GOWORA JA:
THE FACTUAL BACKGROUND
Appellants are the owners of a
certain immovable property, known as WAMICA Farm measuring 644,795 ha, (“the
farm”). It is rural land. The first respondent (hereinafter
referred to as the respondent) is a private company duly registered as such
under the laws of Zimbabwe. It carries on business in the agricultural
sector.
On 5 December 2012, the respondent
made a written 'Final Offer' for the acquisition of the farm to the
appellants. The offer describes the farm, outlines how valuation of the
price was conducted and specifies the price offered together with the proposed
payment terms. The appellants accepted the offer on 6 December 2012.
On the same date, pursuant to the acceptance of the offer, the parties
concluded an “Irrevocable Memorandum of Understanding' (hereinafter referred to
as the “MOU”) in relation to the same.
In view of the statutory legal
requirement attendant upon the sale of rural land, the appellants immediately
made an application to the Ministry of Lands for the issuance of a Certificate
of No Present Interest. The application was acknowledged by letter of the
same date. The certificate of No Present Interest was issued sometime in
the same month.
In the meantime, in anticipation of
the issuance of the certificate, the respondent had, through its legal
practitioners, prepared a written agreement of sale. However, the agreement was
not signed due to alleged unwillingness to co-operate on the part of the
appellants.
On 16 March 2013 the respondent
became aware that the farm was being advertised for sale as subdivided plots.
The respondent, being of the view that a valid sale agreement had been
concluded between itself and the appellants, approached the High Court on a
certificate of urgency seeking an interim interdict against transfer of the
farm, and a final order declaring that a valid agreement of sale of the
farm had been concluded between the parties, and, consequent thereto, an order
for specific performance of the sale agreement in its favour. The
respondent sought ultimately an order for the transfer of title in the farm to
itself. The matter was found not to be urgent and was subsequently re-set
down on the normal roll. The court a quo found that an agreement
of sale had been entered into and it ordered specific performance in favour of
the respondent.
The appellants were aggrieved
by that decision and have entered the present appeal on the following grounds:
1. The learned judge a quo erred and misdirected
herself by failing to appreciate that the 1st Respondent was
not entitled to the relief of specific performance. In particular that the
learned judge ignored the evidence that the property in dispute had been
subdivided, advertised and sold prior to the commencement of proceedings
in court and at the time of hearing counsel.
2. The learned judge a quo erred and misdirected
herself by making an order for specific performance yet the evidence put
before the court did not show the existence of a valid and binding
agreement between the parties.
3. The learned judge a quo erred and misdirected
herself by making a finding that the appellants were in breach of contract
yet no valid Agreement of sale was put before the court.
4. The learned judge a quo erred and misdirected
herself by failing to appreciate that both the offer and acceptance
document and the memorandum of understanding were both void ab initio
at the time of their signing as these were entered into before the
issuance of a certificate of no present interest by the Ministry of Lands
and Rural Resettlement.
5. The learned Judge a quo erred and misdirected herself
by failing to appreciate that the dies induciae
of signing the actual agreement of sale as contemplated in the offer
document and memorandum of understanding lapsed before the parties could
sign therefore no valid and binding agreement existed as between the
parties.
There are three factual issues which
are common cause in this case. Firstly, that the respondent made a valid
offer to purchase the farm from the appellants, which offer was accepted by the
appellants, the proof whereof lies in the offer document to which all the
parties appended their signatures on 6 December 2012. Secondly, that the
parties proceeded to execute an MOU on the same day. The last is that the
agreement of sale that was dependent upon the issuance of a certificate of no
present interest from the relevant Ministry was not concluded by the parties.
Counsel for the appellants argued
that the court a quo, contrary to its comments as stated above,
clearly misdirected itself when it then made a finding that the series of documents
agreed to by the parties, metamorphosised into an agreement of sale of the
farm, a position postulated by the respondent. It was argued further on
behalf of the appellants that the judgment of the court a quo remained
unclear as to which agreement the court considered to be binding on the
parties. The passage which is the subject of the attack is at p 5 of the
cyclostyled judgment and reads:
“The
agreements entered into by the parties are enforceable. All the key terms were
agreed to in the final offer and the MOU. In fact all the essential elements of
a contract were present and all that remained was for the parties to prepare
the contract document and sign it. It is for these reasons that I conclude that
the parties intended to be bound by these agreements.”
