Court name
Supreme Court of Zimbabwe
Case number
SC 22 of 2009
Civil Appeal 81 of 2006

Savanhu v Marere N.O and Others (81/06) (SC 22 of 2009, Civil Appeal 81 of 2006) [2009] ZWSC 22 (17 May 2009);

Law report citations
Media neutral citation
[2009] ZWSC 22

REPORTABLE ZLR(13)








Judgment
No. SC 22/09


Civil
Appeal No. 81/06








MAXMUS
HAKUNAVANHU SAVANHU v (1) MAGNET MARERE N.O.
(2) MASTER OF THE HIGH
COURT (3) THE
REGISTRAR OF DEEDS








SUPREME
COURT OF ZIMBABWE


MALABA
DCJ, CHEDA JA & GARWE JA


HARARE,
JANUARY 20 & MAY 18, 2009









S Chihambakwe, for the appellant



M V Chizodza, for the first respondent



No appearance for the second and third respondents










MALABA DCJ: This is an appeal from a judgment of the High Court
given on 9 March 2006 dismissing with costs an application
for an
order compelling the first respondent to transfer Stand 151 of Plot
216 of Good Hope Township of Good Hope into the appellant’s
name in
terms of an agreement of sale entered into between the appellant and
the late Robert Mubayiwa Marere on 30 October 1998.







The appellant and the late Robert Mubayiwa Marere (“the
deceased”) entered into a written contract on 30 October 1998 in

terms of which the latter agreed to sell and the former agreed to
purchase Stand 151 of Plot 216 of Good Hope Township of Good
Hope
(“the property”) for $230 000.







The parties provided for two alternative methods of payment of the
purchase price under Clauses 12 and 7. Under Clause 12 they
agreed
that the purchase price would be paid as follows:







“1. The sum of $50 000 (fifty thousand dollars) to be paid to ERS
REALTY’S TRUST ACCOUNT on signing of this Agreement of Sale.







2. The balance of $180 000 (one hundred and eighty thousand dollars)
to be paid at the rate of $30 000 (thirty thousand dollars)
per month
commencing on the 1st of July 1998 with interest at the
rate of 25% effected if the purchaser does not meet the deadline of
30 December 1998.”







Under Clause 7 headed “TRANSFER” the parties agreed that:







“Transfer shall be effected by the seller’s conveyancers and the
purchaser shall, within a period of fourteen days, pay or
furnish a
Bank or Building Society guarantee for payment of the purchase price
against transfer. If such payment or guarantee
shall not be
furnished to the seller’s conveyancers the purchase price shall
bear interest at 19% per annum from the expiry of
such period of
fourteen (14) days until transfer shall be effected.”







The details of payment provided for under Clause 7 are so
different from those under Clause 12 that an inference must be drawn

as a matter of construction from the terms used that the parties
intended that the appellant would have to decide which of the
two
methods of payment to follow and be bound by the terms.







Under Clause 10 the parties agreed that in the event of the purchaser
failing to pay any sum owing under the agreement on the due
date or
in the event of any breach of any other condition of the agreement,
the seller had to give the purchaser written notice
to remedy the
breach within fourteen days of the posting of such notice failing
which the seller would be entitled to cancel and
terminate the
agreement of sale or alternatively have the option to institute legal
proceedings against the purchaser for the balance
of the purchase
price then owing under the agreement.







Lastly, they agreed under Clause 11 that the agreement of sale
constituted the entire contract between them and no variation of
it
would be valid unless reduced to writing and signed by or on behalf
of the parties.







No payment of the sum of $50 000 was made by the appellant on signing
of the agreement on 30 October 1998 in terms of Clause 12(1)
of the
contract. An amount of $50 000 had been paid to ERS Realty on
21 May 1998. The receipt states that the money was
paid as a deposit
of the purchase price in respect of stand 21G of Lot 216 of Good Hope
Township. Mr Chihambakwe argued on appeal that Stand 21G of
Lot 216 was in fact the same as Stand 151 of Lot 216 of Good Hope
Township. Whilst that may
be the case there was nothing said by the
appellant in the founding affidavit to support the contention.
Similarly the founding
affidavit was silent as to whether Stand 21G
of Lot 216 of Good Hope Township in respect of the purchase price of
which an instalment
of $30 000 was paid to ERS Realty on 31 July 1998
was the same as Stand 151 of Lot 216 of Good Hope Township.







