GOWORA
JA:
THE
FACTUAL BACKGROUND
Appellants
are the owners of a certain immovable property, known as WAMICA Farm
measuring 644,795 ha (“the farm”). It is rural land.
The
first respondent (hereinafter referred to as the respondent) is a
private company duly registered as such under the laws of Zimbabwe.
It carries on business in the agricultural sector.
On
5 December 2012, the respondent made a written 'Final Offer' for
the acquisition of the farm to the appellants. The offer describes
the farm, outlines how valuation of the price was conducted and
specifies the price offered together with the proposed payment terms.
The
appellants accepted the offer on 6 December 2012.
On
the same date, pursuant to the acceptance of the offer, the parties
concluded an “Irrevocable Memorandum of Understanding'
(hereinafter referred to as the “MOU”) in relation to the same.
In
view of the statutory legal requirement attendant upon the sale of
rural land, the appellants immediately made an application to the
Ministry of Lands for the issuance of a Certificate of No Present
Interest.
The
application was acknowledged by letter of the same date. The
Certificate of No Present Interest was issued sometime in the same
month.
In
the meantime, in anticipation of the issuance of the certificate, the
respondent had, through its legal practitioners, prepared a written
agreement of sale. However, the agreement was not signed due to
alleged unwillingness to co-operate on the part of the appellants.
On
16 March 2013 the respondent became aware that the farm was being
advertised for sale as subdivided plots.
The
respondent, being of the view that a valid sale agreement had been
concluded between itself and the appellants, approached the High
Court on a certificate of urgency seeking an interim interdict
against transfer of the farm, and a final order declaring that a
valid agreement of sale of the farm had been concluded between the
parties, and, consequent thereto, an order for specific performance
of the sale agreement in its favour.
The
respondent sought ultimately an order for the transfer of title in
the farm to itself.
The
matter was found not to be urgent and was subsequently re-set down on
the normal roll.
The
court a
quo
found that an agreement of sale had been entered into and it ordered
specific performance in favour of the respondent.
The
appellants were aggrieved by that decision and have entered the
present appeal on the following grounds:
1.
The learned judge a
quo
erred and misdirected herself by failing to appreciate that the 1st
Respondent was not entitled to the relief of specific performance. In
particular that the learned judge ignored the evidence that the
property in dispute had been subdivided, advertised and sold prior to
the commencement of proceedings in court and at the time of hearing
counsel.
2.
The learned judge a
quo
erred and misdirected herself by making an order for specific
performance yet the evidence put before the court did not show the
existence of a valid and binding agreement between the parties.
3.
The learned judge a
quo
erred and misdirected herself by making a finding that the appellants
were in breach of contract yet no valid Agreement of Sale was put
before the court.
4.
The learned judge a
quo
erred and misdirected herself by failing to appreciate that both the
offer and acceptance document and the memorandum of understanding
were both void ab
initio
at the time of their signing as these were entered into before the
issuance of a certificate of no present interest by the Ministry of
Lands and Rural Resettlement.
5.
The learned Judge a quo erred and misdirected herself by failing to
appreciate that the dies
induciae
of
signing the actual agreement of sale as contemplated in the offer
document and memorandum of understanding lapsed before the parties
could sign therefore no valid and binding agreement existed as
between the parties.
There
are three factual issues which are common cause in this case:
(i)
Firstly, that the respondent made a valid offer to purchase the farm
from the appellants, which offer was accepted by the appellants, the
proof whereof lies in the offer document to which all the parties
appended their signatures on 6 December 2012.
(ii)
Secondly, that the parties proceeded to execute an MOU on the same
day.
(iii)
The last is that the agreement of sale that was dependent upon the
issuance of a certificate of no present interest from the relevant
Ministry was not concluded by the parties.
Counsel
for the appellants argued that the court a
quo,
contrary
to its comments as stated above, clearly misdirected itself when it
then made a finding that the series of documents agreed to by the
parties, metamorphosised into an agreement of sale of the farm, a
position postulated by the respondent.
