SAMUTSA v MADANHI AND ANOTHER (11 of 2026) [2026] ZWSC 8 (22 January 2026)

Judgment No. SC 11/26 Civil Appeal No. SC 359/25 1 REPORTABLE

(11) TRUST SAMUTSA v

(1) TONDERAI MADANHI

(2) THE TRUSTEES FOR THE TIME BEING OF THE AVONLEA EXTENSION TRUST SUPREME COURT OF ZIMBABWE UCHENA JA, CHATUKUTA JA & MWAYERA JA HARARE: 23 SEPTEMBER 2025 & 22 JANUARY 2026 B Diza, for the appellant R Chingwe-Gangata, for the first respondent No appearance for the second respondent MWAYERA JA:

1. This is an appeal against the whole judgment of the High Court (‘the court a quo ’) dated 19 March 2025. The court a quo dismissed the appellant's appeal against the decision of the magistrates’ court that granted the appellant the alternative relief of restitution. FACTUAL BACKGROUND

2. The appellant and the first respondent entered into an agreement of sale in respect of immovable property described as Stand Number 4274 of the Remaining Extent of Zizalisari Lot 1, Marlborough Township , held under Deed of Transfer No. 4819/2009 (hereinafter referred to as ‘the property’). The agreed purchase price was US$25 000, payable in four instalments. The appellant contended that he duly complied with all his contractual obligations save for the final instalment, which the first respondent declined to accept. Judgment No. SC 11/26 Civil Appeal No. SC 359/25 2

3. The first respondent thereafter purported to cancel the agreement on 26 January 2024 . Notwithstanding the purported cancellation, the appellant tendered payment of the outstanding instalment as an indication of good faith and his continuing willingness to perform under the contract.

4. It is pertinent to note that in the trial court, the appellant was represented by his wife, who appeared on his behalf pursuant to a duly executed special power of attorney. PROCEEDINGS IN THE TRIAL COURT

5. Following the cancellation, the appellant issued summons in the magistrates’ court seeking specific performance or, alternatively, damages. He maintained that the purchase price of US$25 000 was payable as follows: i. A deposit of US$10 000 upon signing the agreement of sale; ii. US$3 000 on or before 30 November 2023; iii. US$6 000 on or before 31 December 2023; and iv. US$6 000 on or before 31 January 2024.

6. The appellant contended that cancellation before the due date of the final instalment was unlawful, as the first respondent had already acknowledged receipt of the earlier payments. He sought transfer of ownership of the property or, alternatively, the sum of US$19 500, being the total amount paid (US$19 000) and incidental expenses (US$500).

7. The first respondent, in opposition, denied concluding a valid agreement or receiving any payments. He alleged that any purported agreement was null and void on the basis that it had been entered into under duress. He pointed to the existence of two Judgment No. SC 11/26 Civil Appeal No. SC 359/25 3 inconsistent agreements, one for US$25 000 and another for US$40 000, as evidence of a common mistake.

8. The appellant acknowledged signing the US$40 000 document but claimed ignorance of its contents, insisting that it related to a different property altogether.

9. The trial court held that both agreements were valid under the principle of caveat subscriptor. It found that the stark discrepancy between the two purchase prices created a serious disproportion, evidencing a lack of consensus ad idem . The court concluded that, since the full purchase price had not been paid, transfer of title could not be compelled. Nevertheless, it ordered the respondent to pay the appellant US$19 500 or the equivalent in ZIG at the prevailing interbank rate. PROCEEDINGS BEFORE THE COURT A QUO

10. Dissatisfied with the decision of the trial court, the appellant appealed to the court a quo against the entire judgment, seeking transfer of rights and title to the property. He argued that the operative agreement was the one reflecting a purchase price of US$25 000, voluntarily signed and acknowledged by the first respondent. The appellant further asserted that the first respondent’s purported cancellation violated the Contractual Penalties Act [Chapter 8:04] (the ‘Contractual Penalties Act’), which requires at least 30 days’ written notice to remedy any breach before termination.

11. The first respondent maintained that the valid agreement was the one reflecting a purchase price of US$40 000, and that the discrepancy between the two figures demonstrated a lack of consensus ad idem. He further contended that the Contractual Penalties Act was inapplicable as no valid contract existed. Judgment No. SC 11/26 Civil Appeal No. SC 359/25 4 FINDINGS OF THE COURT A QUO

12. The court a quo held that the appellant had not paid the full purchase price and, therefore, retained only personal rights, insufficient to compel transfer of ownership. It ruled that the existence of a common mistake rendered the agreement voidable and that the issue of statutory notice under the Contractual Penalties Act was not raised before the trial court.

13. The court a quo also remarked on the anomaly of an appellant appealing a judgment partly in her favour. By appealing the entire judgment, the court a quo found that the appellant effectively nullified the damages award in her favour, leaving no operative relief. Consequently, the appeal was dismissed.

