Mthunzi v Sibanda (HC 2535 of 2002) [2004] ZWBHC 87 (16 June 2004)

Judgment No. HB 87/2004 Case No. HC 756/2002 X-Ref: HC 2535/02 EDMUND MTHUNZI Versus PATRICK SIBANDA IN THE HIGH COURT OF ZIMBABWE CHIWESHE J BULAWAYO 6 OCTOBER 2003 & 17 JUNE 2004 T Hwalima for applicant N Y Mashayamombe for respondent Opposed Matter CHIWESHE J: On 15 September 2001 the parties entered into an agreement of sale in terms of which the applicant sold to the respondent stand number 116255, Thorngrove Township, Bulawayo for the sum of $640 000,00. In terms of the agreement the respondent paid a deposit of $400 000,00. The balance of $240 000,00 was to be paid through a mortgage loan which the respondent was to raise with Beverley Building Society. The respondent has failed to raise the mortgage loan neither has he paid the outstanding amount. The applicant now seeks an order inter alia cancelling the agreement of sale on the ground that the respondent is in breach of the agreement of sale. The respondent also raises a point in limine that the proceedings should have been brought by way of action rather than application. He submits that the disputes of fact are such that they cannot be resolved on the papers. The respondent also seeks leave to introduce a supplementary affidavit. In his opposing affidavit the respondent states that he was unable to source mortgage finance because the property the subject matter of the agreement of sale did not have title deeds against which a loan could be raised. He says that the applicant and its agent had misrepresented to him that the applicant had title deeds to HB 87/04 the property. It was on the strength of that misrepresentation that he had assumed he could raise a mortgage loan. The respondent says that the agreement does not stipulate when the balance of the purchase price should be paid but opines nonetheless that this should be within a reasonable time. However, he is only prepared to pay the balance upon transfer. On the other hand the applicant and his agent maintain that they never told the respondent that the house had title deeds but to the contrary had advised him that the house was yet to be transferred from the City of Bulawayo to the applicant. Further they argue that since the property is surveyed to title the building society in question would be in a position to consider the loan application on that basis. This is hotly disputed by the respondent who has filed a letter from the building society in support of his position. The question whether the respondent could have obtained a loan on the basis of a survey to title is one that cannot be decided on the papers. It will be necessary to call evidence viva voce in this regard. There are other facts which are disputed to such an extent that no resolution on the papers is possible. For example the respondent alleges that the applicant misrepresented to him that he had title deeds to the property. Was there a misrepresentation? The applicant denies any misrepresentation. Without viva voce evidence and exposure of both parties to the process of cross examination and assessment of credibility there is no basis upon which a determination can be made on the papers as they stand. The applicant avers that the balance of the purchase price should have been paid by the end of November 2001. It was for this reason that the agreement gave the month of November as the date of occupation of the property by the respondent. The HB 87/04 respondent insists that there was no provision for any time scales in that regard and that it must therefore be presumed that the balance was to be paid within a reasonable time. Again another dispute of fact which cannot be resolved on the papers. Other factual disputes relate to the manner in which the respondent in alleged consultation with the applicant’s agents took occupation of the property. The applicant avers that the respondent forced himself into the house on 31 December 2001. For these reasons it is my view that there are disputes of fact in this matter which cannot be resolved on the papers. It is ordered as follows: 1. 2. That the matter be and is hereby referred to trial. That the present papers including the respondent’s supplementary affidavit shall stand as pleadings 3. Costs be costs in the cause. Hwalima & Associates applicant’s legal practitioners Ben Baron & Partners respondent’s legal practitioners