Matukutire v Sithole and Another (348) [2024] ZWHHC 348 (16 August 2024)

1 HH 348 - 24 HC 5557/22 JOHN TRANOS MATUKUTIRE versus RONALD A. SITHOLE and EUGINE SUTHOLE and RATIDZAI MATUKUTIRE T/A GLOBAL VILLAGE HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 16 August 2024 Opposed court application Mr N Mugiya, for the applicant Mr K Mubangwa, for the first and second respondents Mrs B Mtetwa, for the third respondent CHINAMORA J: This is a court application for confirmation of cancellation of an agreement of sale wherein the applicant seeks the following order: “WHEREUPON after reading documents filed of record and hearing counsel. IT IS ORDERED THAT: 1. The cancellation of the agreement of sale between the applicant and the first and second respondents dated 8 June 2018 in relation to the sale of stand No. 1230 Goodhope Township of Lot 16 of Goodhope Harare, be and is hereby confirmed. 2. The first respondent is barred from purporting to be the owner of Stand No. 1230 Goodhope Township of Lot 16 Good Hope Harare. 3. The respondents be and are hereby ordered to pay costs of suit on a client and attorney scale.” As already indicated above, the applicant seeks the confirmation of cancellation of an agreement of sale entered into by the applicant and the first and second respondents on 18 June 2018, in respect of stand no. 1230 Goodhope Township of Lot 16 of Goodhope, Harare, measuring 2042 square metres. The applicant argues that he is the owner of a piece of land called Lot 16 of Goodhope, measuring 10,4707 hectares, which is held under deed of transfer no. 8809/01 dated 4 September 2001. In addition, the applicant submits that he was given permission to subdivide the piece of land into various stands in terms of a Permit No. SD/WR/55/15. His HH 348 - 24 HC 5557/22 contention continues that Stand Number No. 1230 Goodhope Township of Lot 16 of Goodhope, Harare, measuring 2042 square metres is one of the stands born out of the subdivision. In his founding affidavit, the applicant avers that, on 18 June 2018, he entered into an agreement of sale with the first and second respondents over stand No. 1230 Goodhope Township of Lot 16 of Goodhope. The full purchase was set at US$61 260, which was to be paid in instalments with the initial deposit of US$20 000 being paid upon signing the agreement of sale. The balance of US$41 260 was to be paid as cash in equal monthly instalments of US$1 500 for a period of thirty months commencing on 1 July 2018 until 1 December 2021. It is applicant’s case that all payments were to be paid directly to him in cash as stipulated in terms of the agreement of sale. The applicant alleges that the first and second respondent failed to pay the monthly instalments as agreed. Additionally, the applicant argues that on 14 June 2022, he gave the first and second respondents notice to remedy their breach in terms of the agreement of sale. However, the first and second respondents did not make good their breach. As a result, the applicant moved to cancel the agreement of sale on 11 August 2022. It is applicant’s submission that, the first and second respondents upon being confronted, claimed that they paid the purchase price to the third respondent through her project known as Global Village, a project which the applicant is not part of. It is on these facts that the applicant seeks the relief stated in the draft order. The first and second respondents opposed the application. In essence, they raised an objection in limine to the effect that the application was fraught with material disputes of fact which applicant is fully conversant with. The case advanced by the first and second respondent is that all the averments in the applicant’s founding affidavit are vehemently disputed but, despite that, the applicant proceeded to utilize the application procedure. These two respondents submit they reported the applicant to the police on fraud charges on 7 July 2022, and he has visited the police several times to assist with investigations. In fact, they assert that the police report resulted in a warned and cautioned statement being recorded. On the merits, the first and second respondents argue that no valid cancellation of agreement was ever made. At the time of the purported cancellation, so the respondents argue, the whole of the purchase price had already been paid, which meant that there was no breach on their part. Further, the first and second respondents assert that, at all material times, they dealt with the third respondent, who happens to be the applicant’s wife, and that she acted as a proxy HH 348 - 24 HC 5557/22 of the applicant. In addition, the first and second respondents contend that, upon receiving the purported notice to remedy the breach, they reported a fraud case against the applicant at Mabelreign Police Station, and a criminal report record was opened under CR 33/7/22 and CCD 8/7/22. According the first and second respondents, the applicant’s defence is that he does not have any business relationship with the third respondent. On their part, the respondents argue that, for his convenience, the applicant acknowledges that he entered into an agreement with the respondents in 2018. However, the first and second contend that the applicant neglects to tell the court that the property was advertised on a billboard carrying the name of Global Village. Furthermore, the applicant purported to cancel the agreement in 2022 when he had disposed of the property to someone else way back in 2019. Consequently, the first and second respondents urge the court to accept their argument that the issues arising in this case cannot be resolved on the papers without hearing viva voce evidence. Therefore, they submit that there is need for evidence to be led in a trial, and that process would expose the applicant’s nefarious conduct. The first and second respondents argue that the point made by the applicant that payments ought to have been made to him directed lacks merit solely on the basis that the transaction was done through applicant’s wife from the start. All payments were then made to the applicant effectively through his wife. As a result, the first and second respondents pray that the application be dismissed. I notice that the agreement of sale which has given rise to the application before me was signed not only signed by the applicant and first and second respondents, but was also signed by Mrs Ratidzai Matukutire (the third respondent). In fact, the relevant part of the agreement of sale, which indicates who the sellers are is couched as follows: “Sold by Mrs Ratidzai Matukutire … John Tranos Matukutire” See Annexure “B” which is on page 19 of the record. Under the names of the applicant and his wife also tellingly appears the caption “Seller”. The failure by the