Court name
Supreme Court of Zimbabwe
Case number
SC 42 of 2015
Civil Appeal SC 152 of 2014

Hativagone & Another v CAG Farms (Pvt) Ltd & Others (SC 42 of 2015, Civil Appeal SC 152 of 2014) [2015] ZWSC 42 (15 July 2015);

Law report citations
Media neutral citation
[2015] ZWSC 42
Coram
Patel JA

Judgment No SC 42/2015

Civil Appeal No SC 152/14

1

 

 

REPORTABLE (41)                 

                              

 

 

  1. CRISPEN     HATIVAGONE     (2)   AUDREY     HATIVAGONE

v

  1. CAG     FARMS     PRIVATE     LIMITED     (2)     DBT     PROPERTIES     (3)     REGISTRAR     OF     DEEDS

 

 

 

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & PATEL JA

HARARE, OCTOBER 9, 2014 & JULY 16, 2015

 

 

T Mpofu, for the appellants

Z T Zvobgo, for the first respondent

No appearance for the second and third respondents

 

GOWORA JA:

THE FACTUAL BACKGROUND

Appellants are the owners of a certain immovable property, known as WAMICA Farm measuring 644,795 ha, (“the farm”).  It is rural land.  The first respondent (hereinafter referred to as the respondent) is a private company duly registered as such under the laws of Zimbabwe.  It carries on business in the agricultural sector.

 

On 5 December 2012, the respondent made a written ‘Final Offer’ for the acquisition of the farm to the appellants.  The offer describes the farm, outlines how valuation of the price was conducted and specifies the price offered together with the proposed payment terms.  The appellants accepted the offer on 6 December 2012.  On the same date, pursuant to the acceptance of the offer, the parties concluded an “Irrevocable Memorandum of Understanding’ (hereinafter referred to as the “MOU”) in relation to the same.

 

In view of the statutory legal requirement attendant upon the sale of rural land, the appellants immediately made an application to the Ministry of Lands for the issuance of a Certificate of No Present Interest.  The application was acknowledged by letter of the same date.  The certificate of No Present Interest was issued sometime in the same month.

 

In the meantime, in anticipation of the issuance of the certificate, the respondent had, through its legal practitioners, prepared a written agreement of sale. However, the agreement was not signed due to alleged unwillingness to co-operate on the part of the appellants.

 

On 16 March 2013 the respondent became aware that the farm was being advertised for sale as subdivided plots. The respondent, being of the view that a valid sale agreement had been concluded between itself and the appellants, approached the High Court on a certificate of urgency seeking an interim interdict against transfer of the farm, and a final  order declaring that a valid agreement of sale of the farm had been concluded between the parties, and, consequent thereto, an order for specific performance of the sale agreement in its favour.  The respondent sought ultimately an order for the transfer of title in the farm to itself.  The matter was found not to be urgent and was subsequently re-set down on the normal roll.  The court a quo found that an agreement of sale had been entered into and it ordered specific performance in favour of the respondent.

 

The appellants were aggrieved by that decision and have entered the present appeal on the following grounds:

  1. The learned judge a quo erred and misdirected herself by failing to appreciate that the 1st Respondent was not entitled to the relief of specific performance. In particular that the learned judge ignored the evidence that the property in dispute had been subdivided, advertised and sold prior to the commencement of proceedings in court and at the time of hearing counsel.

 

  1. The learned judge a quo erred and misdirected herself by making an order for specific performance yet the evidence put before the court did not show the existence of a valid and binding agreement between the parties.

 

  1. The learned judge a quo erred and misdirected herself by making a finding that the appellants were in breach of contract yet no valid Agreement of sale was put before the court.

 

  1. The learned judge a quo erred and misdirected herself by failing to appreciate that both the offer and acceptance document and the memorandum of understanding were both void ab initio at the time of their signing as these were entered into before the issuance of a certificate of no present interest by the Ministry of Lands and Rural Resettlement.

 

  1. The learned Judge a quo erred and misdirected herself by failing to appreciate that the dies induciae of signing the actual agreement of sale as contemplated in the offer document and memorandum of understanding lapsed before the parties could sign therefore no valid and binding agreement existed as between the parties.

