Christwish Ganzani v Cythia Takaindisa Kwiyo & 5 Ors

### Preamble
1
HH 121-21
HC 9851/14
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CHRISTWISH GANIZANI

versus

CYNTHIA TAKAINDISA KWIYO

and

CATHERINE TAKAINDISA KWIYO

and

THEMBA TAKAINDISA KWIYO

and

ELIZABETH TAKAINDISA KWIYO

and

FINGOLD REAL ESTATES

and

THE CITY OF HARARE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 18 November 2020 & 18 March 2021

Opposed Application

T Nyamucherera, for the applicant

Miss Gororo, for the 1st, 3rd &4th respondents

MANGOTA J: The third and fourth respondents are husband and wife respectively. They purchased stand 5993 Warren Park North, Westlea, Harare (“property”) from the sixth respondent. They did so in terms of a written contract which the sixth respondent and them signed on 9 June 1998. The agreement appears at p 26 of the record.

The first and second respondents and one Sharon Takaindisa Kwiyo (“Sharon”), a minor, are children of the third and fourth respondents. It is to the three children that the third and fourth respondents allegedly ceded their rights and interests in the property. They ceded it in equal shares. The cession was in terms of affidavits which the third and fourth respondents deposed to on 1 November 2007. The affidavits appear at pp 12 and 13 of the record.

On 17 November 2007, the first and second respondents sold their respective rights and interests in the property to the applicant. Sharon allegedly sold her share in the property through the affidavit which the fourth respondent, her mother, deposed to on her behalf on 20 November 2007. The affidavit appears at p 14 of the record.

The sale of the property to the applicant by children of the third and fourth respondents constitutes the applicant’s cause of action. She complains that the seller has not given her title in the property from the date of sale to date. She, accordingly, moves for a declaratur. She couched her draft order in the following terms:

“IT IS ORDERED THAT

The agreement of sale of Stand 5993 Warren Park North, Westlea, Harare between the 1st and 2nd respondents and the applicant he and is hereby declared valid and enforceable between the parties.

The cession of rights by the 3rd and 4th respondents to the 1st and 2nd respondents be and is hereby declared valid.

IT IS ORDERED THAT

The 6th dependant (sic) be and is hereby ordered to effect cession of Stand 5993 Warren Park North, Westlea, into the applicant (sic) name and to that end the Sheriff or his lawful deputy be and are hereby authorised to sign all documents necessary to effect the cession.” (emphasis added)

Only the third respondent opposes the application. The remaining five respondents do not. They did not file any notices of opposition. My assumption is that they intend to abide by my decision.

The third respondent admits that his wife and him purchased the property from the sixth respondent. He denies that he ceded his rights and interest in the property to his three children; namely the first and second respondents and Sharon. He alleges that he could not cede his rights to his children without the written consent of the sixth respondent. He states that clause 16 of the contract which his wife and him signed with the sixth respondent did not allow his wife and/or him to cede his or her rights in the property to the children or to anyone else without the sixth respondent’s written consent. He insists that, if cession occurred between his wife and him, on the one hand, and the first and second respondents, on the other, no cession ever took place in respect of Sharon whose share in the property the court was enjoined to protect. He moves me to dismiss the application with punitive costs.

This, as the applicant correctly states, is a section 14 of the High Court Act application.  It is an application for a declaratur. The declaratur is premised on the alleged contract of sale of the property to the applicant.

The application cannot succeed. It cannot do so because the foundation upon which it rests is fundamentally flawed. The case lacks all the elements which go into the contract of purchase and sale. The absence of the contract of sale, therefore, negates the rights which the applicant should have derived from her contract and the absence of the right(s) means that there is nothing for me to declare.

It is trite that an applicant for a declaratur must prove, on balance of probabilities, that he has an existing, future or contingent right which he is inviting me to inquire into and determine. Where he shows the existence of the right, albeit a future or contingent one, a declaration will be made in his favour. Where, on the other hand, he fails to prover such a right, no declaration can be made in his favour. The court will, in that case, have nothing to declare for him.

The pleadings, as filed, show that the applicant premises her application for a declaratur on the alleged contract of sale of the property to her. She asserts that the first and second respondents sold the property to her. She states that Sharon sold her share of the property through the fourth respondent, her mother, who deposed to an affidavit on Sharaon’s behalf. She attached the affidavit in question to her founding papers as Annexure B.

It is trite that a contract of sale has four essential elements. All the four elements must be present in order for a sale to be regarded as perfected or valid. The elements comprise:

the seller

the purchaser,

the merx – and

the price (or pretium).

Writing on the requirements of a valid sale contract, C Bradfield, K Lehmann state, in their Sale & Lease, 3 ed on p 24 that:

“...the identifying features or essential elements (essentialia), of a contract of sale must be present: the seller must intend to sell and the buyer to buy, and there must be agreement on the subject matter of the sale and on a price to be paid for it. In the absence of agreement on these aspects, the contract is not one of sale.”

The statement of the applicant is that the third and fourth respondents ceded their rights in the property to their three children. These, according to her, comprise the first and second respondents and Sharon whom she alleges owns one third share in the property.

