Tinashe Mangena and Ndenda Asidi v Marvellous Shumba and Arkrite Holdings (Pvt) Ltd and Registrar of Deeds N.O. and The Sheriff of the High Court N.O.

### Preamble
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HCC57/25
CASE NO HCCC79/25
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TINASHE MANGENA   
and
NDENDA ASIDI

versus

MARVELLOUS SHUMBA

and

ARKRITE HOLDINGS (PVT) LTD

and

REGISTRAR OF DEEDS N.O.

and

THE SHERIFF OF THE HIGH COURT N.O.

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J

Chinhoyi, 11 and 15 September 2025

Opposed Application

J. Chiradza, for the applicants

T. Matiyashe, for 1st and 2nd respondents

No appearance for the 3rd and 4th Respondents

BACHI MZAWAZI J:

Brief factual Narrative

[1] Indisputably, the applicants, a customarily married husband and wife couple entered into an instalment agreement of sale with the 1st respondent over property, Plot Number 5 Halfway Farm, Kadoma, measuring 2,32 Hectares held under Title Deed Number 1620/2011, Kadoma District, sometime in 2019.

[2] The 1st respondent is a representative of the 2nd respondent, a duly incorporated corporate entity, he owns and manages. The 3rd and 4th respondents are merely cited in their official capacity.

[3] It is not in contention that the agreed purchase price, which I need not replicate, was paid in full according to the terms of the parties’ contract.  Vacant possession was given to the applicants as evidenced by the papers filed of record in 2022, necessitating the construction of some dwelling structures as described in the applicant’s founding papers.

[4] In addition, all the necessary steps towards the process of transfer were, in mutual concordance, between the said parties implemented, culminating in the issuance of a Capital Gains Tax certificate over the property.

[5] Of note, the most vital stage in the process of transfer of title, that is the interview with the  Zimbabwe Revenue Authority (ZIMRA), was carried out by consensus in the presence of the legally required interviewees.

[6] The preliminary cession with the local council, Sanyati Rural Council, was done amicably. In as far as, the Local Council documents are concerned, the applicants’ names are the ones reflected.

[7] Rate clearance certificates were all obtained by the applicants and all borne their names. All the above has not been challenged and is not in issue.

[8] The stalemate arose when the 1st respondent or his appointed agent or proxy was summoned to sign the final documents towards of the transfer of title stage.  These are declarations by the completion seller amongst others, prepared by the conveyancing attorneys.

[9] By way of a letter dated, 15th of November 2024, the 1st respondent reneged from the whole transaction citing failure to effect transfer and incorporated the cancellation of the whole contract.

[10] In essence, the 1st respondent repudiated the contract at the eleventh hour, offering to refund the whole purchase, hiding behind a clause 9 of the parties’ contract of sale, claiming it empowered it do so.

[11] The applicants instantaneously, rejected the anticipatory breach, the cancellation of the mature contract, as well as a refund of the said purchase price through a litany of correspondence from their legal representative to those of the 1st respondent. They insist that the respondents should fulfil their side of the bargain by completing the transfer process. Applicants want specific performance of the contract not damages or a refund. They challenge the construction given to clause 9 of the agreement of sale by the respondents.

[12] The respondents refuse to budge insisting that clause 9 gives them the leverage to take the course of action they took. As such the only recourse available to the applicants as per that clause is to get a refund.

[13] It is this impasse that has given birth to this heavily contested application. Initially, the respondents had raised several points in limine, which through wise counsel, have since abandoned in toto. It thus, serves no purpose to duplicate them.

Applicant’s Case

[14] Applicants have approached this court seeking a compelling order, with a relief couched as follows:

Application to compel transfer of immovable property from the 1st Respondent to the Applicants be and is hereby granted.

The 1st Respondent be and is hereby ordered to sign all transfer papers, make all appearances, pay tax obligations as may be necessary to effect transfer of certain piece of land situate in the District of Kadoma called Plot Number 5 of Halfway Farm measuring 2,32 Hectares held under Title Deed Number 1620/2011 to the Applicants within 7 Days of the granting of the order.

Should the 1st Respondent fail to effect transfer within 7 days of granting of this order, the Sheriff of the High Court of Zimbabwe, or his deputy, is authorized to sign all necessary documents on behalf of the seller and to do all such things as may be necessary to effect transfer of the immovable property mentioned in Clause 2 above into the Applicants’ names.

The 1st Respondent shall bear costs on an attorney-client scale.