 

 

There are three factual issues which are common cause in this case.  Firstly, that the respondent made a valid offer to purchase the farm from the appellants, which offer was accepted by the appellants, the proof whereof lies in the offer document to which all the parties appended their signatures on 6 December 2012. Secondly, that the parties proceeded to execute an MOU on the same day.  The last is that the agreement of sale that was dependent upon the issuance of a certificate of no present interest from the relevant Ministry was not concluded by the parties.  

 

Counsel for the appellants argued that the court a quo, contrary to its comments as stated above, clearly misdirected itself when it then made a finding that the series of documents agreed to by the parties, metamorphosised into an agreement of sale of the farm, a position postulated by the respondent.  It was argued further on behalf of the appellants that the judgment of the court a quo remained unclear as to  which agreement the court considered to be binding on the parties.  The passage which is the subject of the attack is at p 5 of the cyclostyled judgment and reads:

The agreements entered into by the parties are enforceable. All the key terms were agreed to in the final offer and the MOU. In fact all the essential elements of a contract were present and all that remained was for the parties to prepare the contract document and sign it. It is for these reasons that I conclude that the parties intended to be bound by these agreements.”

 

 

The court a quo refers to the offer and the MOU as the contract between the parties, and it took these separate agreements as one when it granted specific performance, based on the MOU.  The parties themselves were not agreed that the MOU would be the agreement of sale.  This is evident from the MOU itself.  The thrust of the MOU was:

“… to set out the basis upon which the transaction shall be concluded and to set out rights and obligations upon each party leading to the signing of a SALE AGREEMENT between the parties. It is the parties understanding that the sale agreement be concluded immediately upon the successful completion of the necessary regulatory approvals by the Ministry of Agriculture, Land and Rural Resettlement.”

 

 

 

In my view the dispute stands to be resolved by the determination of the following issues:

  1. Whether the court a quo made the correct finding that a valid agreement of sale existed between the parties.
  2. Whether any legal rights flow from the MOU signed by the parties.
  3. Whether the court could order transfer of the farm notwithstanding the subdivision of the same into plots pursuant to a permit.
  4.  

 

DID A VALID AGREEMENT OF SALE EXIST BETWEEN THE PARTIES

In essence there were two contracts envisaged after the offer for the purchase of the farm was accepted.  The first was the MOU itself which would lay the basis for the conclusion of the agreement of sale of the land, the second the contract of sale itself. The court a quo properly undertook a process under which it scrutinised and analysed each of the documents executed by the parties. It commented thus in relation to the Final Offer:

“It is clear from the offer that an agreement of sale would be concluded at a subsequent stage. The offer was subject to the acquisition of a certificate of no present interest from the relevant authority. In order to record this fact the parties entered into a Memorandum of Understanding. The MOU recorded that a contract would only be concluded after the certificate of no present interest had been granted. The contract was subject to the happening of a future event.”

             

 

The court a quo also found that:

“… The final offer constitutes a preliminary agreement where the parties would sign another contract. The parties had agreed on the key terms of the contract but had not signed the actual contract and had agreed to be bound to carry out, in good faith all the actions as may be necessary to expedite the transfer and registration of the farm.”

 

 

 

As a consequence, the court accepted that there was no contract of sale entered into through the Final Offer.  The MOU was a vehicle through which the agreement of sale would be concluded.  The MOU specifically provided that a contract would be concluded upon the obtaining of a certificate of no present interest. In discussing the terms of the MOU the court remarked:

These facts disclose an agreement to agree in future in good faith. The objective, which was to bind the parties to agree to enter into a final contract, did not happen. No agreement of sale was entered into. This scenario is distinguishable from a contract of sale subject to a suspensive condition which comes into effect on fulfilment of a specified condition. In this case, there was no contract of sale entered into as envisaged.”[1]

 

 

 

It is abundantly clear that the court’s analysis of the offer and the MOU cannot be faulted nor can the conclusion by the court that a contract would be concluded after a certificate of no present interest would have been obtained from the relevant ministry.  The court a quo was alive to the condition upon which an agreement would be entered into and that in fact no agreement of sale was ever entered into. Its finding in the face of all the above observations that an enforceable agreement existed through a series of agreements was a clear misdirection.

 

WHETHER ANY LEGAL RIGHTS FLOWED FROM THE MOU

It is evident that the court accepted that the offer was subject to a condition precedent, and further, that no agreement of sale was entered into.  This finding emerges clearly in the judgment, wherein it is stated as follows:

The objective which was to bind the parties to agree to enter into a final contract, did not happen. No agreement of sale was entered into… In this case there was no contract of sale entered into as envisaged.

