Shamuyarira v Goredema & Anor (HC 4412 of 2014; HC 9251 of 2013; Ref HC 12613 of 2011) [2015] ZWHHC 783 (29 September 2015)

1 HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 KUDAKWASHE BLESSING SHAMUYARIRA versus DAVIDSON MUNODAWAFA GOREDEMA and THE REGISTRAR OF DEEEDS N. O HIGH COURT OF ZIMBABWE MAKONI J HARARE, 1 April 2015 & 30 September 2015 Opposed Matter W. Magaya, for the applicant R. Chikwari, for the respondent MAKONI J: On or about the 16th of December 2013 the applicant and the first respondent entered into, signed, a written agreement of sale wherein the applicant was the purchaser, and the first respondent was the seller, of Stand 4379 Norton Township of Knowe. In terms of this contract the purchase price for the property was US $ 20 000.00. The reason for the sale of the property was stated as follows: “The house is being sold in order to pay US $18 000.00 in terms of the order granted by the High Court in HC12613/11 in the matter between Econet Wireless (Pvt) Ltd and Grumpton (Pvt) Ltd and Kennedy Nyamhunga.” According to the applicant, in 2011 Econet Wireless (Pvt) Ltd sued Grumpton (Pvt) Ltd, a company in which the first respondent is a director, for money owed to it. Kennedy Nyamhunga was cited in the lawsuit as My Nyamhunga had put his house up as security for Grumpton (Pvt) Ltd’s debt to Econet Wireless (Pvt) Ltd. After judgment had been awarded against Grumpton (Pvt) Ltd the first respondent, being a director of Grumpton (Pvt) Ltd, took it upon himself to settle the company’s debt in order to avoid having Kennedy Nyamhunga’s property sold in execution. To this end the first respondent decided to sell his own property, namely Stand 4379 Norton Township of Knowe, to the applicant. HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 The first responded denied the applicant’s claim that their agreement was an agreement of sale. He alleged that the Applicant and Kennedy Nyamhunga are also directors of Grumpton (Pvt) Ltd. Being a director, the Applicant agreed to loan Grumpton (Pvt) Ltd the money it needed to pay off its judgment debt to Econet Wireless (Pvt) Ltd, on condition that the applicant was given security for the loan. The first respondent avers that the agreement of sale was not intended to be an agreement of sale but was rather an agreement meant to give the applicant security for the money the applicant had loaned the company. Once the applicant had been paid back the agreement would, according to the first respondent, somehow lapse. POINTS IN LIMINE The respondent took, in limine, the point that there are material disputes of fact which cannot be resolved on the papers. It was contended, on his behalf, that the respondent did not sell this property as alleged. The property was availed as security for the loan advanced to Grumpton (Pvt) Ltd in which the first respondent is a Director. He urged the court to look at exterior factors to determine what the parties agreed on. It was further contended that the full purchase price was not paid in full. The agreement stipulates a mode of payment in terms of clauses 1, 2 and 3. Payment was supposed to be paid on or before 30 April 2014 but was only made after that date. The schedule of payments attached by the applicants is not clear as to what he was paying for. These issues cannot be properly ventilated without the benefit of oral evidence. In response Mr Magaya submitted that the agreement is the full memorial of the arrangement between the parties and the parole rule applies. The applicant made payment in full and he attached proof in the form of Annexure D1-D7. He urged the court to adopt a robust approach to determine the issues raised by the respondent. The first task for me is to determine whether a dispute of fact exists. The next task would be whether it can be settled without the hearing of oral evidence. The authors Herbstein & Van Winsten: The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed vol 1 at p 294 stated the following: “The determination of the question whether a real and genuine of fact exists is a question of fact for the court to decide. The respondent’s allegation of the existence of such a dispute is not HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 conclusive. In every case the court must…. See whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence. If this were not done, the respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant” At p 296 the authors define a dispute of fact as: “A real dispute of fact arises most obviously when the respondent denies material allegations made by deponents on the applicant’s behalf and produces positive evidence to the contrary”. In casu the dispute of fact is whether the first respondent sold his property to the applicant. As will become clearer later on in the judgement, the dispute can be settled on the papers without the necessity of hearing oral evidence. I will therefore dismiss the point in limine. THE ISSUE The pertinent issue before this court is whether or not the agreement signed by the applicant and the first respondent was a valid agreement of sale. If so, is the applicant entitled to claim transfer of the property from the first respondent. It is trite law that a contract is an agreement by two or more parties entered into with the serious intention of creating a legal obligation. In order for a contract to be binding it must meet the following criteria: it should be lawful, possible to performance, between parties with contractual