It
was argued further on behalf of the appellants that the judgment of
the court a
quo
remained unclear as to which agreement the court considered to be
binding on the parties.
The
passage which is the subject of the attack is at p5 of the
cyclostyled judgment and reads:
“The
agreements entered into by the parties are enforceable. All the key
terms were agreed to in the final offer and the MOU. In fact all the
essential elements of a contract were present and all that remained
was for the parties to prepare the contract document and sign it. It
is for these reasons that I conclude that the parties intended to be
bound by these agreements.”
The
court a
quo
refers to the offer and the MOU as the contract between the parties,
and it took these separate agreements as one when it granted specific
performance, based on the MOU.
The
parties themselves were not agreed that the MOU would be the
agreement of sale.
This
is evident from the MOU itself. The thrust of the MOU was:
“…
to
set out the basis upon which the transaction shall be concluded and
to set out rights and obligations upon each party leading to the
signing of a SALE AGREEMENT between the parties. It is the parties
understanding that the sale agreement be concluded immediately upon
the successful completion of the necessary regulatory approvals by
the Ministry of Agriculture, Land and Rural Resettlement.”
In
my view the dispute stands to be resolved by the determination of the
following issues:
1.
Whether the court a
quo
made the correct finding that a valid agreement of sale existed
between the parties.
2.
Whether any legal rights flow from the MOU signed by the parties.
3.
Whether the court could order transfer of the farm notwithstanding
the subdivision of the same into plots pursuant to a permit.
1.
DID A VALID AGREEMENT OF SALE EXIST BETWEEN THE PARTIES
In
essence there were two contracts envisaged after the offer for the
purchase of the farm was accepted. The first was the MOU itself which
would lay the basis for the conclusion of the agreement of sale of
the land, the second the contract of sale itself. The court a
quo
properly undertook a process under which it scrutinised and analysed
each of the documents executed by the parties. It commented thus in
relation to the Final Offer:
“It
is clear from the offer that an agreement of sale would be concluded
at a subsequent stage. The offer was subject to the acquisition of a
certificate of no present interest from the relevant authority. In
order to record this fact the parties entered into a Memorandum of
Understanding. The MOU recorded that a contract would only be
concluded after the certificate of no present interest had been
granted. The contract was subject to the happening of a future
event.”
The
court a
quo
also found that:
“…
The
final offer constitutes a preliminary agreement where the parties
would sign another contract. The parties had agreed on the key terms
of the contract but had not signed the actual contract and had agreed
to be bound to carry out, in good faith all the actions as may be
necessary to expedite the transfer and registration of the farm.”
As
a consequence, the court accepted that there was no contract of sale
entered into through the Final Offer.
The
MOU was a vehicle through which the agreement of sale would be
concluded.
The
MOU specifically provided that a contract would be concluded upon the
obtaining of a certificate of no present interest.
In
discussing the terms of the MOU the court remarked:
“These
facts disclose an agreement to agree in future in good faith. The
objective, which was to bind the parties to agree to enter into a
final contract, did not happen. No agreement of sale was entered
into. This scenario is distinguishable from a contract of sale
subject to a suspensive condition which comes into effect on
fulfilment of a specified condition. In this case, there was no
contract of sale entered into as envisaged.”[1]
It
is abundantly clear that the court's analysis of the offer and the
MOU cannot be faulted nor can the conclusion by the court that a
contract would be concluded after a certificate of no present
interest would have been obtained from the relevant ministry.
The
court a
quo
was alive to the condition upon which an agreement would be entered
into and that in fact no agreement of sale was ever entered into.
Its
finding in the face of all the above observations that an enforceable
agreement existed through a series of agreements was a clear
misdirection.
2.
