MINISTER OF NATURAL RESOURCES & TOURISM v F C HUME (PVT) LTD 1989 (3) ZLR 55 (S)

1989 (3) ZLR p55

Flynote

Constitutional law — State liabilities D — State Liabilities Act [Chapter 54] — s 2 — State may be sued for breach of contract in same way as private person.

Contract — sale — breach of contract by seller — remedies for — seller does not have right to elect to pay damages instead of carrying out contractual obligations.

Headnote

The appellant Minister had designated an area of land in the Sinoia Caves Recreational Park as being one which could be alienated for the erection of hotels. In 1982 the site was offered to the respondent (who was already lessee of the site), who accepted the offer and paid the purchase price and stamp duty. The necessary Presidential approval for the alienation of State land was granted and the Deed of Grant approved. The Deed of Grant was submitted to the Registrar of Deeds but rejected because of typing errors. The papers were sent back to the Ministry for correction, but lengthy delays occurred. When fresh papers were sent to the Cabinet for the President's signature, the government announced that it had changed its policy and would not sell the land. The respondent sought specific performance of the contract of sale. The appellant argued that she should not have been sued because she had no power to alienate State land, nor to enter into a contract to do so.

Held, that the appellant was not being asked to enter into a contract. The contract was already complete, all the necessary formalities having been

1989 (3) ZLR p56

observed. All that she was being asked to do was complete the administrative processes necessary to give effect to the contract entered into. There was no need to seek the President's approval afresh because of the rejection of the Deed of Grant.

Held, further, that in terms of s 2 of the State Liabilities Act [Chapter 54], the State could be sued for specific performance of contract as if it were a private person. The court was doing no more than it would do in any other similar case: requiring the seller to carry out what it had bindingly promised to do.

Held, further, that the State in this situation did not have the option to pay damages for its breach: the right of election, whether to hold the defendant to the contract or to claim damages for the breach, belonged to the respondent.