Benias Nyahunzvi v Estate Late Clever Nzanza and Others

The plaintiff claimed he entered into a verbal agreement of sale with the late Clever Nzanza in 2000 to purchase property Stand No. 14424/6 Kuwadzana, Harare for $150,000. He alleged the agreement was recorded in Nzanza's personal diary and signed by parties and their wives. The plaintiff claimed to have made payments through Zimbabwe Building Society (ZBS) between 2000-2008, keeping receipts while Nzanza retained the diary. When Nzanza died on 27 January 2008, the plaintiff sought transfer from the second defendant (Nzanza's son and executor). The second defendant disputed the sale, claiming the plaintiff was merely a tenant paying rent, and that Nzanza had fully discharged the mortgage bond by January 2003. The second defendant sought to evict the plaintiff, having given notice as the family needed the property after losing their company accommodation in Greendale. Documentary evidence showed the City Council allocated the stand to Nzanza in 1999, ZBS provided mortgage finance in 2000, and the mortgage was fully paid by January 2003. Nzanza's 2007 will bequeathed the property to his children.

• Whether a valid agreement of sale of immovable property was concluded between the plaintiff and the late Clever Nzanza
• Whether the plaintiff discharged the onus of proving the existence of an agreement of sale on a balance of probabilities
• Whether payments made by the plaintiff constituted purchase price instalments or rental payments
• The credibility of witnesses and weight to be attached to conflicting testimony

The plaintiff's claim was dismissed with costs. The second defendant's counter-claim was upheld. The plaintiff and all those claiming through him were ordered to vacate Stand No. 14424/6 Kuwadzana Township, Harare by 30 May 2012, failing which the deputy sheriff was authorized to evict them from the property.

A party alleging the existence of an agreement of sale of immovable property bears the onus of proving such agreement on a balance of probabilities. Where an alleged written agreement was recorded only in a document retained by the deceased seller, and the plaintiff failed to secure any copy during years of alleged payments, failed to obtain written confirmation even when the seller was terminally ill, gave conflicting testimony on material issues, and documentary evidence contradicts the claim (showing the mortgage was discharged before the alleged payment period), the plaintiff has failed to discharge the requisite onus of proof. Conduct inconsistent with ownership rights (initially agreeing to vacate before later asserting a purchase) and the existence of a will bequeathing the property to others further undermines the credibility of the alleged sale.

The court observed that the actions of a reasonable person in the plaintiff's position would have been to secure written confirmation of such an important transaction, particularly when making payments over a seven-year period. The court also commented on the reasonableness of the second defendant's explanation that rental payments into a bank account made practical sense given that the deceased was an accountant whose professional responsibilities required him to be stationed at various mining locations away from Harare for extended periods, making direct collection of rent inconvenient. The court noted approvingly that the deceased was a respected professional person who held a responsible position in the mining industry, which contextualized the improbability that he would have acted dishonestly as suggested by the plaintiff's counsel.

This case is significant in Zimbabwean property and contract law as it reinforces fundamental principles regarding proof of contracts for the sale of immovable property. It emphasizes the importance of: (1) securing written documentation for agreements of sale of immovable property, particularly where alleged agreements are only recorded in personal diaries held by the other party; (2) the party alleging a contract bears the onus of proving its existence on a balance of probabilities; (3) consistent and credible testimony, as contradictions on material issues undermine a party's case; (4) the weight of documentary evidence in determining disputed facts; and (5) the conduct of parties before and after the alleged agreement as relevant to assessing credibility. The judgment also illustrates how courts assess witness credibility and apply the balance of probabilities test in civil disputes involving property rights.