Sehloho Lethetsa v Lipuo Sekasha & Ano. (CCT/0262/2016) [2025] LSHC 199 (14 August 2025)

# Sehloho Lethetsa v Lipuo Sekasha & Ano. (CCT/0262/2016) [2025] LSHC 199 (14 August 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/199/eng@2025-08-14) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/199/eng@2025-08-14) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/199/eng@2025-08-14) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/199/eng@2025-08-14) [ __](mailto:?subject=Take a look at this document from LesLII: Sehloho Lethetsa v Lipuo Sekasha & Ano. …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/199/eng@2025-08-14) [ Download PDF (357.5 KB) ](/akn/ls/judgment/lshc/2025/199/eng@2025-08-14/source) Report a problem __ * Share * [ Download PDF (357.5 KB) ](/akn/ls/judgment/lshc/2025/199/eng@2025-08-14/source) * * * * * Report a problem __ ##### Sehloho Lethetsa v Lipuo Sekasha & Ano. 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(CCT/0262/2016) [2025] LSHC 199 (14 August 2025) Copy Media Neutral Citation [2025] LSHC 199 Copy Hearing date 11 June 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCT/0262/2016 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 14 August 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Contract Law](/taxonomy/case-indexes/case-indexes-commercial-contract-law) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **(COMMERCIAL DIVISION)** **HELD AT MASERU CCT/0262/16** **In the matter between:** **SEHLOHO LETHETSA PLAINTIFF** **AND** **LIPUO LYDIA SEKASHA 1 st DEFENDANT** **LAND ADMINISTRATIVE AUTHORITY 2 nd DEFENDANT** **_Neutral Citation:_** Sehloho Lethetsa v Lipuo Lydia Sekasha & Another [2025] LSHC 199 Comm. (14 AUGUST 2025) **CORAM: MOKHESI J** **HEARD: 11 JUNE 2025** **DELIVERED: 14 AUGUST 2025** **_SUMMARY_** **LAW OF CONTRACT:**_Plaintiff seeking an order for specific performance after the defendant refused to accept the last instalment for payment of the purchase price of an immovable property on account of what she considered to be a delay in making payment- The court having found that after the initial payment schedule was upended by the defendant’s struggle to evict the occupants, when the plaintiff ultimately took occupation there was no agreement on the new payment schedule- In the circumstances, for the plaintiff to be in breach the defendant ought to have placed him in mora- The plaintiff was therefore found not to have been in breach - An order of specific performance was accordingly granted as prayed._ **_ANNOTATIONS_** **Books** Bradfield and K. Lehmann,**_Principles of the Law of Sale and Lease 3 rd ed. (Juta)_** Van der Merwe et al**_Contract: General Principles_** Van Huyssteeen et al Contract**:_General Principles 5 th ed. (Juta)_** **Cases** **South Africa** _Beadica 23/CC and others v Trustees of the Oregon Trust and others 2020 (5) SA 247 (CC)_ _Botes v Toti Investments Co. (Pty) Ltd 1978 (1) SA 205 (T)_ _Farmers’ Co-operative Society v Berry 1912 AD_ _Haynes v King Williamstown Municipality 1951 (2) SA 371 (A)_ _Mokala Beleggings (Pty) Ltd and Another v Minister of Rural Development and Land Reform and others 2012 (4) SA 22 (SCA)_ _Zandberg v Van Zyl 1910 AD 302_ **_JUDGMENT_** [1] **Introduction** This is an old matter which fell into the category of unfortunate matters which were partly heard by my late Sister Chaka-Makhooane J at the time of her untimely passing in the year 2020. As a result of this unfortunate occurrence, the matter had to start _de novo_ before me. But as fate would have it the matter got delayed at the instance of the 1st defendant: The matter was set down for hearing on 12 February 2025. On this date the matter could not proceed as the 1st defendant’s erstwhile attorney Ms P. Thabane withdrew as attorney of record citing difficulties consulting her. The matter had to be postponed to give the 1st defendant two weeks to secure a new attorney, failing which the matter would be set down for hearing on 04 March 2025. [2] On the latter date the 1st defendant was represented by Advocate Mabote from Tšabeha Chambers, and the matter was adjourned to 04 June 2025 for hearing and the court urged counsel to consider stating a case given that it was clear that the matter was based largely on common cause facts. On 04 June 2025 Advocate Khesuoe for the plaintiff and Advocate Tšabeha for the 1st defendant appeared before court wherein Advocate Tšabeha told the court that the matter could not proceed because when he consulted the 1st defendant, he discovered that she was of an advanced age and would not make it to court. He informed the court that as counsel they decided to state a case for adjudication in terms of Rule 145 of the High Court litigation Rules 2024. The plaintiff and his witnesses were before court on that day as always. I then postponed the matter to 11 June 2025 for a matter to be heard as a stated case. On the 11 June 2025 the stated case had been filed in terms of the stated rule, and the matter was argued to finality. [3] After setting