HB 093-18 EDMUND MBANGANI versus SAMUKELISO MABHENA

EDMUND MBANGANI

versus

SAMUKELISO MABHENA

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 21 MARCH 2018 AND 29 MARCH 2018

 

 

Opposed Matter

 

 

Ms P Mvundla for the applicant

Z C Ncube for the respondent

 

 

 

            MOYO J:       This is an application in terms of order 11 rule 75 wherein applicant seeks the dismissal of the respondent’s case in HC 3196/17 as being frivolous and vexatious.  At the hearing of the matter, I dismissed it.  Here are my detailed reasons.

            The background to this matter is that the two parties entered into an agreement of sale wherein they sold to each other an immovable property.  The agreement of sale was reduced to writing and payment was due on 13 August 2017.  It is common cause that the purchaser who is the applicant herein and the defendant in the main matter, breached the agreement of sale as he did not pay on the prescribed date.  However, from applicant’s version it would appear respondent (being the seller) condoned the late payment by conduct as she allegedly signed transfer papers after the default had occurred.  On the other hand, the agreement has a clause 8 which provides thus:

            “8.       VARIATIONS:

This agreement contains the whole of the agreement between the parties and any other terms, provisions and conditions whether express or implied and excluded herefrom and any variations, alterations or additions to this agreement shall not be of any force or effect or legal validity unless reduced to writing and signed by the seller and the purchaser.”

 

            It would appear that the purchase price was paid to the seller’s agents albeit late as it was paid on 4 September 2017.  It would appear the parties entered into further negotiations as the seller sought to be paid some form of interest for the breach.  That seems to have hit a dead end 

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2018