14. Aggrieved by the decision of the court a quo , the appellant has lodged the present appeal on the subsequent grounds:

Grounds of Appeal

1. The court a quo erred at law and fact in disregarding the fictitious payment of the balance of the purchase price tendered by the appellant on the agreement sued upon and therefore, refusing to order specific performance.

2. The court a quo erred at law and fact in concluding that there was common mistake on the value of the property when the payments were done in terms of the agreement sued on by the appellant.

3. The court a quo erred at law in concluding that by appealing against the whole judgment, the appellant disenfranchised himself of the alternative relief granted by the trial court.

Relief Sought

Judgment No. SC 11/26 Civil Appeal No. SC 359/25 5

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and is substituted by the following: (a) The defendants be and are hereby ordered to transfer rights and title for a certain piece of land situated in the District of Salisbury, being unimproved land called stand number 4274 of remaining extent of Zizalisari Lot 1 Marlborough Township measuring one thousand three hundred and fifty-six (1,356) square metres held under deed of transfer number 4918/2009 against the payment of the last instalment of US$6,000 (Six Thousand United States Dollars) by the plaintiff to the defendants. (b) Respondents pay costs of suit. In the alternative:

1. The defendants be and are hereby ordered to reimburse the sum of US$19,500 (Nineteen Thousand, Five Hundred United States Dollars), US$19,000.00 being the purchase price paid in relation to the property and US$500.00 being costs related to drafting of agreement plus costs of suit. PROCEEDINGS BEFORE THIS COURT APPELLANT’S SUBMISSIONS

15. Counsel for the appellant argued that the first respondent admitted to the validity of the US$25 000 agreement and acknowledged all payments, save for the last instalment. On that basis, he submitted that no common mistake existed. He emphasised that even in the cancellation letter, the first respondent recognised the same agreement but sought to void it on the grounds of coercion. He further contended that the US$ 40,000 agreement related to a different property, not the one in dispute. Counsel argued that Judgment No. SC 11/26 Civil Appeal No. SC 359/25 6 although the appellant’s wife‘s signature appeared on that document, she was uncertain how it came into existence.

16. The Court inquired into whether the existence of the two agreements suggested a lack of consensus. Counsel maintained that there was consensus ad idem since the first respondent never challenged the US$25 000 agreement but only sought its cancellation. He added that the appellant’s failure to pay the balance was due to the first respondent's obstruction and refusal to accept it.

17. The Court further directed questions to counsel for the appellant concerning the propriety of the appellant’s wife giving evidence before the trial court. In particular, the Court enquired into the provisions of the law which permitted a person to give evidence on behalf of a party, and whether such testimony was legally admissible where the witness was not the named party to the proceedings.

18. In response to these queries, counsel for the appellant submitted that there is no rule of civil evidence which prohibits a witness from testifying on behalf of another litigant, provided that the evidence tendered is based on first-hand knowledge of the facts in issue. Counsel emphasised that the appellant’s wife was not purporting to testify as a representative in a technical or legal sense, but rather as a factual witness with direct personal knowledge of the transaction.

19. Counsel further submitted that the appellant’s wife was herself a signatory to the agreement forming the subject matter of the dispute. It was explained that she was the buyer in the transaction and that she had personally executed the agreement. Although the agreement bore her signature, it was common cause between the parties that she had signed the document on behalf of the appellant, her husband. On that basis, counsel Judgment No. SC 11/26 Civil Appeal No. SC 359/25 7 argued that her evidence was both relevant and admissible, as it related to matters within her direct participation and knowledge.

20. Counsel accordingly maintained that the court a quo had correctly accepted the wife’s evidence, there being no legal impediment to her testifying in the circumstances, and that the court a quo was entitled to rely on such evidence in determining the issues before it. RESPONDENT’S SUBMISSIONS

21. On the other hand, counsel for the first respondent argued that the appellant raised no objection to the admission of the US$40 000 agreement into evidence. He submitted that once the appellant acknowledged his wife‘s signature on that agreement, it became legally binding. He further contended that although the two agreements described the property differently, they concerned the same land and reflected a lack of consensus. He further stated that the existence of an objection confirmed that there was no meeting of minds.

22. While conceding the admissions made, counsel for the first respondent submitted that the Court could not ignore the existence of two binding but conflicting agreements; in any case, the appellant had failed to pay the balance. The Court inquired whether the court a quo considered the admission. Counsel conceded that it had not, but argued it was a live issue before the court a quo because it found the conflicting agreements dispositive of the matter which was before it.

