Court name
Supreme Court of Zimbabwe
Case number
SC 29 of 2003
Civ. Appeal 29 of 2002

Masamvu v Chitare (29/02) (SC 29 of 2003, Civ. Appeal 29 of 2002) [2003] ZWSC 29 (03 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 29













DISTRIBUTABLE
(26)


Judgment
No. SC 29/03


Civ.
Appeal No. 29/02








YVONNE
RITA MASAMVU v TARISAYI MARY CHITARE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA


HARARE,
SEPTEMBER 22 & NOVEMBER 4, 2003








F
G Gijima
,
for the appellant





I
E G Musimbe
,
for the respondent





CHEDA
JA: The parties in this case entered into a written agreement of
sale of immovable property with all the usual provisions
for that
type of agreement.





The
agreed purchase price for the property was $700 000.00. The
purchaser (the respondent) was to obtain a 100% bond from
Stanbic
Bank. There were other special conditions on the back of the page.
The relevant part of the special conditions read:





“This
sale is conditional upon the purchaser being offered a loan in
principle or otherwise on the usual terms and conditions from
Stanbic
in the sum of $700 000.00 or such lesser amount as may be
acceptable to the purchaser, not later than 09/05/2001.
Unless an
extension of this period is agreed to by both parties, such loan to
be secured by means of a first mortgage bond registered
over the
property hereby sold. The purchaser undertakes to apply for such
loan by not later than 09/04/2001 and agrees not to withdraw
such
application made and further agrees to accept such loan when
offered.”





The
respondent was able to secure the above loan by 19 April 2001 as
indicated in the correspondence. She says despite demand
the
appellant, without just cause, deliberately breached the agreement by
refusing, neglecting and/or failing to sign the transfer
papers.
She made an application in the High Court to compel the appellant to
comply. She succeeded.





The
appellant has now appealed against the order of the court
a quo
in which she was ordered to do all things necessary to enable
transfer to be passed to the respondent. In her grounds of appeal
the appellant stated:






“(1) The
learned judge erred in holding that the matter in
casu
is distinguishable from the precedent set by this Honourable Court in
Marisa v Madondo
1992 (1) ZLR 276 (S) and proceeded to grant an order against the
appellant when in fact the matter is on all fours with the present
case.






(2) The
learned judge erred in holding that the appellant had no reciprocal
duty to ensure that transfer of the immovable property
is effected
within a reasonable time, more so when this was a ‘commercial
transaction involving the sale of the property whose
value on the
market fluctuates’.”






The
appellant seeks an order setting aside the order in case no.
HC.9336/01 and substituted by an order declaring her entitled to
cancel the agreement of sale.





In
his heads of argument, Mr 
Gijima
raised the following points:






“1. That the respondent failed
to notify the appellant that she had secured a loan and that such
failure gave the appellant the right
to regard the agreement as
cancelled.






2. That the trial court should
have followed the precedent set in
Marisa’s
case 1992 (1) ZLR 276.”





I
shall now deal with the issues raised by the appellant.





Correspondence
filed in the record shows that the respondent obtained the loan on
19 April 2001, that is, about nineteen days
before the deadline
set in the agreement of sale. On 25 April 2001 she paid the
fees to a firm of conveyancers, Messrs Kantor
& Immerman, for the
registration of the bond in favour of Stanbic. This is admitted by
the appellant. There is therefore
no question of the respondent
failing to obtain the loan within the stipulated period.





However,
having admitted this, the appellant argues that the fact that the
respondent obtained the loan in time was of no use to
the appellant
if she was not so informed.





It
is not clear on the record how the conveyancers were appointed.
However, it is clear that the respondent was advised that they
were
doing the transfer. That is why Messrs Kantor & Immerman wrote
to the respondent, asking her to pay to them certain fees
and the
stamp duty. In requesting the above, Messrs Kantor & Immerman
would have been acting for, or as agents for, the appellant,
or even
if they were not appointed by the appellant, the respondent would
have been entitled to regard them as agents for the appellant
in the
transfer.





In
view of this, the respondent would have no reason to believe that
they could go so far as to work on the transfer without the
knowledge
of the appellant.





The
respondent also stated that whatever made Messrs Honey &
Blanckenberg delay cannot be imputed to her, as these were the
conveyancers chosen by the seller (the appellant).





It
was submitted on behalf of the appellant that this case is on all
fours with the case of
Marisa
v Madondo
1992 (1) ZLR
276 (S). I do not agree.





In
Marisa v Madondo supra
the conveyancers were appointed to act for the respondent in drawing
up the deed of transfer. In the present case, the conveyancers
were
not acting for the respondent. The agreement says the purchaser
shall deposit the costs of transfer with the seller’s conveyancers.
The conveyancers were therefore acting as agents for the seller.





In
Marisa v Madondo,
Marisa, having heard nothing about payment of the purchase price or
about the purchaser having obtained a loan, sent a telegram
giving
notice to cancel the sale if he heard nothing from the purchaser
within the following seven days. In this case, the agreement
clearly provided what the seller was to do in the event of a breach.
Instead of going by what was agreed to, the seller did nothing.

The required notice before cancellation was not given. In fact
there was no breach on the part of the purchaser and therefore
no
reason to cancel.





It
follows that even today the agreement was never cancelled. It is
still open to the purchaser to mover for transfer of the property
as
the agreement was never cancelled.





Where
parties enter into a written agreement with clear and specific
provisions to be followed in the event of a breach by either
party,
and even state that the agreement constitutes the entire contract
between them, no party can be allowed to bring in additional
or
different conditions from those agreed, especially where such changes
would prejudice the other party to the agreement.





Accordingly,
I hold that the agreement of sale was not cancelled. It is still
valid. The purchaser is therefore entitled to move
for transfer of
the property to herself. I see no fault in the decision of the
court
a quo
and it is upheld.





The
appeal is dismissed with costs.














CHIDYAUSIKU
CJ: I agree.














MALABA
JA: I agree.














F
G Gijima
, appellant's
legal practitioners


I
E G Musimbe
,
respondent's legal practitioners