Munyaradzi Mushayi v Municipality of Chinhoyi and 2 Ors

### Preamble
1
HCC 85/24
HCCC 96/24
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MUNYARADZI MUSHAYI

Versus

MUNICIPALITY OF CHINHOYI

And

DIRECTOR OF HOUSING – MUNICIPALITY OF CHINHOYI

And

ALEXANDER NYARIYA

HIGH COURT CHINHOYI
BACHI MZAWAZI J
CHINHOYI, 31 October 2024 – 18 November 2024

Civil Opposed Matter

K. Tambanewenyu, for the applicant

M. Mutsvairo, for the 1st & 2nd respondents

No appearance for the 3rd respondent

BACHI MZAWAZI J:

Brief Facts

[1] On the17th of March 1997 applicant entered into a lease agreement over property stand number 3608 Mzari Extension, Chinhoyi with the first respondent.

[2] An agreement of sale of the same property was transacted the following year on the 13th of March 1998 after the payment of an agreed deposit.

[3] Prior to the conclusion of the sale agreement a building plan for the main structure was submitted to and approved by the first and second respondents in 1997.

[4] A cottage which was part of the main building plan was also constructed on the property.

[5] What is evident from the record is that this was initially an instalment sale of land.

[6] However, what remained unclear even after oral evidence had been led is whether the purchase price was then paid in full or not.

[7] The applicant claims that the property was paid for in full but given the lapse of time he failed to produce receipts to support that averment.

[8] On the other hand the first and second respondents in their opposing papers allege that there is still an outstanding balance as the purchase price was not paid in full.

[9] As stated in paragraph 15 of the applicant’s founding affidavit, the applicant in September 2020, upon paying a visit to the first respondent’s offices for the purposes of constructing the main building, learnt that the property in question has been sold to the third respondent. The reason being that the first and second respondents had cancelled the agreement of sale and repossessed the land.

[10] The cancellation was done through a letter dated 31 October 2006, purportedly served at the first and second respondents’ post office box address.

[11] The said letter served as notice of cancellation and ejectment citing breach of clauses 10 and 16 of the parties’ agreement of sale which required the applicant to put up a structure of the main house within timeframes specified therein.

[12] The parties are all privy to the provisions of the agreement of sale in particular clause 9 that explicitly states an outside building is not considered as the main building.

[13] Further, that, clauses 10 and 16 speak to the structures required to be completed by the specified period and steps to be taken when the structures have not yet been completed.

[14] Clause 15 is the breach, penalty and termination clause empowering the first respondent to cancel the agreement upon the breaches mentioned above and order ejectment.

[15] The parties agreed that the domicilium standi for service of legal documents and processes pertaining to the property shall be at the Chinhoyi Municipal Offices in their clause 18 of the agreement of sale.

[16] After appealing against the decision of the first respondents from September 2020 through the domestic channels and several other yearly follow-ups, the applicant’s appeal was eventually turned down in 2024 by the second respondent. This has given rise to these court proceedings.

Applicant’s Case

[17] Applicant submits that as the purchaser of property stand 3608 Mzari Extension, Chinhoyi, he has satisfied some of the requirements for approaching this court in terms of s14 of the High Court Act [Chapter 7:06], in that he has a direct and substantial interest in the subject matter of this application.

[18] It is her further argument that, the first and second respondents’ administrative actions failed the fairness mark as the notice of cancellation and repossession was never served upon him but at a feint post office address box.

[19] By so doing, the applicant alleges that the first and second respondent violated his rights as embodied in s68 of the Constitution.

[20] In that regard, the applicant seeks a declaratory relief for the nullification of the sale between the first and third respondents, a declaration that they are the rightful owner of the property in question and consequential relief for the reverse of transfer into their names and cost of suit at a higher scale.

The 1st and 2nd Respondents’ Case

[21] The third respondent has not filed opposing papers. It also alleged that since his purported purchase of the same property in 2020 he has neither set foot on the said property nor pursued his rights if any.

