Busani Mpofu v Kasirai Caston Mbire

### Preamble
1
HH 293-11
CA 260/06
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BUSANI  MPOFU

versus

KASIRAI CASTON MBIRE

HIGH COURT OF ZIMBABWE

HLATSHWAYO AND KARWI JJ

HARARE, 5 April 2007 and 20 October 2011

CIVIL APPEAL

Mr Demhe, for the appellant

Mr Hungwe, for the respondent

KARWI J:  This is an appeal against the decision of the learned magistrate in the court a quo in terms of which the said magistrate ordered inter alia, that the appellant cedes the late Phineas Mpofu’s rights, interest and title in stand number 761 Kuwadzana 1 Harare, to the respondent.  The respondent applied for leave to execute the judgment which leave was granted.  The appellant appealed against both the judgment and the order to grant leave to execute. It is the appeal against that judgment which this appeal is concerned with. The appellant’s grounds of appeal are that the magistrate had erred in not considering the fact that the respondent had breached the material terms of the contract and that he had also neglected or ignored the provisions of s 4 of the Contractual Penalties Act.

The facts of the matter were that respondent had approached Fairvest Real Estate Agent and instructed them to sell his house known as No. 460, ,  ,  situate in the district of Salisbury measuring 3370 square meters. With the Estate Agent’s efforts, an agreement of sale was concluded between the respondent and Gillian and Simba Gurupira on 13 January 2004. The purchase price was $38 000-00 expressed in the old currency. The money was paid to the Estate Agent by the purchasers. The respondent left the money in the custody of respondent and further instructed them to look for a house on his behalf. The Estate Agent deducted $1 900-00 being its commission from the proceeds of the sale of the Lochnivar property. Through the efforts of the Estate Agent and on 11 February 2004, the appellant and the respondent signed an agreement of sale in respect of the property known as No. 761 Kuwadzana One in . The purchase price of that property was $50 000-00 payable as follows:  $36 000-00 to be paid upon signature and the balance of $14 000-00 to be paid on or before 3 May 2004. The respondent through the Estate Agent paid $36 000-00 upon signature. The respondent indicated that he wanted to pay the balance of $14 000-00 later. The appellant insisted that the balance was not $14 000-00 but was $17 800-00 instead.  A dispute then arose between the parties over the exact figure constituting the correct balance of the purchase price. The learned magistrate who heard the matter ruled in favour of the respondent. He ruled that the appellant should cede the late Phineas Mpofu’s rights, interest and title in stand number 761 Kuwadzana 1 to the respondent. The respondent was also ordered to pay the balance of $14 000-00 to the appellant. The appellant and all those claiming rights of occupation of the property through the appellant were ordered to vacate the property within 60 days of the order.

In his well-reasoned judgment, the learned magistrate found the appellant to be a poor witness who changed his story as it suited him. An example cited was in connection with the requirement to give written notice to cancel the agreement. In terms of para 7b of the parties contract, a party was required to give written notice to the other if he intended to cancel the contract. Under cross-examination the appellant did say that he did not cancel the contract although later on he attempted to change his story. Under re- examination, he said he only sent a written notice after he started appearing in court.

The learned magistrate also correctly found that there were two separate transactions in this matter, in which the respondent engaged the Estate Agent to sell his Lochinvar house on his behalf and another in which the appellant commissioned the Estate Agent to look for a buyer for the house in Kuwadzana, Harare.

There are two issues for determination in this matter. These are:

whether or not the respondent breached the contract of sale and if so whether the contract was cancelled in terms of the contract; and

whether or not the Estate Agent was engaged by  the appellant and if so was the appellant responsible for the payment of the commission to the Agent.

There is no dispute on the validity of contract between the parties in this matter. The dispute is a factual one. It is concerned with the correct balance of the purchase price and on whether the contract was cancelled and if so was it properly done in terms of the contract. It is an internationally accepted principle and practice that principals do have the responsibility of paying their agents for the work agents would have done for them. More particularly, he who commissions an estate agent to find a buyer for his house is the one to pay the agent for his efforts. In casu, there were clearly two transactions. One involved the respondent commissioning the agent to sell his Lochinvar house and another in which the appellant commissioned the agent to sell the house in Kuwadzana. In the first sale the respondent was responsible for the payment of the commission whereas in the second sale it was the appellant who was responsible for the payment of the commission. It follows therefore that the court a quo cannot be faulted in its finding that the respondent was correct when he insisted that he owed $14 000-00 not $17 800-00. In its judgment, the learned magistrate found that the appellant had during the trial and in response to questions in cross-examination said that he was the one who had hired the Estate Agent in respect of the sale of his property. He had further agreed that he was the one who was supposed to pay the Agent’s commission. It is therefore clear that the appellant is the one who engaged the Agent and that he is the one to pay the agent’s commission. In casu, Fairvest Real Estate (Pvt) Ltd was engaged by the appellant to dispose of Stand No. 761, Kuwadzana 1, , on his behalf. It is entitled to its commission from the deposit paid of $36 000-00. This is why the appellant received $32 000-00 after deduction of the sales commission. It is therefore not correct to hold as the appellant does that there was a breach of contract by the respondent because the appellant was paid $32 000-00. It must be understood that the appellant got a lesser figure than the $36 000-00 because the estate agent had already deducted his commission before passing on the balance to the appellant.

It must also be noted that if the respondent had breached the contract, which he did not, it was a requirement that the appellant give the respondent 14 days notice in writing before purporting to cancel the contract, clause 7(b) of the contract provides that:

“In the event of the purchaser failing to pay the purchase price (or any installment and any other sum payable in terms of this Agreement) or omitting to observe or perform any of the terms, conditions, stipulations or obligations herein failing to make good such default or remedy such breach within 14 days of the date of posting to or serving on the purchaser a written notice directed to the address denoted overleaf requiring the purchaser to do so then, notwithstanding any previous waiver, the seller shall be entitled without further notice to declare this agreement of sale cancelled and of no force or effect, and to resume possession and resume occupation.”

It is a fact that the appellant did not give such notice to the respondent and as a result he cannot declare the contract cancelled without following the provisions of clause 7(b) of the agreement of sale between the parties.

Accordingly, the appeal cannot succeed. It is therefore ordered:

That the appeal be and is hereby dismissed with costs.

That notwithstanding any appeal which may be contemplated and filed by the appellant, the judgment of the court a quo should be executed.

Legal Aid Directorate, appellant’s legal practitioners

Hungwe & Partners, respondent’s legal practitioners