[15] The summarised facts as captured above need no repetition. It is the applicants’ argument that whilst repudiation of contracts is a sine qua non principle of the law of contract allowing a party to terminate a contract when no longer interested per se, in this case the respondents should not be allowed to hide behind a single clause of the whole agreement when there is already a binding and fulfilled contract between the parties.  They argue that the impugned clause should not be construed in isolation, singly and in a piecemeal but contextually alongside the rest of the clauses, particularly clause 10, of the agreement of sale.  They advocate for a purposive approach in the construction of that clause so as to give effect to the true intention of the parties as well as to the doctrine of sanctity of contracts.

[16] Applicants submits further, that, they have satisfied all the legal requirements of a compelling order cum specific performance and that they promptly objected to both the anticipatory breach and the unilateral cancellation of their contract. As such, they claim that an award of damages or refund of the purchase price will not adequately compensate them as the land has considerably appreciated in value and the contract is still capable of fulfilment.

[17] Whilst persistently challenging the importation accorded to the contentious clause, the applicants contest that the so called, failure to effect transfer has not been explained. In other words, the excuse given of tax obligations and its relevance to this particular agreement has not been even explained to them or before this court. They urge the court to invoke the blue print principle or rule in the event that the court is convinced that the respondent’s interpretation of clause 9 is the correct one.

Respondents Case

[18] The respondents maintain that courts do not make contracts for the parties and parties are bound by the terms of their contracts. They posit that if the court invokes the blue pen principle or give a broader interpretation to clause 9, it will be interfering with the parties right or contractual freedoms.  The doctrine of pacta sunt servanda should prevail in that the applicants, grown adults voluntarily and open eyed entered into a contract with the knowledge of and in agreement of all clauses therein. Therefore, they should not cry foul of clause 9 which is a term of their contract.  They advocate for the golden rule of interpretation so as to give the words in that clause their literal meaning.

[19] From their perspective clause 9 sanctions not only the repudiation of the parties’ contract but it restricts the available remedy to that of a refund and nothing else. They avert that clause 9, ousts the contractual remedy of specific performance, which is the relief being sought by the applicants. In that vein, they advert that applicants cannot have their cake and it. In simple terms, it is their averment that such a relief is not available to applicants as they were aware of the clause 9 provisions from, the onset. Therefore, since, they did not seek consequential or alternative relief in the form of a refund which was offered to them as per clause 9 nor damages, their claim should be contemptuously thrown out, so they contest.

[20] It now follows that, given the above factual background and parties positions the only issue for consideration revolves around clause 9 of the agreement of sale.

Issues

[21] The solitary issue is whether or not the relief of specific performance is available to the applicants given the provisions of clause 9 of the parties’ agreement of sale?

Discussion

[22] It is beyond dispute that what the applicants are seeking, termed as an application to compel transfer is actually an application for specific performance

.

[23] They purchased a property from the respondents. It was fully paid for. They are in occupation of the said property after being given vacant possession. To facilitate the process of transfer through the payment of rates to enable the production of the rates certificate, cession was made from the local council into their name. The records at the local council where the property is situated reflect them as the cessionary owners.

[24] It is apparent that, ninety nine percent of the transfer process was completed with the input of both parties resulting in the issuance of a Capital Gains Certificate. The capital gains tax was paid by the applicant to expedite the process, though legally it was supposed to be paid by the person who had gained cash capital. This was after the intentions to sale and purchase was established by the Zimbabwe Revenue Authority officials as a precursor to the issuance of the Capital Gains Certificate.

[25] What this entails is that, all the preliminary documents and requirements needed by the Deeds Registry office, where almost complete serve for, the requisite conveyancing declarations by both the seller and the purchaser.

[26] It is at this last point of the transaction, that the respondents resiled from the contract shielding themselves with one of the conditions of the contract. This is a breach of the parties’ contract, accurately captioned by both as anticipatory breach. A breach of contract attracts contractual remedies, such as damages and or specific performance amongst others.

[27] Specific performance is a contractual remedy, where a court of law may be called upon to order a defaulting party to fulfil their obligations under a contract, rather than compensating the other party with damages. Differently put, it is a remedy that compels a party to execute their contractual duties when financial compensation is inadequate.

[28]  In Farmers' Cooperative Society v Ben 1912 AD 343 at p 350, INNES JA, had this to say on specific performance,

“Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract.”

[29] Chiarelli v Bouna Inv. (Pvt) Ltd (2015) ZWHHC 678, it was held that;

“Specific performance is an extraordinary equitable remedy that compels a party to execute a contract in terms of the precise terms agreed upon. It is an order which grants the applicant what he bargained for in the contract. A valid contract must exist between the parties and the party seeking specific performance must have substantially fulfilled his obligations in terms of the contract. A party may also be granted the relief if he has offered to do or is ready and willing to do all acts that were required of him to execute the contract according to its terms”.

