Court name
Supreme Court of Zimbabwe
Case number
SC 28 of 2007
Civil Appeal 297 of 2006

Nhundu v Chiota and Another (97/06) (SC 28 of 2007, Civil Appeal 297 of 2006) [2007] ZWSC 28 (30 September 2007);

Law report citations
Media neutral citation
[2007] ZWSC 28









REPORTABLE
ZLR (22)











Judgment No. SC 28/07


Civil Appeal No. 297/06








SARUDZAYI NHUNDU
v (1) PHINEAS CHIVAZVE CHIOTA (2) THE
REGISTRAR OF DEEDS








SUPREME COURT OF
ZIMBABWE


CHEDA JA, ZIYAMBI JA &
MALABA JA


HARARE, MARCH 5, 2007 &
OCTOBER 1, 2007








T E Mudambanuki,
for the appellant





N Madya, for the
first respondent





No appearance for the
second respondent









ZIYAMBI JA: At the end of the hearing we dismissed this appeal with
costs. The following are our reasons for so doing.







The first respondent, to whom I shall refer as “the respondent”,
and the appellant concluded an agreement of sale in respect
of
property known as 139 Rietfontein, Rietfontein Township, Harare (“the
property”). Clause 2 of the agreement provided that
the purchase
price for the property was Z$28 billion and Clause 11 provided
that:



“The
parties acknowledge that this document constitutes the entire
agreement between them and that no other terms, conditions,
stipulations,
warranties or representations whatsoever have been made
by them or their agents other than those set out in this agreement
and the
parties agree that no variation of this agreement shall be
binding on them unless first reduced to writing and signed by both
parties.”









The agreement was signed by the parties on 25 January 2006 at the
offices of the Central African Building Society (“CABS”).
Immediately upon signature by the parties, CABS gave instructions to
its attorneys to attend to the registration of a bond which
was to
facilitate the registration of transfer and payment of the purchase
price to the appellant.





On 30 January 2006, the
appellant wrote a letter to CABS advising that she had cancelled the
agreement of sale. The letter reads
in relevant part:



“I write to inform you that I have cancelled sale of my house
(Known as stand No 139 Rietfontein Township) to Mr Phineas Chivazve
Chiota. I have informed him in writing. Cancelled is agreement of
sale dated 25 January 2006. Thus done at your Platinum Office.

Attached is a copy of my letter to him.”







A similar letter was written to the respondent. It read:



“I hereby write to inform you that I have cancelled our agreement
of sale of my house dated 25 January 2006. I have sent a copy
of
this letter to CABS. Also attached is a copy of a letter which I
wrote to CABS.”









The respondent was of the view that there was no basis for the
cancellation since he had committed no breach of the agreement nor
had any breach been cited in the letter. He therefore refused to
accept the cancellation and sought redress in the High Court by
way
of an interim interdict restraining the appellant from disposing of
the property to a third party. He obtained a provisional
order
granting the interim interdict sought and requiring the appellant to
show cause why a final order compelling the transfer should
not be
issued in his favour.







The appellant opposed the confirmation of the provisional order. In
her opposing affidavit, she claimed that the respondent had
breached
a condition precedent to the agreement, namely, that the respondent,
who was then Deputy Minister of Industry and International
Trade,
orally agreed to make available to her two licences: one for the
buying and selling of sugar; and the other for buying and
selling of
petroleum. For this reason, so she averred, the purchase price was
pegged at the low price of 28 billion dollars as she
would be able to
trade with those licences and obtain, from so doing, such profits as
would offset the low price at which the house
was being sold. The
agreement of sale, she stated, was reluctantly signed at CABS because
the respondent had not, at the time of
signature thereof, honoured
the verbal agreement by issuing the two licences to her. She did not
give a date by which the alleged
oral agreement was to be performed.




At the hearing for confirmation
of the provisional order, the issues for determination by the trial
court were whether the appellant
had established that there was an
oral agreement amounting to a condition precedent governing the
written agreement signed by the
parties and if so was the respondent
in breach of that agreement; and, whether the cancellation by the
appellant was valid. The
learned Judge decided the issues in favour
of the respondent and granted the final order against which the
appellant now appeals
to this Court.







The appellant submitted in this Court that the written contract is
not a true representation of what the parties agreed and therefore
evidence ought to be admitted to establish the “real and genuine
agreement”, which is, that the sale was subject to the oral
condition precedent.




It
was contended on behalf of the respondent that the entire agreement
between the parties is contained in the written contract and
that the
parol evidence rule prohibits the leading of extrinsic evidence to
prove the existence of the alleged oral condition precedent.





The parol evidence rule
was stated by WATERMEYER JA in Union Government v Vianini
Ferro-Concrete Pipes (Pvt) Ltd
1941 AD 43 at P 47, where he
said:







“Now this Court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded as
the
exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the
document
or secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied
by parole
evidence.”





See
also
The law of
Contract in South Africa 3
ed
by R H Christie
at
p 212.









However, the learned JUDGE OF APPEAL went on to say





further at the same
page:










“Whatever may be the correct view as to the precise nature of the
rules, it is clear that they do not prevent a party from setting
up
the case that the contract is not a presently enforceable contract
inasmuch as it is conditional upon the happening of some event
which
has not occurred.”









Thus the parol evidence rule does not preclude extrinsic evidence
that the contract is conditional upon the happening of an event
which
has not occurred. However, if the object of leading such extrinsic
evidence is not only to prove the alleged oral condition
precedent
but to incorporate it into the agreement of sale and then to enforce
the said condition by relying on the respondent’s
failure to comply
therewith then the extrinsic evidence would be inadmissible. See
Philmatt (Pvt) Ltd v Masselbank Development CC 1996 (2) SA 15
(A) at p 23. See also Johnston v Leal 1980 (3) SA 927 (A) at
943 where CORBETT JA remarked:







“Dealing first with the integration rule, it is clear to me that
the aim and effect of this rule is to prevent a party to a contract
which has been integrated into a single and complete written memorial
from seeking to contradict, add to or modify the writing by
reference
to extrinsic evidence and in that way to redefine the terms of the
contract. The object of the party seeking to adduce such
extrinsic evidence is usually to enforce the contract as redefined
or, at any rate,
to rely upon the contractual force of the additional
or varied terms, as established by the extrinsic evidence…”.









And later on the same page:






“To sum up, therefore, the integration rule prevents a party from
altering, by the production of extrinsic evidence, the recorded
terms
of an integrated contract in order to rely upon the contract as
altered.”














The appellant herein seeks, firstly, to prove that, contrary to
the provisions of clause 11 supra, there was a condition
precedent governing the contract and, secondly, to enforce that
condition so proved. In so doing, the appellant was seeking to
redefine
the terms of the contract. The parol evidence rule precludes
her from leading extrinsic evidence with that objective. See also
Philmatt (Pvt) Ltd v Masselbank Development supra.






In any event, even assuming for an instant that the court had been
persuaded to allow parol evidence of the oral condition precedent,
the evidence on record does not support the existence of such an oral
agreement as the learned Judge correctly found.






It was common cause at the hearing that the appellant’s friend
and confidante, Biata Nyamupinga (“Biata”), was actively
involved
in the negotiations preceding the conclusion and signature of the
agreement.





Biata averred in her
supporting affidavit that no such condition precedent was ever
discussed during the negotiations or at any
time before the signature
of the agreement by the parties. She relates the events following
the offer of 28 billion dollars by the
first respondent for the
property as follows:






“The applicant [the respondent] and [the appellant] shook hands and
hugged each other after signing the agreement. All the dealings
between the applicant [the respondent] and [the appellant] involved
me as I was in essence the link between the two. At no stage
during
the negotiations for the sale of this property was there any
discussion of the licenses that [the appellant] has referred
to.
This is the first time that I have heard of these licences. Such an
issue never formed the basis of the agreement. The [appellant]
was
selling because of mounting debts. She owed me and several other
people in town huge sums of money. The purchase price would
have
enabled her to pay off all debts and then acquire a smaller
property.”









Further, the respondent averred, and this was not contradicted, that
neither of the two licences allegedly offered by him to the
appellant
fell within the mandate of his Ministry. In any event, since the
alleged condition precedent had not been fulfilled there
is no reason
given in the papers as to why the appellant signed the agreement of
sale and why, when she later cancelled the agreement,
no reason was
given for such cancellation.







In view of the above, we were satisfied that the judgment of the
court a quo was unassailable and that the appeal was
accordingly devoid of merit.















CHEDA JA: I agree














MALABA JA: I
agree
















Mudambanuki & Associates, appellant’s legal
practitioners


Wintertons,
First respondent’s legal
practitioners