The papers filed of record show that the first and second respondent sold their respective shares in the property to the applicant. Annexure A which she attached to her application tends to support the stated matter. A fortiori when the same is read with the affidavits, Annexures B and C, which the third and fourth respondents deposed to on behalf of their three children.

The applicant is, in effect, asserting that she purchased two thirds of the shares in the property from the first and second respondents. She does not state if Sharon eventually agreed to sell to her (Sharon’s) one third share in the property to her or not. The stated matter is left to conjecture, so to speak.

The third respondent states, correctly in my view, that Sharon’s shares in the property could not be alienated from her save through the court. The affidavit which Sharon’s mother deposed to on Sharon’s behalf is of no moment. It cannot dispose of Sharon’s rights and interest in the property in favour of anyone let alone the applicant. The affidavit raises more questions than it provides answers to them. This is a fortiori in respect of its para 3 which reads:

“3.	I further confirm that should Sharon Takaindisa Kwiyo refuse to sell her 1/3 share upon being a major, I commit myself to swapping with her 1/3 share in stand 5993 Westlea, Harare with a house called Stand No. 29587 Unit M Seke, Chitungwiza which is held under 	my name with Chitungwiza Municipality” (emphasis added)

The following questions arise from the quoted paragraph of the fourth respondent’s affidavit:

(i)	Was the fourth respondent selling Sharon’s share of the property to the applicant 		and/or

(ii)	could she legally sell the share when she allegedly divested herself of all rights in the property which her husband and her ceded to their three children including Sharon who was a minor at the time of the sale of the property and/or

(iii)	is Sharon now a major and, if she is, and/or

(iv)	what is her attitude to the alleged sale of her share of the property to the applicant and/or

(v)	did she agree to sell her share of the property to the applicant, and/or

(vi)	did she go for the swap of houses in line with the fourth respondent’s commitment and/or

(vii)	was the condition which relates to Sharon’s sale of her share fulfilled or not.

Because Sharon was a minor at the time that the sale of the property allegedly took place, an application for the appointment of a curator should have been made. It is only the curator who could competently have sold Sharon’s share in the property to the applicant. Anything which was outside the stated proposition would not hold. Sharon’s mother could not sell Sharon’s share. The law did not allow her to do that.

There is, therefore, no sale of the property to the applicant. She cannot have purchased two thirds of the property and claim the whole property. One of the sellers of the property, Sharon, is conspicuously absent from the contract of sale. She never was, or is, a party to the same.

That Sharon did not sell the property to the applicant is evident from the manner in which the applicant’s draft order is couched. It does not refer to Sharon at all. It refers only to the first and second respondents. These are the persons who signed the contract of sale with her. Sharon did not. She is, therefore, not in the equation. Nor is the fourth respondent who apparently purported to sell the property on Sharon’s behalf. She is also not in the equation. There is, therefore, no contract of sale between the applicant and the first and second respondents. The three signed a piece of paper which purports to be a contract but is not. The applicant could not and cannot, purchase a portion of the property and claim to have purchased the whole property.

A contract is an agreement which is intended to be enforceable at law. It is different from a social agreement. Its creation gives rise to rights and obligations as between the parties. A party to a contract can enforce his rights against the other and vice versa: Luanda Hawthorne, Chris -James Pretorius Contract Law Case book, 2 ed, p 1.

It is only where there is in existence a contract that a declaration can be made. A valid contract creates personal rights as between the parties. Such rights can be the subject of a declaratur. They show that the applicant in a declaratur has a direct and substantial interest in the subject matter of the application.

The current applicant does not have such an interest. Her interest ceased to exist when she failed to create a contract with the respondents. She has neither personal nor real rights in the subject matter which she is inviting me to inquire into as well as determine. Her motion was, and is, of an academic nature. If it was not such, she would simply have sued for specific performance instead of a declaratur. She opted for a declaratory order because she knew that her contract with the first and second respondents was not perfected or valid. She made up her mind to throw her weight in all directions in the vein hope that she might strike the correct code in the process and succeed. She struck the wrong code.

The applicant did not speak in tongues. She wrote in tongues, if a comparison may be favoured. She alleges that the third and fourth respondents ceded their rights and interest in the property to their three children. She, in the same breath, moves me to order the sixth respondent to effect cession of the property to her. One is left to wonder if the alleged cession of the property from the third and fourth respondents to their three children ever took place.

The third respondent states, correctly in my view, that his wife and him did not cede their rights in the property to their three children. His statement appears to be in sync with the probabilities of this case. If they did the cession as is alleged, the applicant’s motion which is of a consequential nature would not have served any purpose.

The applicant knows as much as anyone does that she cannot claim relief of a consequential nature in an application for a declaratur such as the present one. Her motion in which she moves me to order the sixth respondent to effect cession of the property to her is incompetent. It is of no moment. It cannot, therefore, stand.

The application is everything which an application for a declaratur should not be. It is an exercise of the mind more that it is anything of a tangible nature. It is academic, hypothetical as well as abstract. It is one of the matters which the court will not entertain in an application for a declaratur.

The application stands on nothing. It is devoid of merit. It is, therefore, dismissed with costs.

Lawman Chimuriwo Attorneys at Law, applicant’s legal practitioners

J Mambara & Partners, 1st, 3rd & 4th respondents’ legal practitioners