Tony Tatenda Mashava v Shaw Cecile Masuka and The Registrar of Deeds

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TONY TATENDA MASHAVA
versus
SHAW CECILE MASUKA
and
THE REGISTRAR OF DEEDS


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE 25, 26 & 31 October 2018


Opposed Application


E Jera for the applicant
N Mupure for the respondent


           CHIRAWU-MUGOMBA J: The background to this matter is as follows: - The
applicant entered into an agreement of sale with the first respondent in respect of an
immovable property being an undivided 3.14690411% share being share number 18 in
certain piece of land situate in the district of Salisbury called stand 1282 Salisbury township
measuring 892 square metres held under Deed of Transfer Number 2538/2017.                  The
agreement was signed by the applicant on 22 August 2017 and by the first respondent on 27
August 2017. The purchase price was the sum of $35 000 which was to be paid in full by
way of an N.M.B mortgage bond. The applicant secured the mortgage finance on 24 October
2017. On 20 December 2017, the applicant’s bank account was debited with the sum of
$2730 being transfer fees payable to Mupindu Legal Practitioners, the conveyancers. On the
same date, the sum of $1918 was debited from the applicant’s account being mortgage
registration fees payable to V.S Nyangulu Legal Practitioners. On 24 October 2017, the
applicant paid the sum of $300 to Rawson Properties, the Estate agents for the preparation of
the agreement of sale. Despite making all payments, when the applicant approached the 1 st
respondent for the transfer including ZIMRA interviews, he refused to cooperate and stated
that he wanted part of the purchase price to be paid in cash. This was also confirmed by
Rawson Properties.

               To that end, the applicant seeks the following order:-
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   1. That the 1st respondent has truly and legally sold to the applicant an undivided
      3.14690411% share being share number 18 in certain piece of land situate in the
      district of Salisbury called stand 1282 Salisbury township measuring 892 square
      metres held under Deed of Transfer Number 2538/2017.
   2. That the 1st respondent be and is hereby ordered and directed to sign all the necessary
      papers and documents and attend to all the relevant offices to transfer into the
      applicant’s name the immovable property being an undivided 3.14690411% share
      being share number 18 in certain piece of land situate in the district of Salisbury
      called stand 1282 Salisbury township measuring 892 square metres held under Deed
      of Transfer Number 2538/2017 within ten (10) days of the service of the order of this
      court.
   3. In the event that the 1st respondent does not transfer the property within ten days as
      specified herein, the Sheriff of the High Court be authorised and directed to sign all
      the necessary papers to effect the transfer in question into the applicant’s name.
   4. That Messrs Moyo and Jera Legal Practitioners shall handle the transfer of the
      property in question from the 1st respondent’s name into the applicant’s name.
   5. That the 1st respondent shall pay the costs of suit on an attorney and client scale.


      In response, the first respondent avers as follows: - He does not dispute that he entered
into an agreement of sale with the applicant. However, the applicant breached a material
condition in clause 14. This condition was not fulfilled within a period of 21 days and an
additional 7 days grace period. To that extent, the agreement became null and void. He
advised the applicant that he could not attend to ZIMRA interviews in view of the agreement
being null and void. If the applicant was still interested, they would have to enter into a new
agreement. The 1st respondent confirmed that he wanted payment to be part cash and part
transfer and that the applicant had agreed to this. The 1 st respondent raised points in limine to
the effect that the application was improperly before the court; that the cause of action had
been overtaken by events since the agreement was null and void; that the application does not
disclose a cause of action and that there are material disputes of facts. Further that the
application was defective for misjoinder of the Sheriff of Zimbabwe. If the court does not
find favour with the first respondent’s averments, it is clear that the transfer of the property
should be done within a reasonable period from the date when the purchase price is paid in
full. Therefore the period required for the transfer is not yet due and in any event, the 1 st
respondent has not received the purchase price. The applicant was improperly seeking the
court’s intervention to alter the terms of a private contract whose validity was being
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questioned. The payments made by the applicant being conveyancing and bond cancellation
fees as well as for the preparation of the agreement of sale were done without the first
respondent’s knowledge or agreement. The 1st respondent averred that the applicant should be
slapped with an order for costs on a punitive scale.

