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Contract of Sale re: Conditional, Unconditional, Suspensive Sales and the Officious Bystander Test

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.At the commencement of the ...
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HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

According to Martin Makomva, the current cost of a bottle and cap is US23 cents. The money paid by the plaintiff, in November 2007, only covered the cost of what was actually supplied, and, therefore, the balance of the plaintiff's order cannot be met at current prices. The entire contract was premised on the continuation of ...
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HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT
Ruled By: GOWORA J

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they: During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known ...
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HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983. He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.The plaintiff asserted that he entered into the agreement with ...
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HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The plaintiff in this matter is an English teacher at a local girls school. In August 2007, he was in the process of building a residence for his family in one of Harare's suburbs. He approached the defendant for steel as per the diagram drawn up by his engineers. He was given a quotation of ...
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HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

The plaintiff in this case claims the delivery of 1,200 bags of PC15 cement or, in the alternative, damages for breach of contract equivalent to the current market value of the cement, being US$11,400=, and costs of suit. The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the ...
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HH154-09 : PETHIAS CHITSUNGO vs D. MASUKU and RUWA LOCAL BOARD
Ruled By: MTSHIYA J

This is an opposed application where the applicant seeks the following relief:- “1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent. 2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, ...
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HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the ...
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HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...
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HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

The applicant is one of the two surviving children of the late Norman Katsande and a beneficiary to his estate. He also purported to be acting on behalf of the other surviving child of the late Norman Katsande, namely, Milenda Tinashe Katsande who is still a minor. The first respondent is a brother to the late ...
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HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT
Ruled By: GUVAVA J

The second defendant stated that when he signed the Agreement of Sale his attention was drawn to clause 6.1 which stated that the sale was subject to a resolution of a dispute on the property. It was explained to him that the clause meant that there were people staying in the property and he could ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

The plaintiff issued summons in which he claims for an order setting aside the cancellation of an Agreement of Sale between him and the first defendant and an order for specific performance for the delivery of the property, being a flat called Block 12, Room 93, Mufakose Flats. He later, by consent, amended his claim by adding ...
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HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

Godwin Dingwiza testified that Mr Fourie, who was also not called by the defendant to refute the allegation, intimated to him in mid-September 2008 that had the cheque been banked the 50 batteries would have been delivered to him. Godwin Dingwiza further averred that the plaintiff could not be penalized for the defendant's failure to ...
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Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.The immovable property, described as Stand 382 Good Hope Township of Subdivision ...
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HHB07-16 : LOURENS M. BOTHA (SENIOR) and LOURENS M. BOTHA (JUNIOR) vs THE STATE
Ruled By: MAKONESE J and TAKUVA J

Obviously, the sale had been a conditional sale and unless all the suspensive conditions are carried into effect, the ownership, control and possession of the equipment remained with the appellants – see Chinyegere v Fraser 1994 (2) ZLR 254.
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Appealed
SC42-15 : CRISPEN HATIVAGONE and AUDREY HATIVAGONE vs CAG FARMS (PRIVATE) LIMITED and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

Turning to the common law, it is an established principle of the law governing contracts that an Agreement of Sale that is subject to the fulfilment of a condition precedent that has not been fulfilled is not a valid sale.The aforesaid principle was referred to in Sithole v Khumalo ...
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HH157-14 : CAG FARMS (PVT) LIMITED vs CRISPEN HATIVAGONI and AUDREY HATIVAGONE and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: DUBE J

At the time of the Final Offer and the Memorandum of Understanding (MOU), a condition precedent to that sale had not been met. The court has also considered that it was not competent for the parties to enter into the contract without the authority of the relevant Ministry. Any contract for the sale of the land entered ...
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HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) ...
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HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...
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HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-“(a) Payment of the sum of US$750,000.(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.(c) Costs of suit.”The background to ...
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Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:(i) Payment of the sum of US$750,000.(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of ...
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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and ...
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HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.At the end of the hearing I dismissed the application with costs and ...
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HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.The first application, Case No. HC5186/05, concerns an order for specific performance while ...
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HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.The FactsIt is not in dispute, that, the parties entered ...
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HH535-15 : BLESSMORE CHANAKIRA vs SHEPHERD MALCOM N.O. and REGISTRAR OF DEEDS and PHIL RUSCH
Ruled By: NDEWERE J

The background facts are that the plaintiff expressed interest in Stand 5233 Salisbury Township Lands measuring 3,309 square metres which is the property in dispute.The property belongs to the estate of the late Robert Eric Rae.An agreement of sale was concluded, on 22 October 2009, between the plaintiff and the ...
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