Five receipts of payments of $30 000 made by the appellant to Messrs
Manase & Manase
, a firm of legal practitioners appointed as
the seller’s conveyancers, were annexed to the founding affidavit.
The payments
were all made between 31 March and 12 October 1999.
Each receipt state that the payment was a deposit for a purchase
price for
an unidentified piece of land. The payment is said to be
to the credit of an entity called NYIKA Engineering.







Mr Chihambakwe suggested in argument on appeal that NYIKA
Engineering was a company owned by the deceased. There was no
reference to NYIKA Engineering
in the founding affidavit. Even if it
is a company there was no explanation given as to why it received
payment of the money in
terms of a contract to which it was not a
party.







The respondent who became the executrix dative on 24 October 2003 in
her husband’s estate denied that the estate received any
of the
sums of money paid by the appellant to ERS Realty and Messrs
Manase & Manase
for the property. She denied knowledge of
any relationship between NYIKA Engineering and the deceased in his
lifetime. She went
on to aver in para 2 of the opposing affidavit
that:







“It is also telling that the applicant has not been able to take
vacant possession of the said stand since 1998 and has not claimed
it
until well after my husband’s death and has not sought to enforce
his rights to take transfer. This is so because my husband

repeatedly informed him that he had not received the purchase price.
It is therefore apparent that the applicant knows of the
problems
associated with this sale and wishes to take his chances with me.”







The court a quo held that payment of the instalments of $30
000 per month to Messrs Manase & Manase constituted a
breach of Clause 12(2) of the agreement of sale as the appellant was
bound to pay the money to ERS Realty. As a
result the application
was dismissed with costs.







The contention on appeal was that the learned Judge misdirected
herself in making the finding that the payment of the instalments
to
Messrs Manase & Manase was in breach of Clause 12(2) of
the agreement of sale. It was argued in the alternative that even if
the payment was a breach
of contract, the learned Judge ought not to
have dismissed the application because the deceased or the first
respondent had not
initiated and completed the procedure agreed on by
the parties under Clause 10 of the agreement of sale for termination
of the
contract.







To determine the correctness of the contention that the court a
quo
misdirected itself in holding that payment to Messrs
Manase & Manase
was in breach of Clause 12(2) it is
necessary to decide the question as to which of the two methods of
payment of the purchase
price the appellant was found to have decided
to follow. It is clear that the learned Judge took the view that he
followed the
method of payment provided for under Clause 12 of the
contract. Mr Chihambakwe argued that the payments of the
instalments were made in terms of Clause 7 of the agreement of sale.







The fact that there was in fact no payment of the deposit of $50 000
on signing of the agreement of sale on 30 October 1998 in
terms of
Clause 12(1) of the contract would suggest that the appellant decided
to pay the purchase price in terms of Clause 7.
It is, however,
clear from the facts of the case that although the payment of $50 000
to ERS Realty by the appellant on 21
May 1998 was at law not payment
in terms of the agreement of sale, he believed that it was payment
towards the purchase price of
the property. Although he produced no
evidence to support the allegation, the appellant had his case argued
on the basis that
Stand 21G of Lot 216 of Good Hope Township for the
purchase price of which $50 000 was paid was in fact Stand 151 of Lot
216 of
Good Hope Township.







The learned Judge was correct in finding on the facts that the
appellant believed he had made the payments in terms of Clause 12
of
the agreement of sale. I, however, do not agree with the finding by
the learned Judge that if the payment to Messrs Manase &
Manase
was indeed in respect of Stand 151 of Lot 216 of Good Hope
Township it was in breach of Clause 12(2) because it ought to have
been
made to ERS Realty.







The appellant was specifically required under Clause 12(1) of the
agreement of sale to pay $50 000 of the purchase price to ERS
Realty
on signing of the contract. That exclusive mandate did not extend to
the payment of the balance of $180 000. Clause 12(2)
relating to the
payment of the balance is silent as to whom the payment was to be
made. It therefore had to be made to the deceased.







