Leticia Takawira (In her capacity as Executrix in the Estate Late Patrick Hove) v Wheelforce Investments (Pvt) Ltd t/a MSN Land Developers

### Preamble
1
HB 156/21
HC 546/20
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LETICIA TAKAWIRA

(In her capacity as Executrix in the Estate

Late Patrick Hove)

Versus

WHEELFORCE INVESTMENTS (PVT) LTD

t/a MSN LAND DEVELOPERS

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 29 JUNE AND 26 AUGUST 2021

Civil Trial

B. Sengweni, for the plaintiff

L. Mguni, for the defendant

KABASA J: 	On 5th March 2020 the plaintiff issued summons against the defendant claiming the following: -

“1.	An order compelling the defendant to transfer the property being Stand Number 177 Harrisvale Bulawayo to the Estate of the Late Patrick Hove.

2.	The defendant to pay the costs of suit.”

The background to the claim is largely common cause.  It is this: -

On 25th June 2013 the late Patrick Hove, “Hove” entered into an Agreement of Sale with the defendant for the purchase of stand number 177 John Makunga Township of Lot 1 of Hundred Acre Lot John Makunga measuring 751 square metres, also known as 177 Harrisvale.  The purchase price was pegged at US$15 020 payable by an initial deposit of US$2 235 and thereafter 60 monthly instalments of US$304.  An interest at the rate of 15% was to accrue annually on monthly balances from the first of the month after the month of the signing of the Sale Agreement.  In the event of breach, the defendant was to give the buyer 30 days’ written notice to rectify such breach at the pain of, among other possible remedies, having the agreement cancelled.

Hove struggled to make the required payments and had managed to make erratic payments totalling US$3 652,00 before his death in March 2017.  In September 2018 the defendant invoked the provisions of clause 12 of the Agreement of Sale giving notice to Hove of the cancellation of the agreement and inviting him to pay all outstanding amounts within 30 days of the date of the notice failing which the contract would stand cancelled.

The notice was sent by registered mail and Hove’s widow, Leticia, collected the mail and subsequently sought legal advice.  The lawyers wrote to the defendant advising it of Hove’s demise and requesting an account of what was owing so as to act on the notice.  The defendant duly obliged in September of 2018.  No payment was however made until January 2020 when an amount of ZWD$11 368 was deposited into the defendant’s bank account.  The defendant returned the payment advising that the agreement had been cancelled as a result of the failure to rectify the breach.  The ZWD$3 652 was also deposited into the lawyers’ trust account.

Leticia, who was appointed executrix of her late husband’s estate in February 2019 subsequently issued summons seeking to compel the defendant to transfer the property to the estate of her late husband.

The defendant resisted this claim contending that Hove had last paid for the property in 2016 and the erratic payments meant that interest escalated with each month that no payment was made.  Notice to rectify the breach was duly given and when the breach was not rectified the Sale Agreement was cancelled.  Efforts to pay what was deemed to be the balance owing were only made after the defendant sought to refund the payments Hove had made towards the purchase price.  The full purchase price not having been paid there was no basis to demand transfer of the property.

Pleadings subsequently closed and the parties attended a Pre-Trial Conference where the following issues were referred for trial: -

1.	How much was the outstanding balance of the purchase price and interest in terms of the agreement between the parties, at the time Patrick Hove died?

2.	Whether or not the agreement between the parties was cancelled.  If it was cancelled, whether or not plaintiff was refunded monies it paid towards the purchase price.

3.	If it was not cancelled, whether or not plaintiff is entitled to transfer of property to its name without payment of the purchase price in terms of the agreement.

The plaintiff was the only witness who testified.  Her evidence was to the effect that when she received the notice calling on Hove to rectify the breach, Hove had died.  She took the notice to Hove’s lawyers and subsequently attended a meeting where the defendant asked for payment of the outstanding balance in United States dollars and offered to substitute her name for her husband’s, if she was so inclined.

A letter written by her lawyers to the defendant and dated 15 October 2018 wherein the lawyers alluded to the fact that Hove had died and requesting for a detailed statement of monies he had paid and the arrears accumulated so as to act on the notice was produced as Exhibit 1.

Following that meeting and receipt of the statement of account the witness transferred $11 368 into the defendant’s account. The transfer was however done almost a year after presentation of the detailed statement of account which the lawyers had requested for in order to act on the notice.  This amount was reversed into the plaintiff’s account and a second attempt to pay met with the same fate.  The $11 368 was ultimately not paid and the US$3 652 which her husband had paid was also refunded.

