CHIMPONDAH & ANOR v MUVAMI 2007 (2) ZLR 326 (H)

Flynote

Contract — sale — land — instalment sale — agreement to pay by instalments — agreement made after substantive contract concluded — sale still governed by Contractual Penalties Act [Chapter 8:04]

Practice and procedure — condonation — condonation of non-observance of any time limit — application — factors to take into account

Headnote

It is the settled practice of the High Court to consider the same factors when considering any application for condonation of the non-observance of time limits set by the rules of court. The same considerations have been used in a number of different situations: the late filing of an application for rescission of a default judgment; the late entering of an appearance to defend; the late filing of an application for review; and the late filing of an appeal. The factors taken into account include the length of the delay, the explanation for the delay, the merits of the application and any prejudice to the interests of justice generally.

The provisions of the Contractual Penalties Act [Chapter 8:04] apply to afford protection to all purchasers of land where the purchase price is to be paid in two or more instalments, regardless of when the instalments were agreed upon. Thus, where the parties initially agree on a cash sale but later convert it to an instalment sale, the initial intention of the parties does not override the clear letter of the law as provided for in the Act. The sale does not become an instalment sale by reference to the intention of the parties but by operation of law. Once the parties agree that the purchase price is to be paid over in three or more instalments, the provisions of the Act come into operation and the seller has to give the purchaser the notice provided for in s 8 of the Act.