out the factual background to the case the parties set out issues for adjudication as follows: _“E. Issues for determination_ _17\. The parties seek determination by court on the following legal and factual issues:_ _17.1 Whether the Plaintiff breached the contract and, if so, whether such breach entitles the 1 st Defendant to cancel the agreement._ _17.2 Whether the Plaintiff is entitled to specific performance or, alternatively, to a refund and damages._ _17.3 Whether the 1 st Defendant is entitled to damages and cancellation as set out in the counterclaim._ _F. Agreed record_ _17\. The parties agree that the following documents will form part of the record for purposes of determination of this stated case:_ _17.1 The written sale agreement_ _17.2 The witness statements filed by the parties and their respective witnesses_ _17.3 Minutes of the pre-trial conference.”_ [4] **Background** On 04 August 2013 the plaintiff and the 1st defendant concluded a written contract for the sale of an immovable property in the form of a site which had a residential house already erected on it. The 1st defendant’s site, which is registered and numbered 14271-2091, was to be sub-divided for this purpose. As already stated, the site consisted of a residential house. Although the site’s measurements were not stated in the agreement, it is clearly identifiable. The specific dimensions though not defined the written agreement were orally agreed upon by the parties and clearly identifiable. The material terms of the agreement were as follows: 1. The plaintiff was to pay a purchase price of M130,000.00 payable in instalments: the first instalment in the amount of M60,000.00 being payable as deposit on the date of agreement. 2. The second instalment of M15,000.00 was payable by December 2013. 3. The last instalment of M55,000.00 was payable by the end of 2014. 4. The plaintiff was to take occupation once the erstwhile occupants of the property would have been evicted. [5] The first instalment in the amount of M60,000.00 was duly paid on that date of the conclusion of the agreement. In January 2014 the occupants were not yet evicted. This development led to the parties agreeing that the 1st defendant should return the deposit into the possession of the plaintiff, with the latter undertaking to repay it once the property was vacant. The 1st defendant was apprehensive keeping such a large sum of money in her possession while working on evicting the occupants off the property. The said occupants were only successfully evicted in July 2014. Consequently, when the plaintiff was due to take occupation of the property, he informed the 1st defendant that he could only afford to repay M54,000.00 as deposit. The parties orally agreed to this new deposit and the 1st defendant accepted the payment. On 29 August 2014 the plaintiff took occupation of the site and has been residing there ever since. [6] The plaintiff could not adhere to the agreed payment schedules because of the eviction wrangle between the 1st defendant and the former occupant of the property. The parties had initially agreed on a period of sixteen months within which the plaintiff was to pay the purchase price in full. After paying the deposit, On 02 February 2016, the plaintiff tendered the outstanding balance of M76,000.00. The 1st defendant rejected this tender, asserting that she wanted an additional M15,000.00 as interest for late payment. The plaintiff disputed the interest demand, offering instead to pay M7,999.00 which was rejected by the 1st defendant. It was this failure to reach agreement on the interest which led to the institution of the current matter in terms of which the plaintiff seeks the following reliefs: _“(i) An order compelling the 1 st Defendant to accept payment of the outstanding balance of M76,000.00._ _(ii) An order directing the 1 st Defendant to take all necessary steps to transfer part of Plot 14271-2091 to the plaintiff as agreed between the parties._ _(iii) Failing compliance by the 1 st Defendant, an order authorising the Deputy Sheriff to execute transfer on her behalf. _ _(v) Alternatively, an order cancelling the agreement._ _(vi) Refund of M54,000.00, with interest at 18.5% per annum._ _(vii) Damages in the amount of M119,805.81 for breach of contract made up as follows:_ 1. _M43,306.40 being bank charges and interest on loan taken by the plaintiff from Standard Lesotho Bank solely for purposes of paying the deposit in reduction of the purchase price of the developed site in dispute._ 2. _M73,343.08, being the interest on loan taken by the Plaintiff from Lesotho Post Bank solely for the purposes of paying off the balance of the purchase price for the developed site in dispute._ 3. _M2,500.00, being costs incurred by the plaintiff in anticipation of acquisition of rights and interest over the site in dispute._ 4. _M250.00 being costs incurred by the Plaintiff for taking measurements of the site in dispute._ 5. _M404.00, being costs of water bills paid by the plaintiff for the defendant from December 2014 to December 2015._ 6. _Costs of suit._ 7. _Further and/or alternative relief.”