Patronella Charumbira (in her capacity as the executrix Dative of the Estate of the late Adbern Benjamin Woodburn Charumbira) v Hudson Musasa and Wilfred Nkata and Elizabeth Nkata and Registrar of Deeds and Assistant Master, Gutu

### Preamble
1
HH 217/2013
HC 2534/06
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PATRONELLA CHARUMBIRA
(in her capacity as the executrix Dative of the Estate of the late Adbern Benjamin Woodburn Charumbira) versus
HUDSON MUSASA
and
WILFRED NKATA
and
ELIZABETH NKATA
and
REGISTRAR OF DEEDS
and
ASSISTANT MASTER, GUTU

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, July 18, 2013

Trial

V. Makuku, for applicant
M C. Mukome, for first respondent
P. Mukono, for first and third respondents

CHITAKUNYE J. On 17 December 2005 the late Adbern Benjamin Woodburn Charumbira entered into an agreement of sale with first respondent for Stand 776 Fort Victoria Township of Victoria District, Masvingo. The first respondent was the seller. The purchase price was agreed at Z$ 2 200 000 000.00(two billion and two hundred million dollars only). The applicant paid some money towards the purchase price.

Clause 2 of the Agreement of Sale provided the terms of payment as follows:-

“That the purchase price to be paid by the purchaser to the seller shall be the sum of two billion and two hundred million ($2 200 000 000.00) payable as follows:-

i) deposit of $200 000000.00 by the 20th December ii) Balance $2 000 000 000.00 shall be by cash upon transfer. Which shall be within seven (7) days from the date of signing of this agreement.”

Clause 3 provided that:-
“That occupation risk and profit in the said property shall pass from the seller to the purchaser upon transfer.”

On 20 December 2005 the parties executed what they termed ‘memorandum of addendum to an existing agreement.’ That addendum provided, inter alia, that:-

“(i) Clause 2 of the Main agreement shall have the contents repealed and replaced as follows:-‘the purchase price to be paid shall be $2 200 000 000.00 payable cash upon transfer’.

(ii) Clause 3 of the main agreement shall be repealed and replaced as follows:-‘That occupation, risk, profit and loss shall pass from the seller to the purchase on the 01 January 2006.”

On the 1st January 2006 1st respondent did not give occupation to applicant. In May 2006 the late Adbern B. W. Charumbira approached this court by application HC 2534/06 seeking an order that: -

1. The first respondent be ordered to sign all the necessary documents to enable transfer of stand number 776 Fort Victoria Township of Victoria District to the applicant within 48 hours of service of this order failure of which the Deputy Sherriff be ordered to sign all the necessary papers on first respondent’s stead.

2. The second respondent (Deeds Registrar) be ordered to register transfer of Stand number 776 Fort Victoria Township of Fort Victoria District in favour of applicant.

3. First respondent and all those claiming occupation through him at 30 Elliot Street, Rhodene, Masvingo be ordered to vacate the premises failure of which the Deputy Sherriff be ordered to evict them and give vacant possession to the applicant.

The application was opposed by first respondent.

On 5 December 2006 the applicant’s heads of arguments were filed. The first respondent’s heads of argument were filed on 20 March 2007. The matter was duly set down for hearing.
 On 16 January 2008 the applicant’s application was dismissed after he failed to attend the hearing. Apparently the applicant had died on 17 December 2006 and so could not have attended the hearing.

Patronella Charumbira, the surviving Spouse, was duly appointed Executrix Dative. She commenced the administration of the estate oblivious of the court case. When she later learnt of the default judgment she applied for its rescission in August 2008. The application was granted on 26 November 2009 in HH152/09.

In the judgment the learned judge observed that the notice of set down was issued after late Adben Woodburn Charumbira, who was a self actor had long passed on.

In the meantime on 7 June 2007 the first respondent had sold the same property, which is Stand number 776 Fort Victoria in the District of Fort Victoria, to the second and third respondents. On 13 May 2008 the second and the third respondents obtained transfer of the property into their joint names. They thereafter demanded that the applicant and all those claiming occupation through her vacate the premises but applicant would not.

