Cabinet Machingambi and Others v Douglas Nyaude and Others

Thirteen applicants, members of Printers Housing Cooperative Limited, concluded individual standard form contracts of sale with the first respondent, Douglas Nyaude, a registered estate agent, around 2005 for the purchase of immovable properties. The purchase price was payable in installments. The applicants paid their respective deposits and installments as agreed. However, due to rampant inflation, the seller found it impossible to service the land from the proceeds of the sale. The first respondent unilaterally increased the purchase price to cover increased servicing costs. The respondent alleged that a stakeholders meeting was held on 7 October 2006 where it was resolved that all stakeholders unanimously ratified the April 2006 price increase and agreed to pay arrears by 31 October 2006, failing which stands would be repossessed. The applicants denied being bound by this resolution and disputed consenting to the variation of the original contract price.

• Whether the applicants ratified the unilateral increase in purchase price by the first respondent
• Whether the applicants were bound by the resolution of the stakeholders meeting held on 7 October 2006
• Whether the cancellation of the applicants' contracts of sale for alleged breach of payment was lawful
• Whether the factual disputes regarding consent to variation of contract could be resolved on the papers in motion proceedings

1. The matter was referred to trial. 2. The papers already filed were to stand as pleadings with parties granted leave to file supplementary pleadings. 3. The parties were to observe all procedural requirements before proceeding to trial.

Where there are material factual disputes in motion proceedings that are central to determining the rights of the parties and these disputes cannot be resolved on the papers alone, the matter must be referred to trial. In particular, where it cannot be ascertained from the papers whether parties consented to a variation of a contract or were present at and bound by a meeting purporting to ratify such variation, these factual disputes require oral evidence and must be resolved at trial.

The court observed in passing that the minutes of the stakeholders meeting did not appear to have been signed or authenticated by anyone purporting to represent the owners or stakeholders, let alone the applicants, and noted that the validity or otherwise of the minutes was a question of evidence. The court also noted from the tone of the alleged minutes that not all stakeholders or stand owners attended the meeting in question.

This case illustrates the principle in South African and Zimbabwean law that where material factual disputes exist in motion proceedings that cannot be resolved on the papers, the matter should be referred to trial. It also demonstrates the court's approach to disputes involving unilateral variation of contracts and the requirements for establishing ratification of such variations. The case reinforces that consent to contractual variations must be clearly established and that meetings purporting to bind absent parties must have proper authority to do so.