The court a quo refers to the
offer and the MOU as the contract between the parties, and it took these
separate agreements as one when it granted specific performance, based on the
MOU. The parties themselves were not agreed that the MOU would be the
agreement of sale. This is evident from the MOU itself. The thrust
of the MOU was:
“… to set out the basis upon which
the transaction shall be concluded and to set out rights and obligations upon
each party leading to the signing of a SALE AGREEMENT between the parties. It
is the parties understanding that the sale agreement be concluded immediately
upon the successful completion of the necessary regulatory approvals by the
Ministry of Agriculture, Land and Rural Resettlement.”
In my view the dispute stands to be
resolved by the determination of the following issues:
1. Whether the court a quo made the correct finding
that a valid agreement of sale existed between the parties.
2. Whether any legal rights flow from the MOU signed by
the parties.
3. Whether the court could order transfer of the farm
notwithstanding the subdivision of the same into plots pursuant to a
permit.
DID A VALID AGREEMENT OF SALE EXIST
BETWEEN THE PARTIES
In essence there were two contracts
envisaged after the offer for the purchase of the farm was accepted. The
first was the MOU itself which would lay the basis for the conclusion of the
agreement of sale of the land, the second the contract of sale itself. The
court a quo properly undertook a process under which it scrutinised and
analysed each of the documents executed by the parties. It commented thus in
relation to the Final Offer:
“It is clear from the offer that an
agreement of sale would be concluded at a subsequent stage. The offer was
subject to the acquisition of a certificate of no present interest from the
relevant authority. In order to record this fact the parties entered into a
Memorandum of Understanding. The MOU recorded that a contract would only be
concluded after the certificate of no present interest had been granted. The
contract was subject to the happening of a future
event.”
The court a quo also
found that:
“… The final offer constitutes a
preliminary agreement where the parties would sign another contract. The
parties had agreed on the key terms of the contract but had not signed the
actual contract and had agreed to be bound to carry out, in good faith all the
actions as may be necessary to expedite the transfer and registration of the
farm.”
As a consequence, the court accepted
that there was no contract of sale entered into through the Final Offer.
The MOU was a vehicle through which the agreement of sale would be
concluded. The MOU specifically provided that a contract would be
concluded upon the obtaining of a certificate of no present interest. In
discussing the terms of the MOU the court remarked:
“These
facts disclose an agreement to agree in future in good faith. The objective,
which was to bind the parties to agree to enter into a final contract, did not
happen. No agreement of sale was entered into. This scenario is distinguishable
from a contract of sale subject to a suspensive condition which comes into
effect on fulfilment of a specified condition. In this case, there was no
contract of sale entered into as envisaged.”[1]
It is abundantly clear that the
court's analysis of the offer and the MOU cannot be faulted nor can the
conclusion by the court that a contract would be concluded after a certificate
of no present interest would have been obtained from the relevant
ministry. The court a quo was alive to the condition upon which an
agreement would be entered into and that in fact no agreement of sale was ever
entered into. Its finding in the face of all the above observations that an
enforceable agreement existed through a series of agreements was a clear
misdirection.
WHETHER ANY LEGAL RIGHTS FLOWED FROM
THE MOU
It is evident that the court
accepted that the offer was subject to a condition precedent, and further, that
no agreement of sale was entered into. This finding emerges clearly in
the judgment, wherein it is stated as follows:
“The
objective which was to bind the parties to agree to enter into a final
contract, did not happen. No agreement of sale was entered into… In this case
there was no contract of sale entered into as envisaged.”
However, the court then departed
from this pertinent finding and fell into error when it held, as it did, that:
“… the agreement to agree contains
key or sufficient and definite terms of agreement even though a few details
still have to be worked out and there is a dispute resolution mechanism
provided for in this case, this renders the agreement certain and enforceable.
