Court name
Supreme Court of Zimbabwe
Case number
SC 7 of 2009
Civil Appeal 275 of 2007

Ashanti Goldfields Zimbabwe Ltd v Kovi (275/07) (SC 7 of 2009, Civil Appeal 275 of 2007) [2009] ZWSC 7 (22 February 2009);

Law report citations
Media neutral citation
[2009] ZWSC 7




REPORTABLE (ZLR) 3





Judgment
No. SC 7/09


Civil
Appeal No. 275/07








ASHANTI
GOLDFIELDS ZIMBABWE LTD v CLEMENTS KOVI








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & ZIYAMBI JA


HARARE,
JUNE 24, 2008 & FEBRUARY 23, 2009









T Magwaliba, for the appellant



S Mucheche, for the respondent









CHEDA JA: This is an appeal against the judgment of the High Court
in which the appellant was ordered to sign all necessary documents
in
order to transfer Stand No. 591, Waterberry Crescent, Bindura to the
respondent.







In an application filed before the High Court the respondent
claimed that he had purchased the above property, but the appellant

disputed the claim.







The respondent’s claim was based on the following background -







He was employed by the appellant on 20 June 1990 as a Plant Foreman
until the date of his resignation on 27 March 2007. He claimed
that
on 1 November 2003 he entered into an agreement of sale in which the
appellant agreed to dispose of its housing units situated
in
Chiwaridzo, Grey Line Flats and Low Density to its employees who were
sitting tenants effective 1 December 2003.







At the time of signing the Memorandum of Agreement of Sale he was
sitting tenant of House No. 591 Waterberry Crescent, Bindura
and is
still occupying that house. The house was valued at $6.839.145.00
which price he claims to have paid in full. He said
the appellant
has refused or neglected to expedite progress and sign all relevant
documents to ensure transfer passes to him despite
demand.







The respondent filed the Memorandum of Agreement. It reads as
follows:



“MEMORANDUM OF AGREEMENT



BETWEEN



ASHANTI GOLDFIELDS MANAGEMENT



AND



Employees




Ashanti Goldfiels Zimbabwe hereby agrees to dispose of its housing
units situated in Chiwaridzo, Grey Line Flats and Low Density
to its
employees who are sitting tenants effective 1 December 2003. Find
the agreed prices attached.”







The document was then signed by the General Manager of the appellant
and the Financial Director.







John Masarira, Emmanuel Gambara and Kingstone Mufoti, who are
Workers’ Committee members, signed on behalf of the employees.

Thereafter the names of the employees were listed with the house
numbers, the new valuations and the monthly repayments.







The respondent also filed receipts showing that he made certain
payments totaling $7.000.000.00. When the respondent resigned
from
the appellant’s employment he was asked to vacate the house in
question.







In opposing the application, the appellant denies that the respondent
entered into or signed an agreement of sale. The appellant
says the
document concerned was a Memorandum of Understanding expressing an
intention by the appellant to dispose of the housing
units to its
employees. The appellant also points out that the respondent
subsequently signed a lease agreement.







It is clear that the lease agreement was signed about nine days after
the signing of the Memorandum of Understanding.







The first question to be asked is: Why would the respondent sign a
lease agreement for property that he has just purchased? The
second
question is: If he signed a lease agreement with an option to
purchase did he exercise the option and when?







It is difficult to understand how the Memorandum of Understanding can
be said to be an Agreement of Sale. What is clear is that
the
appellant was offering the houses to the sitting tenants who were its
employees. There is nothing to show that the respondent
took up the
offer. The respondent seeks to argue that the Memorandum was an
agreement. There is nothing to show that every one
of the employees
on the list purchased the houses. At best, the document can only be
read as showing who occupied which house
and the price they could pay
if they accepted the offer to purchase.







The respondent argues that the agreement binds both the appellant and
the respondent. It would certainly do so if he had accepted
the
offer and the appellant refused to sell to him.







The court a quo held that:




“The applicant (that is the employee) also evidenced a genuine
intention to buy the house once he became a sitting tenant through

the signatures of his agents, the members of the workers’
committee.”







In my view the court erred in adopting this approach. There is
nothing to show that the respondent appointed members of the workers’

committee to represent him in the purchase of the property.







The members of the workers committee represented the employees only
in-as-far as establishing the right for each employee tenant
to
purchase the house if they wished.







The lease agreement states very clearly that the respondent would
have an option to purchase the property after 60 months. It
is
therefore incorrect to say he had purchased the house on 1 December
2003 when the lease agreement runs from 10 December of the
same year.
The lease agreement also shows that the monthly payments for the
house were in the sum of $113.985.75. The respondent
made lump sum
payments which suggest that he was paying rental arrears as there are
no monthly rental payments shown.







In his own heads of argument before the court a quo he
correctly states the legal position to the effect that:



“A sale in Roman-Dutch law has been defined as a contract in which
one person promises to deliver a thing to another, who on
his part
promises to pay a certain price.”







In this case there was no such arrangement. The respondent never
promised to pay the price for the house in which he was a tenant.







The respondent relied on the case of Chikoma v Mukweza
1998(1) ZLR 541(S). That case has no relevance to the facts of this
case. It is also clear that the appellant did not accept
the sale
price from the respondent, but accepted the rental. The respondent
could not be paying the rental for property he had
purchased.







Proffessor R.H. Christie makes it clear in his Rhodesia Commercial
Law Book p 43, that:



“There must obviously be at least two parties to every contract and
the necessary agreement between them will always manifest
itself in
the form of an offer from the one side and an acceptance of that
offer by the other side.”







In this case, the document signed by the appellant was clearly an
offer to dispose of its houses to its workers who were sitting

tenants. There is no acceptance of that offer from the respondent.







Clause 1.1. of the lease agreement signed on 10 December 2003 states
that the lessor lets the property for a period of 60 months

commencing on January 2004.







Clause 3.1. says the lessee shall have the option to purchase the
property after 60 months.







In the circumstances, the respondent could not have purchased the
property when he asked for its transfer to himself by 25 July
2006,
which was only about 3 years after the signing of the lease
agreement.







I am satisfied that the court a quo erred in concluding that
the appellant had sold the house to the respondent.







The appeal must therefore succeed.







I therefore make the following order –



1. The appeal is allowed with costs.



2. The judgment of the court a quo is set aside and
substituted as follows:-“The application is dismissed with costs”.















SANDURA JA: I agree















ZIYAMBI JA: I agree















Magwaliba & Kwirira, appellant’s legal practitioners


Donsa-Nkomo
Legal Practice
, respondent’s legal practitioners