ZIYAMBI JA:
[1] During the week ending 29 December 2006, the Herald newspaper carried
an advertisement inserted by Murenga Estate agents (“Murenga”) wherein stand
No. 1759 of 323 Midlands, Waterfalls, was being advertised for sale at a
purchase price of twenty five million dollars. The respondent was
interested in the property and visited Murenga's offices where he spoke to a
Mrs Madziva, a sales agent thereat. He was referred to Stand 323
Thorn Road and, having viewed the property, returned to Murenga and expressed
his desire to purchase the property at the asking price of $25 000
000.00. He was given Murenga's bank account number wherein he could
transfer the purchase price. Later that week, having effected the
transfer as directed, he met with the appellant at Murenga's offices where they
were to sign the agreement of sale.
[2] According to the respondent, the
appellant pleaded with Mrs Kasenza who drafted the agreement of sale to reflect
the purchase price as $8 000 000 instead of the actual price of $25 000 000.00
that he had paid. Mrs Kasenza was reluctant to understate the purchase
price but following consultations with her superior, Mr Murenga, and more
pleading from the appellant, who claimed to be heavily indebted with medical
bills and the like, the respondent, after an initial objection to this proposal
since he had already paid $25 000 000.00, and it was generally known that
properties in the area were fetching prices in excess of $8 000 000.00, finally
agreed to the appellant's suggestion that the agreement be back-dated to
September 8, 2006 and the purchase price be understated. The appellant,
however, states that it was the respondent who requested the understatement of
the price in order to evade stamp duties on transfer.
[3] Following these events and on 29
December 2006, the appellant, as seller, and the respondent, as purchaser,
concluded an agreement for the sale of:
“certain piece of land situate in
the District of Salisbury being subdivision of 323 Midlands Township 2 of Upper
Waterfalls Estate called Stand No. 1759 measuring 2 167 square metres. A
residential stand with staff quarters partly walled measuring 2 167 square
meters.”
[4] In terms of the agreement, the
purchase price was $8 000 000 (eight million dollars) which was to be deposited
with Murenga and held by them pending transfer. Clause 2 of the
General Conditions provided that the Seller was to tender transfer of the
property within a reasonable period of the date of acceptance of this offer and
the Purchaser was to provide the Seller's Conveyancers with the
requirements specified in Clause 2 within fourteen days of the date
of such tender of transfer. The Conveyancers were to be Messrs
Gutu & Chikowero. Vacant possession was to be given to the
purchaser by mutual agreement.
[5] It is common cause that the
agreement, notwithstanding the actual date of its conclusion and signature (29
December 2006), was dated 8 September 2006.
[6] On 10 January 2007, Murenga
wrote to the Conveyancers with instructions to attend to the transfer of the
property advising in the letter that the purchase price had been paid direct to
the appellant. The Conveyancers, in turn, wrote to the appellant on 3
January 2007 requesting the title deeds for the whole property as well as the
permit to subdivide, among other things, to enable them to attend to the
transfer.
[7] Vacant possession of the
property was given to the respondent on or about 1 February 2007. In or
about April 2007, the appellant advised the respondent that when the surveying
process was completed he might expect to lose or gain 100 square meters.
After the completion of the process it turned out that the respondent had
gained 47 square meters. The appellant asked him to pay 10 million dollars for
this extra piece of land but he could only afford $3 000 000.00 which, and that
is common cause, he paid to the appellant.
[8] Thereafter matters dragged on
until 5 January 2009 when the Conveyancers wrote again to the appellant's legal
practitioners requesting the documents necessary to process the transfer and
advising that the purchase price had been paid to the appellant. The
response was a request for proof of payment of the purchase price. On 30
January 2009, proof of payment in the form of a letter of confirmation by
Murenga that the purchase price had been paid, was forwarded to the appellant's
legal practitioners.
[9] On 3 February 2009 the
appellant's legal practitioners wrote to the respondent's legal practitioners
alleging, inter alia, that their client was resiling, on their advice,
from the agreement which they alleged was illegal. They tendered the
purchase price, should any remain, after deducting rentals calculated from the
date of occupation by the respondent on 1 February 2007.
[10] It was following these events
that the respondent lodged a court application in the court a quo
seeking an order compelling the appellant to pass transfer of the property to
him failing which the Sheriff or his lawful deputy be authorized to effect the
transfer on the appellant's behalf. He based his application on the fact
that he had paid the purchase price for the property and that the appellant was
not entitled to be unjustly enriched at his expense.