The agreements entered into by the parties are enforceable. All the key terms
were agreed to it in the final offer and the MOU. In fact, all the essential
elements of a contract were present and all that remained was for the parties
to prepare a contract document and sign it. It is for these reasons that I
conclude that the parties intended to be bound by these agreements.”[2]
The courts are enjoined to give
effect to contracts between parties in the manner the parties agreed. The
aim of the MOU was to set out the basis upon which a sale would later be
concluded. This is apparent from s 1 of the MOU. It is worded as
follows:
“The aims and objectives of this
Memorandum of Understanding shall be to set out the basis upon which the
transaction shall be concluded and to set out the rights and obligations of
each party leading to the signing of a SALE AGREEMENT between the parties. it
is the parties (sic) understanding that the Sale Agreement be concluded
immediately upon the successful completion of the necessary regulatory
approvals by the Ministry of Agriculture, Land and Rural Resettlement.”
It stands to reason therefore that
the sale agreement was to be effected at a later date subject to the terms and
conditions set out in the MOU and, subject also to further negotiations by the
parties. The wording of the MOU itself lends support to an interpretation
which is only consonant with a finding that the MOU was not the agreement of
sale in itself.
Section 5 of the MOU reads as
follows:
“The parties shall assign personnel
on a mutually agreed basis, on terms and conditions which they shall agree to,
separate from this memorandum for the purpose of cooperating in concluding the
Sale Agreement.”
Further and in addition to the
above, s 7 of the MOU confirms that the MOU was not in itself the Sale
Agreement:
“Both parties shall use their best
endeavour and make all efforts to ensure the Sale is concluded and to best
advantage.”
The court could not therefore hold
that the sale of the farm had been concluded in the face of these provisions of
the MOU. In this jurisdiction, it is settled law that agreements akin to the
one in casu are not enforceable primarily due to the uncertainty which
accompanies such contracts. The court a quo was alive to this
principle and commented that in agreements to agree in the future the parties
thereto retain a discretion as to whether or not to agree or disagree in the
future. In Premier, Free State and Ors v Firedom Free Estate (Pvt) Ltd
2000 (3) SA 413 (SCA), the court held:
“An agreement that parties will
negotiate to conclude another agreement is not enforceable because the absolute
discretion is vested in the parties to agree or disagree.”
If it were to be accepted for
reasons stated by the court that the MOU is a binding agreement, the respondent
could not have successfully sued for specific performance solely based on the
same. The only binding agreement between the parties was an undertaking
to agree. In upholding the MOU, the court a quo needed to make a
specific finding on what could be enforced in terms of the same. And yet,
despite its earlier finding that no agreement of sale had been concluded, the
court then went on to find that there was an enforceable agreement. This
what the court said:
“Where the parties have agreed on
key elements of the contract it is essential that the court enquire into
whether the parties intended to enter into a binding contract. It is essential
to examine the terms of the MOU and the final offer to determine if there were
any binding terms. This will assist the court in determining what the intention
of the parties was when they entered into the agreements.”
It seems that the court was
persuaded to find that once the parties had agreed on essential terms, and
where the agreement contains terms to negotiate in the future and the agreement
provides dispute resolution mechanisms, the parties should be held to the
contract. The court concluded further that the parties had expressed an
intention to be bound once the regulatory approvals were obtained, and that,
when these were to hand, the agreement would be enforceable.
Accordingly, it was the judge a
quo's reasoning that the existence of the pretium, the merx and the
payment terms, coupled with the provision of a dispute settlement mechanism,
rendered the offer document and MOU enforceable. The court premised its
conclusions on the following authorities; Southernport Developments
(Pty) Ltd v Transnet Ltd ZASCA 94 2 ALL SA 16 (SCA), and the Australian
case of R & D Construction Group Ltd v Hallam Land Management Ltd, (2009)
CSO H 128.
Before us Mr Zvobgo advanced
the same principle and sought to rely on the authorities on which the High
Court based its judgment.
The court went on to state:
“What is clear from the foregoing is
that an agreement to agree or negotiate on a future contract is enforceable
where the parties have agreed on essential terms of the contract and the
agreement provides for a dispute resolution mechanism to resolve the unresolved
issues. I intend to determine whether the agreements by the parties are
enforceable.”
The dispute resolution mechanism
which fortified the court's conviction that an agreement of sale had been
entered into related to the MOU itself and not a sale agreement which was to be
concluded later. The dispute resolution mechanism was only applicable in
relation to issues arising from the enforceability of the MOU itself. As
a result, any remedies emanating from the mechanism in the MOU were restricted
to the MOU and could not be extended to a further agreement of sale which would
be concluded later. Thus, the court contradicted itself in material
respects.