This witness acknowledged under cross-examination that: -

(1)	At the time summons was issued the defendant had refunded all the monies paid towards the purchase of stand 177 Harrisvale.

(2)	Clause 7 of the Agreement of Sale stipulated that transfer of the property was to be effected upon payment of the full purchase price.

(3)	The $11 368-00 which she paid was not the amount reflected on the statement availed to her lawyers following their request for such statement so as to pay whatever was outstanding.

(4)	The balance per the aforementioned statement was a capital sum of $24 246-20 and an accrued interest of $12 878-20 and these were the amounts which were due.

(5)	The payment of $11 368 was made in January 2020 after her appointment as executor on 15th February 2019.

(6) The payment fell short of the total amount owing

Whilst the witness was at pains to show that the notice from the defendant was delivered after her husband’s demise, she accepted that the full purchase price was never paid entitling the plaintiff to receive transfer of the property as per the contract.

Whether there was a demand for payment in United States dollars or not is not germane as the issue rests on whether full payment was made. This, to my mind, is dispositive of the matter.

The plaintiff in essence confirmed the facts which the defendant was to adduce evidence on. This being so because the onus was on the defendant to prove the outstanding balance, including interest as at the time of Hove’s demise. The outstanding balance of the purchase price and interest therefore became a non-issue after her confirmation of the amounts as reflected on the detailed account sent to her lawyers.

The issue regarding the refund of the amounts paid to the defendant equally became a non-issue with plaintiff’s confirmation that such was refunded. The plaintiff’s case was closed after Leticia’s evidence.

The defendant was left with one issue to grapple with.  This being whether the agreement between the parties was cancelled. Mr. Chando testified in his capacity as the Managing Director of the defendant.

There was an attempt to challenge the defendant’s representative’s capacity to so represent the defendant. Such challenge came during cross-examination of the witness. I found this to be a desperate attempt to save a doomed claim.

As Ms Mguni correctly articulated the defendant was being represented by Mr Chando as the Managing Director, even at the meeting the parties had at the lawyers’ offices.  The correspondences between the plaintiff’s lawyers and the defendant were signed by Mr. Chando who signed off as the Managing Director. He was therefore not on a frolic of his own and the demand for a company resolution to prove that he had authority to represent the defendant must be seen for what it is, a desperate attempt to stop the inevitable.

Ms. Mguni referred to In Re: Stand Five Four Nought (Pvt) Ltd HC 7596/14, a case which speaks to the fact that it is not always necessary to attach a company resolution as proof that it is the company litigating and not an unauthorised person.  (See also Zimbabwe Open University v Magaramombe & Anor HC 991/12). Each case must be looked at on its particular circumstances.

The absence of a company resolution does not therefore, in the circumstances of this case, cast doubt as to the witness’ authority to represent the company.

Mr Chando’s evidence was clear and easy to follow.  Like stated earlier, the plaintiff’s concessions lend credence to Mr Chando’s testimony.  I found nothing worth criticising about this witness who was also the only witness for the defendant.

From the evidence given, both oral and documentary, there is no dispute this was an instalment sale of land as envisaged by the Contractual Penalties Act, Chapter 8:04.  Section 8 thereof provides for the requisite notice to be given by the seller in the event of a breach.  The relevant part reads: -

“No seller under an instalment sale of land may, on account of any breach of contract by the purchaser –

…

Terminate the contract or

… unless he has given notice in terms of subsection (2) and the period of notice has expired without the breach being remedied, rectified or discontinued, as the case may be.”

In casu notice was given but was it valid in light of the fact that as at the time it was given Hove had died? Mr. Chando’s evidence was to the effect that when such notice was sent through registered post, they were not aware that Hove had died.  Such lack of knowledge does not change the fact that Hove was no longer able to meet with that notice. It is therefore a fact that notice could not be given to a non-existent person.  No notice could therefore be validly given to a dead person. The only person who the defendant could engage with was the executor of Hove’s Estate. (Estate Late Dziruni v Dhliwayo HB-124-10).

The executor of an estate has the legal standing to represent the estate of the deceased person.  In casu Leticia was appointed executrix dative on 15th February 2019.  She was not yet legally able to act before then but was able to as at 15th February 2019. On 26th October 2018 and 14th February 2019, the extent of the breach was communicated to her through her lawyers. Such communication was in direct response to a request from the lawyers who were seized with the notice and made it clear they wanted to act on such notice.  The breach was not rectified.  It was only in January of 2020 that an amount less than what was owed was deposited into the defendant’s account. By then the defendant had terminated the agreement.

