adminMashudu Netsianda Senior Court Reporter
A BUSINESSWOMAN has dragged Shurugwi Town Council to court for repossessing her commercial stand where she intended to build a school. The local authority repossessed the stand over the delays in paying monthly instalments towards the purchase of the property. Daniso Njike last week filed a court application at the Bulawayo High Court challenging a decision by the council to cancel an agreement of sale for stand number 677 in Sebanga Park she entered into with the local authority.
In the court papers, Njike is the applicant while the council is cited as the respondent.
Njike, who is represented by Garikayi and Company Legal Practitioners, in her founding affidavit, said the cancellation of the agreement was outside the law.
“I entered into an agreement of sale of stand number 677 Sebanga Park Extension with Shurugwi Town Council on May 16, 2012.
“I paid the council $15,000 upon signing the agreement of sale and committed myself to paying the outstanding balance of the estimated purchase price of $60,000 in monthly instalments of $1,250,” said Njike.
She said she delayed paying her monthly instalments because she was still making efforts to court prospective investors, prompting the council to send her a letter.
“On May 18, 2015, I received a letter from Shurugwi Town Council demanding that I pay an amount of $30,000. The letter stated that I breached Clause 2 of the agreement of sale and that my failure to pay the outstanding amount would result in the stand being repossessed,” said Njike.
Her lawyers said the cancellation of the agreement by Shurugwi Town Council and subsequent repossession of the stand was invalid, arguing that the pact was reached ultra vires the law.
“My client only received the notice on May 18, 2015 and the respondent terminated the agreement on June 1, 2015 barely 30 days from the date the notice was issued. The agreement doesn’t provide for cancellation in the manner employed by the respondent whose actions fall outside the law and our agreement,” argued Garikayi and Company Legal Practitioners.
The lawyers further contended that according to the agreement, the purchase price of the stand was payable over several instalments making it fall under the regulation of the Contractual Penalties Act.
“There is no compliance with section 8 (1) and (2) (c) (ii) of the Contractual Penalties Act which requires that when the purchaser is in breach of an instalment sale of land agreement the seller must give notice of at least 30 days to the purchaser to rectify the breach,” argued Njike’s lawyers.
Njike said the decision by Shurugwi Town Council to repossess her stand impacted negatively on the development of the mining town.
“The decision by the respondent takes development backwards in Shurugwi and surrounding areas. I intend to build a primary school, a development that the respondent should welcome rather than repel.
“The children in the area will have an educational facility near them rather than walking long distances to schools in town,” she said.
Njike is seeking an order that sets aside the cancellation of the agreement of sale and the respondent to pay the costs of suit at attorney-client scale.
Online Reporter