F.c. Shutu V THE Minister OF Local Government AND National Housing

### Preamble
HH 56-05
CIV (A) 37/98
F.C. SHUTU Appellant
and
THE MINISTER OF LOCAL GOVERNMENT
---------


==============================

F.C. SHUTU
and
THE MINISTER OF LOCAL GOVERNMENT
AND NATIONAL HOUSING

HIGH COURT OF ZIMBABWE
KAMOCHA AND BERE JJ
HARARE, 8 March and 30 June 2005

Civil Appeal

J. Woods, for appellant
R. Sweto and S Ruzive, for respondent

BERE J: The brief facts of this case have been properly summarized by the respondent in its heads of argument filed on 3 March 2005 and are as follows: -

The appellant and the respondent entered into a written agreement in respect of property referred to as Number 4 Wellington Avenue, Belvedere, Harare (the property). The duration of the lease was for 12 months.

When the lease lapsed the respondent continued to receive rentals from the appellant hence there was a tacit relocation of the property whose terms were governed by those in the lapsed written lease agreement.

In 1994 the respondent, in line with government policy in force then made an offer to sell the property to the appellant as a sitting tenant on condition the appellant did not own any other residential property in an urban area in Zimbabwe.

By his minute of 18 February 1994 the appellant was honest enough to advise the respondent that he owned a stand which he wished to sell in order to qualify for the offer made. He estimated then that it would take him more than three years to complete construction of a dwelling house. The appellant wrote a further minute dated 22 July 1994 advising the respondent that he had disposed of his other property and now wanted to accept the offer. The respondent then requested for proof of disposal of the appellant's property.

As it turned out, the appellant had not sold his property as it was still registered in his name. The intended sale could therefore not proceed as the respondent realised the appellant could not qualify for the scheme in place.


The subsequent result was an application for the eviction of the appellant by the respondent which application was granted by the magistrate's court/. It is this judgement which has prompted the appeal before us.

Initially there were several issues which were raised by both parties for consideration but at the hearing two issues emerged for consideration and formed the backbone of this appeal. Those issues can be summarised as follows:a) whether or not a binding contract came into being between the appellant and the respondent, andb) whether the appellant's admitted ownership of a residential stand made him eligible for the scheme that was initiated by the respondent.

The first issue which the court has to grapple with is issue (a) - whether there was a binding contract between the appellant and the respondent.

There is no doubt that an offer was made to the appellant. It is common cause. Exhibit 2, which is on page 109 of the record of proceedings, is quite clear. The offer made concluded by stating as follows:

"(7) This offer is meant for persons without other residential properties in urban areas in Zimbabwe."

From the papers filed it is clear that the point of divergent occurs on whether or not the offer made by the respondent was accepted by the appellant. The appellant's filed heads of argument suggest the offer was accepted. The respondent takes the opposite view.

The purported acceptance is captured in exhibit 3 on page 110 of the record of proceedings and for the avoidance of doubt the relevant part of that exhibit reads as follows:

"I refer to your offer to me to purchase stand 4091 which I gladly accept. However, I wish to inform you that I do have a stand where I have been attempting to construct a house. I estimate that it will take me three years to complete construction.

In order to qualify to purchase stand 4091 (so that I continue to have a place to stay) I intend to sell the stand that I currently own. Your sympathetic considerations of my case would be appreciated."


There is no doubt in the court's view that exhibit three would not qualify to be an acceptance of the offer made. Authorities are clear on the form an acceptance must take in order for it to create a binding contract. As rightly pointed out by the respondent's counsel in its heads of argument, the acceptance must be clear and unequivocal. R H CHRISTIE, in his book, The Law of Contract in South Africa, 3rd Edition, page 33 says "... the acceptance of the offer (or for that matter the offer itself) must be unequivocal, i.e. positive and unambiguous."

The court takes the view that exhibit three did not lead to a binding contract but was soliciting for further negotiations. It was contemplated by the appellant that further negotiations would continue. At that stage there was no agreement between the parties. If anything it was incomplete.

But the matter does not end with exhibit 3. It is clear that the respondent was willing to continue negotiations with the appellant as evidenced by exhibit 5 which was a response to exhibit 4 by the respondent. If the respondent's communication or negotiation had ended with exhibit 3 the matter would have ended there. By exhibit 5 the respondent clearly indicated it was willing to enter into a contract with the appellant as long as the appellant was going to furnish the respondent with proof of the disposal of his incomplete residential stand. The appellant failed to do so and destroyed his prospects by dispatching to the respondent exhibit 6 which set out new conditions which the respondent was not interested in pursuing. The result was a demand by the respondent that the appellant vacates the property.

It is the court's finding that there was never a contract between the appellant and the respondent as the offer made by the respondent was never accepted by the appellant. The appellant made counter proposals which were ambiguous. Such counter proposals as captured in exhibit 6 destroyed the original offer made.

The next issue which the court has to consider is whether or not the appellant's ownership of another residential property in the form of an incomplete residential structure justified the appellant's disqualification from entering into a contract with the respondent.

It has been suggested by the appellant's counsel that in the context of this agreement the meaning to be given to the "residential property" must be "a property one can reside, such as a house or flat and that the appellant's partially constructed house did not qualify as such.

The respondent's view as captured in its counsel's heads of argument is that "residential property" must be interpreted to mean any property that has been demarcated for residential purposes in terms of the relevant town planning by-laws. The argument was further developed by borrowing the definition of the Shorter Oxford English Dictionary 3rd Edition 1966 which defines 'residential' as "2 connected with, pertaining or relating to residence."

It is the court's well considered view that whatever definition the court has to accept, it must not lead to absurdity. It must be consistent with what the respondent sought to achieve by offering its properties to sitting tenants or persons who did not have other 'residential properties' in the urban areas of Zimbabwe.

It is the court's position that the definition sought by the appellant of the term 'residential property' is too restrictive and that it could not have been the intention of the respondent to sell this particular property to the appellant who in fact had another property. If the interpretation suggested by the appellant is accepted, it would mean for example, a person with ten undeveloped residential stands in an urban area or urban areas of this country would queue for such a benefit like the one extended to the appellant in this case. That would be absurd.

In any event, it would seem that in this case the appellant has realised that he would not have qualified to purchase the property offered as long as he owned his stand. This explains why he made an arbative attempt to dispose of his incomplete stand. The appellant realised that his ownership of his other property was always going to be obstructive to his quest to purchase the property on offer.

Consequently it is the court's decision that this appeal has no merit and it must be dismissed. It is so dismissed with costs.


HH 56-05

CIV (A) 37/98
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