Appeal No. 112/00
MAFUNDA ENTERPRISES (PRIVATE) LIMITED (2)
JAMES SITHOLE (3) PHINISI SITHOLE
COURT OF ZIMBABWE
JA, MALABA JA & NDOU AJA
MAY 3 & DECEMBER 5, 2006
Cherry, for the
Zhou, for the
CHEDA JA: This is an appeal
from the judgment of the High Court, Bulawayo, delivered on 20 March
case has a very long history. It stretches over a long period and
many legal practitioners were involved in the matter at different
stages, but the matter remained unresolved for a long time.
matter eventually went to trial, and the appellant noted an appeal to
this Court. Having noted the appeal, the matter could
not take off
as the appellant failed to have the record properly prepared for
appeal, despite several postponements and requests
for him to comply
with appeal rules.
the appellant kept on changing legal practitioners and applying for
The appellant was the owner of
certain immovable property known as No 17 and No 18 Gladys Avenue,
Kennilworth, Sauerstown, Bulawayo.
to the appellants own affidavit, he sold stand No 17 to one Abel
Baloyi Baloyi. Baloyi later arranged with the
the appellant could rent the property while Baloyi was in South
the appellant confirms this in his evidence, he puts it this way:
I bought this shop, that is
No 17 around 1984. I ran the shop after that Mr Baloyi from South
Africa came and asked to rent the
property which I did (sic).
Further he asked if I could sell it to him. I agreed and sold it to
him for $27 000-00. Baloyi had a debt with the bank which
not pay. He arranged that he gave me back the shop that I could pay
his debts. He sold me the goods in the shop, that
tills and stock in the shop. The agreement was that after paying his
debt at the bank and also finished paying for
the fittings we were
going to change the title deeds which were still in the hands of the
Part of the common background,
which is supported by written agreements, and the evidence of the
appellant himself, is that during
the time he was renting the shop
from Baloyi he sublet part of the property that is, the supermarket
and bottle store to one James
Sithole, the second respondent, as well
as other persons. This is confirmed by Baloyis complaint in his
affidavit that the appellant
did this without his permission.
appellant indicated to Baloyi that he was interested in buying back
the property. Baloyi advised the appellant that he could
property back to the appellant if the appellant produced a sum of
several people visited the premises to see the appellant when there
was information that the premises were on sale.
is not clear who gave out this information, but most of the
prospective buyers were coming to see that appellant.
second respondent (Sithole) also got to hear that people were
visiting the appellant in connection with the premises as
up for sale.
Baloyi came on a visit, Sithole asked Baloyi about it, and Baloyi
confirmed that the shop was indeed up for sale. Sithole
negotiations with Baloyi and eventually offered to purchase the
property. Sithole asked Baloyi if Baloyi advised the
Sitholes agreement to purchase the property and Baloyi told
Sithole that since the appellant was his tenant, he,
advise the appellant himself after Sithole paid the price of the
also advised Sithole that he had asked the appellant to produce $300
000-00 if he wanted to purchase the shop, but the appellant
failed to do so for a long time.
then proceeded to purchase the property and took transfer.
purchasing the property Sithole stopped paying rent to the appellant.
When the appellant raised the issue of rent he was
met with a
counter-claim for his eviction, as the property now belonged to
the parties were involved in various disputes and allegations, some
of which resulted in arrests being made following
complaints to the
police by the appellant.
the matter finally went to trial the appellant lost and judgment was
granted for the respondents, who were also allowed to
appellant as he was not paying rent to the respondents.
is the decision against which the appellant has appealed.
FINDINGS OF THE TRIAL COURT
trial court had the benefit of hearing evidence from the appellant
and the present respondents.
court found the appellants evidence to be more difficult to
understand. He could not be believed.
claimed that he settled Baloyis debts. On the other hand, the
legal practitioners file note referred to in the judgment suggests
that the property had no liabilities.
evidence, which the court accepted, is to the effect that when he
spoke to the appellant about the shop being on sale
for $300 000-00
Nyandoro queried why Baloyi wanted $300 000-00 when he had purchased
the property from the appellant for only $27
000-00. This seems to
indicate that although, the appellant had been told to raise the sum
of $300 000-00 if he wanted to purchase
the property from Baloyi, the
appellant never accepted or agreed to purchase the property at that
fact, in his evidence, he never stated when any agreement was entered
into between him and Baloyi.
the parties went to consult a legal practitioner, (Mr Perry) the
following was recorded:
It was agreed that Baloyi and
Nyandoro would call on me today regarding the sale of the immovable
property for $300 000-00. Both
called with a third party. They do
not want to go into a sale agreement now but Nyandoro is leasing the
entire property which consists
of about 5 different shops etc and
rent has been paid in advance to March 1995.
Later in the same minute the
following is recorded:
Mr Nyandoro is very well
known and I dont think he has the cash at this time but rather
than sell the shares to him now there
is going to be no agreement now
but Nyandoro will look for a purchaser in the region of $600 000-00
for shares. This could mean
two separate agreements of sale of
shares from Baloyi to Nyandoro and from Nyandoro to the third party
but I said that another method
would be for (sic)
once a buyer had been found for the immovable property (or rather the
shares in the property owning company) the shares could be
straight by Baloyi to the purchaser for $600 000-00 and Nyandoro is
now therefore looking for a purchaser.
file minutes reflect a summary of the discussion that took place in
Mr Perrys office. He points out that the parties were
entering into any agreement at that stage, and that the appellant was
to look for a purchaser.
I do not think a legal
practitioner would record the minute in that form if the parties had
entered into an agreement of sale.
Otherwise he would have either
drafted an agreement of sale or recorded that the parties had agreed
on the sale of the property to
the appellant at a certain price. The
appellant was looking for a purchaser for the property. He could not
have been doing so if
he himself had purchased the property.
The appellants claim that he
purchased the property and paid $55 000-00 and that there was a
balance of $60 000-00 was equally
It is clear that the parties
chose not to enter into any agreement although the matter was
discussed. In view of that, Baloyis
claim that the appellant was
told that he could be allowed to purchase the property if he produced
the sum of $300 000-00 is more
It is also clear that the
appellant did not have the money and never tendered any payment for
the property but invited people who
would purchase the property as
claimed by Mr Perry.
After going through the record
and the appellants evidence, I am satisfied that the appellant
failed to make a case that could
result in a decision in his favour.
He claimed that he paid certain
sums to settle Baloyis debts; he later suggested that this was
payment for the property. After
that he again claimed that he paid
the $300 000-00 for the property. It turned out that some of the
payments he made were for arrear
rental and for repairs to the shops
At the most, it seems that
Baloyi did indicate that if the appellant was interested in
purchasing the property he should produce
the required $300 000-00.
The appellant either failed or neglected to do so.
Baloyi had obviously set a
condition on which the appellant could purchase the property if he
wished to, but that condition was
never met by the appellant. There
was therefore no legally binding agreement of sale entered into by
the parties which the appellant
There is nothing to indicate
that Baloyi gave the appellant the first option that the appellant
If a party offers to sell
property on certain conditions, and those conditions are not met,
there can be no binding sale agreement.
There was therefore no
misdirection on the part of the trial court.
I therefore see no merit in the
appeal. It is dismissed with costs.
MALABA JA: I agree.
NDOU AJA: I agree.
appellant's legal practitioners
Gill, Godlonton & Gerrans,
respondents legal practitioners