Balance Monde and Marian Fungai Ngongoni v Lucian Ncokwana Dumbarimwe and Masvingo City Council

The first plaintiff and her late husband Innocent Zvitambo allegedly entered into an agreement of sale with the first defendant on 3 January 2002 for the purchase of Stand No. 16337 Runyararo West, Masvingo, at a price of ZWD 190,000. The plaintiffs claimed to have paid the full purchase price and took possession of the property. The first defendant relocated from Masvingo before transfer of title was effected. In 2022, the first defendant's son visited the property and claimed ownership. The second plaintiff was appointed Executrix Dative of the estate of the late Innocent Zvitambo (DR No. 3149/22). The first defendant denied ever meeting the plaintiffs or entering into any agreement of sale, alleging the agreement was fraudulent. He claimed he acquired the property through his employer's housing scheme and left Jonas Nyatsango as caretaker. The plaintiffs sought to compel transfer of the property to them.

• Whether the agreement of sale dated 3 January 2002 between the plaintiffs and the first defendant in respect of Stand No. 16337, Runyararo West, Masvingo, is valid and enforceable
• Whether the plaintiffs discharged the onus of proving the existence and authenticity of the alleged agreement of sale
• Whether the signature on the agreement of sale was authentic
• The admissibility and weight of hearsay evidence regarding the sale transaction
• The appropriate standard of evidence required to prove the existence of a contract on a balance of probabilities

1. The plaintiffs' claim is dismissed. 2. The plaintiffs shall bear the first defendant's costs.

The binding principles established are: (1) In a claim based on a contract, the plaintiff bears the onus of proving the existence of the contract, its binding nature and enforceability on a balance of probabilities; (2) Where the authenticity of a signature on a contract is disputed, the party alleging authenticity must substantiate this through proper evidence, preferably expert evidence from a qualified questioned documents examiner, not mere comparison by a lay witness; (3) Hearsay evidence from witnesses who have no personal knowledge of the material facts and were not present at the conclusion of the alleged contract is of little probative value when the existence of the contract is in dispute; (4) The absence of a key witness (such as the actual party to the contract) without adequate explanation may be fatal to a claim, particularly when that witness is reasonably accessible; (5) The principle that he who alleges must prove cannot be shifted to the defendant to disprove the plaintiff's case; (6) A party cannot raise a new claim for substantive relief (such as a declaration of nullity) in closing submissions without having filed a counterclaim.

The court made observations about the geographical accessibility of witnesses, noting that traveling from South Africa to Zimbabwe is "not as much of a hurdle as travelling from far away places like Canada or Australia." This suggests that courts will scrutinize more carefully the failure to call witnesses from neighboring countries. The court also commented on the nature of the documentary evidence (rates payment invoices and building plans approval), noting that from the second defendant's (Masvingo City Council's) perspective, these merely showed rates paid by or on behalf of the named ratepayer (the first defendant) and did not constitute consent to cession of any agreement. The court observed that the first defendant's closing submissions sought relief beyond what was pleaded, noting that "parties are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can" (quoting Delta Beverages (Pvt) Ltd v Murandu SC 38/15). While the court noted that the first defendant did not raise objections to the admissibility of hearsay evidence, the court still assessed its weight and found it wanting.

This case reinforces fundamental principles of evidence and civil procedure in Zimbabwean law (which shares common legal heritage with South African law). It emphasizes the strict application of the onus of proof principle that he who alleges must prove, particularly in contractual disputes. The case demonstrates the courts' unwillingness to accept hearsay evidence on material facts, especially when key witnesses are available but not called without adequate explanation. It also highlights the requirement for proper expert evidence when seeking to authenticate questioned documents, and that lay opinion evidence, even from professionals in other fields, will not suffice. The judgment serves as a cautionary tale about the importance of calling primary witnesses and properly establishing the foundational elements of a contractual claim, particularly when the very existence of the contract is disputed.