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HH339-18 - KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA

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Law of Contract-viz essential elements re consensus ad idem iro capacity to contract.
Law of Contract-viz consensus ad idem re capacity to contract iro contracting with mentally challenged persons.
Procedural Law-viz rules of evidence re signatures iro the caveat subscriptor rule.
Law of Contract-viz essential elements re intent iro the parole evidence rule.
Law of Contract-viz essential elements re animus contrahendi iro the integration rule.
Agency Law-viz agency relationship.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz rules of evidence re findings of fact iro assessment of evidence.
Procedural Law-viz rules of evidence re compellable witness.
Procedural Law-viz rules of evidence re competent witness,
Procedural Law-viz locus standi re factual averments ordinarily available to another party.
Procedural Law-viz locus standi re evidential submissions ordinarily available to another party.
Procedural Law-viz rules of evidence re findings of fact iro witness testimony.
Procedural Law-viz rules of evidence re unchallenged evidence.
Procedural Law-viz rules of evidence re undisputed averments.
Procedural Law-viz rules of evidence re uncontroverted submissions.
Procedural Law-viz rules of evidence re expert evidence iro psychiatric evaluation.
Procedural Law-viz pleadings re non-pleaded matters.
Procedural Law-viz pleadings re issues not specifically pleaded.
Damages-viz holding over damages.
Procedural Law-viz declaratory order re declaration of fact.
Procedural Law-viz declaratur re declaration of rights.
Procedural Law-viz declaratory order re consequential relief.
Procedural Law-viz declaratur re consequential relief.
Law of Property-viz vindicatory action re claim of right.
Law of Property-viz rei vindicatio re claim of right.

Subpoena Ad Testificandum or Witness Summons re: Competent or Compellable Witness, Claim of Privilege & Rule of Relevance


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property....,.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

Locus Standi re: Factual or Evidential Averments or Pleadings Competently Available to Another Party


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness....,.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Findings of Fact re: Witness Testimony iro Approach & the Presumption of Clarity of Events Nearer the Date of the Event


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time....,.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

Agency Law re: Acting For Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach


On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Consensus Ad Idem re: Capacity to Contract & Presumption that Every Party to a Contract has Full Contractual Capacity


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

3. The defendant, and all those claiming though her, be and are hereby ejected from all occupation and use of Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

4. The defendant shall pay the costs of suit.

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

3. The defendant, and all those claiming though her, be and are hereby ejected from all occupation and use of Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

4. The defendant shall pay the costs of suit.

Intent or Animus Contrahendi re: Trade or Past Practices, Parol Evidence Rule, Integration Rule, Rectification & Retraction


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

3. The defendant, and all those claiming though her, be and are hereby ejected from all occupation and use of Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

4. The defendant shall pay the costs of suit.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

3. The defendant, and all those claiming though her, be and are hereby ejected from all occupation and use of Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

4. The defendant shall pay the costs of suit.

Findings of Fact re: Assessment of Evidence and Inferences iro Approach, Facta Probantia and Facta Probanda


The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the Agreement of Sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel Murape on the mental capacity of the defendant at the material time.

Abel Murape's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000 from the estate agent, being a portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the Agreement of Sale. Even then, she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This, to me, does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000, on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Bothwell Chenguwo admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars - even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that the defendant was insane but proceeded to enter into an Agreement of Sale with her nonetheless. There were two co-purchasers and not one. None of them came into contact with the defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

3. The defendant, and all those claiming though her, be and are hereby ejected from all occupation and use of Flat 46, Block 13 Odzi Flats, Eastlea, Harare.

4. The defendant shall pay the costs of suit.

CHIKOWERO J: The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the agreement of sale by reason of insanity.

If the answer is in the affirmative, the agreement of sale entered into between the plaintiffs and the defendant on 26 January 2006 would be null and void.

The following facts are common cause.