On 5 August 2008 the second and the third respondents approached this court by court application, HC4065/08, seeking an order for the eviction of Patronella Charumbira and all those claiming occupation through her from Stand 776 Fort Victoria or Number 30, Elliot Street, Rhodene, Masvingo. The application was opposed.

In her opposition Patronella Charumbira contended that when the second and the third respondents bought the property they were fully aware of the first sale and the pending court case that her late husband was pursuing. It was thus not prudent for them to have bought the property in those circumstances. In as far she was concerned the property was part of her late husband’s estate and it should never have been transferred to the two. Their title was tainted with illegality.

Upon a reading of the papers filed of record and hearing counsel I am of the view that the main issues in case number HC 2534/06 include:-

i) Whether or not there was a valid cancellation of the agreement of sale between Hudson Musasa in his capacity as executor estate late Locadia Chigariro and late Adben Woodburn Charumbira?.
ii) Whether or not payment was to be effected before transfer or, at tendering of transfer or after transfer? (What is the effect of the addendum on the issue of time for payment of purchase price? Whether there was a contractual departure from the ordinary rule that payment is to be made *simul ac semel* with transfer?

iii) Was any period given for the payment of the purchase price?

iv) Whether specific performance can be ordered in the circumstances.

The above issues arise because in response to the application the first respondent contended that the applicant had breached the contract by failing to pay the purchase price within the stipulated time and so he had cancelled the agreement of sale. The applicant on the other hand argued that he did not breach any term of the agreement it is instead the first respondent who did not tender transfer as was expected. As a result of the first respondent’s reluctance to tender transfer in terms of the agreement the applicant sought to compel him to effect transfer through this application. It should be noted that this application was launched within five (5) months after the agreement had been entered into.

The applicant also argued that there was no valid cancellation of the contract in the circumstances.

It is pertinent to point out that the Agreement of Sale between the parties has no provision on consequences of either party breaching the terms and conditions of the agreement. There is also no provision on the circumstances and manner of cancellation of the agreement. Be that as it may for a cancellation to be valid there are certain basic requirements.

Where the reason for cancellation is a breach of contract ordinarily a party is required to put the other party in *mora*. In *Asharia v Patel* 1991(2) ZLR 276 at 279G-H- 280A GUBBAY CJ stated that:-

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into *mora ipso facto* if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of *mora*, known as *mora ex persona*, only arises if, after a demand has been made calling upon the debtor to perform by a specific date, he is still in default. The demand, or *interpellation*, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective.”

In *casu* the first respondent stated in his opposing affidavit that he cancelled the Agreement of Sale because the applicant could not secure the purchase price and he verbally communicated this cancellation to the applicant. He thereafter made a follow up letter to Mushonga and Associates legal practitioners the applicant had instructed him.

It is apparent from the first respondent’s stance that he never made a formal demand or put applicant in *mora*. He did not show that the letter to Mushonga and Associates was a letter of demand or cancellation or even that these were applicant’s agents. The documents filed of record have nothing in them to suggest that at any time in their transaction Mushonga and Associates were acting for the applicant. Thus when the applicant denied ever instructing Mushonga and Associates to act for him the first respondent could not rebut that. The nature of the breach alleged does not seem in tandem with the agreement the parties signed. Clause 2 of the original agreement provided the method of payment of the purchase price as follows: - deposit of $200 000 000.00 by 20 December and Balance $2 000 000 000.00 shall be by cash upon transfer which shall be within seven (7) days from the date of signing of this agreement.

It was clear from the above provisions that applicant was required to pay a deposit by 20 December and the balance to be paid as cash upon transfer. The parties agreed this shall be within 7 days from the date of signing of the agreement. However that clause was repealed and replaced by a clause that stated that the purchase price to be paid shall be $2 200 000 000.00 payable cash upon transfer. The time frames were not included in the addendum.

