Mfa, wife in legal hot
Lebogang Mosikare | Friday August 18, 2017 16:08
Pizza House had instituted summons against the former legislator and his wife 'seeking specific performance of the said written agreement by the tasking of the defendants of such steps and the signing of all such documents as may be necessary for effecting the transfer of the documents as may be necessary for the effecting of the immovable property, Lot 1659 Francistown, from the defendant to the plaintiff.'
Pizza House also seeks damages in the sum of P135,400.88 continuing at the monthly rates of interest fixed from time to time by the plaintiff’s bankers.
Pizza House also seeks orders that the defendants pay the Francistown City Council (FCC) the rates outstanding on the said immovable property.
The plaintiff added that the Mfas should pay the costs of the suit and any alternative relief.
According to Moroka’s ruling, the defendants applied for the application to be dismissed arguing that the plaintiff has not proved the salient aspects of its claim to warrant being put to their defence.
Moroka said an application for absolution of instance made at the close of the case for the plaintiff is akin to an application for no case to answer made at the close of the case for the prosecution in a criminal trial.
The court at this point, Moroka said, is not seized with a question of fact-whether the plaintiff has proved its case on a balance of probabilities.
“That is the duty of the trier of fact at the tail end of trial when the probabilities of the case are put on the balancing scale. The court at this stage is seized with a question of law-whether evidence adduced by the plaintiff should be accepted as correct until proved otherwise…,” Moroka said.
Explaining the genesis of the claim, Moroka said, the plaintiff is alleging breach of contract.
The plaintiff’s sole witness, Moroka noted, told the court that it had entered into a contract with the defendants for the sale of Lot 1659, Francistown.
“The plaintiff has paid the full purchase price. Upon buying the property, the plaintiff said it was under the belief that the property was under freehold tenure, but upon processing the transfer papers noticed that the property was under fixed term lease tenure,” said Moroka.
This in the view of the plaintiff, Moroka added, impacted on the value of the property and it demanded a reduction in price.
He said the defendants refused to reduce the price and offered to refund the plaintiff the price money and cancel the contract, but the plaintiff refused the cancellation and refund.
He said Pizza House is suing for specific performance aimed at transfer of the property to its name and also claiming damages of the non-transfer of the property.
“The defendants say that plaintiff’s case is unsustainable and ought to be dismissed,” Moroka said.
Moroka said Mfa’s wife is also arguing that the contract of the sale entered into between the plaintiff and her husband is in violation of Section 9 (b), which prohibits any spouse married in community of property from entering into any contract without the written consent of the other spouse.
Moroka added that Mfa’s wife argues that the plaintiff must produce written consent that she agreed to the sale of the property.
“The threat of the joint estate losing property in execution of a court judgement is a factor. The contract for the sale of the property is legal until set aside by the court on application by the aggrieved spouse. The declaration of the contract as illegal is not a matter that can be resolved without hearing the second defendant,” Moroka said.
“The application for absolution of instance is unsuccessful… and is hereby dismissed. The defendants shall pay the costs of the application. The defendants are put to the defence,” Moroka ruled.
Goralentle Nthatsi represented Pizza House while attorney Mboni Manyothwane represented the defendants.