Mary Mhlanga v Hawflight Enterprises (Pvt) Ltd

### Preamble
1
HB 48/22
HCA 40/20
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MARY MHLANGA

Versus

HAWFLIGHT ENTERPRISES (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

TAKUVA & DUBE-BANDA JJ

BULAWAYO FEBRUARY 2022 & 24 FEBRUARY 2022

Civil appeal

V. Majoko for the appellant

S. Siziba for the respondent

DUBE-BANDA J: This is an appeal against the whole judgment of the Magistrates’ Court sitting in Bulawayo, dated 13 August 2020. The court a quo granted the following order: cancellation of the agreement; the deposits and part payment made by defendant to be forfeited by plaintiff as rentals; ejectment of defendant and all those claiming occupation through them (sic) from stand No. 70 Emthunzini Township, Bulawayo; and costs of suit.

The facts

The facts giving rise to this appeal are that on the 19th April 2011, the parties entered into a written memorandum of agreement. Respondent sold to the appellant stand number 70 Emthunzini Township, Bulawayo (house). The agreed purchase price was US$48 960.00 which was to be paid with a deposit of US$1 400.00 upon signing of the agreement and the balance in monthly instalments of US$357.20, which instalment was later reduced to US$290.00. Respondent sued out a summons in the court a quo and pleaded that appellant defaulted in monthly instalments, thus breaching the agreement and sought an order (a) cancelling the agreement of sale; (b) the deposits and part payments made by defendant be forfeited as rentals; (c) ejectment of appellant and all those claiming the right of occupation through her from the house; and costs of suit.

In her plea appellant contended that respondent insisted on payment in United States dollars and refused to accept payment by way of RTGS, ecocash and bond notes. Appellant averred that respondent “literally forced” her to be in breach of the agreement by refusing to accept payment. The trial court was urged to invoke the provisions of section 9 of the Contractual penalties Act [Chapter 8:04] and dismiss the claim. Appellant filed a counter claim and nothing turns on it in this appeal and no further reference shall be made to it.

The court a quo held that before it was a case of breach of contract of cession. It noted that it was clear from the agreement that respondent was not the holder of real rights in the property. The court further noted that the agreement states that the seller is a lease holder, which shows that respondent had no real rights in the property. Relying on the case of Khumalo v Mandeya & Anor. 2008 (2) ZLR 203 (S) the trial court held that in spite of the language used by the parties in the agreement, what was in effect sold and purchased were rights and interests in the land, not the dominium in the land. The court granted the claim in convention and dismissed the claim in reconvention.

Grounds of appeal and the relief sought

Aggrieved by the judgment of the court a quo appellant noted an appeal to this court. The appellant initially raised three grounds of appeal. At the commencement of the appeal hearing, Mr Majoko for the appellant moved for the amendment of the notice of appeal by deletion of three grounds of appeal and the introduction of the fourth ground. Advocate Siziba for the respondent did not oppose the amendments. We, accordingly, granted the amendments by consent of the parties. Resultantly, there remained one ground of appeal. It is this:

The court a quo erred and misdirected itself in finding for the respondent on the grounds that the agreement entered into between the parties was an agreement of cession when the respondent had pleaded a contract of sale and led evidence based on an agreement of sale and when no amendment had been sought to the summons and particulars of claim to allege a cession.

The relief sought on appeal was, firstly, that the appeal succeeds with costs. Secondly, that the judgment of the court a quo be wholly set aside and substituted with the following: (a) plaintiff’s claim be and is hereby dismissed with costs; (b) defendant’s counter claim be and is hereby upheld; and (c) plaintiff be and is hereby ordered to pay the sum of $13 000 to the defendant. Mr. Majoko moved for the deletion of para (b) that “defendant’s counter claim be and is hereby upheld.” It was so deleted.

The parties’ submissions

Counsel for the appellant made the following submissions. That the court a quo erred in finding for the respondent on a ground that was not pleaded and a ground in respect of which no evidence had been adduced. No amendment of the pleadings was sought nor granted. Mr Majoko argued that the respondent pleaded a case that the parties entered into an agreement of sale. Counsel directed the attention of this court to the summons, particulars of claim and to the prayer where reference was made to the “agreement of sale.” This court was further directed to parts of the evidence where there was reference to an agreement of sale. Counsel argued that respondent for the first time in its written closing submissions departed from its pleadings and started to refer to a cession.

It is argued that respondent must as a rule of pleading stand or fall by its summons. Not only should respondent stand by its summons, it must stand by the agreement of sale it crafted and by the evidence led on its behalf in court a quo. It is contended that in everything respondent placed before the court, in writing and in oral evidence its case was that it sold land to the appellant. It is contended that respondent described itself as a seller of land, and if it sold land in instalments then it cannot avoid the provisions of the Contractual Penalties Act. It was bound by the Contractual Penalties Act.

Mr. Majoko further argued that the court a quo started on track by referring to the agreement as an agreement of sale, and later changed and referred to it as a cession. Counsel argued that it is trite that a plaintiff’s case stands or falls on the pleaded case. The court a quo is criticised for finding that the rights of the parties are similar to the rights of the parties who are purchasing properties from local authorities under a suspensive agreement of sale. It is argued that court a quo misdirected itself in finding that what was in effect sold and purchased were rights and interests in the land, not the dominium in the land, when the pleaded case is that what was sold is land.

