Njanike Construction Company (Pvt) LTD T/a ONE WAY Bulding Contractors’ Construction V Turnall Holdings Limited

### Preamble
1
HH 605 - 25
HCH 2484/25
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NJANIKE CONSTRUCTION COMPANY (PVT) LTD t/a ONE WAY BULDING CONTRACTORS’ CONSTRUCTION

versus

TURNALL HOLDINGS LIMITED

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 2 October 2025

Opposed Application

T. Biti, for the applicant

G. Chifamba, for the respondent

MAMBARA J:    This is an application for specific performance of a contract in terms of which the applicant seeks delivery of certain building materials by the respondent. The applicant, a construction company, avers that in May 2018 the parties concluded a binding agreement for the sale of these materials. It is alleged that the respondent provided a proforma invoice detailing the materials and price, the applicant made a substantial part-payment towards the price, and the understanding was that delivery would occur when the applicant’s construction project commenced. The respondent has refused to deliver the outstanding materials, prompting this court application. The respondent opposes the relief, denying that a valid or perfected contract came into existence and raising several defenses, namely that the claim has prescribed, that intervening currency changes in Zimbabwe extinguished or altered the obligation, and that the applicant itself failed to perform its obligations. The issues for determination are therefore:

whether a valid and enforceable contract was concluded between the parties in May 2018;

if so, whether that contract became perfecta and enforceable (in light of any suspensive condition such as delivery upon commencement of construction);

whether the respondent’s defences including prescription, the impact of Statutory Instrument 33 of 2019 and Statutory Instrument 60 of 2024 on the contract, and the alleged lack of performance by the applicant have merit; and

whether, in the event of a valid contract and breach, the remedy of specific performance should be granted in the court’s discretion.

The following background is largely common cause. In May 2018, the applicant sought to procure building materials including roof sheets, pipes, and related items) from the respondent, a supplier of construction materials. The respondent issued a proforma invoice dated 28 May 2018, quoting a price in United States Dollars for a specified list of materials. The applicant proceeded to pay a substantial portion of the quoted price for specified items into the respondent’s account on or about that date. It was agreed by the parties that delivery of the materials would be done once the applicant’s project commenced. Correspondence between the parties at that time confirms these arrangements – notably, an email from the applicant confirming the deposit and referencing the proforma invoice number, and a reply from the respondent acknowledging receipt of payment and noting that delivery would be effected “once you notify us to dispatch, upon commencement of your project,” or words to that effect. The applicant did not immediately take delivery, as its construction project for which the materials were intended had not yet begun. The understanding was that the respondent would hold the order and deliver the materials when the applicant’s building works were ready to commence. By early 2019, Zimbabwe’s monetary regime changed. The government, through Statutory Instrument 33 of 2019, introduced a new currency (RTGS dollar), effectively converting existing US dollar-denominated obligations to RTGS on a 1:1 basis.