WHETHER ANY LEGAL RIGHTS FLOWED FROM THE MOU
It
is evident that the court accepted that the offer was subject to a
condition precedent, and further, that no agreement of sale was
entered into. This finding emerges clearly in the judgment, wherein
it is stated as follows:
“The
objective which was to bind the parties to agree to enter into a
final contract, did not happen. No agreement of sale was entered
into… In this case there was no contract of sale entered into as
envisaged.”
However,
the court then departed from this pertinent finding and fell into
error when it held, as it did, that:
“…
the
agreement to agree contains key or sufficient and definite terms of
agreement even though a few details still have to be worked out and
there is a dispute resolution mechanism provided for in this case,
this renders the agreement certain and enforceable. The agreements
entered into by the parties are enforceable. All the key terms were
agreed to it in the final offer and the MOU. In fact, all the
essential elements of a contract were present and all that remained
was for the parties to prepare a contract document and sign it. It is
for these reasons that I conclude that the parties intended to be
bound by these agreements.”[2]
The
courts are enjoined to give effect to contracts between parties in
the manner the parties agreed.
The
aim of the MOU was to set out the basis upon which a sale would later
be concluded. This is apparent from section 1 of the MOU. It is
worded as follows:
“The
aims and objectives of this Memorandum of Understanding shall be to
set out the basis upon which the transaction shall be concluded and
to set out the rights and obligations of each party leading to the
signing of a SALE AGREEMENT between the parties. it is the parties
(sic) understanding that the Sale Agreement be concluded immediately
upon the successful completion of the necessary regulatory approvals
by the Ministry of Agriculture, Land and Rural Resettlement.”
It
stands to reason therefore that the sale agreement was to be effected
at a later date subject to the terms and conditions set out in the
MOU and, subject also to further negotiations by the parties.
The
wording of the MOU itself lends support to an interpretation which is
only consonant with a finding that the MOU was not the agreement of
sale in itself.
Section
5 of the MOU reads as follows:
“The
parties shall assign personnel on a mutually agreed basis, on terms
and conditions which they shall agree to, separate from this
memorandum for the purpose of cooperating in concluding the Sale
Agreement.”
Further
and in addition to the above, section 7 of the MOU confirms that the
MOU was not in itself the Sale Agreement:
“Both
parties shall use their best endeavour and make all efforts to ensure
the Sale is concluded and to best advantage.”
The
court could not therefore hold that the sale of the farm had been
concluded in the face of these provisions of the MOU.
In
this jurisdiction, it is settled law that agreements akin to the one
in
casu
are not enforceable primarily due to the uncertainty which
accompanies such contracts.
The
court a
quo
was alive to this principle and commented that in agreements to agree
in the future the parties thereto retain a discretion as to whether
or not to agree or disagree in the future.
In
Premier,
Free State and Ors v Firedom Free Estate (Pvt) Ltd
2000 (3) SA 413 (SCA), the court held:
“An
agreement that parties will negotiate to conclude another agreement
is not enforceable because the absolute discretion is vested in the
parties to agree or disagree.”
If
it were to be accepted for reasons stated by the court that the MOU
is a binding agreement, the respondent could not have successfully
sued for specific performance solely based on the same.
The
only binding agreement between the parties was an undertaking to
agree.
In
upholding the MOU, the court a
quo
needed to make a specific finding on what could be enforced in terms
of the same. And yet, despite its earlier finding that no agreement
of sale had been concluded, the court then went on to find that there
was an enforceable agreement.
This
what the court said:
“Where
the parties have agreed on key elements of the contract it is
essential that the court enquire into whether the parties intended to
enter into a binding contract. It is essential to examine the terms
of the MOU and the final offer to determine if there were any binding
terms. This will assist the court in determining what the intention
of the parties was when they entered into the agreements.”
It
seems that the court was persuaded to find that once the parties had
agreed on essential terms, and where the agreement contains terms to
negotiate in the future and the agreement provides dispute resolution
mechanisms, the parties should be held to the contract.
