MURANDA v TODZANISO & ORS 1998 (2) ZLR 325 (H)

Flynote

Contract — cancellation — sale — of land — land sold to one person — before transfer to first buyer had taken place, land sold at a higher price to another — whether seller entitled to cancel first sale C

Contract — conditional — sale of immovable property on condition that guarantee and bond obtained — no time limit specified — seller not entitled to repudiate contract where contract and bond obtained within a reasonable time D

Headnote

The first respondent sold a piece of land to the applicant. It was a condition of the contract that the applicant had to get a guarantee from his employer and a first mortgage bond from a building society. While the applicant was making arrangements for these matters (which took 51 days to obtain), the first respondent found a buyer, the second respondent, who was prepared to pay a higher price for the property. The applicant sought an order under which he would be entitled to take transfer of the property and requiring the first respondent to transfer the property to him and to no-one else.

The application was opposed on the grounds that the first respondent had cancelled the contract.

He claimed that he was entitled to do so in terms of the contract. He also claimed that time was of the essence and that the applicant took too long to get the guarantee and bond.

Held, that in terms of the relevant clauses in the contract, if the first respondent wanted to cancel the contract he had to give notice to the applicant of his intention to do so.

Held, further, that there was no time limit stipulated in the contract and the time taken by the applicant to get the guarantee and bond was entirely reasonable.

Held, further, that where there has been a successive sale of property, and transfer has been passed to neither purchaser, the first purchaser can, in the absence of special circumstances affecting the balance of equities, interdict the seller from passing transfer to the second purchaser and obtain specific performance of the contract. The second purchaser's only remedy is for damages. There was nothing in this case to affect the balance of equities in favour of the second purchaser, and the application would be granted.