[11] The application was opposed by the appellant who, in turn, filed a counter
application for the eviction of the respondent from the property as well as
payment of rentals at the rate of USD$250 per month from 1 February 2009.
The basis of the counter application was that the respondent had not paid the
purchase price of the property.
[12] On behalf of the appellant, it
was argued before the court a quo that the agreement being in
contravention of the Stamp Duties Act, and in fraudem legis, was
illegal and could not be enforced by the court.
[13] The respondent however sought the relaxation of the application of the in pari
delicto rule on the grounds of public policy which, it was submitted,
should properly take into account the doing of simple justice between man and
man. It was submitted on his behalf that the illegality – the understatement of
the purchase price- having been instigated by the appellant, the court ought to
take cognizance of the moral blameworthiness of the parties in determining
where the justice of the case lay. It was submitted that it was contrary
to public policy, for a party to persuade another to commit a wrong, as did the
appellant, and then use that wrongful act as a shield of defence in the face of
a legitimate suit by the respondent for his bargain.
[14] The Court a quo found
that it was the appellant who had hatched the plan to understate the purchase
price of the property in order to avoid payment in terms of the Stamp Duties
Act [Cap 23:09]. It found further that the appellant, through his
agent, Murenga, had received the full purchase price of the property. It
granted the order sought by the respondent for the transfer to him of the
property and dismissed the counterclaim by the appellant.
THE ISSUES ON APPEAL
[15] The grounds of appeal, as
amended, raise three issues, namely, the correctness of the finding
of the court a quo that the respondent had paid the full purchase
price of the property; whether the court erred in enforcing a contract which
was found by it to be illegal and which was, in any event, prohibited by s39 of
the Regional Town and Country Planning Act; and whether the court erred in
finding that the appellant would be unjustly enriched if the counterclaim were
granted. I deal with each issue in turn.
[16] Whether the court erred in
finding that the purchase price of the property was paid in full to the
appellant.
The court a quo made factual
findings in this regard. The general rule regarding factual findings made by a
trial court is that they will not be upset by an appellate court unless there
has been such a gross misdirection by that court on the facts so as to amount
to a misdirection in law in the sense that no reasonable tribunal applying its
mind to the same facts would have arrived at the conclusion reached by the
lower court. As it was put by KORSAH JA in Hama v National Railways of
Zimbabwe[1]
“… there can be misdirection as to
the law applicable to the case being tried; and there can be misdirection as to
the evidence in the case. For an appellant to avail himself of a misdirection as
to the evidence, the nature and the circumstances of the case must be such that
it is reasonably probable that the Tribunal would not have determined as it did
had there been no misdirection. In other words, that the determination was
irrational….
The general rule of the law, as
regards irrationality, is that an appellate court will not interfere with a
decision of a trial court based purely on a finding of fact unless it
is satisfied that, having regard to the evidence placed before the
trial court, the finding complained of is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at such a conclusion.
Bitcon v Rosenberg 1936 AD 380 at 395--7; Secretary of State for
Education and Science v Metropolitan Borough of Tameside
[1976] 3 All ER 665 (CA) at 671e - h; Council of Civil Service Unions
v Minister for the Civil Service, supra, at 951a - b; PF-ZAPU v
Minister of Justice, Legal and Parliamentary Affairs (2) 1985 (1)
ZLR 305 (S) at 326E—G”.
In the absence of such a
misdirection (and none has been alleged by the appellant), it is not open to
this Court on appeal to substitute its own findings of fact for that of the
trial court.
[17] In any event, the probabilities
clearly support the factual conclusions reached by the court a quo. The
respondent produced the RTGS transfer form showing the transfer of $25 000 000
into the bank account of Murenga; the respondent was given vacant possession of
the property; four months after the agreement was concluded, and in April 2007,
the appellant approached the respondent to ask for an additional $10 000 000
for the 47 square meters which he had gained after the subdivision and
received, from the respondent, payment in the sum of $3 000 000.
[18] It seems unlikely that the
respondent would have been given vacant possession of the property by the
appellant if the purchase price had not been paid as required by clause 2 of
the agreement. Further, the fact that four months later, at a time when the
respondent was already in occupation of the property, the appellant claimed
from the respondent only the value of the additional 47square meters and not
the full purchase price of the property is supportive of the respondent's
evidence that payment for the property had been made in terms of the
agreement.
