HAMTEX INVESTMENTS (PVT) LTD v KING 2012 (2) ZLR 334 (H)

Flynote

Contract — stipulatio alteri — formation — requirements — need for contract to show that third party should have option to accept contract — need for third party to accept contract and communicate acceptance to offeror

Property and real rights — vindicatory action — requirements — what owner must show — defences to claim — what possessor must show to defeat claim — owner not pursuing claim for some years — whether can be taken to have waived his rights in respect of property

Headnote

The respondent occupied a flat in a block of flats in Harare. He originally occupied the flat by virtue of his employment with the then owner of the block. He had to retire prematurely due to ill-health, and one of the benefits he received from his employer was to be entitled to occupy the flat for the rest of his life. Several years later, the applicant company bought the block. After some more years, the applicant sought the eviction of the respondent from the property on the basis that it had permitted him to remain in occupation "at the request of its predecessor in title" in the expectation that a servitude would be registered. This had not been done as the respondent was un-cooperative. In addition, the respondent had not been paying rates, water and electricity charges, which the applicant had been forced to pay on the respondent's behalf. The applicant further alleged that the respondent was not actually in occupation but had moved to a house in another part of Harare. It alleged that another person was now occupying the flat. The respondent, in addition to opposing the application, filed a counter-application, seeking an order declaring that he was entitled to occupy the property and compelling the applicant to register a lifetime usufruct in his favour and directing it to pay all outstanding owner's charges. He denied having relocated and said that

the person seen at the flat was his carer, he being a quadriplegic. It was argued on his behalf that he was entitled to remain in occupation, by virtue of a usufruct or servitude of habitatio, a stipulatio alteri and a waiver by the applicant of any right to remove him.

Held, that on the evidence, the respondent had indeed moved out of the flat and was now resident elsewhere and that he had indeed installed a third party at the property.

Held, further, that the actio rei vindicatio is an action that is founded in property law, aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his property that, at law, he is entitled to recover it from wherever found and from whomsoever is holding it, without alleging anything further than that he is the owner and that the defendant is in possession of the property. It is an action in rem, enforceable against the world at large. The owner, in instituting a actio rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and the defendant is holding the res — the onus being on the defendant to allege and establish any right to continue to hold against the owner. There are two defences to such an action, each aimed at destroying each of the two essential elements of the rights of the owner. The first one seeks either to destroy the claim of ownership completely (by denying that the plaintiff is the owner of the property in question) or to diminish his rights in the property (by admitting his ownership but by alleging that the plaintiff has parted, under some recognized law, with the right to exclusive possession of the property). The second one is to deny possession of the property at the time the action is brought or the claim is instituted.

Held, further, that when the applicant took transfer of the block, the parties took quite some time negotiating the terms of a servitude they intended to register. The applicant's legal practitioners drew up a deed in terms of the proposal made by the applicant. Nothing came of that activity and a servitude was never registered. The result was that an agreement between the parties did not exist. The respondent had himself to blame, because it was his obstinacy and refusal to have the servitude which left him with nothing to enforce. If a servitude existed before transfer of the property to the applicant and the servitude was inherited by the applicant upon registration, then there would have been no need to seek registration.

Held, further, that a person who is not a party to an agreement is not liable and is unable to claim on it as he enjoys no privity of contract. A contract for the benefit of a third party, or a stipulatio alteri, is an extension of the doctrine of privity of contract. For such to exist, there are certain requirements which must be met. The intention that the third party should have this option must appear from the contract. When the third party adopts the contract as his own, he is not only entitled to its benefits but bound by its obligations. To adopt the contract he must accept the option or offer contained in the contract and communicate his acceptance to the promissor. The validity of his acceptance will be tested in the same way as the acceptance of any other offer. The offer must still be open for acceptance. The facts alleged by the respondent did not even begin to satisfy the requirements of such a contract.

Held, further, that as to the allegation of waiver, there are no equities in the application of the actio rei vindicatio. Once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it, the court may not accept pleas for mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor.