Court name
Supreme Court of Zimbabwe
Case number
SC 23 of 2008
Civil Application 231 of 2007

Khumalo v Mandeya and Another (SC 23 of 2008, Civil Application 231 of 2007) [2008] ZWSC 23 (29 September 2008);

Law report citations
Media neutral citation
[2008] ZWSC 23




REPORTABLE ZLR (14)











Judgment
No. 23/08


Civil
Application No. 231/07








FELISTANO
KHUMALO v (1) LIZZIE MANDEYA (2) BULAWAYO
CITY COUNCIL








SUPREME
COURT OF ZIMBABWE


HARARE,
JANUARY 16 & SEPTEMBER 30, 2008









N G Maphosa, for the applicant



H Zhou, for the first respondent


No
appearance for the second respondent









Before MALABA JA: In Chambers in terms of r 31(1) of the
Rules of the Supreme Court (“the Rules”).







This is an application for condonation of non-compliance with r
30(1) of the Rules and extension of time within which to note
an
appeal. Rule 30(1) provides that a party wishing to appeal against a
judgment of the High Court must institute the appeal within
fifteen
days of the date of the judgment appealed against. The judgment
against which the appeal was noted out of time was delivered
on 13
September 2007.







The facts to be considered in the determination of the application
are these. The applicant entered into a lease–to–buy
agreement
with Bulawayo City Council (“the City Council”) in respect of
Stand No. 71072 Lobengula West. I shall hereinafter
refer to the
agreement as “the lease–to–buy”. The written lease-to-buy
contains the usual terms and conditions found in
similar agreements
involving high density residential premises owned by municipalities.
It contained a clause in terms of which
the applicant was prohibited,
prior to transfer of the property to himself, from ceding or
assigning the agreement or any rights
acquired by him thereunder, or
parting with the possession of the property or any part thereof or
alienating, donating or otherwise
disposing of the same without the
prior consent in writing of the City Council (the pactum non
cedendo
).







The applicant subsequently entered into a written agreement with
the first respondent in respect of the property prior to transfer
of
ownership of the property to him by the City Council. The
transaction entered into was described by the parties as an
“agreement
of sale”. The subject matter of the sale was referred
to as “a piece of land, situate in the District of Bulawayo being
71072
Lobengula West comprising 4 bedrooms …”.







The property was “sold” for $75 million payable as follows:




  1. a deposit of $10 million upon signing of the agreement;



  2. $40 million on or before 3 May 2004; and



  3. the balance of $25 million within a period of six (6) months from
    the date of signing the agreement.








The applicant had sought and obtained the written consent of the City
Council. With the written consent of the City Council the
applicant
ceded all his rights and interests in the property under the
lease-to-buy to the first respondent. It appears from the
judgment
of the court a quo that the first respondent failed to pay the
whole amount of $10 million required as a deposit upon signing the
agreement. She
also failed to pay the whole amount of $40 million on
or before 3 May 2004 nor did she pay the purchase price in full
within the
period of six months from the date of signature to the
agreement. Whilst it was accepted that she paid some money towards
the
purchase price we are not told how much she paid and when.







Under clause 10.1. of the agreement of “sale” the parties
provided that should the purchase commit any breach of the contract,

the seller had to give her written notice advising of the breach and
calling upon her to remedy or rectify such breach within a
period of
14 days from the date of receipt of the notice and that should she
fail to remedy the breach, the seller had the right
to cancel the
agreement. It is common cause that the applicant gave the first
respondent, who admittedly was in breach of the
contract, the
requisite notice. When she failed to remedy the breach within the
time limit prescribed in the notice, he cancelled
the agreement.







The first respondent made an application to the High Court in case HC
664/05 seeking an order declaring the cancellation of the
agreement
of “sale” by the applicant null and void on the ground that the
written notice given to her and calling upon her
to remedy the breach
fell foul of the mandatory provisions of s 8(2)(c)(1) of the
Contractual Penalties Act [Cap 8:04] (“the Act”).
Section 8(1) of the Act prohibits a seller under an instalment
sale of land from terminating the contract
on account of any breach
of by the purchaser unless he has given notice in terms of subs (2)
and the period of the notice has expired
without the breach being
remedied, rectified or discontinued.







Section 8(2) provides that –



“(2) Notice for the purposes of subsection (1) shall –







  1. be
    given in writing to the purchaser, and








  1. advise
    the purchaser of the breach concerned; and







  1. call
    upon the purchaser to remedy, rectify or desist from continuing as
    the case may be, the breach concerned within a reasonable
    period
    specified in the notice, which period shall not be less than –








    1. the
      period fixed for the purpose in the instalment sale of the land
      concerned; or










    1. thirty
      days;








whichever is the longer period.”







An “instalment sale of land” is defined in s 2 of the Act as:







“… a contract for the sale of land whereby payment is required to
be made –







  1. in
    three or more instalments; or








  1. by
    way of a deposit and two or more instalments; and ownership of the
    land is not transferred until payment is completed.”