23. The Court inquired whether the existence of conflicting agreements had been raised in the first respondent's plea. Counsel conceded that only a bare denial was pleaded, Judgment No. SC 11/26 Civil Appeal No. SC 359/25 8 adding that while the issue appeared in the summary of evidence, it was first brought to light in the cancellation letter, which gave rise to the dispute.

Issues for Determination

24. Considering the grounds of appeal raised above and the submissions made by both counsel for the appellant and the first respondent, the following issues arise for determination: i. Whether or not the court a quo misdirected itself in disregarding the payment of the final instalment. ii. Whether or not the court a quo misdirected itself in finding that there was a common mistake on the value of the property, despite payments being made in accordance with the agreement relied upon by the appellant. iii.Whether or not the court a quo misdirected itself in finding that by appealing the entire judgment, the appellant forfeited the alternative relief granted by the trial court. APPLICATION OF THE LAW TO THE FACTS Whether or not the court a quo misdirected itself in disregarding the payment of the final instalment.

25. In the first ground of appeal and at the hearing of the matter, counsel for the appellant insisted that the court a quo misdirected itself in finding that he failed to tender the full purchase price of US$25

000. Counsel submitted that the doctrine of fictional fulfilment applied on the basis that the first respondent frustrated his performance by issuing a letter of cancellation before the final instalment was due and paid. He further contends that the court erred in holding that he held only personal rights rather than real rights. Judgment No. SC 11/26 Civil Appeal No. SC 359/25 9

26. On the other hand, counsel for the first respondent maintained that the doctrine of fictional fulfilment is inapplicable, on the premise that no valid and enforceable contract existed due to the absence of a true meeting of the minds.

27. Fictional fulfilment occurs where the law deems a contractual condition to have been satisfied because one party wrongfully prevented its fulfilment, thereby precluding that party from benefiting from its own obstructive conduct, as explained by C HIWESHE JA in Zimbabwe Power Company v Intratrek Zimbabwe SC 127/23: “Fictional fulfilment is a doctrine that may be invoked under circumstances where a party to a contract deliberately frustrates the fulfilment of a condition stipulated in the contract.”

28. The same sentiments were made by the South African Supreme Court of Appeal in Lekup Prop Co No 4 (Pty) Ltd v Wright 2012

(5) SA 246 (SCA) at para 7 where the remarks in Koenig v Johnson & Co Ltd 1935 AD 262 at 272 were reiterated as follows: “If it is the fault of the person in whose favour the condition is inserted that the condition cannot be fulfilled, or if he intended to prevent the condition from being fulfilled, the law considers the condition to have been fulfilled as against him. The nature of the contract is always an important element. In some cases the person benefitted by the non-performance of the condition can sit still and do nothing to assist in its fulfilment; in other cases it is his legal duty to assist in the condition being fulfilled, and in all cases if he deliberately and in bad faith prevents the fulfilment of the condition in order to escape the consequences of the contract the law will consider the unfulfilled condition to have been fulfilled as against the person guilty of bad faith.”

29. For the doctrine to apply, it must first be established that a party deliberately engaged in conduct calculated to prevent the fulfilment of a contractual condition. Secondly, such conduct must have been driven by an intention to evade the contract. The doctrine, therefore, contemplates deliberate and blameworthy obstruction of performance. In casu, the first respondent’s conduct falls short of this threshold. He did not impede the appellant’s performance; rather, he openly stated his position by cancelling the agreement, which is distinguishable from the covert obstruction envisaged under the Judgment No. SC 11/26 Civil Appeal No. SC 359/25 10 doctrine of fictional fulfilment. Having unequivocally communicated his cancellation, there was no necessity for him to engage in conduct aimed at frustrating the appellant’s performance.

30. In any event, once uncertainty arose as to which of the two written agreement reflected the parties’ true intention, the issue of whether the appellant had tendered the full purchase price became immaterial. Once the court determined that neither agreement was legally sustainable, any inquiry into performance or payment was rendered academic. The invalidity of the contracts effectively resolved the dispute, leaving no basis upon which further contractual obligations could be enforced.

31. In any event, the court a quo’s remarks concerning payment amounted to obiter dicta, as they did not underpin the final determination of the matter. The decisive finding was that both agreements were void on account of their conflicting terms and the absence of a genuine consensus between the parties. Any observations relating to whether the appellant had discharged the payment obligations were, therefore, ancillary to the court’s reasoning and had no bearing on the outcome.

32. The court a quo cannot be further criticised for concluding that the appellant held only personal rights and not real rights. A “real right” is defined in s 2 of the Deeds Registry Act [Chapter 20:05] as “any right which becomes a real right upon registration.” In construing this definition, the Court in Goldlock Industries 2003 (Pvt) Ltd v Sheriff of Zimbabwe & Ors SC 62/23 at p 11 reaffirmed the position adopted in Mavhundise v UDC Ltd & Ors 2001