Clause 3 of the Agreement of Sale was repealed and replaced with one that stated that occupation, risk, profit and loss shall pass from the seller to the purchaser on the 01 January 2006. In terms of this addendum as of 01 January 2006 the risk in the property passed to the applicant. This was not made conditional or subject to applicant doing anything in furtherance of the agreement. It was no longer upon transfer.


Though the first respondent said he cancelled the agreement on 20 February 2006, it is common cause that applicant took occupation on 01 June 2006 after he had commenced these proceedings. The first respondent did not seek to have him evicted. If there was no longer any contract between them one would have expected the first respondent to seek to evict the applicant as such occupation would be unlawful.

In any case the first respondent did not state that he ever put the applicant in mora before purporting to cancel the contract. The general rule alluded to above and as emphasised in RH Christie Law of Contract in South Africa, 3ed at page 555 is that:-

“When the contract does not fix a time for performance there can be no mora ex re, only mora ex persona, so a demand by the creditor is necessary in order to place the debtor in mora.”

If it is that parties appreciated that time was of the essence that was still no excuse not to place the other in mora. At p 562 of the same book the learned author opined that:-

“When no time for performance is fixed but time is of the essence, the debtor is not in mora and the creditor cannot cancel for non performance unless a proper demand for performance has been made….. the concept of time of the essence relates to the consequences of a breach and not to the breach itself, so if no time is fixed there can be no breach by non-performance, whether or not time is of the essence, until the creditor has informed the debtor when he maintains performance is due”

In casu the first respondent did not put the applicant in mora at all. Any purported cancellation of the contract must thus be invalid.

The other issue on this aspect is whether the parties intended to depart from the ordinary rule that payment is to be made simul ac semel with transfer. These courts have been reluctant to allow a departure from that rule unless it is clear that is what the parties intended. In Slomovitz v Vande Walt 1960 (4) SA 270 (TPD) BADDENHORST AJ explained with clarity why courts do not lightly infer that the parties intended to depart from the common rule that payment should be made pari passu with transfer in these words:-

“Such a departure can of course result in very serious loss to the party to an agreement who has to part with his money or property; where there is some delay before the other party discharges, his obligations, because if the person who has not yet carried
 HC 4065/2008out his part of the bargain should go insolvent, the other would be left only with a concurrent claim in the insolvent estate.”

However as noted in *Bryten Bach v Van Wyk* 1923 AD 541 at 547:-

“…..there is nothing to prevent parties from making an agreement that purchase price is only to be paid after the registration has been effected. The documents passed by the deeds office and delivered into the hands of the purchaser but if they wish to make such a contract they must make their intention clear….”

In *casu* originally the parties indicated that the balance be paid cash upon transfer. They apparently envisaged transfer will be in seven days. In their amendment they merely stated that payment of the purchase price was to be cash upon transfer. It is thus clear the parties intended the payment to be upon transfer. The term ‘upon transfer’ simply means ‘on transfer.’ In the circumstances the applicant could not be expected to pay the full purchase price before transfer was tendered. The agreement had no provision as to what had to happen before first respondent could tender transfer. It was thus not correct to say the first respondent was to be paid the full purchase price before he could tender transfer. If anything the clear intention of the parties was that the first respondent had to at least tender transfer before the full purchase price was paid. He did not do so and so he had no cause to purport to cancel the contract.

The applicant stated that at some point the first respondent wanted to increase the purchase price and he resisted this. This could be the reason the first respondent purported to cancel the agreement. Unfortunately that would not be a good cause for cancellation.

Indeed as noted in *Rachel Meyers Mbidzo N.O. v John Mark Chipunza and Registrar of Deeds HH3/09;*-

“Poor business decisions and greed cannot be allowed to interfere with the sanctity of contracts. The courts cannot and should not allow the sanctity of contracts to be destroyed by any factor that does not establish a breach in terms of the contracts. It has become common in our present economic environment for greedy parties in commercial/ business transactions to manufacture imaginary breaches of contracts when trying to address sudden effects of inflation. That in my view cannot be allowed. Parties are in general always aware of the conditions which they are contracting and should therefore spell out necessary protections within their agreements.”


