Rodreck Takawira v Precious Kahwema and Dorking House (Private) Limited and Registrar of Deeds

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RODRECK TAKAWIRA
versus
PRECIOUS KAHWEMA
and
DORKING HOUSE (PRIVATE) LIMITED
and
REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE
PATEL J
HARARE, 4 October 2011 and 21 February 2012



Opposed Application



T. Mpofu, for the applicant
P. Makuvaza, for the 1st respondent



      PATEL J:     This is a dispute concerning the sale and transfer of a

flat in Josiah Chinamano Avenue, Harare. The applicant has been the

sitting tenant of the flat for many years. The 1 st respondent purchased

the flat from one Chiwara in July 2009 and acquired its ownership shares

from the 2nd respondent in January 2010. He sought vacant possession

but this was refused by the applicant. He eventually obtained an

ejectment certificate which was registered with the Magistrates Court in

August 2011. This registration is the subject of an appeal by the applicant

lodged in September 2011 and pending before this Court in Case No.

CIV(A)473/11.

      In June 2010 the 1st respondent offered to sell the flat to the

applicant for the purchase price of US$30,000. He avers that he did so out

of desperation because the applicant refused to vacate. The applicant

accepted this offer in July 2010. The 1 st respondent’s lawyers then wrote

to the applicant in August 2010 calling on him to sign the agreement of
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sale and to pay the purchase price by a stipulated deadline. Following

non-payment, the 1st respondent declined to proceed with the sale. He

avers that the flat is now worth US$60,000.

       In March 2011 the applicant obtained a mortgage loan for

US$35,000. He now seeks an order for the sale agreement to be signed,

transfer of title and registration of transfer, upon payment of the agreed

purchase price. The principal issue for determination is whether the

agreement of sale was breached by the applicant’s failure to pay the

purchase price by the fixed deadline.


The Salient Facts and Submissions

       The 1st respondent’s offer to sell was made by letter dated 23 June

2010. The offer was open until 15 July 2010. By letter of 12 July 2010 the

1st respondent’s bank account details were furnished to the applicant’s

lawyers for them to deposit the purchase price in terms of the offer. They

responded on 13 July 2010 to accept the offer on behalf of their client and

to request a draft sale agreement. The draft agreement was duly

prepared by the 1st respondent’s lawyers and forwarded on 2 August

2010 for consideration. On 11 August 2010, they wrote again demanding

that the agreement be signed and payment be made by 13 August 2010,

failing which the property would be put up for sale on the open market.

The applicant’s lawyers wrote back on 12 August 2010, asking to be

furnished with proof of title. On 13 August 2010, they sent a further letter

proposing certain amendments to the agreement, including a term that

the purchase price was to be secured by a mortgage bond to be obtained

by the applicant within 30 days. The 1 st respondent’s lawyers replied on

19 August 2010 to state that their letter of the 11 th instant “still stands”.
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      Adv. Mpofu submits that the contract between the parties was

concluded on 13 July 2010 and that payment of the purchase price was

not a condition for its conclusion. The payment terms were to be included

in the draft agreement. The demand for payment by 13 August 2010 was

unreasonable and did not place the applicant in mora, particularly as the

1st respondent’s title had been queried on 12 August 2010. Moreover,

through subsequent correspondence, the 1 st respondent called for

further meetings and thereby compromised the stipulated deadline. The

applicant is now ready to carry out his payment obligation under the

contract and therefore has the right to demand performance from the 1 st

respondent, i.e. signature of the agreement and transfer of title.

      Mr. Makuvaza does not dispute the offer and acceptance of the

contract. He submits, however, that mere acceptance was not enough as

the contract was conditional upon signature of the agreement of sale and

payment of the purchase price. In this regard, the draft agreement

stipulates payment upon its signature. In any event, the applicant should

have queried the 1st respondent’s title earlier. The demand for payment

by 13 August 2010 was not unreasonable, as the applicant had already

been furnished with the requisite documents, i.e. capital gains certificate,

agreement of sale with Chiwara and share certificate from the 2 nd

respondent. The applicant’s lawyers only sought confirmation of title

from the latter in February 2011. The applicant was simply dilly-dallying

as he did not have the necessary funds to purchase the property when he

accepted the offer. His mortgage loan was only confirmed in March 2011.


Disposition

      While I am prepared to accept that the 1 st respondent might have

made his offer to sell the flat out of desperation and frustration, I do not
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think it can be said that he lacked the requisite animus contrahendi. When

he made the offer, through his lawyers, he did so with full understanding

of its implications, and clearly intended that his offer, once accepted,

would create a binding contract.

      The more pertinent question is whether or not there was a failure

to perform timeously on the part of the applicant. When the contract

does not fix a time for performance, the general rule is that there can be

no mora ex re but only more ex persona, so that a demand by the creditor

is necessary in order to place the debtor in mora. Even though time may

be of the essence, the debtor is not in mora and the creditor cannot

cancel for non-performance unless a proper demand for performance

has been made. See Christie: The Law of Contract in South Africa, at pp. 555

& 562, cited in Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd

SC 21-09, at p. 8.

      In the present matter, the offer to sell was made on 23 June 2010

and accepted on 13 July. The draft agreement was then prepared and

forwarded to the applicant on 2 August. On 11 August the 1 st respondent

demanded signature and payment by 13 August. The applicant sought

proof of title on 12 August. He then proposed certain amendments to the

agreement on 13 August and intimated that the purchase price was to be

secured by a mortgage bond to be obtained within 30 days. The 1 st

respondent replied on 19 August to state that his position of 11 August

still stood. There was subsequent correspondence from the 1 st

respondent in September and October 2010 calling for meetings to

finalise the transaction.

      On the above facts, given that the applicant had been furnished

with all the documents necessary to conclude the transaction, it seems to

me that the 1st respondent’s demand for payment of the purchase price
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by 13 August was proper and not unreasonable. The applicant’s request

for proof of title was no more than a dilatory tactic designed to forestall

the payment of the purchase price for which he did not have the requisite

funds. Moreover, I do not consider the 1 st respondent’s subsequent

requests for meetings as constituting an unequivocal waiver of the

stipulated deadline.

      Even if it were to be found that the deadline for payment was

improper and unreasonable, I take the view that the applicant should

have taken steps to pay the purchase price within a reasonable time. See

Annamma v Moodley 1943 AD 531 at 538, where it was held that, where no

period of time is fixed for the exercise of an option to purchase, it may be

inferred from the surrounding circumstances that the parties intended

that the option be exercised within a reasonable time. What is reasonable

will obviously depend on the particular circumstances of each case. In the

instant case, it is fairly clear that payment of the purchase price within a

reasonable time was anticipated by both parties. Despite his indication

that he would secure a mortgage loan within 30 days of the deadline, the

applicant was unable to make any payment whatsoever towards the

purchase price. He was only in a position to do so in March 2011, six

months later, when the approval of his loan was confirmed. A week later,

he rushed to institute the present application to compel transfer. The

overall delay of eight months after he accepted the offer is patently

inordinate and must be held to be unreasonable in the circumstances of

this case.

      It follows from all of the foregoing that the applicant failed to pay

the purchase price by the fixed deadline or within a reasonable time after

he accepted the offer. He was therefore in breach of the agreement of
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sale and cannot seek an order to compel performance of the agreement.

In the result, the application is dismissed with costs.




Gill, Godlonton & Gerrans, applicant’s legal practitioners
Sinyoro & Partners, 1st respondent’s legal practitioners