COLEMAN v FAZILAHMED & ORS 1988 (2) ZLR 330 (HC)

Flynote

Contract — breach of — notice to remedy breach delivered to addresses other than the domicilium citandi — effect of such delivery.

Evidence — receipt of document — whether proof of posting of document can prove receipt of the document.

Practice and procedure — pleadings — requirement for defendant to deal specifically with allegations in declaration — vague replies insufficient to allow court to decide matter in favour of defendant.

Headnote

The respondents purchased a piece of immovable property from the applicant. They breached the contract by failing to keep the property in a good state of repair. The contract permitted the applicant to cancel the contract if the respondents remained in breach for fourteen days after despatch of written notice by registered post requiring the remedying of the breach. The domicilium citandi provided by the contract was the property itself, but the applicant sent the notices to the second and third respondents at different addresses. They claimed that the applicant's cause of action failed for want of giving proper notice requiring the remedying of the breach of contract.

In their pleadings, the respondents admitted some of the allegations about the damage done to the applicant's property, but gave no reason for the damage or any real indication of when the damage might be made good.

Held, that the domicilium citandi clause was one for the benefit of the applicant, who was, in the absence of indications to the contrary in the contract, entitled to adopt the more burdensome process of giving direct notice to the respondents and of proving that notice was received. The words in the contract "All notices ... shall be sent" did not indicate a contrary intention.

Held, further, that proof of posting of a document does not of itself prove receipt thereof; it is merely evidence from which the inference may bedrawn that the document reached the addressee. All the circumstances must be considered in order to decide whether the inference of receipt should be drawn. The circumstances include the absence or presence of a denial by the addressee that he received the document. The absence of a denial will normally lead the court to infer that the letter was received, as will a denial which is disbelieved. The reason for this approach is the maxim omnia praesumuntur rite esse acta, ie the official acts of the postal authorities are presumed to have been properly executed.

Held, further, that the defendants' pleadings were so vague as to be meaningless. They did not constitute evidence on which the court could rely, let alone conclude that the defendants were no longer in breach.