Leonard Masimba Nyakujara v Joseph Tarwireyi and Registrar of Deeds N.O.

### Preamble
1
HH 379-13
HC 7680/10
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LEONARD MASIMBA NYAKUJARA

versus

JOSEPH TARWIREYI

and

REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 16 October 2013 and 30 October 2013

T.K Hove, for the applicant

Hungwe, for the respondent.

MTSHIYA J:	The hearing commenced with the applicant making an application for the uplifting of a bar. The applicant was barred for failure to file heads of argument in terms of the rules.  The application for the upliftment of the bar was opposed.  Accepting that the failure to file heads was due to a junior legal practitioner leaving the practice of the applicant’s legal practitioners without proper handover, I decided that it was in the interests of justice for me to grant the application.  I granted the application with costs on a legal practitioners and client scale.

This is an opposed application wherein in para 4 of his founding affidavit the applicant places his claim before the court in the following terms:

“4. This is an application for an Order to compel the Respondent to transfer the

Property know as Stand No. 2256 Hatfield Township of Lot 125 Block C of

Hatfield Estate measuring in extent 2393 Square Metres otherwise known as 2A

Holden Close, Hatfield – Harare to Applicant, falling which the Deputy Sheriff of

the High Court -  Harare be authorised to sign all such documents as are necessary

to ensure that the property is transferred from the name of 1st Respondent into

the name of the Applicant, in terms of the signed Agreement of Sale between

Applicant and 1st Respondent, a copy which attached and marked Annexure A.”

The applicant goes on to state that he paid Z$5 000 000.00 (Five Million Zimbabwe Dollars) on 15 July 2010.  It is not clear how he paid in Zimbabwe Dollars on that date when the multicurrency regime was introduced in February 2009.  That aspect, however, is not disputed by the respondent.

The respondent’s only dispute is that he only offered for sale part of his property.  In his opposing affidavit he states as follows:

“a.  1st respondent signed the Agreement of Sale under the mistaken belief that he was

selling 2000 m3.  This is what he had applied for to the City of Harare.  A copy of

his application for subdivision is attached hereto marked “H”.

b. What it therefore implies is that the 393 square metres was not applied for and was

included in the diagram in error.  The surveyor admitted the error.

c. The unsold 393 square metre area in that zoning costs $10 000.00.  This should be

paid before transfer

d.   Another point is that I was paying rates since 2003 for that stand.  Applicant

should refund me the money which I paid to the local authority on his behalf.

The costs for 7 years will be $1 680 calculated as follows:

Rates per month - $20.00

Per year – 12 months x 20 = $240.00

For 7 years = $240.00 x 7

= $1 680.00

e. In short, I will sign transfer papers upon receipt of:

$1 680.00 rates paid on his behalf by myself.

$10 000.00 – value of the unsold portion exceeding 2000m2 applied for.

Total due will be $1 680.00 plus $10 000.00 = $11 680.00.

The respondent then concludes by stating that he is prepared to effect transfer on condition the applicant pays a total sum of $11 680.00 to cover the cost of the 393 square metres of his property not yet paid for and rates that he has been paying since 2003.  Its not clear if the amount is in Zimbabwean or United states dollars. These averments create a conditional sale which was never contemplated by the parties.

The respondent further avers that there are disputes of fact in this matter and it cannot therefore be decided on the papers.

I do not agree with the position taken by the respondent and in determining this matter, I believe the following issues are clear:

The respondent applied for subdivision of his property for the purpose of disposing of what is contained in the agreement.

There is no clear evidence that the surveyor admitted to error; and the actual application does not form part of these papers.  What we have is a response from the city council.

The respondent comes up with a value of the allegedly unsold part of his property which, in the circumstances, I believe, is intended to interfere with the original agreement of sale.

The respondent seeks to create a conditional sale where there was none (ie variation of the agreement without the applicant’s consent);

The respondent did not only sign an agreement of sale, he also proceeded to sign a power of attorney to enable transfer.  Clearly he must have been aware of what he was committing himself to.

Parties to a contract must adhere to their obligations under the contract. I see no reason why, in casu, specific performance should not be ordered. In International Trading (Pvt) Ltd. V Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 the late ROBINSON J. said;

“I would wind up by saying that if the right of specific performance is to be shown to have real meaning to businessmen, then the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts then don’t start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract. In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to the its value at the time of the breach. Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them …………………….”

In view of the above, I am convinced that this is a matter that can be resolved on the basis of papers.  I do not find any merit in the purported disputes of fact.  The applicant’s claim is clear and should succeed.

I therefore make the following order:

IT IS ORDERED THAT:-

The 1st Respondent be and is hereby ordered to sign all such documents as are necessary to ensure that the immovable property known as Stand No. 2256 Hatfield of Lot 125 Block C of Hatfield Estate measuring in extent 2393 Square Metres otherwise known as 2A Holden Close, Hatfield – Harare, is transferred and registered into the name of Applicant within thirty (30) days from the date of service of this order.

In the event of the 1st Respondent refusing, neglecting and or failing to sign such documents, in terms of Para 1 above, the Deputy Sheriff of the High Court – Harare, be and is hereby authorised to sign all such documents as are necessary to ensure that the property is transferred from the name of the 1st Respondent into the name of the Applicant.

The applicant shall pay costs for the upliftment of the bar on a legal practitioner and client scale; and.

The 1st Respondent shall pays costs of this suit.

Messrs T.K. Hove and Partners, Applicant’s legal practitioners.

Messrs Hungwe and Partners, 1st Respondent’s legal practitioners.