[19] This Court can take judicial
notice of the fact that during that period, hyperinflation was taking its toll
on the economy and it was in the interest of sellers of property to recover the
sale proceeds as quickly as possible rather than await the tedious process of
transfer by which time the money paid (or agreed as the purchase price) would
have lost some of its value. Clause 2 of the SPECIAL CONDITIONS of the
agreement (which were to prevail over the GENERAL CONDITIONS) bears this
out. The purchase price was to be paid in cash. Clause 2 reads in part:
“2. This sale is conditional upon
the purchaser being able to raise cash on the property of not less than $8 000
000,00 …”
[20] In addition to the above, the
appellant's agents, on two occasions, confirmed, in writing, that the purchase
price had been paid. In my view, the conclusion reached by the court a
quo is unassailable.
[21] Whether the court erred in
enforcing a contract which was found by it to be illegal and which was, in any
event, prohibited by s 39 of the Regional Town and Country Planning Act.
The court a quo decided the matter on the basis that it was dealing with
a contract that was illegal by virtue of its contravention of s 44 of the Stamp
Duties Act [Cap 23:09] (“the Stamp Duties Act”). For completeness the
section is set out below:
“44 Agreements to evade duty
shall be void
Every contract, agreement or
undertaking made for the purpose of evading, defeating or frustrating the
requirements of this Act as to the stamping of instruments, or with a view to
precluding objection or inquiry relative to the due stamping of any instrument
shall be void.”
[22] In his heads of argument, as
also in his submissions before this Court, counsel for the respondent made the
concession that the agreement of sale between the parties also contravened the
provisions of s 39 of the Regional Town and Country Planning Act [Cap. 29:12]
and that consequently, the appeal from the court a quo's judgment
ordering the transfer of the stand ought to succeed. He submitted,
however, that since both parties were in the wrong, this Court should relax the
in pari delicto rule and remit the matter to the court a quo
to ascertain the present value of the property with a view to granting a refund
to the respondent of the value paid for the property in order to avoid a
situation where the appellant is enriched at the expense of the respondent.
This submission was resisted by Mrs Wood who, on behalf of the
appellant, contended that the court a quo ought to have granted the
counter application as it was the respondent who would be enriched at the
expense of the
appellant.
[23] Although the issue as to the
illegality of the agreement by virtue of its contravention of s39 of the
Regional Town and Country Planning Act was not argued in the court a quo,
it is a point of law and, there being no prejudice caused to the respondent by
the taking of the point for the first time on appeal, counsel for the
respondent, therefore, acted properly both in allowing the point to be raised
by the appellant unopposed and in making the concession.
[24] Section 39 of the
Regional Town and Country Planning Act [Cap 29:12](“the Act”) reads, in
relevant part, as follows:
“39 (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
(ii) …
(iii) …
(iv) …
(c) consolidate two or more
properties into one property; except in accordance with a permit granted in
terms of section forty:”
It is common cause that the
agreement in casu was for the sale of an unsubdivided portion of a stand
and that at the date of conclusion of the agreement, there was, in existence,
no permit granted in terms of s 40 of the Act. Therefore, in terms of
clear authority emanating from this Court, the agreement was illegal and
unenforceable at law. See X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments
(Pvt) Ltd 2000(2) ZLR 348(SC) where McNALLY JA at 348F stated as follows:
“.. s 39
forbids an agreement for the change of ownership of any portion of property
except in accordance with a permit granted under s 40 allowing for a
subdivision. The agreement under consideration was clearly an agreement for
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, or when a suspensive condition was fulfilled. The agreement itself was
prohibited.”
It
follows from the above that the grant of the remedy sought by the respondent in
the court a quo would amount to an enforcement of the illegal
contract. That was the substance of the concession made by counsel for
the respondent.
[25] It is now established that an
illegal agreement which has not yet been performed either in whole or in part
will never be enforced by the Court. See York Estates Ltd v Wareham
1950 (1) SA 125 at p 128 where LEWIS ACJ, said:-
“The Court has no equitable
jurisdiction to grant relief to a plaintiff seeking to enforce a contract
prohibited by law. See Matthews v Rabinowitz 1948 (2) SALR 876
W.L.D. In fact the Court is bound to refuse to enforce a contract which
is illegal even though no objection to the legality of the contract is raised
by the parties. CAPE DIARY and GENERAL LIVESTOCK ENGINEERS v SIM (Supra)[2]
This rule is absolute and admits of
no exception. It is expressed in the maxim ex turpi causa non oritur
actio. See Dube v Khumalo 1986(2) ZLR 103 (SC) at p 109.
