Chitakunye v Ndoro and Anor (HC 1661 of 2005) [2006] ZWBHC 129 (18 January 2006)

Judgment No. HB 129/05 Case No. HC 1661/05 ALFAS MUVARIGWA CHITAKUNYE Versus DAINAH K NDORO & ANOTHER IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 14 NOVEMBER 2005 & 19 JANUARY 2006 R Moyo-Majwabu for applicant J Sibanda for respondent Opposed urgent chamber application CHEDA J: Applicant filed an urgent chamber application seeking the following relief. “Interim relief granted Pending the confirmation or discharge of this order, the following provisional order is granted that is to say: 1. 2. Respondent be and is hereby interdicted from departing from Zimbabwe without an appropriate order from this court authorising such departure. Respondent is ordered to surrender his air ticket number 19AUG 05 issued by Air Zimbabwe for departure from the Harare International Airport to the United Kingdom and his passport to the Deputy Sheriff of Harare for onward transmission to the registrar of this court in Bulawayo, there to be safely kept pending the determination of this matter. Final order sought 1. 2. That the agreement of sale between first applicant and respondent on the 18th August 2005 for the sale of a Massey Fergusson MF 185 tractor be and is hereby declared to be valid and binding on the parties; That the agreement of sale between second applicant and respondent on 18th August 2005 for the sale of a water bowser be and is hereby declared to be valid and binding on the parties. HB 129/05 3. 4. That it is hereby ordered that respondent delivers the said tractor and water bowser to the applicants against payment of the balance of the purchase price within 14 days of this order failing which the Deputy Sheriff of Bulawayo be and is hereby directed to attach, remove and deliver the said tractor and water bowser to the applicants. That respondent pays the costs of suit on a higher scale.” This court granted applicants a provisional order on 7 September 2005. The facts of this matter which are largely common cause are as follows: 1. The parties entered into a verbal agreement for the sale by respondent to applicants of a Massey Fergusson tractor and a water bowser for $195million on 18 August 2005. 2. A deposit of $20million was to be paid upon signing of the agreement and was indeed paid. 3. The balance of $175million was to be paid within 3 banking days from 18 August 2005 the last banking day therefore being 22 August 2005. 4. First applicant’s electronically transferred the sum of $150million into respondent’s Agribank Bulawayo account on 20 August 2005. 5. On 22 August 2005 1st applicant faxed proof of the deposit of $150million as respondent had intimated that the said deposit did not reflect in his account due to the fact that his bank’s computer system was down. HB 129/05 A conversation took place wherein respondent advised 1st applicant that he intended to resile from the agreement. To prove his stance he requested 1st applicant’s bank details with a view of refunding him the $150million. Respondent’s reason according to 1st applicant was that he had lost on another deal. First applicant resisted this move and declined to divulge his bank details which the police extracted then from him. It is respondent’s view that applicants are in breach of the agreement in that they failed to pay the balance of $25million within the three banking days. The 3rd banking day ended on 22 August 2005 which is the day when respondent started alleging that 1st applicant’s deposit was not reflecting on his bank account which prompted him to fax proof of the said transaction. The question which falls for determination is whether or not applicants breached the agreement. Applicants paid the necessary deposit of $20million and a further $150million which was electronically transferred into respondent’s account. On the last banking day their attempt to pay the last instalment became a problem to respondent. During the parties’ discussion on 22 August 2005, respondent had already decided to cancel the agreement on the basis that applicants had delayed in making the final payment. There was no legal basis for this conclusion on his part because applicants were going to pay the balance later that day i.e. before close of business, but, however, respondent could not allow them to do so. This therefore, can not be said to have been a HB 129/05 breach on the part of the applicants as their attempt to perform their part of the contract was frustrated by respondent. A party who suddenly discovers that he entered into a disadvantageous contract, deliberately prevents the other party from fulfilling his part of the contract can not be allowed to do so as this will be both illegal and above all against public policy. It is my view therefore that applicants are deemed to have fulfilled their part of the contract. Respondent can not be allowed to unilaterally resile from the contract on the basis of flimsy reasons. Applicants have a choice either to agree to such cancellation or hold him to the contract, they have chosen the later and the law is on their side in this regard. The agreement entered into by the parties on 18 August 2005 is therefore valid and binding. Mr Moyo-Majwabu for applicants has asked for costs at a higher scale. Mr Sibanda for respondent is of the view that this is not the case were costs at that scale should be awarded. The guiding principle with regards to costs as between attorney and client was laid down in the leading South African case of Waterberg Landbouwers Ko-operative Vereniging 1946 AD 597, where it was held that something more underlines the practice of awarding costs between attorney and client than the mere punishment of the losing party. In determining whether an award of costs of this nature should be awarded, the courts must take special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party. HB 129/05 In the present case, respondent’s defence to the claim has been vexatious and lacks bona fides in that he was aware that applicants had complied with the terms and conditions of the agreement up to 18 August 2005 and that even on 22 August 2005 they were still willing to fulfil their side of the contract but prevented them from doing so. This attitude continued throughout these proceedings. In fact, to demonstrate his lack of bona fides he went out of his way to cause two letters to be faxed to him purportedly from his doctors in the United Kingdom. While the letters may be genuine but of interest is that a Dr Esan wrote a letter to a Consultant Cardiologist at North Middlesex University Hospital on 7 January 2005 where upon amongst other information he requested an urgent appointment for him. Nothing seems to have been done by respondent regarding the securing of such an appointment. On 8 September 2005 he was prevented from departing for the United Kingdom through a provisional order issued by this court. He was due to depart on 8 September 2005 at 0725 hours. On the same day the Cardiology Department of North Middlesex University Hospital wrote him a letter giving him an urgent appointment for 19 September 2005. This letter was faxed to him on 9 September 2005. These events are very curious. The only irresistible conclusion one can come to is that, this “appointment” was triggered by the effective operation of the provisional order which had been served upon him in Harare. It is clear that respondent was dishonest throughout these proceedings and is therefore unworthy of belief. Such HB 129/05 conduct is indeed punishable by an award of costs at a higher scale, see Hamza v Bailen 1949(1)SA 993(C). This therefore, is a case where costs on a punitive scale should be awarded in order to discourage dishonest litigants who even when all the evidence points to their dishonesty continue to stubbornly hold on to their position without just cause. In light of the above the following order is made: 1. That the agreement of sale between first applicant and respondent on the 18th August 2005 for the sale of a Massey Fergusson MF 185 tractor be and is hereby declared to be valid and binding on the parties; 2. That the agreement of sale between second applicant and respondent on 18th August 2005 for the sale of a water bowser be and is hereby declared to be valid and binding on the parties. 3. That it is hereby ordered that respondent delivers the said tractor and water bowser to the applicants against payment of the balance of the purchase price within 14 days of this order failing which the Deputy Sheriff of Bulawayo be and is hereby directed to attach, remove and deliver the said tractor and water bowser to the applicants. 4. That respondent pays the costs of suit on a higher scale. James, Moyo-Majwabu & Nyoni, applicants’ legal practitioners Job Sibanda & Associates, respondent’s legal practitioners