Zandile Zibwowa Versus Samuel Njovana AND Eunice Njovana AND Registrar OF Deeds

### Preamble
1
HH 375-21
HC 6389/20
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ZANDILE ZIBWOWA

versus

SAMUEL NJOVANA

and

EUNICE NJOVANA

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 10 May 2021 & 14 July 2021

Opposed Application

T Ngoya, for the applicant

Nyamande, for the 1st & 2nd respondents

MANGOTA J: It is within the nature of the contract of purchase and sale for the seller who has received full payment of the purchase price from the purchaser to deliver to the latter the subject-matter of the contract which is commonly referred to as the merx. This is a fortiori the case where the purchaser has, in addition to payment of the purchase price, paid to the seller’s nominated conveyancers the requisite fees for the transfer to him of the immovable property which he purchased.

The remarks which I made in the foregoing paragraphs are apposite to the circumstances of the present case. I heard it on 10 May, 2021. I delivered an ex tempore judgment in which I granted the applicant’s prayer as amended at her instance.

On 21 May, 2021 counsel for the applicant wrote to the High Court registrar. He advised that the respondents have appealed my decision of 10 May, 2021. He requested for reasons for my decision. My reasons are these:

The applicant placed before me an application for specific performance. She premised the same on the agreement of sale which the respondent and her concluded on 21 December, 2018. In terms of the said agreement, the first and second respondents sold to her stand number 1114 Mandara Township of Stand 738 Mandara Township, Harare (“the property”). This is 2 062 square metres in extent. It sold for US$56 000  which the applicant paid in full in addition to her payment of the conveyancing fees which she paid to the respondents’ conveyancers.

The first and second respondents filed their notices of opposition to the application. The third respondent who was cited in his official capacity did not oppose the application. My assumption is that he intends to abide by my decision.

G.H. Mackerton defines the contract of purchase and sale. The learned author states in The sale of Goods in South Africa, Second edition, page 1, that:

“Purchase and sale is a mutual contract for the transfer of possession of a thing in exchange for a price. It is a contract of mutual obligation whereby a thing is delivered in return for money. It has three essential elements. These are consent, a thing sold and a price.”

J.T.R Gibson refines the concept of the contract of purchase and sale. He states in his South African Mercantile and Company Law, eighth edition, p 110 that:

“A sale is a contract in which one person promises to deliver a thing to another, the latter agreeing to pay a certain price... It is the agreement alone that constitutes the sale….and legal rights and duties flow immediately upon agreement………there must be (a) an agreement (b) to deliver (c) a particular article at (d) a particular price.” [emphasis added].

That the applicant and the first and second respondents agreed between them to deliver the property from the seller to the purchaser at the price of US$56 000 requires little, if any, debate. The agreement of sale, Annexure E, which the parties signed on 21 December, 2018 bears evidence of the stated fact. It is in terms of the said agreement that the applicant purchased the property from the first and second respondents for the sum of US$56 000. She paid the purchase price for the same in full.

Annexures F, G, H, I, J, K and L are the various sums which the applicant paid as purchase price for the property. The annexures respectively appear at pages 28, 29, 30, 31, 32, 33 and 34 of the record. The various sums which the applicant paid add up to US$56 000 which, according to the agreement of the parties, is the total purchase price for the property.

The conclusion of the contract of purchase and sale casts upon the seller a number of obligations chief among which is to deliver to the purchaser the thing which he sold to the latter. This is a fortori the case where, as in casu, the purchaser has paid the purchase price for the property in full. The purchaser, having performed her part of the contract, has every right to compel the seller to perform his/their own side of the contract. That is so because the contract is, as is known, synalgmatic. It compels the seller who receives purchase price to deliver the merx to the purchaser.

The current application aims at nothing else but to compel the respondents to perform their own part of the contract. They received the purchase price which the applicant paid to them. They, therefore, have no justification to continue to refuse to transfer title in the property to the applicant. This is a fortori where, as in casu, the applicant paid to the respondents’ conveyancers fees for the transfer of title in the property into her name.

