Bothwell Muwalo v Fairvest Real Estate

The plaintiff entered into an agreement with the defendant, an estate agent, to sell his house at Stand No 5609 New St Mary's Township, Chitungwiza. The plaintiff averred that he specifically instructed the defendant to secure the deposit on the purchase price at the time of signing the agreement, with the balance payable on or before 3 August 2005, and that the purchase price was to be paid immediately to him on both dates. An agreement of sale was signed with a purchaser (Cain Sibanda) for an initial price of $250 million, later increased to $270 million by addendum. The plaintiff alleged he did not receive the money paid by the purchaser as stipulated. The purchaser subsequently obtained a court order for specific performance against the plaintiff, resulting in the plaintiff losing his stand. The plaintiff initially claimed $15 million in damages (later amended to $600 million) for the defendant's alleged failure to execute its mandate with due care. Disputes arose regarding when the agreement was signed (plaintiff claimed 21 July 2005, purchaser testified it was 5 September 2005), and whether the defendant was obligated to pay the purchase price immediately upon receipt.

• Whether the plaintiff adduced sufficient evidence to withstand an application for absolution from the instance
• Whether the defendant was contractually obligated to pay the purchase price to the plaintiff immediately upon receipt from the purchaser
• Whether the plaintiff established the quantum of damages suffered
• Whether the plaintiff's evidence demonstrated a breach of mandate by the defendant

The defendant was granted absolution from the instance with costs of suit awarded against the plaintiff.

At the close of the plaintiff's case in an application for absolution from the instance, a plaintiff must adduce evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff. Where the plaintiff's evidence contains material contradictions and fails to establish the essential elements of the claim - both breach of contract and quantum of damages - absolution from the instance will be granted. An expert witness who has never inspected the subject property cannot give evidence of probative value regarding its valuation. In the absence of express contractual provisions to the contrary, an estate agent is not obliged to pay purchase monies to a seller immediately upon receipt, particularly before cession has been effected.

The court observed that the question of whether the agreement had been cancelled was determined by the court that dealt with the application for specific performance and was therefore not before it except as background to the claim. The court noted it was unclear whether the plaintiff's claim arose from the defendant's alleged failure to pay money upon receipt or from failure to cancel the agreement when instructed, but stated that either way, it was not determinative given the insufficiency of evidence. The court expressed strong criticism of the legal practitioner who called the expert witness Mapfunde to give evidence on valuation when he had never seen the property, describing this as "especially reprehensible."

This case is significant in Zimbabwean civil procedure for its application of the test for absolution from the instance and its emphasis on the quality of evidence required from a plaintiff at the close of his case. It demonstrates the court's willingness to scrutinize contradictory evidence and the importance of proper expert evidence, particularly in valuation matters. The case reinforces that expert witnesses must have actual knowledge of the subject matter they are testifying about, and that a plaintiff must establish both liability and quantum of damages with sufficient evidence. It also clarifies the interpretation of estate agency agreements and the obligations of estate agents regarding the timing of payment of purchase monies.