             In response, the applicant averred that clause 14 allowed an extension of the period
and further that he was dealing with Rawson Properties who were the agents of the first
respondent. He communicated the delays in securing finance to Rawson Properties and they
duly granted the extensions. This can be gleaned from the fact that the first respondent’s
conveyancers communicated with applicant by way of a letter dated 23 October 2018
advising him of the conveyancing fees and also acceptance of payment for the agreement of
sale fees by Rawson Properties on 24 October 2017. The applicant attached to the answering
affidavit a series of whatsapp conversations between him and the first respondent’s agents to
rebut the first respondent’s assertions.

Preliminary issues

       At the hearing, I engaged E Jera on the propriety of attaching evidence to an answering
affidavit. His response was that this was due to the fact that the 1 st respondent had made
certain assertions in his opposing affidavit. In Juta and Co Ltd and Others v De Koker,1 the
Court accepted and quoted with approval what was said in the headnote in Shakot Investment
(Pty) Ltd v Town Council of Borough of Stanger,2 as follows:-

                   ‘In consideration of the question whether to permit or strike out additional facts or
                   grounds for relief raised in the replying affidavit, a distinction must, necessarily, be
                   between a case in which the new material is first brought to light by the applicant
                   who knew of it at the time the when his founding affidavit was prepared and a case in
                   which facts alleged in the respondent’s answering affidavit reveal the existence of a
                   further ground for relief sought by the applicant. In the latter type of case the Court
                   would obviously more readily allow the applicant in his replying affidavit to utilise
                   and enlarge upon what has been revealed by the respondent and to set up such
                   additional ground for relief as might arise therefrom.’
          The whatsapp conversations were in the possession of the applicant at the time he
deposed to his founding affidavit and I see no reason why they were not attached so as to give



1
    1994 (3) SA 499 (T) at 510F-H.
2
    1976 (2) SA 701 (D).
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the first respondent an opportunity to respond. The concession by E Jera that they should be
disregarded was well made.

          I see no merit in the first respondent’s contention that as a preliminary point, the
applicant bases his cause of action on an agreement that is null and void. That is actually the
essence of the dispute and cannot be a preliminary point. The applicant’s claim does disclose
a cause of action based on breach of contract and the first respondent’s assertion that it does
not holds no water. I also do not see any material disputes of fact as it is not disputed that
there was an agreement of sale and that mortgage was secured and that certain payments were
made. What is in dispute is the interpretation of clause 14 of the agreement of sale. The non-
joinder of the Sheriff as a preliminary point is also misplaced. There is nothing that bars this
court if it does find in favour of the applicant from making an order enjoining the Sheriff to
sign documents as this is part of the enforcement of orders.

Merits

    The basis of the dispute in my view lies in the interpretation of clause 14 of the agreement
of sale which reads as follows;-