[22] However, the first and second respondents claim that the applicant no longer has any direct and substantial interest in the property in that, firstly, they breached the contractual terms in relation to the construction of the main house within a given period. According to the respondents, a cottage is an outside building and does not form part of the main building as clearly enunciated in clause 9 of the agreement of sale.

[23] Secondly, that because of that breach the agreement of sale was cancelled and the land repossessed. As such, they no longer have any right to invoke and be protected by the provisions of s14 of the High Court Act.

[24] As regards, notice, Mr Mutsvairo for the respondents argues that, the parties agreed to an address for service and service was done at the address so agreed. He submits that the doctrine of sanctity of contracts should prevail. In addition, citing a plethora of cases, he contends that the court’s duty is restricted to interpreting contracts not rewrite them for the parties.

The issues:

Whether or not the applicant breached the terms of the agreement of sale?

Whether or not the applicant was served with the notice to repossess?

Whether or not the applicant is entitled to the relief claimed?

Evaluation

Whether or not the applicant breached the terms of the agreement of sale?

[25] It is apparent that through the applicant’s own admission he had not constructed the main house as of September 2020, 23 years down the line, when he became aware of the adverse developments over the property he had allegedly purchased.  This a clear breach of both clauses 10 and 16 of the agreement of sale.

[26] I am not persuaded by the argument put forward by Mr Tambanewenyu that a cottage fell within the required buildings to be erected. A cottage though as per council standard procedure is part of the main plan it is an outbuilding.

[27] The Justice Legal Dictionary and the Britannica Dictionary both define an outbuilding as that which is separate and not connected to the main building. It is described as a free-standing structure located on the same property as a primary building such as a house, farmstead or commercial facility.

[28] In other jurisdictions, notably, an outer building may form part of the main house. In this case a literal interpretation of clause 9 of the parties’ agreement of sale excludes a cottage from being part of the main structure. This is amplified by clause sixteen that apportions a value of the main house as the required and recognised structure for the purposes of clause 9.

[29] The applicant was therefore in breach of the agreement of sale. He was aware of the terms of the contract he entered into.  On the face of it, following the doctrine of freedom of contracts, pacta sunt servanda, he is bound by such terms. See, Book v Davison 1988 (1) ZLR 365 (S).

[30] Patel J A (as she then was said) in the case of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S) at 403 C-D

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of party.”

[31] In Roffey v Catherall, Edwards 8 Goudre (Pty) Ltd 1977 (4) SA 494 (N) at 504-505 E, it was enunciated that;

“If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract.”

[32] The question is if these administrative actions were within the confines of the agreement of sale and the doctrine of sanctity of contracts, was the applicant given notice of the said intended or actions actually taken?

Whether or not the applicant was served with a notice to repossess?

[33] What I perceive from the documents placed before me and the arguments of the parties, is that the agreement of sale between the applicant and the first two respondents is an instalment sale. The document itself clearly mentions the payment of a deposit and ten-year instalments.

[34] It is neither here nor there that the amount was paid in full or not. As already noted, the applicant though claiming payment in full did not provide proof to that effect.

[35] At the same time, the respondents counsel, insists, buttressing his opposing affidavit that the full purchase price was not paid.

[36] That be is it may, the issue of outstanding purchase price is not the reason why the agreement of sale was cancelled. The letter on page 33 of the record, written on the 31st of October, 2006 states that the breach arose out of failure to comply with clauses 10 and 16, the non erection of the agreed building main structures. It does not state breach as a result of the non-payment of the full purchase price.

[37] That being the case, the first two respondents as an administrative authority, are enjoined to act lawfully, reasonably and in a fair manner in the exercise of their administrative actions. What is a ‘fair manner’ is described as, giving adequate notice to those whose rights and interests will be affected by their administrative actions.

[38] It cannot be gainsaid that the letter of the 31st of October 2006, was not a letter notifying the applicant of an intended action to cancel and repossess. It was a letter notifying the applicants of an action or termination of their agreement that had already been unilaterally done.  The administrative actions of the two first respondents fell foul to both the provisions of the Administrative Justice Act [Chapter 10:28], and the Contractual Penalties Act [Chapter 8:04], which governed their contract.

