Anglovaal Investments (Pvt) Ltd and Paul Michael Neton Baker v Rolf Jan Phillip Walraven and Others

The applicants sought a prohibitory interdict against the respondents to prevent them from alienating rights and title in Stand No. 8 Woodbridge Close, Glen Lorne, Harare, claiming the respondents owed them 71,720.10 Euros plus 5% interest per annum from 6 November 2003. The applicants based their claim on an alleged agreement of sale dated 22 May 2003. However, the respondents had previously instituted Case No. HC 1230/2004 against the applicants for alleged breaches of the 2003 agreement. This case was withdrawn by mutual agreement at pre-trial conference, and the parties entered into a Deed of Settlement which provided for: (1) the respondents to refund US$22,000 to the applicants; (2) the applicants' agents and invitees to vacate the property upon payment of the refund; (3) neither party to have further claims against the other; and (4) withdrawal of the case. Subsequently, in February 2010, the applicants' legal practitioners wrote letters on behalf of different parties (Walraven and Mr & Mrs Arifaneti) offering to purchase the same property for US$100,000. This offer was never accepted by the respondents.

• Whether the agreement of sale of 2003 was still in force between the parties
• Whether the Deed of Settlement terminated the 2003 agreement of sale
• Whether the applicants met the requirements for the granting of a prohibitory interdict
• Whether the applicants approached the court with candour and clean hands
• Whether a prohibitory interdict can be granted in the absence of a subsisting contract

The application was dismissed with costs in favour of the respondents.

A prohibitory interdict must be premised on the existence of a subsisting contract between the parties. Where parties have entered into a deed of settlement which expressly provides that neither party shall have any further claim against the other, this operates to terminate the prior agreement and prevents any subsequent claims based on that terminated agreement. Conduct by a party that is fundamentally inconsistent with the continued existence of a contract (such as attempting to facilitate the sale of the same property to different parties at a different price) constitutes conclusive evidence of the abandonment of the original contract. A litigant who approaches the court dishonestly and attempts to build a case on misrepresentations regarding the existence of a contract will not be granted relief.

The court made several notable obiter observations: (1) The judge expressed amazement at how some litigants "unashamedly demonstrate a stout effort to mislead those who honestly and innocently care to lend them an ear" in an attempt to build a case out of nothing. (2) The court quoted Lord Denning's aphorism: "You cannot put something on nothing and expect it to stay there. It will collapse." (3) The judge commented that the exchanges between the parties in 2003 showed "brazen determination to flout Exchange Control Regulations which restricted the exchange of foreign currency then," though this was dealt with by the deed of settlement. (4) The court noted that it is "quite incredible that the applicants would build their cause of action on an agreement that was long cancelled." (5) The judge observed that litigants "must learn to be candid with the court" and that a litigant who approaches with dishonesty "must expect no sympathy from the court." (6) The court characterized the entire approach by the applicants as "a hopeless exercise in futility" motivated by a desire to continue unlawfully occupying the respondents' property.

This case is significant in Zimbabwean contract law for several principles: (1) it emphasizes the importance of candour and honesty when approaching the court, and that litigants with "hands dripping with dishonesty" will receive no sympathy; (2) it confirms that a deed of settlement which expressly states that neither party shall have further claims against the other operates to terminate prior agreements and prevents subsequent claims based on those terminated agreements; (3) it clarifies the requirements for a prohibitory interdict, emphasizing that such relief must be premised on the existence of a subsisting contract between the parties; (4) it demonstrates that conduct inconsistent with the existence of a contract (such as attempting to sell property to third parties) constitutes clear evidence of abandonment of the original contract; and (5) it serves as a warning against attempts to leverage interdict applications based on fictitious claims or amounts not supported by any contractual basis.