         Special condition/mortgage bond

The sale is conditional upon a mortgage bond of US$35 000 (Thirty Five Thousand United States
Dollars only) being approved and a bankers guarantee or financial undertaking acceptable to the
conveyancers within 21 working days from the date of signature by both parties or within such
reasonable extended period as the seller or his agent Rawson Properties under instructions from the
seller might allow. Should the purchaser fail to secure the financial undertaking within the initial
period then the period shall be extended automatically for a further 7 working days ( extended period)
and upon expiry of the extended period this agreement be immediately be null and void and of no
force.
      . Clause 14 is a condition precedent. It is common cause that the applicant and the first
respondent contemplated that there would be delay in the securing of funds by the applicant
and that is why the condition precedent has time frames. It is also common cause that the
agreement was signed by both parties by 27 August 2017 which becomes the initial date. It
its trite that in terms of the golden rule of interpretation, words should be given their ordinary
grammatical meaning- see Mudada vs. Tanganda Tea Company Ltd, 1999(1( ZLR) 374(S)
and Chegutu Municipality vs. Manyora, 1996(1) ZLR 262(S) @264. By specifically referring
to working days, this excludes weekends and public holidays.
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         “When the contract fixes a time for performance it will often be necessary to carry out a computation
         of time in order to ascertain when the fixed time expires. What does “seven days after Tuesday”
         mean? The first rule, before turning to the recognized methods of computation of time, is to seek the
         common intention of the parties from the wording of the contract and such evidence as may be
         admissible…. A fixed time “after” a particular event indicates an intention to exclude the day on which
         the event occurs, but is not necessarily decisive; “within seven days of” a particular event was intended
         to exclude the day or event.” See: Christie; Law of Contract in South Africa, 4 th Edition at
         570, National Bank of South Africa Ltd v Leon Leison Studios Ltd 1913 AD 213 at 218,
         Nell v Mulbarton Garden (Pty) Ltd 1971


 A calculation of 21 working days will mean that the days expired on 25 September 2017
excluding the date of signing. It is common cause that by 25 September 2017, the applicant
had not yet secured the finance. The second period was “within such reasonable extended
period as the seller or his agent Rawson Properties under instructions from the seller might
allow” and the third period was, “Should the purchaser fail to secure the financial
undertaking within the initial period then the period shall be extended automatically for a
further 7 working days (extended period)”

          E Jera for the applicant averred that the time period should be interpreted as follows:
- 21 days plus a reasonable extended period plus 7 days. This is in keeping with clause 13:1
on breach which requires a 7 day notice period to remedy the breach. N Mupure for the 1st
respondent averred that the time period should be calculated as 21 days plus 7 days. After 7
days without the condition precedent being fulfilled, the agreement would become null and
void. He also averred that even if there was an extension, it was done without the consent of
the 1st respondent. Furthermore the extension would amount to a variation and this would be
in breach of clause 19 wherein the parties agreed that the agreement contained the entire
contract and any variation is to be in writing and signed in keeping with the parole evidence
rule.

        In my view, the second period in clause 14 follows the initial 21 working days period. It
is not a variation of the contract so as to require it to be reduced to writing. The onus of
extending the period lay with the 1 st respondent or (my emphasis) his agent, i.e. Rawson
Properties. I do not agree with N Mupure’s assertion that the applicant had to take action in
the manner of communicating with the 1st respondent or his agent for an extension. When the
applicant paid for the agreement of sale to Rawson Properties, there was no indication from
them as the 1st respondent’s agent that the agreement was null and void. The contract
however seems to have more than one meaning when regard is had to the 3 rd aspect. The
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question becomes one of interpretation of the contract. The approach taken in South Africa
was enunciated in, Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4)
SA 593 (SCA) para 18 when WALLIS JA said:-

       ‘Interpretation is the process of attributing meaning to the words used in a document, be it
       legislation, some other statutory instrument, or contract, having regard to the context provided
       by reading the particular provision or provisions in the light of the document as a whole and
       the circumstances attendant upon its coming into existence. Whatever the nature of the
       document, consideration must be given to the language used in the light of the ordinary rules
       of grammar and syntax; the context in which the provision appears; the apparent purpose to
       which it is directed and the material known to those responsible for its production. Where
       more than one meaning is possible each possibility must be weighed in the light of all these
       factors. The process is objective, not subjective. A sensible meaning is to be preferred to one
       that leads to insensible or unbusinesslike results or undermines the apparent purpose of the
       document. Judges must be alert to, and guard against, the temptation to substitute what they
       regard as reasonable, sensible or businesslike for the words actually used. To do so in regard
       to a statute or statutory instrument is to cross the divide between interpretation and
       legislation; in a contractual context it is to make a contract for the parties other than the one
       they in fact made. The 'inevitable point of departure is the language of the provision itself,
       read in context and having regard to the purpose of the provision and the background to the
       preparation and production of the document.’