 

 

However, the court then departed from this pertinent finding and fell into error when it held, as it did, that:

“… the agreement to agree contains key or sufficient and definite terms of agreement even though a few details still have to be worked out and there is a dispute resolution mechanism provided for in this case, this renders the agreement certain and enforceable. The agreements entered into by the parties are enforceable. All the key terms were agreed to it in the final offer and the MOU. In fact, all the essential elements of a contract were present and all that remained was for the parties to prepare a contract document and sign it. It is for these reasons that I conclude that the parties intended to be bound by these agreements.”[2]

 

 

 

The courts are enjoined to give effect to contracts between parties in the manner the parties agreed.  The aim of the MOU was to set out the basis upon which a sale would later be concluded.  This is apparent from s 1 of the MOU.  It is worded as follows:

“The aims and objectives of this Memorandum of Understanding shall be to set out the basis upon which the transaction shall be concluded and to set out the rights and obligations of each party leading to the signing of a SALE AGREEMENT between the parties. it is the parties (sic) understanding that the Sale Agreement be concluded immediately upon the successful completion of the necessary regulatory approvals by the Ministry of Agriculture, Land and Rural Resettlement.”

 

 

It stands to reason therefore that the sale agreement was to be effected at a later date subject to the terms and conditions set out in the MOU and, subject also to further negotiations by the parties.  The wording of the MOU itself lends support to an interpretation which is only consonant with a finding that the MOU was not the agreement of sale in itself.

 

Section 5 of the MOU reads as follows:

“The parties shall assign personnel on a mutually agreed basis, on terms and conditions which they shall agree to, separate from this memorandum for the purpose of cooperating in concluding the Sale Agreement.”

 

 

 

Further and in addition to the above, s 7 of the MOU confirms that the MOU was not in itself the Sale Agreement:

“Both parties shall use their best endeavour and make all efforts to ensure the Sale is concluded and to best advantage.”

 

 

The court could not therefore hold that the sale of the farm had been concluded in the face of these provisions of the MOU. In this jurisdiction, it is settled law that agreements akin to the one in casu are not enforceable primarily due to the uncertainty which accompanies such contracts.  The court a quo was alive to this principle and commented that in agreements to agree in the future the parties thereto retain a discretion as to whether or not to agree or disagree in the future.  In Premier, Free State and Ors v Firedom Free Estate (Pvt) Ltd 2000 (3) SA 413 (SCA), the court held:

“An agreement that parties will negotiate to conclude another agreement is not enforceable because the absolute discretion is vested in the parties to agree or disagree.”    

 

 

 

If it were to be accepted for reasons stated by the court that the MOU is a binding agreement, the respondent could not have successfully sued for specific performance solely based on the same.  The only binding agreement between the parties was an undertaking to agree.  In upholding the MOU, the court a quo needed to make a specific finding on what could be enforced in terms of the same.  And yet, despite its earlier finding that no agreement of sale had been concluded, the court then went on to find that there was an enforceable agreement.  This what the court said:

“Where the parties have agreed on key elements of the contract it is essential that the court enquire into whether the parties intended to enter into a binding contract. It is essential to examine the terms of the MOU and the final offer to determine if there were any binding terms. This will assist the court in determining what the intention of the parties was when they entered into the agreements.”

 

 

It seems that the court was persuaded to find that once the parties had agreed on essential terms, and where the agreement contains terms to negotiate in the future and the agreement provides dispute resolution mechanisms, the parties should be held to the contract.  The court concluded further that the parties had expressed an intention to be bound once the regulatory approvals were obtained, and that, when these were to hand, the agreement would be enforceable.

    

Accordingly, it was the judge a quo’s reasoning that the existence of the pretium, the merx and the payment terms, coupled with the provision of a dispute settlement mechanism, rendered the offer document and MOU enforceable.  The court premised its conclusions on the following authorities;  Southernport Developments (Pty) Ltd v Transnet Ltd ZASCA 94 2 ALL SA 16 (SCA), and the Australian case of R & D Construction Group Ltd v Hallam Land Management Ltd, (2009) CSO H 128.

 

Before us Mr Zvobgo advanced the same principle and sought to rely on the authorities on which the High Court based its judgment.