Payment of the instalments of the purchase price to Messrs Manase
& Manase
in terms of clause 12(2) of the agreement would not
be in breach of the contract provided the appellant made sure that
the deceased
received the money. It is clear from the facts that the
appellant failed to prove that the payments he made were in terms of
the
contract. He failed to show that there was payment of $50 000 to
ERS Realty on signing of the agreement. There was no term in
the
agreement of sale by which the parties acknowledged payment of $50
000 before the signing of the contract. There was no evidence
at all
in the papers to show that the deceased received any of the payments
made either to ERS Realty before the signing of the
agreement of sale
or to Messrs Manase & Manase after the signing of it. The
first respondent denied that the deceased received any of the
payments. All that the appellant could
say in the answering
affidavit was that the question whether the deceased received the
money in terms of the contract was not for
him to answer.







The appellant chose to proceed by way of a court application to claim
the order of specific performance against the first respondent.
As
the proceedings were by way of a court application and there were
disputes of fact the final relief could only have been granted
if the
facts stated by the first respondent together with the admitted facts
in the appellant’s affidavit justified such an order.
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3) SA
623(A) at 634H-635B.







As the court a quo, was not satisfied as to the inherent
credibility of the factual averments in the appellant’s affidavit
and the first respondent’s
denial not found to have been patently
false it correctly held that it could not grant the order sought.







The appellant had applied for an order of specific performance of the
deceased’s contractual obligation to transfer the property
into his
name by the first respondent. That a party to a contract has in an
appropriate case a right to claim specific performance
is not in
doubt.







In Shakinovsky v Lawson & Smulowitz 1904 TS 326 INNES CJ
said at p 330:







“Now a plaintiff has always the right to claim specific performance
of a contract which the defendant has refused to carry out,
but it is
in the discretion of the court either to grant such an order or not.”







See also Farmers Co-operative Society (Reg) v Berry 1912 AD
319 at p 314; Haynes v Kingwilliamstown 1951(2) SA 371(A) at
p 378; Industrial & Mercantile v Anastassiou Bros 1973(2)
SA 601 at 607H-609A; Ranch International Pipelines (Pvt) Ltd v
LMG Construction (City) (Pvt) Ltd
1984(3) SA 861 at 879D-I;
Minister of Public Construction v Zescon (Pvt) Ltd 1989(2) ZLR
311(S) at 318 C-G.







The right to claim specific performance of a contract by the other
party is premised on the principle that the appellant must first
show
that he has performed all his obligations under the contract or that
he is ready, able and willing to perform his own side
of the bargain.
Wessels, The Law of Contract in South Africa vol 11 para 3135
states that:







“The court will not decree specific performance where the plaintiff
has himself broken the contract or made a material default
in the
performance on his part (Lawson, s. 472, p.522).







A plaintiff is not entitled to succeed against a defendant in an
action for breach of contract unless he can show that he has
performed his part or is ready to do so, and therefore he cannot ask
for specific performance unless he has either performed his
part of
the contract or unless he has been prevented from doing so by the
defendant.”







See also Wolpert v Steenkamp 1917 AD 493 at p 499.







The effect of the finding by the court a quo was that the
appellant failed to show that he had fulfilled his own obligations
under the contract. The view I have taken of the
facts is also that
the appellant failed to show on the papers that he had paid the
purchase price of the property in terms of the
agreement of sale.
There was no payment of the sum of $50 000 on signing of the
agreement of sale. There was no proof that the
monies paid to Messrs
Manase & Manase
were received by the deceased. Even if these
sums of money could have been paid to the credit of the deceased,
they were paid
after the date the appellant would have been bound
under Clause 12(2) of the agreement of sale to complete the purchase
of the
property. The interest which would have been due and owing
would not have been paid. The appellant did not tender any payment

to show that he was ready, able and willing to fulfil his own
obligations under the contract. By his own conduct the appellant

disentitled himself to claim specific performance of the contract by
the first respondent.







The appeal is accordingly dismissed with costs.



















CHEDA JA: I agree



















GARWE JA: I agree



















Chihambakwe, Mutizwa & Partners, appellant’s legal
practitioners



M V Chizodza-Chinounye, first respondent’s legal
practitioners