Mr Siziba made contrary submissions. Counsel argued that notwithstanding that in its pleadings respondent sought to cancel an agreement of sale. However the court applied the law to the common cause facts and the evidence, which are said to be that respondent is not the registered owner of the property and has no title to the property. Counsel contended that on the facts and the evidence it was not an agreement of sale but of cession, and the court a quo could not ignore the common cause facts supported by the evidence. Counsel argued that appellant is trying to make up a new case on appeal which is said to be impermissible. Counsel argued respondent not being the owner of the property, it had no real rights but only personal rights over the property which can only be ceded to the appellant. Counsel cited Khumalo v Mandeya SC 23/08 in support of its argument.

Analysis and application of the law to the facts

It is not in dispute that respondent pleaded an agreement of sale. There is nowhere in the pleading where respondent refers to a cession. Even in the prayer respondent seeks cancellation of an agreement of sale. The evidence adduced in the court a quo speaks to a cession. The preamble to the agreement itself says “whereas the seller is the leasehold owner of the under mentioned immovable property.” This preamble clearly shows that respondent is not the registered title holder of the property. In his evidence Martin Moyo testified that respondent is not the registered owner of the property but a lease holder. It is then common cause that respondent is a lease holder of the property.

Appellant does not dispute that the respondent is a lease holder of the property. It has no title deeds in respect of the property. Appellant’s contention is that this issue was not pleaded. Appellant argued that respondent pleaded an agreement of sale. Cession was not pleaded and no amendment of the pleadings was sought nor granted. I agree. Appellant further argues that no evidence had been adduced to show that it was a cession. I disagree. Evidence was adduced to show that respondent was a lease holder of the property, first the preamble of the agreement itself and the evidence of Martin Moyo. The fact that Martin Moyo testified that respondent had purchased the property from the owner is inconsequential. I say so because at the time of the agreement respondent had no real rights in the property. All it had are personal rights therein. Respondent could not sell that which it did not have it could only sell rights and interests in the property because that is what it had at the material time.

The question is what is the effect of failure to plead cession in this matter? Mr Majoko argued that the court a quo should have granted absolution from the instance on the basis that at the close of respondent’s case no agreement of sale was proved. The contention is that respondent was permitted to prove a case it did not plead. According to Mr Majoko such is impermissible. In Silonda v Nkomo SC 6 / 2022 the court said thus:

I am satisfied that the court a quo’s finding that the respondent did plead unjust enrichment in his counterclaim is unassailable.

But, even if it had not been so pleaded, such a failure would, as was noted en passant by the court a quo, have been cured by the evidence led at the trial. This finding accords with both judicial precedent and the academic works of reputable legal writers.

In Mtuda v Ndudzo 2000 (1) ZLR 710 (H) at 719B- F, GARWE J, as he then was, held that where an issue is not raised in the pleadings but has been identified for determination at a pre-trial conference and fully canvased at the trial, even if an amendment is not moved, a court is entitled to adjudicate on it. This effectively means that a defective pleading will be cured by evidence.

In casu it is not clear what the parties agreed at the pre-trial conference as the pre-trial conference minute is not part of the appeal record. Notwithstanding the absence of the pre-trial conference minute the court a quo looked at the facts and the evidence and identified the following issues as issues for determination: 1. whether the Contractual Penalties Act applies to this case; 2. whether the parties unilaterally variation of the monthly instalment amounts to a manner (sic) of plaintiff’s rights to cancellation of the agreement; and 3. Lastly whether defendant’s counter claim has merit. It is clear that the court a quo noted that it was not dealing with an agreement of sale but a cession of rights and interests in a property. The issues for determination as identified by the court a quo and the evidence alluded to above cure the failure to plead cession.

Mr. Siziba argued that the court a quo applied the law to the common cause facts and the evidence, which are that respondent is not the registered owner of the property and has no real rights in the property. All it has are personal rights. It can therefore not sell what it does not have. I agree. See: Khumalo v Mandeya SC 23/2008. No matter the wording of the agreement, the point remains that respondent could not sell what it did not have at the time. It could not sell real rights, but could only sell personal rights and interests in the property. Therefore the finding of the court a quo that the Contractual Penalties Act did not apply in this case is unassailable.

The ground of appeal that the court a quo erred and misdirected itself in finding for the respondent on the grounds that the agreement entered into between the parties was an agreement of cession when the respondent had pleaded a contract of sale and led evidence based on an agreement of sale and when no amendment had been sought to the summons and particulars of claim to allege a cession has no merit and cannot succeed.

Regarding the issue of costs, there is no way the appellant can avoid meeting the costs having prosecuted an appeal devoid of merit. The costs follow the cause.

In the result, it is ordered as follows:

The appeal be and is hereby dismissed with costs.

Messrs Majoko and Majoko appellant’s legal practitioners

Maseko Law Chambers respondent’s legal practitioners