It is based on the principle, expressed variously, that the Court cannot aid a
party to defeat the clear intention of an ordinance or statute; that Courts of
justice cannot recognize and give validity to that which the legislature has
declared shall be illegal and void; and that the courts will not permit to be
done indirectly and obliquely what has expressly and directly been forbidden by
the legislature.
[26] In the Dube v Khumalo
case GUBBAY JA (as he then was), put it this way:
“There are two rules which are of
general application: The first is that an illegal agreement which has not
yet been performed, either in whole or in part, will never be enforced. This
rule is absolute and admits no exception. See Mathews v Rabinowitz
1948(2) SA 876(W) at 878: York Estates Ltd v Wareham 1950(1) SA 125 (SR)
at 128. It is expressed in the maxim ex turpi causa non oritur actio.
The second is expressed in another maxim in pari delicto potior est
conditio possidentis.” (My emphasis)
The principle which emerges from the
decided cases is that the courts will not enforce an agreement prohibited by
law. The order of the court a quo, having, as it did, the effect of
enforcing the illegal contract concluded by the parties, cannot be allowed to
stand. However that is not the end of the matter.
I turn to determine the third
issue which will involve a consideration of the application of the second
maxim.
[27] Whether the court erred in
finding that the appellant would be unjustly enriched if the counterclaim were
granted.
THE PAR DELICTUM (or the IN
PARI DELICTO) RULE
The name derives from the maxim in
pari delicto potior est conditio defendentis which literally means that if
the plaintiff and the defendant are tainted by turpitude ('in the wrong'), the
position of the defendant is stronger, and that the plaintiff must fail[3]; or in pari delicto potior est
conditio possidentis which may be translated as meaning where the
parties are equally in the wrong, he who is in possession will prevail. The
effect of the rule is that where something has been delivered pursuant to an
illegal agreement, the loss lies where it falls, the objective of the rule
being to discourage illegality by denying judicial assistance to persons who
part with money, goods or incorporeal rights, in furtherance of an illegal
transaction.[4]
[28] The distinctive character of
the two maxims was explained by STRAFFORD CJ in Jajbhay V Cassim[5] as follows:
“In my view the first maxim
prohibits the enforcement of immoral or illegal contracts and the second
curtails the right of the delinquents to avoid the consequences of their
performance or part performance of such contracts.”[6]
And at p 542:
“I repeat that the two maxims,
although they have a common inspiration and purpose, are clearly distinct in
that they deal with different types of claim. The maxim ex turpi causa
is self- explanatory and requires no elucidation. It is complete and
unquestioned in our Courts as in the Courts of England. But we must leave
it in its own department where it reigns supreme and not unwarrantably extend
it to the province of the other maxim which is designed to supplement the
deficiencies of the first in regard to deterring illegality. The two separately
operating and properly applied are, I venture to think, adequate for that
designed purpose. When I say that the law is not settled, I mean in
regard to the application only of the second maxim in pari delicto potior
conditio defendentis. This is the only maxim which, in my judgment,
concerns us in the present case, for the appellant is not seeking enforcement
of the illegal contract but seeks release from its operation. This maxim
is not so self-explanatory as the first, for the nature of the plaintiff's
claim is not immediately indicated and the degree and nature of the delinquency
is but vaguely defined.”[7]
[29] The harsh effect of the
unqualified application of the par delictum rule is illustrated in the
case of Brandt v Bergstedt[8]. The Plaintiff who had sold his
cow to the defendant on a Sunday in contravention of an ordinance which
prohibited any form of trading on a Sunday was not assisted by the court when
he sought payment from the defendant for the cow. The defendant had set up
the defence inter alia that he was not obliged to pay because the sale
was prohibited by statute.[9] No doubt there are many similar cases in
which the courts have strictly applied the maxim.
[30] However, in Jajbhay and
Cassim[10] the appellate division of the Supreme
Court of South Africa, headed by STRAFFORD CJ, held that the general rule
expressed in the maxim is not one that can or ought to be applied in all cases
and that it is subject to exceptions which in each case must be found to exist
only by reference to the principle of public policy.
