Court name
Supreme Court of Zimbabwe
Case number
SC 10 of 2005
Civil Appeal 316 of 2003

Nyarirangwe v Mhenyu and Another (16/03) (SC 10 of 2005, Civil Appeal 316 of 2003) [2005] ZWSC 10 (23 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 10













DISTRIBUTABLE
(8)


Judgment
No. SC. 10/05


Civil
Appeal No. 316/03








MARIA
NYARIRANGWE v





(1)
ANDREW MHENYU (2) THE REGISTRAR OF
DEEDS








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & MALABA JA


HARARE,
FEBRUARY 24, 2005








J
Dondo
, for the appellant





P
C Paul
, for the first respondent





No
appearance for the second respondent





SANDURA
JA: This is an appeal against a judgment of the High Court in
terms of which the appellant (“Maria”) was ordered
to transfer to
the first respondent (“Andrew”) immovable property known as
34 Learoyd Road, Braeside, Harare (“the property”).






After
hearing both counsel, we dismissed the appeal with costs and
indicated that the reasons for that decision would be given in
due
course. I now set them out.





The
factual background in the matter is as follows. On 24 May 2002
Maria and Andrew concluded a written sale agreement, in
terms of
which Maria sold the property to Andrew for $6 325 000.00.
The purchase price was to be paid by means of a loan,
which was to
be obtained by Andrew from Standard Chartered Bank Zimbabwe Limited
(“the Bank”).





The
agreement indicated that Maria had appointed Messrs Musunga &
Associates to attend to the transfer of the property.






Clause 7 of the agreement
provided as follows:





“In
the event that the purchase price is to be settled by way of mortgage
bond or any form of loan, then this sale is conditional upon
such
mortgage bond or loan being secured by the purchaser within thirty
days of this agreement, extension of which period shall be
at the
sole discretion of the seller.”






After
the conclusion of the agreement, the bank wrote to Messrs Wintertons
on 19 June 2002 as follows:






“Dear
Sir,






Simultaneous Transfer from
Maria Nyarirangwe to Andrew Mhenyu and Registration of a
First Deed of Hypothecation in favour
of Standard Chartered Bank
Zimbabwe Limited by Andrew Mhenyu for $6 785 000.00
over 34 Learoyd Road, Braeside,
Harare









We
shall be pleased if you could attend to the registration of the
abovementioned bond on our behalf. For this purpose, we enclose
herewith the following documents –







1. Form 30C signed and
witnessed at Gwanda 12 June 2002;





2. Copy
of Agreement of Sale.






Kindly
liase with Messrs Musunga & Associates for the provision of
guarantee requirements as they are attending to the transfer
of the
property.





Andrew
Mhenyu chooses domicilium citandi et executandi at the bonded
property …”.






On
the following day, 20 June 2002, Messrs Wintertons wrote to
Messrs Musunga & Associates as follows:






“Dear Sirs,






Re: Transfer – M Nyarirangwe
to A Mhenyu (by you) Reg/Bond – A Mhenyu i.f.o. Standard
Chartered Bank (by us)


Property
– 34 Learoyd Road, Braeside, Harare










We have been instructed to
attend to the above bond and understand that you are, or will be,
attending to the transfer of the abovementioned
property. To enable
us to prepare our documents, we shall be pleased if you would kindly
arrange to furnish us with the following
information –






1. The full names and dates of
birth of the purchasers/mortgagors.






2. A
description of the property to be bonded.





3. The
date of sale and purchase price as reflected in your stamp duty
declarations.





4. Your
assurance that –






a. at present there are no
servitudes, conditions or encumbrances registered against the
property detrimental to the interest of a
mortgagee, and that you
have not received instructions to register simultaneously with the
present transaction any new conditions
or servitudes, alternatively
please send us the Deed of (sic) draft deeds for inspection;





b. that
you are not attending to the simultaneous registration of a Second
Bond by the purchaser in favour of the seller or any other
third
party.







5. A note of any other
simultaneous transaction of which you might be aware.






6. The
bond has been granted for the sum of $6 785 000.00
.
Please advise us of your guarantee requirements.” (emphasis
added)






Five
days later, on 25 June 2002, Messrs Musunga & Associates
replied as follows:






“We refer to … your letter
dated 20th June, 2002 (and furnish you with the
following information) –





1. Andrew
Mhenyu (born 11/01/1968);






2. Certain piece of land situate
in the District of Salisbury called Stand 5043 Salisbury
Township of Salisbury Township Lands;





3. 24th May
2002, $6 325 000.00;





4. (a) You
have;





(b) Nil;





5. Nil;






6. Guarantee in favour of Musunga
& Associates for the sum of $6 325 000.00.”






However,
on the same day, i.e. 25 June 2002, Maria purported to cancel
the sale agreement on the ground that the purchase price
had not been
paid within thirty days after the conclusion of the sale agreement.






Aggrieved
by the purported cancellation of the sale, Andrew filed an urgent
chamber application in the High Court seeking a provisional
order
calling upon Maria to show cause, on the return day, why she should
not be ordered to transfer the property to him. The provisional
order was later granted and subsequently confirmed. Maria was,
therefore, ordered to transfer the property to Andrew.





Dissatisfied
with that result, Maria appealed to this Court.





The
sole question for determination by this Court was whether there was
any legal basis for the purported cancellation of the sale.
In our
view, there was not.





It
was clear beyond doubt that Clause 7 of the sale agreement did
not require Andrew to pay the purchase price within thirty
days after
the signing of the agreement. All it required him to do was to
secure or obtain a loan for the full purchase price within
that
period.





In
view of the contents of the letters already set out in this judgment,
we were satisfied that Andrew had been granted a loan to
cover the
full purchase price before the period of thirty days referred to
above had expired.





In
the first place, as already indicated, on 19 June 2002 the bank
wrote to Messrs Wintertons, asking them to attend to
the
registration in its favour of a mortgage bond over the property.
What that meant was that the bank had agreed to advance the
loan to
Andrew, and that Andrew had agreed to mortgage the property to the
bank as security for the repayment of the loan. In other
words, by
19 June 2002, at the latest, Andrew had been granted a loan that
covered the full purchase price. That was twenty-six
days after the
conclusion of the sale agreement.





In
addition, as already indicated, on 20 June 2002
Messrs Wintertons wrote to Messrs Musunga & Associates, the
conveyancers,
stating that they had been instructed by the bank to
attend to the registration of the bond over the property. They also
stated
that “The bond has been granted for the sum of
$6 785 000.00”. The sum of $6 785 000.00
consisted of the
purchase price of $6 325 000.00 and an
additional sum of $460 000.00 which the bank had agreed to
advanced to Andrew.





Quite
clearly, therefore, by 19 June 2002 Andrew had been granted the
loan, and the condition set out in Clause 7 of the
agreement had
been fulfilled.





In
the circumstances, there was no basis for the cancellation of the
sale, and the learned judge in the court a quo correctly
determined the matter.





The
appeal was, therefore, devoid of merit and had to be dismissed with
costs.














ZIYAMBI
JA: I agree.














MALABA
JA: I agree.
















Chinamasa, Mudimu &
Chinogwenya
, appellant's legal practitioners


Wintertons,
first respondent's legal practitioners