[39] Section 8 of the Contractual Penalties Act provides:

8 Restriction of sellers’ rights

(1)No seller under an instalment sale of land may, on account of any breach of contract by the purchaser—
(a)…; or
(b)terminate the contract;
 or(c)…;

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

(2)Notice for the purposes of subsection (1) shall—
(a)be given in writing to the purchaser; and
(b)advise the purchaser of the breach concerned; and
(c)call upon the purchaser to remedy, rectify or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than—

(i)the period fixed for the purpose in the instalment sale of the land concerned;

or (ii)thirty days;

whichever is the longer period.

[40] Section 68 of the Constitution, Amendment Act, No20 of 2013, finds expression in its enabling Act, the Administrative Justice Act [Chapter 10:28].

[41] Section 3 of the Act states;

An administrative authority which has the responsibility or power to take any administrative action

which may affect the rights, interests or legitimate expectations of any person shall—

act lawfully, reasonably and in a fair manner; and

…………………………

Section 3

(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1)—

(a) adequate notice of the nature and purpose of the proposed action; and

(b) a reasonable opportunity to make adequate representations; and

(c) adequate notice of any right of review or appeal where applicable

[42] First and foremost, there was no notice at all which was given to the applicants, notifying them of their breach and then calling upon them to rectify the breach and the intention to cancel and repossess.

[43] Even if we venture to the letter which the respondents claimed to have served on the applicants domicilium citandi notifying them of the second process of the actual termination of the contract of sale, was there service of the said letter.

[44] It again cannot be overemphasised that pursuant to the doctrine of freedom of contract, a party to a contract is bound by the address of service they willingly and voluntarily with open eyes elected.

[45] Domicilium citandi et executandi is a Latin term that means "house for being summoned and executed upon." Contractual parties are free to elect an address where they will receive all legal notices and processes.

[46] In terms of the developed jurisprudence the address does not necessarily mean the address of domicile. It can be a business, home or in the modern day an email address.  However, in Roman law where the principle originated, domicile address was the place were a place resided for legal purpose.

[47] In the case of Amcoal Collieries Ltd v Trust , at 5J-6 as cited by Justice MATANDA –MOYO in the case of Phili v Gweru Inv. Ltd. & Ors, the Supreme Court of Appeal stated:

“It is a matter of frequent occurrence that a domiciluim citandi et executandi is chosen in a contract by one or more of the parties to it. Translated, this expression means a home for the purpose of serving summons and levying execution (if a man chooses domicilium citandi the domicilium he chooses is taken to be his place of abode. See Pretoria Hypotheck Maatschappi v Groenewald 1915 TPD 170). It is a well-established practice (which is recognised by r 4 (10 (a) (iv) of the Uniform Rules of Court) that, if a defendant has chosen a domicilium citandi, service of process at such place will be good even though it be a vacant piece of ground, or the defendant is known to be resident abroad or has abandoned the property or cannot be found. (Hebstein and Van Winsen The Civil Practice of the Superior Court of South Africa 3rd ed at 210. See Muller v Mulbarton Gardens (Pty) Ltd 1972 (1) SA 328 (W) at 331 H-333A, Lonyan (Pvt) Ltd v Solarsh Tea and Coffee (Pty) Ltd 1984 (3) SA 834 (W) at 847 D-F)”.

[48] It is evident that the Roman law position was all embracing. It emphasised on service on the residential address. This in a way ensured that the intended recipient has notice of the service. The whole purpose of service is to inform the other party of what’s to come their way and prepare them.

[49] On the other hand the new developments emphasise the doctrines of freedom to contract and sanctity of contracts as central to the principle of domicilium citandi. In that regard, the law says you have no excuse but are bound to the address you chose for your service even if you did not actually receive service. See, Muzanenhamo v Fishtown Inv. (Pvt) Ltd. & Others.