The
court concluded further that the parties had expressed an intention
to be bound once the regulatory approvals were obtained, and that,
when these were to hand, the agreement would be enforceable.
Accordingly,
it was the judge a
quo's
reasoning that the existence of the pretium,
the
merx
and
the
payment terms, coupled with the provision of a dispute settlement
mechanism, rendered the offer document and MOU enforceable.
The
court premised its conclusions on the following authorities;
Southernport
Developments (Pty) Ltd v Transnet Ltd
ZASCA
94 2 ALL SA 16 (SCA) and the Australian case of R
& D Construction Group Ltd v Hallam Land Management Ltd
(2009)
CSO H 128.
Before
us Mr Zvobgo
advanced the same principle and sought to rely on the authorities on
which the High Court based its judgment.
The
court went on to state:
“What
is clear from the foregoing is that an agreement to agree or
negotiate on a future contract is enforceable where the parties have
agreed on essential terms of the contract and the agreement provides
for a dispute resolution mechanism to resolve the unresolved issues.
I intend to determine whether the agreements by the parties are
enforceable.”
The
dispute resolution mechanism which fortified the court's conviction
that an agreement of sale had been entered into related to the MOU
itself and not a sale agreement which was to be concluded later.
The
dispute resolution mechanism was only applicable in relation to
issues arising from the enforceability of the MOU itself. As a
result, any remedies emanating from the mechanism in the MOU were
restricted to the MOU and could not be extended to a further
agreement of sale which would be concluded later.
Thus,
the court contradicted itself in material respects.
I
therefore find that the court in effect prematurely found that an
agreement of sale had been entered into when both parties agreed that
the agreement of sale had not yet been concluded and would only be
executed at a later stage.
It
was a further term of the MOU that the rights and obligations arising
from the MOU would terminate upon the expiry of 60 days from the
signing of the MOU.
The
relevant portion reads as follows:
“This
agreement shall terminate upon the signature of a Sale Agreement. In
the event that a Sale Agreement is not entered into between the
parties within 60 days from the date of the signature of this
agreement then this agreement shall terminate and all rights and
obligations flowing from it shall fall away.”
Persuaded
by the appellants alleged lack of good faith in their dealings with
the respondent, the court a
quo
went on to grant relief based on the MOU.
The
court found as follows on page 6 of the cyclostyled judgment:
“The
respondents played a hide and seek game and deliberately delayed the
signing of the final contract until the 60 days had elapsed and
ultimately refused to sign the final agreement. They did not act in
good faith. I find therefore that that (sic) the respondents are in
breach of contract.”
The
agreement was signed on 6 December 2014 and was to expire on 4
February 2013. The application before the High Court was brought on
18 February 2013.
Beyond
4 February 2014, there were no rights arising from the MOU which
could be enforced by any of the parties.
Thus,
in terms of the same, the parties agreed to an extinctive
prescription of any cause of action arising from the MOU.
The
respondent should have sued the appellants within that period,
especially taking into account the fact that by 11 December 2013 it,
the respondent, already had determined that the appellants were
reneging on the terms of the MOU.
It
could have resorted to the dispute resolution clause in the MOU.
It
was obvious that the MOU had terminated and the lack of good faith
could not give rise to a right upon which specific performance could
be granted. The court did not spell out the breach of contract that
it alluded to in the judgment.
On
this aspect the court erred as well.
The
right which respondent seeks to enforce in these proceedings was
already lost when it sued. A court is not entitled to enforce rights
which stand lost by operation of law.[3]
I
therefore find that post 4 February 2013 the respondent had no cause
of action as against the appellants ex
contractu.
On
this basis alone, the appeal ought to succeed.
In
the event, the court a
quo
grossly misdirected itself in granting specific performance in the
absence of agreement of sale upon which such order would be legally
justifiable.