The above sentiments aptly apply in this case. This is further confirmed by the haste with which the first respondent proceeded to sell the same property at a time he knew the applicant was seeking transfer by court application due to his refusal to effect transfer. He simply could not wait for the court case to be finalised before disposing of the property.

The next issue is whether in the circumstances the applicant would be entitled to specific performance.

In *Zimbabwe Express Services (pvt) Ltd v Nuanetsi (pvt) Ltd* 2009 (1) ZLR 326 at p 332G GARWE JA quoted with approval the words of INNES JA in *Farmers’ Cooperative Society v Berry* 1912 AD 343 at p 350 wherein the honourable judge said that:-

“*Prima facie* every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract.”

Court has discretion to grant or not to grant such an order even when on the face of it a party would be entitled to such an order. That discretion is not completely unfettered.

As was stated by HEFER JA in *Benson v South Africa Life Assurance Society* 1986 (1) SA 776 (A) at 783C-D:-

“It remains, after all, a judicial discretion and from its very nature arises from the requirement that it is not to be exercised capriciously, nor upon a wrong principle (*Ex p Neethling* supra at 335). It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to specific performance- and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. If, in the particular circumstances, the order will operate unduly harshly on the defendant.”

In *Mutetwa v Dixon and Others* 2010 (1) ZLR 237(H) MAKARAU J (as she then was) had occasion to deal with a similar case and she had this to say on the need to uphold the sanctity of contract and the need for court to balance it with the harsh realities of the economic situation parties may find themselves in. At p 240G-H she stated that:-

“The order that the applicant seeks is for him to obtain transfer of a patently valuable asset against the payment of a valueless currency. While this court upholds the principle of the sanctity of contracts, it will also not grant specific performance of a contract where to do so will result in an apparent injustice.”

The above cases would ordinarily have persuaded me not to grant specific performance. I am however of the view that in the exercise of court’s discretion sight must not be lost of the conduct of the parties lest it encourages breach of contract by sellers pursuing higher prices and hoping to raise excuses of hardships that will befall them if the contract is enforced when in fact they never intended to fulfil their side of the agreement from inception. This should not be used as a shield for poor business/commercial decisions, after all parties are deemed to know the environment they are operating in.

In *casu* the parties agreed that the purchase price would be paid cash upon transfer. It must have been clear that transfer was crucial or at least tender of transfer was crucial. It was also clear the applicant was to take occupation and assume risk, profit and loss on 1st January 2006. With that in mind, the applicant timeously sought to enforce the terms of the agreement by court application when the first respondent developed second thoughts. In fulfilment of his side the applicant took occupation and has been in occupation since 01 June 2006. In terms of the agreement risk profit and loss in the property passed to the applicant.

The first respondent on the other hand simply decided against tendering transfer and instead sold the property to the second and third respondents. The second and the third respondents bought the property fully aware of the first sale and that the applicant had launched a court application seeking transfer. It would not be farfetched to say the first respondent connived with the second and third respondents in an effort to defeat the applicant’s case.

It is also common cause that the applicant had paid some money before problems of first respondent’s reluctance or refusal to pass transfer became apparent. The applicant said he had paid a total of Z$850 000 000.00 whilst the first respondent admitted to only Z$ 300 000 000.00 having been paid. The first respondent’s attitude is such that he may not admit to a higher figure because such would show the degree of his dishonesty in the transaction. It is indeed probable the applicant had paid Z$ 8500 000.00. Apart from that payment the applicant tendered payment of the balance to court. This was done at a time that balance was still valuable.
 The first respondent on the other hand did not do anything in an effort to comply with the terms and conditions of the agreement of sale except to receive money from the applicant. He thereafter with a sense of impunity sold the property to other people despite full knowledge that he was being called upon to comply with the terms and conditions of the contract. To the first respondent the consequences of whatever decision court was going to make did not matter as long as he sold the property for a higher price to other persons.