applicant to deny that the third respondent (his wife) was also a seller is curious. Not only that, it is startling that the applicant also did not deny that the sale was advertised on the billboard of Global Village, an entity run by the third respondent. It is also noteworthy (if not, significant) that in his own founding affidavit, the applicant when referring to the third respondent states that: HH 348 - 24 HC 5557/22 “The 3rd respondent is Ratidzai Matukutire t/a Global Village” In my view, there would be nothing amiss for the third respondent (as a joint seller) to receive payment for the property in question from the first and second respondents. It is important for me to comment on the 3rd respondent’s opposition to the application. She categorically sates in her affidavit that, it was agreed that the marketing would be done through Global Village. The following averment on pages 72-73 of the record is relevant: “Initial sales of land were therefore done through myself, and it was only when the applicant started reselling some of the stands twice, and behind my back and without my knowledge that the issue of double sale arose. Given this background, and the fact that the applicant did not, prior to the commencement of the double sales, complain about Global Village being an unauthorized seller, it ought to have been obvious to the applicant and his legal practitioners that there would be a dispute of facts in this application making it inappropriate to bring this matter as an application as oral evidence is clearly necessary.” The averments are self-explanatory and their logic of the conclusion that an application procedure was ill advised is equally self-commending. There is a further aspect which attracted my observation. Despite the applicant alleging that the first and second respondents breached the agreement of sale by failing to pay the balance of the purchase price, the third respondent refutes this by confirming that the purchase price was fully paid and that the applicant was advised via email. (See page 76 of the record). Also worth noting is the third respondent’s averment that there are other stands purchased by third parties through Global Village which have not been contested by the applicant. The third respondent explains in her opposing affidavit that the real reason why he is seeking cancelling of the sale to the first and second respondent is that he sold the stand to one Farai Gutu prior to the purported cancellation. The positions taken by the applicant and the third applicant are diametrically opposite, thus excluding the possibility of resolving the dispute of fact on the papers alone. Faced with a similar situation in a dispute involving the applicant and the third respondent in Matukutire v Makwasha & Ors SC 9-21, the Supreme Court remarked that: “Notably, the appellant and the third respondent took vastly different positions. The court a quo could not have resolved these different versions without hearing viva voce evidence”. From the facts of this matter which are demonstrably in dispute, the point is evidently valid that there is a material dispute of facts unresolvable on the papers without hearing oral evidence. It is also apparent that the applicant or his lawyers should have foreseen that such a dispute of fact would arise, and that it was not prudent to proceed by way of application. The HH 348 - 24 HC 5557/22 position of the law is settled that such an application is doomed to fail. In Zimbabwe Bonded Fibre Glass (Pvt) Ltd v Peech 1987 (20 ZLR 338 (S) at 339C, the Supreme Court stated the approach to be adopted as follows: “From the way I outlined the facts of this matter at the onset, it is clear that there are material disputes of facts. The version of the parties as to the events in this matter are so divergent that this court cannot reconcile them on the papers. Both deponents to the affidavits in this matter aver that they are the shareholders and directors of the applicant. They both produce share certificates and allege that the other share certificates are fake. The deponents to the founding affidavit avers that he purchased the respondent’s shares. There is no agreement attached … It must have been clear to the applicant that there is a bona fide and not mere illusory dispute of fact.” The court was clear that the fate of such an application was dismissal. This approach was followed by this court in Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H) at 221G-222A, where ROBINSON J appositely stated: “It is necessary to discourage the too-oft recurring practice whereby applicants who know or should know as was the case with the applicant in this matter, that real and substantial disputes of fact will or are likely to arise on the papers, nevertheless resort to application proceedings on the basis, that at worst, they can count on the court to stand over the matter for trial. Unless this practice is seen to be curbed, applicants will continue to believe that they have nothing to lose and everything to gain tactically by embarking upon application proceedings notwithstanding their knowledge or belief at the time of doing so that that the respondent will not be able to show that a genuine and serious dispute of fact exists on the papers … I will have no difficulty in dismissing the application.” In casu, I persuaded by the reasoning of the learned judges in the above two cases, and will have no hesitation in dismissing the application. Having come to this conclusion, I am left to deal with the issue of costs. The trite position of the law is that costs generally follow the result, but are always in the discretion of the court. The respondents have asked the court to order the applicant to pay costs on the higher scale of attorney and client in the event his application failed. I have already highlighted the obvious material disputes of fact which the applicant or his legal practitioner ought to have been aware of, particularly that they could not be resolved on the papers without resort to viva voce evidence. Nevertheless, the applicant proceeded to file this application. I agree with my late brother, ROBINSON J, that this court should frown upon the obvious cavalier attitude of the applicant by dismissing the application with costs on a higher scale. In the result, I grant the following order: 1. The point in lime vis-à-vis material disputes of fact be and is hereby upheld. HH 348 - 24 HC 5557/22 2. The application is hereby dismissed with costs on an attorney and client scale. CHINAMORA J: .............................................................. Mugiya & Muvhami Law Chambers, applicant’s legal practitioners Mubangwa & Partners, first and second respondents’ legal practitioners Mtetwa & Nyambirai, third respondent’s legal practitioners