The first question is whether a valid contract came into being in May 2018 on the facts. It is trite that a binding contract is constituted by a lawful offer and a matching acceptance, supported by consideration (or causa in our law). See Njanike Construction (Pvt) Ltd v LA Farge Cement Zimbabwe Limited HH 24/22. One determines from an objective perspective whether the parties reached a consensus ad idem (meeting of the minds) on the essential terms. In the present case, the proforma invoice issued by the respondent can be regarded as an offer to sell specified goods at a price of US$135 167.40. The applicant’s act of making payment of the deposit in response to that proforma, coupled with its communication confirming the order details, amounted to an acceptance of the offer by conduct. Indeed, an offer may be accepted by performing an act required by the offer, without the need for further notification, especially where that is the clear intention of the offeror. In Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256, for example, an advertised promise was held to be an offer that could be accepted by conduct (use of the product as directed), without direct notification, because the offeror indicated an intention to be bound. Similarly, here the respondent’s issuance of a priced invoice coupled with instructions for payment indicated that acceptance could be signified by making the requested payment. The respondent did accept and acknowledge the payment, which signifies consensus. I reject the respondent’s characterization of the payment as merely creating a “customer account” without a concluded sale. That explanation – that the funds would sit in an account until a future order was placed – might have been plausible had there been no specificity as to quantity and price. But in this case the parties had agreed on the merx (the goods: a defined list of materials) and the pretium (price of the goods, totalling $1353 167. 40, and the applicant acted on that agreement by parting with money. The respondent’s internal terms and conditions (purporting to reserve the right to only form a contract upon invoicing at dispatch) were not brought to the applicant’s attention in any meaningful way; in any event, by accepting the payment and acknowledging receipt of the funds, the respondent waived strict insistence on those terms. This situation is analogous to the classic case of Brogden v Metropolitan Railway Co (1877) 2 App Cas 666, where parties who had not formally signed a contract were nevertheless held bound because they acted on the draft terms – acceptance was inferred from conduct. I am satisfied on a balance of probabilities that as at May 2018, a valid and binding agreement to sell and purchase the listed building materials was concluded between the applicant and respondent.

The next issue is whether the contract was subject to a suspensive condition – namely the commencement of the applicant’s construction project and the applicant’s notification to the respondent to deliver – and if so, the effect thereof. A suspensive condition is a condition that suspends the operation of a contract until the condition is fulfilled; the contract is formed, but its eligible obligations are held in abeyance pending the occurrence of the condition. In this case, the requirement that delivery would be made when the applicant’s project began and on notice to the respondent did not mean there was no contract. It simply meant the respondent’s duty to deliver and the applicant’s duty to take delivery would arise at that future time. Such a term is common in building material supply agreements – the buyer pays to secure the goods, and the seller holds the goods or stock allocation until the buyer is ready to receive them. The contract thus was perfected (perfecta) in the sense that all essential terms were agreed and nothing material was outstanding save the timing of performance. The sale was not subject to an uncertain future event in the sense of alea; rather, it was understood that the project would indeed commence. Even if one characterises the commencement of construction as a true suspensive condition, the effect would simply be that the enforceability of the obligation to deliver was suspended until fulfilment of that condition. The respondent did not reserve a right to cancel the contract if the buyer’s project had not commenced by a certain date. Therefore, by 2025 when the applicant gave notice and demanded delivery, the contract was in full force and the reciprocal obligations were due.

The concept of a contract being perfecta is often relevant to the passing of risk and the finality of the parties’ bond. Here, by May 2018 the contract had all essentials and was binding on both parties, subject only to the timing of performance. The risk of loss or market fluctuation after a sale is perfecta typically lies with the parties as per their agreement or the default law. The respondent, having entered a binding sale, bore the risk of any subsequent price increase or, pertinently, currency changes – absent an agreement to the contrary. The respondent cannot successfully argue that no enforceable duty ever arose due to the lack of a formal delivery schedule or invoice at dispatch. That argument is a red herring. The timing of performance does not negate the existence of the contract. In Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343 at 350, the court underscored that once a binding contract exists, each party is in principle entitled to hold the other to the bargain. The suspensive condition here did not “defeat” the contract.