_ [7] In her counterclaim the 1st defendant alleges that they breached the agreement by: (i) Paying only M54,000.00 instead of the agreed M60,000.00 deposit (ii) Failing to pay M15,000.00 by December 2013. (iii) Failing to pay M55,000 by the end of 2014. (iv) Failing to pay M15,000.00 in interest in February 2016. [8] As a result of the above incidences of breach, she prays for the following relief: (i) Cancellation of the agreement. (ii) Refund of the M54,000.00 paid by the plaintiff. (iii) Payment of M35,700.00 in damages. [9] **Issues to be determined:** ****(i) Whether the plaintiff or 1st Defendant was in breach of the agreement. (ii) Whether the 1st Defendant is liable for the plaintiff’s damages as claimed in the alternative. (iii) Whether the counterclaim should succeed. [10]**Whether the Plaintiff or 1 st Defendant is in breach of the agreement.** The plaintiff’s argument is that the 1st Defendant breached the contract by unilaterally changing the terms of the contract by reducing the size of the plot and by refusing to accept the balance agreed upon by the parties. On the other hand the 1st Defendant contends that no case has been made for specific performance because of certain elements which she says militate against granting the relief: she argues that damages would be an adequate compensation as the plaintiff has already sought them; the enforcement of the contract would be unreasonable on the part of the 1st Defendant in that the parties did not disclose the dimensions of the plot to be sold, and that for this reason the agreement is uncertain and unenforceable. The 1st Defendant cited the case of **Ratšiu v Principal Secretary and Another C of A (CIV) No.9/2017** which relied on the decision of **Mansell v Mansell 1953 (3) SA 716 (N)** for the legal proposition that the court should not make an order which is incapable of enforcement. The 1st Defendant further cited the decision of Sakoane J**** in**Motšoene v Ntja Phakisi and Others LC/APN/198/2014 (** unreported)**** where**** the court had stated that: _“Be that as it may, the applicant cannot force the respondents to effect transfer of the land to her if they are no more desirous of doing so. Acquisition of Ministerial or official consent to dispose of land is a voluntary act on the part of the seller/disposer.”_ [11] I come back to these decisions in due course. I start with the discussion of the legal position on orders for specific performance. As the point of departure, it is necessary that I should state that _pacta sunt servanda_ principle is central to our public policy. The sentiments which were expressed in **Beadica 23/CC and others v Trustees of the Oregon Trust and others 2020 (5) SA 247 (CC)** at para.83, are equally applicable in our jurisdiction: _“This court has emphasised that the principle of pacta sunt servanda gives effect to the “central constitutional values of freedom and dignity.” It has further recognised that in general public policy requires that contracting parties honour obligations that have been freely and voluntarily undertaken. Pacta sunt servanda is thus not a relic of our pre-constitutional common law. It continues to play a crucial role in the judicial control of contracts through the instrument of public policy, as it gives expression, to central constitutional values.”_ [12] It is within the above stated legal context that the relief for specific performance is located: Parties must be held to the terms of the contract they freely conclude as it is in consonant with public policy to do so. The 1st Defendant advanced an argument that because the plaintiff has sought damages in the alternative that it is the only remedy that is available to him because she no longer is willing to act in accordance with the contract. She even cited the case of **Motšoene v Ntja Phakisi and others (above)** where**** the learned judge had stated that _“the applicant cannot force the respondents to effect transfer of the land to her if they are no more desirous of doing so. Acquisition of ministerial or official consent to dispose of land is a voluntary act on the part of the seller/disposer.”_ [13] This dictum was quoted as support for the advancement of a legal proposition that because the 1st defendant was no longer willing to subdivide and cause the transfer of the site to the plaintiff she should be left alone in that regard. The argument went, because the plaintiff is seeking damages in the alternative that is the only route available to him to get relief. With all due respect to the learned Judge, I find this statement not to be reflective of our law on the subject. In our law, the remedy of specific performance is a primary remedy and not a secondary or equitable remedy. The result of this legal position is that an innocent party is entitled to insist on the full performance by the other party of its obligations in the terms of the agreement (Van der Merwe et