 

The court went on to state:

“What is clear from the foregoing is that an agreement to agree or negotiate on a future contract is enforceable where the parties have agreed on essential terms of the contract and the agreement provides for a dispute resolution mechanism to resolve the unresolved issues. I intend to determine whether the agreements by the parties are enforceable.”

 

 

 

The dispute resolution mechanism which fortified the court’s conviction that an agreement of sale had been entered into related to the MOU itself and not a sale agreement which was to be concluded later.  The dispute resolution mechanism was only applicable in relation to issues arising from the enforceability of the MOU itself.  As a result, any remedies emanating from the mechanism in the MOU were restricted to the MOU and could not be extended to a further agreement of sale which would be concluded later.  Thus, the court contradicted itself in material respects. 

 

I therefore find that the court in effect prematurely found that an agreement of sale had been entered into when both parties agreed that the agreement of sale had not yet been concluded and would only be executed at a later stage.

 

It was a further term of the MOU that the rights and obligations arising from the MOU would terminate upon the expiry of 60 days from the signing of the MOU.  The relevant portion reads as follows:

“This agreement shall terminate upon the signature of a Sale Agreement. In the event that a Sale Agreement is not entered into between the parties within 60 days from the date of the signature of this agreement then this agreement shall terminate and all rights and obligations flowing from it shall fall away.”

 

 

 

Persuaded by the appellants’ alleged lack of good faith in their dealings with the respondent, the court a quo went on to grant relief based on the MOU. The court found as follows on page 6 of the cyclostyled judgment:

The respondents played a hide and seek game and deliberately delayed the signing of the final contract until the 60 days had elapsed and ultimately refused to sign the final agreement. They did not act in good faith. I find therefore that that (sic) the respondents are in breach of contract.”

 

 

The agreement was signed on 6 December 2014 and was to expire on 4 February 2013.  The application before the High Court was brought on 18 February 2013. Beyond 4 February 2014, there were no rights arising from the MOU which could be enforced by any of the parties.  Thus, in terms of the same, the parties agreed to an extinctive prescription of any cause of action arising from the MOU.  The respondent should have sued the appellants within that period, especially taking into account the fact that by 11 December 2013 it, the respondent, already had determined that the appellants were reneging on the terms of the MOU.  It could have resorted to the dispute resolution clause in the MOU.  It was obvious that the MOU had terminated and the lack of good faith could not give rise to a right upon which specific performance could be granted.  The court did not spell out the breach of contract that it alluded to in the judgment.  On this aspect the court erred as well. 

 

The right which respondent seeks to enforce in these proceedings was already lost when it sued.  A court is not entitled to enforce rights which stand lost by operation of law.[3] I therefore find that post 4 February 2013 the respondent had no cause of action as against the appellants ex contractu.  On this basis alone, the appeal ought to succeed.

 

In the event, the court a quo grossly misdirected itself in granting specific performance in the absence of agreement of sale upon which such order would be legally justifiable.  In Reserve Bank of Zimbabwe v Corrine Granger and Anor[4] the court held in part that:

An appeal to this Court is based on the record.   If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.   And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.   See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670; and S v Pillay 1977 (4) SA 531 (AD) at 535 C-E.” (my emphasis)

           

 

WHETHER THE MOU EXECUTED BY THE PARTIES HAS ANY LEGAL FORCE

            In my view, further to the above, this appeal is easily determinable on the simple question of whether the alleged “agreement” is invalid for want of statutory compliance and this is the point I turn to enunciate.

 

The farm at the centre of this dispute falls under the category of rural land.  Such land is administered under the Land Acquisition Act.[5] Both parties understood that in order for them to enter into a valid agreement of sale of the farm, there was need for the appellants to first approach the relevant authority in order that it could exercise its statutory right of first refusal to purchase the land.  The law prescribes that a holder of land categorised as rural land cannot sell his or her land to any other person without having approached the State to exercise its statutory right of first refusal.  If the State is not interested in the land, the relevant Minister will issue a certificate of no present interest and only then may a party proceed to enter into an agreement of sale with any other party.

 

The above legal requirements are enshrined in s 3 of the Land Acquisition (Disposal of Rural Land) Regulations,[6](“the Regulations”) which reads in relevant part:

“3. Minister to be given right of first refusal on sale of rural land

(1) Subject to these regulations, the owner of any rural land, other than the State, a local authority or a statutory body, shall not sell the land unless he has offered to sell it to the Minister and—

(a) the Minister has issued him with a certificate of no present interest; or

 

(b) the Minister has not responded to the offer within the ninety-day period specified in subsection (1) of section 5.

