NDLOVU V MURANDU 1999 (2) ZLR 341 (H)

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NDLOVU v MURANDU 1999 (2) ZLR 341 (H)

Flynote

Contract — completion — fictional fulfilment — contract of sale, with payment in instalments — buyer tendering final instalment but seller rejecting tender — seller not entitled to cancel

Legal practitioner — conduct and ethics — abuse of court process — legal practitioner helping client to attempt to frustrate binding contract by using court process — practitioner deprived of fees

Headnote

The applicant entered into a written contract with the respondent in terms of which he sold his interests, rights and title to a stand in one of the high density suburbs of Bulawayo. Most of the purchase price was paid by the respondent to the applicant when the agreement was signed. The remainder of the purchase price, namely, $2000, was to be paid in instalments over three months but it was later agreed between the parties that the remaining $2000 would be paid against transfer of the stand. Acting on instructions to do so, the applicant's lawyer then demanded payment of the $2000 plus interest from the applicant within seven days, thereby purporting to put the respondent in mora. In response to this demand, the respondent tendered payment of the $2000 against transfer. Presumably on the advice of his lawyer, this tender was ignored or rejected and instead a letter was dispatched to the respondent, purporting to cancel the sale and tendering back the money already paid to the applicant. The applicant then applied to court for an order confirming this purported cancellation of the sale.

Held, that the later agreement that the respondent would pay the $2000 against transfer was not a variation of the contract, but even if it was, it was justified as it was merely intended to complete the terms of the written agreement, the agreement having failed to include the essential clause relative to transfer.

Held, further that a tender of performance is equivalent to performance. If a contract of sale provides that payment has to be made by a certain date by the buyer, a tender made by that time will be valid and will protect the buyer from the consequences which would otherwise follow in terms of the contract. If the tender of the required payment is made but it is rejected by the seller, the seller is not then legally entitled to cancel the sale. The doctrine of fictional fulfilment applied, as in this case the applicant by his fraudulent conduct had intentionally sought to defeat the rights of the buyer. He had attempted to resell the stand to a third party. He had then deliberately refused to accept the balance of $2000 when tendered and had instituted legal proceedings to bring an end to a valid contract and perpetrate his fraud. The agreement must therefore be deemed to have been fictionally fulfilled.

Held, further, that at the time of the sale the applicant must have been aware that he was not armed with the city council's authority to cede his rights to the respondent. In so doing, either he acted fraudulently, in which case he was not entitled to benefit from his own fraud, or he must be held to have impliedly undertaken to obtain the council's authority.

Held, further, that the applicant's legal practitioner must have been aware that the contract he sought to terminate was valid and legally binding. His duty was to advise his client of this but instead he chose to act as a catalyst in the applicant's attempt to defeat the rights of the respondent. As a result of this, he had to be made to pay the price of his indiscretion by being barred from claiming his legal fees for work done from the time that the respondent's tender of payment was made.