al**Contract: General Principles** 383). The fact that the guilty party is unwilling to fulfil her part of the bargain plays no role at all. Neither is the fact that an innocent party has sought damages in the alternative nor a tender of payment of damages by the guilty party for non-performance a defence to a claim for specific performance. In**Farmers’ Co-operative Society v Berry 1912 AD** at 343 at 350-351:**** _“Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE, C.J., in Thompson v Pullinger (1 O. R., at p. 301), "the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt." It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance should be made. They will not of course, be issued where it is impossible for the defendant to comply with them. And there are many cases in which justice between the parties can be fully and conveniently done by an award of damages. But that is a different thing from saying that a defendant who has broken his undertaking has the option to purge his default by the payment of money. For in the words of Storey (Equity Jurisprudence, Sec. 717 (a)), "it is against conscience that a party should have a right of election whether he would perform his contract or only pay damages for the breach of it." The election is rather with the injured party, subject to the discretion of the Court. Now it is not necessary for the purposes of this case to lay down any general rule as to when a Court will and when it will not decree the specific performance of a contract. Because it is clear that where, owing to the difficulty of assessing damages or otherwise, it is not possible to do justice by an order for the payment of money, and where it is in the power of a defendant to carry out his undertaking, then such a decree is the only appropriate remedy.”_ [14] Specific performance may be refused in the exercise of judicial discretion if insistence upon it would cause undue and unreasonable hardship upon the guilty party (**Haynes v King Williamstown Municipality 1951 (2) SA 371 (A)**at 378H – 379A). [15] (ii)**Would an order of specific performance impose unreasonable hardship on the 1 st Defendant for non-disclosure of the plot dimensions and be impossible to comply with?** **** The _essentialia_ of the contract of sale are trite: the seller must intent to sell, and the buyer must intent to buy, and there must be an agreement on the subject matter of sale and on the price to be paid **(Zandberg v Van Zyl 1910 AD 302).** Because the contention of the 1st Defendant relates to the subject matter of the sale, I will only deal with it. When the property to be sold is described so vaguely that it is impossible to ascertain what has been sold, the contract is void (**Botes v Toti Investments Co. (Pty) Ltd 1978 (1) SA 205 (T)).** On the ascertain ability of the property sold the learned authors **G.**Bradfield and K. Lehmann,**Principles of the Law of Sale and Lease 3 rd ed. (Juta) **at para. 4.2.1.1 p. 28-29 states that: _“The property sold must be ascertained or ascertainable at the time of conclusion of the contract. The property sold is ascertained if it is clear that the parties were in agreement about the specific item, or items, or property being sold…”_ [16] In the present case there is undisputed evidence that the property to be told was clearly ascertainable. In fact, the plaintiff and his family have since 2014 between dwelling on the property in question. Even when disagreements ensued which were brought about by the late payment of the last instalment of the purchase price and the 1st Defendant reducing the size of the plot as a result, both parties were clear about the parameters of the plot. The argument that because the plot dimensions are not spelled out in the contract, it is therefore unreasonable and unenforceable, lacks any legal merit and ought to be jettisoned on that score. The 1st defendant displays such a dire lack of candidness with this court when she raises the argument on unenforceability because it is common cause that the parties in the presence of their witness measured the site and agreed on the measurements when concluding the agreement. [17] **(iii) Was there a breach by the 1 st Defendant?** **** The plaintiff claims that the 1st defendant is in breach in two respects: by refusing to accept payment of the balance of M76,000.00 unless the plaintiff paid an amount of M15,000.00 as interest; by unilaterally reducing the size of the plot when the plaintiff refused to pay M15,000.00 as interest. Before I deal with this aspect it is important to re-state the undisputed backgrounds to this case and the terms of the agreement. The written agreement was concluded on 04 August 2013 with the 1st defendant agreeing to sell portion of her registered site – dimensions readily ascertainable and agreed upon by the parties in the presence of their witness; the plaintiff was to pay a purchase price of M130,000.00 payable in instalments; the first instalment in the form of a deposit payable on the date of the conclusion of the