It was there said that:
“Courts of law are free to reject or
grant a prayer for restoration of something given under an illegal contract,
being guided in each case by the principle which underlies and inspired the
maxim. And in this last connection I think a court should not disregard the
various degrees of turpitude in delictual contracts. And when the delict
falls within the category of crimes, a civil court can reasonably suppose that
the criminal law has provided an adequate deterring punishment and therefore,
ordinarily speaking, should not by its order increase the punishment of the one
delinquent and lessen it of the other by enriching one to the detriment of the
other. And it follows from what I have said above, in cases where
public policy is not foreseeably affected by a grant or a refusal of the relief
claimed, that a court of law might well decide in favour of doing justice
between the individuals concerned and so prevent unjust enrichment.”[11] (My underlining)
[31] At page 543 of the
judgment the learned Chief Justice expressed his view that:-
“The case of Brandt v. Bergstedt
(1917 CPD 344) and the decision of the Transvaal Provincial Division in Rex v.
Maseko (1915 TPD 1) appear to me to be in conflict. In the first the
reasoning implies that the learned Judge felt himself bound by the authorities
he quoted to refuse relief to the plaintiff, whereas I respectfully suggest
that he should have approached the matter from the more fundamental point of
view as to whether public policy was best served by granting or refusing the
plaintiff's claim. If the learned Judge had so approached the case and
had considered that as an equitable Judge he was free (as I think he was) to
order the restoration of the cow, I cannot doubt that he would have granted the
relief prayed. Indeed the facts of that case afford a typical example
which called for a decision on which side public policy is best served”[12] (Underlining for emphasis)
[32] Where a party to an illegal
contract seeks not to enforce the illegal contract but to obtain relief from
the consequences of his illegal action, the courts have, in order to prevent an
injustice or to satisfy the requirements of public policy, or obviate a
situation where one party is unjustly enriched at the expense of the other,
intervened and granted relief from the rigid application of the rule.
Thus while the general rule is that
illegal transactions will be discouraged by the courts, the exceptions show
that where it is necessary to prevent injustice or to promote public policy the
courts will not rigidly enforce the general rule. The
identification of the exception to the rule, however, is a task which the court
must undertake in each case. As WATERMEYER JA observed[13]:
“the real difficulty lies in
defining with any degree of certainty the exceptions to the general rule which
it (the Court) will recognize.”
In the Dube v Khumalo case[14] it was said that:
“… in suitable cases the
courts will relax the par delictum rule and order restitution to be
made. They will do so in order to prevent injustice, on the basis that
public policy “should properly take into account the doing of simple justice
between man and man.”
[33] It would seem quite clear that
the appellant seeks to benefit, unjustly, from the transaction. Having
sold the property and received the proceeds through his agent, he now seeks the
return of the property and thus, so to speak, 'have his cake and eat it'.
The respondent, on the other hand, has parted with the full value of the
property and stands to incur great financial prejudice if an order for eviction
is granted in terms of the counter claim. It would appear then, that the
court a quo was correct in its finding that the appellant sought to
benefit from its own wrongdoing. It said:
“It is clear to me that the 1st
respondent seeks to benefit from its own wrong doing. Therefore rigid
application of the ex turpis causa rule will result in an unjust
enrichment of the party who engineered the result of the illegality. It is on
this basis alone that the counter application should fail. In the result
therefore the application is granted and the counter application dismissed with
costs”.
DISPOSITION
[34] Both parties sought the
enforcement in whole or in part of the illegal agreement. The respondent,
in moving the court to order the transfer to him of the property on the basis
that he had paid the full purchase price of the property, prayed, in effect,
for specific performance of the contract. The appellant, in his
counter application for eviction on the basis that vacant possession of the
property was given by him to the respondent in the mistaken belief that the
latter had complied with clause 2 of the general conditions of the agreement
and paid the purchase price when in fact he had not, was seeking relief from
the Court on the basis of an alleged breach of the illegal contract by the
respondent.
[35] While the provisions of s 39 of
the Act may not have been present to their minds at the time of conclusion of
the agreement in this matter, no comfort can be gained by the parties from that
fact since ignorance of the law is no excuse. In any event, the contravention
of the Stamp Duties Act was agreed upon by both parties albeit with some
persuasion, as the court found, from the appellant. They were both in the
wrong. They fell squarely within the ambit of the in pari
delicto maxim.
[36] After hearing submissions by
counsel at the hearing of the appeal the parties were afforded time in which to
attempt a settlement of the matter. Part of the delay in writing this
judgment is attributable to this postponement of the hearing. Needless to say,
the parties were unable to reach agreement and I must now consider the real
issue to be determined in this appeal which is whether the present case is a
suitable one for a departure from the general rule or, as it was put by the
parties, for a relaxation of the par delictum rule by the Court.