The first and second respondents do not deny the existence of the contract which they concluded with the applicant. They do not dispute that the applicant paid full purchase price for the property. Nor do they controvert the fact that she paid fees for transfer of the property to their conveyancers. They also do not quarrel with the fact that they have to transfer title in the property to the applicant.

The concessions which the respondents made in their notice of opposition speak volume13 and 14.2 of their notice of opposition, that:

“8	…The fact that myself and 2nd respondent gave applicant possession of the 	property is a clear indication of our intention to adhere to the agreement.

12.	Second respond and I have been out of town for some time... This is the reason why ZIMRA interviews could not proceed but our lawyers communicated that interviews would proceed upon our return. There is absolutely no neglect in ensuring that transfer is completed.

13.	...we are willing to have the property transferred into her name and the delays have been as a result of unforeseen personal circumstances and...

14.2	Ms Sande did not misrepresent when she said she was in possession of all documentation to enable transfer... What was outstanding is our presence to sign ZIMRA application forms and attend interviews.” (emphasis added)

It is from a reading of what the respondents stated in their notice of opposition as captured in the foregoing paragraphs of this judgment that it becomes clear to all and sundry that there is no real opposition to the application to compel transfer of title. Transfer of title perfects the contract of the parties. It is a sine qua non aspect of the contract of purchase and sale.

It is the unenviable obligation of the seller who has received full purchase price, in addition to conveyancing fees, to transfer title in the property to the purchaser without any further ado. The respondents, as sellers of the property, have no justification to continue to hold onto the title in the property. They should pass that to the applicant without any further delay.

The first and second respondents state, in para 9 of their notice of opposition, that there arose issues which were not contemplated when the agreement was drafted and signed. They allege that their understanding was that the new issues could be resolved and incorporated in the agreement as amendments.

The applicant’s statement on the alleged issues is to the contrary. She asserts that there were no outstanding issues when the contract of sale was drafted or signed. She insists that the parties went through the agreement after it had been drafted. She avers that they read the contract before they signed it.

The respondents made a general statement in regard to the issues which they allege arose after the contract had been signed. They leave the matter of the alleged issues to the court to speculate about them. They do not become specific on them.

I have had the occasion to read the contents of the contract which the applicant and the first and second respondents signed. I failed to come across a clause which allows the parties to incorporate into the contract issues which were not in their mind when they signed the contract. The respondents, on their part, did not point at any clause which allows them to pursue the route which they are suggesting.

The statement which they make on the alleged new issues which were not on the table when they signed the contract is not only misplaced.  It is without merit. A fortiori when they fail to justify it in terms of the contract which the applicant and them signed in December 2018.

The concession of the respondents disposes of any issues which pertain to transfer of the property from them to the applicant. Transfer is, therefore, taken as given.

Paragraph (d) of the applicant’s draft order is both high – handed and confused.

It reads:

“(a) 	That 1st and 2nd respondents shall pay costs on a higher scale and Jacguiline Sande 		shall bear costs of suit de bonis propriis.”

It is not clear if the applicant is claiming costs of suit from the first and second respondents as well as from their legal practitioner one Jacquiline Sande. The context suggests that that is what she is doing. She cites no law which allows her to claim costs from her adversary as well as from the latter’s legal representative.

Costs are, as a matter of course, ordered against the unsuccessful party or, in very exceptional cases where justification is made, against the latter’s legal practitioner. They are, in practice, not claimable against both the losing party and his legal representative.

The respondents exonerate their legal practitioner for the error which an intern who was in her law firm committed when the intern prepared the bill in the absence of the legal practitioner. The error, they state, was taken note of and the bill was amended with the result that the applicant was visited with no prejudice at all.

It is common knowledge, judicial notice of which is taken, that interns who are learning the ropes to achieving the distinction of learnedness make such errors as the intern who worked at the law firm of the respondents’ legal practitioners at the time made. When such are conceded and corrected as was done in casu, costs de bonis propriis cannot be ordered against the legal practitioner who did not author the error which gave birth to the complaint of the applicant. A fortiori where the applicant suffered no prejudice at all from the error.

The applicant proved her case on a balance of probabilities. The application is, in the result, granted with costs.

M S Musemburi legal practice, applicant’s legal practitioners

Sande legal practice, 1st & 2nd respondents’ legal practitioners