[50] In Tendayi Washaya & Anor v Makebreak Trading (Pvt) Ltd, yet another Supreme Court decision, it was highlighted that choosing a domicilium standi has specific legal implications such as:

The party who elected the domicilium citandi should be ready to receive any legal notice that is delivered to that address;

If a change in address occurs, a party should notify the other contracting party, preferably in writing, of such a change in address;

Delivery of a legal notice or document to the domicilium citandi chosen by a party to a contract will be considered sufficient for the purposes of legal action and such part of legal action and such party would be deemed to have received the legal notice or document.

[51] Clause 18 of the parties contract of sale stipulated the agreed domicillium standi as the Chinhoyi Municipality offices. The letter dated the 31st of December 2006, bearing the first respondent’s logo has the first respondent post office box as the address upon which service was effected.

[52] There is a distinction between a post office box address as an address for service and offices. The returns of services are even more distinct. Process served in the offices bears a stamp representing acknowledgment of service.

[53] A post office box (commonly abbreviated as P.O. box, or also known as a postal box) is a uniquely addressable lockable box located on the premises of a post office.

[54] Post office boxes are usually mounted in a wall of the post office, either an external wall or a wall in a lobby, so that staff on the inside may deposit mail in a box, while a key holder in the lobby or on the outside of the building may open their box to retrieve the mail.

[55] Interestingly, the applicant’s domicilium standi, absurd as it may be, most probably convenient at the time or out of naivety and ignorance was the Municipality of Chinhoyi offices not the Municipality of Chinhoyi post office box. So, the respondents did not serve at the agreed domicilium standi. The service was defective. There was thus no service of the said letter of cancellation and repossession.

Whether or not the applicant is entitled to the relief claimed?

[56] A declaratory relief is granted at the discretion of the court. The court has to be satisfied that the applicant has an existing, future or contingent right or obligation to protect. Since the respondents’ administrative acts were unlawful nothing flows from them. The failure by the respondents to give notice of intention to cancel and place the applicants in mora invalidated their subsequent act of cancellation and repossession. It means the rights of the applicants in the property are not terminated. They therefore have a direct and substantial interest in the matter.

[57] The point was made in Johnsen v AFC 1995 (1) 65 (H) 72 E-F that:

“The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an ‘interested person’, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction: see Exp Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129 F-G; 1994 (1) SA 370 (ZS) at 376 G-H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) and the cases cited.”

Disposition

[58] I have already made a finding that the applicants did breach the terms of their agreement. The cause of the breach still stands. However, at the same time the first two respondents did not follow due process when cancelling the agreement of sale and the subsequent repossession. This means the agreement of sale is still in existence even in the wake of the non-compliance with some of the terms.

[59] Once, life has once again been breathed into the first agreement the second agreement of sale over the same property cannot survive. It is declared null and void. This entails that the status quo ante should prevail. The names of the applicant should be restored on the original documents of the property house number 3608 Mzari Extension Chinhoyi.

[60] However, the court cannot declare ownership of the property to the applicant. Applicant is still to comply with the conditions set out in the agreement of sale.

[61] In addition, the issues of payment of or not of the full purchase price is still to be ironed out between the applicant and the first two respondents. The same applies to transfer. There are certain procedures that need to be satisfied with the first and second respondents’ office for transfer to pass to applicant. The punitive costs are not justified in the circumstances.

Accordingly, it is ordered that:

The purported cancellation of the agreement of sale over property stand house number 3608, Mzari between the applicant and the first respondent is of no force and consequence. It is declared null and void.

The agreement of sale between the applicant and the first respondent over property stand house number 3608, Mzari Extension Chinhoyi is restored.

The agreement of sale between the first respondent and the third respondent over property stand house number 3608, Mzari is hereby declared null and void and cancelled.

Costs follow suit.

Chinamatira Jonasi Nyambirai & Tambanewenyu Legal Practitioners, the applicant’s legal practitioners.

Mushonga, Mutsvairo & Associates, the 1st and 2nd respondents’ legal practitioners.