I therefore find that the court in
effect prematurely found that an agreement of sale had been entered into when
both parties agreed that the agreement of sale had not yet been concluded and
would only be executed at a later stage.
It was a further term of the MOU
that the rights and obligations arising from the MOU would terminate upon the
expiry of 60 days from the signing of the MOU. The relevant portion reads
as follows:
“This agreement shall terminate upon
the signature of a Sale Agreement. In the event that a Sale Agreement is not
entered into between the parties within 60 days from the date of the signature
of this agreement then this agreement shall terminate and all rights and
obligations flowing from it shall fall away.”
Persuaded by the appellants' alleged
lack of good faith in their dealings with the respondent, the court a quo
went on to grant relief based on the MOU. The court found as follows on page 6
of the cyclostyled judgment:
“The
respondents played a hide and seek game and deliberately delayed the signing of
the final contract until the 60 days had elapsed and ultimately refused to sign
the final agreement. They did not act in good faith. I find therefore that that
(sic) the respondents are in breach of contract.”
The agreement was signed on 6
December 2014 and was to expire on 4 February 2013. The application
before the High Court was brought on 18 February 2013. Beyond 4 February
2014, there were no rights arising from the MOU which could be enforced by any
of the parties. Thus, in terms of the same, the parties agreed to an
extinctive prescription of any cause of action arising from the MOU. The
respondent should have sued the appellants within that period, especially
taking into account the fact that by 11 December 2013 it, the respondent,
already had determined that the appellants were reneging on the terms of the
MOU. It could have resorted to the dispute resolution clause in the
MOU. It was obvious that the MOU had terminated and the lack of good
faith could not give rise to a right upon which specific performance could be
granted. The court did not spell out the breach of contract that it
alluded to in the judgment. On this aspect the court erred as
well.
The right which respondent seeks to
enforce in these proceedings was already lost when it sued. A court is
not entitled to enforce rights which stand lost by operation of law.[3]
I therefore find that post 4 February 2013 the respondent had no cause of
action as against the appellants ex contractu. On this basis alone,
the appeal ought to succeed.
In the event, the court a quo
grossly misdirected itself in granting specific performance in the absence of
agreement of sale upon which such order would be legally justifiable. In Reserve
Bank of Zimbabwe v Corrine Granger and Anor[4]
the court held in part that:
“An
appeal to this Court is based on the record. If it is to be related
to the facts, there must be an allegation that there has been a misdirection on
the facts which is so unreasonable that no sensible person who applied his mind
to the facts would have arrived at such a decision. And a
misdirection of fact is either a failure to appreciate a fact at all, or a
finding of fact that is contrary to the evidence actually presented.
See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664
(S) at 670; and S v Pillay 1977 (4) SA 531 (AD) at 535 C-E.” (my
emphasis)
WHETHER THE MOU EXECUTED BY THE
PARTIES HAS ANY LEGAL FORCE
In my view, further to the above, this appeal is easily determinable on the
simple question of whether the alleged “agreement” is invalid for want of
statutory compliance and this is the point I turn to enunciate.
The farm at the centre of this
dispute falls under the category of rural land. Such land is administered
under the Land Acquisition Act.[5]
Both parties understood that in order for them to enter into a valid agreement
of sale of the farm, there was need for the appellants to first approach the
relevant authority in order that it could exercise its statutory right of first
refusal to purchase the land. The law prescribes that a holder of land
categorised as rural land cannot sell his or her land to any other person
without having approached the State to exercise its statutory right of first
refusal. If the State is not interested in the land, the relevant
Minister will issue a certificate of no present interest and only then may a
party proceed to enter into an agreement of sale with any other party.
The above legal requirements are
enshrined in s 3 of the Land Acquisition (Disposal of Rural Land) Regulations,[6](“the
Regulations”) which reads in relevant part:
“3. Minister to be given right of
first refusal on sale of rural land
(1) Subject to these regulations, the
owner of any rural land, other than the State, a local authority or a statutory
body, shall not sell the land unless he has offered to sell it to the
Minister and —
(a) the Minister has issued him
with a certificate of no present interest; or
(b) the Minister has not responded
to the offer within the ninety-day period specified in subsection (1) of
section 5.