[30] Of importance, is that the remedy for specific performance is not there for the taking. It is at the discretion of the court after weighing in several factors including whether or not the obligation is capable of being performed.

[31] This was amply spelt out by the Supreme Court in Zimbabwe Express Services (Private) limited vs Nuanetsi Ranch (Private) Limited SC21-09, when it noted-

“An order of specific performance is, however, at the discretion of the court and there are circumstances in which a court may refuse to grant an order of specific performance.”

[32] In the case of Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A) at 783 C-D.” HEFER JA highlighted that,

“The discretion is… is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

[33] It suffices to note that in the exercise of its judicious discretion, the court takes into account factors such as the existence of the following, (the list is not exhaustive):

A binding contract

A breach of contract

Claimant specifically seeking specific performance

Adequate damages

Effect or unduly harshness on the defendant/respondent

Whether the contract is shockingly unfair or unjust

Whether it is possible of performance

[34]. Applying the above features to the applicants ‘case, it is evident that, there is an existing binding contract as already detailed above. The repudiation of the contract is the apparent anticipatory breach. This application illustrates that the claimant is seeking specific performance that the respondent fulfils its obligation by effecting transfer of the property in contention.  Bulletin points one to three are not in issue. What follows for examination are factors 4 to 7.

[35] From the evidence on record, it is clear that a considerable amount of the purchase price was paid in the then prevailing local currency. Land as articulately argued by the applicants has appreciated.  The repudiation clause used as both a shield and sword by the respondents speaks to a refund of the purchase price.  I am swayed by the applicant’s argument that the relief of damages will not only be unjust but inadequate.

[36] As regards elements five and six, there is nothing amiss about the instalment sale in which the applicants fulfilled all their obligations.  Therefore, it can neither be dubbed shocking, harsh, unjust or outrightly unconscionable.

[38] It is my considered view that, upon analysis of the totality of facts and submissions what remained on the part of the respondents, was to sign the declaration of the seller documents. They did not put the court into their confidence as to what tax obligations will burden the seller cum respondents if they finalize transfer as the capital gains tax due and stamp duty obligations were met by the applicants.

[39] It thus suffices to state that, contrary to what the respondents submitted, the applicants on the face of it, have satisfied the requirements for a relief of specific performance. However, I must hasten to say that though the requirements for the sought remedy have been satisfied there is an impediment  or detour embodied in clause 9 of the parties’ agreement that has been interpreted by the respondents as to oust the remedy of specific performance even though seemingly available.

Clause 9 of the agreement of sale

[40] This clause stipulates that, firstly, the seller is at liberty to repudiate the contract if he fails to successfully effect transfer of the property. Secondly, that in that event, he refunds the purchaser all of the purchase price. Lastly that, he notifies the seller of his failure to successfully effect transfer in writing.  The right to repudiate a contract is recognized at law.

[41] The South African Appellate court decision in, Dave Pretorius v Kenneth Bedwell, [2022] ZASCA 41, when explaining the concept of repudiation, expressed itself at paragraph 10, in the following manner:

"It is settled law that repudiation of a contract occurs where one party to a

contract, without lawful grounds, indicates to the other party, whether by words

or conduct, a deliberate and unequivocal intention to no longer be bound by

the contract. Then the innocent party will be entitled to either: (i) reject the

repudiation and claim specific performance; or (ii) accept the repudiation

cancel the contract and claim damages. If he or she elects to accept the repudiation,

the contract comes to an end upon the communication of the

acceptance of the repudiation to the party who has repudiated. Only then does

a claim for damages arise."

[42] Though, it is a truistic, that parties are bound by the terms of their contracts and that courts have a duty to interpret the parties’ contracts and not make contracts for the parties, in casu, I agree with the applicants.

[43] In that, in order to understand and appreciate the contract of the parties and their true intention, the clauses are not taken in piece meal but conjunctively. A purposive approach to interpretation is called for, since there seem to be an ambiguity between the two polarized clauses of the contract of sale.  Indeed, the respondent notified its repudiation by a letter that was delivered to the applicants. However, in that repudiation notice, they also cancelled the contract.

[44] In the agreement of sale, the cancellation clause is number ten. It has its own terms. In terms of clause 10, once the seller has breached the terms of a contract, the purchaser is entitled to elect to seek the enforcement of the contract by approaching the courts for a remedy of specific performance amongst others.

[45] If we are to begin with clause 9, it is undoubtedly clear that the applicants did not accept the repudiation nor the cancellation. They opted to enforce their contract through the courts. Hence, this hearing.  Further, the respondents have failed to demonstrate how they failed to successfully to effect transfer.