The respondent contends that the claim has prescribed in terms of the Prescription Act [Chapter 8:11]. In Zimbabwe, a contractual claim (a “debt” in the wide sense) generally prescribes after three years from the time the cause of action arises unless prescription is interrupted or delayed. The critical question is: when did the applicant’s claim for delivery of the materials become due? According to section 16(1) of the Prescription Act, prescription begins to run “as soon as a debt is due”. A debt is not deemed due until the creditor (applicant) is aware of the identity of the debtor and the facts giving rise to the debt. In the context of a contract with a suspensive condition or an agreed future performance date, the obligation becomes due only upon fulfilment of the condition or arrival of the date. In this case, the applicant’s right to claim delivery arose when it notified the respondent to deliver the goods. This occurred in mid-2025 when the applicant’s lawyers wrote demanding delivery. It is at that point, or upon the respondent’s failure to perform within a reasonable time thereafter, that the cause of action for specific performance accrued. The applicant instituted these proceedings in May 2025. The claim falls within the three-year period. Even if there were any doubt about the timing, the correspondence from the respondent over the years and in June 2022, constitutes an acknowledgment of liability. In terms of the Prescription Act, a written acknowledgment of liability by the debtor interrupts prescription effectively resetting the prescription period from the date of acknowledgment. Thus, the letters of 2022 would have interrupted prescription, meaning prescription would start running anew from that point. On either analysis, the applicant’s claim was filed timeously before the prescriptive period expired. I accordingly find that the defence of prescription is without merit and must be dismissed.

The respondent argues that the drastic changes in Zimbabwe’s currency regime extinguished or fundamentally altered the contractual obligations, such that specific performance should not be ordered. It is necessary to consider the legal effect of these statutory instruments. Statutory Instrument 33 of 2019 (enacted in February 2019 under Presidential Powers regulations) provided that for all purposes, including liabilities and assets, any amount originally expressed in US dollars would be deemed to be in RTGS dollars on a 1:1 rate as of the effective date (22 February 2019). In practical terms, this meant that the applicant’s payment of US$135 167.40 was converted by law into an equivalent RTGS dollar amount. Later, Statutory Instrument 60 of 2024 introduced a new currency (Zimbabwe Gold Dollar or “ZWG”) as the unit of account for transactions previously in Zimbabwe dollars, effectively re-denominating the RTGS/ZWL into the gold-backed currency. These currency measures indeed wreaked havoc on pre-existing contracts, as the real value of money was eroded. The respondent’s position is that because of S.I. 33 of 2019, the money it received from the applicant is now accounted as a far lesser value in the new currency, and that delivering the originally agreed quantity of materials would impose a huge loss on it given post-2019 price escalations. This contention, however, does not provide a legal excuse for non-performance of a contract. Changes in currency by the State are part of the ordinary business and financial risk that parties to a contract bear, unless the contract itself provided a pricing adjustment mechanism or a force majeure clause covering such events. No such provision was pleaded here). The Supreme Court in Grandwell Holdings (Pvt) Ltd v Zimbabwe Mining Development Corp & Ors SC 5-20 reaffirmed the sanctity of contract, emphasizing that courts will not rewrite a contract simply because external events, even onerous or oppressive consequences, have made it inconvenient for one party. While the Grandwell case did not deal with currency as such, the principle applies: a party is held to their bargain, “even if the consequences are onerous or oppressive”.

It is true that in the wake of S.I. 33 of 2019, some creditors who were owed money in US dollars have found themselves being paid in vastly devalued local currency, and the courts, including the Supreme Court in Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd SC 3-20, have given effect to the law by allowing debts to be discharged in RTGS at 1:1. However, the present case differs in that the applicant is not seeking a money judgment for a USD debt. It is seeking specific performance of a contract for delivery of goods, for which payment was already tendered at the agreed price. The currency conversion affects the medium of payment, but not the nature of the obligation to deliver the goods. In other words, the respondent already holds or had the benefit of the applicant’s payment, albeit now in local currency terms. The respondent cannot approbate and reprobate. It retained the applicant’s funds indicating the contract was on foot, but now seeks to use the currency laws to undermine the remaining obligation. Equity and justice strongly favour the applicant’s position here. The applicant has no adequate remedy at law because recovering the monetary value of its payment in today’s terms would be a hollow remedy due to hyperinflation and currency changes. Such an amount would procure only a tiny fraction of the materials. This is precisely a scenario where specific performance is apt. Damages are not an adequate remedy. Under common law principles, specific performance may be granted when the subject of the contract is unique or where substitute performance is not readily available for purchase. See Sky Petroleum v VIP Petroleum [1974] 1 WLR 576 (Ch), where Goulding J held that while the general rule is that courts grant only damages for breach of contract to supply non-specific goods, the unusual state of the market made specific performance of supplying petrol the appropriate remedy. Damages were not adequate. Here, because of the currency and market situation, the applicant cannot simply take its converted RTGS/ZWL (or ZWG) money and buy equivalent materials elsewhere on the market. What it paid as USD $135 167.40 would now be woefully insufficient to buy the same quantity in ZWL/ZWG terms. This situation mirrors Sky Petroleum v VIP Petroleum (supra), where due to an oil shortage the buyer could not cover in the market, and the court ordered specific performance (via injunction) of a fuel supply contract, departing from the normal rule that damages suffice for generic goods. Goulding J. in Sky Petroleum recognized that in an “unusual state of the market” where the buyer cannot obtain the goods elsewhere, specific performance is justified. By parity of reasoning, the court should enforce the respondent’s obligation to deliver the materials, rather than relegate the applicant to a virtually valueless damages claim.

