Hayes Construction (Private) Limited v Amos Chiduku and Isaac Chiduku and Registrar of Deeds

### Preamble
1
HH 138-18
HC 1532/18
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HAYES CONSTRUCTION (PRIVATE) LTD

versus

AMOS CHIDUKU

and

ISAAC CHIDUKU

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 9 and 14 March 2018

URGENT CHAMBER APPLICATION

A Gumbo, for the applicant

MG Hare, for the 1st and 2nd respondents

TAGU J: The applicant filed this urgent chamber application to interdict the first and second respondent from entering into any property development agreement or any type of agreement involving a certain piece of land known as Swallowfieds of Johannesburg in the District of Hartley measuring 606,725 square meters held under Deed of Transfer 5257/99. Applicants further seek that a caveat be placed on the property to forestall any transfer or encumbrance by the respondents or any third party. The provisional order being sought reads as follows:-

TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms;

That the 1st and 2nd Respondent be and are hereby interdicted from entering into any contract with a third party, developing, disposing or otherwise alienating the piece of land known as Swallowfields of Johannesburg in the District of Hartley held under Deed of Transfer 5257/99

The 1st and 2nd Respondents shall bear the costs of suit on the attorney –client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief;

That the 3rd Respondent is hereby ordered to place a caveat on the property mentioned above barring any transfer or encumbrance of the property by the 1st and 2nd Respondent or any third party.

That such caveat shall only be uplifted and removed with the consent of the Applicants.

SERVICE OF PROVISIONAL ORDER

The Applicants legal practitioners shall serve this order upon the Respondents.

The brief facts of the matter are that on the 23rd of July 2015 the applicant and the first and second respondents entered into a partnership contract for the purpose of developing a certain piece of land known as Swallowfields of Johannesburg in the District of Hartley measuring 604,725 square meters held under Deed of Transfer 5257/99. The first and second respondents wanted to develop the land into residential stands and had no financial muscle to develop. The first and second respondents approached the applicant which indicated in a signed contract that it had the financial resources and capacity to develop the piece of land. The applicant actually gave the first and second respondents a roadmap as to how it was going to undertake the developments. In particular the applicant was to construct a 1.7 kilometers dust road subject to specifications by the Norton Town Council and road drawings provided by the first and second respondents. The applicant only did preliminary works and was halted by regulatory impediments which included the absence of an updated road drawings for the road and also its discovery that the road to be constructed was over 2 kilometers as opposed to the 1.7 kilometers that had been agreed upon.

On the 8th of January 2018 the applicant wrote to the first and second respondents advising them that work on the project would start with effect from the 17th January 2018. The respondents were not pleased with the slow pace of developments from the 23rd of July 2015 up to the 11th of January 2018 when it put the applicants in mora. The respondents wrote a letter dated the 11th January 2018 advising the applicants that they were in breach of clause 2 of the agreement in that the applicant had failed to construct the 1.7 km phase of the project as per the applicant’s roadmap which included time frames. The respondents advised the applicant in that letter that they had resolved to terminate the agreement unless the applicant provided proof of its financial capacity to complete the 1.7km road within seventy-two (72) hours from the date of the letter. By the 24th of January 2018 the applicant had not responded to the letter dated the 11th January 2018. On the 24th January 2018 the respondents wrote another letter to the applicant advising the applicant that they had cancelled the contract. The letter written by the respondents’ legal practitioners read as follows-

RE: PROPERTY DEVELOPMENT CONTRACT

The above matter and our letter dated 11th January 2018 refers. We note that you have failed, refused or neglected to provide us with a response to our letter. We also are advised by our client that you have failed to get back to site but instead you have been hunting for financiers in the market. This is adequate proof that you do not have capacity to fund your duties and responsibilities in terms of the agreement between yourself and our clients.

We are therefore instructed to advise you of the cancellation of the contract. Our client shall pay you the value of works you had completed. We therefore hereby request an itemized bill for our client’s consideration.”

The applicant’s legal practitioners responded on behalf of the applicant on the 2nd of February 2018 in a letter couched as follows-

RE: PROPERTY DEVELOPMENT CONTRACT

The above matter refers and your letter dated 24 January 2018 refers. We are hereby advised by our client to object the cancellation of the above stated contract.

The referred contract is very clear on procedure to be followed in the event that a dispute ensues between the parties and as such neither party can move to cancel without following due process.

Our client is willing to discuss formally with your client any sticking issues arising from the said contract.

Having received no joy from the respondents the applicant wrote another letter dated the 9th of February 2018 in which it advised the respondents that there were material disputes of facts and that the applicant was intending to take through the matter to arbitration and as such will be advising the respondents of their proposed arbitrator as soon as they obtained a response on the above matter. After failing to get any response from the respondents the applicant then filed this urgent chamber application on the 16th February 2018 for an interdict as well as seeking for a caveat to be placed on the property to forestall any transfer or encumbrance by the respondents or any third party.