agreement- in the amount of M60,000.00 – which was paid immediately upon conclusion of the agreement; M15,000.000 to be paid by December 2013 and M55,000.00 to be paid by the end of 2014. For the reason that the 1st defendant was locked in litigation with the occupants of the residential house on the site the plaintiff and his family could not take occupation immediately. In her statement, the 1st Defendant, states that “[a]round October 2013 I informed the plaintiff that I was uncomfortable with having that much money in my house and asked him to keep the money until I had evicted the tenants and they could take occupancy. I was able to evict the tenants in July 2014, and the plaintiff took occupancy of the property in August 2014.” [18] Clearly the timelines for paying off the purchase price were disturbed or interrupted by these circumstances. Although the 1st defendant claims that when the plaintiff paid her M54,000.00 instead of M60,000.00 when he occupied the property, he was in breach of the agreement. However, in paragraph 4 of her statement she states that when the plaintiff paid back M54,000.00 instead of M60,000.00 she accepted it. [19] It is, therefore, startling that she would turn around and cry breach over the payment she accepted without any demur. From the facts, it is evident that the parties, owing to the impossibility of the 1st defendant to grant the plaintiff vacant possession of the site varied the terms of the written agreement by agreeing that payment of the first instalment would occur only once the 1st defendant’s tenants would have been successfully evicted. While the plaintiff awaited the eviction of her tenants by the 1st defendant he could not practically meet payment deadlines in December 2013. But also, once he had taken occupation of the site in August 2014, he could not meet payment deadlines of December 2014. [20] From August 2014 the plaintiff – after paying the first instalment – would only come back with the outstanding balance of M76,000.00 on 02 February 2016. There was a gap of seventeen months between the payment of the first instalment and the last one – which was rejected. It is the plaintiff’s contention that the parties agreed verbally that after paying the deposit the outstanding balance of M76,000.00 would be paid in instalments. There appears to have been no timelines set for payment of the instalments as no party is making mention of. The argument that there was a verbal agreement that the plaintiff pay the amount of M15,000.00 in December 2015 appears for the first time in argument, it does not appear anywhere. At least from the written terms of the agreement the last instalment of M55,000.00 should have been paid in December 2014, but these timelines had been upended by the impossibility of the plaintiff taking occupation of the site until August 2014. The plaintiff in her statements has not made any attempt to tell the court what the specifics of the timelines for payment of the remaining balance were. The timelines are only appearing for the first time in argument. I am going to accept the following statement by the 1st defendant in paragraph 4 of her statement as reflecting the correct position. She states that: _“The plaintiff then paid back M54,000.00 and I accepted the money. After this, the plaintiff never made any attempts to pay back the balance nor enter into renegotiation of the terms. Instead, he only informed me in February 2016 that he was going to pay the remaining balance of M76,000.00. I told him that because of the delay in paying the balance, I wanted a further M15,000.00 as interest.”_ This statement is in consonance with the stated case that, after taking occupation, the plaintiff only came back on the 02 February 2016 tendering outstanding balance of M76,000.00. [21] Although the 1st defendant would have this court belief that when the plaintiff could not accept paying interest, he demanded a refund of his deposit, while in the same vein she says in April 2016 he called the plaintiff for a meeting to refund his deposit, but he refused to accept it, I find these statements irreconcilable. The only explanation for their inconsistency is that the plaintiff never demanded to be refunded the deposit he paid. If the plaintiff had wanted his deposit refunded, he would not have, in the immediate aftermath of his disagreement with the 1st defendant instituted the present proceedings seeking an order for specific performance. [22] The plaintiff came back to pay the balance of M76,000.00 in February 2016, seventeen months after paying the initial instalment. This begs the question whether there was _mora debitoris_ (delay by the debtor) and what legal consequences of such delay – if any – were? I have already dealt with the factual background to this case as per the parties’ agreed statement and annexed documents. As can be garnered from the stated case, after the parties’ initial payment arrangement was upended by the delay of the 1st defendant to evict the occupants of the property, when the