Furthermore, nothing in S.I. 33 of 2019, S.I. 60 of 2024, or related legislation, explicitly forbids parties from performing their contracts in the originally agreed currency or quantity by mutual agreement. Those instruments primarily deal with legal tender and the unit of account for obligations. The applicant’s claim for specific delivery of goods is not barred by any statute. The respondent’s duty can be performed. It still manufactures or stocks the building materials in question. There is no suggestion that the goods have ceased to exist or are illegal to sell. Currency changes are thus not a legal defence to performance. At most they go to whether performance has become onerous. Onerousness alone is not a ground to refuse to enforce a contract under our law, save perhaps in extreme cases of force majeure or supervening impossibility, which have not been established here. The respondent has not alleged that it is impossible to deliver the materials – only that it received “less real money” due to currency changes. That is a commercial risk. Indeed, had the exchange rate moved the other direction (hypothetically making the deposit worth more), no doubt the respondent would expect the benefit of the bargain. The court’s role is to hold parties to the agreement they made, not to adjust it ex post facto for economic shifts. In sum, the currency-related arguments do not extinguish the applicant’s contractual right to the materials. Rather, they underscore why specific performance is the proper remedy, since it avoids the inequity that would result from purely monetary relief.

The respondent also contends that the applicant is not entitled to specific performance because it allegedly did not perform its own obligations – either by failing to pay the full price or by delaying unreasonably in calling for delivery. On the facts, the applicant paid a substantial deposit (US$135 167.40, being roughly 50% of the price) in May 2018. The remaining balance was to be paid upon purchase of the balance of the materials on the proforma invoice. I am satisfied that the applicant has fulfilled its obligations in terms of the contract. As regards the timing, while it is true the applicant waited from 2018 to 2025 to request full delivery, this delay is explained by the construction timetable and cannot be characterized as a breach. The contract did not stipulate a fixed date for delivery. It was left to the applicant’s notification. The respondent never objected or imposed a deadline in the interim. In fact, when notified in 2025, the respondent did not refuse on the basis of lateness. It refused on the basis of currency and pricing issues. There is thus no merit in arguing the applicant breached by delay. The applicant exercised its contractual right to call for delivery when needed. Thereafter, the respondent unequivocally refused to perform as per contract, which refusal constituted a repudiation and breach on the part of the respondent. The applicant was entitled to enforce the contract once its own readiness to perform was clear.