At the hearing of this matter the respondents raised two points in limine. The first point in limine was that the affidavit of Raylton Tinashe Dhlamini was not properly before the court because the signature appended at the end of the affidavit was not that of the purported deponent. The signatures known to the respondents on page 13 and 22 were different from the one at page 12. The signatures were different in that on one document it reflected Dhamini while on the other documents it reflected Dhlamini. The respondents submitted that there was no proper application before the courts.

The deponent to the founding affidavit maintained that those were his signatures. The court indeed had sight of the signatures complained of. It is indeed correct by mere sight that the signatures are different as observed by the respondents’ counsel.

A similar issue arose for determination in the case of Hwara v Mudimu & Another (X REF DRBY 226/13) [2015] ZWBHC 33 (18 FEBRUARY 2015) Case No. HC 490/14. In that case MUTEMA J at page 3 of the cyclostyled judgment had this to say-

“…..There is no law which stipulates that a person’s signature must be consistent or be the same 	on each and every document that he/she appends a signature to. Prior to 	raising this point first 	respondent had never seen applicant sign on any document. No 	expert evidence by a questioned 	document examiner was furnished to buttress the contention that the signature is not that of 	applicant. The allegation is just first respondent’s ipssima verba. The affidavit was deposed 	to before a legal practitioner who is a commissioner of oaths. The claim therefore is without merit 	and is hereby dismissed as mere attempt at sophistry.”

In casu the respondents had alluded to the fact that they had seen or were aware of the applicant’s prior signatures. Be that as it may I what to associate myself with the view that there is no law which stipulates that a person’s signature must be consistent or be the same on each and every document that a person signs. Besides the differences in signatures in this case is so small that it would not make anyone to doubt that it is one and the same person who signed. For this reason I will dismiss the first point inlime.

The second point in limine was that this matter is not urgent. The submission by the respondents was that the urgency of the matter had not been demonstrated in the certificate of urgency. The court was referred to the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) at 193 where it was said –

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter 	is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which 	stems 	from a deliberate or careless abstention from action until the dead-line draws near is not the type 	of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the 	supporting affidavit must always contain an explanation of the non-timeous action if there has 	been any delay.”

In the present case the respondents’ argument was two -fold. The first argument was that the applicant was served with Annexure ‘D’ i.e. the letter dated 11th of January 2018 which letter was emphatic and specific in that it required the applicant to demonstrate its financial capabilities to do the work within 72 hours and failure to that risked the contract being cancelled. The applicant did not take heed. Thirteen (13) days then elapsed before the letter of cancellation was served on the applicant. Further applicant took another eight (8) days after the letter of cancellation to write their response. Hence it took the applicant twenty-one (21) days from the date of the threat of cancellation of contract to issue its letter of the 2nd of February 2018. Hence the applicant did not treat this matter as urgent.

The second argument was that the applicant instead of bringing up this matter on an urgent basis decided to negotiate. The respondents submitted that the period taken by applicant in negotiating was unjustifiably long. It should have downed on the applicant that the respondents were not willing to negotiate and were serious in wanting to terminate the contract. In that case the events that followed after the letter of the 11th of January and or at least the letter advising termination dated the 24th January 2018 should have jolted the applicant into action. It shows the applicant did not treat the matter as urgent.

On the other hand the applicant submitted that the need to act arose when it failed to receive a response from the applicant on its suggestion for arbitration and it feared the respondents may engage another contractor.

To support their contention the respondents referred the court to the case of Ramwidze Investments (Private) Limited v Rondebuld Zimbabwe (Private) Limited and others HH -757-15 where it was held that a party who resorts to negotiations when well aware of consequences that might befall him is taken not to have treated the matter as urgent.

In my view the applicant was aware of the threat of cancellation of the contract by the 11th January 2018. It was again advised of the cancellation of the contract by the letter dated 24th January 2018. Instead of bringing this case applicant decided to negotiate to refer matter to arbitration. This was no longer necessary because the contract had already been cancelled by the 24th January 2018. The applicant only filed this application on the 16th February 2018 a period in excess of three weeks. I agree with the respondents that the certificate of urgency also falls short of what is required in the Kuvarega v Registrar General and another supra. What -ever urgency that existed in this matter was self -created. It has been said time without number that the law protects the vigilant and not the sluggard.

I will therefore uphold the second point in limine and dismiss this application with costs without dealing with the merits.

IT IS ORDERED THAT

The application is dismissed.

The applicant to pay respondents’ costs.

Muringi Kamdefwere, applicant’ legal practitioners

C. Nhemwa & Associates, respondents’ legal practitioners