(2) An offer in terms of subsection
(1) shall be in writing and shall —
(a) specify the price which the
owner is prepared to accept for the rural land concerned; and
(b) describe the nature and extent
of the rural land concerned and any buildings or other improvements on the
land; and shall be accompanied by a copy of the title deed of the
land.”(my emphasis)
The use of the word “shall” in s 3(1) quoted above renders it mandatory for any
rural land holder who wishes to sell the land to first offer the land to the
Minister so that the Minister may exercise the right of first refusal. A
seller has no discretion and must comply with the statutory
condition.
It is my view that the issue concerning the right of first refusal vested in
the Minister in relation to the sale of rural land was critical in resolving
the question that was before the court a quo as to whether the parties
had entered into a valid agreement of sale.
Where such contract is proscribed by
statute, it is invalid and non-compliance with the condition invalidates the
whole contract. This principle is well enunciated in X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd[7]
wherein MCNALLY JA (as he then was) quoted with approval the words of LEWIS
ACJ in York Estates Ltd v Wareham 1949 SR 197 who remarked 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."
Had the court a quo
considered the provisions of s 3 of the Regulations, it would
have resolved that the “agreement” it was being enjoined to endorse as valid
was an agreement that was proscribed by law. Such a finding would have disposed
of the matter.
It seems that the legal
practitioners of the parties to the dispute omitted to address the court on the
said provision. That notwithstanding, the court could have mero motu
raised the issue and resolved the dispute accordingly. A court may raise the
question of illegality mero motu if it appears ex facie the
transaction or if it is satisfied that all the evidence on the surrounding
circumstances was led.[8]
The court in X-Trend-A-Home (supra)
had to consider s 39 of the Regional, Town and Country Planning Act [Chapter 29:12].
In order to crystalize the issue that was before it, the court posed the
question, “Does s 39 of the Regional, Town and Country Planning Act [Chapter
29:12] prohibit 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 for
subdivision of that portion?”
Section 39 of the Regional, Town and
Country Planning Act reads in relevant:
“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 court examined the origins of
the section dating back to the Southern Rhodesian Country Land Sales
Restriction Regulations, 1943. The court carefully examined all the cases that
had been decided under the Regulations and the statutory instruments that
followed in an endeavour to identify the mischief intended to be cured by the
legislation. The court went on later in the judgment and held:
“The
agreement with which we are concerned is clearly "an agreement for the
change of ownership" of the un-subdivided portion of a stand. What else
could it be for? Whether the change of ownership is to take place on signing,
or later on an agreed date, or when a suspensive condition is fulfilled, is
unimportant. It is the agreement itself which is prohibited.”[9]
Applying the above quoted principle
to the facts in casu the only conclusion to be arrived at is that the
“agreement” which the court a quo found to exist between the parties was
illegal. A sale of rural land before the relevant Minister has expressed
his disinclination to buy the same is prohibited. It is clear that the
appellants had not complied with s 3 of the Regulations. The courts do
not give effect to illegal agreements. The fact that the parties did not
object to the contract does not make the contract any less of a breach of a
clear statutory provision.[10]
Turning to the common law, it is an
established principle of the law governing contracts that an agreement of sale
that is subject to the fulfilment of a condition precedent that has not been
fulfilled is not a valid sale. The aforesaid principle was referred to in
Sithole v Khumalo & Ors HB 28/08, a judgment by NDOU J wherein he
remarked as follows at p 5:
“This
agreement is subject to an important reservation. A contract of sale
subject to a condition precedent that has not yet been fulfilled is not a sale
– Leo v Loots 1909 TS 366 at 370-1…” (Emphasis added).
On this basis alone the instant
appeal ought to succeed.
WHETHER THE SUBDIVISION
OF THE FARM HAD ANY EFFECT ON THE ORDER OF SPEIFIC PERFORMANCE
The court ordered specific
performance wherein the basis for the respondent in approaching the court was
the allegation against the appellants that they had subdivided their farm and
were selling the subdivisions thereof. The court a quo found for a
fact that the farm had been subdivided. The court said at p 6 of the
cyclostyled judgment:
“Instead they tried to sell divided
portions of the farm to other people contrary to the agreement.”
