Bulisani Tshuma v Ethel Mpofu (In her capacity as Executrix Dative of the Estate Late Ian Mpofu) and Master of the High Court, N.O

The plaintiff claimed specific performance of an alleged sale agreement for immovable property Stand No. 9939 Bulawayo Township Lands (No. 8 Abbot Avenue, Paddonhurst, Bulawayo). The plaintiff alleged that on 23 May 2020, he entered into an oral agreement with the late Ian Mpofu to purchase the property for USD 50,000. Ian Mpofu was critically ill and needed funds for medical treatment. He had initially advertised the property for USD 65,000. The plaintiff made payments totaling ZAR 186,000 and ZAR 263,199.60 (undisputed). Ian Mpofu arranged for his mother, the 1st defendant, to deliver title deeds and sign a written agreement of sale. Ian Mpofu died before final payment. The 1st defendant, as Executrix Dative of the estate, refused to complete the transfer, claiming she had no authority to sign on Ian's behalf and believed she was signing loan documents, not a sale agreement. She testified that plaintiff's lawyers told her a special power of attorney from Ian was "on its way from South Africa" which induced her to sign, but no such power of attorney was ever produced.

• Whether the late Ian Mpofu entered into an agreement of sale with the plaintiff
• Whether the 1st defendant had legal capacity to represent the seller when the oral agreement was reduced to writing
• Whether the 1st defendant is estopped from relying on any incapacity to represent the seller
• Whether a valid contract of sale was concluded (consensus ad idem, merx, and pretium)
• Whether the 1st defendant possessed actual or ostensible authority to act as agent for Ian Mpofu
• Whether the 1st defendant is bound by the caveat subscriptor rule
• Whether misrepresentation concerning the special power of attorney vitiated the contract
• Whether the plaintiff is entitled to specific performance, holdover damages, and costs

1. The 1st and 2nd defendants to pass transfer of Stand No. 9939 Bulawayo Township Lands (House No. 8 Abbot Avenue, Paddonhurst, Bulawayo) to the plaintiff within 10 days, failing which the Deputy Sheriff is directed to sign all necessary papers to effect transfer. 2. The plaintiff to pay ZAR 449,199.60 (balance of purchase price) to the 2nd defendant upon transfer. 3. Interest a temporae morae. 4. Holdover damages at USD 400.00 per month from 23 June 2021 until date of transfer. 5. Costs of suit awarded to the plaintiff.

1. A valid contract of sale requires consensus ad idem (meeting of the minds), identification of the merx (thing sold), and agreement on pretium (price). These elements can be established through oral agreement and electronic communications. 2. Ostensible or apparent authority arises when the principal's conduct leads a reasonable third party to believe the agent is authorized, even without actual express authority. The principal's conduct is determinative, not the agent's subjective understanding. 3. The caveat subscriptor rule binds a signatory to a contract regardless of whether they fully read or understood it, unless an exception applies (misrepresentation, fraud, duress, etc.). 4. Alleged misrepresentation does not vitiate a contract where: (a) the representee was explicitly informed of the true nature of the document; (b) the representee saw and read the document before signing; and (c) the representee's conduct was consistent with the transaction as documented. 5. An executor/agent cannot escape contractual obligations based on subjective beliefs about the transaction when the principal's objective conduct clearly established the nature and terms of the agreement.

The court observed that the 1st defendant appeared dissatisfied primarily with the purchase price (USD 50,000 versus the original asking price of USD 65,000) rather than genuinely contesting the existence of authority or the sale itself. The court noted: "From the totality of 1st defendant's evidence it seems she is dissatisfied with the purchase price only. Had the plaintiff and the deceased agreed on the sum of USD65,000 she would not be in court." The court also made broader observations about justice and equity in agency law, citing with approval the statement from Hely Hutchinson that "justice demands that the principal must be held liable in terms of the agreement" where the principal created an impression that the agent had authority. The court emphasized the practical importance of upholding apparent authority doctrines to achieve justice where principals have created impressions relied upon by third parties in good faith.

This case is significant in Zimbabwean contract and agency law for clarifying: (1) the requirements for establishing consensus ad idem in oral sale agreements, particularly through electronic communications (WhatsApp); (2) the application of ostensible/apparent authority principles where an agent's authority is disputed, emphasizing that the principal's conduct is determinative; (3) the limits of the caveat subscriptor rule and when alleged misrepresentation will not vitiate a contract where the signatory had actual knowledge of the document's nature; (4) the enforceability of oral contracts of sale concluded by critically ill persons seeking to raise funds for medical treatment; and (5) that dissatisfaction with price alone, discovered post facto after the principal's death, cannot unravel a validly concluded contract. The case demonstrates the court's willingness to enforce contracts based on the deceased principal's conduct and intentions, rather than the executor's subsequent objections.