In
Reserve
Bank of Zimbabwe v Corrine Granger and Anor[4]
the
court held in part that:
“An
appeal to this Court is based on the record. If it is to be related
to the facts, there must be an allegation that there has been a
misdirection on the facts which is so unreasonable that no sensible
person who applied his mind to the facts would have arrived at such a
decision. And
a misdirection of fact is either a failure to appreciate a fact at
all, or a finding of fact that is contrary to the evidence actually
presented.
See Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S) at 670; and S
v Pillay
1977 (4) SA 531 (AD) at 535C-E.” (my emphasis)
3.
WHETHER THE MOU EXECUTED BY THE PARTIES HAS ANY LEGAL FORCE
In
my view, further to the above, this appeal is easily determinable on
the simple question of whether the alleged “agreement” is invalid
for want of statutory compliance and this is the point I turn to
enunciate.
The
farm at the centre of this dispute falls under the category of rural
land. Such land is administered under the Land Acquisition Act.[5]
Both
parties understood that in order for them to enter into a valid
agreement of sale of the farm, there was need for the appellants to
first approach the relevant authority in order that it could exercise
its statutory right of first refusal to purchase the land.
The
law prescribes that a holder of land categorised as rural land cannot
sell his or her land to any other person without having approached
the State to exercise its statutory right of first refusal.
If
the State is not interested in the land, the relevant Minister will
issue a certificate of no present interest and only then may a party
proceed to enter into an agreement of sale with any other party.
The
above legal requirements are enshrined in section 3 of the Land
Acquisition (Disposal of Rural Land) Regulations,[6](“the
Regulations”) which reads in relevant part:
“3.
Minister to be given right of first refusal on sale of rural land
(1)
Subject to these regulations, the owner of any rural land, other than
the State, a local authority or a statutory body, shall
not sell the land unless he has offered to sell it to the Minister
and
—
(a)
the
Minister has issued him with a certificate of no present interest; or
(b)
the Minister has not responded to the offer within the ninety-day
period specified in subsection (1) of section 5.
(2)
An offer in terms of subsection (1) shall be in writing and shall —
(a)
specify the price which the owner is prepared to accept for the rural
land concerned; and
(b)
describe the nature and extent of the rural land concerned and any
buildings or other improvements on the land; and shall be accompanied
by a copy of the title deed of the land.”(my emphasis)
The
use of the word “shall” in section 3(1) quoted above renders it
mandatory for any rural land holder who wishes to sell the land to
first offer the land to the Minister so that the Minister may
exercise the right of first refusal.
A
seller has no discretion and must comply with the statutory
condition.
It
is my view that the issue concerning the right of first refusal
vested in the Minister in relation to the sale of rural land was
critical in resolving the question that was before the court a
quo
as to whether the parties had entered into a valid agreement of sale.
Where
such contract is proscribed by statute, it is invalid and
non-compliance with the condition invalidates the whole contract.
This
principle is well enunciated in X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd[7]
wherein McNALLY JA (as he then was) quoted with approval the words of
LEWIS ACJ in York
Estates Ltd v Wareham
1949
SR 197 who remarked as follows:
“As
a general rule a contract or agreement which is expressly prohibited
by statute is illegal and null and void even when, as here, no
declaration of nullity has been added by the statute."
Had
the court a
quo
considered the provisions of section 3 of the Regulations, it would
have resolved that the “agreement” it was being enjoined to
endorse as valid was an agreement that was proscribed by law.
Such
a finding would have disposed of the matter.
It
seems that the legal practitioners of the parties to the dispute
omitted to address the court on the said provision.
That
notwithstanding, the court could have mero
motu
raised the issue and resolved the dispute accordingly.
A
court may raise the question of illegality mero
motu
if it appears ex
facie
the transaction or if it is satisfied that all the evidence on the
surrounding circumstances was led.[8]
The
court in X-Trend-A-Home (supra) had to consider section 39 of the
Regional, Town and Country Planning Act [Chapter
29:12].