The question that arises is as between the two who should shoulder the loss to be incurred? Is it the innocent party or the party that has defied the contract with impunity? I raise this because whichever way the case goes loss will be suffered. The applicant apart from paying the admitted sum tendered the balance less the rentals he incurred as a result of the first respondent’s failure to give him occupation in terms of the contract. The applicant has since been maintaining the property as per the terms of the agreement and has effected some improvements which aspect first respondent did not deny. I am of the view that difficulties caused by the respondent’s conduct should be for him to bear. The application should thus be granted.

In HC 4065/08 the second and third respondents argued that as the properly is now registered in their names they are the owners. Their application is thus based on the action rei vindictio.

I did not hear any party to deny the nature and extent of rights of ownership derived from the registration of property in one’s name as enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S).

Where the plaintiff’s’ claim is founded solely on the basis that he is the registered owner of the properly, and that the defendant is in occupation thereof against his will, once it is proved or admitted that indeed plaintiff is the registered owner, the onus is on the defendant to establish a legal right to occupation of the property.

See Myoka v Haverman and Another 1984(3) SA 457AD

In casu the applicant argued she is in occupation by virtue of the valid agreement of sale that her late husband and the first respondent entered into. That agreement was not validly cancelled. Being the first purchasers she cannot be evicted.


The main issue include whether second and third respondents are innocent purchasers and whether in the circumstances of the case they are entitled to the relief they seek

The second and third respondents admitted that indeed the applicant’s late husband had an earlier agreement of sale with the first respondent. Their contention was that that Agreement of Sale had been cancelled. They conceded that they bought the property at a time when the application by the applicant’s late husband for transfer of the property into his name was pending in this court. They entered into the agreement of sale on the 07 June 2007 before the default judgment against late Adben B W Charumbira was granted in January 2008.

It is common cause that when the second and the third respondents’ bought the property they were fully aware of the first sale and the fact of the court application to enforce the sale.

The question of double sales has been deliberated before. In *Chimponda v Rodrigues and Others* 1997 (2) ZLR 63 (H) at 65G- 66A it was stated that: -

“… If the second purchaser had knowledge either at the time of sale or at the time he took transfer, of the prior sale to the first purchaser, then the first purchaser, in the absence of special circumstances affecting the balance of equities could recover the property from the second purchaser, in which event the second purchaser’s only remedy was an action for damages against the seller.”

Also *Crundall Brothers (Pvt) Ltd v Lazarus NO and Another* 1991 (2) ZLR 125(S).

I am of the view that the balance of convenience is equally not in the respondents’ favour. They took a deliberate risk to buy a property they knew was subject of a court application for transfer. At the time the first buyer was in occupation of that property and has been so ever since. The circumstances under which the respondents took the risk are not deserving of any sympathy. It is akin to conniving with first respondent to defeat applicant’s cause for transfer. Their conduct smacks of deceit and *mala fides*. They are nowhere near the proverbial innocent second purchaser. It would be an act of injustice to reward their conduct by granting their application for eviction. The application for eviction will thus be dismissed. Accordingly it is hereby ordered that;


HC 4065/2008

1. The Agreement of Sale dated 17 December 2005 between Hudson Musasa and the Late Adben Woodburn Charumbira in respect of Stand Number 776Fort Victoria Township of Victoria District, also known as number 30 Elliot Street, Rhodene, Masvingo, is valid.

2. In consequence of clause 1 above the deed of transfer in the names of the second and third respondents is hereby nullified.

3. The first respondent is hereby ordered to sign all the necessary documents to effect transfer of Stand Number 776 Fort Victoria Township of Victoria District to the Estate Late Adben Benjamin Woodburn Charumbira within seven (7) days of the date of this judgment, failure of which the Deputy Sheriff Masvingo is hereby directed to sign the said documents.

4. Applicant is hereby ordered to pay the balance of the purchase price, if any, upon tender of transfer.

5. The application for eviction in HC 4065/08 by the second and the third respondents is hereby dismissed.

6. The first, second and third respondents shall bear the costs of suit.

Tizirai – Chapwanya legal practitioners, applicant’s legal practitioners
M.C. Mukome, 1st respondent’s legal practitioners.
Muringi Kamdwefere legal practitioners, 2nd & 3rd respondent’s legal practitioners
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