    Taken in the context of a contemplation of a delay by the parties of applicant securing
finance; of the admission by the first respondent that he actually wanted a ‘new’ contract with
its own terms and conditions and the averment by the applicant that the first respondent now
wanted to be paid in part cash, the sensible meaning to be put to clause 14 is that there was an
initial 21 days then an extended period which the 1st applicant or his agent had to set. This
approach does not amount to a re-writing of the contract for the parties. Rawson Properties as
the first respondent’s agent did not inform the applicant that the first respondent now
considered the agreement to be null and void. In terms of clause 14, the mortgage bond and a
banker’s guarantee or financial undertaking is subject to acceptance by the conveyancers in
this case Mupindu and Associates. Even after the expiry of the 21 working days period, they
still communicated with the applicant giving him a breakdown of the transfer fees. The first
respondent is therefore estopped from denying that there was an extension. And indeed by 24
October 2017, a period of one month from 25 September 2017, the mortgage finance had
been secured.


          In James versus Liquidators of the Amsterdam Township Company 1903 TS653 it
was held that under the common law a seller was entitled to nominate the conveyancer even
if the purchaser paid the costs of transfer. Save to the extent that parties in an agreement of
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sale can select otherwise, I am not aware of the variation of this common law position. In my
view, Mupindu and Associates were acting as the agents of the first respondent when they
communicated with the applicant by way of a letter dated 23 October 2017 indicating the
transfer fees payable. This is further indication of the extended period that the applicant
referred to.


                  By refusing to attend to ZIMRA and to the transfer of the property, the first
respondent is in clear breach of the contract. The first respondent has not denied that he was
notified by the applicant of the breach. Therefore the applicant is entitled to remedies that
flow from breach. “The remedies available for a breach or in some cases, a threatened
breach of contract are five in number: specific performance, interdict, declaration of rights,
cancellation, damages. The first three maybe regarded as methods of enforcement and the
last two as recompenses for non-performance”. 3 The innocent party, in this case the applicant
has opted for specific performance as he is entitled to. I do not perceive that circumstances
exist in this matter under which specific performance cannot be granted, these being
impossibility of performance, undue hardship and contract for personal service. 4 Accordingly
the applicant is entitled to specific performance.


                I am unable however to grant the other relief sought of changing the conveyancers
Mupindu and Associates to the applicant’s legal practitioners. Apart from the fact that the
transfer fees have been paid already, it will amount to a variation of the contract.


               On the issue of costs, both parties sought costs against the other on a higher scale.
There is no justification for awarding such.


Disposition
It is ordered that:-
      1. The application for specific performance be and is hereby granted.
      2. The 1st respondent be and is hereby ordered and directed to sign all the necessary
         papers and documents and attend to all the relevant offices to transfer into the
         applicant’s name an immovable property being an undivided 3.14690411% share
3
    R.H Christie- The law of contract in South Africa, 4th ed @page 605.
4
    See generally I. Maja- The law of contract in Zimbabwe @page 127
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       being share number 18 in certain piece of land situate in the district of Salisbury
       called stand 1282 Salisbury township measuring 892 square metres held under Deed
       of Transfer Number 2538/2017 within twenty-one (21) days of the service of this
       order.
   3. In the event that the 1st respondent fails to transfer the property within 21 days as
      specified herein, the Sheriff of the High Court be and is hereby authorised to sign all
      the necessary papers to effect transfer of the property specified in paragraph 2 of this
      order into applicant’s name.
   4. The 1st respondent shall pay costs of suit.


Moyo and Jera, Applicant’s Legal Practitioners
Chinogwenya and Zhangazha, 1st respondent’s Legal Practitioners