In
order to crystalize the issue that was before it, the court posed the
question: “Does section 39 of the Regional, Town and Country
Planning Act [Chapter 29:12] prohibit persons from entering into an
agreement for the change of ownership of any portion of a property,
even where the agreement is made, expressly or impliedly, conditional
upon the obtaining of a permit for subdivision of that portion?”
Section
39 of the Regional, Town and Country Planning Act reads in relevant:
“39.
No subdivision or consolidation without permit
(1)
Subject to subsection (2), no person shall —
(a)
subdivide any property; or
(b)
enter into any agreement —
(i)
for the change of ownership of any portion of a property; or except
in accordance with a permit granted in terms of section forty.”
The
court examined the origins of the section dating back to the Southern
Rhodesian Country Land Sales Restriction Regulations, 1943. The court
carefully examined all the cases that had been decided under the
Regulations and the statutory instruments that followed in an
endeavour to identify the mischief intended to be cured by the
legislation. The court went on later in the judgment and held:
“The
agreement with which we are concerned is clearly 'an agreement for
the change of ownership' of the un-subdivided portion of a Stand.
What else could it be for? Whether the change of ownership is to take
place on signing, or later on an agreed date, or when a suspensive
condition is fulfilled, is unimportant. It is the agreement itself
which is prohibited.”[9]
Applying
the above quoted principle to the facts in casu
the
only conclusion to be arrived at is that the “agreement” which
the court a
quo
found to exist between the parties was illegal. A sale of rural
land before the relevant Minister has expressed his disinclination to
buy the same is prohibited. It is clear that the appellants had not
complied with section 3 of the Regulations. The courts do not give
effect to illegal agreements. The fact that the parties did not
object to the contract does not make the contract any less of a
breach of a clear statutory provision.[10]
Turning
to the common law, it is an established principle of the law
governing contracts that an agreement of sale that is subject to the
fulfilment of a condition precedent that has not been fulfilled is
not a valid sale.
The
aforesaid principle was referred to in Sithole
v Khumalo & Ors
HB 28/08, a judgment by NDOU J wherein he remarked as follows at p5:
“This
agreement is subject to an important reservation. A
contract of sale subject to a condition precedent that has not yet
been fulfilled is not a sale
– Leo
v Loots
1909 TS 366 at 370-1…” (Emphasis added).
On
this basis alone the instant appeal ought to succeed.
WHETHER
THE SUBDIVISION OF THE FARM HAD ANY EFFECT ON THE ORDER OF SPECIFIC
PERFORMANCE
The
court ordered specific performance wherein the basis for the
respondent in approaching the court was the allegation against the
appellants that they had subdivided their farm and were selling the
subdivisions thereof.
The
court a
quo
found for a fact that the farm had been subdivided. The court said at
p6 of the cyclostyled judgment:
“Instead
they tried to sell divided portions of the farm to other people
contrary to the agreement.”
The
Final Offer was in respect of the whole farm.
A
whole piece of land is a different entity to subdivided portions of
the same.
Once
the appellants obtained a subdivision permit in respect of the farm,
the merx
as it originally stood and offered to the respondent had ceased to
exist.
The
subdivision of the farm resulted in the creation of a number of
different properties, such that there no longer was a farm, but a
number of plots where the farm once stood.
It
is trite that the remedy of specific performance is a discretionary
power vested in a judicial officer.
In
Farmers
Co-operative Society (Reg) v Berry
1912
AD 343, INNES JA stated at 350 that:
"Prima
facie every party to a binding agreement who is ready to carry out
his own obligation under it has a right to demand from the other
party, so far as it is possible, a performance of his undertaking in
terms of the contract. As remarked by KOTZE CJ in Thompson
v Pullinger
(1 OR p301) 'the right of a plaintiff to the specific performance of
a contract where the defendant is in a position to do so is beyond
all doubt'. It is true that Courts will exercise a discretion in
determining whether or not decrees of specific performance will be
made."
