Bukuta v Gokolo & Anor (HC 5314 of 2014; HH 258 of 2017) [2017] ZWHHC 258 (26 April 2017)

1 HH 258-17 HC 5314/14 CHARLES BUKUTA versus JUSTIN GOKOLO and MUNICIPALITY OF CHITUNGWIZA HIGH COURT OF ZIMBABWE MAKONI J HARARE, 9 June 2016 and 26 April 2017 Opposed Matter T. Deme, for the applicant F. M Katsande, for the 1st respondent MAKONI J: The applicant approached the court seeking an order in the following terms: 1. The Respondent gives vacant possession of Stand No. 13424 Unit “N” Seke Chitungwiza within 14 days of this order being served on him. 2. Should Respondent fail to comply with paragraph (1) above within 14 days, the Deputy Sheriff shall evict the Respondent and all those claiming through him Stand No. 13424 Unit N Seke Chitungwiza and give vacant possession of that property to the Applicant. 3. The Respondent shall pay the costs of this application. The background to the matter is that on 14 February 2002, the parties entered into an agreement of sale whereby the first respondent sold and the applicant bought stand number 12324 Unit N Seke Chitungwiza (the property). The agreement was conducted and concluded through Twinpic Properties Private Limited (Twinpic) who were nominated by the first respondent. The applicant paid the purchase price in the sum of $130 000.00 in full upon signing of the agreement. The amount was paid to Twinpic. In terms of clause 4 of the agreement, the first respondent was supposed to give vacant possession to the applicant within 3 months of concluding the agreement but has refused to do so. The applicant then instituted the present proceedings. The first respondent HH 258-17 HC 5314/14 opposes the application on the basis that firstly the claim has prescribed and secondly that he never received the purchase price. Prescription of Claim Mr Katsande submitted that the agreement of sale was entered into on 14 February 2002. That is when the cause of action arose. The application was filed on 27 June 2014 after a lapse of 12 years. The claim has therefore prescribed. Mr Deme submitted that the agreement of sale didn’t specify when vacant possession was to be given. Prescription will only start to run when the first respondent is placed in mora. The applicant did not place the first respondent in mora. The relevant clause reads as follows: “4. OCCUPATION The Seller shall ensure that occupation shall be given to the purchaser as soon as possible but in any case not later than 3 months from the date of full payment of the Purchase price.” In Mukahlera v Clerk of Parliament & Ors 2005 (2) ZLR 365 (H) and at 368E – 369 A-B. PATEL J (as he was) had occasion to examine the relevant statute and a long line of cases dealing with prescription and he had this to say: “In terms of s 15 (d) of the Prescription Act [Chapter 8:11], the period of prescription applicable to debts general is three years. Section 16(1) provides that prescription commences to run “as soon as a debt is due”. The word “debt” in this context encompasses “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise” (see s 2 of the Act). By virtue of s 16(3), a debt is not deemed to be due “until the creditor becomes aware of the identity of the debtor and of the facts from which The debt arises”. However, a creditor is “deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care”. The authorities cited by MALABA J in Ndlovu v Posts & Telecommunications Corporation 1998 (2) ZLR 334 (H) at 336 illustrate the circumstances when a debt becomes due. A debt is due when it is “owing and already payable” (Escom v Stewarts & Lloyds SA (Pty) Ltd 1979 (4) SA 905 (W) at 908E) or “immediately claimable” (Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A) at 532H) or “immediately exigible at the will of the creditor” (Benson & Anor v Walters & Ors 1984 (1) SA 73 (A) at 82H). The “cause of action” in relation to a claim is “the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim” (per WATERMEYER J in Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637). Similarly, in Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (H) at 86, GUBBAY J (citing Controller of HH 258-17 HC 5314/14 Customs v Guiffre 1971 (1) RLR 91 (G) 1971 (2) SA 81 (R) at 84A, and Read v Brown (1888) 22 QBD 131) defined the cause of action as being “every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court”. Again, SMITH J, in Dube v Banana 1998 (2) ZLR 92 (H) at 95, observed that “the cause of action means the combination of facts that are material for the plaintiff to prove in order to succeed in his action”. See also Peeble v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H) at 45.” The issue is in this matter is when did the cause of action arise i.e “the entire set of facts which give rise to an enforceable claim and includes every fact which is material to be proved to entitle the plaintiff to succeed in his claim.” per WATERMEYER J in Abrahamse & Sons supra”. It is my view that in interpreting clause 4 one must have regard to the entire contract. In KDV Foam Manufacturers (Pvt) Ltd v Zimnat Insurance Company Limited HH 233/17 l quoted with approval SANDURA J in Madoda v Tanganda Tea Company 199 (1) ZLR 374 (SC) where he applied the approach in South Africa to the interpretation of written contracts where he stated: “As JOUBERT JA said in Coopers and Lybrand and Ors v Btyant 1995 (3) SA 761 (A) at 767 D-F: The matter is essentially one of interpretation. I proceed to ascertain the common intention of the parties from the language used in the instrument. Various canons of construction are available to ascertain their common intention at the time of concluding the cession. According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.” In casu the language used in the contract is clear and nothing more needs to be done than simply expound the literal meaning of the provisions. ” It is my view that clause 4 should be read together with clause 5 which provides: “……..or if the seller omits to observe anytime (sic) imposed by this agreement and fails to remedy such breach within (14) fourteen days after receipt of written notice from the purchaser calling upon him to do so. (sic) The purchaser shall be entitled to cancel the agreement and or institute legal action to compel the seller to perform in terms of the agreement …..” In other words, the applicant can only institute action to compel performance of the agreement after having given the first respondent 14 days’ notice to remedy the breach. That is when the applicant can be cause of action can arise i.e the combination of facts material for him to prove in order to succeed in his action. HH 258-17 HC 5314/14 In casu, the nearest that the applicant comments about clause 5 is in para 5 of his founding affidavit where he states: “5. Since the 15th May 202 to date, I have on numerous occasions demanded vacant occupation of the property from the respondent but he is has refused to give me vacant possession of the property.” He refers to a “demand” and not “notice” as provided for in clause 5. My view is that until and unless the applicant has complied with clause 5 prescription cannot start to run. He cannot successfully sue the first respondent for specific performance. In view of the above I will make a finding that the claim has not prescribed. Merits The analysis that I did above in relation to the prescription issue disposes of this matter on the merits. The applicant has not shown that he gave the first respondent “notice” to remedy the breach. Therefore he cannot institute proceedings for specific performance. The suit has been filed prematurely. In the result, I will make the following order. 1. The application is dismissed. 2. The applicant to pay 1st respondent’s costs. Chibune & Associates, applicant’s legal practitioners F. M. Katsande & Partners, 1st respondent’s legal practitioners