In our law, specific performance is a primary remedy for breach of contract. Unlike in English law where specific performance is considered an exceptional equitable remedy, Zimbabwean law derived from Roman-Dutch law treats specific performance as a normal remedy to which a contracting party has a right, except in special circumstances where a court’s discretion may be exercised to refuse it. See Grandwell Holdings (Pvt) Ltd v Zimbabwe Mining Development Corporation and Others (supra).  Malaba DCJ, (as he was then) in Savanhu v Marere N.O. & Ors 2009 (1) ZLR 320 (S) at 325A-C, articulated that the right to claim specific performance is subject to the claimant himself having performed or being ready to perform his side of the bargain. Once that is established, a court should enforce the contract unless it would be inequitable to do so in the particular circumstances. The court’s discretion to refuse specific performance must be exercised judicially and sparingly. It is not a carte blanche to deny relief simply because damages might also be a remedy; indeed, our Supreme Court in the Grandwell Holdings matter has cautioned that the remedy “cannot be withheld arbitrarily or capriciously”. Generally, it is only in cases of impossibility of performance, or where granting specific performance would occasion undue hardship or inequity amounting to injustice, that a court might deny this relief and leave the plaintiff to a claim for damages. Even in English law, which is more hesitant about specific performance, the remedy will be refused on grounds of undue hardship – for example, in Patel v Ali [1984] Ch 283, specific performance of a house sale was denied because the vendor had become gravely disabled and ordering her to transfer the house would have caused extraordinary hardship. In the present case, the respondent has not demonstrated any comparable hardship that is unconscionable. Yes, it may suffer a financial loss by having to honour a bargain struck in USD before devaluation – but that is an ordinary incident of contract and commercial risk. It does not rise to the level of injustice necessary to displace the applicant’s prima facie right to the bargain. Notably, in Farmers Co-op v Berry (supra), the court affirmed that prima facie “every party to a binding agreement who is ready to carry out his own obligation has a right to demand performance of the other party’s undertaking”. The respondent is a corporation that willingly entered the transaction; the subsequent economic difficulties do not make it inequitable to compel it to perform. There is no suggestion that specific performance would require constant supervision or court involvement beyond the simple act of delivery, nor that the goods are no longer available. This is not a case involving personal services or a long-term obligation requiring supervision – it involves a one-time delivery of chattels, which is straightforward to enforce. Therefore, the court’s discretion, though it exists, should be exercised in favour of the applicant so as to uphold the sanctity of contract.

In addition, Roman-Dutch law has always favoured giving the innocent party the actual performance of the contract as far as possible. Our own Supreme Court in recent times (see Grandwell Holdings (Pvt) Ltd v ZMDC SC 5-20) echoed the sentiment that specific performance holds the default position as a remedy for breach. The onus was on the respondent to show why this case falls into an exception where specific performance should be refused. The respondent attempted to do so via the defences already analyzed – none of which have been persuasive. There are no exceptional circumstances here warranting refusal. It is also worth noting that granting specific performance in this case aligns with the interests of justice: the applicant gets what it bargained and paid for, and the respondent is not subjected to anything it did not expressly undertake. Conversely, denying specific performance would sanction what amounts to an unjust enrichment of the respondent at the applicant’s expense – an outcome equity would frown upon.

Disposition

In light of the foregoing analysis, the court finds that the applicant and respondent entered into a valid contract of sale in May 2018 for the supply of specified building materials. That contract became enforceable when the suspensive condition, delivery upon notice by applicant, was met. The respondent’s failure to deliver the materials is a breach of contract not excused by prescription, currency legislation, or any failure on the applicant’s part. The applicant has demonstrated that it has performed its part of the bargain. There are no adequate alternative remedies and no equitable bar to relief. Consequently, the applicant is entitled to an order for specific performance. The respondent shall bear the costs of suit on the ordinary scale, as its opposition was without merit. No punitive order for costs is sought or warranted.

It is accordingly ordered that:

Judgment be and is hereby entered in favour of the applicant in respect of which within 7 days from the date of this order, the respondent must deliver to an address of the applicant’s choice or make available for collection the following building materials;

3240 units of 12 feet asbestos

2160 units of 9 feet asbestos

1620 units of cranked ridges

1800 units of fascia boards

The respondent pays costs of suit.

Mambara J: …………………………………………

Tendai Biti Law, applicant’s legal practitioners

Gollop & Blank, respondent’s legal practitioners