The Final Offer was in respect of
the whole farm. A whole piece of land is a different entity to subdivided
portions of the same. Once the appellants obtained a subdivision permit
in respect of the farm, the merx as it originally stood and offered to
the respondent had ceased to exist. The subdivision of the farm resulted
in the creation of a number of different properties, such that there no longer
was a farm, but a number of plots where the farm once stood.
It is trite that the remedy of
specific performance is a discretionary power vested in a judicial officer. In Farmers'
Co-operative Society (Reg) v Berry 1912 AD 343, INNES JA stated at 350
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 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 (1 OR p
301), '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'. It is true that
Courts will exercise a discretion in determining whether or not decrees of
specific performance will be made."
In Zimbabwe Express Services
(Pvt) Limited v Nuanetsi Ranch Private Limited [11]
GARWE JA had occasion to comment:
“An
order of specific performance is, however, at the discretion of the court and
there are circumstances in which a court may refuse to grant an order of
specific performance. The discretion is:
'[not] … completely
unfettered. It remains, after all, a judicial discretion and from its
very nature arises from 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.'
Per HEFER JA in Benson v South
Africa Mutual Life Assurance Society 1986 (1) SA 776(A) at 783 C-D.”
The principle lex non cogit ad
impossibilia states that specific performance should never be ordered if
compliance with the order would be impossible.[12]
The respondent inexplicably assumed that the merx, viz the farm still
existed, this despite the subdivisions. The subdivision of land is not a
matter of form, it is one of substance. The remedy of specific
performance was not available to the respondent.
Instead of suing for specific
performance it was open to the respondent to sue for a mandamus
directing the appellants to attend to the consolidation of the subdivisions so
that the remedy of specific performance could be complied with. However,
that is not the route that the respondent took and the court a quo
should have considered the dispute on the facts before it. The order it
gave was impossible and incapable of performance by the appellants.
DISPOSITION
It is not in doubt that the court a
quo held that the MOU was an enforceable agreement and granted the relief
of specific performance on its basis. In doing this, the court a quo
was clearly wrong in three fundamental respects. Firstly, it erred in holding
that the MOU and the final offer could amount to a contract of sale. The
MOU was not an enforceable contract as concluded by the court a quo.
Secondly, it erred in ordering
specific performance on the basis of the MOU which was not only void for want
of statutory compliance, but whose existence had terminated through effluxion
of time. If the MOU was an 'enforceable' contract, it was invalid for
want of compliance with the Regulations.
Thirdly, it ordered specific
performance where the merx was no longer in existence and available for
disposal. In addition, specific performance could not possibly have been
granted because the merx was no longer available. There was no basis for
the court a quo to order specific performance on the basis of the Final
Offer and the MOU.
I am satisfied that, for the above
reasons, the appeal has merit and must therefore succeed.
In the result, the following order
will issue:
1. The appeal is allowed with costs.
2. The order of the court a quo is set aside and in
its place the following is substituted:
“The application is dismissed with
costs.”
GARWE JA: I agree
PATEL JA: I agree
Musunga & Associates, appellants' legal practitioners
Dube, Manikai & Hwacha, 1st respondent's legal practitioners
[1] Page 3 of the cyclostyled judgment.
[2] Page 5 of the cyclostyled judgment.
[3]Airfield Investments (Pvt) Ltd v Minister of Lands,
Agriculture and Rural Resettlement and Others
SC 36/04
[4] SC 34/2001 page 5-6 of the cyclostyled judgment.
[5] [Chapter 20:10]
[6] S.I.287/99
[7] 2000 (2) ZLR 348 (SC) 351
[8] Harms, Amler's Precedent of Pleadings, 4th
(1993) 158
[9] At 355A. Also see Tsamwa v Hondo and Others 2008 (1)
ZLR 401 (H) for a general discussion of the issue.
[10] Tsamwa
v Hondo and Others 2008 (1) ZLR 401 (H)
[11] 2009 (1)
ZLR 326 (S)
[12] RH
Christie, The Law of Contract in South Africa, 3rd ed, page
581, also see Rissik v Pretoria Municipal Council 1907 TS 1024 1037 