property referred to in the agreed facts is Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo. There is no factual dispute about the identity of the property in issue subject to the agreement between the plaintiff and the second defendant.

In any event, the validity of the agreement of sale between the plaintiff and the second defendant is not an issue the first defendant should concern himself about. His matter does not turn on whether the second agreement was valid or not. His matter turns on whether he breached his agreement of sale with the plaintiff, and whether his agreement was lawfully cancelled.

I have found supra that the agreement of sale between the plaintiff and first defendant was lawfully cancelled.

Furthermore, on the date the property was sold to the second defendant the first agreement had been vacated in terms of the law. The notice was issued and served in terms of the provisions of the law, a default judgment had been granted confirming the cancellation of the agreement between the plaintiff and the first defendant. The plaintiff submitted, that, the fact that the default judgement was subsequently rescinded is of no moment.

I agree.

I say so because at the time the second agreement was concluded, the default judgment confirming the cancellation was extant.

The issue whether at the time the second agreement was concluded there was no impediment to the sale of the property is answered in favour of the plaintiff and the second defendant.

To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred

The plaintiff submitted, that, since the first agreement of sale was lawfully terminated, and that the only valid agreement is between the plaintiff and the second defendant, then, it follows that the property should be transferred to the second defendant.

It was argued further, that, ordering a transfer of the property to the first defendant would be tantamount to creating a contract between the plaintiff and the first defendant, as none exists.

It was contended further, that, to order transfer to the first defendant would be tantamount to ordering specific performance, which remedy is not available to the first defendant because he did not fulfil his contractual obligations.

Counsel for the first defendant submitted, that, this court must order that the property be transferred to the first defendant. Counsel further contended, without conceding, that this was a case of a double sale, and that no special circumstances have been shown justifying a departure from the general rule that says the first in time is the stronger.

It was submitted further, that, the court must order specific performance in favour of the first defendant because he has paid the purchase price by depositing the balance into the account of the plaintiff's legal practitioners. It was argued further, that, the refusal to accept the payment on account of the earlier unlawful termination of the contract was of no consequence.

I take the view that this was not a double sale.

The agreement between the plaintiff and the second defendant was entered into after the agreement with the first defendant was lawfully cancelled.

The agreed facts are that the first defendant initially paid a deposit of USD37,000 by 12 March 2015, and that he breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner prescribed in the agreement.

By his own admission, the first defendant breached the agreement.

I take the view, that, the first defendant is not entitled to an order of specific performance because he breached the agreement. The remedy of specific performance is not available to a party who has breached the agreement: see Savanhu v Marere NO & Ors 2009 [1] ZLR 320.

His attempts aimed at remedying his breach of the agreement were not accepted by the plaintiff.

A party cannot, after a breach, make a unilateral payment hoping to remedy the breach.

Specific performance is a discretionary remedy vested in the courts. In the exercise of such discretion, the general rule is that, prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand the other party, so far as it is possible, to perform its undertaking in terms of the contract. Courts will exercise a discretion in determining whether or not decrees of specific performance will be made: see Hativagone & Another v CAG Farms (Pvt) Ltd & Others SC42-15…,.

The second defendant is entitled to specific performance for the following reasons:

That, in terms of the agreed facts, the second defendant agreed and undertook to pay the full prescribed purchase price in respect of the property, being the sum of USD130,000 as follows: a deposit in the sum of USD70,000 upon the signing of the agreement and a balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018. It is stated that the second defendant had paid the sum of USD130,000 to the plaintiff, being the full prescribed price in respect of the property in question.

The second defendant met its side of the bargain.

The issue as to whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred to is answered in favour of the second defendant.

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Law Portal
Zimbabwe

Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

Categories

Law Portal Zimbabwe

Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL Ruled By: MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR Ruled By: MATHONSI J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD Ruled By: KUDYA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA Ruled By: MWAYERA J and MUZENDA J

HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O. Ruled By: CHAREWA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA Ruled By: MAWADZE J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA Ruled By: MATANDA-MOYO J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD Ruled By: MANGOTA J

Appealed SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

View Appeal HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO Ruled By: BERE J

View Appeal HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: DUBE-BANDA J

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Law Portal
Zimbabwe

HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J