 

(2) An offer in terms of subsection (1) shall be in writing and shall—

 

(a) specify the price which the owner is prepared to accept for the rural land concerned; and

 

(b) describe the nature and extent of the rural land concerned and any buildings or other improvements on the land;  and shall be accompanied by a copy of the title deed of the land.”(my emphasis)

 

 

                        The use of the word “shall” in s 3(1) quoted above renders it mandatory for any rural land holder who wishes to sell the land to first offer the land to the Minister so that the Minister may exercise the right of first refusal.  A seller has no discretion and must comply with the statutory condition.

                       

                        It is my view that the issue concerning the right of first refusal vested in the Minister in relation to the sale of rural land was critical in resolving the question that was before the court a quo as to whether the parties had entered into a valid agreement of sale.

 

 

Where such contract is proscribed by statute, it is invalid and non-compliance with the condition invalidates the whole contract.  This principle is well enunciated in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd[7] wherein MCNALLY JA (as he then was) quoted with approval the words of LEWIS ACJ  in York Estates Ltd v Wareham 1949 SR 197 who remarked as follows:

As a general rule a contract or agreement which is expressly prohibited by statute is illegal and null and void even when, as here, no declaration of nullity has been added by the statute."

 

 

Had the court a quo considered the provisions of   s 3 of the Regulations, it would have resolved that the “agreement” it was being enjoined to endorse as valid was an agreement that was proscribed by law. Such a finding would have disposed of the matter.

 

It seems that the legal practitioners of the parties to the dispute omitted to address the court on the said provision.  That notwithstanding, the court could have mero motu raised the issue and resolved the dispute accordingly. A court may raise the question of illegality mero motu if it appears ex facie the transaction or if it is satisfied that all the evidence on the surrounding circumstances was led.[8]

 

The court in X-Trend-A-Home (supra) had to consider s 39 of the Regional, Town and Country Planning Act [Chapter 29:12]. In order to crystalize the issue that was before it, the court posed the question, “Does s 39 of the Regional, Town and Country Planning Act [Chapter 29:12] prohibit persons from entering into an agreement for the change of ownership of any portion of a property, even where the agreement is made, expressly or impliedly, conditional upon the obtaining of a permit for subdivision of that portion?”

 

Section 39 of the Regional, Town and Country Planning Act reads in relevant:

“39 No subdivision or consolidation without permit

(1) Subject to subsection (2), no person shall—

(a) subdivide any property; or

(b) enter into any agreement—

(i) for the change of ownership of any portion of a property; or except in accordance with a permit granted in terms of section forty.”

 

 

The court examined the origins of the section dating back to the Southern Rhodesian Country Land Sales Restriction Regulations, 1943. The court carefully examined all the cases that had been decided under the Regulations and the statutory instruments that followed in an endeavour to identify the mischief intended to be cured by the legislation.  The court went on later in the judgment and held:

The agreement with which we are concerned is clearly "an agreement for the change of ownership" of the un-subdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited.”[9]

 

                       

Applying the above quoted principle to the facts in casu the only conclusion to be arrived at is that the “agreement” which the court a quo found to exist between the parties was illegal.  A sale of rural land before the relevant Minister has expressed his disinclination to buy the same is prohibited.  It is clear that the appellants had not complied with s 3 of the Regulations.  The courts do not give effect to illegal agreements.  The fact that the parties did not object to the contract does not make the contract any less of a breach of a clear statutory provision.[10]

 

Turning to the common law, it is an established principle of the law governing contracts that an agreement of sale that is subject to the fulfilment of a condition precedent that has not been fulfilled is not a valid sale.  The aforesaid principle was referred to in Sithole v Khumalo & Ors HB 28/08, a judgment by NDOU J wherein he remarked as follows at p 5:

This agreement is subject to an important reservation.  A contract of sale subject to a condition precedent that has not yet been fulfilled is not a saleLeo v Loots 1909 TS 366 at 370-1…” (Emphasis added). 

 

 

On this basis alone the instant appeal ought to succeed.

