Judgment No. HB 70/06
Case No. HC 540/06
Xref HC 509/05
Xref HC 1239/05
DR. HEZEKIEL MAFU
SEVENTH DAY ADVENTIST ASSOCIATION
OF SOUTHERN AFRICA T/A WEST ZIMBABWE
IN THE HIGH COURT OF ZIMBABWE
26 JUNE 2006 AND 6 JULY 2006
Mr Masukufor the applicant
Ms N. Ncubefor the respondent
Urgent Chamber Application
CHEDA J: This is an application for a confirmation of a Provisional Order granted by this Court on the 21st March 2005.
The brief background of this matter is that applicant is the former President of respondent.
On the 15th day of October 2004, parties entered into an agreement of sale wherein applicant purchased a motor vehicle being an Isuzu Twin Cab, Registration number 811-960P from respondent. One of the terms of the said agreement was that applicant was to make full payment of the purchase price on or before the 15th day of January 2005.
Payment was to be made within a period of two months which was further extended to a further two months and applicant was to take possession of the vehicle after full payment of the purchase price.
Sometime in December 2004, Applicant made a deposit of $42 million to the respondent which he later withdrew as respondent insisted that they would only receipt it against full payment has been made. To date the purchase price has not been made.
It is the applicant’s case that he could not pay the full purchase price because respondent was not co-operative in that it refused to write a letter giving the particulars of
the said motor vehicle namely, the purchase price, chassis, engine and registration numbers. These details were required by his financier.
Ms Ncube for respondent has argued that applicant has no right to bring this application or better still is not entitled to the relief he is seeking as he has no clear right over the motor vehicle he is claiming.
Applicant was granted an interdict which is issued at the discretion of the Court as it is applied for, ex-parte.
The question now is, should he be granted a final order? Ms Ncube has argued that he is not entitled to one.
The requirements for a final interdict were clearly laid down in Setlogelo v Setlogelo 1914 AD 221 at 227. These are:-
that a clear right has been infringed; a prima facie right is insufficient for a final interdict.
there must be a reasonable apprehension that the applicant’s rights will be violated, or such rights have been violated.
the applicant has no other remedy available to it.
In addition, to this scenerio, respondent is in possession of the motor vehicle and it is still registered in its name. Therefore the balance of convenience favours respondent. One of the requirements of a final interdict is the establishment of a clear right. In Setlogelo’s case supra it was held that such right could not only be asserted to by
ownership but by bona fide occupation as well. In casu, applicant was not in possession of the motor vehicle and did not pay for it. If he had been either in possession or at least paid
for it, his right would have been established. His failure to do so, therefore, in my view, disentitles him from claiming any right on the said motor vehicle.
Applicant has not paid any money towards the purchase of this vehicle. He, however, has proffered an explanation for his non-timeous payment. His explanation is
that, at the time the balance became due and payable his efforts to pay were frustrated by respondent in that its employees refused to give him a letter which was required by his financier to process payment. The letter in question was to give details and/or particulars of the said vehicle.
The question is, was it necessary, for respondent to write such a letter? In my view, it was not, as applicant was already in possession of a letter of an out of court settlement dated the 15th day of October 2005. The said letter contained all the details necessary for the processing of his loan application.
I, therefore, find that it was not necessary for applicant to insist on information which was already in his possession. His explanation in my view is unreasonable and not worth of belief.
Respondent did not frustrate him in any manner. His failure to fulfil the contract can not be attributed to anybody else, but himself.
It is his sole failure to make a timeous payment which has resulted in his breach of the contract.
The Provisional Order in case number HC 509/05 be and is hereby discharged.
Lazarus and Sarif, applicant’s legal practitioners
Ben Baron and Partners,respondent’s legal practitioners