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.
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