[37] In that connection, it appears that the court a quo confused the
two maxims. It referred to relaxing the ex turpi causa rule. The
tenor of the judgments of this court is that the ex turpi causa rule
does not admit of exceptions[15]. It cannot be relaxed.
Different considerations apply however where the in pari delicto
maxim is concerned[16]. Judging by the reference to his
judgment in Logan v Sibiya,[17] it seems likely that the learned Judge
meant to relax the application of the in pari delicto maxim. In that
case, where an applicant sought the return of money paid to a respondent in
pursuance of an illegal contract, the court found it to be an appropriate case
in which to relax the par delictum rule in order to prevent the unjust
enrichment of the respondent at the expense of the applicant.
[38] A strict application of the par
delictum rule in the instant matter would result in a situation where the
appellant holds the title deeds but the respondent retains possession of the
property. While neither party could resort to the Courts for enforcement
of the contract, it is quite conceivable that the appellant could transfer
title to a third party against whom the respondent might have no
recourse. In the circumstances of this case it seems to me that public
policy would not countenance the unjust enrichment of the appellant at the
expense of the respondent. Indeed it might well be thought that the
respondent had been the subject of a great injustice and the Court would be
expected to come to his assistance. A failure by the Court to assist the
respondent might, far from deterring illegality, prove to be to the advantage
of some unscrupulous members of the public. In this regard I am in
respectful agreement with the following remarks by STRAFFORD CJ in the Jajbhay
v Cassim case:
“It may be said that contracts of
that nature are more discouraged by leaving the bereft plaintiff unhelped and
the doubly delinquent defendant in possession of his ill-gotten gains. I
cannot agree with this view, which I think would not so much discourage such
transactions but would tend to promote a more reprehensible form of trickery by
scoundrels without such honour as even thieves are sometimes supposed to
possess, and public policy should properly take into account the doing of
simple justice between man and man.”
[39] In my judgment this is a
suitable case for making an exception to the strict application of the par
delictum rule. The justice of the case would be met by remitting the matter
to the court a quo for the reasons advanced by counsel for the
respondent. Such a course would enable the respondent to recover the
value of the money paid under the illegal contract and the appellant, on
payment of compensation, to recover possession of the property.
[40] On the question of costs, since
both parties have achieved some measure of success, I deem it reasonable that
each party should pay its own costs on
appeal.
[41] Accordingly it is ordered as
follows:-
1. The appeal is allowed in part
with each party paying its own costs.
2. The judgment of the court a
quo ordering transfer of the property to the respondent is set aside with
each party to pay its own costs;
3. The matter is remitted to the
court a quo for hearing of evidence to enable it to determine:-
(i) the value of the property
including any improvements made thereon by the respondent;
(ii) the amount by which the
appellant has been enriched at the expense of the respondent;
(iii) the amount by which the
respondent should be compensated by the appellant; and
(iv) to make such order as to it
seems appropriate in order to achieve justice between the parties.
(v) an order in terms of para
(iv) herein may set a period during which the amount determined in para (iii)
shall be paid by the appellant to the respondent failing which payment
the Deputy Sheriff shall transfer the property to the respondent.
GARWE JA:
I agree
OMERJEE AJA: I agree
Messrs Sakutukwa & Partners, appellant's legal practitioners
Messrs Gutu & Chikowero, respondent's legal practitioners
[1] 1996 (1)ZLR 664 (S) @ 670
[2] 1924 AD 167
[3] Du Plessis : The South African Law of Unjust
Enrichment at p204.
[4] Dube v Khumalo (supra)
[5] 1939 AD 537
[6] At p540
[7] Jajbhay v Cassim supra at pp542-543
[8] 1917, C.P.D. 334
[9] The Court in Jajbhay v Cassim was of the
view that this was one of the cases where the Plaintiff ought to have been
assisted by the Court. See para [31] .
[10]
Supra at para [28]
[11] At pages 544-545. The above passage
was quoted with approval by GUBBAY JA in Dube v Khumalo (supra)
[12] See also at p558
[13] At page550 of the same judgment
[14]
Supra at para [24]
[15] York Estates v Wareham (supra); Dube v
Khumalo (supra)
[16] Dube v Khumalo (supra)
[17] 2002(1)ZLR 531