On 26 January 2006 and at Harare the defendant sold all her rights, title and interest in an immovable property called Flat 46 Block 13 Odzi Flats, Eastlea Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000-00).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the agreement of sale by Abel on behalf of the plaintiffs, the defendant, two witnesses and Violet Aleck, the registered estate agent.

The agreement of sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the agreement of sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the agreement of sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000-00) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the agreement of sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

1. At the material time the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.


Wherefore the defendant prays for the dismissal of the plaintiffs' claim with costs.”


The Oxford Study Dictionary is not very helpful. As an adjective “insane” is put across as “not sane, mad”.

Under “INSANE PERSONS” RH Christie in Business Law in Zimbabwe Juta and Co, Ltd 1998 at p 72 states the law applicable in matters such as the present as follows:

The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.


The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”


The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same.1

This is echoed by Nigel Eastman et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state, at p 104:

There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”


The question of whether a person had the requisite mental capacity at the time of signing an agreement of sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S), Susan Taurai Mapfunde Dube N.O v Robert Matoka and 2 Ors HH 212/14.

I find as a fact that defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the agreement of sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property.

The defendant herself did not give evidence.

The evidence is clear that she was not detained in a mental institution when she signed the agreement of sale on 26 January 2006.

There was no evidence from persons staying with or neighbouring defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the agreement of sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the agreement of sale to the defendant and Abel Murape prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the agreement of sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

The first plaintiff, who gave evidence for second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time testified that the defendant did not exhibit signs of mental illness.

The court believed him. His evidence was simple and straightforward.

No other witness contradicted Abel on the mental capacity of the defendant at the material time.

Abel's interaction with the defendant extended to the visit to the Ministry of Local Government and Housing and City of Harare. Still, he did not observe anything to suggest that the defendant was mentally incapacitated.

The defendant withdrew ZIM$50,000,000-00 from the estate agent, being portion of the purchase price, and used it.

Only then did she write a letter to her own estate agents purporting to cancel the agreement of sale. Even then she had the presence of mind to copy the letter to the Ministry of Local Government and Housing.

This to me does not establish that she was mentally incapable of contracting on 26 January 2006 by reason of insanity.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the agreement of sale was entered into.

There was no evidence that to sell the property in question for ZIM$1,950,000,000-00 on 26 January 2006, as was done, was to undervalue it. Consequently, there was nothing before me to suggest that the plaintiffs took advantage of the defendant's mental status to purchase the property for less than its open market value.

In any event, the defendant was represented by Fingold Real Estate.

I was not impressed by Bothwell Chenguwo. He is both defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the agreement of sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the agreement of sale was entered into. Yet this is the crux of the matter. His evidence missed the mark.

Bothwell admitted that he was not happy that his mother sold the property in Zimbabwe dollars. He would not have been irked if the sale was conducted in United States dollars, even though that currency was not legal tender in this jurisdiction at that time.

I am not surprised that he requested Dr Nhiwatiwa to overstep her mandate by writing letters stating, among other things, that the purchaser knew that defendant was insane but proceeded to enter into an agreement of sale with her nonetheless. There were two co-purchasers and not one. None of them came into contract with defendant at the material time.

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.

They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date of eviction.

Save for the foregoing, the plaintiffs have proved their case on a balance of probabilities.

I therefore order as follows;

1. The agreement of sale entered into between the plaintiffs and defendant on 26 January 2006 be and is hereby declared valid and binding.

2. The plaintiffs are entitled to cession of the rights, title and interest in Flat 46, Block 13 Odzi Flats, Eastlea Harare.

3. The defendant and all those claiming though her be and are hereby ejected from all occupation and use of Flat 46 Block 13 Odzi Flats, Eastlea Harare.

4. The defendant shall pay the costs of suit.





Tadiwa and Associates, the plaintiffs' legal practitioners

Mahuni and Mutatu, defendant's legal practitioners


1. Business Law in Zimbabwe, R H Christie at page 70

1 Business Law in Zimbabwe, R H Christie at page 70

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