In
Zimbabwe
Express Services (Pvt) Limited v Nuanetsi Ranch (Private) Limited
[11]
GARWE JA had occasion to comment:
“An
order of specific performance is, however, at the discretion of the
court and there are circumstances in which a court may refuse to
grant an order of specific performance. The discretion is:
'[not]
… completely unfettered. It remains, after all, a judicial
discretion and from its very nature arises from the requirement that
it is not to be exercised capriciously, nor upon a wrong principle:
Ex parte Neethling (supra at 335). It is aimed at preventing an
injustice – for cases do arise where justice demands that a
plaintiff be denied his right to performance – and the basic
principle thus is that the order which the court makes should not
produce an unjust result which will be the case, e.g. if, in the
particular circumstances, the order will operate unduly harshly on
the defendant.'
Per
HEFER JA in Benson
v South Africa Mutual Life Assurance Society
1986 (1) SA 776 (A) at 783C-D.”
The
principle lex
non cogit ad impossibilia
states that specific performance should never be ordered if
compliance with the order would be impossible.[12]
The
respondent inexplicably assumed that the merx,
viz
the farm still existed, this despite the subdivisions. The
subdivision of land is not a matter of form, it is one of substance.
The
remedy of specific performance was not available to the respondent.
Instead
of suing for specific performance it was open to the respondent to
sue for a mandamus
directing the appellants to attend to the consolidation of the
subdivisions so that the remedy of specific performance could be
complied with. However, that is not the route that the respondent
took and the court a
quo
should have considered the dispute on the facts before it.
The
order it gave was impossible and incapable of performance by the
appellants.
DISPOSITION
It
is not in doubt that the court a
quo
held
that the MOU was an enforceable agreement and granted the relief of
specific performance on its basis.
In
doing this, the court a
quo
was clearly wrong in three fundamental respects:
(i)
Firstly, it erred in holding that the MOU and the final offer could
amount to a contract of sale. The MOU was not an enforceable contract
as concluded by the court a
quo.
(ii)
Secondly, it erred in ordering specific performance on the basis of
the MOU which was not only void for want of statutory compliance, but
whose existence had terminated through effluxion of time. If the MOU
was an 'enforceable' contract, it was invalid for want of
compliance with the Regulations.
(iii)
Thirdly, it ordered specific performance where the merx
was no longer in existence and available for disposal. In addition,
specific performance could not possibly have been granted because the
merx
was no longer available.
There
was no basis for the court a
quo
to order specific performance on the basis of the Final Offer and the
MOU.
I
am satisfied that, for the above reasons, the appeal has merit and
must therefore succeed.
In
the result, the following order will issue:
1.
The appeal is allowed with costs.
2.
The order of the court a
quo
is set aside and in its place the following is substituted:
“The
application is dismissed with costs.”
GARWE
JA: I
agree
PATEL
JA:
I agree
Musunga
& Associates,
appellants legal practitioners
Dube,
Manikai & Hwacha,
1st
respondent's legal practitioners
[1]
Page 3 of the cyclostyled judgment.
[2]
Page 5 of the cyclostyled judgment.
[3]Airfield
Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural
Resettlement and Others SC 36/04
[4]
SC 34/2001 page 5-6 of the cyclostyled judgment
[5]
[Chapter 20:10]
[6]
S.I.287/99
[7]
2000 (2) ZLR 348 (SC) 351
[8]
Harms, Amler's
Precedent of Pleadings,
4th (1993) 158
[9]
At 355A. Also see Tsamwa
v Hondo and Others
2008 (1) ZLR 401 (H) for a general discussion of the issue
[10]
Tsamwa v Hondo and Others
2008 (1) ZLR 401 (H)
[11]
2009 (1) ZLR 326 (S)
[12]
RH Christie, The
Law of Contract in South Africa,
3rd
ed, page 581, also see
Rissik v Pretoria
Municipal Council 1907
TS 1024 1037