The letters dated 15 October 2018, 7th January 2020 and 16th January 2020 and produced in evidence, spoke of the estate late Patrick Hove and the fact that an executor was seized with the notice and had undertaken to act on such notice.  It is therefore disingenuous to talk about Patrick Hove’s demise and contend that notice was never given because Hove was unable to meet with it as he had died, when the executor acknowledged the notice and was given ample time within which to rectify the breach, beyond the 30 days after the appointment of the executrix but chose not to rectify.

By acknowledging the notice and allowing the defendant to believe that the executor of the estate of the late Hove had met with the notice and was to rectify the breach, the defendant had no reason to question the authority of the executor and the plaintiff cannot be heard to argue that such notice is not valid, suggesting that a fresh notice be issued directed at the executrix.

I am persuaded by counsel for the defendant’s argument that the doctrine of estoppel applies in these circumstances.  The plaintiff is therefore estopped from challenging the fact that she as the executrix undertook to act on the notice but failed to rectify the breach.  (Econet Wireless (Pvt) Ltd v ZIMRA and Others HH 964-15). The purpose of the notice is to advise the defaulting party of the breach and to get them to rectify such breach at the pain of having the contract terminated should the breach be left unrectified after the lapse of the notice period.

The defendant was able to show that the breach was not rectified and as at the time the plaintiff sought to pay what was owed, the agreement had been cancelled. The plaintiff’s attempt to hide behind Hove’s demise does not avail her given the circumstances of this case.

Even if I am wrong in coming to this conclusion, the plaintiff’s claim still fails as it is not disputed that the full purchase price was never paid.  The $11 368 which Leticia deposited into the defendant’s account fell short of the total due.

The plaintiff’s claim is one of specific performance.  In Wolpert v Steenkemp 1917 AD 493 at 499 the court had this to say: -

“The court will not decree specific performance where the plaintiff has broken the contract or made a material default in performance on his part (Lawson, s472, p 522) A party is not entitled to specific performance where he has failed to show that he has performed in terms of the contract.”

In Grandwell Holdings (Private) Limited v Zimbabwe Mining Development Corporation and 2 Others SC 5-20, MATHONSI JA put it thus: -

“As to the remedy of specific performance in the law of contract it is accepted that it is aimed at upholding the contract and obtaining the performance of the terms of the contract as agreed.  Indeed, specific performance is the primary or default remedy for breach of contract and is usually claimable.

According to the learned author I Maja, The Law of Contract in Zimbabwe, 2015, The Maja Foundation, at p 126:

“The general rule under Roman Dutch Law is that an innocent party has a right – in every case of breach of contract – to a remedy of specific performance unless there are exceptional circumstances which justify refusal of an order for specific performance.”

The learned JA went further to say: -

“However, the right to claim specific performance is predicated on the concept that the party claiming it must show that he or she has performed all his or her obligations under the contract or is ready, willing and able to perform his or her side of the bargain.  Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance.”

In casu evidence showed that the full purchase price was not paid.  A clause in the contract specifically stated that transfer would be effected upon the payment of the full purchase price.  On what basis then can the plaintiff claim specific performance?

Counsel for the plaintiff sought to amend the plaintiff’s prayer in closing submissions. The suggested prayer was seemingly abandoning the prayer as per the pleadings to the following:

“Plaintiff prays for an amended order seeking the cancellation of the agreement of sale invalid”. I must say the prayer does not make much sense, more so as one of the issues referred to trial was to determine whether the sale agreement was cancelled.

The defendant did not have the benefit of these submissions at the time they filed theirs because plaintiff’s counsel failed to meet the timeline for submissions resulting in the defendant filing its closing submissions first.

The belated attempt by counsel for the plaintiff to seek to amend the prayer in his closing submissions does not save the situation.  One does not seek to amend pleadings in closing submissions.  In any event the prayer now sought is not what the defendant met with based on the pleadings.

The long and short of it is that the plaintiff is not entitled to specific performance and have property not paid for in full transferred to it.  Hove never paid the full purchase price and the executrix of his estate, despite being given a chance to do so, equally failed to pay the full purchase price.  That is the end of the matter.

The plaintiff failed to prove her claim and is therefore not entitled to the relief she seeks.

In the result, I make the following order:

The plaintiff’s claim be and is hereby dismissed, with costs.

Sengweni Legal Practice, plaintiff’s legal practitioners

Malinga and Mpofu, defendant’s legal practitioners.