capacity, made with the serious intention to contract, the parties must be ad idem and the agreement must not be vague. In addition to the above requirements if a contract is to be considered a contract of sale there must be agreement on a thing, or merx, to be sold and a price to be paid for the thing sold. In this case the first respondent does not deny entering into an agreement with the applicant. Indeed his signature appears on the agreement. His defence is, however, that their agreement was not an agreement of sale. When interpreting a contract the courts must give effect to the intention of the parties. In Joubert v Enslin 1910 AD 6 Innes J put it as follows: "The golden rule applicable to the interpretation of all contracts is to ascertain and to follow the intention of the parties." When a contract is reduced to writing, it becomes easier for the court to ascertain the HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 intention of the parties as the court will simply interpret the contact in light of the words used in the written agreement. In Hansen, Schrader & Co. v De Gasperi 1903 TH 100 at 103 the same was stated as follows: “Now, it is not for this Court to speculate as to what the intentions of the parties were when they entered into the contract. That must be gathered from their language, and it is the duty of the Court as far as possible to give to the language used by the parties its ordinary grammatical meaning.” In this instance all the requirements for a valid contract of sale are present. The first respondent tried to argue that the contract was not a contract of sale as the parties did not really envision a situation where the applicant could claim transfer of the property. This claim cannot, however, be upheld. The contract was reduced in writing and it is clear from the wording used in the contract that it was intended to be a contract of sale. The heading of the contract, for one, is “MEMORANDUM OF AGREEMENT OF SALE”. The first respondent is referred to throughout the agreement as the “seller” and the applicant is referred to as the “purchaser”. The contract goes into details about the purchase price, how it is to be paid and the details of transfer. The inescapable conclusion one draws from reading the contract is that it is a contract of sale. In Joubert v Enslin (supra) Innes J stated that: "If the contract itself, or any evidence admissible under the circumstances, affords a definite indication of the meaning of the contracting parties, then it seems to me that a court should always give effect to that meaning." In Wells v Southern African Alumenite Co. 1927 AD 69 at 73 Innes J once again expressed the same sentiment when he said: “If there is one thing which more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts.” If the first respondent wished to put his property up as security he could have instructed legal practitioners to draft an agreement to that effect for him. He failed to do this. The contract presented before me is a contract of sale and it would be a serious misdirection for the court to find otherwise. HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 Being that there is a valid contract of sale that was signed by both parties the next question is can the Applicant claim specific performance? Specific performance is a discretionary power that the court has, see Inter Continental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (HC) and Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A). The court must, in exercising this discretion, be cognisant of the fact that ccontracts give rise to rights and obligations which are legally binding. A party to a contract that has performed their half of the agreement should be entitled to having their rights enforced and it is the duty of the court to ensure that these rights and obligations are honoured. In this case the applicant has paid the purchase price as directed in the contract of sale and the first respondent did not put anything before the court that would justify denying the applicant the relief sought. Indeed the first respondent’s affidavit was filled with claims that were not supported by any evidence and that did not amount to a valid legal defence. The applicant is thus entitled to an order enforcing his rights. The applicant applied for costs on a higher scale. There was no contestation from the respondent. In light of the above I will make the following order: (1) The 1st respondent be and is hereby ordered to sign all the relevant documents to pass transfer including documents to revive DT No. 4812/2009, of a certain piece of land situate in the District of Hartley called Stand 4379 Norton Township of Knowe, measuring 2102 square meters as is more fully described in Deed of Transfer No. 4812/2009, otherwise known as House No. 4379 Knowe Township, Norton to the applicant within 10 (ten) days of this order. (2) In the event of the 1st Respondent failing to sign the necessary transfer documents within the stipulated 10 (ten) days, the Sheriff of Zimbabwe be and is hereby authorized to sign all such documents on behalf of the 1st Respondent. The 2nd respondent be and is hereby ordered to accept such documents as if they had been personally signed by the 1st Respondent. (3) The 1st Respondent is to pay costs of suit at a higher scale. HH 783-15 HC 4412/14 Ref HC 12613/11 HC 9251/13 Coghlan, Welsh & Guest, applicant, legal practitioners Tafireyi and Chikwari Legal Practitioners, respondent’s legal practitioners