plaintiff finally took occupation on 29 August 2014, the parties did not agree on the new payment arrangement resulting in the plaintiff delaying to pay the balance of M76,000.00 for seventeen months. In the circumstances, in law where the parties’ contract does not stipulate the time for performance the 1st Defendant as the creditor ought to have first served a demand on her debtor – the plaintiff- in the sense of demanding payment by a certain date. This demand is crucial as it serves to place the plaintiff in _mora_ , that is _mora ex persona_ (**Mokala Beleggings (Pty) Ltd and Another v Minister of Rural Development and Land Reform and others 2012 (4) SA 22 (SCA)** at para.8). [23] When the plaintiff and the 1st Defendant convened a meeting where the former was to pay the balance of the purchase price, he was not in _mora,_ and therefore, had not committed any breach of contract. When the 1st Defendant demanded M15,000.00 to be paid on top of the balance of the purchase price as interest for late payment, she was in fact unilaterally varying the terms of the contract and therefore committing a breach of contract which entitled the plaintiff as he has done in the present proceedings to seek enforcement of the agreement by means of an order for specific performance. There was no basis in law why the 1st Defendant was demanding payment of interest even if there was a delay, which I have already said it was not. The position of the law in this regard was stated by the learned authors **Van Huyssteeen et al Contract: General Principles 5 th ed. (Juta)** at p.331 para. 10.44: _“In connection with the sale of immovable property, the rule has developed in practice that a buyer who has received possession of the property from the seller but has not yet paid the purchase must pay interest on the purchase price. This rule has not gone unquestioned. It should only obtain if the buyer receives possession before it is entitled to it in terms of the contract. The rule is not based on breach of in the form of delay but on considerations of equity. To avoid uncertainty contractants often make their own arrangements in connection with payment of what is called ‘occupation(al) interest.’”_ [24] In the present case the plaintiff took occupation of the properly in terms of the contract. There was therefore no scope for application of ‘occupation interest’ especially when the parties did not provide for it their contract. I now turn to deal with counterclaim. [25] **Counterclaim** **** In the stated case the 1st Defendant alleges that the plaintiff breached the agreement by; paying only M54,000.00 deposit; failing to pay M15,000.00 by December 2013; failing to pay M55,000.00 by the end of 2014; failing to pay M15,000.00 in interest in February 2016. As a result of these alleged incidents of breach the 1st Defendant seeks the following relief: (i) Cancellation of the agreement (ii) Refund of the M54,000.00 paid by the plaintiff. (iii) Payment of M35,000.00 in damages [26] In the main claim I dealt with the breach and found that the plaintiff was not in breach. On the issue of payment of M54,000.00 instead of M60,000.00 I find it ironic that the 1st Defendant would base her case on that incident when in her statement she states that it was by agreement between them that the plaintiff paid this amount. As already stated, the delay in the 1st Defendant evicting her ‘tenants’ disrupted the payment schedule with the result that when the plaintiff paid the deposit of M54,000.00 there was no agreement on the new payment schedule. Without any demand from the 1st Defendant for payment, there was no way the plaintiff could be said to have delayed in paying the last instalment, and therefore, no damages could have resulted where there was no breach of contract by the plaintiff. In fact, 1st defendant’s counsel abandoned the relief for damages at the hearing of the matter pursuing only cancellation of the contract. [27] In the result the following orders are made: **Main Claim** ****(i) The 1st Defendant is ordered to accept payment of the outstanding balance of M76,000.00. (ii) The 1st Defendant is ordered to take all necessary steps to pass the transfer of the portion of property forming part of plot No. 14271-2091 to the plaintiff per their agreement. (iii) Failing compliance by the 1st within 8 months from the date when she is served within this order, the Deputy Sheriff is ordered to execute transfer of the property in favour of the Plaintiff on behalf of the 1st Defendant within the legally permissible bounds. (iii) In the event that there is a legal impediment to the subdivision and transfer being made, the plaintiff is permitted to approach the court on the same papers for an order for damages. (iv) The plaintiff is awarded the costs of suit. **Counterclaim** ****(v) Counterclaim is dismissed with costs. **____________________________** **MOKHESI J** **For the Plaintiff: Advocate M. V Khesuoe** **For the 1 st Defendant: Advocate Tšabeha** #### __Related documents ▲ To the top >