 

 WHETHER THE SUBDIVISION OF THE FARM HAD ANY EFFECT ON THE ORDER OF SPEIFIC PERFORMANCE

 

The court ordered specific performance wherein the basis for the respondent in approaching the court was the allegation against the appellants that they had subdivided their farm and were selling the subdivisions thereof.  The court a quo found for a fact that the farm had been subdivided.  The court said at p 6 of the cyclostyled judgment:

“Instead they tried to sell divided portions of the farm to other people contrary to the agreement.”

 

The Final Offer was in respect of the whole farm.  A whole piece of land is a different entity to subdivided portions of the same.  Once the appellants obtained a subdivision permit in respect of the farm, the merx as it originally stood and offered to the respondent had ceased to exist.  The subdivision of the farm resulted in the creation of a number of different properties, such that there no longer was a farm, but a number of plots where the farm once stood.

 

It is trite that the remedy of specific performance is a discretionary power vested in a judicial officer. In Farmers' Co-operative Society (Reg) v Berry 1912 AD 343, INNES JA stated at 350 that:

"Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger (1 OR p 301), 'the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt'. It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance will be made."

 

 

In Zimbabwe Express Services (Pvt) Limited v Nuanetsi Ranch Private   Limited [11] GARWE JA had occasion to comment:

An order of specific performance is, however, at the discretion of the court and there are circumstances in which a court may refuse to grant an order of specific performance.  The discretion is:

‘[not] … completely unfettered.  It remains, after all, a judicial discretion and from its very nature arises from the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335).  It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.’

Per HEFER JA in Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776(A) at 783 C-D.”

 

 

The principle lex non cogit ad impossibilia states that specific performance should never be ordered if compliance with the order would be impossible.[12] The respondent inexplicably assumed that the merx, viz the farm still existed, this despite the subdivisions.  The subdivision of land is not a matter of form, it is one of substance.  The remedy of specific performance was not available to the respondent.

 

Instead of suing for specific performance it was open to the respondent to sue for a mandamus directing the appellants to attend to the consolidation of the subdivisions so that the remedy of specific performance could be complied with.  However, that is not the route that the respondent took and the court a quo should have considered the dispute on the facts before it.  The order it gave was impossible and incapable of performance by the appellants.

 

DISPOSITION

It is not in doubt that the court a quo held that the MOU was an enforceable agreement and granted the relief of specific performance on its basis.  In doing this, the court a quo was clearly wrong in three fundamental respects. Firstly, it erred in holding that the MOU and the final offer could amount to a contract of sale.  The MOU was not an enforceable contract as concluded by the court a quo.

 

Secondly, it erred in ordering specific performance on the basis of the MOU which was not only void for want of statutory compliance, but whose existence had terminated through effluxion of time.  If the MOU was an ‘enforceable’ contract, it was invalid for want of compliance with the  Regulations.

 

Thirdly, it ordered specific performance where the merx was no longer in existence and available for disposal. In addition, specific performance could not possibly have been granted because the merx was no longer available. There was no basis for the court a quo to order specific performance on the basis of the Final Offer and the MOU.

I am satisfied that, for the above reasons, the appeal has merit and must therefore succeed. 

In the result, the following order will issue:

  1.  The appeal is allowed with costs.
  2. The order of the court a quo is set aside and in its place the following is substituted:

“The application is dismissed with costs.”

 

                        GARWE JA:             I agree

 

                        PATEL JA                I agree

 

Musunga & Associates, appellants’ legal practitioners

Dube, Manikai & Hwacha, 1st respondent’s legal practitioners

 

 

[1] Page 3 of the cyclostyled judgment.

[2] Page 5 of the cyclostyled judgment.

[3]Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement and Others SC 36/04

[4] SC 34/2001 page 5-6 of the cyclostyled judgment.

[5] [Chapter 20:10]

[6] S.I.287/99

[7] 2000 (2) ZLR 348 (SC) 351

[8] Harms, Amler’s Precedent of Pleadings, 4th (1993) 158

[9] At 355A. Also see Tsamwa v Hondo and Others 2008 (1) ZLR 401 (H) for a general discussion of the issue.

[10] Tsamwa v Hondo and Others 2008 (1) ZLR 401 (H)

[11] 2009 (1) ZLR 326 (S)

[12] RH Christie, The Law of Contract in South Africa, 3rd ed, page 581, also see Rissik v Pretoria Municipal Council 1907 TS 1024 1037