Andrew M. Sibanda v Nyengeterai Hama and Hilda Zulu and Registrar of Deeds Bulawayo

The applicant was instructed by his daughter, who was based overseas, to purchase immovable property in Bulawayo in June 2003. He approached Gens Investments (Pvt) Ltd trading as Gens Housing Construction and was offered stand 3051 Cowdray Park for $4 million. He entered into a verbal agreement of sale with the company, agreeing to pay in two cash instalments. He paid only $705,000 in five instalments between 27 June and 8 July 2003. While making his last payment, he met the 1st respondent (the registered owner) and the 2nd respondent. The applicant was informed that the 1st respondent had previously sold the property to the 2nd respondent, who had not paid in full. The parties allegedly agreed to deal directly with each other, and the applicant claims he paid an additional $790,000 directly to the 1st respondent. Later, the applicant discovered that both respondents were preparing to transfer the property to one Lucky Moyo. The 2nd respondent denied meeting the applicant or receiving any money from him, stating she had paid the full purchase price to the 1st respondent through Bulawayo Real Estate and was entitled to resell to Lucky Moyo. The applicant sought a provisional order compelling the 1st respondent to transfer the property to him.

• Whether the applicant established a valid contract for the purchase of the property
• Whether the applicant was entitled to specific performance requiring transfer of the property
• Whether the provisional order should be confirmed or discharged
• Whether the matter involved disputes of fact that should have been resolved through action rather than motion proceedings
• Whether the applicant had made sufficient payments to enforce his alleged rights to the property
• The priority of competing claims to the same property

The provisional order was discharged with costs.

Where there are material disputes of fact in motion proceedings that cannot be resolved on the papers, the matter should be dismissed and the parties should proceed by way of action. A party seeking specific performance of a contract for the sale of immovable property must establish: (a) a valid enforceable agreement; (b) compliance with their own contractual obligations including full or substantial payment of the purchase price; and (c) clear entitlement to the relief sought. Where an applicant fails to cite necessary parties (such as alleged agents and other prospective purchasers) and fails to provide adequate documentary proof of their agreements, they cannot establish a clear right to the relief sought. The balance of convenience in property disputes will favour a party who has fulfilled their payment obligations over one who has made only partial payments and breached payment terms.

The court expressed surprise at the applicant's manner of conducting business, entering into verbal agreements for the purchase of immovable property in the modern day without reducing the agreements to writing to safeguard his rights. The court noted that it would normally be possible to grant some order against a party who defaults in filing opposing papers, but declined to do so in this case because the applicant had not made out a clear case on the papers. The court suggested that the applicant should institute separate proceedings against either or both respondents by way of action. The court also commented on the improbability of a reputable estate agent operating on the basis of verbal rather than written agreements of sale.

This case illustrates important principles in Zimbabwean property and procedural law regarding: (1) the requirement for written agreements in property transactions; (2) the need for complete payment of purchase price to enforce specific performance; (3) the proper citation of necessary parties in litigation; (4) the distinction between motion and action proceedings and when disputes of fact require resolution through action proceedings; and (5) the balance of convenience test in applications for interdicts and specific performance. The case serves as a cautionary tale about conducting property transactions on verbal agreements without proper documentation.