[46] They did not show any attempts that they made resulting in the unsuccessful failure to effect transfer.  The term “failure to successfully,’’ denotes some trial to implement or failed effort. In any event, I am not persuaded by their tax obligations burden. The cancellation perse is not impugned but the cancellation clause itself sanctions specific performance.

[47] MALABA DCJ, as he then was, in the Supreme court decision Elizabeth Mutizhe vs Loveness Ganda and The Registrar of Deeds and Fannie Mutizhe SC17-09 – stated as falls;

“Cancellation of a contract is lawful when it is in accordance with the terms and conditions of the contract between the parties. It is also lawful where there has been a repudiation of the contract which is accepted by the innocent party as a breach relieving him from future performance of his obligations, otherwise the innocent party has a right to elect to accept or reject the unilateral act by the other party to try and bring a contract to an end. If he rejects the repudiation as a breach of contract the innocent party can hold the other party to his side of the bargain provided, he discharges his own obligations under the contract’

[48] It is my considered view that in the spirit of the doctrine of sanctity of contracts, the respondents should be held accountable to their actions. It is highly prejudicial to allow them to walk away from their obligations given the history of this case and all the stages that had been fulfilled in the performance of their contract.

[49] In Book v Davidson 1988(1) ZLR 365(S), speaking to the doctrine of sanctity of contracts and freedom to trade it was held,

“... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”

[50] The Book v Davison case above, does not only speak to the sanctity of contracts in relation to restricting the court’s role to the interpretation but also to give effect to what the parties committed and bound themselves to.

[51] In the final analysis the dictum by Robinson J, in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd, 1993 (1) ZLR 21 (H) caps it all by expressing that:

“Businessmen beware. If you fail to honour your contracts, then don’t start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract…businessmen who wrongfully break their contracts must not think they can count on the courts when the matter eventually comes before them simply to make an award of damages in money. …Businessmen at fault will therefore in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them”.

Disposition

[52] I need not say more than what has been stated above. The conduct of the respondents falls squarely with that which is castigated by the above cases, Book v Davison, Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt)Ltd and most recently the Chiduku. Respondents obtained a benefit of enjoying the use of the purchase price when it is still held value. They entered into an agreement in the then prevailing local currency fully aware of the implication and economic volatility of the day. Their actions are mala fide, as it is clear they now want to dispose of the property in foreign currency at a higher value than the amount they would tender as a reimbursement of the applicants purchase price.

[53] Evidently, they are motivated by greed and nothing else, given that, even the stamp duty, at law, is paid by the purchaser. Overall, the contract of sale has been substantially performed by both parties as explained herein, such that allowing them to benefit from their own wrong will not only be unjust but will cause undue hardship to the bona fide party in securing a replacement property of equal value.

[54] The respondent repudiated the almost finalised contract at the umpteenth hour. The applicants responded by rejecting the repudiation and opted for the relief of specific performance.  
I have already employed the purposive canon of interpretation and concluded that clause 9 should be interpreted within the context of all clauses, including clause ten.

[55] By virtue of clause 10, which the respondents had incorporated as part of their repudiation communication, the applicants’ entitlement to a of claim specific performance if they so desire is ring fenced. This is the appropriate remedy in the circumstances, as damages or a refund are obviously inadequate.

[56] The application succeeds. Both parties vied for costs at a higher scale. I see no justification in an award of punitive costs and the departure from the usual norm that costs follow the cause. Each party strongly believed in the position they had assumed. I find no basis for delving into the blue print rule, that is if it has application in our jurisdiction at all, as a conclusion has already been made on the main issue which is dispositive of the matter.

I hereby make the following order:

It is ordered that:

Application to compel transfer of immovable property from the 1st Respondent to the

Applicants be and is hereby granted.

The 1st Respondent be and is hereby ordered to sign all transfer papers, make all

appearances, pay tax obligations as may be necessary to effect transfer of certain piece      of land situate in the District of Kadoma called Plot Number 5 of Halfway Farm          measuring 2,32 Hectares held under Title Deed Number 1620/2011 to the Applicants within 7 Days of the granting of the order.

Should the 1st Respondent fail to effect transfer within 7 days of granting of this order,

the Sheriff of the High Court of Zimbabwe, or his deputy, is authorized to sign all

necessary documents on behalf of the seller and to do all such things as may be necessary to effect transfer of the immovable property mentioned in Clause 2 above into the   Applicants’ names.

Costs follow suit.

Pundu and Company legal practitioners for the Applicants
Matiyashe Law Chambers legal practitioners for the Respondents

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