It is common cause that the period given to the first respondent
within which she was called upon to remedy the breach was less
than
thirty days. The question for determination by the court a quo
was whether the applicant was bound to give the first respondent a
period of thirty days within which to remedy the breach of the

contract. He would be bound by the provisions of s 8(2)(c)(ii) of
the Act if the agreement between the parties was an “instalment

sale of land” as defined under s 2 of the Act. The learned Judge
held that the agreement was an “instalment sale of land”
as the
subject matter of the sale was “land”, the purchase price for
which was payable by way of a deposit and two or more
instalments.
He declared the cancellation of the agreement by the applicant null
and void ab initio.







The appeal against the judgment was not noted until 16 October 2007.
The notice of appeal was filed eight days out of time. The

explanation given for failure to comply with r 30(1) was that the
applicant’s legal practitioner was waiting for a copy of the

written judgment to be released by the Registrar. The explanation is
unacceptable because the applicant’s legal practitioner
was in
court to note the reasons for judgment on the day it was delivered.
The judgment was in fact in writing although it contained
some
corrections in longhand.







The applicant did not make the application for condonation of
non-compliance with r 30(1) until on 25 October 2007. The
explanation
for the failure to make the application on 16 October was
that the legal practitioner laboured under a misapprehension that the

dies induciae for instituting an appeal against a judgment of
the High Court was 21 days from the date of the judgment appealed
against. Not
only does the explanation show that the legal
practitioner did not bother to read the relevant rule by which the
applicant was
bound to act in seeking relief from the Court, it also
confirms the irrelevance of the explanation given by the same legal
practitioner
for purporting to file a notice of appeal on 16
October.







In Maheya v Independent African Church S-58-07 it is stated at
p 5 of the cyclostyled judgment that:



“In considering an application for condonation of non-compliance
with its Rules, the Court has a discretion which it has to exercise

judicially in the sense that it has to consider all the facts and
apply established principles bearing in mind that it has to do

justice. Some of the relevant factors that may be considered and
weighed one against the other are: the degree of non-compliance;
the
explanation therefor; the prospects of success on appeal; the
importance of the case; the respondent’s interests in the finality

of the judgment; the convenience to the court and avoidance of
unnecessary delays in the administration of justice. Bishi v
Secretary for Education
1989(2) ZLR 240(H) at 242D-343C.”











Had it not been for the fact that I consider the prospects of success
on appeal to be good I would have dismissed the application.
It is
clear that the learned Judge came to the conclusion that the contract
between the parties was an “instalment sale of land”
on the basis
that in para 1 of the agreement the parties described the
subject-matter of the “sale” as the “piece of land”
being
Stand 71072 Lobengula West including the improvements thereon. The
question whether the subject-matter of the agreement
of sale was
“land” was in my view a question of fact, the determination of
which required the court a quo to consider all the
circumstances of the case. Whilst the concept used by the parties to
describe the merx was an important factor
to consider in the
determination of the question it was not an overriding one.







At the time the parties entered into the agreement, the applicant was
not the owner of the land and improvements thereon. He could
not
pass title to the land to the first respondent at the payment of the
purchase price in terms of the agreement of sale. Mr
Zhou
argued that under our law a person can sell property which he does
not own as long as the property exists and he realizes that
he may
face an action for damages if he is unable to give good title to the
purchaser when the time comes to hand over vacant possession
and in
the case of immovable property give transfer: Frye’s (Pvt) Ltd
v Ries
1957(3) SA 575(A) at p 582A.







It appears to me that the principle of law on which Mr Zhou relied
to support the contention that what was sold by the applicant to the
first respondent was “land” is not applicable to
the facts of the
case. It is common cause that at the time the parties entered into
the agreement of sale, the applicant held
rights and interests in the
land and improvements thereon under the lease-to-buy. It is also
common cause that with the written
consent of the City Council he
ceded those rights and interests to the first respondent who stepped
into his shoes as the cessionary
and acquired them under the
lease-to-buy.







A cession is an act of transfer of personal rights and interests from
the cedent to the cessionary. It appears to me that the
applicant
ceded to the first respondent what he sold under the agreement of
sale. In the circumstances the argument by Miss Maphosa that
notwithstanding the language used by the parties in para 1 of the
agreement of sale what was in effect sold and purchased
were rights
and interests in the land recognizes the legal significance of the
cession effected in the interests of the parties
with the written
consent of the City Council. To uphold the decision of the court a
quo
that the real rights in the land and improvements thereon in
the sense of dominium was sold and purchased under the
agreement of sale would accord no legal effect at all to the cession
and the limited rights it
transferred from the applicant to the first
respondent.







The application for condonation of non-compliance with r 30(1) of the
Rules and an extension of the time within which to note the
appeal is
granted. The appeal shall be deemed to have been instituted in
accordance with the notice of appeal filed in the application
on the
date of this order. The first respondent is to pay the costs of the
application.


















Calderwood,
Bryce Hendrie & Partners
, applicant’s legal practitioners





Marondedze,
Mukuku, Ndove & Partners
, first respondent’s legal
practitioners