Judgment No. HB 115/04
Case No. HC 153/03
ASHOKUMAR MOORJEE ANAND
REGISTRAR OF DEEDS
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 6 FEBRUARY, 27 MAY 2003 AND 2 SEPTEMBER 2004
N Mazibukofor the applicants
J Dhlaminifor the respondents
NDOU J: I granted a provisional order in this matter and indicated that my reasons for doing so will follow. These are the reasons.
Towards the end of 2001, the applicants, who are husband and wife, entered into an agreement of sale with the first respondent who was represented by the second respondent. In terms of the agreement of sale first respondent sold to the applicants property known as stand 2917, Gwelo Township of Gwelo also known as number 74, Lundi Road, Lundi Park, Gweru. One of the terms of the agreement was that the purchase price was $12 500 000,00. The agreement was oral and was supposed to be
HB 115/04 put in writing by the first respondent. It is clear that first respondent, through second respondent offered to sell the above-mentioned immovable property to the applicants. Such offer was accepted by the applicants, giving birth to a valid agreement of sale. Instead of receiving a copy of the agreement of sale the applicants received a letter addressed to them by the first respondent’s erstwhile legal practitioners. The letter reads, inter alia:-
“We thank you for your letter dated 23rd October 2002, the contents of which we referred to our client who advised us to comment thereto as follows:
Towards the end of April 2002 an agreement of sale was entered into between the parties. Because there were other interested buyers, our client made it clear to Mr Karimazondo that the offer would be valid for only three(3) days.
Mr Karimazondo failed to obtain a loan within three days and even telephoned our client on 22 May 2002 one month later, to ask for more time as he still had not obtained the funds.
Seeing that Mr Karimazondo did not pay the purchase price within the stipulated time as set out above, our client considers their agreement to have lapsed and fallen away. However, in the circumstances, as a matter of courtesy, our client is prepared to extend an offer to purchase the house to your client at a purchase price of $20 000 000,00 (twenty million dollars). This offer is valid until Wednesday 13th November 2002 whereupon if we have not received your client’s written communication accepting the offer, our client will proceed to find another buyer.”
The applicants only responded in writing on 29 November 2002 accepting the latter offer after the applicants’ legal practitioner ascertained with the first respondent’s legal practitioner at the time, that the offer was still open i.e. the offer was extended to 29 November 2002. After two letters, the applicants failed to yield results, a threat of an urgent court application to compel transfer resulted in a response by the first respondent in the following terms:
“We apologise for the delay in replying to you. It would appear that we are no longer in a position to draw up the agreement of sale for the purchase price of $20 000 000,00. The writer was all along of the belief that this was the amount Mr Anand wanted for the house but has been advised by client that there was a misunderstanding in the instruction given to us. Consequently, we have been asked to inform you that the offer is to be withdrawn as it was communicated to you in error …”
As a result of these developments the applicants instituted an urgent chamber application which I granted. The terms of the provisional order interdict in the interim, the first and second respondents from carrying out any evaluation of the disputed property. It also interdicts the third respondent from registering transfer of the said property to any other person other than the applicants.
From the above summation of the facts is clear that the offer by first respondent, through his agents and the subsequent acceptance of such offer gave birth to contractual relationship between the applicants and the first respondents. On this basis the applicants have established the existence of a clear right. The first respondent has tried to sell the disputed property to someone else as evinced by the papers filed in support of the application. In so doing the first respondent infringed the said right of the applicants. There is not other satisfactory remedy available to the applicants. Looking at the circumstances of the applicants on the one hand, and those of the first respondent, on the other, I hold the view that the balance of convenience favours the granting of an interlocutory interdict, because if the first respondent is allowed to effect transfer of the disputed property, it will be difficult to reverse the transaction. The applicants do not, at this stage, seek to take transfer but to prevent the disposal of the disputed property. Having fulfilled the above requirements of an interdict pendente lite, I granted the provisional order – Knox D’Archy Ltd and Ors v Jamieson and Ors 1995(2) SA 579(W); Harnischfeger Corporation v Appleton &
Anor1993(4) SA 479(W); Bull v Minister of State (Security) & Ors 1987(1) SA 422 (ZH); Setlogelo v Setlogelo 1914 AD 221; Gideon v Ngumo 1973(2) RLR 197; Flame Lily Ivestments Co (Pvt) Ltd v ZM Salvage 1980 ZLR 378 and Dube and Ors v Siyaphambili Collective Farming Co-operative Soceity and Ors HB-6-04.
Accordingly, I granted the order in the draft.
Mhuruyengwe & Associates c/o Calderwood, Bryce Hendrie & Partners,applicants’ legal practitioners
Lazarus & Sarifrespondents’ legal practitioners